Metropolitan News-Enterprise


Wednesday, March 8, 2006


Page 3


Presumption Against Publication of C.A. Opinions Could Be Dropped


By a MetNews Staff Writer


A California Supreme Court advisory committee is soliciting comments on its proposal that the presumption against publication of Court of Appeal opinions be dropped and that all opinions of the intermediate appellate court be published if they meet any of the enumerated criteria.

The proposed rule change would also apply to opinions of Superior Court appellate divisions.

This would reinstate the approach that was followed prior to changes in California Rules of Court rule 976 which went into effect Jan. 1, 1972.

The Supreme Court Advisory Committee on Publication of Court of Appeal Opinions, chaired by California Supreme Court Justice Kathryn Werdegar, circulated proposed changes to Rule 976 in October and, after receiving comments, is distributing a revamped version. The major change is to provide that “[a]n opinion of a Court of Appeal or a superior court appellate division should be certified for publication in the Official Reports if the opinion” meets any of the requisites for publication.

The present rule says that “[n]o opinion of a Court of Appeal or a superior court appellate division may be certified for publication in the Official Reports unless” any of the enumerated criteria exists.

Prior to 1964, all opinions of the courts of appeal were published. Rule 987 went into effect on Jan. 1 of that year to curb the increasing volume of published decisions.

The rule provided that “[a]n opinion of a Court of Appeal or of an appellate department of a superior court shall be published in the Official Reports if it” meets one of the standards. It set forth that “every opinion of a Court of Appeal shall be deemed to meet the standard for publication” unless the majority of the court made a determination to the contrary.

The presumption against publication was adopted by the Supreme Court in 1971 on recommendation of an advisory committee chaired by one of its members, Raymond Sullivan (since deceased).

A report of the committee said:

“The committee believes that there should be no presumption that a Court of Appeal opinion requires publication. The fact that three out of every four Court of Appeal opinions are now unpublished, even though the present rule requires affirmative court action to prevent publication, would indicate that the presumption should be that an opinion does not require publication.”

The Supreme Court’s rule-making power as to publication of opinions is derived from Art. VI, Sec. 14 of the state Constitution which says that “[t]he Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate....” Rule 987 requires publication of all opinions of the Supreme Court.

Under the proposal now being circulated for comment, the “standards for certification,” in para. (c) of Rule 987, would be altered as follows:

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

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

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

“(47) 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, or the potential embarrassment of a litigant, lawyer, judge, or other person should not affect the determination of whether to publish an opinion.”

Comments are due April 28. An online form is available at:

The fax number for comments is (415) 865-7664.

The Supreme Court is also seeking comments by mail, addressed to Clifford Alumno at the Administrative Office of the Courts, 455 Golden Gate Ave., San Francisco, CA 94102-3688.


Copyright 2006, Metropolitan News Company