Why can court opinions be depublished and who makes the decision to do so?

Answer 1

Depublication is a California (and Arizona) state appellate procedure that allows the state Supreme Court to remove legal decisions from publication (not literally removing pages from law books, but treating them as if they'd been removed), preventing the depublished decisions from being cited as precedents. Depublication is roughly analogous to an appellate court vacating the decision of a trial court, exceptdepublication is used to eliminate appellate decisions that set precedent.

In California, anyone with an interest in the outcome of a case (not just parties to the case) can file a motion with the court requesting a case be depublished. The state supreme courts have full discretion over granting or denying the motion. California law also allows their supreme court to elect to depublish a decision on its own motion. (It is also possible to file a motion requesting the court republish a depublished decision, although this occurs less frequently and is less likely to be granted.)

One common use of this rule is when parties to a civil suit reach a settlement agreement different from the one ordered by the court. In such case, depublication removes from public record both the decision and the evidence used to reach a conclusion, as if the case had been settled with a non-disclosure agreement before trial.

The federal court system doesn't allow depublication; instead, federal appellate courts may choose to issue unpublished decisions. According to Aaron S. Bayer, in his article "Unpublished Appellate Decisions are still Commonplace," published in The National Law Journal (August, 2009), each Circuit sets its own rules for determining whether to publish an opinion. Rates of unpublished opinions range from 54% (7th Circuit) to 91% (4th Circuit).

According to one legal expert, this is common practice when a case has no precedential value (for example, because it simply restates a law). If all opinions were published not only would law libraries be overflowing with irrelevant books, but precedential cases may be more difficult to locate.

The US Supreme Court frowns on unpublished opinions in consequential cases, particularly when the decision holds a Congressional Act unconstitutional, as occurred in an unpublished Fourth Circuit opinion that declared a federal law regulating lottery advertising unconstitutional (US v. Edge Broadcasting, 509 US 418 (1993)).

Unpublished opinions don't set precedents, so they were formerly disallowed for use as citations; however, Rule 32.1 of the Federal Rules of Appellate Procedure now allows unpublished opinions to be cited as precedent, but doesn't require the courts to give the citations more than persuasive weight.