Veteran Court of Appeal Presiding Justice Arthur Gilbert writes in the Daily Journal that the Supreme Court should state its reasons when it depublishes an opinion (rule 8.1125(c)), rendering the opinion one that “must not be cited or relied on by a court or a party in any other action” (rule 8.1115(a)).
It’s a typical Gilbert column — a light touch about a serious subject. He proposes:
If the Supreme Court depublishes a case, tell us why . . . all of us, the bar, litigants, and (gulp) the justices. The court rule tell us depublishing is not a criticism of the decision or any law stated in the opinion. [Rule 8.1125(d) (depublication “is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion”).] So what gives? We live in an age of openness. If I went astray, I would like to know why. It would help me be a better justice. I can handle it . . . I guess. If my suggestion gains traction with our Supreme Court, I would appreciate scuttling such language as “in a remarkable lapse of judgment.”
We’ve written about how the Supreme Court long ago, when it denied review (it was called “hearing” back then), would sometimes append short statements to the Court of Appeal opinion in the case it was not going to hear. (The shadow docket . . . of California’s Supreme Court.) A problem with that practice — and with Justice Gilbert’s proposal — is that the Supreme Court is in effect issuing a decision of law without briefing (by the parties or any interested amicus curiae) or oral argument in that court. (On the other hand, we’ve advocated that individual justices’ dissenting votes from the denial of review should include brief explanations of what issue in the case piqued their interest.)
The catalyst for Justice Gilbert’s proposal is the Supreme Court’s May depublication of Pateras v. Armenta, an opinion he authored (more about the case here). But his credentials as a depublication critic are long established. The very first of his many, many Daily Journal columns — a 1988 missive, “It never happened” — explained what happens when an opinion is depublished: “Someone up there simply pulled the switch on an opinion that had just begun to bask in the light of recognition.”
Related:
Praise for former Chief Justice Gibson and a warning about the future
