Metropolitan News-Enterprise


Thursday, October 20, 2005


Page 3


Advisory Committee Proposes Changes in Publication Standards


By a MetNews Staff Writer


Potential embarrassment to parties, lawyers or trial judges would be no excuse for justices not ordering publication of Court of Appeal opinions that otherwise meet the criteria, under proposed changes to the rule of court that establishes publication standards.

Being too busy to fashion an opinion of publishable quality would also be an invalid basis for designating an opinion “Not for Publication,” under the proposals released yesterday for public comment.

The report of the Supreme Court Advisory Committee on Rules for Publication of Court of Appeal Opinions, chaired by high court Justice Kathryn Werdegar, suggested that a future advisory committee mull whether the Supreme Court should be vested with the power to edit Court of Appeal opinions by partially publishing or depublishing them.

In recommending that discussion of old, “overlooked” laws be established as a basis for publishing a Court of Appeal opinion, the committee said:

“This criterion may be particularly important in criminal cases. Several jurisdictions have a similar criterion in their publication rules, including Arizona and the Ninth Circuit. A current discussion of an older standard or rule of law may be beneficial in terms of reinforcing its continued vitality and placing it in the context of other, subsequent developments in the law.”

The committee urged that the rule be amended to spell out that  publication may be based on the meatiness of a separate opinion, even if the lead opinion did not meet publication criteria.

Other changes were also proposed, broadening the bases for publication.

California Rules of Court, rule 976, para (c) would be amended, under the proposals, as follows:

“No opinion of a Court of Appeal or a superior court appellate division may be certified for publication in the Official Reports unless the opinion:

“(1) establishes a new rule of law,;

“(2) applies an existing rule of law to a set of facts significantly different from those stated in published opinions,;

“(3) or modifies, explains, or criticizes with reasons given, an existing rule of law,;

“(4) advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;

“(5) resolves or creates an apparent conflict in the law;

“(6) involves a legal issue of continuing public interest; or

“(7) 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.;

“(8) invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or

“(9) is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

“Factors such as the workload of the court, the presence of a concurring or dissenting opinion solely on the facts, or the potential embarrassment of litigants, lawyers, or trial judges should not affect the determination of whether to publish an opinion.”

In recommending that attention be lent in the future to the possibility of the Supreme Court partially publishing or depublishing Court of Appeal opinions, the committee said:

“A solid majority of justices and attorneys (78% and 81%, respectively) also agree that the Supreme Court should be able to order a partial depublication. Many of the respondents indicated that they see no distinction in the authority of the Supreme Court to order either a full or partial publication or depublication. But others noted that partial publication or depublication by Supreme Court order could cause the context of the opinion to be lost, creating a potential for inconsistent application in the lower courts.

“Several justices, regardless of their responses, indicated in their comments that they would like this decision to be a collaborative one involving input from the author. The following comment sums up these concerns: “Partial publication [or depublication] would present serious problems, unless the opinion was sent back to the Court of Appeal first for editing in light of the Supreme Court’s order to [publish or] depublish part. If any part is deleted that was significant to the Court of Appeal’s reasoning, it might alter the meaning or intention of the original authors.”

The report appears on the Judicial Council website at:  documents/report-1005.pdf.

Public comments on the proposals are being accepted through Jan. 6.


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