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Officially mandated disappearing information: The legal depublication phenomenon
Government Information Quarterly 22 (2005) 423 – 439
Officially mandated disappearing information: The legal depublication phenomenon John N. Gathegi 238 Louis Shores Building, College of Information, Florida State University, Tallahassee, FL 32306-2100, USA
Abstract The author discusses the practice of depublication of judicial court opinions that have been certified for publication and examines the effect on the public record, specifically its law-erasing effect. Conclusion is reached that depublication is harmful not only to legal practitioners but also detracts from the public’s access to legal information. Efficiency benefits are outweighed by the disadvantages to the entire judicial system. Recommendations are made that the practice be eliminated or severely curtailed and that depublished opinions be made easily available. D 2005 Elsevier Inc. All rights reserved.
1. Introduction Examine this scenario. A case decided by a trial court has been appealed. The court of appeals dutifully rules on the appeal and writes an opinion. The court of appeals, utilizing some laid-down rules for publication, decides that this opinion is indeed worthy of being published in the official court reporter and orders the reporter of decisions to publish it. Since this is a court of appeals opinion, lower courts within the jurisdiction are bound to follow the decision in other cases with similar facts and issues. They do this for some time, until one day, the Supreme Court in the state directs that everyone should now behave as if the published opinion was never there, and that lawyers in
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particular are prohibited from acknowledging the existence of the opinion and, under pain of sanctions, from relying on that opinion. This, unfortunately, is not a fantasy in legal land. Welcome to the world of depublication, where information is legally mandated to disappear.
2. Why publication American jurisprudence is anchored on the common law, which is a system whereby the law is developed by building on decisions of the courts of appeals, expressed in published opinions. Each opinion represents a building block towards this development of the law.1 Granted, there are other sources of law, including acts of the legislatures and constitutions, but by and large the law as it has grown in England and the United States, as well as most commonwealth countries, has been shaped by the published opinions of the appellate courts. To understand the importance of the opinions as the law’s building blocks, we would need to examine the concept of precedent. The courts of the United States, as in many other countries, are structured in a hierarchical system, where rules and decisions of law formulated in a higher court are binding on lower courts within that court’s jurisdiction. This follows the principle of stare decisis: to abide by decided cases, wherein rules of law formulated in one case will apply in similar cases in the future, thus lending predictability to the law.2 The principle of stare decisis is central to the common law and has been an integral component of the law’s development at least since judicial opinions were first reported.3 Pether has an apt description of judicial opinions. They bare a genre of legal text that records and enacts the resolution of a legal dispute between parties, articulates what the court says are its legal reasons for resolving the dispute in a certain way, and iterates the legal rules that purportedly oblige the court to reach the decision it has chosen to make.Q4 The court to which Pether is referring to here is an appellate court, as decisions in most trial courts are usually not reported.5 Leflar refers to appellate decisions as having a principal function of establishing the law in the common law context,6 a position also shared by Llewellyn who describes the opinion as having a bforward-looking function,Q indicating how future like cases should be decided.7 Publication of court opinions is important for several reasons. Perhaps chief among them is that the public scrutiny afforded by publication reinforces in judges a sense of the public accountability of their work, and thus contributes to transparency in the judicial decisionmaking process,8 as well as contributing to well thought out opinions.9 Published opinions also function bas a check on the court of last resort.Q10 Not all opinions are published. Many state courts have rules that prescribe when a court’s opinion is worthy of publication and when it is not. In the case of California, for example, which first came up with the concept of depublication, all opinions of the Supreme Court are published.11 However, Rule 976(b) of the Court conditions publication of lower court opinions upon contributing to the growth of law by either establishing new
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rules of law, resolving conflicts in the law, addressing issues of continuing public interest, or contributing significantly to the legal literature by reviewing its development.12 Thus, very few of the court of appeal’s opinions are designated for publication following these criteria13 (see Fig. 1).
3. Depublication: the non-precedential imperative Depublication is an order from a state Supreme Court that an opinion that the Court of Appeal has certified for publication not be published, even though it meets the publication criteria. An opinion that has already been published in the Official Reports of the Courts of Appeals is also subject to such an order. California has taken the credit for being the first state in the nation to practice depublication, which it began in 1971.14 Indeed, before Arizona,15 Hawaii,16 and Michigan17 dabbled in the practice, California was long considered the only state in the nation, and the United States probably the only country in the world, to practice depublication.18 Arizona depublishes by virtue of Rule 28(f), Rules of Civil Procedure,19 and the identical Rule 111(g) of the Rules of the Supreme Court.20 Hawaii, on the other hand, practices depublication without the benefit of established criteria.21 Because California continues to be the primary practitioner of depublication, the rest of this paper will focus primarily on that state. The state has depublished an average of eighty-seven cases annually between 1981 and 2003 (see Fig. 2), at certain times depublishing more opinions than it published.22 Depublication in California is authorized by Rule 979 of the California Supreme Court, enacted in 1990,23 and provided for in the California Constitution.24 Following the rule, any person can, by a letter to the Supreme Court, request the depublication of an opinion that has been certified for publication, within thirty days after the decision becomes final from the Court of Appeal. The person need not have been a party to the case. The only requirements are that the person declare his interest in the case, give reasons why the opinion should not be published, and notify
Fig. 1. Source: Judicial Council of California. 2004 Court Statistics Report.
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Fig. 2. Source: Judicial Council of California. 2004 Court Statistics Report.
each party in the litigation of the request for depublication. Objecting persons, including the Court of Appeals, are given ten days to respond. The Supreme Court then makes a decision on whether or not to issue a depublication order. However, the Supreme Court has the power, and frequently exercises that power, to order depublication on its own initiative. Barnett makes the interesting observation that after depublishing cases for decades without a rule, the Supreme Court followed the btradition of secrecyQ in the manner in which it adopted Rule 979. He notes that it was only the day after the rule went into effect that it was made available for public comment or otherwise publicized, and that it was not even submitted to the Judicial Council.25 In fact, the rule came about as a result of an attorney who was unhappy with the effect of depublication on the case on which he was working. Upon a request by his opponent, and without notice to him, the Supreme Court had depublished a case that was favorable to his position. He drafted the rule and submitted it to the court.26 As we shall shortly discuss below, depublication makes an opinion subject to the California Supreme Court no-citation Rule 977(a),27 which prohibits citation or reliance on unpublished opinions. Because depublication makes an opinion unpublished, this means one cannot cite or rely on it, except in very limited and narrow circumstances that have mainly to do with the parties to the litigation. 3.1. Other erasers Depublication is not the only means by which many court opinions do not see the light of day in the form of publication when they would otherwise be eligible for publication. It should be distinguished from selective publication and other forms of nonpublication28 (or to use Pether’s term: unpublication29), all of which result in some decisions ending up in court reporters and citable as authority, while others are doomed to oblivion. These other forms of non-publication include vacatur, stipulated withdraws, and stipulated reversals; these are examined in a companion article elsewhere in this journal.30 The main difference is that, while depublished opinions once were published and enjoyed authority as precedents, most of the opinions in the latter category never made it to publication.31
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4. The shifting rationale for depublication As discussed above, when California first adopted the concept of depublication, it did so without a rule. Because it was not transparent, the process was perceived as being shrouded in secrecy. Thus, concern and criticism from both the bench and the bar eventually forced the Court to begin to explain the rationale for depublication. Chief Justices32 and Associate Justices of the California Supreme Court have at various times tried to explain the rationale for depublication. Justice Joseph R. Grodin of the California Supreme Court, for example, explained that the Supreme Court did not order opinions depublished because they did not meet the publication criteria, rather, it did so bbecause a majority of the justices consider the opinion to be wrong in some significant way, such that it would mislead the bench and bar if it remained as citable precedent,Q33 and that this was preferable to letting an opinion stand for bwhat the law is not.Q34 Depublication was thus justified by the need for buniformityQ in the law,35 a view later criticized as maintaining a fac¸ade of harmony in the law that may erode the public’s confidence in the courts by making changes that have been happening over time appear dramatic and abrupt.36 Depublication has also been defended on the basis of judicial economies and case management.37 Indeed, in his rationalization of the practice, Justice Grodin also offered that depublication was partially explained by the Court being overburdened with cases.38 Depublication could thus be explained in terms of expediency, efficiency, and conservation of judicial resources,39 and even as a matter of necessity in meeting the Court’s expanding workload because, according to the Arizona Supreme Court, for example, b[w]e simply do not have time to follow the full common law process in every case in which we have some serious disagreement with reasoning or language but not with the result.Q40 As Barnett explains, there was for some considerable time consensus on what an order of depublication meant in California: there was something wrong either in the reasoning or result of a lower court’s opinion and thus that decision could not be allowed to remain on the books for fear it would bdisturb the pattern of lawQ and mislead legal practitioners.41 This consensus was shattered, however, when the California Supreme Court established the rules for depublication. The Court included a provision, Rule 979(e), which provided that a depublication order bshall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion.Q42 The effect of this bno opinion of the correctnessQ rule was to sow immense confusion on both what depublication means and what the effect of the rule is. On a literal reading of the rule, the Court is basically saying that bwe do not mean anything when we order an opinion depublished.Q Even some on the bench are skeptical about that meaning of the rule. In his dissent in People v. Sanders, Justice Kennard states: bThis court’s denials of review and orders of depublication in numerous cases . . . cannot simply be dismissed as meaningless.Q43 To muddy the waters even more, the California Supreme Court itself internally backnowledgesQ that depublication does express some indication of the correctness of the opinion to be depublished. In its own Practices and Procedures Manual, it expressed in 1999 the opinion that the author of a memorandum recommending publication bbelieves the
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opinion is potentially misleading and should not be relied on as precedent.Q44 In Arizona, even though generally one is left to speculate on the reasons for an opinion’s depublication,45 in at least one instance, the Arizona Supreme Court explicitly acknowledged that it depublished cases in which it believed the lower court erred.46 Depublication has also been linked to political considerations. Commentators have noted the correlation of a court’s political ideology and the number of depublication orders issued in opinions contrary to that ideology.47 Pether gives the example of People v. Wu,48 an infanticide case in which there was a cultural defense, as an instance in which the court was not too keen on encouraging cultural defenses and thus depublished it, leaving published other California cases that criticized cultural defense.49 Katz gives a good example of this as he narrates the passing by the California legislature of Penal Code §1170, the determinate sentencing law: Different panels of the court of appeal arrived at differing interpretations of the statute, resulting in disparate sentences for similar offenses. The Supreme Court simply depublished one side of the appellate conflict, settling the interpretive questions without elaborating any rationale and without reducing the sentences of those defendants whose cases had been depublished (and, as it turns out, who had received the longer sentences).50
5. Other effects of depublication In addition to berasing the law,Q51 there are other effects of depublication. Orders for publication are given, at least in California, without specifying any reasons, a practice that has been criticized as bmaking law without deciding the caseQ52 or giving reasons.53 Barnett calls depublication a bdenial of a reasoned decision,Q as well as discrediting the decision of the court of appeals.54 Depublication also denies equal treatment to similarly situated litigants: Depublication, unlike any other legal procedure that comes to mind, has the purpose and effect—at least in the cases where the Supreme Court disagrees with the court of appeal’s result, not just with its opinion—of promoting unequal treatment between litigants whose cases are alike. The losing party in the depublished case still loses. But because the Supreme Court’s order removes that case as a precedent—and because the order may further be perceived, subject to Rule 979(e), as indicating the Supreme Court’s disapproval of the opinion or result—the next litigant in a like situation is more likely to win. When the Supreme Court depublishes an opinion because it disagrees with the result, the unequal treatment of the litigants in the next case is precisely the court’s objective. When the court disagrees only with something about the opinion, the same unequal treatment may in fact follow, because lower courts cannot know the reason for the Supreme Court’s displeasure and may think it encompasses the result. Either way, the depublication order thwarts the normal adherence to precedent.55
Katz describes this practice as, bpocket review,Q similar to the US President’s veto power, because by denying publishable appellate opinions the opportunity to be published, it effectively overturns the appellate court ruling by making sure they cannot be cited as authority.56 This causes confusion among legal practitioners and implants discontent in the system of justice.57 Perceptions of corruption, for example, have been associated with the practice of depublication.58 Barnett’s Rule 979(e) paradox illustrates the confusion and dilemma that depublication generates. On the one hand, lawyers are paid to anticipate court’s decisions; on the other hand, the Supreme Court’ depublication order might be an indicator of how the Court would
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treat a similar decision in the future. Rule 979(e), however, prohibits such inference, essentially instructing lawyers not do their job of anticipating the Court’s decisions.59 Moreover, because the Court can depublish an opinion at any time, citation of recent court of appeals’ opinions is laden with uncertainty.60 This uncertainty spills over to the lower bench and contributes to a demoralization of court of appeals’ judges.61 An Arizona chief judge of the Court of Appeals noted that one attraction for good judges to the bench is the opportunity to contribute to the evolution and refining of the common law that the act of publication provides, and that depublication marginalizes this function.62 The judge opined that depublication without reasons bbelittlesQ the Court of Appeals’ work and that it would be preferable to have a case vacated or reversed with a published opinion.63 Some judges would consider depublication also as punishment of the dissidents. Dean Uelmen, in his study of depublication, agrees and expressly describes depublication as ba device to suppress dissenting views.Q64 He adds: While one criteria calling for publication of a court of appeal opinion is that it dcriticizes with reasons given, an existing rule,T the Supreme Court frequently depublishes such opinions, leaving no citable trace of disenchantment in the court of appeal. Even when an issue is closely divided, a narrow majority of the Supreme Court can create a false aura of harmony by eliminating all opinions that resolve the issue in a manner that is not to their liking.65
Uelmen concludes that there is a causal relationship between the selective use of depublication against divisions of the Court of Appeals with an established philosophy at odds with the Supreme Court’s philosophy and the declining rate of publications.66 In other words, Court of Appeal judges are reluctant to certify for publication opinions that they fear will be depublished by the Supreme Court. Depublication has also been criticized as bimpeding dialogue with the legislative branchQ as well as marginalizing the legislative function.67 This is because the legislature may not have the time to consider urgent the need to modify unprecedential law contained in unpublished opinions,68 even though depublication may thwart legislative intent; the results of that thwarting will be covered up by a depublication order.69 By the same token, depublication may insulate the United States Supreme Court from reviewing depublished state level opinions that interpret significant federal constitutional issues.70 Because depublication effectively wipes out an opinion’s potential as precedent, some parties would want to utilize it for precisely that reason. The process thus breeds bexperts at engineering the depublication of an opinionQ71 in an attempt to influence the Supreme Court’s development of the law.72 As we mentioned above, anyone can apply for a depublication order. This creates depublication lobbies, which can be quite successful at applying for such orders. An example of this is the binsurance industry’s successful campaign in California to depublish opinions that have rules contrary to its interests.Q73 The Supreme Court is not required to publish a list of such lobbyists,74 who tend to be repeat litigants. Critics have noted that this ability to engineer depublication disadvantages bone shotterQ litigants (e.g., individual litigants) while advantaging repeat litigants (e.g., corporate insurance litigants).75 The problem is amplified when we recall that depublication orders are entered without a hearing, and usually without the Court expressing any reason for doing so.76 Even though applicants are required to give notice to interested parties, this usually only means the parties
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to the case and does not include future litigants and other special interest groups who would be affected in future similar cases.
6. On the twin existence of published depublished information Depublication creates a rather interesting world: a world where depublished information remains in a state of publication in some sources, though that state cannot be officially acknowledged, indeed, is prohibited from being acknowledged. By the time the opinion is ordered depublished, for example, it has already appeared in the Advanced Reports and the Lexis and Westlaw databases.77 Also, the pages in the official reporter that the depublished opinion would have occupied are deleted, but no other case is assigned those same page numbers. Thus, this bspaceQ is perpetually reserved for that opinion. This makes it easy to track down the depublished opinion. Furthermore, unlike lawyers, the Supreme Court itself is under no obligation not to cite to depublished opinions and, in fact, effectively bresurrectQ them. In fact, Barnett has noted that sometimes the California Supreme Court has vindicated depublished bopinions it had depublished over opposing ones it had left standing.Q78 Additionally, as one example demonstrates, a depublished case may bdisappearQ in California only to reappear in another state where it may be followed as a precedent.79 It would then, as happened in the case of a depublished California opinion that was later cited and followed by a court in New Jersey, create somewhat of a problem in the unlikely event a California attorney cited the New Jersey opinion which contained the California decision.80 Finally, despite the depublication of an opinion, the lower courts are still free to follow the reasoning of the depublished opinion, as long as they do not rely or cite to it. Rule 979(e) effectively gives the lower court a license to make the same bmistakeQ more than once. Thus, lawyers cannot ignore the existence of this information, even though it is harder to locate.81
7. Conclusion Depublication represents a very strong attraction for a Supreme Court as it attempts to deal with expanding caseloads. It can make vanish a court of appeal opinion that it feels is defective without taking the time to examine the defect, which would require a hearing and a majority opinion.82 However, as we have seen above, it would appear that any benefits in efficiencies are outweighed by the disadvantages to the entire judicial system.83 Any efficiency gained comes at a cost of endangering judicial accountability, retarding judicial reasoning, and eroding public reverence for the justice system, and leaving stakeholders guessing about the law.84 In any case, the efficiency argument has been diluted by Arizona, which continues to depublish relatively few opinions, and California itself, which has decreased depublication even as it has increased publication.85
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Depublication is harmful not only to non-benefiting legal practitioners, both bench and bar, it is also harmful to the public’s access to legal information. It does more than impede access to public legal information, it effectively removes that information from the public discourse and tampers with the public record.86 It has as well, as Judge Kleinschmidt put it so well, ban element of affront in it,Q not just to the justices who authored the opinion, but also to the parties to the litigation, as well as its bmarginalization of the law-giving function of the court of appeals.Q87 Barnett is more blunt and calls the act of depublication an insult and a depreciation of the work of appellate judges.88 In People v. Saunders, the California Supreme Court bclarifiedQ the meaning of 979(e) and reiterated that it meant what it said: nothing should be read in the depublication order as to the Court’s view of the correctness or lack thereof of the depublished opinion.89 Rule 979(e) purports to play down the significance of the court’s depublication order by specifically directing that it should not be taken as an indication of the court’s view of the correctness of the result by the lower court. Barnett states one view of looking at this would be that it is ba brazen denial of what everyone knowsQ and ban act of disingenuousness.Q90 Thus, despite rules like 979(e), the Court in issuing a depublication order expresses an express desire that the opinion not stand as precedent because, at the time, there is bsomethingQ wrong with it, but asserts in Rule 979(e) that it is not doing so.91 Division Five court of the California Appellate District, in People v. Dee,92 one of the courts refusing to take Rule 979(e) literally stated: bto insist that those depublication orders are without significance would be to perpetuate a myth.Q93 Barnett is even more blunt: A Rule of Court that told lawyers they could not, in their own minds, ddeemT a depublication order an expression of opinion by the Supreme Court—though the order might in fact express such an opinion—would be not only an effort at thought control, but a command that lawyers not do their job.94
Given the discussion above, and based on the criticism leveled at depublication by scholars, we come to several conclusions about the practice, in order of preference: (1) eliminate the practice of depublication; (2) limit number of depublished opinions; (3) selectively decertify boffendingQ portions of an opinion; (4) eliminate or limit the no-citation rule; (5) limit time frame for entry of depublication orders; and (6) make depublished opinions easily available. 7.1. Eliminate the practice of depublication The concept of depublication is bewildering to those who come to learn about it for the first time. It seems intuitively wrong, whether or not it is. It has long been a source of troublesome criticism within legal circles, but seldom within the public at large mainly because most have never heard about it. Some of the criticism has actually gone to the legality of the practice. Judge Richard Arnold in Anastasoff, for example, labeled the practice of depublication unconstitutional, claiming that it exceeded the judicial power. We will not go into the constitutional arguments here.95 Rather, we look at depublication from the eyes of the public, who are the majority of litigants affected. As we saw above, when an opinion is
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ordered depublished, the result in the case is not changed; it only means that result cannot be relied upon as authority in future litigation. Herein lies the problem. As Katz noted: The use of depublication to effect doctrinal review while remaining indifferent to disposition raises significant questions about the political legitimacy of depublication. A party believing itself aggrieved by a ruling in the court of appeal will not see vindication in a depublication order. Rather, the party will see injustice compounded: The Supreme Court has signaled that the court of appeals was in error, but the disposition that flows from that error is left undisturbed.96
Because the courts that have adopted depublication have arguably realized some benefits in efficiency, it is unlikely that a recommendation to eliminate depublication would be eagerly adopted by those courts. We would therefore suggest the second alternative. 7.2. Limit number of depublished opinions This is probably the easiest route for the Supreme Courts to take. California, the largest bdepublisher,Q has actually seen a decline in the number of cases depublished over the last ten years. This trend is welcome and encouraged. A decrease in the number of depublished cases would, although not necessarily true in many cases, signal the availability of that many more published cases, thus enriching the public record and elevating legal dialogue. 7.3. Selectively decertify boffendingQ portions of an opinion Requiring a little more work, but still falling short of outright elimination of depublication, would be to follow Berch’s suggested rule for Arizona: Whenever the Supreme Court determines that a decision is to be depublished, it shall specify (1) which portions of the decision are to be depublished; and (2) the reason or reasons why these portions were depublished. These changes will ensure that Arizona’s lower courts, and practicing attorneys, may properly rely on those portions, if any, of the opinion that have not been depublished.97
Grodin also considered the possibility of the Court giving a Statement of Reasons for depublication, but concluded the process would be so onerous that the case might just well be fully reviewed, especially since the Statement of Reasons itself would still have no precedential value.98 7.4. Eliminate or limit the no-citation rule California Supreme Court Rule 977(a) prohibits citation or reliance on an opinion that has bnot been ordered published.Q Depublication of an opinion makes it bnot ordered for publication,Q and therefore subject to the no-citation rule. There must be good reason for that prohibition. Those affected by the law would like to know that reason.99 If, on the other hand, as Rule 979(e) suggests, as long as they do not cite to the depublished opinions, the lower courts are free to make identical opinions, which can then be bidenticallyQ depublished; this would fly in the face of the efficiency that has been touted as the raison d’eˆtre of depublication.
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One option is to move away from practicing depublication in its bstrong form,Q in which citation is prohibited, to its bweak form,Q in which the no-citation rule is eliminated or limited to providing only persuasive value rather than binding authority.100 There is already an example of this in the Federal Rules of Appellate Procedure, where changes now allow citation to unpublished non-precedential opinions for their persuasive value.101 7.5. Limit time frame for entry of depublication orders Limiting the time frame within which opinions can be published would assist in alleviating some of the uncertainty associated with the finality of appellate court opinions. Arizona already does this by limiting publication orders to opinions that have not yet become final, in cases before the appellate court on review.102 On the other hand, even though California’s rule requires applicants to request depublication within thirty days after the decision becomes final from the Court of Appeal, the California Supreme Court preserves the power to enter a depublication order at any time, including long after the decision in the case has become final.103 In re Grant,104 for example, was decided by the California Fourth District Court of Appeal on February 26, 1988, and was depublished by order of the California Supreme Court on May 18, 1989. 7.6. Make depublished opinions easily available Information technology is considerably ameliorating depublication by making depublished opinions more readily available to those with the technology and access to database services. LEXIS and Westlaw both publish depublished and unpublished opinions,105 creating the twin existence of published depublished information we referred to above. This availability is important for several reasons. Recall that lower courts may still use the reasoning of depublished opinions in other cases, as long as they do not cite or rely on those opinions. Lawyers may, by the same token, do the same and indeed arguably have a duty to seek out depublished opinions in fashioning their arguments. Depublication in this context means legally unavailable but physically available. If this availability is combined with one or more of the above options then the force of depublication is considerably lessened. Barnett has noted the increasing tendency, for example, of ignoring the non-citation rule for depublished opinions among both the California appellate and Supreme Courts.106 Perhaps everyone should follow the California Supreme Court’s lead by giving enough information about a case to be able to find it without actually giving the official citation with the volume number, reporter, and page number. Then, sooner or later, one would hope the charade would be dropped. The crux of the problem is that even though the Court has made the opinions bvanishQ by order of depublication, those opinions are very much in existence. Fortunately, the rate of opinion depublications seems to be on the decline.107 In 2002–2003, for example, the number of opinions ordered depublished by the California Supreme Court was the lowest in over twenty years (see Fig. 2, above). Before depublication was publicly documented, Justice Gordon felt he needed to explain it out of concern that the practice would be viewed by the public as inherently bad, as
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advancing some bsecret agendaQ of the Court, attempting to re-write history, and censoring expression of views.108 It appears these concerns may still be relevant today, despite rules like 979(e) in California. This is of particular concern as the practice seems to be bsilently bleedingQ beyond places like California and Arizona to other jurisdictions where it has previously not been officially practiced.109
Notes and References 1. Berch, M. A. (2000). Analysis of arizona’s depublication rule and practice. Arizona State Law Journal, 32(1), 175–202 (p. 175). 2. Gathegi, J. N. (2005). Democracy through access to legal information for newly democratizing nations: The Kenyan perspective and lessons from the American experience. Government Information Quarterly, 22(1), 108–121. 3. Pether, P. (2003). Censorship, repression or denial?: Unpacking the symptom of People v. Wu. Cardozo Law Review, 24(6), 2451–2466 (p. 2455). 4. Ibid., p. 2455. 5. The federal district courts are one obvious exception, where trial court opinions are reported. Certain states also have appellate divisions within their trial courts, and sometimes decisions of these courts are reported. California is one example where trial courts (the superior courts) sometimes have appellate divisions. 6. Leflar, R. A. (1971). Sources of judge-made law. Oklahoma Law Review, 24(3), 319–336 (p. 319). 7. Llewellyn, K. N. (1960). The common law tradition: Deciding appeals (p. 26). Boston7 Little, Brown and Company. 8. Kennedy, D. (1986). Freedom and constraint in adjudication: A critical phenomenology. Journal of Legal Education, 36(4), 518–562 (p. 518). 9. Wilson, S. (1930). Speech at Constitutional Convention of the State of California (January 8, 1879) in Radin, Max. The Requirement of Written Opinions, 18 California Law Review 486, 489. 10. Berch, note 1 above (p. 187). 11. California Court Rules 976(a). 12. California Court Rules 976: (b) [Standards for publication of opinions of other courts] No opinion of a Court of Appeal or an appellate department of the superior court may be published in the Official Reports unless the opinion (1) establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule; (2) resolves or creates an apparent conflict in the law; (3) involves a legal issue of continuing public interest; or (4) makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law. 13. Pether, P. (2004). Inequitable injunctions: The scandal of private judging in the U.S. courts. Stanford Law Review, 56(6), 1435–1505 (pp. 1469–1470).
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14. Barnett, S. R. (1994, March). Depublication deflating: The California Supreme Court’s wonderful law-making machine begins to self-destruct. Hastings Law Journal, 45, 519–568 (p. 520). California has depublished more cases than all of Arizona, Hawaii, and Michigan combined. Between 1987 and 1996, for example, California depublished an annual average of 117 opinions of the court of appeals. See Berch, note 1 above (p. 199). 15. Arizona adopted depublication rules in 1989 (a year before California). The state depublished 63 opinions between 1990 and 1999. See Berch, note 1 above (p. 187). 16. Since 1984, the Hawaii Supreme Court has the power to change opinions of the Intermediate Court of Appeals into bmemoranda opinions,Q which are not citable as per Hawaii Rules of Appellate Procedure. See Hawaii Rules of the Intermediate Court of Appeals 2(a) and 2(b). 17. Michigan gave up depublication in 1977, after trying it for three years. See Berch, note 1 above (p. 182). See also Barnett, S. R. (1999, January 13). Publish address: Court of Appeal rulings should only be nullified by reasoned, written opinion. Los Angeles Daily Journal, 6. 18. See Kelso, J. C. (1994, March). A report on the California Appellate System. Hastings Law Journal, 45, 433–517 (pp. 492–496), describing the practice as buniqueQ to California. See also, Barnett, S. R. (1993, June). Making decisions disappear: Depublication and stipulated reversal in the California Supreme Court, Loyola Los Angeles Law Review, 26, 1033–1084 (pp. 1034–57), noting that there was at the time no other court in the country or elsewhere that practices depublication. 19. Arizona Supreme Court Rule 28(f) Depublication. Notwithstanding the provisions of Rule 28(b) above, an opinion which has been certified for publication by the Appeals Court shall not be published, on an order to that effect by the Supreme Court entered in a case which is before the Supreme Court on a petition for review, cross-petition for review, or petition for special action and which is entered before such opinion becomes final. AZ ST CIV A P Rule 28. 20. Arizona Supreme Court Rule 111 (g) Depublication. Notwithstanding the provisions of Rule 111(b) above, an opinion which has been certified for publication by the Appeals Court shall not be published, on an order to that effect by the Supreme Court entered in a case which is before the Supreme Court on a petition for review, cross-petition for review, or petition for special action and which is entered before such opinion becomes final. AZ ST S CT Rule 111. 21. Berch, note 1 above (p. 184). 22. Berch, note 1 above (p. 175). See also Barnett, note 14 above (p. 520). 23. California Supreme Court Rule 979 Requesting depublication of published opinions. 24. California Constitution, article VI, §14: The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person. Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.
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25. Barnett, see note 18 above. See also note 62. 26. Barnett, note 14 above (pp. 527, 534). 27. California Court Rule 977(a): [Unpublished opinions] An opinion of a Court of Appeal or an appellate department of the superior court that is not certified for publication or ordered published shall not be cited or relied on by a court or a party in any other action or proceeding except as provided in subdivision (b). 28. Selective publication and other forms of non-publication, including vacatur, stipulated withdrawal and reversal, are discussed at length in a companion article: Silenced information: Selective publication of court opinions and the impoverishment of legal precedents (author’s manuscript in progress). 29. Pether, note 13 above (p. 1435). 30. Gathegi, J. N. (author’s manuscript in progress). Silenced information: Selective publication of court opinions and the impoverishment of legal precedents. In selective publication, the court merely decides which opinion merits publication and which does not. Another way in which an opinion does not see the light of day in publication includes a stipulated withdrawal or vacatur, which involves a losing party offering a winning party a sum of money in exchange for agreeing to have the judgment vacated by a court. Stipulated reversal, another peculiar California practice, is similar to vacatur, but goes one step further by requiring the agreement to hinge on overturning the result of the case, that is, in the revised opinion, the loser becomes the winner and the winner becomes the loser and the case is then dismissed. 31. Barnett, note 14 above (pp. 519, 549). 32. For example, Former Chief Justices Donald Wright, and Rose Bird both noted the doctrinal and error-correcting function of depublication. See Biggs, J. H. (1977). Decertification of appellate opinions: The need for articulated judicial reasoning and certain precedent in California law. Southern California Law Review, 50(6), 1181–1206 (p. 1185). See also Barnett, note 14 above (p. 523) and note 17. 33. Grodin (1984, July). The depublication practice of the California Supreme Court. California Law Review, 72, 514–528 (pp. 514–515). 34. Grodin, note 33 above (pp. 521–522). 35. Berch, see note 1 above (p. 195). 36. Uelmen, G. F. (1993, June). Publication and depublication of California Court of Appeal opinions: Is the eraser mightier than the pencil? Loyola Los Angeles Law Review, 26, 1007–1032 (p. 1020). 37. Berch, see note 1 above (p. 194). 38. Grodin, note 33 above (p. 516). 39. Berch, see note 1 above (p. 181). 40. Berch, see note 15 above, quoting Letter from Stanley G. Feldman, Chief Justice, Arizona Supreme Court, to Noel A. Fidel, Chief Judge, Division One, Arizona Court of Appeals 1 (December 21, 1992). 41. Barnett, note 14 above (p. 523). 42. California Supreme Court Rule 979(e) [Effect of Supreme Court order for depublication] An order of the Supreme Court directing depublication of an opinion in the Official
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43. 44. 45. 46.
47.
48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.
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Reports shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion. 5 Cal 4th 580, 608 (1993). California Supreme Court, Internal Operating Practices and Procedures of the California Supreme Court, at IV (C) (Revised, March 17, 1999). Berch, note 1 above (pp. 177–178). The Arizona Supreme Court depublished State v. Flores, for example, bbecause this Court believes the Court of Appeals misconstrued the holding in Harmelin v. Michigan.Q State v. Flores, 110 Ariz. Adv. Rep. 116 (decided Aug 27, 1991, depublished March 17, 1992. See Dubois, P. L. (1988). The negative side of judicial decision making: Depublication as a tool of judicial power and administration on State Courts of Last Resort. Villanova Law Review, 33(3–4), 469–514 (p. 469). See also Uelmen, G. F. et al. (1988). Supreme Court retention election in California. Santa Clara Law Review, 28(2), 333–355 (p. 335). 286 California Reporter 868, decided 1991 and depublished 1992. Pether, note 3 above (p. 2451). Katz, S. B. (2001, March). Without precedent. Los Angeles Lawyer, 24, 43–47 (p. 44). See Barnett, note 18 above (p. 1033). Berch, note 1 above (p. 185). Barnett, note 18 above (p. 1045). Barnett, note 18 above (p. 1042). Barnett, note 18 above (p. 1044). Katz, S. B. (2001, Spring). California’s curious practice of bPocket ReviewQ. Journal of Appellate Practice and Process, 3, 385–396 (p. 385). Berch, note 1 above (p. 178). Pether, note 13 above (p. 1488). Barnett, note 18 above (pp. 1045, 1082). The Court has waited 15 months to order an opinion depublished. Uelmen, note 36 above (p. 1011). Berch, note 1 above (p. 199). Letter from Noel Fidel, Chief Judge, Arizona Court of Appeals, to Stanley G. Feldman, Chief Justice, Arizona Supreme Court 1 (December 1, 1992), 1–2. Letter from Noel Fidel, Chief Judge, Arizona Court of Appeals, to Stanley G. Feldman, Chief Justice, Arizona Supreme Court 1 (December 1, 1992), 1–2. Uelmen, note 36 above (pp. 1007, 1019). Uelmen, note 36 above (pp. 1007, 1020). Ibid. Berch, note 1 above (p.197) Ibid. Gerstein, R. S. (1984). bLaw By EliminationQ: Depublication in the California Supreme Court. Judicature, 67(6), 293–298 (p. 298). Berch, note 1 above (p.197).
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71. Baker, P. M. (1990). Depublication: The new starchamber, Western State University Law Review, 18(1), 313–329 (pp. 323, 326). 72. Pether, note 13 above (p. 1489). 73. Berch, note 1 above (p.197) 74. Pether, note 13 above (p. 1490). 75. See, e.g., Galanter, M. (1974). Why the bhavesQ come out ahead: Speculations on the limits of legal change. Law and Society Review, 9(1), 95–160 (p. 95); and Fiss, O. (1984, May). Against settlement. Yale Law Journal, 93, 1073–1090 (p. 1073). See also, Carpenter, C. E. (1998, Fall). The no-citation rules for unpublished opinions: Do the ends of expediency for overloaded appellate courts justify the means of secrecy? South Carolina Law Review, 50, 235–260 (pp. 252–253). 76. Berch, note 1 above (p. 177). 77. Berch, note 1 above (p. 182). 78. Barnett, note 14 above (p. 567). 79. See Viviano v. CBS, Inc. 597 A.2d 543, 549–50 (1991) and Hirsch v. General Motors Corp., 628 A.2d 1108, 1115, 1121, two New Jersey cases that both cite County of Solano v. Delancy, 215 Cal.App. 3d. 1232 (1989), depublished by the California Supreme Court in 1990. 80. It would be unlikely that a California court would be looking into New Jersey jurisprudence; but if New Jersey can do it, so can California. 81. Berch at 200. 82. Barnett, note 18 above (pp. 1033, 1036). 83. Berch, note 1 above (p. 201). 84. Pether, note 13 above (p. 1485). 85. This is a trend different from when California depublished more cases than it published. 86. Barnett, note 18 above (p. 1081). 87. Berch, note 1 above (p. 187–188), quoting Arizona Court of Appeals Judge Kleinschmidt. 88. Barnett, note 18 above (p. 1079). 89. People v. Saunders, 5 Cal.4th 580, 20 California Reporter. 2d 638 (1993). 90. Barnett, note 18 above (p. 1049). 91. Barnett, note 18 above (p. 1045, 1082). 92. 222 California Appellate 3d 760, 765 (1990). This opinion was later disapproved in People v. Saunders, 5 Cal.4th 580, 20 California Reporter 2d 638 (1993). 93. Barnett, note 14 above (pp. 543–544). 94. Ibid. 95. See Barnett’s discussion on the bcase or controversyQ point, note 18 above (pp. 1037–1042). 96. Katz, note 50 above (pp. 43, 44). 97. Berch, note 1 above (pp. 200–201). 98. Grodin, note 33 above (p. 524). 99. Barnett has suggested that challenge to depublication could be brought on the basis that the Supreme Court lacks constitutional power to order depublication. Such a suit could
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also be brought as an action against the justices. In either case, the justices would probably have to recuse themselves from hearing the case, and a panel of court of appeal judges would have to be appointed. Barnett, note 18 above, (p. 1057). This in itself would be interesting, as the court of appeal judges would not be entirely unbiased, since the depublication orders affect them directly. 100. See Katz, note 50 (p. 44), for a discussion of the notion of depublication in its weak and strong forms. 101. Pether, note 13 above (pp. 1435, 1469–1470). 102. See Arizona Rules of Civil Appellate Procedure Rule 28(e); Arizona Rules of the Supreme Court Rule 111(g). 103. California Supreme Court Rule 979 Requesting depublication of published opinions. 104. 198 California Appellate 3d 1458, 244 California Reporter 552 (1988), depublished 259 California Reporter 64 (1989). 105. Depublished opinions should be distinguished from unpublished opinions, which are discussed in this author’s companion article, Silenced Information: Selective Publication of Court Opinions and the Impoverishment of Legal Precedents (in progress). 106. Barnett, note 14 above (pp. 548–565). 107. Pether, note 13 above (pp. 1469–1470). 108. Grodin, note 33 above (p. 515). 109. Pether, note 13 above (p. 1530).
Officially mandated disappearing information: The legal depublication phenomenon John N. Gathegi 238 Louis Shores Building, College of Information, Florida State University, Tallahassee, FL 32306-2100, USA
Abstract The author discusses the practice of depublication of judicial court opinions that have been certified for publication and examines the effect on the public record, specifically its law-erasing effect. Conclusion is reached that depublication is harmful not only to legal practitioners but also detracts from the public’s access to legal information. Efficiency benefits are outweighed by the disadvantages to the entire judicial system. Recommendations are made that the practice be eliminated or severely curtailed and that depublished opinions be made easily available. D 2005 Elsevier Inc. All rights reserved.
1. Introduction Examine this scenario. A case decided by a trial court has been appealed. The court of appeals dutifully rules on the appeal and writes an opinion. The court of appeals, utilizing some laid-down rules for publication, decides that this opinion is indeed worthy of being published in the official court reporter and orders the reporter of decisions to publish it. Since this is a court of appeals opinion, lower courts within the jurisdiction are bound to follow the decision in other cases with similar facts and issues. They do this for some time, until one day, the Supreme Court in the state directs that everyone should now behave as if the published opinion was never there, and that lawyers in
E-mail address: [email protected]. 0740-624X/$ - see front matter D 2005 Elsevier Inc. All rights reserved. doi:10.1016/j.giq.2005.06.002
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particular are prohibited from acknowledging the existence of the opinion and, under pain of sanctions, from relying on that opinion. This, unfortunately, is not a fantasy in legal land. Welcome to the world of depublication, where information is legally mandated to disappear.
2. Why publication American jurisprudence is anchored on the common law, which is a system whereby the law is developed by building on decisions of the courts of appeals, expressed in published opinions. Each opinion represents a building block towards this development of the law.1 Granted, there are other sources of law, including acts of the legislatures and constitutions, but by and large the law as it has grown in England and the United States, as well as most commonwealth countries, has been shaped by the published opinions of the appellate courts. To understand the importance of the opinions as the law’s building blocks, we would need to examine the concept of precedent. The courts of the United States, as in many other countries, are structured in a hierarchical system, where rules and decisions of law formulated in a higher court are binding on lower courts within that court’s jurisdiction. This follows the principle of stare decisis: to abide by decided cases, wherein rules of law formulated in one case will apply in similar cases in the future, thus lending predictability to the law.2 The principle of stare decisis is central to the common law and has been an integral component of the law’s development at least since judicial opinions were first reported.3 Pether has an apt description of judicial opinions. They bare a genre of legal text that records and enacts the resolution of a legal dispute between parties, articulates what the court says are its legal reasons for resolving the dispute in a certain way, and iterates the legal rules that purportedly oblige the court to reach the decision it has chosen to make.Q4 The court to which Pether is referring to here is an appellate court, as decisions in most trial courts are usually not reported.5 Leflar refers to appellate decisions as having a principal function of establishing the law in the common law context,6 a position also shared by Llewellyn who describes the opinion as having a bforward-looking function,Q indicating how future like cases should be decided.7 Publication of court opinions is important for several reasons. Perhaps chief among them is that the public scrutiny afforded by publication reinforces in judges a sense of the public accountability of their work, and thus contributes to transparency in the judicial decisionmaking process,8 as well as contributing to well thought out opinions.9 Published opinions also function bas a check on the court of last resort.Q10 Not all opinions are published. Many state courts have rules that prescribe when a court’s opinion is worthy of publication and when it is not. In the case of California, for example, which first came up with the concept of depublication, all opinions of the Supreme Court are published.11 However, Rule 976(b) of the Court conditions publication of lower court opinions upon contributing to the growth of law by either establishing new
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rules of law, resolving conflicts in the law, addressing issues of continuing public interest, or contributing significantly to the legal literature by reviewing its development.12 Thus, very few of the court of appeal’s opinions are designated for publication following these criteria13 (see Fig. 1).
3. Depublication: the non-precedential imperative Depublication is an order from a state Supreme Court that an opinion that the Court of Appeal has certified for publication not be published, even though it meets the publication criteria. An opinion that has already been published in the Official Reports of the Courts of Appeals is also subject to such an order. California has taken the credit for being the first state in the nation to practice depublication, which it began in 1971.14 Indeed, before Arizona,15 Hawaii,16 and Michigan17 dabbled in the practice, California was long considered the only state in the nation, and the United States probably the only country in the world, to practice depublication.18 Arizona depublishes by virtue of Rule 28(f), Rules of Civil Procedure,19 and the identical Rule 111(g) of the Rules of the Supreme Court.20 Hawaii, on the other hand, practices depublication without the benefit of established criteria.21 Because California continues to be the primary practitioner of depublication, the rest of this paper will focus primarily on that state. The state has depublished an average of eighty-seven cases annually between 1981 and 2003 (see Fig. 2), at certain times depublishing more opinions than it published.22 Depublication in California is authorized by Rule 979 of the California Supreme Court, enacted in 1990,23 and provided for in the California Constitution.24 Following the rule, any person can, by a letter to the Supreme Court, request the depublication of an opinion that has been certified for publication, within thirty days after the decision becomes final from the Court of Appeal. The person need not have been a party to the case. The only requirements are that the person declare his interest in the case, give reasons why the opinion should not be published, and notify
Fig. 1. Source: Judicial Council of California. 2004 Court Statistics Report.
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Fig. 2. Source: Judicial Council of California. 2004 Court Statistics Report.
each party in the litigation of the request for depublication. Objecting persons, including the Court of Appeals, are given ten days to respond. The Supreme Court then makes a decision on whether or not to issue a depublication order. However, the Supreme Court has the power, and frequently exercises that power, to order depublication on its own initiative. Barnett makes the interesting observation that after depublishing cases for decades without a rule, the Supreme Court followed the btradition of secrecyQ in the manner in which it adopted Rule 979. He notes that it was only the day after the rule went into effect that it was made available for public comment or otherwise publicized, and that it was not even submitted to the Judicial Council.25 In fact, the rule came about as a result of an attorney who was unhappy with the effect of depublication on the case on which he was working. Upon a request by his opponent, and without notice to him, the Supreme Court had depublished a case that was favorable to his position. He drafted the rule and submitted it to the court.26 As we shall shortly discuss below, depublication makes an opinion subject to the California Supreme Court no-citation Rule 977(a),27 which prohibits citation or reliance on unpublished opinions. Because depublication makes an opinion unpublished, this means one cannot cite or rely on it, except in very limited and narrow circumstances that have mainly to do with the parties to the litigation. 3.1. Other erasers Depublication is not the only means by which many court opinions do not see the light of day in the form of publication when they would otherwise be eligible for publication. It should be distinguished from selective publication and other forms of nonpublication28 (or to use Pether’s term: unpublication29), all of which result in some decisions ending up in court reporters and citable as authority, while others are doomed to oblivion. These other forms of non-publication include vacatur, stipulated withdraws, and stipulated reversals; these are examined in a companion article elsewhere in this journal.30 The main difference is that, while depublished opinions once were published and enjoyed authority as precedents, most of the opinions in the latter category never made it to publication.31
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4. The shifting rationale for depublication As discussed above, when California first adopted the concept of depublication, it did so without a rule. Because it was not transparent, the process was perceived as being shrouded in secrecy. Thus, concern and criticism from both the bench and the bar eventually forced the Court to begin to explain the rationale for depublication. Chief Justices32 and Associate Justices of the California Supreme Court have at various times tried to explain the rationale for depublication. Justice Joseph R. Grodin of the California Supreme Court, for example, explained that the Supreme Court did not order opinions depublished because they did not meet the publication criteria, rather, it did so bbecause a majority of the justices consider the opinion to be wrong in some significant way, such that it would mislead the bench and bar if it remained as citable precedent,Q33 and that this was preferable to letting an opinion stand for bwhat the law is not.Q34 Depublication was thus justified by the need for buniformityQ in the law,35 a view later criticized as maintaining a fac¸ade of harmony in the law that may erode the public’s confidence in the courts by making changes that have been happening over time appear dramatic and abrupt.36 Depublication has also been defended on the basis of judicial economies and case management.37 Indeed, in his rationalization of the practice, Justice Grodin also offered that depublication was partially explained by the Court being overburdened with cases.38 Depublication could thus be explained in terms of expediency, efficiency, and conservation of judicial resources,39 and even as a matter of necessity in meeting the Court’s expanding workload because, according to the Arizona Supreme Court, for example, b[w]e simply do not have time to follow the full common law process in every case in which we have some serious disagreement with reasoning or language but not with the result.Q40 As Barnett explains, there was for some considerable time consensus on what an order of depublication meant in California: there was something wrong either in the reasoning or result of a lower court’s opinion and thus that decision could not be allowed to remain on the books for fear it would bdisturb the pattern of lawQ and mislead legal practitioners.41 This consensus was shattered, however, when the California Supreme Court established the rules for depublication. The Court included a provision, Rule 979(e), which provided that a depublication order bshall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion.Q42 The effect of this bno opinion of the correctnessQ rule was to sow immense confusion on both what depublication means and what the effect of the rule is. On a literal reading of the rule, the Court is basically saying that bwe do not mean anything when we order an opinion depublished.Q Even some on the bench are skeptical about that meaning of the rule. In his dissent in People v. Sanders, Justice Kennard states: bThis court’s denials of review and orders of depublication in numerous cases . . . cannot simply be dismissed as meaningless.Q43 To muddy the waters even more, the California Supreme Court itself internally backnowledgesQ that depublication does express some indication of the correctness of the opinion to be depublished. In its own Practices and Procedures Manual, it expressed in 1999 the opinion that the author of a memorandum recommending publication bbelieves the
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opinion is potentially misleading and should not be relied on as precedent.Q44 In Arizona, even though generally one is left to speculate on the reasons for an opinion’s depublication,45 in at least one instance, the Arizona Supreme Court explicitly acknowledged that it depublished cases in which it believed the lower court erred.46 Depublication has also been linked to political considerations. Commentators have noted the correlation of a court’s political ideology and the number of depublication orders issued in opinions contrary to that ideology.47 Pether gives the example of People v. Wu,48 an infanticide case in which there was a cultural defense, as an instance in which the court was not too keen on encouraging cultural defenses and thus depublished it, leaving published other California cases that criticized cultural defense.49 Katz gives a good example of this as he narrates the passing by the California legislature of Penal Code §1170, the determinate sentencing law: Different panels of the court of appeal arrived at differing interpretations of the statute, resulting in disparate sentences for similar offenses. The Supreme Court simply depublished one side of the appellate conflict, settling the interpretive questions without elaborating any rationale and without reducing the sentences of those defendants whose cases had been depublished (and, as it turns out, who had received the longer sentences).50
5. Other effects of depublication In addition to berasing the law,Q51 there are other effects of depublication. Orders for publication are given, at least in California, without specifying any reasons, a practice that has been criticized as bmaking law without deciding the caseQ52 or giving reasons.53 Barnett calls depublication a bdenial of a reasoned decision,Q as well as discrediting the decision of the court of appeals.54 Depublication also denies equal treatment to similarly situated litigants: Depublication, unlike any other legal procedure that comes to mind, has the purpose and effect—at least in the cases where the Supreme Court disagrees with the court of appeal’s result, not just with its opinion—of promoting unequal treatment between litigants whose cases are alike. The losing party in the depublished case still loses. But because the Supreme Court’s order removes that case as a precedent—and because the order may further be perceived, subject to Rule 979(e), as indicating the Supreme Court’s disapproval of the opinion or result—the next litigant in a like situation is more likely to win. When the Supreme Court depublishes an opinion because it disagrees with the result, the unequal treatment of the litigants in the next case is precisely the court’s objective. When the court disagrees only with something about the opinion, the same unequal treatment may in fact follow, because lower courts cannot know the reason for the Supreme Court’s displeasure and may think it encompasses the result. Either way, the depublication order thwarts the normal adherence to precedent.55
Katz describes this practice as, bpocket review,Q similar to the US President’s veto power, because by denying publishable appellate opinions the opportunity to be published, it effectively overturns the appellate court ruling by making sure they cannot be cited as authority.56 This causes confusion among legal practitioners and implants discontent in the system of justice.57 Perceptions of corruption, for example, have been associated with the practice of depublication.58 Barnett’s Rule 979(e) paradox illustrates the confusion and dilemma that depublication generates. On the one hand, lawyers are paid to anticipate court’s decisions; on the other hand, the Supreme Court’ depublication order might be an indicator of how the Court would
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treat a similar decision in the future. Rule 979(e), however, prohibits such inference, essentially instructing lawyers not do their job of anticipating the Court’s decisions.59 Moreover, because the Court can depublish an opinion at any time, citation of recent court of appeals’ opinions is laden with uncertainty.60 This uncertainty spills over to the lower bench and contributes to a demoralization of court of appeals’ judges.61 An Arizona chief judge of the Court of Appeals noted that one attraction for good judges to the bench is the opportunity to contribute to the evolution and refining of the common law that the act of publication provides, and that depublication marginalizes this function.62 The judge opined that depublication without reasons bbelittlesQ the Court of Appeals’ work and that it would be preferable to have a case vacated or reversed with a published opinion.63 Some judges would consider depublication also as punishment of the dissidents. Dean Uelmen, in his study of depublication, agrees and expressly describes depublication as ba device to suppress dissenting views.Q64 He adds: While one criteria calling for publication of a court of appeal opinion is that it dcriticizes with reasons given, an existing rule,T the Supreme Court frequently depublishes such opinions, leaving no citable trace of disenchantment in the court of appeal. Even when an issue is closely divided, a narrow majority of the Supreme Court can create a false aura of harmony by eliminating all opinions that resolve the issue in a manner that is not to their liking.65
Uelmen concludes that there is a causal relationship between the selective use of depublication against divisions of the Court of Appeals with an established philosophy at odds with the Supreme Court’s philosophy and the declining rate of publications.66 In other words, Court of Appeal judges are reluctant to certify for publication opinions that they fear will be depublished by the Supreme Court. Depublication has also been criticized as bimpeding dialogue with the legislative branchQ as well as marginalizing the legislative function.67 This is because the legislature may not have the time to consider urgent the need to modify unprecedential law contained in unpublished opinions,68 even though depublication may thwart legislative intent; the results of that thwarting will be covered up by a depublication order.69 By the same token, depublication may insulate the United States Supreme Court from reviewing depublished state level opinions that interpret significant federal constitutional issues.70 Because depublication effectively wipes out an opinion’s potential as precedent, some parties would want to utilize it for precisely that reason. The process thus breeds bexperts at engineering the depublication of an opinionQ71 in an attempt to influence the Supreme Court’s development of the law.72 As we mentioned above, anyone can apply for a depublication order. This creates depublication lobbies, which can be quite successful at applying for such orders. An example of this is the binsurance industry’s successful campaign in California to depublish opinions that have rules contrary to its interests.Q73 The Supreme Court is not required to publish a list of such lobbyists,74 who tend to be repeat litigants. Critics have noted that this ability to engineer depublication disadvantages bone shotterQ litigants (e.g., individual litigants) while advantaging repeat litigants (e.g., corporate insurance litigants).75 The problem is amplified when we recall that depublication orders are entered without a hearing, and usually without the Court expressing any reason for doing so.76 Even though applicants are required to give notice to interested parties, this usually only means the parties
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to the case and does not include future litigants and other special interest groups who would be affected in future similar cases.
6. On the twin existence of published depublished information Depublication creates a rather interesting world: a world where depublished information remains in a state of publication in some sources, though that state cannot be officially acknowledged, indeed, is prohibited from being acknowledged. By the time the opinion is ordered depublished, for example, it has already appeared in the Advanced Reports and the Lexis and Westlaw databases.77 Also, the pages in the official reporter that the depublished opinion would have occupied are deleted, but no other case is assigned those same page numbers. Thus, this bspaceQ is perpetually reserved for that opinion. This makes it easy to track down the depublished opinion. Furthermore, unlike lawyers, the Supreme Court itself is under no obligation not to cite to depublished opinions and, in fact, effectively bresurrectQ them. In fact, Barnett has noted that sometimes the California Supreme Court has vindicated depublished bopinions it had depublished over opposing ones it had left standing.Q78 Additionally, as one example demonstrates, a depublished case may bdisappearQ in California only to reappear in another state where it may be followed as a precedent.79 It would then, as happened in the case of a depublished California opinion that was later cited and followed by a court in New Jersey, create somewhat of a problem in the unlikely event a California attorney cited the New Jersey opinion which contained the California decision.80 Finally, despite the depublication of an opinion, the lower courts are still free to follow the reasoning of the depublished opinion, as long as they do not rely or cite to it. Rule 979(e) effectively gives the lower court a license to make the same bmistakeQ more than once. Thus, lawyers cannot ignore the existence of this information, even though it is harder to locate.81
7. Conclusion Depublication represents a very strong attraction for a Supreme Court as it attempts to deal with expanding caseloads. It can make vanish a court of appeal opinion that it feels is defective without taking the time to examine the defect, which would require a hearing and a majority opinion.82 However, as we have seen above, it would appear that any benefits in efficiencies are outweighed by the disadvantages to the entire judicial system.83 Any efficiency gained comes at a cost of endangering judicial accountability, retarding judicial reasoning, and eroding public reverence for the justice system, and leaving stakeholders guessing about the law.84 In any case, the efficiency argument has been diluted by Arizona, which continues to depublish relatively few opinions, and California itself, which has decreased depublication even as it has increased publication.85
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Depublication is harmful not only to non-benefiting legal practitioners, both bench and bar, it is also harmful to the public’s access to legal information. It does more than impede access to public legal information, it effectively removes that information from the public discourse and tampers with the public record.86 It has as well, as Judge Kleinschmidt put it so well, ban element of affront in it,Q not just to the justices who authored the opinion, but also to the parties to the litigation, as well as its bmarginalization of the law-giving function of the court of appeals.Q87 Barnett is more blunt and calls the act of depublication an insult and a depreciation of the work of appellate judges.88 In People v. Saunders, the California Supreme Court bclarifiedQ the meaning of 979(e) and reiterated that it meant what it said: nothing should be read in the depublication order as to the Court’s view of the correctness or lack thereof of the depublished opinion.89 Rule 979(e) purports to play down the significance of the court’s depublication order by specifically directing that it should not be taken as an indication of the court’s view of the correctness of the result by the lower court. Barnett states one view of looking at this would be that it is ba brazen denial of what everyone knowsQ and ban act of disingenuousness.Q90 Thus, despite rules like 979(e), the Court in issuing a depublication order expresses an express desire that the opinion not stand as precedent because, at the time, there is bsomethingQ wrong with it, but asserts in Rule 979(e) that it is not doing so.91 Division Five court of the California Appellate District, in People v. Dee,92 one of the courts refusing to take Rule 979(e) literally stated: bto insist that those depublication orders are without significance would be to perpetuate a myth.Q93 Barnett is even more blunt: A Rule of Court that told lawyers they could not, in their own minds, ddeemT a depublication order an expression of opinion by the Supreme Court—though the order might in fact express such an opinion—would be not only an effort at thought control, but a command that lawyers not do their job.94
Given the discussion above, and based on the criticism leveled at depublication by scholars, we come to several conclusions about the practice, in order of preference: (1) eliminate the practice of depublication; (2) limit number of depublished opinions; (3) selectively decertify boffendingQ portions of an opinion; (4) eliminate or limit the no-citation rule; (5) limit time frame for entry of depublication orders; and (6) make depublished opinions easily available. 7.1. Eliminate the practice of depublication The concept of depublication is bewildering to those who come to learn about it for the first time. It seems intuitively wrong, whether or not it is. It has long been a source of troublesome criticism within legal circles, but seldom within the public at large mainly because most have never heard about it. Some of the criticism has actually gone to the legality of the practice. Judge Richard Arnold in Anastasoff, for example, labeled the practice of depublication unconstitutional, claiming that it exceeded the judicial power. We will not go into the constitutional arguments here.95 Rather, we look at depublication from the eyes of the public, who are the majority of litigants affected. As we saw above, when an opinion is
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ordered depublished, the result in the case is not changed; it only means that result cannot be relied upon as authority in future litigation. Herein lies the problem. As Katz noted: The use of depublication to effect doctrinal review while remaining indifferent to disposition raises significant questions about the political legitimacy of depublication. A party believing itself aggrieved by a ruling in the court of appeal will not see vindication in a depublication order. Rather, the party will see injustice compounded: The Supreme Court has signaled that the court of appeals was in error, but the disposition that flows from that error is left undisturbed.96
Because the courts that have adopted depublication have arguably realized some benefits in efficiency, it is unlikely that a recommendation to eliminate depublication would be eagerly adopted by those courts. We would therefore suggest the second alternative. 7.2. Limit number of depublished opinions This is probably the easiest route for the Supreme Courts to take. California, the largest bdepublisher,Q has actually seen a decline in the number of cases depublished over the last ten years. This trend is welcome and encouraged. A decrease in the number of depublished cases would, although not necessarily true in many cases, signal the availability of that many more published cases, thus enriching the public record and elevating legal dialogue. 7.3. Selectively decertify boffendingQ portions of an opinion Requiring a little more work, but still falling short of outright elimination of depublication, would be to follow Berch’s suggested rule for Arizona: Whenever the Supreme Court determines that a decision is to be depublished, it shall specify (1) which portions of the decision are to be depublished; and (2) the reason or reasons why these portions were depublished. These changes will ensure that Arizona’s lower courts, and practicing attorneys, may properly rely on those portions, if any, of the opinion that have not been depublished.97
Grodin also considered the possibility of the Court giving a Statement of Reasons for depublication, but concluded the process would be so onerous that the case might just well be fully reviewed, especially since the Statement of Reasons itself would still have no precedential value.98 7.4. Eliminate or limit the no-citation rule California Supreme Court Rule 977(a) prohibits citation or reliance on an opinion that has bnot been ordered published.Q Depublication of an opinion makes it bnot ordered for publication,Q and therefore subject to the no-citation rule. There must be good reason for that prohibition. Those affected by the law would like to know that reason.99 If, on the other hand, as Rule 979(e) suggests, as long as they do not cite to the depublished opinions, the lower courts are free to make identical opinions, which can then be bidenticallyQ depublished; this would fly in the face of the efficiency that has been touted as the raison d’eˆtre of depublication.
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One option is to move away from practicing depublication in its bstrong form,Q in which citation is prohibited, to its bweak form,Q in which the no-citation rule is eliminated or limited to providing only persuasive value rather than binding authority.100 There is already an example of this in the Federal Rules of Appellate Procedure, where changes now allow citation to unpublished non-precedential opinions for their persuasive value.101 7.5. Limit time frame for entry of depublication orders Limiting the time frame within which opinions can be published would assist in alleviating some of the uncertainty associated with the finality of appellate court opinions. Arizona already does this by limiting publication orders to opinions that have not yet become final, in cases before the appellate court on review.102 On the other hand, even though California’s rule requires applicants to request depublication within thirty days after the decision becomes final from the Court of Appeal, the California Supreme Court preserves the power to enter a depublication order at any time, including long after the decision in the case has become final.103 In re Grant,104 for example, was decided by the California Fourth District Court of Appeal on February 26, 1988, and was depublished by order of the California Supreme Court on May 18, 1989. 7.6. Make depublished opinions easily available Information technology is considerably ameliorating depublication by making depublished opinions more readily available to those with the technology and access to database services. LEXIS and Westlaw both publish depublished and unpublished opinions,105 creating the twin existence of published depublished information we referred to above. This availability is important for several reasons. Recall that lower courts may still use the reasoning of depublished opinions in other cases, as long as they do not cite or rely on those opinions. Lawyers may, by the same token, do the same and indeed arguably have a duty to seek out depublished opinions in fashioning their arguments. Depublication in this context means legally unavailable but physically available. If this availability is combined with one or more of the above options then the force of depublication is considerably lessened. Barnett has noted the increasing tendency, for example, of ignoring the non-citation rule for depublished opinions among both the California appellate and Supreme Courts.106 Perhaps everyone should follow the California Supreme Court’s lead by giving enough information about a case to be able to find it without actually giving the official citation with the volume number, reporter, and page number. Then, sooner or later, one would hope the charade would be dropped. The crux of the problem is that even though the Court has made the opinions bvanishQ by order of depublication, those opinions are very much in existence. Fortunately, the rate of opinion depublications seems to be on the decline.107 In 2002–2003, for example, the number of opinions ordered depublished by the California Supreme Court was the lowest in over twenty years (see Fig. 2, above). Before depublication was publicly documented, Justice Gordon felt he needed to explain it out of concern that the practice would be viewed by the public as inherently bad, as
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advancing some bsecret agendaQ of the Court, attempting to re-write history, and censoring expression of views.108 It appears these concerns may still be relevant today, despite rules like 979(e) in California. This is of particular concern as the practice seems to be bsilently bleedingQ beyond places like California and Arizona to other jurisdictions where it has previously not been officially practiced.109
Notes and References 1. Berch, M. A. (2000). Analysis of arizona’s depublication rule and practice. Arizona State Law Journal, 32(1), 175–202 (p. 175). 2. Gathegi, J. N. (2005). Democracy through access to legal information for newly democratizing nations: The Kenyan perspective and lessons from the American experience. Government Information Quarterly, 22(1), 108–121. 3. Pether, P. (2003). Censorship, repression or denial?: Unpacking the symptom of People v. Wu. Cardozo Law Review, 24(6), 2451–2466 (p. 2455). 4. Ibid., p. 2455. 5. The federal district courts are one obvious exception, where trial court opinions are reported. Certain states also have appellate divisions within their trial courts, and sometimes decisions of these courts are reported. California is one example where trial courts (the superior courts) sometimes have appellate divisions. 6. Leflar, R. A. (1971). Sources of judge-made law. Oklahoma Law Review, 24(3), 319–336 (p. 319). 7. Llewellyn, K. N. (1960). The common law tradition: Deciding appeals (p. 26). Boston7 Little, Brown and Company. 8. Kennedy, D. (1986). Freedom and constraint in adjudication: A critical phenomenology. Journal of Legal Education, 36(4), 518–562 (p. 518). 9. Wilson, S. (1930). Speech at Constitutional Convention of the State of California (January 8, 1879) in Radin, Max. The Requirement of Written Opinions, 18 California Law Review 486, 489. 10. Berch, note 1 above (p. 187). 11. California Court Rules 976(a). 12. California Court Rules 976: (b) [Standards for publication of opinions of other courts] No opinion of a Court of Appeal or an appellate department of the superior court may be published in the Official Reports unless the opinion (1) establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule; (2) resolves or creates an apparent conflict in the law; (3) involves a legal issue of continuing public interest; or (4) makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law. 13. Pether, P. (2004). Inequitable injunctions: The scandal of private judging in the U.S. courts. Stanford Law Review, 56(6), 1435–1505 (pp. 1469–1470).
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14. Barnett, S. R. (1994, March). Depublication deflating: The California Supreme Court’s wonderful law-making machine begins to self-destruct. Hastings Law Journal, 45, 519–568 (p. 520). California has depublished more cases than all of Arizona, Hawaii, and Michigan combined. Between 1987 and 1996, for example, California depublished an annual average of 117 opinions of the court of appeals. See Berch, note 1 above (p. 199). 15. Arizona adopted depublication rules in 1989 (a year before California). The state depublished 63 opinions between 1990 and 1999. See Berch, note 1 above (p. 187). 16. Since 1984, the Hawaii Supreme Court has the power to change opinions of the Intermediate Court of Appeals into bmemoranda opinions,Q which are not citable as per Hawaii Rules of Appellate Procedure. See Hawaii Rules of the Intermediate Court of Appeals 2(a) and 2(b). 17. Michigan gave up depublication in 1977, after trying it for three years. See Berch, note 1 above (p. 182). See also Barnett, S. R. (1999, January 13). Publish address: Court of Appeal rulings should only be nullified by reasoned, written opinion. Los Angeles Daily Journal, 6. 18. See Kelso, J. C. (1994, March). A report on the California Appellate System. Hastings Law Journal, 45, 433–517 (pp. 492–496), describing the practice as buniqueQ to California. See also, Barnett, S. R. (1993, June). Making decisions disappear: Depublication and stipulated reversal in the California Supreme Court, Loyola Los Angeles Law Review, 26, 1033–1084 (pp. 1034–57), noting that there was at the time no other court in the country or elsewhere that practices depublication. 19. Arizona Supreme Court Rule 28(f) Depublication. Notwithstanding the provisions of Rule 28(b) above, an opinion which has been certified for publication by the Appeals Court shall not be published, on an order to that effect by the Supreme Court entered in a case which is before the Supreme Court on a petition for review, cross-petition for review, or petition for special action and which is entered before such opinion becomes final. AZ ST CIV A P Rule 28. 20. Arizona Supreme Court Rule 111 (g) Depublication. Notwithstanding the provisions of Rule 111(b) above, an opinion which has been certified for publication by the Appeals Court shall not be published, on an order to that effect by the Supreme Court entered in a case which is before the Supreme Court on a petition for review, cross-petition for review, or petition for special action and which is entered before such opinion becomes final. AZ ST S CT Rule 111. 21. Berch, note 1 above (p. 184). 22. Berch, note 1 above (p. 175). See also Barnett, note 14 above (p. 520). 23. California Supreme Court Rule 979 Requesting depublication of published opinions. 24. California Constitution, article VI, §14: The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person. Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.
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25. Barnett, see note 18 above. See also note 62. 26. Barnett, note 14 above (pp. 527, 534). 27. California Court Rule 977(a): [Unpublished opinions] An opinion of a Court of Appeal or an appellate department of the superior court that is not certified for publication or ordered published shall not be cited or relied on by a court or a party in any other action or proceeding except as provided in subdivision (b). 28. Selective publication and other forms of non-publication, including vacatur, stipulated withdrawal and reversal, are discussed at length in a companion article: Silenced information: Selective publication of court opinions and the impoverishment of legal precedents (author’s manuscript in progress). 29. Pether, note 13 above (p. 1435). 30. Gathegi, J. N. (author’s manuscript in progress). Silenced information: Selective publication of court opinions and the impoverishment of legal precedents. In selective publication, the court merely decides which opinion merits publication and which does not. Another way in which an opinion does not see the light of day in publication includes a stipulated withdrawal or vacatur, which involves a losing party offering a winning party a sum of money in exchange for agreeing to have the judgment vacated by a court. Stipulated reversal, another peculiar California practice, is similar to vacatur, but goes one step further by requiring the agreement to hinge on overturning the result of the case, that is, in the revised opinion, the loser becomes the winner and the winner becomes the loser and the case is then dismissed. 31. Barnett, note 14 above (pp. 519, 549). 32. For example, Former Chief Justices Donald Wright, and Rose Bird both noted the doctrinal and error-correcting function of depublication. See Biggs, J. H. (1977). Decertification of appellate opinions: The need for articulated judicial reasoning and certain precedent in California law. Southern California Law Review, 50(6), 1181–1206 (p. 1185). See also Barnett, note 14 above (p. 523) and note 17. 33. Grodin (1984, July). The depublication practice of the California Supreme Court. California Law Review, 72, 514–528 (pp. 514–515). 34. Grodin, note 33 above (pp. 521–522). 35. Berch, see note 1 above (p. 195). 36. Uelmen, G. F. (1993, June). Publication and depublication of California Court of Appeal opinions: Is the eraser mightier than the pencil? Loyola Los Angeles Law Review, 26, 1007–1032 (p. 1020). 37. Berch, see note 1 above (p. 194). 38. Grodin, note 33 above (p. 516). 39. Berch, see note 1 above (p. 181). 40. Berch, see note 15 above, quoting Letter from Stanley G. Feldman, Chief Justice, Arizona Supreme Court, to Noel A. Fidel, Chief Judge, Division One, Arizona Court of Appeals 1 (December 21, 1992). 41. Barnett, note 14 above (p. 523). 42. California Supreme Court Rule 979(e) [Effect of Supreme Court order for depublication] An order of the Supreme Court directing depublication of an opinion in the Official
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43. 44. 45. 46.
47.
48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70.
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Reports shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion. 5 Cal 4th 580, 608 (1993). California Supreme Court, Internal Operating Practices and Procedures of the California Supreme Court, at IV (C) (Revised, March 17, 1999). Berch, note 1 above (pp. 177–178). The Arizona Supreme Court depublished State v. Flores, for example, bbecause this Court believes the Court of Appeals misconstrued the holding in Harmelin v. Michigan.Q State v. Flores, 110 Ariz. Adv. Rep. 116 (decided Aug 27, 1991, depublished March 17, 1992. See Dubois, P. L. (1988). The negative side of judicial decision making: Depublication as a tool of judicial power and administration on State Courts of Last Resort. Villanova Law Review, 33(3–4), 469–514 (p. 469). See also Uelmen, G. F. et al. (1988). Supreme Court retention election in California. Santa Clara Law Review, 28(2), 333–355 (p. 335). 286 California Reporter 868, decided 1991 and depublished 1992. Pether, note 3 above (p. 2451). Katz, S. B. (2001, March). Without precedent. Los Angeles Lawyer, 24, 43–47 (p. 44). See Barnett, note 18 above (p. 1033). Berch, note 1 above (p. 185). Barnett, note 18 above (p. 1045). Barnett, note 18 above (p. 1042). Barnett, note 18 above (p. 1044). Katz, S. B. (2001, Spring). California’s curious practice of bPocket ReviewQ. Journal of Appellate Practice and Process, 3, 385–396 (p. 385). Berch, note 1 above (p. 178). Pether, note 13 above (p. 1488). Barnett, note 18 above (pp. 1045, 1082). The Court has waited 15 months to order an opinion depublished. Uelmen, note 36 above (p. 1011). Berch, note 1 above (p. 199). Letter from Noel Fidel, Chief Judge, Arizona Court of Appeals, to Stanley G. Feldman, Chief Justice, Arizona Supreme Court 1 (December 1, 1992), 1–2. Letter from Noel Fidel, Chief Judge, Arizona Court of Appeals, to Stanley G. Feldman, Chief Justice, Arizona Supreme Court 1 (December 1, 1992), 1–2. Uelmen, note 36 above (pp. 1007, 1019). Uelmen, note 36 above (pp. 1007, 1020). Ibid. Berch, note 1 above (p.197) Ibid. Gerstein, R. S. (1984). bLaw By EliminationQ: Depublication in the California Supreme Court. Judicature, 67(6), 293–298 (p. 298). Berch, note 1 above (p.197).
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71. Baker, P. M. (1990). Depublication: The new starchamber, Western State University Law Review, 18(1), 313–329 (pp. 323, 326). 72. Pether, note 13 above (p. 1489). 73. Berch, note 1 above (p.197) 74. Pether, note 13 above (p. 1490). 75. See, e.g., Galanter, M. (1974). Why the bhavesQ come out ahead: Speculations on the limits of legal change. Law and Society Review, 9(1), 95–160 (p. 95); and Fiss, O. (1984, May). Against settlement. Yale Law Journal, 93, 1073–1090 (p. 1073). See also, Carpenter, C. E. (1998, Fall). The no-citation rules for unpublished opinions: Do the ends of expediency for overloaded appellate courts justify the means of secrecy? South Carolina Law Review, 50, 235–260 (pp. 252–253). 76. Berch, note 1 above (p. 177). 77. Berch, note 1 above (p. 182). 78. Barnett, note 14 above (p. 567). 79. See Viviano v. CBS, Inc. 597 A.2d 543, 549–50 (1991) and Hirsch v. General Motors Corp., 628 A.2d 1108, 1115, 1121, two New Jersey cases that both cite County of Solano v. Delancy, 215 Cal.App. 3d. 1232 (1989), depublished by the California Supreme Court in 1990. 80. It would be unlikely that a California court would be looking into New Jersey jurisprudence; but if New Jersey can do it, so can California. 81. Berch at 200. 82. Barnett, note 18 above (pp. 1033, 1036). 83. Berch, note 1 above (p. 201). 84. Pether, note 13 above (p. 1485). 85. This is a trend different from when California depublished more cases than it published. 86. Barnett, note 18 above (p. 1081). 87. Berch, note 1 above (p. 187–188), quoting Arizona Court of Appeals Judge Kleinschmidt. 88. Barnett, note 18 above (p. 1079). 89. People v. Saunders, 5 Cal.4th 580, 20 California Reporter. 2d 638 (1993). 90. Barnett, note 18 above (p. 1049). 91. Barnett, note 18 above (p. 1045, 1082). 92. 222 California Appellate 3d 760, 765 (1990). This opinion was later disapproved in People v. Saunders, 5 Cal.4th 580, 20 California Reporter 2d 638 (1993). 93. Barnett, note 14 above (pp. 543–544). 94. Ibid. 95. See Barnett’s discussion on the bcase or controversyQ point, note 18 above (pp. 1037–1042). 96. Katz, note 50 above (pp. 43, 44). 97. Berch, note 1 above (pp. 200–201). 98. Grodin, note 33 above (p. 524). 99. Barnett has suggested that challenge to depublication could be brought on the basis that the Supreme Court lacks constitutional power to order depublication. Such a suit could
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also be brought as an action against the justices. In either case, the justices would probably have to recuse themselves from hearing the case, and a panel of court of appeal judges would have to be appointed. Barnett, note 18 above, (p. 1057). This in itself would be interesting, as the court of appeal judges would not be entirely unbiased, since the depublication orders affect them directly. 100. See Katz, note 50 (p. 44), for a discussion of the notion of depublication in its weak and strong forms. 101. Pether, note 13 above (pp. 1435, 1469–1470). 102. See Arizona Rules of Civil Appellate Procedure Rule 28(e); Arizona Rules of the Supreme Court Rule 111(g). 103. California Supreme Court Rule 979 Requesting depublication of published opinions. 104. 198 California Appellate 3d 1458, 244 California Reporter 552 (1988), depublished 259 California Reporter 64 (1989). 105. Depublished opinions should be distinguished from unpublished opinions, which are discussed in this author’s companion article, Silenced Information: Selective Publication of Court Opinions and the Impoverishment of Legal Precedents (in progress). 106. Barnett, note 14 above (pp. 548–565). 107. Pether, note 13 above (pp. 1469–1470). 108. Grodin, note 33 above (p. 515). 109. Pether, note 13 above (p. 1530).