Today's Metropolitan News-Enterprise has the following article about the California Supreme Court's new rule liberalizing the standards for courts of appeal to publish their opinions, to take effect in April 2007.
Perhaps the most important point, which the article does not discuss, is that the Supreme Court's advisory committee in charge of drafting the new rule did not address whether unpublished opinions may be cited. The ban on citing unpublished opinions remains. All that the new rule does is encourage courts of appeal to publish opinions in more circumstances.
California Supreme Court Amends Publication Rule, Encourages Certification of More Opinions
The California Supreme Court yesterday unveiled new rules on publication of Court of Appeal opinions, to take effect next spring.
The new rules are intended to encourage the publication of all opinions that may assist in the reasoned and orderly development of the law and to improve public confidence in the publication process, a courts spokesperson said.
The newly adopted amendments, effective April 1, 2007, will:
—Provide that an opinion should be published if it meets one or more criteria specified in the rule, replacing the current presumption against publication unless an opinion meets specified criteria;
—Specify that the rule applies to every opinion, whether it affirms or reverses a lower court opinion;
—Clarify and expand the criteria the Courts of Appeal should consider when deciding whether to certify an opinion for publication; and
—Identify factors that should not be considered in deciding whether to certify an opinion for publication, such as court workload or embarrassment to attorneys, litigants, judges or others.
The court adopted the amendments based on the final report and recommendations of an advisory committee chaired by Supreme Court Justice Kathryn Mickle Werdegar.
The committee’s final report was the culmination of two years of work, which included reviewing practices in other jurisdictions, analyzing statistical information on the publication rates of the California Courts of Appeal, and surveying the justices of the Courts of Appeal and appellate and other attorneys.
In 2005, the committee solicited public comments on its preliminary report and recommendations, which proposed more limited amendments than those contained in the final report. Based on the public comments received, the committee substantially revised its proposal and sought additional public comment.
The committee’s final report reflects all of the public input received, as well as the committee’s extensive research and analysis. In addition to the amendments adopted by the court, the committee’s final report recommends monitoring the impact of these rule amendments, providing judicial education on the publication rules and practices, and further evaluating other potential changes to the publication rules.
The state Constitution grants the Supreme Court authority to determine which opinions of the Courts of Appeal are published. Only opinions certified for publication may be cited in the state courts.
The court first established standards for publication of appellate opinions in 1964, adopting Rule 976 of the California Rules of Court. The rule has been amended several times since its initial adoption, with the most recent review aimed at analyzing publication practices in order to determine whether they meet the goal of providing adequate and appropriate guidance to the bar and the public.