At The Lectern by Horvitz & Levy

Filling the gap in the new publication rules

Last month, we wrote about a gap in the rule changes that ended the automatic depublication of Court of Appeal opinions when the Supreme Court granted review.  The court has now filled the gap, not by amending any rule, but by revising a comment to one of the rules.  The comment revision is announced today on the court’s website.

The gap was a small one, concerning the precedential effect of a published Court of Appeal opinion in a review-granted case when the Supreme Court later dismisses review (as improvidently granted or otherwise) without issuing its own opinion in that case or in a related matter.  It was uncertain whether the opinion retained the persuasive-only effect it had while review was pending or whether the opinion’s pre-review binding and precedential effect was revived.  (Click the first two links above for details about all this.)  The new comment says it’s the latter, unless the court orders otherwise.

The revision adds the bolded sentences to the comment to rule 8.1115(e)(3):

This subdivision specifically provides that the Supreme Court can order that an opinion under review by that court, or after decision on review by that court, have an effect other than the effect otherwise specified under this rule.  For example, the court could order that, while review is pending, specified parts of the published Court of Appeal opinion have binding or precedential effect, rather than only potentially persuasive value.  For purposes of subdivision (e)(2) and (3), a “decision on review” includes any order by the Supreme Court dismissing review.  (See rules 8.528(b) [addressing an “order dismissing review”] & 8.532(b)(2)(B) [listing, among “decisions final on filing,” an order filed under rule 8.528(b)].)  Accordingly, upon dismissal of review, any published Court of Appeal opinion regains binding or precedential effect under rule 8.1115(e)(2) unless the court orders otherwise under that rule’s subdivision (e)(3).