Supreme Court abolishes automatic depublication rule

For many years, we have operated under the rule that when the California Supreme Court grants a petition for review, the decision by the Court of Appeal can no longer be cited as valid law. A new rule, which took effect on July 1, 2016, changes the rule of automatic depublication. Pursuant to California Rules of Court, rule 8.1150(e)(1)(B), the “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.” The Court of Appeal opinion will be citable while the Supreme Court case is pending.  However, the published opinion will have “no binding or precedential effect, and may be cited for potentially persuasive value only.” (Cal. Rules of Court, rule 8.1150(e).) The Supreme Court still retains the power to order publication or to “order depublication of part of an opinion at any time after granting review.” (Cal. Rules of Court, rule 8.1105(e)(2).) After review by the Supreme Court, the Court of Appeal’s opinion can be cited unless the Supreme Court orders otherwise and “has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”  When citing an opinion that is pending review, the citation should note that review has been granted as well as any subsequent action by the Supreme Court. The Supreme Court intends to revisit this rule in three years to determine the practical effects of the rule and whether to continue it.

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