Nonpublication of Appellate Opinions

The Court of Appeal has the discretion to publish cases or not publish cases. California Rules of Court, 976(b) explains that a Court of Appeal opinion should not be published unless it basically involves new, important, or sigificant legal rules or principles. The criteria in this rule are pretty difficult to meet, and in fact, most of the opinions issued are not published. (Statistics here.)

But what if a case does meet these criteria and the Court of Appeal decides not to publish it? (The Court of Appeal might do so, for example, to make it less likely that the Califonria Supreme Court will grant review.) Is the Court of Appeal ever required to publish a case? The following discussion explores that question.

Date sent: Sun, 15 Mar 1998

Any ideas on, or experiences with, the suspected practice of not certifying an errant or poorly reasoned (but publishable) appeal opinion for publication in order to deflect its review by the California Supreme Court? Are such practices going on? And, when they do occur, if they do, is it helpful in gaining Supreme Court review to ask for the opinion's publication under CRC, Rule 978?

I am of the view that an appellate determination not to certify an opinion that creates new law, or creates a conflict in the law, or decides an issue that has not been decided in any published opinion before, may be an abuse of judicial discretion, and/or a denial of due process, and/or a denial equal protection, if the unpublished opinion imposes on the parties, or subjects the parties to, a rule of law that is new, different or "special" and remains undisclosed.

I have a case right now that I believe falls in the category of a "wrongfully unpublished" appeal opinion to deflect its further review. It's an appeal, in Fourth District, Div. Two, of a complex legal malpractice case involving CCP 664.6 settlement and collateral etoppel issues, etc., where the attorney successfully defended against the client's malpractice charge on the claim that the client had agreed to a settlement (the issue of settlement was submitted to the jury which found that had agreed to the settlement) -- even though the trial judge had refused to enforce said settlement on the ground, and express finding, the client had not agreed to it. It seems to me that the case is novel, involves issues of continuing public interest, and the decision imposes a "special" rule on the parties. It is, therefore, certainly publication worthy. Am I being just a "sore loser" or do I have a point?

And, if I have a point, are there any suggestions on how to best argue the point to the Supreme Court?

Date sent: Thu, 19 Mar 1998

I have given more thought to your concern about purposeful nonpublication of erroneous/misguided opinions to inhibit further review. My first reaction was that it would be offensive to the justices, whether they would admit it or not, and therefore risky. But upon further reflection (i.e., after talking with someone whose opinion I deeply respect who agreed with you), I see your point. You might take a look at Barnett, Making Decisions Disappear: Depublication and Stipulated Reversal in the California Supreme Court (1993) 26 Loyola L.A. Law Rev. 1033. I came across it in the dissenting opinion in Morrow v. Hood Communications, Inc. (1997) 59 Cal.App.4th 924, regarding whether the courts of appeal must grant a motion for stipulated reversal, another interesting and hot issue. I have not read the law review article, but the title sounds like it may touch upon the court's duty or absence of duty to publish opinions.

By the way, my friend also mentioned that until the 1960's, all Court of Appeal opinions were published.

Chief Justice Ron George defended nonpublication to the reporter [in the LA Daily Journal] as "A necessary evil to chill the developmen of the law. It would be folley for us to attempt to reconcile all of these insignificant cases... you'd have a hard time separating the wheat from the chaff." . . . I find his statements to be an outrage.

Date sent: Mon, 23 Mar 1998

Yes, I am aware of Prof. Steven Barnett's ongoing interest in this subject. Over the years he's written several law journal articles and made many thoughtful comments on the subject, including the article you mention. I also found a very scholarly article of his in a 1994 Hastings L. J. called "The California Supreme Court's Wonderful Law Making Machine begins to Self-Destruct." (With all due respect to Prof. Barnett -- I'm not so sure that this nifty "Law Making Machine" is self-destructing; I see it gaining strength!)

As long as the California Supreme Court, who is the final arbiter of what is and what is not constitutional under California law remains silent on the subject and declines to address the issue of the constitutionality of California Rules for Publication of Appellate Opinions, -- the secret-mode -- the "nonpublication" way of shaping the law of California will go on and, in fact, gains strength every day as it becomes more and more firmly established. Hardly anybody realizes that the "nonpublication" paractice wasn't always there! It gains strength because it works so efficiently and is so attack proof. As I said in my previous post, the appellate rules provide no means by which an aggrieved litigant can effectively challenge a decision NOT to publish an appellate opinion. So, I have hard time seeing a way of presenting the question of the constitutionality of California's publication law before the California Supreme Court, or any court for that matter. One can't really raise the question in a lower court because the issue does not arise until after an appeal opinion has been rendered and the case reaches Supreme Court level. The publication question is (seemingly) only collateral to the issues in the opinion proper, and generally one cannot raise an issue on review that hasn't been addressed below. Moreover, because of the abstention doctrine, U.S. Supreme Court review of the constitutionality of California's publication law is not likely to happen. We all learned in law school that the U.S. Supreme Court will only review a state's decision if the constitional question has been raised and passed on below. If you can't get the question raised in California, how can the U.S. Supreme Court ever take jurisdiction over the question? -- as I said before, I see a real "Catch-22" in this entire scheme! How would one every get the contitutionality of the publication law EVER reviewed???

As, legal scholars, like Prof. Barnett of Berkeley; Prof. Gerald Uelman of Santa Clara -- "Is the Eraser Mightier Than The Pencil?" 26 Loy. LA L. REV 1007 (1993), Prof. J.Clark Kelso of McGeorge --"A Report on the California Appellate System" 45 Hastings L. J. 433 (1994); and many others complain loudly about the ills of "depublication" (as well they should), the lower appellate courts have caught on, and realized, the criticism about "depublication" can be deflated by simply not certifying their decisions for publication in the first place. After all, not publishing a decision in the first place is a lot easier and less troublesome (and, therefore, more insidious) than questionable "depublication." No need to erase anything if it's written in invisible (or rather disappearing) ink to begin with. If the opinion is never published in the first place who is there to complain, except the aggrieved litigant who has no real right to challenge the "private" errors that an appellate tribunal may make. So, if an appellate judgment is rendered "private" by a decision not to publish, there is no need to be concerned about it any further, no matter how unfairly, or how badly, the appeal opinion is reasoned or how unequally applied, or misapplied, the law is. Yes, there may be the right to ask for publication, but the court's decision on the matter is not reviewable.

I am not aware of a single opinion, not certified for publication by the appellate court, that was ordered published by the Supreme Court, this is, without granting a formal review of the opinion. If it did ever happen, it happens so rarely that it doesn't get any attention.

While I agree that that the nonpublication idea has a rational basis. The appellate courts are greately over burdened. Not every decision should be, or needs to be published. Decisions that do nothing more than restate the existing law do nothing to develop the law and perhaps should be given short shrift. But law by unchecked discretionary nonpublication is definitely increasing. Too many decisions that should be published because they define the law, or illuminate the law, or expand the law, or develop the law go unpublished. Yes, I see that law by "nonpublication" is efficient, but I don't agree that either the Constitution, California or Federal, or public policy, ever intended that we sacrifice America's venerable "open" judicial process policy at the altar of efficiency. Did you know that only about eight percent (8%) of California's appellate opinions get published? This low publication rate far outdistances the publication rate in every other jurisdiction.

Please explain further why you "do not think it is a good idea to raise abuse of judicial discretion and/or constitutional grounds regarding the Court of Appeal's decision not to publish the opinion as a basis for requesting publication, rehearing, or review." While you're probably quite correct in the assessment the "the reality is they are not going to admit that publication or depublication has anything to do with the Supreme Court's review," how is this important issue ever going to be discussed and considered and ruled on, unless it is somehow raised?

Do you feel that the justices will be so turned off by my having raised this sensitive issue "by the back door" so to speak, that they will deny my petition on that ground?

I don't think the justices will deny your petition on that ground, but I do think it is risky because your argument is almost a direct attack on the justices themselves on a decision they made apart from the merits of the case. I would have to read your argument to determine whether your point is well taken, but offhand, I think publication of court opinions is not likely to be construed as an issue of constitutional dimensions. But I've been wrong before.

The above discussion was taken from the California Appellate Law Discussion list and edited.

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