The Facts About Depublication

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It has happened to all California attorneys. While doing research somewhere other than the official reports, you find the perfect case. It is on all fours with your case, and holds exactly the right way. But then you look at that little footnote in the California Reporter, or check Shepard's. Your perfect case has been DEPUBLISHED. What happened?

The California Rules of Court provide some very broad guidelines for what decisions are "publishable." Rule 976(b) says that an opinion should not be published unless it "(1) establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule; (2) resolves or creates an apparent conflict in the law; (3) involves a legal issue of continuing public interest; or (4) makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law."

However, the California Supreme Court is the final arbiter of what appears in the Official Reports of California court of appeal decisions. Cal. Const., article VI, § 14. The Court seldom, if ever, depublishes a court of appeal decision for failure to satisfy those standards. Commentators and members of the court have explained that the Supreme Court uses depublication to remove erroneous statements of the law from the Official Reports. See Joseph R. Grodin, "The Depublication Practice of the California Supreme Court," 72 Cal. L. Rev. 514 (1984); Chief Justice Rose Elizabeth Bird, Remarks to the State Bar Convention (Sept. 10, 1978); Gerald F. Uelmen, "Waiting for Thunderclaps," California Lawyer, at 29 (June 1993); J. Clarke Kelso, "Special Report on California Appellate Justice: A Report on the California Appellate System," 45 Hast. L.J. 433 (1994); Julie Hayward Biggs, "Note, Decertification of Appellate Opinions: The Need for Articulated Judicial Reasoning and Certain Precedent in California Law," 50 S. Cal. L. Rev. 1181 (1977).

Depublication did not begin until 1971, but the Supreme Court has used it more and more frequently. The author of the Southern California Law Review Note reports that the Court depublished 3 cases in 1971. In an article in the July 1998 issue of California Lawyer, Santa Clara Professor Gerald Uelmen reports that the Supreme Court under Chief Justice Bird averaged 78 depublications a year. Under Chief Justice Lucas, it averaged 117 depublications per year. For the year ended March 30, 1998, the current Supreme Court only depublished 53 court of appeal opinions. Perhaps the practice is in decline.

Critics of the practice complain that it does not give litigants a fair opportunity to affect the depublication decision, that it is unfairly secretive, and that it creates uncertainty in the law because the Court gives no reasons for its actions.

Supporters point out that depublication gives the Court a much-needed middle road between time-consuming full review of a lower court decision, and allowing an erroneous statement of the law to remain on the books. Some members of the Court have advocated authorization for summary dispositions that would provide a short statement of the reasons for the decision. However, that would apparently require a constitutional amendment. The necessary support for such a change has not developed.

At least one attorney believes the practice violates the United States Constitution. Erika Senter of Irvine, California filed an unsuccessful petition for certiorari on April 17, 1997, in a case entitled In re Estate of Edna Clara Reedy. The petition claims that what Ms. Senter terms "California vacatur" raises "substantial concerns over fundamental First Amendment rights of petition for a redress of grievances and of equal access to the courts which involve both the procedural and the substantial 'due process' provision, and, also, the 'equal protection' provision of the Fourteenth Amendment to the United States Constitution, and it presents a challenge to the constitutional strictures that prescribe the duty of adjudication and demand a 'separation of powers' between the legislative and judicial branches of government."

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