New Rule: California Appellate Opinions are Now Citable Pending Supreme Court Review

When the United States Supreme Court takes up a case the published Circuit Court opinion from which it arose remains on the books as binding authority unless, and until, it is reversed.

By contrast, under the traditional rule in California a previously published appellate decision was effectively de-published for good once the California Supreme Court elected to take the matter under review.  

Beginning on July 1, 2016, however, California Rules of Court, Rule 8.115 has been modified so that published appellate decisions will now remain citable after review is granted.  

While such opinions are under review, they will remain citable only as persuasive, but not binding authority.  Once the California Supreme Court has completed its review and issued its own opinion, the appellate decision will become binding again as to any point on which it was not overruled or rejected.

Finally, at any time after granting review the California Supreme Court can issue an order directing that some or all points of the appellate decision are binding, while others are not.

It will be especially interesting to see how this last part of the rule is implemented in practice.  It is conceivable that the Supreme Court will use this new authority as a convenient means to partially depublish and thus, in effect, selectively rewrite  lower appellate decisions.  

 

  

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