On Wednesday, the Court of Appeal (Third Appellate District) issued an interesting order in which it "decertified" an opinion that it had previously certified for publication under Rule of Court 976. The Rules of Court do not expressly permit the Court of Appeal to, in effect, "depublish" an opinion; the Rules seem to limit that power to the Supreme Court. I asked Ray Cardozo, Chair of the Bar Association of San Francisco's Appellate Practice Section, about this. He replied:
I am familiar with instances in which parties have asked the court of appeal to decertify an opinion, but since I am not sure that any of those instances ever succeeded, I do not know if the question of the court's power to do so ever arose. I would read Rule 976(b) as implicitly conferring the power on the court of appeal if a majority concurs before the decision is final.I agree it seems logical that the Court of Appeal should have the power to change the publication status of its own opinions before finality, but that power is certainly not explicit in the Rules of Court. I observe that as of this writing, the "decertified" opinion remains on the Court of Appeal's website as "published." UPDATE: Professor Martin explains the reason for the "decertification" here.