Grapes

The first column I wrote for the Daily Journal was back in 1988. It was entitled "It Never Happened." Some of you may know this because I often reprise this column, usually when I hit the 100 mark, as in column No.100, No. 200, etc. Why that title for that first column? Because way back then, the California Supreme Court had the annoying habit of depublishing cases they -- or, I suppose, a majority of the justices -- thought reached the correct result, but not the correct legal reasoning. At least that was the ostensible reason. As an appendage to this July opinion, I break the 100-rule reprise.

My friend, the late California Supreme Court Justice Joseph Grodin, discussed this issue with me. He ultimately wrote "The Depublication Practice of the California Supreme Court" (1984) 72 Cal. L.Rev. 514. He thought that in some way the justices considered the result correct, but in some way the opinion could be misleading. He cited then-Professor Robert Gerstein, now an appellate lawyer, who viewed the depublication practice as a measure of "damage control."  But what is clear is that Justice Grodin and attorney Gerstein were not happy with the practice.

So (you know where I am going) this takes me to Pateras v. Armenta (Case No. B336065), an opinion I authored. Careful, you may not cite it. It was (notice past tense) certified for publication on Feb. 27, 2025, at 109 Cal.App.5^th 142. Numerous interested parties did not petition the Supreme Court for review. Instead, they requested "depublication."

This takes me to the California Constitution, Article VI, Section 14, requiring the publication of opinions, and California Rules of Court rule 8.1125(c)(1). Section (d) tells us a "Supreme Court order to depublish is not an expression of the court's opinion of the correctness of the result of the decision or of any law stated in the opinion."  Huh? So the appellant does not prevail, but the opinion may not be cited for future cases involving the same issue.

We have enough trouble figuring out what statutes mean and how to apply them to particular facts. I propose a new rule. If the Supreme Court depublishes a case, tell us why... all of us, the bar, litigants, and (gulp) the justices. The court rule tells us depublishing is not a criticism of the decision or any law stated in the opinion. So what gives? We live in an age of openness. If I went astray, I would like to know why. It would help me be a better justice. I can handle it... I guess. If my suggestion gains traction with our Supreme Court, I would appreciate scuttling such language as "in a remarkable lapse of judgment."

And as for grapes, I like them. Seedless, green and black are my favorites. And I have an occasional glass of wine with dinner. This column has nothing to do with sour grapes, and certainly not grapes of wrath.