Legal Question in Appeals and Writs in California

Re: depublication

Many appellate decisions are published in book form in various series of books. Not all decisions are published; in fact, most are not. A court is not supposed to publish an opinion unless the opinion makes a contribution to the developing body of law -- for example, if an opinion addresses a question which has not been addressed in a prior published decision, or if it disagrees with a prior published decision, or if it provides a different analysis of a previously-published question of law, or if it provides a useful historical review of the development of the law. The vast majority of decisions don't meet these criteria and are not published. Preparing the books takes time, and a published case will first appear in various other venues. The appellate courts in California have web sites where the published decisions are madeavailable the day they are filed, and various legal newspapers publish them within a day or two. The reporters issue preliminary versions of their books (known as "advance sheets") which provide the opinions in book form before the final volumes are printed, edited and indexed.

The Court of Appeal decides when the opinion is issued whether it should be published. A party (or even a non-party) which disagrees with a court's decision to publish a case can (if it follows a proper procedure and acts within time limits) ask the appellate court to reconsider its decision to publish the case. If the court agrees, it will "depublish" the case by ordering that it not be included in the official reports. As I mentioned, the books take time to prepare, so such an order will almost always be able to prevent the case from being included. However, it will already have been distributed via other means (an thus "published" in the ordinary sense of that term), which is why the process is called "depublication."

Alternatively, a party (or non-party) can ask the Supreme Court to depublish an opinion of the Court of Appeal. This process takes longer, but the basic idea is the same. The Supreme Court does not have the time or resources to take every case it wants to take, but sometimes it will depublish an opinion it deems unfit for publication instead of granting review. This is rare, but it happens in a few dozen cases per year.

There are many reasons to request depublication; typically such a request will argue that the opinion presents an incorrect legal analysis which will cause confusion in the future. It is enough to argue that the opinion fails to meet the criteria listed above for publication, but a depublication request is more likely to be granted if publication of the decision is potentially harmful than if it is merely unnecessary.

There is also a procedure to ask the Court of Appeal to publish a decision it had originally ordered not to be published; I have done this successfully on the one occasion when I tried it.