The Supreme Court this week invited comments on changes it proposes for rule 8.1115, governing the citation of opinions. (The changes would be made by the court instead of by the Judicial Council, which is in charge of most rules, because article VI, section 14, of the California Constitution gives the court jurisdiction over the publication of appellate opinions.)
The changes concern issues that At The Lectern has frequently discussed.
Expressly expanding allowable citations of unpublished opinions
Rule 8.1115(a) states a general rule barring the citation of unpublished opinions — “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”
Subdivision (b) of the rule provides limited exceptions to the general rule — citing a nonpub is OK “[w]hen the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel; or . . . [w]hen the opinion is relevant to a criminal or disciplinary action because it states reasons for a decision affecting the same defendant or respondent in another such action.”
The court’s rule proposal would add two more exceptions, permitting citation of a nonpub “[i]n a petition for review, answer to a petition for review, or reply in support of a petition for review, to show the existence or nonexistence of grounds for ordering review under rule 8.500(b)(1) [and] [i]n a request for partial publication or publication, to show that an opinion or part of an opinion involves a legal issue of continuing public interest under rule 8.1105(c)(6).”
Allowing the citation of a nonpub in a petition for review to show that there is a division in the lower courts about a question of law or that an issue is frequently recurring is a long-standing, but unwritten, exception to the general no-citation rule. It’s an exception we’ve written about before. (See, e.g., this 10-year-old post.) There’s nothing wrong with now making it a written exception. But there’s a better way.
There have been other citations of unpublished opinions that are in keeping with the spirit of the no-citation rule, but that are permitted by neither the current nor the proposed exceptions. (See here, here, and here.) As just one example, the proposal wouldn’t expand at all permissible citations of nonpubs by a court, despite judges and justices having invoked unwritten, but acceptable, exceptions to the no-citation rule (see ibid).
All of this indicates that the proposed rule change is fine as far as it goes, but that it doesn’t go far enough. Instead of expanding the exceptions to the general no-citation rule, the prohibition itself should be narrowed to specify what an improper use of a nonpub is.
An article Horvitz & Levy partner Dean Bochner and I published in 2021 suggested amending subdivision (a) this way: “Except as provided in (b), an An opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on as binding or persuasive precedent by a court or a party in any other action.” (See here.)
That change would encompass the new exceptions now proposed by the Supreme Court. It would also allow for other unobjectionable nonpub citings that would be prohibited by the plain terms of the rule even as amended by the court’s proposal.
Precedential effect of review-granted published opinions
Ten years ago, the Supreme Court changed the rule about the effect on a published Court of Appeal opinion of granting review. It used to be that granting review would automatically depublish the Court of Appeal opinion, making that opinion not citable unless the Supreme Court ordered otherwise. The rule change flipped the script, leaving the opinion published unless otherwise ordered. But, the revised rule provided, the opinion, although remaining published, would have “no binding or precedential effect, and may be cited for potentially persuasive value only.” (See here.)
Then, in 2021, the court changed the rule about the effect of a review-granted published opinion. More specifically, the court changed the rule without amending the rule, revising the comment to rule 8.1115 but not the rule’s text. The comment thus currently says a review-granted opinion “may be cited, not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority that would in turn allow superior courts to exercise discretion under Auto Equity, supra, 57 Cal.2d at page 456, to choose between sides of any such conflict.” (First emphasis added.)
The comment also was revised to provide that, unless otherwise ordered, when the Supreme Court grants review of a published Court of Appeal opinion and later transfers the case back to the Court of Appeal with directions to vacate its opinion and reconsider the matter, the Supreme Court’s order depublishes the opinion or, if the opinion is already in the official reports, makes the opinion no longer citable.
We had no problem with the 2021 changes, but we did say it would be better to include the changes in the rule itself instead of just in the rule’s comment. (Here and here.) Well, that’s what the Supreme Court is now proposing — moving the stuff in the comment into the rule’s text, albeit with some nonsubstantive phrasing changes.
Comments on the Supreme Court’s proposal are due by March 25.
