High Court Tactic : Depublished Cases Stir a Controversy

Times Staff Writer

The state Court of Appeal ruling shocked the clergy across California: A minister and his church could be sued for malpractice because he counseled a troubled young man who later committed suicide.

Judging from the ruling's expansive language, any cleric who gave spiritual counseling to a parishioner might be open to a lawsuit, like a doctor whose medical treatment goes awry. It stood to open a new profession to an ever-expanding area of litigation where damages commonly mount into the millions. It prompted some ministers to wonder whether they should give up counseling.

As it turned out, however, the California Supreme Court wiped out the precedent set by the ruling. Using a process unique in this state, the high court "depublished" the opinion. In other words, the court told judges and lawyers that the ruling was not binding on any future case, and indeed, should not even be cited.

100 Cases Last Year "It's like a wart you get used to," Court of Appeal Justice James B. Scott of San Francisco said of depublication, a process that was used in roughly 100 cases last year.

Depublication has long disturbed judges, academics and lawyers who say that, at worst, it is a way for the court to censor unpopular views.

Even Chief Justice Rose Elizabeth Bird views it as "a very imprecise and imperfect tool for shaping precedent." She routinely dissents when the rest of the court orders a case depublished.

And in recent months, Atty. Gen. John K. Van de Kamp has joined those who have called for its abolition while the State Bar Committee on Appellate Courts is preparing to make a similar recommendation.

Nevertheless, each week as the high court issues its denials for review of lower court opinions--thus upholding the lower courts--it adds a sentence to a handful of cases stating that those opinions must not be printed in the official volumes.

Signal of Disagreement An order to depublish signals that the high court not only does not want to review the case, but that it disagrees with part of the lower court's reasoning. Yet even though the Supreme Court may disagree with the legal reasoning, a depublication order does nothing to alter the result. In fact, the result is left intact even though it cannot be cited as precedent in other cases.

In the clergy malpractice case, the depublication order meant that no other church or minister in the state would be open for a suit in similar circumstances. But that is a "hollow victory," said David Cooksey, attorney for the Los Angeles church, Grace Community in Sun Valley. His clients still must gear up for trial, set for April.

Like most lawyers whose cases are depublished, Cooksey said he has no idea why the opinion was spiked. But one judge not involved in the case said it may have been depublished because it was so unusual.

Perhaps the high court was concerned that there would be a rash of similar suits. Possibly the justices concluded that it would be improper to decide the issue until after the case had gone to trial. Once that trial is over, the case probably will go back through the appellate courts, giving the high court a chance to rule on it when the case is fully developed.

Usually, the impact of any single depublication order is minor. Indeed, most court of appeal opinions--upwards of 85% of 7,000 rulings a year--are not published officially. They merely settle appeals by applying well-settled law to particular facts of the case, and have no value as precedent in future cases.

Official Reports

But when a court of appeal decides a new area of the law, gives a new interpretation to old law or rules on a case of wide public interest, the three-judge panel responsible for the case orders that it be published, and it is printed in volumes of official reports of court decisions. Lawyers and judges use such opinions to guide them in future cases.

But all this comes undone if the Supreme Court, acting on its own or on requests by lawyers involved or interested in the case, depublishes the case. The once-published case literally is erased from the official law books. Because it can no longer be cited as precedent, it loses its legal significance.

Stephen Barnett, a law professor at the University of California, Berkeley, called depublication "an unhealthy practice," one that is "fundamentally subversive of the notion that courts must operate by making reasoned decisions."

Like most of the court's business, decisions to depublish are made behind closed doors. But unlike its written opinions, the court does not make public its reasons for depublication.

"It's making law without deciding cases," Barnett said. " . . . The court is telling the losing party that the reasons you lose the case are wrong, but you still lose."

Barnett and other critics note that depublication has no guidelines. Nor is there a pattern to the orders.

One recent depublished ruling, for example, concluded that a juvenile court was correct in awarding custody of a child to an adoptive man who was homosexual and had been accused but not convicted of making advances toward boys several years earlier.

Another depublished opinion reversed a murder conviction because the trial judge told the jury that if one juror left for vacation and an alternate was seated, deliberations would have to begin anew. The jury reached a verdict before the juror left for vacation.

Roughly two-thirds of 30 depublished cases reviewed by The Times involved what could be seen as conservative interpretations by the courts of appeal.

In one of those cases, an appeals court concluded that the Agriculture Labor Relations Board went too far in ordering that a tomato farmer rehire workers who during a labor dispute were replaced by two $100,000 mechanical pickers. A third rather conservative ruling that was depublished held that a busy trial judge had no obligation to recite why he imposed a six-year prison term on a man guilty of robbery.

Not always has the high court been so quick to use the depublication process. A decade ago, the court itself said in a letter denying a litigant's request to depublish a case that "to so act would be law by elimination rather than law by elucidation."

But that was when the process was rarely used. Now, faced with a heavier load, the court has come to rely on depublication as a useful tool for quickly disposing of cases.

In a recent California Law Review article, Justice Joseph Grodin wrote that depublication "is most frequently used when the court considers the result to be correct but regards a portion of the reasoning to be wrong or misleading."

But though the justices believe the legal analysis is wrong, they do not believe the case warrants full review. The court could simply refuse to review the case "and hope that the error will not be too seriously compounded before another court of appeal gets around to setting things straight," and, indeed, this often happens, Grodin noted.

"In some situations, however, the risk of compounding the error appears quite substantial, as when the appellate opinion is the only published authority on the question, and the question is likely to recur at the trial level in a significant number of cases."

Rather than risk "building reversible error into a large number of trials," the case is simply removed from the law books, Grodin wrote.

Selective Review

The justice predicted that passage of Proposition 32 last November will reduce depublication, which he welcomes. The measure allows the court to review specific parts of a court of appeal decision with which it disagrees. Before its passage, the court, in a laborious process, was required to review the entire case, including portions with which it concurred.

A committee set up by Chief Justice Bird is studying ways to implement the measure. A proposal backed by Van de Kamp is that with the court's added power to limit its review of lower court cases, it should do away with depublication. Rather than issuing such orders, the high court could simply grant review of offensive portions of the opinion. But Grodin and others predict that depublication will not disappear altogether.

Criticism of the process is not universal. Court of Appeal Justice Leon Thompson of Los Angeles said there are too many published opinions to begin with. The high court does the "bar and bench a favor" by depublishing many lower court efforts.

Another Southern California appellate justice, asking that his name not be used, said the high court uses the process "in a rational framework," often when a lower court decides a point of law "incorrectly or almost incorrectly" or "with too broad a brush."

Nagging Concern

But while depublication is of little concern to some judges, others expressed a nagging concern that the high court on occasion has used depublication to stifle opinions critical of its rulings--an allegation that Grodin dismissed as unfounded in his article.

Concerned that the result of their hard work might be depublished, lower court judges might "pull (their) punches" when writing opinions, said Robert K. Puglia, presiding justice of the Court of Appeal in Sacramento.

"I would never suggest that a judge would change the result," Puglia said. "A judge might tone down what otherwise might be a somewhat strident attack on existing law."

One somewhat strident opinion was authored by Scott of San Francisco, who in 1981 wrote of "the mischiefs that flow" from depublication.

The case involved a Humboldt County judge who had cited a Court of Appeal case as precedent--unaware that 13 days earlier, the Supreme Court had depublished the case. On appeal, lawyers for the losing side argued that because the judge relied on a depublished case, the decision had to be overturned. One rule in the legal system is that lawyers and judges cannot rely on depublished cases in arguing points or issuing rulings.

Oversight Understandable

"Such an oversight by busy trial lawyers and trial judges is understandable. The depublication practice is a trap for the harried trial judge," Scott wrote.

The Supreme Court denied a hearing, thus leaving intact Scott's conclusion that the Humboldt County judge's decision was correct. But the opinion, with criticism of depublication, was itself depublished.

At other times, it appears that the court does exactly what it criticized in its 1975 letter--making law by eliminating law--and in the process, the court has applied the law less than equally.

In 1980 and 1981, for example, the court depublished two opinions holding that convicted robbers could be sentenced to five years for robbery, plus extra, unlimited terms for using guns or injuring their victims.

It left published a third case, which held that the maximum sentence for using a gun could not exceed five years. The defendant's sentence was reduced.

Then, a fourth case came along. A robbery defendant was sentenced to 20 years because he had used a gun and caused injuries.

Court of Appeal Justice Howard B. Weiner wrote that he disagreed with the case that remained published, but saw no reason to repeat "in a public display of our intellectual independence" what the two depublished cases had said. He resolved the quandary by calling on the court to deal with the question by granting full review of the case, "not by directing its non-publication."

The court did take the case. But as it turned out, the high court did not side with the opinion that it had left on the books. Rather, it ruled that enhancements could exceed five years. Thus, the prisoner whose case had remained published received a reduced sentence, while other convicts in the same situation were and still are required to do added time.

The reverse has happened too.

In 1975, a Sacramento appellate court held that a minimum five-year sentence for Gerald Allen Carter, convicted of heroin possession, was unconstitutional, noting that minimum sentences for more serious crimes such as rape were far shorter.

The case was depublished. The effect did not become apparent until 1977, when the same issue reached the same court in the case of Sylvester Williams. Again, the appeals court reasoned that sentences for crimes more severe than heroin possession were less harsh, and cut Williams' five-year term. That opinion was allowed to stand.

Writing for the majority in the Williams case, Justice Puglia in Sacramento pointed out an inequity. Because of the depublication order in 1975, "the precedential effect of our holding died aborning," he wrote. Although Carter "was relieved of the burden of an unconstitutional sentence," prisoners like him remained in prison another two years until the Williams' case became precedent.

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