Wednesday, July 29, 2015

An end to automatic depublication when review is granted?

Rule change could mean Court of Appeal decisions would
no longer be automatically depublished 
when the Supreme Court grants review

SAN FRANCISCO—The California Supreme Court announced today that it is seeking public comment
on a possible amendment to the California Rules of Court concerning publication of appellate opinions
(rule 8.1105(e)(1)) and the citation of opinions (rule 8.1115), to provide that a published opinion of a
Court of Appeal will no longer be automatically depublished after the Supreme Court grants review

of the case. “Our court regularly reassesses its policies and practices in order to determine whether
we can or should 
do things differently, or better,” said Chief Justice Tani G. Cantil-Sakauye.
“Beginning in 1979, and three more times in the 1980s, various commissions, Court of Appeal justices,
entities and bar groups asked this court to change its rule automatically depublishing Court of Appeal
opinions upon grant of review by the Supreme Court. The court previously decided against such
revisions, but upon reflection, and in view of renewed interest for change voiced by some Court of
Appeal justices, the court determined that the time has come to consider whether to make changes.”

The court’s decision to seek comment on a possible rule change, taken at its regular monthly
administrative conference on July 22, was unanimous. An invitation to comment on the possible changes
is available on the California Courts website’s Invitations to Comment page, under the “Supreme Court”
heading. Also available at that link are documents, dating from 1979 to 1988, concerning prior related
proposals. The deadline for submitting public comments on the possible changes is Friday, September 25.

Under article VI, section 14, of the California Constitution, the court has sole authority to make and
amend rules concerning publication of appellate opinions. No amendment presently under consideration
would alter the court’s existing general authority to order the depublication of Court of Appeal opinions.

In contemplating and drafting the possible rules, the Supreme Court considered the practices of other
jurisdictions and the language of prior proposed rules. The possible amendments include alternative
versions of rule 8.1115(e)(1), concerning the binding or precedential effect of published Court of Appeal
opinions after grant of review by the Supreme Court and pending that review, and the court would
particularly appreciate comments on those alternatives.

The court will receive a report with the results of public comments by early November.

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