Cal. Litig. 2016, Volume 29, Number 2

It’s Time to Replace Summary Depublication by the California Supreme Court with Something Better

By J. Anthony Kline and Jerome B. Falk, Jr.

Until recently, appellate opinions certified for publication were automatically depublished when the California Supreme Court granted a petition for review. Despite numerous recommendations and requests starting in the late 1970s to eliminate this unusual practice, the Supreme Court had repeatedly refused to do so. It therefore took many by surprise when, several months ago, the Supreme Court invited public comment on a proposal to eliminate automatic depublication upon the grant of review. On June 1, 2016, the court adopted a proposal to abandon the practice. This is a significant improvement — but it corrects only one part of the problem caused by depublication of Court of Appeal opinions.

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The Supreme Court retains the power to summarily depublish an opinion selectively even though it meets the requirements for publication under Rule of Court 8.1105 (c)(1)(9), regardless whether review was sought. This practice has been criticized even more strongly than the policy of automatic depublication upon the grant of a petition for review, which the Court has just abandoned.

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