Dear Readers. You may ignore the paragraph that follows this one. It reflects a disingenuous refusal to recognize an anniversary that in fact I wish to acknowledge. So why include it? Good question. I do not have the answer, but I bet a mental health professional does.
Anniversaries are simply numbers. Celebrations of the past do not provide an escape from the harsh reality of the present. It is now that counts. But despite how we reckon with our anniversaries, to ignore them is impossible, and to treat them with insouciance is deceptive to others as well as to ourselves.
So I will “out with it.” My column this month, June 2013, marks the 25th anniversary of my first column for the Daily Journal in June 1988 entitled, It Never Happened. Twenty-five years-a mere number, but….as a kind of commemoration, I resort to a ploy I already used this past year, the reprise of an old column. This time the very first one I wrote. It is true that this same column is the first one that appears in my book, “Under Submission,” Thompson Rutter (2008), a 20 year compilation of my Daily Journal columns. So far the book "sold" several (a euphemism for “a few”) thousand. Whether every reader devoured the book in its entirety, is beside the point. What matters is that all the profits go to legal charities.
Therefore as a document of historical significance, I offer my very first Daily Journal column. It speaks of an antediluvian practice rarely used today.
It Never Happened
Most people don’t know what Court of Appeal justices do, and that includes many trial judges. Generally a Court of Appeal justice writes opinions: “grinds them out” would be a better way of saying it. Henry Ford would approve. The opinions bump along the assembly line and then chug down the road to oblivion. Along the way they are used or misused by attorneys or judges who sometimes read them.
But deep within the heart of every appellate justice there lies the seed of an occasional masterpiece, a gem that would make Benjamin Cardozo turn green with envy. It starts with a case that fortuitously comes your way. Something special occurs during this random encounter. You begin to feel ideas growing and developing in your brain.
The Unseemly and Grotesque Stage
During an appropriate period of gestation, the ideas coalesce into a concept. When the concept fights and claws its way out of your brain and plops in a heap on the page, you know you are ready to write the first draft of the opinion. When you’re done, that draft is wiggling with life but not ready for public consumption. It is unseemly and grotesque, like the mutant baby in the cult film classic “Eraserhead.”
But it’s your baby, and you nurture it and shape it, draft after painstaking draft. And then you know, as if by instinct, that the opinion is ready. It shimmers with clarity and reason. Magnanimously, you acknowledge that the brief on the winning side was persuasive, but the opinion has your signature- figuratively and literally. The opinion reflects your style, your panache, your essence.
Shortly after the publication of you chef d’oeuvre, you happen to attend a cocktail party given by the local bar association. You try to avoid an attorney known for his unctuous fawning, but when he starts praising your new opinion, you find his conversation engaging and stimulating. You tell him in a modest, self-effacing tone that you hope the opinion will be useful. You think it might be unseemly to tell him that you know the opinion illuminates the law, gives it meaning and purpose, how it persuades and sparkles with reason and insight.
I have experienced this. But it’s hard to talk about because it never happened. No, I don’t mean I imagined it. I don’t mean I’m crazy and hallucinating. It's much more than that. I mean the California Supreme Court depublished it. Someone up there simply pulled the switch on an opinion that had just begun to bask in the light of recognition.
The ostensible reason for this ignominious termination is that the opinion reached the right result, but for the wrong reason. Maybe so, but the recent use of depublication on such a wide, unprecedented scale means that there are a whole group of justices writing poorly reasoned opinion these days. I suppose the depublication rule helps hold back the flood of cases inundating the Supreme Court, but it also keeps ideas locked in the closet.
No Useful Purpose
Whatever the reason for the rule, it serves no useful purpose. Why hide the reasoning of an opinion, whether good or bad, from the rest of the world? If the Supreme Court does not care for an opinion, it can decertify it. The opinion may lack precedential value, but at least it exists as an object of either enlightenment or of ridicule. Another interpretation of the law is at least accessible to scholars, lawyers or collectors of the bizarre and occult.
Decertifying instead of depublishing opinions will not increase the Supreme Court’s caseload. It will, however, permit the expression of all ideas and will serve an important educational function for the bar and the public. And, who knows, the spurned opinion just might become the law in the next millennium.
I’m not holding my breath that the rule will be changed in the near future. If it does not change soon, one of my colleagues suggested that we publish all the depublished cases. That’s a brilliant idea. I may start an underground publishing firm that will publish only depublished cases. I will call the company East’s Oxymoron Publishing Co.- “Cases That Can Get You in Lots of Trouble If You Cite Them.”
Better yet, maybe we can change the rule so that justices on the Court of Appeal rather than the Supreme Court will have the last word on whether a case is published or depublished. I can imagine what would happen with such a rule. Assume I have decided not to publish a case, but the Supreme Court wants it published.
“Oh please, publish this case,” the Supreme Court asks me.
“No,” I answer. “I don’t think it really merits publication.”
“But it’s so good, you have crystallized your ideas into a succinct, readable treatise on this complex issue of law. There is a desperate need for your opinion. Its publication will be a significant contribution to the people of this state, and the legal profession.”
“Well…I’ll think about it.”
Current edifying note- It was rumored that the Supreme Court tried to depublish this column, but I got it out before the vote.
Perhaps the pen (word processor) is a mighty instrument for change. I checked the 2102 Court Statistics Report issued by the Judicial Council. In fiscal year 1993 our supreme court depublished 109 cases. God knows what percentage were mine. In fiscal year 2011 it depublished only 11. And guess what?