That’s one small step… on second thought, a medium step for everyone... but the giant leap‑‑I'll settle for a step‑‑ is yet to come. Apologies to Neil Armstrong; man and mankind are in the same class, and I prefer human kind. But no matter whether or not Mr. Armstrong failed to distinguish between the specific and the general. The California Supreme Court took a step. It unanimously amended California Rules of Court, rule 8.1105(e)(1) (effective July 1, 2016) so that Court of Appeal decisions will not be automatically depublished when the Supreme Court grants review. The opinion still may be citable unless and until the Supreme Court says otherwise. Of course, the Court of Appeal opinion would not be citable to the extent it is inconsistent with the decision of the Supreme Court.
I voted for the change in the survey circulated by the Chief Justice for public comment. But other than my vote, is it possible? No, probably not…but just maybe some of the present justices read my first column for the Daily Journal on June 9, 1988, titled It Never Happened. I criticized the then-current and past practice of depublishing Court of Appeal opinions in general.
None of the current justices were on the Supreme Court when I published my first column. For all I know, one or two could have been toddlers then, but certainly precocious toddlers. So maybe they glimpsed it. At any rate, it is time to take a bigger step and scuttle the outdated practice of depublication. The word itself shows up as a spelling error. The shaky rationale for this murky rule is that, although the depublished opinion comes to the right result, the reasoning is wrong. Need I say more? Let’s have transparency. Not to prolong the suspense, here in its entirety is my first column, re‑published three days short of its 28th anniversary:
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 your 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, that 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 state 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 is a large group of justices writing poorly reasoned opinions. I suppose the depublication rule helps stem the flood of cases inundating the California Reports, 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 just may start an underground publishing firm that will publish only depublished cases. I’ll 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 the whether a case is published or depublished. I can just 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.”