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CA Supreme Court Kills Auto-Depublication of Appellate Opinions

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By Jonathan R. Tung, Esq. on July 05, 2016 3:58 PM

California's Supreme Court recently announced an amendment to the California Rules of Court. Beginning July 1, 2016, published Court of Appeal decisions will no longer automatically "depublish" when the California Supreme Court grants review.

The main impetus behind the move was to respect the opinions and wishes of jurists and lawyers throughout the state who generally felt that the opinions still had use beyond modification by the state high court. But the change is a trial run; the state will revisit the issue again after three years.

Proposed Rule Amendments

Proposals inviting comment were circulated in the middle of 2015 and comments came in from various legal groups, lawyers, and judges. Those comments as well as comments from the public are available on the California Supreme Court's website.

Changes to 8.1105(e)(1)(B), et seq.

Under amended rule 8.1105(e)(1)(B), "Grant of review by the Supreme Court of a decision by the Court of Appeal does not affect the appellate court's certification of the opinion for full or partial publication." This brings the state's court of rules largely in line with the majority of other jurisdictions' rules handling appellate cases.

For Clarity's Sake

The court also added subdivision (3) as part of Rule 8.1115(e):

"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)."

This clarifies a previously vaguely-worded provision within subsection (2) that provided for citation of cases pending review.

But the grand takeaway is that under the new set of rules, a Court of Appeal opinion will have "no binding or precedential effect," and may only be cited for its "potentially persuasive value."

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