Depublication: The Court Makes Un-Cases

The California Constitution requires the state Supreme Court to write an opinion explaining its decision in a case. These opinions are published and available to lawyers and lower court judges to study and follow. The court is free to decide what cases it wants to hear, so its written opinions are a powerful instrument to shape the law of California.

But many more issues need to be decided than the Supreme Court has time for. Thus, the intermediate Courts of Appeal also issue opinions that can also be relied upon as precedents unless they are overruled by the Supreme Court. Not all Court of Appeal opinions establish new rules of law or contribute to the development of the law, however. Thus, Court of Appeal justices are required to select only significant cases to be published as precedents. For the past 10 years, they have selected an average of 15% of their opinions for publication.

Beginning in 1971, the California Supreme Court asserted the power to “depublish” decisions chosen for publication by the Court of Appeal justices. While the Supreme Court has always had the power to overrule Court of Appeal decisions, until 1971 it did so only after hearing the same case itself and issuing its own opinion.

“Depublication” meant that the high court disagreed with the lower court’s determination that the case was significant enough to merit publication. As the practice grew, Supreme Court justices offered another explanation. They were depublishing cases where they didn’t agree with the ruling but didn’t have time to explain why. As former Justice Joseph Grodin put it, “Depublication is most frequently used when the court considers the result to be correct, but regards a portion of the reasoning to be wrong and misleading.”

A growing number of dissidents asked: How do we avoid compounding error if you won’t tell us what you didn’t like in the depublished opinion?

These criticisms reached a crescendo when Chief Justice Rose Elizabeth Bird presided over the court. Depublication reached levels as high as 100 cases a year, even though the chief justice herself dissented from more than 40% of the court’s depublication orders. The attorney general complained that the criminal cases being depublished generally favored the prosecution. A recent study confirms that during this era depublished cases were four times as likely to have dissenting views expressed than published ones. The heavy hand of the censor appeared to be at work.

The transformation of the court accomplished by the electorate in November, 1986, was expected to change this. It didn’t. In its first year, the court under Chief Justice Malcolm Lucas broke all records by depublishing 126 opinions. In its second year, the court broke its own record by depublishing 142 cases, equal to the number of its own opinions the court published.

We’re beginning to see some very disturbing results of this trend. First, the level of publication of Court of Appeal opinions has sunk to the lowest in history. Less than 13% of such opinions are now being designated for publication in the first place. Obviously, some Court of Appeal justices are simply shrugging their shoulders and saying, “Why bother?” It takes a lot more effort to prepare an opinion for publication than one that will not be published. This trend is most noticeable in those divisions “targeted” by the Supreme Court, which is quite selective in exercising its depublication power. In Los Angeles, for example, Division One has only had three decisions depublished by the Lucas court, while Division Seven has seen 24 opinions consigned to oblivion. The response is predictable. The rate of publication of all opinions for Division Seven has dropped from 26% to 20% in the past year.

A flood of “amicus letters” is now engulfing the court, urging the justices to depublish or not depublish a particular decision. Most of these letters come from lawyers representing institutional litigants such as insurance companies, who want to get rid of potential precedents that might present problems for them. Not only are opinions disappearing, but the briefs urging the court to shape the law in a particular way are becoming an “underground war.”

An aura of uncertainty is creeping into the law. It used to be a real coup to march into court with a new Court of Appeal opinion hot off the press. Now such opinions are viewed with distrust until they make it into the bound volumes a year later. Twice in recent months, the Supreme Court has reached back to depublish an opinion more than a year after it was announced.

Depublication is a unique California creation. Thirty-five other states with intermediate courts of appeal find no need to give their Supreme Courts an eraser. If the court doesn’t have time to grant a full hearing in a case, it should at least offer a brief explanation in a summary reversal, as the U.S. Supreme Court manages to do. The Bar’s growing dissatisfaction with depublication is engendering no response from the court except to step up the pace and depublish more cases.