This may be pretty big for California appellate lawyers and any lawyer or client involved in motion practice at the trial court level.The California Supreme Court has just eliminated its long-standing rule that "de-published" any lower court decision taken under review.
For a long time -- longer than CBL has been around -- it's been the rule that after a Court of Appeal issues an opinion, and the California Supreme Court grants a hearing the Court of Appeal decision, that decision is not citeble as authority, for persuasion, or for any other purpose. Effective July 1, that rule changes, as the Chief Justice Canti-Sakauye has announced revised this big change to California Rules of Court, Rule 8.1105:
(e) When review of published opinion has been granted
(1) While review is pending
Pending review and filing of the Supreme Court’s opinion, unless otherwise ordered
by the Supreme Court under (3), a published opinion of a Court of Appeal in the
matter has no binding or precedential effect, and may be cited for potentially
persuasive value only. Any citation to the Court of Appeal opinion must also note
the grant of review and any subsequent action by the Supreme Court.
(2) After decision on review
After decision on review by the Supreme Court, unless otherwise ordered by the
Supreme Court under (3), a published opinion of a Court of Appeal in the matter,
and any published opinion of a Court of Appeal in a matter in which the Supreme
Court has ordered review and deferred action pending the decision, is citable and has
binding or precedential effect, except to the extent it is inconsistent with the decision
of the Supreme Court or is disapproved by that court.
(3) Supreme Court order
At any time after granting review or after decision on review, the Supreme Court
may order that all or part of an opinion covered by (1) or (2) is not citable or has a
binding or precedential effect different from that specified in (1) or (2).
Furthermore, under the new rule (subpart (e)(2)),
After decision on review by the Supreme Court, unless otherwise ordered by the
Supreme Court under (3), a published opinion of a Court of Appeal in the matter,
and any published opinion of a Court of Appeal in a matter in which the Supreme
Court has ordered review and deferred action pending the decision, is citable and has
binding or precedential effect, except to the extent it is inconsistent with the decision
of the Supreme Court or is disapproved by that court.
A pattern has developed with high-profile legal issues in California: The Supremes grant review of an appellate decision; the review process takes years; meanwhile, appellate courts keep issuing opinions addressing the same critical issue; the Supremes do a "grant and hold" of the petitions for review of those other cases, meaning there won't be any briefing, argument, or any decision, but they will send it back to the Courts of Appeal for further consideration after deciding the first case they accepted. Meanwhile, up until now, all the decisions have been "depublished" and unciteable. Under the new rules, that is going to change, and we will see what difference, if any, it makes.
Comments