Unpublished Versus Published Court of Appeal Decisions: What’s The Difference?

If you spend time reviewing California Court of Appeal decisions, you’ll notice that some are published in official reporters, whereas others are unpublished. This important distinction may be missed because both published and unpublished opinions are accessible to the public. Whether a case is officially “published”  may influence your overall appellate strategy. There are also strict rules in the California Rules of Court about citing and relying upon only published decisions. Janet Gusdorff of Gusdorff Law explains the guidelines.

Published or unpublished?

The key difference between a published or unpublished decision is whether it has precedential value. In other words, can the decision be relied upon and cited by later courts as precedence? In California, all state Supreme Court decisions are automatically published in the state’s Official Reports. This is the collection of precedent-setting published or “citable” cases.

As for the California Court of Appeal decisions, they are generally published only if a majority of the court certifies it. But certification for publication must be done before the decision in that court is final. Decisions can also be certified for partial publication, provided the opinion clearly indicates which parts are published and unpublished.

The California Supreme Court can order that a decision certified for publication not be published, and vice versa. It can also depublish part of an opinion after granting review. Any published Court of Appeal opinion granted review by the California Supreme Court must include a notation indicating this.

Guidelines for whether to publish

The California Rules of Court provide a number of standards to determine whether a decision should be published. The result of the appeal does not have any impact. An opinion should be certified for publication if it:

  • Establishes a new rule of law
  • Applies an existing rule of law to facts significantly different from those in published opinions
  • Modifies, explains, or criticizes an existing rule of law
  • Provides a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule
  • Addresses or creates an apparent conflict in the law
  • Involves a legal issue of continuing public interest
  • Discusses the development of a common law rule or the legislative or judicial history of a law
  • Invokes a previously overlooked rule of law, or reaffirms a legal principle not applied in a recently reported decision
  • Includes a separate concurring or dissenting opinion, inclusion of which would contribute to the development of the law

There are also factors that the Court of Appeal should not consider in deciding whether to publish. Whether the decision might embarrass someone – a party, lawyer, judge, or someone else – is not a factor. Neither is the court’s workload.

Requesting publication

Anyone may request that an unpublished state Court of Appeal opinion be published. The request must be made by a letter to the court that issued the opinion. The letter must state the person’s interest in publication and why the opinion meets a standard for publication. The request must be delivered to the court within 20 days of the opinion being filed. A copy must be served on all parties.

If the court does not or cannot grant the request, the request is forwarded to the California Supreme Court, accompanied by the Court of Appeal’s reasoning and recommendation. The Supreme Court will then decide and will notify all parties of its decision.

Differences in federal (Ninth Circuit) rules

It should be noted that the California Rules of Court concerning publication differ somewhat from the federal rules. These rules specifically relate to appellate decisions of the (federal) Ninth Circuit, which includes California. Similar to the California Rules of Court, a majority of the court may designate an opinion for publication. But the federal rules include many but not all of the guidelines for determining whether to publish.

The federal rules also allow someone to request publication of an unpublished decision. But the timeframes are different, and a party may object to publication. The California Rules of Court don’t provide for objections to publication after a request has been made.

Our approach to published versus unpublished court of appeal decisions

Gusdorff Law generally does not request publication of appellate cases we successfully litigate. Because of the precedential value of a published decision, a win makes Supreme Court review more likely. In other words, publishing the decision encourages the losing party to ask the Supreme Court to look at it, and the opinion’s impactful reach may increase the chance of review. There’s a good chance review will be granted, which delay closure for our clients.

Have you got questions about published versus unpublished Court of Appeal decisions? Are you ready to start on your California appellate case? Reach out to Gusdorff Law today.

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