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Supreme Court Changes The Publication Rules Without Amending The Rules

The Supreme Court yesterday modified two parts of rule 8.1115 that govern the citability of Court of Appeal opinions in cases in which the Supreme Court grants review. The changes alter practices the court put in place five years ago when it amended the rules to provide that the grant of review would no longer automatically depublish the Court of Appeal opinion in the case. Court of Appeal opinions in cases pending on review will now potentially have a bit more force than before, while opinions in some cases the Supreme Court transfers will have no force at all. The revisions don’t change the language of the rule at all, but rather are spelled out in an administrative order and in a more detailed discussion added to rule 8.1115’s Advisory Committee Comment. First, the administrative order says that, unless otherwise stated, court orders granting review of published opinions will “incorporate[ ]” a new provision. The “incorporate[d]” provision is that, pending review, instead of the opinion having “no binding or precedential effect” and being citable “for potentially persuasive value only,” which is what the rule specifies, the opinion can also be cited “for the limited purpose of establishing the existence of a conflict in authority that would in turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.” Without the “incorporate[d]” provision, superior courts cannot follow an opinion in a review-granted case if the opinion conflicts with a published opinion that is not pending review. (See, e.g., this discussion of the court’s actions in People v. Hicks and People v. Aviles.)

The Advisory Committee Comment now further explains:

Superior courts may, in the exercise of their discretion, choose to follow a published review-granted Court of Appeal opinion, even if that opinion conflicts with a published, precedential Court of Appeal opinion. Such a review-granted Court of Appeal opinion has only this limited and potential precedential effect, however; superior courts are not required to follow that opinion’s holding on the issue in conflict. Nor does such a Court of Appeal opinion, during the time when review is pending, have any precedential effect regarding any aspect or holding of the Court of Appeal opinion outside the part(s) or holding(s) in conflict. Instead, it remains, in all other respects, “potentially persuasive only.” This means, for example, that if a published Court of Appeal opinion as to which review has been granted addresses “conflict issue A,” as well as another issue as to which there is no present conflict-“issue B”-the Court of Appeal’s discussion of “issue B” remains “potentially persuasive” only, unless and until a published Court of Appeal opinion creates a conflict as to that issue.

The change is apparently designed to find somewhat of a middle ground between two alternatives regarding the precedential effect of review-granted published opinions that the court considered during the rule 8.1115 amendment process. (See here.) Under the alternative the court chose in 2016, and which still remains in rule 8.1115’s text, if the opinion under review creates a conflict with an earlier, unreviewed published opinion and the Supreme Court ultimately decides to disapprove the earlier case law, superior courts will have been obligated to follow the law stated in the opinion that is later disapproved.

Second, the administrative order “incorporates” a provision into Supreme Court orders that, after grants of review, “transfer[ ] a matter with an underlying published Court of Appeal opinion and directs the appellate court to vacate its opinion and reconsider the matter.” Unless the court’s transfer order otherwise provides, the “incorporate[d]” provision makes the Court of Appeal opinion not citable for any purpose, even for its persuasive value. The opinion is depublished if it isn’t in the official reports yet and, if it is already in the bound volumes (or its appearance in the bound volumes is imminent), the opinion “is deemed to be ‘not citable.’ ” These changes are not retroactive. The new stuff in the Advisory Committee Comment specifically says that the first change “applies with respect to all published Court of Appeal opinions giving rise to a grant of review by the Supreme Court on or after April 21, 2021” and that the second change “applies only to such transfers occurring on and after April 21, 2021.” The changes seem fine, but it is confusing to have those changes only in provisions that are deemed “incorporate[d]” into Supreme Court orders and are in an Advisory Committee Comment, which are both at odds with the unaltered text of the applicable rule itself.

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