Supreme Court announces amendment to Rule 976 on publication of Court of Appeal opinions

Last week, the Supreme Court announced in a press release that effective April 1, 2007, Rule of Court 976(c) will be amended. That Rule addresses the standards for publication of Court of Appeal opinions. Currently, Rule 976(c) prohibits publication of most opinions ("No opinion ... may be certified for publication ... unless ... "). The amended Rule almost creates a presumption in favor of publication ("An opinion ... should be certified for publication ... if ..."). In addition, three new grounds for publication have been added. Amended Rule 976(c) (which will be renumbered as Rule 8.1105(c) as of January 1, 2007) will read:

(c) Standards for certification

No An opinion of a Court of Appeal or a superior court appellate division — whether it affirms or reverses a trial court order or judgment — may should be certified for publication in the Official Reports unless if the opinion:

(1) Establishes a new rule of law,;

(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;, or

(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;

(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;

(2)(5) Resolves Addresses or creates an apparent conflict in the law;

(3)(6) Involves a legal issue of continuing public interest; or

(4)(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.;

(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or

(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

In addition, new subdivision (d) has been added, specifying the factors that the Court of Appeal should not consider in deciding whether to publish an opinion:

(d) Factors not to be considered

Factors such as the workload of the court, or the potential embarrassment of a litigant, lawyer, judge, or other person should not affect the determination of whether to publish an opinion.

As I have previously reported, these amendments were the result of a long period of analysis, study and public comment spearheaded by the Advisory Committee on Rules for Publication of Court of Appeal Opinions. It will be interesting to observe whether more opinions will be published as a result.