45 Hastings L.J. 519 Hastings Law Journal March 1994 Special Report on California Appellate Justice *519 DEPUBLICATION DEFLATING: THE CALIFORNIA SUPREME COURT'S WONDERFUL LAW- MAKING MACHINE BEGINS TO SELF-DESTRUCT By Stephen R. Barnett [FNa] Copyright (c) 1994 Hastings College of the Law; By Stephen R. Barnett TABLE OF CONTENTS Introduction ......................................................... 520 I. The Changed Meaning of Depublication: From What Everyone Knows to What No One May Say ................................................ 523 A. The Traditional Understanding ................................... 523 B. The Latent Flaw in the Traditional Understanding ................ 524 C. In re Huffman: The First Crack .................................. 525 D. People v. Turner: Subversion by Toenote 527 (1) Turner's Footnote Seventeen ................................. 529 (2) Turner's Footnote Eighteen .................................. 530 E. California Rule of Court 979(e) ................................. 532 (1) The Rule .................................................... 532 (2) The Legislative History of Rule 979 ......................... 534 (3) The Puzzle of Rule 979(e) ................................... 536 (4) Rule 979(e) in the Courts of Appeal ......................... 537 F. People v. Saunders: Rule 979(e) Confirmed ....................... 539 G. The Effect of Depublication Under Rule 979(e) and Saunders ...... 543 (1) The Depublication Order as a Precedent ...................... 543 (2) Elimination of the Depublished Opinion As a Citable Precedent .......................................................... 544 II. Erosion of the Rule Against 'Citing' or 'Relying On' Depublished Opinions ........................................................... 548 A. Introduction: Declaring Judicial Opinions 'Unpublished' and Banning Their'Citation' ............................................ 548 B. The Deteriorating Authority of Rule 977(a) ...................... 552 (1) In re Huffman ............................................... 552 (2) People v. Turner ............................................ 552 (3) Turner And the Meaning of 'Citing' a Case ................... 553 (4) People v. Saunders and the Contest Between Depublished Opinions and Depublication Orders .................................. 557 (5) Cynthia D. v. Superior Court ................................ 558 (6) The Unraveling of Rule 977(a) in the Courts of Appeal ....... 560 C. The Status of Rule 977(a) ....................................... 563 D. The Surviving Impact of Depublication in Light of the Decline of Rule 977(a) ........................................................ 565 Conclusion ........................................................... 566 *520 Introduction As Professor Kelso's admirable study recognizes, any consideration of the appellate system in California must take account of the California Supreme Court's unique and controversial practice of 'depublishing' selected opinions of the courts of appeal. [FN1] The court began depublishing cases in 1971 [FN2] and now, as Professor Kelso notes, depublishes more cases than it publishes. [FN3] In the most recent year the court decided 95 cases by written opinion and depublished 109 court of appeal opinions. [FN4] Depublication thus stands today as a major way *521 in which the California Supreme Court shapes -- or tries to shape -- California's law. Whether this singular procedure [FN5] can hold that role indefinitely, or is more likely to unravel from its own internal contradictions, is the subject of this Comment. The supreme court accomplishes depublication by using its power under California Rule of Court 976(c)(2) to order that a court of appeal opinion, certified by the court of appeal for publication in the official California Appellate Reports under Rule 976, [FN6] 'not be published' there after all. [FN7] The opinion thus is rendered 'unpublished' and brought under California Rule of Court 977(a), which states that, with narrow exceptions, an unpublished opinion 'shall not be cited or relied on by a court or a party in any other action or proceeding.' [FN8] The supreme court orders an opinion depublished without hearing the case or giving reasons for its action, but also without affecting the result; despite depublication of the opinion, the decision of the court of appeal stands. Depublication is controversial, and Professor Kelso joins the brigade of critics with his declaration that the practice 'should be stopped.' [FN9] As the debate continues, [FN10] however, the meaning and impact *522 of depublication are changing. As a result of actions by the California Supreme Court and of depublication's own dynamic and internal contradictions, the procedure appears to be gradually losing its law-making force. Four developments contribute to this process of erosion. First is a slippage, wrought by supreme court decisions, in the traditionally understood meaning of depublication, as the court increasingly agrees with opinions it has depublished and rejects opposing ones it has left standing. [FN11] Second is California Rule of Court 979(e), adopted by the supreme court in 1990. This rule declares that an order of the supreme court depublishing a court of appeal opinion 'shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion.' [FN12] Third is the 1993 decision of the California Supreme Court in People v. Saunders, [FN13] where the court for the first time interpreted Rule 979(e) and ruled on the meaning of depublication. [FN14] Fourth is the spreading subversion of Rule 977(a)' s mandate that a depublished opinion may not be 'cited' or 'relied on,' a process fueled by the advent of computerized legal research and led by the supreme court's own example in citing depublished opinions (and, at least in one instance, relying on them as well). [FN15] Taken together, these developments contradict the traditional understanding of depublication and undermine the court's apparent purpose in adopting the procedure. This Comment discusses first the changed meaning of depublication, as reflected in a series of supreme court decisions, including Saunders, and in Rule 979(e). It then examines the undoing of the rule against 'citing' or 'relying on' depublished opinions. Finally it appraises the remaining force of depublication in the wake of these events. *523 I. The Changed Meaning of Depublication: From What Everyone Knows to What No One May Say A. The Traditional Understanding For the first nineteen years of depublication, until 1990, the purpose and meaning of a supreme court order depublishing a court of appeal opinion commanded a certain consensus. This 'traditional understanding' rested on what seemed obvious inferences from what the court was doing and on statements by individual justices outside of court. (The court itself before 1990 had issued no opinion, no rule, nor any other statement on the subject.) It was thought to be clear -- as it still is -- that the supreme court in depublishing an opinion was not disagreeing, except in the rarest case, with the court of appeal's judgment that the opinion was important enough for publication under Rule 976. [FN16] Rather, as stated in 1976 by former Chief Justice Donald R. Wright -- the presumptive father of depublication, since he was chief justice when the practice began -- the court normally depublished opinions that it thought were correct in result but that contained 'language which is an erroneous statement of the law and if left on the books would not only disturb the pattern of the law but would be likely to mislead judges, attorneys and other interested individuals.' [FN17] Two other justices have spoken on depublication. Wright's successor, Chief Justice Rose Elizabeth Bird, speaking in 1978, described depublished opinions as 'erroneous rulings' and ones 'with which the court does not agree. ' [FN18] Justice Joseph R. Grodin, writing in 1984, *524 gave the most detailed exposition from within the court. He wrote that the court, in the 'vast majority' of cases, ordered depublication 'because a majority of the justices consider the opinion to be wrong in some significant way, such that it would mislead the bench and bar if it remained as citable precedent. ' [FN19] Justice Grodin further noted that depublication avoided leaving lawyers and lower courts with 'a published decision, citable as precedent and binding upon the trial courts, that stands for what the supreme court considers the law is not.' [FN20] Depublication thus had the purpose, in Justice Grodin's apparent view, of 'providing guidance for the development of the law. ' [FN21] These three pronouncements from within the court reflected consistently the understanding that the court depublished an opinion because, in Justice Grodin's words, it found the opinion 'wrong in some significant way.' This understanding rested also on what was perceived to be common sense. As Professor Kelso puts it, 'The only sensible rationale for taking the time to depublish is because something was wrong with the opinion.' [FN22] Thus Professor Gerstein could write in 1984, memorializing the traditional understanding, that 'everyone is aware' that a depublication order means 'a rejection by the supreme court of some significant aspect' of the court of appeal opinion. [FN23] B. The Latent Flaw in the Traditional Understanding Solid as the consensus was, one can see now that the traditional understanding harbored a latent flaw. The nature and procedure of depublication would undermine, sooner or later, attribution to the court's action of any consistent meaning, even so broad and vague a meaning as calling the depublished opinion 'wrong in some significant way.' When the supreme court depublishes an opinion, the justices give no reason for their action. Nor do they need to agree among themselves on a reason. Further, depublication has no effect on the *525 result of a case, imposes no burden of work on the court, and supposedly leaves nothing standing as a citable precedent. Depublication thus must seem an almost costless action for the court. Its attraction must be particularly strong because of the speed with which the court must act on each of more than 150 items at its weekly conference. [FN24] Under this time pressure, when a petition for review presents close questions or difficult issues or splinters the court, or when a court of appeal opinion departs from received judicial wisdom or is otherwise provocative or iconoclastic, [FN25] or when anything else about a decision or opinion makes four justices uncomfortable, depublication must seem the quick and easy way to get rid of the problem. On a quick appraisal of risks and benefits -- without the time to consider carefully the benefits of letting the opinion stand -- depublication must often seem the safe, conservative, risk-averse thing to do. The court's rule of thumb may be, 'When in doubt, depublish.' But the coin has another side. Just as depublication is attractive because it requires no agreement on reasons and perhaps no close consideration of the case against depublication, so decisions to depublish cannot be expected to reflect continually a common rationale. The label 'wrong in some significant way' will not attach indefinitely to all the cases. Sooner or later, when the court ultimately grants review to decide an issue that has split the courts of appeal, and finally gives full consideration to both sides of the issue, it will find that it agrees with cases it has depublished and disagrees with opposing ones it has left on the books. When that happens the traditional understanding begins to unravel, and with it the supposed 'guidance for the development of the law.' In a series of supreme court cases beginning in 1986, that is what has been happening. C.In re Huffman: The First Crack The first major crack in the traditional understanding, a fissure that proved subversive in more ways than one, appeared in 1986 in an obscure criminal case, In re Huffman. [FN26] The issue was whether a defendant who had been convicted of a crime and then confined for treatment as a mentally disordered sex offender (MDSO) was constitutionally *526 entitled to 'conduct' credits against a subsequent prison term for time spent in the treatment facility. [FN27] In 1984 a court of appeal had held in People v. Jobinger [FN28] that MDSOs were entitled to the credits. [FN29] There had ensued two lines of court of appeal opinions, one following Jobinger, one rejecting it. Thus in People v. Cruz, [FN30] in 1985, the court of appeal pointed out that 'there are now two cases,' Jobinger and People v. Richard, [FN31] holding that MDSOs were entitled to the credits. [FN32] 'We use the word 'now," the Cruz court continued, 'because there have been other cases since decertified by the California Supreme Court that held otherwise.' [FN33] The court thereupon identified [FN34] -- by name, 'Cal. App.' designation, and date of depublication -- three such cases. [FN35] Justice Wiener continued: Prompted by the disappearance of only those cases explaining why Jobinger was wrong, we believe little will be gained by our contributing to the legal literature on this subject. Nudged toward firmer respect for the doctrine of stare decisis by the California Supreme Court's selective depublication process, we merely cite Jobinger and Richard and give Cruz the conduct credits for the time he spent at Patton State Hospital. [FN36] Justice Lewis dissented, finding it 'difficult to accept the majority's view there is stare decisis effect to be given to the depublication orders. ' [FN37] The People petitioned for review, but the supreme court denied it. [FN38] The court subsequently granted review in Huffman, however, to decide the issue. [FN39] *527 The supreme court decided in Huffman, unanimously, that the MDSOs were not entitled to the credits. [FN40] In reaching this conclusion the court discussed, and rejected, the reasoning of the court of appeal in Jobinger. [FN41] In a footnote, the court acknowledged that 'two subsequent Court of Appeal cases have followed Jobinger' -- citing Cruz and Richard -- and that 'we ordered that several Court of Appeal decisions which disagreed with Jobinger not be published.' [FN42] Unlike the court of appeal in Cruz, the supreme court did not identify those decisions, even by name. Huffman's significance in the history of depublication is twofold. First, Huffman may have been the first case in which the supreme court, faced with two conflicting lines of court of appeal decisions, one published and one depublished, agreed with the depublished ones. At least Huffman appears to be the first case in which the court did this explicitly, with a reference to the depublished status of the vindicated opinions. Huffman thus represents the supreme court's first clear confutation of the traditional understanding of depublication. Huffman's second significance was more fortuitous but, in the end, more conclusive. The lawyers for the successful MDSO in the court of appeal in Cruz were associated with Appellate Defenders, Inc., of San Diego. [FN43] An attorney from that office, partly as a result of his experience with Cruz and with what happened to Cruz in Huffman, was prompted to draft the language that became Rule 979(e) of the California Rules of Court, stating that a depublication order 'shall not be deemed an expression of opinion of the Supreme Court . . . .' The court's rejection of the traditional understanding in Huffman thus was cast into stone as a Rule of Court. But that tale lies slightly ahead. [FN44] D.People v. Turner : Subversion by Toenote The next marker in the changing course of depublication was a decision of the California Supreme Court in April 1990, People v. Turner. [FN45] Turner was a death penalty appeal in which the defendant's appellate counsel, in arguing that the trial court had improperly admitted *528 his client's prior felony convictions for the purpose of impeachment, faced the problem that trial counsel had not objected to their admission. [FN46] Turner's trial, in November 1984, was governed by Proposition 8, adopted in 1982, which amended the state constitution to provide that 'any' prior felony conviction could be used 'without limitation' for purposes of impeachment. [FN47] After Turner's trial the supreme court had decided People v. Castro, [FN48] which held that Proposition 8 did not eliminate the trial court's discretion to exclude prior felonies offered for impeachment. In order to reach the issue whether admitting the priors was error under Castro, Turner's appellate counsel made two arguments to surmount trial counsel's failure to object. First, appellate counsel argued that such an objection would have appeared futile under a string of court of appeal cases on Proposition 8 decided prior to the trial. [FN49] Second, appellate counsel argued in the alternative that trial counsel had been incompetent in not objecting to admission of the priors on the basis of the possibility that the question ultimately would be decided in favor of their excludability. [FN50] The problem with the first argument was that the court of appeal cases which assertedly would have made an objection appear futile had all been depublished by the time of the trial, as had the one court of appeal case going the other way. [FN51] Appellate counsel dealt with this problem by avoiding citation of the court of appeal cases but letting the supreme court know, in Aesopian language, both that they existed and that they had been depublished. [FN52] The supreme court accepted the first argument. 'We need not brand counsel incompetent in order to address the merits of defendant's claim on direct appeal,' the court said, because this was a case where 'the pertinent law later changed so unforeseeably that it was *529 unreasonable to expect trial counsel to have anticipated the change.' [FN53] At the time of the trial it was 'widelyassumed' that Proposition 8 removed all restrictions on admitting prior felony convictions for purposes of impeachment, and 'all but one originally published Court of Appeal decision addressing the issue had so concluded,' the court said. [FN54] Turner's trial counsel 'cannot be saddled with the burden of anticipating such an abrupt change in the law,' the court concluded. [FN55] (Addressing thus the Castro claim, the court held that any error in admitting the priors was harmless on the facts of Turner.) [FN56] The crucial words in the court's opinion, for present purposes, are the 'all but one originally published' court of appeal decisions. 'Originally published' means that the decisions had been depublished (and that this had happened before the trial). [FN57] The use of these depublished cases then became the subject of two remarkable footnotes to the Turner opinion. (1)Turner's Footnote Seventeen Footnote Seventeen is attached to the statement in the text that 'all but one originally published Court of Appeal decision had so concluded.' [FN58] Footnote Seventeen is a strange, split-level affair that features a footnote to a footnote, or perhaps a toenote. [FN59] On the footnote's top level, the court -- less inhibited than Turner's appellate counsel -- identifies the 'originally published' court of appeal decisions. Seven such cases are listed, the first six introduced by 'See' and the seventh by 'but see.' [FN60] Each case is identified by name and a parenthetical 'Cal. App.' [FN61] designation. For example, the first case is given as: ' People v. Rangel (Cal. App.).' [FN62] *530 This string of case references then itself sports a footnote, indicated by an asterisk, and under a leaded line appears the toenote, labeled 'Reporter's Note.' Presumably the voice of the court's Reporter of Decisions, this note gives for each of the seven cases a more detailed identification, including the docket number in the court of appeal and the date of depublication by the supreme court. The first case thus becomes: ' People v. Rangel (4 Crim. 14993), opinion deleted upon direction of Supreme Court by order dated June 14, 1984.' [FN63] In one instance the 'Reporter's Note' gives volume and page citations to the official California Appellate Reports and the unofficial California Reporter, but only for a subsequent court of appeal opinion in the same case. [FN64] Neither tier of the footnote gives a 'Cal. App.' or 'Cal. Rptr.' [FN65] citation for any of the 'originally published' opinions. Footnote Seventeen of Turner is significant primarily as a ground-breaking step in erosion of the rule against 'citing' depublished opinions. This is a theme taken up later. [FN66] It may be noted here, however, that in identifying the depublished cases by name, docket number, and date of depublication, the court -- or its alter ego, the Reporter of Decisions -- was 'citing' them by some definitions of that term, though not by a narrow definition requiring a volume-and-page reference (or other numerical designation) to the California Appellate Reports, the California Reporter, or some other legal reporter. Subject to one's definition of 'citing' a case, [FN67] then, Footnote Seventeen in Turner may be recorded as the first time the California Supreme Court 'cited' depublished opinions, California Rule of Court 977(a) notwithstanding. [FN68] (2)Turner's Footnote Eighteen Footnote Eighteen of the Turner opinion, a more traditional one-story structure, is attached to the text's statement that the defendant's trial counsel 'cannot be saddled' with the burden of anticipating Castro. *531 [FN69] In this footnote the court replies to the People's argument that Castro was not so unforeseeable as to excuse counsel's failure to object. Such objections obviously had been made, the People pointed out, in the several pre- Castro cases that produced appellate opinions on the question. The court replied that 'these challenges had consistently been rebuffed,' and that counsel need not have anticipated that the court would later reject "the apparently prevalent contemporaneous interpretation." [FN70] Footnote Eighteen continues: For similar reasons, it is not dispositive that, at the time of defendant's guilt trial, we had caused depublication of every published opinion addressing the 'prior impeachment' language of Proposition 8, regardless of result, and had granted hearing in Castro and several other such cases. We have long cautioned that such actions on our part have no precedential value and may not be construed as a signal of our ultimate intentions. [FN71] Footnote Eighteen is significant in two ways. First, together with the text of the Turner opinion, Footnote Eighteen suggests that whether or not the court was 'citing' depublished opinions, it was 'relying on' them, in violation of Rule 977(a)'s other prohibition. [FN72] To be sure, the court was not relying on the pre- Castro decisions for the purpose of establishing the present, post -Castro state of the law. It would have been relying on them, rather, to establish the state of the law as it would have appeared to competent counsel at the time of Turner's trial. That may still be reliance. When the court concludes that trial counsel's conduct was justified because 'all but one originally published Court of Appeal decision addressing the issue had so concluded,' [FN73] it is hard to see how the court is not 'relying' on those originally published decisions. When the court says in Footnote Eighteen that the challenges to admission of impeachment priors in pre- Castro appellate opinions 'had consistently been rebuffed,' [FN74] it is hard to see how the court is not 'relying' on the opinions that did the rebuffing. [FN75] I will have more to say about this point later. [FN76] The second point about Footnote Eighteen goes more directly to the meaning of depublication. The pertinent passage is the court's *532 statement, concerning its depublication of every published opinion addressing the 'prior impeachment' language of Proposition 8 and its grants of hearing in Castro and other cases: 'We have long cautioned that such actions on our part have no precedential value and may not be construed as a signal of our ultimate intentions.' [FN77] It is not clear what the court means by 'such actions on our part' -- whether it is referring to depublications, to grants of hearing, or to both. Although the court cites no authority for its statement, it had indeed 'long cautioned' that grants of hearing had no precedential value and should not be considered a signal of its ultimate intentions. [FN78] With regard to depublications, however, it does not appear that the court had previously so 'cautioned.' The Wright-Bird-Grodin line of out-of-court declarations pointed, in fact, in the opposite direction. [FN79] This statement in Footnote Eighteen thus may be considered a harbinger of the revisionist Rule 979(e), adopted two months later. [FN80] Turner's holding, moreover, reinforced the footnote's statement. The court clearly was according 'no precedential value' to the depublication orders issued prior to Turner's trial when it held that trial counsel had been justified in relying on the depublished opinions, their depublication notwithstanding. [FN81] The facts of Turner, however, may drain from the footnote's statement any such meaning. Since the court at the time of Turner's trial had depublished cases going both ways on the 'prior impeachment' issue, [FN82] of course its actions could have 'no precedential value' and could give no 'signal of its ultimate intentions.' Turner probably says nothing about the meaning of depublication in the more common and critical situation where the court has depublished cases going one way and left opposing cases on the books. E. California Rule of Court 979(e) (1) The Rule The next event that shaped the meaning of depublication, and may well have transformed it, came on July 1, 1990, when the supreme *533 court adopted California Rule of Court 979, the first rule governing (or mentioning) depublication. [FN83] Until then, although the court was depublishing more cases than it was deciding by opinion, [FN84] it had no rule stating who could apply to have an opinion depublished, or how or when to apply, or even acknowledging the procedure's existence. Rule 979, titled 'Requesting Depublication of Published Opinions,' does acknowledge depublication -- bravely calling it that [FN85] -- and lays out procedures for asking the court to take such action. [FN86] Critical here is Rule 979(e), which states: An order of the Supreme Court directing depublication of an opinion in the Official Reports shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion. [FN87] This bland and convoluted language, if taken literally, packed dynamite. Under the traditional understanding of depublication, after all, it had been thought that a depublication order was precisely an expression of opinion by the supreme court regarding the correctness of the result reached or the opinion produced by the court of appeal. The question thus presented itself whether Rule 979(e) should be taken seriously -- whether the rule meant what it said. As the first step in answering this question, one might look for any light shed by the 'legislative history' of the rule. So far as appeared, however, there was no legislative history. Rule 979 was adopted in mysterious fashion, doing full honor to the tradition of secrecy that has always surrounded depublication. The rule appeared to spring full-blown from the brow of the supreme court. Unlike other Rules of Court, it was not submitted to the Judicial Council, put out for public comment, or otherwise made known by the court prior to its *534 adoption. Indeed, it was not publicly announced until one day after it had gone into effect. [FN88] It turns out, however, that Rule 979 had a distinct legislative history, an unusual one that is quite helpful in interpreting Rule 979(e). (2) The Legislative History of Rule 979 The author of the draft that became Rule 979 was Howard C. Cohen, a staff attorney with Appellate Defenders, Inc., in San Diego. Mr. Cohen says he was prompted to draft a depublication rule for the supreme court when an appellate opinion favorable to his office was depublished on his opponent's request and without notice to him that such a request had been made. [FN89] Offended by the lack of notice, and observing that the supreme court had no rule requiring notice or otherwise governing requests for depublication, Mr. Cohen sat down and drafted such a rule for the court. [FN90] He submitted his draft to the Appellate Court Committee of the San Diego County Bar Association. The draft contained, along with procedures for requesting and opposing depublication, essentially the language now in Rule 979(e), stating that depublication 'shall not be deemed an expression of opinion of the Supreme Court . . . .' [FN91] The discussion in the Appellate Court Committee focused on this provision. ' Much of the discussion went to the 'precedential' effect, if any, *535 to be accorded a depublication,' Mr. Cohen writes. [FN92] His original intent in drafting the provision was 'to mirror subdivision (c) of Rule 978,' which states that a supreme court order directing publication of a court of appeal opinion 'shall not be deemed an expression of opinion of the Supreme Court of the correctness of the result reached by the decision or of any of the law set forth in the opinion.' [FN93] Mr. Cohen also had in mind that 'there could be various reasons why the Supreme Court would depublish an opinion,' such as 'undesired, gratuitous dictum'; and that observers might be 'unable to divine which issue(s) in a multiple issue case caused the Supreme Court's action.' [FN94] A final reason behind his formulation of Rule 979(e), Mr. Cohen says, was that 'the impact of depublication was suspect given People v. Cruz . . . and what followed.' [FN95] He then relates the story, already recounted here, of how the decision in People v. Cruz, relying on depublication orders (and favoring Mr. Cohen's clients), was undone in In re Huffman by the supreme court's agreement with the depublished opinions. [FN96] The Appellate Court Committee, after its discussion, approved Mr. Cohen's proposed rule as drafted. The Committee then, on May 15, 1990, sent the draft to Chief Justice Malcolm M. Lucas of the California Supreme Court and requested that the court adopt the rule. [FN97] The Committee's letter to the Chief Justice devoted a paragraph to the proposed Rule 979(e), disclosing a difference of views within the committee: The majority of our Committee thought this provision, paralleling a similar provision on publication, was a good idea, and was necessary to prohibit erroneous inferences from being drawn. Several Committee members expressed concerns about whether or not this aspect of the rule reflected actual practice and whether or not the rule might be construed as limiting comment on what depublication might mean. [FN98] The rest is known. Six weeks later the court, acting without public notice or comment, adopted Rule 979, substantially in the form drafted by Mr. Cohen and submitted by the Appellate Court Committee. [FN99] *536 If the supreme court shared any of the Committee's disagreement over proposed Rule 979(e), this was not evident either in its action or in the text of the rule as adopted. In a letter of thanks to the Appellate Court Committee dated June 29, 1990, the supreme court's clerk enclosed the new Rule 979, 'adopted by the Supreme Court at its conference last Wednesday,' and stated: 'The proposed rule included with your letter was of considerable help to the Court. ' [FN100] (3) The Puzzle of Rule 979(e) Rule 979(e) at first was a puzzle, a launching pad for diametrically opposed reactions. Since a literal reading of the rule contradicted what almost everyone had understood about the meaning of depublication, one reaction was to refuse to take the rule seriously -- to dismiss it as meaningless verbiage, or a mistake by the court, or a preposterous denial of what everyone knew. Professor Kelso takes *537 this stance in declaring, 'This rule simply is not credible.' [FN101] Alternatively, one could take the rule at face value. On this view, the supreme court may well have an opinion about the correctness of a depublished case, but the rule means what it says in declaring that the depublication order 'shall not be deemed' [FN102] an expression of opinion by the court. On the question discussed by the Appellate Court Committee in San Diego -- 'the 'precedential' effect, if any, to be accorded a depublication' [FN103] -- the answer is none. A depublication order has no 'affirmative' effect as a 'signal,' a 'message,' or 'guidance' from the supreme court. It has only the 'negative' effect, under Rule 977(a), of eliminating the court of appeal opinion as one that may be 'cited' or 'relied on.' Lower courts thus remain free to replicate both the result and the reasoning of a depublished opinion, as long as they do so without giving the opinion any precedential weight -- that is, without 'citing' or 'relying on' it. The legislative history, we now know, tends to support the latter view of the rule. The language of Rule 979(e) was drafted by Mr. Cohen to effectuate this view. The issue was debated in the Appellate Court Committee, with this view upheld, and was flagged for the supreme court. [FN104] The rule's literal meaning was its intended meaning. (4) Rule 979(e) in the Courts of Appeal The courts of appeal, in reaction to Rule 979(e), began splitting into the two interpretive camps. Thus in People v. Dee, [FN105] decided a month after Rule 979(e) was adopted, the supreme court once again had depublished one line of court of appeal opinions and left the opposing line standing. The court of appeal concluded that 'the message from the Supreme Court is obvious ' -- the depublished opinions were wrong and the opposing ones correct. [FN106] Confronting Rule 979(e), the court said first that since these depublication orders predated the rule, it did not apply to them. Second, 'given the manner in which the Supreme Court has dealt' with the two lines of cases, 'to insist that those depublication orders are without significance would be to perpetuate a myth.' [FN107] In short, the court rejected the rule. [FN108] *538 From the other camp came People v. McClanahan. [FN109] The court there faced a similar split, with the supreme court having depublished 'at least two' cases going one way and having left on the books two opposing precedents. [FN110] Although 'acutely aware' of the depublications, [FN111] the court refused to follow the two published decisions and agreed with the depublished ones. [FN112] It explained: 'Following the command of California Rules of Court, rule 979(e), . . . we cannot consider the depublication orders as 'an expression of opinion of the Supreme Court . . . .' ' [FN113] When the supreme court granted review of McClanahan, a traditionalist might have expected the court to chastise the court of appeal for not getting the 'message' that the court found something 'wrong' with the depublished opinions. Instead the supreme court affirmed, itself agreeing with the depublished opinions. [FN114] The court did not, as it had in Huffman, acknowledge that it had depublished cases with which it was now agreeing. [FN115] Nor did the court refer to the depublished cases, as did the court of appeal in McClanahan. The court in no way acknowledged the existence of the decisions it was following. As the law stood in early 1993, then, the courts of appeal were split on the meaning of Rule 979(e). I argued at the time that the second camp would and should prevail. [FN116] This was both because of the implications of McClanahan -- I could have added Huffman and Turner -- and, more important, because Rule 979(e) was clear and should be read to mean what it said. [FN117] (I could have pointed as well *539 to the legislative history of the rule.) The supreme court, however, had not yet said anything about Rule 979(e). F.People v. Saunders: Rule 979(e) Confirmed In People v. Saunders, [FN118] the court spoke. Decided July 1, 1993, Saunders involved the curious but recurring situation where, after a guilty verdict, the trial judge mistakenly discharges the jury before it can consider the truth of prior convictions alleged for the purpose of enhancing the punishment. The court held, five to two, that by failing to object to the jury's discharge the defendant had waived his statutory right to have the priors considered by that jury. [FN119] The court further held that impaneling a new jury to hear the priors did not put the defendant in double jeopardy under either the United States or the California constitutions. [FN120] Again there were two opposing lines of court of appeal opinions, one published and one depublished. The story started with People v. Wojahn, [FN121] holding that double jeopardy barred trial of the priors after the first jury was discharged. Two subsequent cases, People v. Laury [FN122] and People v. Casillas (in a plurality opinion), [FN123] disagreed with Wojahn. A third case, People v. Hockersmith, [FN124] agreed with Wojahn. The supreme court, acting on a single day in 1990, denied review of Hockersmith and depublished both Laury and Casillas. [FN125] These judicial tracks previously had been studied by the court of appeal in People v. Dee. [FN126] That court observed that the supreme court's actions had left Hockersmith as 'the only published post*540 -Wojahn 'opinion.' [FN127] It thus concluded: 'the message from the supreme court is obvious: Hockersmith and Wojahn were correct, and Laury and the plurality in Casillas were wrong. There is no other fathomable reason for the Supreme Court's action.' [FN128] As for Rule 979(e), the court in Dee, as already noted, held first that the rule did not apply 'retroactively' and, second, that 'to insist that those depublication orders are without significance would be to perpetuate a myth.' [FN129] In Saunders, the supreme court perpetuated that myth. The court held that Wojahn was wrong -- that double jeopardy did not bar impaneling a new jury to hear the priors. [FN130] It further held that although the defendant had a statutory right to have the first jury hear the priors, he had waived that right by not objecting to the jury's discharge. [FN131] The court thus was compelled, in the face of a dissent by Justice Joyce Kennard, to confront its depublications of Laury and Casillas and hence the meaning of depublication under Rule 979(e). Justice Kennard launched the debate. While expressing no opinion on the merits of the double jeopardy issue, [FN132] she disagreed with the majority's decision of the statutory-waiver issue and, in addition, with its 'retroactive' application of that decision. [FN133] Justice Kennard argued that the court, despite its present rejection of Wojahn's double jeopardy holding, had 'consistently endorsed' that holding by its depublications of Laury and Casillas and its denial of review in Hockersmith. [FN134] And since Wojahn and its progeny did not require that the defense object to the jury's discharge in order to assert the double jeopardy claim, she thought it unfair for the court to apply retroactively its 'new rule' requiring such an objection. [FN135] *541 Ironically, the principal case Justice Kennard cited for this claim of justified reliance on pre-existing law was Turner. [FN136] While Justice Kennard was claiming justified reliance on depublication orders, the court in Turner upheld a claim of justified reliance on depublished opinions, the opposite of depublication orders. [FN137] Both kinds of reliance, however, would seem to violate Rules of Court, as a subsequent discussion will develop. [FN138] In support of her position in Saunders, Justice Kennard endorsed the view of depublication taken by the court of appeal in Dee. The supreme court's depublications and denials of review following Wojahn 'cannot simply be dismissed as meaningless,' she wrote. [FN139] She then quoted the statement of the court in Dee about 'perpetuating a myth.' [FN140] The Saunders majority, in reply, said Justice Kennard erred in concluding 'that by denying review in some cases and ordering depublication of the opinions in others, this court 'endorsed' the decision in Wojahn.' [FN141] Denials of review are not expressions of opinion on the merits, the court said. [FN142] It continued: 'Consistently with the foregoing principles, rule 979(e) of the California Rules of Court, adopted in 1990, declares . . . .' [FN143] -- whereupon the court quoted the rule. [FN144] 'In any event,' the court continued, ' Wojahn was based entirely on double jeopardy principles.' [FN145] Hence the defendant in Saunders could not be deemed to have relied on Wojahn in failing to assert his statutory right by objecting to the jury's discharge. [FN146] While the Saunders majority and Justice Kennard thus took opposing views of the meaning of depublication -- the other dissenter, Justice Stanley Mosk, stayed out of this fray -- one suspects that something *542 else was going on as well. As had been true in the courts of appeal, [FN147] the justices' views on depublication appeared to be driven, at least in part, by their views on the merits of the case before them. This suspicion is heightened by the rather perfunctory tone in which both sides made their depublication arguments. The majority, after denying that the court had 'endorsed' Wojahn, simply quoted Rule 979(e), without saying anything in its own words -- and passed immediately to another argument, prefaced by 'in any event.' [FN148] Justice Kennard did not herself confront Rule 979(e), but simply quoted what the Dee court said about it. [FN149] Nonetheless, the justices on both sides would seem to be committed now to the views on depublication they expressed in Saunders. Justice Kennard, having found significance in the court's record of depublishing cases going one way and denying review of a case going the other way, cannot very well claim that depublication is without significance. The majority, having quoted Rule 979(e) to show the error of Justice Kennard's approach, cannot very well deny that the rule means what it says, or argue that a depublication order sends a 'message' or provides 'guidance' from the court. And the majority makes the law. Thus the court is now committed to the 'narrow' view of depublication -- the 'face value' reading of Rule 979(e) -- that it embraced in Saunders. This is especially so because other indications from the court point in the same direction. There is the holding of Turner, which found the trial counsel justified in relying on depublished cases. [FN150] There is the language and also the legislative history of Rule 979(e) itself. [FN151] And there are now at least three cases -- Huffman, McClanahan, and Saunders [FN152] -- in which the court ultimately has agreed with opinions it had depublished and disagreed with opposing opinions it had left on the books. The court thus not only has said that depublication *543 shall not be deemed an expression of opinion by the court; it has put its judicial power where its mouth is. G. The Effect of Depublication Under Rule 979(e) and Saunders (1) The Depublication Order as a Precedent Given Rule 979(e) and its confirmation in Saunders, depublication now would appear to have a meaning and effect quite different from what was originally the case. Depublication evidently was conceived to let the supreme court quickly and easily -- without expending the time and effort needed to review a case and decide it -- give 'guidance' to the lower courts and steer them away from error. [FN153] Depublication provided that guidance, not just by erasing the depublished opinion as a citable precedent, but also by making an affirmative statement that functioned as a sort of opposing precedent. When Justice Grodin explained that the court considered a depublished opinion to be 'wrong in some significant way,' and to stand for 'what the court considers the law is not,' [FN154] he was describing not only the court's motivation for depublishing the opinion, but also a message the court was conveying to the lower courts and lawyers of California. The message was to steer away from that opinion. As Justice Donald King wrote for the court of appeal in Dee: 'It is hardly unprecedented for the Courts of Appeal to seek implicit guidance from denial of review and depublication; we have just not been very candid about doing so. . . . Perhaps the time has come for a bit more candor.' [FN155] That time did not come. Dee was disapproved in Saunders. [FN156] In the wake of Rule 979(e) and Saunders, depublication no longer provides lower courts with 'guidance' by way of an affirmative precedent opposed to the depublished opinion. The rule states squarely that a depublication order 'shall not be deemed an expression of opinion of the Supreme Court . . . '; Saunders holds that the rule means what it says; and the supreme court has put teeth in the rule by three times vindicating depublished opinions over ones it had left standing. Lawyers and lower courts now have that 'message' from the supreme court. Lawyers, to be sure, have a duty to study trends in the law and to attempt to anticipate the decisions of the courts. A Rule of Court that told lawyers they could not, in their own minds, 'deem' a depublication *544 order an expression of opinion by the supreme court -- though the order might in fact express such an opinion -- would be not only an effort at thought control, but a command that lawyers not do their job. Lawyers hardly would, and hardly should, obey such an edict. Rule 979(e) thus will not prevent lawyers from continuing to study both depublication orders and depublished opinions in order to anticipate court decisions. What they will learn from such study, however, is not what they once would have learned. Lawyers who read a depublication order in the traditional way, as 'guidance' on what 'the law is not,' may find that they are wrong, even in the supreme court itself. That is what the lawyers in Huffman, McClanahan, and Saunders would have found. In the lower courts, moreover, Rule 979(e) has a stronger effect. While lawyers are obliged for the sake of their clients to try to anticipate court decisions, lower-court judges have no business trying to anticipate decisions of the supreme court on grounds the supreme court tells them to ignore. While they might reduce their reversal rates (or depublication rates) that way, that is not a legitimate endeavor for judges when it flouts the supreme court's instructions and a Rule of Court. Lower-court judges thus have a duty to obey Rule 979(e) and to decline to treat a depublication order as an expression of opinion by the supreme court. And then, this becomes the judicial behavior that lawyers should anticipate from the lower courts. In predicting the decisions of those courts, the opinion actually held by the supreme court about the merits of a depublished case should in fact be irrelevant. Now that the lower courts have the supreme court's command not to regard depublication orders as precedents, and hence its blessing to replicate depublished opinions (as long as they do so without citing or relying on those opinions), lawyers must assume that depublication no longer discredits an opinion. With the scarlet 'D' removed, both the result and the reasoning of a depublished opinion may rise again in a court that finds them persuasive. The depublication order thus no longer has any affirmative precedential effect. Its only proper effect is the 'negative' one of eliminating the depublished opinion as a citable precedent. The next question is what that effect amounts to. (2) Elimination of the Depublished Opinion As a Citable Precedent By virtue of Rule 979(e), then, depublication does no more than render the opinion 'unpublished' and thus bring it under Rule 977(a), which provides that an unpublished opinion 'shall not be cited or relied on' *545 on' by a court or party in any other case (subject to exceptions not pertinent here). [FN157] Courts may in fact be 'citing' or 'relying on' depublished opinions, but let us put that off for a moment. [FN158] Here we take Rule 977(a) at face value and consider what, exactly, is the impact of depublication if it does prevent the depublished opinion from being cited or relied on. What does the supreme court achieve by depublishing the opinion, as compared with leaving it on the books? Eliminating the 'erroneous' [FN159] opinion as a citable precedent has differing impacts on trial courts and the courts of appeal. The clearest impact is on trial courts: They are not bound by the opinion, as they would have been if it had remained published (provided there was no published appellate opinion going the other way). [FN160] But even this impact is limited, in two ways. First, the trial courts would have been bound only by 'erroneous' holding in the published opinion, not by dictum. [FN161] The late Chief Justice Wright and Justice Grodin both have said that the court in depublishing a case usually agrees with the result and disagrees only with some language or reasoning in the opinion. [FN162] The 'error,' then, might well be dictum, which would not have bound the trial courts anyway. Second, even when the error was in holding, it would have bound trial courts only if there was no published appellate opinion going the other way, [FN163] and only until there was such an opinion. If the first appellate opinion indeed was 'erroneous,' an appellate opinion going the other way might well have come into existence *546 as soon as a trial court decision following the first opinion was appealed. For the courts of appeal, depublication eliminates as a citable precedent an opinion they were not bound to follow anyway. [FN164] To be sure, courts of appeal would have been more likely to follow the published opinion than they are to replicate it once it is depublished. This might be true for two reasons. First, the published opinion would have been an 'official' precedent, though not a binding one -- and the depublished opinion is something less. Second, since the depublished opinion may not be 'cited or relied on,' that opinion, in theory, is less likely to come to a court's attention than if it had remained published. The first reason is weakened under the regime of Rule 979(e) and Saunders; the difference in precedential effect between published and depublished opinions is reduced. It is not easy to define the 'precedential effect' of a published California court of appeal decision for other California courts of appeal -- the effect of a full-fledged, or 'official,' precedent that nonetheless may freely be rejected. At the most, there is a sort of rebuttable presumption that another court of appeal will follow the decision (absent a published decision the other way). [FN165] At the least, the decision will be followed only by a court that finds it persuasive, so there is no precedential effect. [FN166] *547 Depublished opinions, meanwhile, are not 'official' precedents, but no longer are they discredited, either. Courts of appeal now have a green light to reach the same result and employ the same reasoning as a depublished opinion, as long as they do so without citing or relying on that opinion. (The same is true for trial courts, unless there is a published appellate opinion going the other way.) The depublished opinion, moreover, is in fact a precedent. Judges trained and functioning in a system of stare decisis have an ingrained inclination to follow precedent. [FN167] It therefore seems that, when there is no published appellate opinion opposing the depublished one, the depublished one is more likely than not to be 'followed.' It would be less likely than a published opinion, but still more likely than not. And when there is a published appellate opinion opposing the depublished one, courts of appeal -- given their traditional independence and taking account of Huffman, McClanahan, and Saunders -- seem less likely to defer to the published opinion than to make their own decision on the merits between the opposing precedents. In sum, the effect of denying the depublished opinion the status of an 'official' precedent retains some force, but probably not very much. [FN168] *548 The second possible 'negative' effect of depublication rests on Rule 977(a)'s mandate that a depublished opinion not be 'cited' or 'relied on.' The theory would be that the opinion is therefore less likely to come to the attention of a subsequent court and hence to be capable of influencing that court. Consideration of this effect raises questions of what it means today to 'cite' or 'rely on' a judicial opinion, and of how well Rule 977(a) is being obeyed. It turns out that just as the California Supreme Court has been changing the meaning and effect of depublication through actions such as Huffman, McClanahan, Rule 979(e), and Saunders, so too the court has been subverting the rule against 'citing' or 'relying on' depublished opinions, and thereby further weakening the force of depublication. That is the next topic. II. Erosion of the Rule Against 'Citing' or 'Relying On' Depublished Opinions A. Introduction: Declaring Judicial Opinions 'Unpublished' and Banning Their 'Citation' In a system of law based on precedent, rules declaring some judicial opinions 'unpublished' and prohibiting their 'citation' have always been problematic. [FN169] These opinions, and the decisions they explain, in fact are precedents. Declaring them not to be citable precedents prevents lawyers from making their own best judgments about relevant precedents and thus constrains the natural development of the law. Systems of nonpublication also have been thought, as Professor Kelso notes, [FN170] to bestow an unfair advantage on litigants who possess the resources to collect and study unpublished opinions so as to exploit, sub silentio, their status as actual precedents. Depublished opinions form a small and select subgroup of unpublished opinions, representing about one percent of the total [FN171] and *549 possessing special importance and visibility. Depublished opinions are set apart from other unpublished opinions by these traits: (1) They are important, as attested by the court of appeal in certifying them for publication in the Official Reports under the standards of Rule 976; [FN172] (2) They were published originally in the Official Reports, or at least the advance sheets of those Reports; they thus carry a Cal. App. citation (which is permanent), [FN173] and in addition they are published (permanently) in the unofficial California Reporter and are permanently available in Lexis and Westlaw; (3) They have been the subject of a public judicial action by the California Supreme Court -- a depublication order that is reported in the court's Minutes and hence in the advance sheets of the official California Reports, and that includes the Cal. App. citation for the depublished opinion. [FN174] Depublished opinions always have been accessible to judges and lawyers, but with obstacles thrown into the path. Thus, the supreme court's depublication order is reported only in the advance sheets of the Official Reports. And since the Cal. App. citation included in that order used to be good only for the advance sheets of the California Appellate Reports, it used to be necessary to translate that cite into the Cal. Rptr. citation -- or to unearth the Cal. App. advance sheets -- in order to obtain the depublished opinion. With today's methods of computer-based legal research, all such obstacles are bypassed. The California Appellate Reports version of *550 the depublished case, along with the Cal. App. citation that identifies it, is available permanently in Lexis and Westlaw. It is retrievable by the Cal. App. citation, as well as by the case name or docket number and by citations to the California Reporter and to Lexis's and Westlaw's own reporting systems, in addition to other routes. [FN175] Depublished opinions also are readily available today without benefit of computer. The supreme court's depublication orders can be found by date of depublication in either of California's daily opinion reporting services, which are delivered as supplements to daily legal newspapers. [FN176] The reports in these services not only include the Cal. App. citation given by the supreme court, but often are accompanied by summaries or texts of the depublished opinions provided by the reporting service. [FN177] With the aid of these techniques, depublished opinions today are a regular subject of appellate legal research. As one practitioner has written: 'No appellate lawyer worthy of the name would think of submitting a brief on an issue of any significance without reviewing the depublished cases as well as the published ones.' [FN178] The same is true, no doubt, of judges and judicial research attorneys worthy of the name. The increased accessibility of depublished opinions may relieve any unfairness based on the differing resources of litigants, but it puts new pressure on the tenets of the depublication system holding that these opinions are 'unpublished' and may not be 'cited.' When depublished opinions are readily and permanently available in Lexis and Westlaw, as well as in the California Reporter, there remains only a narrow and artificial sense in which they are 'unpublished.' Indeed *551 there is only one place, the bound volumes of the California Appellate Reports, where these opinions are not published. To call them 'unpublished' becomes a fiction. The weight of the policy refusing to treat these opinions as precedents shifts, then, to the mandate that the opinions not be 'cited.' The new methods of legal research, however, have also affected what it means to 'cite' a case. Two meanings may be distinguished. To 'cite' a case may mean broadly to name the case and give numbers, dates, or other identifying indicia by which the case can readily be found in a legal reporting system. To 'cite' a case may also mean, more narrowly, to name the case and give volume and page numbers, or some other numerically designated location, where the case can readily be found in a legal reporting system, especially in a traditional, book-bound reporter such as the California Appellate Reports or the California Reporter. It used to be that the two meanings coalesced. Virtually the only place to find a case was in the traditional book-bound reporters, and virtually the only way to find it there was by volume and page number. (Thus there was a linkage, as well, between decreeing that depublished opinions not appear in the Official Reports and prohibiting their citation.) Today, the two meanings may diverge. It is far from clear that a case is not being 'cited' unless one gives volume and page numbers or some other numerically designated location in a reporting system. If a case can be found quickly in Lexis or Westlaw by its name and docket number, for example, it may be that giving that information constitutes 'citing' the case. This is likely to depend, of course, on the purpose behind the rule that prohibits 'citing' the case. The divergence of meanings invites attempts to have it both ways. One can give enough information about a depublished case to achieve the purposes normally gained by citing a case, and yet maintain that because one did not give the volume and page number in Cal. App. or Cal. Rptr., one did not 'cite' the case in violation of Rule 977(a). This is what the California Supreme Court, and courts of appeal as well, increasingly appear to be doing. If depublished cases can be effectively 'cited,' the weight of the depublication system shifts again, coming to bear on the remaining dictate that such cases not be 'relied on.' But what it means to 'rely on' a case also comes into question. And again the supreme court, and courts of appeal as well, appear to be doing what the rule forbids. Lawyers, however, presumably still feel some inhibition about violating *552 a Rule of Court. Hence problems of consistency and moral authority are presented. The following discussion reviews how the supreme court and some courts of appeal have been handling Rule 977(a)'s ban on 'citing' or 'relying on' depublished opinions. It also considers what those terms properly mean in this context and appraises the current status of Rule 977(a), along with the implications of that status for the practice of depublication. B. The Deteriorating Authority of Rule 977(a) (1) In re Huffman In In re Huffman, [FN179] the supreme court in 1986 was still respectful of Rule 977(a). In agreeing with appellate opinions it had depublished and disapproving ones it had left standing ( Jobinger and its progeny), the court did not cite the depublished cases, even by name. It said only: 'We ordered that several Court of Appeal decisions which disagreed with Jobinger not be published.' [FN180] (2)People v. Turner In People v. Turner, [FN181] in 1990, the court largely shed those scruples. The court held that trial counsel was justified in failing to object to admission of the impeachment priors in view of the result that had been reached at the time of the trial by the all but one 'originally published' -- that is, depublished -- court of appeal decisions. [FN182] And in Footnote Seventeen the court first gave the name (and 'Cal. App.' designation) of each of those decisions, and then called in its Reporter of Decisions to add the court of appeal docket number and date of depublication. [FN183] Neither tier of the footnote gives a Cal. App. or Cal. Rptr. citation for any of the depublished opinions, an omission presumably designed to preserve the claim that those opinions were not being 'cited.' But the court's masquerade of letting its Reporter do the job -- as if he were not the court's employee, and his action not the court's action -- suggests that the court had qualms (or a guilty conscience) about whether the information provided in the toenote *553 really was consistent with the rule. We now examine whether such qualms were justified. (3)Turner and the Meaning of 'Citing' a Case Thanks to computerized legal research, the information given in Turner's Footnote Seventeen enables the reader to find each of the seven depublished cases easily. One can go to Lexis's CAL library, APP file, for example, and do a search using either the case's name or its docket number (Lexis's 'number' segment), or both combined; or one can use the case name combined with the date of subsequent supreme court action. One or more of these searches produces each of the seven cases. [FN184] Without a computer, moreover, one can use the date of depublication to find the depublication orders, and hence citations to the depublished opinions, in the daily opinion reporting services or the supreme court's Minutes. Did the court in Turner 'cite' the depublished cases? Most dictionary definitions of 'cite' or 'citation,' in the context of reference to legal authority, do not require anything very specific. The relevant definition of the verb 'to cite' in Black's Law Dictionary requires only that one 'refer' to a legal authority, or 'name' or 'mention' it, in support of some proposition: To read or refer to legal authorities, in an argument to a court or elsewhere, in support of propositions of law sought to be established. *554 To name in citation. To mention in support, illustration or proof of. [FN185] The American Heritage Dictionary requires only a 'reference': ' Law. A reference to previous court decisions or authoritative writings.' [FN186] More specific is David Mellinkoff's Dictionary of American Legal Usage, which gives two definitions for 'citation of authority': (1) 'written or oral presentation of legal and other materials supporting a lawyer's argument to a court'; and (2) 'the formalized legal reference to an authority and the place where it can be found, as, e.g., a case, United States v. Owens, 484 U.S. 554 (1988).' [FN187] Mellinkoff's second definition comes closest to supporting the position that the supreme court was not 'citing' the cases when it gave their names, docket numbers, and dates of depublication. Presumably two arguments would be made under this definition: that the court's statement was not a 'formalized legal reference,' and that it was not a reference to 'the place where the case can be found.' A legal reference can be 'formalized,' however, without giving volume and page numbers in a case reporter. The identification of the first case in Turner's toenote -- ' People v. Rangel (4 Crim. 14993), opinion deleted upon direction of Supreme Court by order dated June 14, 1984' [FN188] -- would seem formalized enough, whether by virtue of the docket number, the date of depublication, or the overall style. The second argument perhaps makes a stronger case linguistically for the proposition that the supreme court was not 'citing' the cases. One could argue that the traditional volume-and-page citation gives a 'place where the case can be found,' and that a citation to Lexis's own reporting system would do so as well, but that this test is not met simply by giving information that makes it easy to find the case in Lexis, since without a mention of Lexis itself there is no reference to 'the place where the case can be found.' An equally literal reply might be that the information in Turner meets the 'place' test by virtue of the court of appeal docket number, which gives the court of appeal docket as a 'place where the case can be found.' Or it might be said that the test is met by the 'Cal. App.' designation (in Footnote Seventeen's top tier), which identifies the file of California appellate *555 cases in Lexis or Westlaw as a 'place where the case can be found.' But surely such literalism should not be the final word. The purpose of Rule 977(a)'s ban on 'citing' unpublished cases is to prevent those cases from being used as precedents, and to this end to prevent them from being considered by subsequent courts. These purposes are defeated, one would think, any time that a court (or a lawyer) gives the name of a depublished case and sufficient identifying characteristics to find the case readily. This functional approach seems consistent with the first meanings given in each of the three dictionaries -- meanings that require only a 'reference' to the legal authorities or a 'presentation' of them. [FN189] As long as it is clear to the lawyers and the court which cases are being referred to, and as long as those cases can readily be found, the precise form or manner by which the cases are identified and found does not seem important. The supreme court's purpose in having its Reporter supply the information in the Turner toenote presumably was, precisely, to enable the court's audience to find the depublished cases that the court had named. The information thus served the purpose of 'citing' those cases -- as the court appears to have acknowledged by hiding behind its Reporter. The purpose of the rule against 'citing' depublished cases intermeshes with Rule 977(a)'s other prohibition, against 'relying on' such cases. Cases are not to be cited so that they may not be used as precedents -- that is, relied on. This intermeshing is seen in the dictionary definitions of 'cite' that include the notion of use 'in support' of a legal proposition or argument. [FN190] The intermeshing was seen as well in Turner. Whether or not the court in Turner was 'citing' the depublished opinions, it would seem to have been 'relying on' them. It was relying on them not to establish the present law, but to establish the law as it would have appeared to a competent trial attorney at the time of Turner's trial. [FN191] As the court stated, that attorney 'could well have surmised' that any objection to admission of the prior felonies would be futile, because 'all but *556 one originally published Court of Appeal decision addressing the issue had so concluded. ' [FN192] In so stating, the court would seem to have been 'relying on' those court of appeal decisions. No reason appears why reliance on depublished cases to establish how the law would have appeared in the past, and hence to establish the legal proposition that a lawyer's conduct was justified, is not reliance on depublished cases, in violation of Rule 977(a). [FN193] Turner thus occupies an important place in the history of depublication. It appears to have been the first case in which the California Supreme Court 'cited' depublished cases. [FN194] Further, the court in Turner also appears to have violated the other prohibition of Rule 977(a) by 'relying on' depublished cases. The undoing of Rule 977(a) had begun. [FN195] *557 (4)People v. Saunders and the Contest Between Depublished Opinions and Depublication Orders In People v. Saunders, [FN196] Justice Kennard argued in dissent that the supreme court's depublication of two cases contrary to People v. Wojahn, while letting Wojahn and a case following it stand, justified counsel's reliance on Wojahn in failing to object to discharge of the first jury. [FN197] In making this argument Justice Kennard referred to the two depublished cases by name, 'Cal. App.' designation, and docket number; she also gave the date of depublication. [FN198] While this was the same information the court had given in Turner, Justice Kennard did it in her own voice, instead of using the Reporter of Decisions as ventriloquist's dummy. (The court itself in Saunders, while arguing that Justice Kennard was wrong in relying on the depublication orders, did not cite or name the depublished cases.) [FN199] While Justice Kennard in Saunders would seem to have 'cited' depublished opinions, she did not also 'rely on' them, as the court had in Turner. She relied, rather, on the depublication orders. To cite or rely on depublication orders appears not to violate Rule 977(a), which only bars citing or relying on 'an opinion that is not ordered published.' [FN200] The depublication order, after all, is the antithesis of the depublished opinion. But relying on a depublication order does seem to violate Rule 979(e), since it involves treating the depublication order as an expression of opinion by the supreme court (concerning the correctness of the depublished opinion). Thus, Rule 977(a) bars reliance on a depublished opinion, and Rule 979(e) bars reliance on a depublication order. The supreme court's idea behind this apparent stand-off may be that the depublished case simply washes out, leaving neither an opinion nor a depublication order to influence the subsequent development of the law. That result, however, seems unlikely, since the two rules are not balanced. Rule 979(e) is a substantive command to disregard the depublication order. Rule 977(a) is an instrumental, technical mandate that the depublished opinion not be 'cited' or 'relied on.' Rule 977(a) *558 says nothing about how a court should regard a depublished opinion after learning about it. Since that opinion is in fact a precedent, courts may well be inclined to 'follow' it. As between the depublication order and the depublished opinion, in terms of their likely influence on subsequent decisions, the depublished opinion would seem to have the upper hand. There is a paradox, moreover, lurking in the conclusion that to cite a depublication order does not violate Rule 977(a). That rule indeed only prohibits citing (or relying on) depublished opinions, and the depublication order is the opposite of the depublished opinion. In a practical sense, however, citing the depublication order may subvert Rule 977(a), since the depublication order leads directly to the depublished opinion (through the Cal. App. cite given in the order, among other routes). Underlying this paradox is a fundamental conflict between reality and pretense inherent in the system of depublication. On the one hand, depublished opinions may not be cited; the pretense is that they do not exist. On the other hand, opinions must get depublished somehow, and this happens by an order of the supreme court. It would be impractical and objectionable, for various reasons, to extend the pretense to the supreme court's depublication orders and decree that these, too, may not be cited. But once the depublication orders remain on the record and citable, it becomes harder and harder -- given the new capabilities of legal research -- to maintain the fiction that the objects of those orders, the depublished opinions, do not exist. Citing the depublication orders becomes more and more the functional equivalent of citing the depublished opinions. Reality and pretense do not go easily hand-in-hand. (5)Cynthia D. v. Superior Court Rule 977(a) took another blow from the supreme court in Cynthia D. v. Superior Court, [FN201] decided a month before Saunders in June 1993. Writing for the court, Justice Edward Panelli, in the course of rejecting a constitutional challenge to the statutory framework for terminating parental rights, inserted a footnote stating: 'This analysis is adapted from a concurring opinion by Kline, J., in the Court of Appeal in In re Michaela C * (Cal. App.).' [FN202] Sure enough, Michaela C. *559 had been depublished. [FN203] The court's Reporter of Decisions thus was called in, as in Turner, to attach a toenote at the asterisk, giving Michaela C.'s docket number and date of depublication. [FN204] Asked by a newspaper reporter about this apparent citation of a depublished opinion, Justice Panelli reportedly said that he had checked with the reporter of decisions, who told him it would be all right to cite the concurring opinion. It was the majority opinion, after all, that the high court didn't like. And, Panelli said, 'I didn't want to plagiarize.' [FN205] Justice Panelli's reported remark raises a number of questions. Since a depublication order depublishes all the opinions in a case, concurrences and dissents included, it is not clear what basis there is for reading into Rule 977(a) an exception allowing the citation of depublished concurring opinions. Nor does the rule appear to have an exception for citing depublished opinions in order to avoid plagiarism, a rationale that potentially could cover any use of a prior opinion. Further, it is not clear where the Reporter of Decisions gets the authority *560 to tell a supreme court justice that it is 'all right' to violate a Rule of Court. Finally, if supreme court justices cavalierly disregard a Rule of Court, one wonders what moral authority they have to hold others to those rules. [FN206] (6) The Unraveling of Rule 977(a) in the Courts of Appeal As the supreme court takes increasing liberties with Rule 977(a), the courts of appeal, as one would expect, are joining in. One court of *561 appeal has said as much. In In re Marriage of Padilla, [FN207] involving another clash between lines of appellate authority -- on whether concealment of the child by the custodial parent affects enforcement of child support obligations -- the supreme court had recently granted review of a case, In re Marriage of Damico, [FN208] that followed one of the lines. Damico thus was automatically rendered 'unpublished' by virtue of Rule 976(d), [FN209] and hence could not be cited or relied on by virtue of Rule 977(a). [FN210] The court in Padilla noted this prohibition. [FN211] It added, however, that 'two recent opinions from the California Supreme Court ' -- the majority opinion in Cynthia D. and Justice Kennard's dissent in Saunders -- 'have cited unpublished opinions for reasons other than reliance upon them.' [FN212] Thus, the court said, 'the message from the Supreme Court seems to be that unpublished opinions may be cited if they are not 'relied on.'' [FN213] Accordingly, 'we cite Damico not to rely on it, but to highlight the present split of authority and to help elucidate our agreement with the . . . line of cases' that Damico followed. The court proceeded to cite Damico fully, with Cal. App. and Cal. Rptr. citations, thus dropping all pretense of obeying Rule 977(a)'s ban on citation. [FN214] And despite the Padilla court's claim that it was not 'relying on' Damico, its use of that case seems to fit the classic meaning of legal 'reliance.' [FN215] *562 Meanwhile another court of appeal, in Dakin v. Department of Forestry & Fire Protection, [FN216] appears to have relied on a depublished case without citing or even naming it -- a technique well geared to camouflage any violation of Rule 977(a). [FN217] This was reliance to establish past law, as in Turner, but again no reason appears why that is not 'reliance' for the purpose of Rule 977(a). Thus, as the ban on 'citing' depublished opinions more and more is ignored, and the weight of the depublication policy shifts to the rule against 'relying on' those opinions, what it means to 'rely on' a case becomes as slippery and debatable as what it means to 'cite' one. The ban on 'reliance,' too, seems headed for the legal attic. The supreme court has granted review of Marriage of Padilla, apparently to hold it pending decision of Marriage of Damico. [FN218] The Padilla court's declaration that unpublished opinions 'may be cited if *563 they are not 'relied on'' thus itself is now depublished. Courts will be aware of that declaration, however, and may hail its courage and candor. With the supreme court effectively citing depublished opinions, it is only fair that lower courts -- not to mention lawyers -- be allowed to do the same. With the supreme court disdaining to obey a Rule of Court, it is refreshing that a lower court has the courage to say so. C. The Status of Rule 977(a) After reviewing the judicial developments from Turner in 1990 [FN219] to Saunders, [FN220] Cynthia D., [FN221] and Padilla [FN222] in 1993, one can only conclude that Rule 977(a)'s ban on 'citing' or 'relying on' depublished opinions has been substantially undermined. This fact has consequences not only for depublication, but also for the work of California's lower-court judges, judicial research attorneys, and practicing attorneys. It also implicates the moral authority of the California Supreme Court and the judicial system generally. As far as the rule against 'citing' depublished opinions is concerned, the supreme court (or one of its members) in three cases has referred to depublished opinions by name, docket number, and date of depublication. [FN223] If 'citing' a case means naming the case and giving sufficient identifying indicia to find it readily, then the supreme court has been citing depublished cases, in derogation of Rule 977(a). That the court recognizes this is suggested by the way it relies on its Reporter of Decisions to supply the illicit information. The court of appeal in Padilla was calling a spade a spade -- or a cite a cite -- when it took from the supreme court's recent opinions the message that 'unpublished opinions may be cited . . . . ' [FN224] This situation presents a hard dilemma for lawyers. While judges can violate a Rule of Court with impunity, the same is not true of lawyers. They face a real threat of sanctions, or the risk of antagonizing a judge, if they do something that constitutes 'citing' a depublished *564 case in violation of Rule 977(a). A lawyer should have a defense based on doing exactly what the California Supreme Court has been doing, but it may not be either realistic or fair to expect a lawyer to take the chance. The question of 'citing' depublished cases shades into the question of 'relying on' them, inasmuch as a lawyer's primary purpose in citing a case is to have some persuasive impact. Once cases are being cited, the rule against reliance becomes crucial. And the meaning of 'reliance,' no less than the meaning of 'citation,' becomes problematic. For example, is there an exception for relying on depublished cases to establish past rather than present law? That is what the supreme court did in Turner, [FN225] but it is not clear what basis there is for such an exception. The uncertain meaning of 'reliance' puts a high premium on contrivances and evasions. So we have the Padilla court's straight-faced claim: 'We cite Damico not to rely on it, but to highlight the present split of authority and to help elucidate our agreement with the . . . line of cases' that Damico followed. [FN226] And we have the Dakin court's reliance on a case without citing or naming it. [FN227] The rule against 'reliance' is where the lawyer's dilemma really bites. The concept of 'reliance' is more vague and various than that of 'citation,' so the lawyer has less chance to take refuge in doing exactly what the supreme court has done. Yet the lawyer may reasonably think that his client's interest, even his client's life, requires violation of Rule 977(a). Turner, for example, was a death penalty appeal in which appellate counsel could get the court to reach the merits of the Castro issue only by persuading the court either that trial counsel was incompetent -- not an attractive argument -- or that trial counsel was justified in relying on depublished opinions. [FN228] Turner's appellate counsel says he in fact worried about violating the rule and courting sanctions and for that reason 'danced around the issue,' not naming or citing the depublished cases but referring to them indirectly. [FN229] Yet it would seem that he was, nonetheless, relying on them. *565 There is something wrong here. There is something wrong in the first place when the California Supreme Court, and lower courts following its lead, scoff at a Rule of Court. The problem extends beyond disrespect for law, and takes on elements of injustice and hypocrisy, when the rule applies equally to courts and lawyers but does not treat them equally. Judges can violate the rule with impunity. Lawyers are put to the hard choice of risking personal sanctions -- not to speak of betraying a possible respect for the law -- and failing to make an argument that might help their client. The growing subversion of Rule 977(a) poses a problem that will continue to expand, it seems, as long as depublication continues. The heart of the difficulty lies in the inherent contradiction between the existence of depublished opinions and the supreme court's attempt to make those opinions invisible to courts deciding subsequent cases. Depublished opinions are precedents in fact; they are important enough to have been published in the first place; they have figured in judicial action by the state's highest court; and they are readily found by modern methods of legal research. These salient attributes defy any attempt to suppress these opinions, whether by bans on 'citing' them or on 'relying on' them or by any other device. The court is doomed to fail in its effort to make history disappear. D. The Surviving Impact of Depublication in Light of the Decline of Rule 977(a) It remains to reconsider the surviving impact of depublication in light of the decline of Rule 977(a). We had noted that, with depublication orders no longer functioning as quasi-precedents in their own right, depublication has only the 'negative' effect of eliminating the depublished opinion as a published (or 'official') precedent. [FN230] That effect has some impact in shaping the law, but the impact is reduced now that courts of appeal -- and trial courts not bound by opposing precedents -- are free to replicate depublished opinions. We then asked whether depublication also had an impact in shaping the law by making it less likely that the depublished opinion would come to the attention of, and be persuasively argued to, a subsequent court. [FN231] The purpose of Rule 977(a)'s mandate that a depublished case 'shall not be cited or relied on,' after all, presumably was precisely to keep the opinion from influencing a subsequent court. Now that courts may replicate depublished opinions, it is all the more important *566 whether they find out about those opinions and be subjected to arguments based on them. Given the shrunken observance of Rule 977(a), it does not appear that depublication has any appreciable effect in preventing the depublished opinion from coming to the notice of a subsequent court. Depublished opinions are regularly researched by appellate lawyers, and these lawyers have ways of referring to depublished cases even without naming them (witness the brief in Turner). [FN232] Moreover, the supreme court and courts of appeal now are citing depublished cases, or at least referring to them by name, docket number, and date of depublication. This not only shows that those courts are aware of the cases, but suggests that lawyers need not fear sanctions for referring to depublished cases in the same way. It may be less clear that a depublished case will have a full opportunity to influence the court, given Rule 977(a)'s ban against 'relying on' depublished opinions. It is one thing for the court to know about a previous decision; it may be another thing for arguments based on that decision, perhaps creative or subtle arguments, to be pressed on the court by persuasive advocacy. Thus there may be some need for judges and their staffs to take the initiative in researching depublished cases and developing from them arguments that ordinarily could be left to the lawyers to make. [FN233] In most cases, however, competent judges and judicial researchers will see readily enough the implications a previous opinion may have for the case under review. And where there is an ingenious argument to be made, one would think that the lawyer clever enough to make it would also be clever enough to get it into the brief, and to do so in some way that avoids flaunting disrespect for Rule 977(a). Thus, in light of the erosion of the rule against citing or relying on depublished opinions, any remaining effect of depublication in preventing the depublished opinion from coming to the attention of the court, or from influencing the court, would appear to be minimal. Conclusion The traditional understanding of depublication, which viewed a depublication order as a rejection of the court of appeal opinion and a sort of precedent in its own right -- a 'signal' sending 'guidance' to *567 the lower courts -- no longer is tenable. Rule 979(e) cancels that understanding by declaring that a depublication order 'shall not be deemed an expression of opinion of the Supreme Court.' Saunders confirms that the rule means what it says, and the court has put teeth into the rule by three times vindicating opinions it had depublished over opposing ones it had left standing. The result is that depublished opinions no longer bear a scarlet 'D.' Courts of appeal, and trial courts not bound by a published appellate opinion going the other way, have the supreme court's blessing to replicate both the result and the reasoning of a depublished opinion, as long as they do so without 'citing' or 'relying on' that opinion. Depublication thus retains only the 'negative' effect of eliminating the court of appeal opinion as a published precedent. This effect has two possible components. First, since the depublished opinion no longer has the cachet of being an 'official' precedent, courts are less likely to 'follow' it than they would have been if it had remained published. The difference between published and depublished opinions in this respect, however, has been reduced. Depublished opinions are de facto precedents. When there is no published appellate opinion going the other way, the affinity that courts have for precedents may well incline them to exercise the license they now have to replicate the depublished opinion. Even when there is a published appellate opinion opposed to the depublished one, courts are likely now to consider the opposing opinions on their merits, with little if any deference for the published one. In sum, depublished opinions have been upgraded from 'discredited' precedents to ' de facto' precedents; the distance between them and published opinions, or 'official' precedents, has been narrowed. The other component of depublication's 'negative' effect would prevent the depublished opinion from coming to the attention of a subsequent court, and from influencing that court, by the command of Rule 977(a) that such opinions not be 'cited' or 'relied on.' But that command is faltering. The California Supreme Court has been referring to depublished opinions by name, docket number, and date of depublication -- action that looks, walks, and quacks like 'citing' those opinions. The court also seems to have 'relied on' depublished opinions, as courts of appeal seem to have been doing as well. The increasing nonchalance about Rule 977(a), combined with improved methods of legal research, means that there is now little chance -- if there ever was -- that a relevant depublished opinion will escape a *568 court's attention. The surviving effect of depublication therefore is limited to somewhat lessening the likelihood that the opinion will be 'followed' by another court. Since Rule 977(a) by its terms applies equally to courts and litigants (that is, lawyers), the California Supreme Court's disrespect for the rule creates a problem of moral authority. If the supreme court does not obey one of its own Rules of Court, the question arises whether it can expect others to do so -- or can credibly impose any law. The court's conduct produces, among other consequences, a hard dilemma for lawyers. They must choose between risking personal sanctions for 'citing' or 'relying on' a depublished case and failing to make an argument that might help their client. The problem grows because the concept of 'relying on' a case, no less than the concept of 'citing' one, is increasingly fuzzy and subject to evasion. If the California Supreme Court's machine for making law without deciding cases -- its practice of depublication -- appears to be breaking down, key reasons lie in two problems at the heart of depublication. One is the conflict between the conspicuous realities of depublished opinions -- their status as precedents in fact; their importance; their original (and continued) publication; their involvement in judicial action by the supreme court; their easy accessibility in computerized data bases -- and depublication's pretense that these opinions are invisible to other courts. The other problem lies in the difficulty of maintaining a fixed meaning for a practice that consists of an unexplained legal act by a seven-member court. As the supreme court began to agree with cases it had depublished, depublication began to lose its meaning, a process consummated by the adoption of Rule 979(e) and the decision in Saunders. The arbitrary and unarticulated nature of depublication led, fittingly enough, to the official expungement of any meaning from the court's act. Drained of meaning and increasingly hard-pressed to hold back reality, depublication faces a clouded future. This bleak prospect reinforces Professor Kelso's judgment, made on other grounds and shared by other observers, that depublication is 'a practice that should be stopped.' [FN234] Perhaps it is time for the California Supreme Court to heed this counsel. [FNa]. Elizabeth Josselyn Boalt Professor of Law, University of California, Berkeley. I am grateful to Preble Stolz and Robert Berring for expert comments on the manuscript; to Howard Cohen and Dennis Fischer for first-hand dispatches from the appellate trenches; and to Alice Youmans of the Boalt Hall Library for research assistance. [FN1]. J. Clark Kelso, A Report on the California Appellate System, 45 Hastings L.J. 433, 492-96 (1994). The practice is also called, more euphemistically, 'decertification,' a term based on the court of appeal's having initially 'certified' the opinion for publication. See Cal. Ct. R. 976(c)(1). But 'depublication' has always been the more common usage, as well as the more descriptive one. And the new rule of court governing the practice, Rule 979, is titled 'Requesting Depublication of Published Opinions' and uses that term exclusively. See Cal. Ct. R. 979; infra note 99. No other court in this country, or elsewhere, appears to have such a practice. See Stephen R. Barnett, Making Decisions Disappear: Depublication and Stipulated Reversal in the California Supreme Court, 26 Loy. L.A. L. Rev. 1033, 1034-57 (1993). [FN2]. See Julie H. Biggs, Note, Decertification of Appellate Opinions: The Need for Articulated Judicial Reasoning and Certain Precedent in California Law, 50 S. Cal. L. Rev. 1181, 1200 (1977). [FN3]. Kelso, supra note 1, at 496. [FN4]. See Gerald F. Uelmen, Mainstream Justice, Cal. Law. , July 1989, at 36, 40. You couldn't tell that from reading the Annual Report of the Judicial Council of California. That Report, in its 'Judicial Statistics' on the work of the California Supreme Court, continues to ignore depublication. See II Judicial Council of California, 1993 Annual Report 3-14 (1994); infra note 171. [FN5]. The quaint California custom of depublication caught the eye of the national press in October 1993 when the judge at the trial of two men accused of beating Reginald Denny at the start of the 1992 Los Angeles riots dismissed a juror for 'failing to deliberate.' It turned out that there was a 1991 court of appeal decision upholding similar action by a trial judge, but the decision had been depublished. People v. DeJurnett, 231 Cal. App. 3d 1065, 282 Cal. Rptr. 863 (1991), ordered depublished, California Supreme Court Minutes, Sept. 19, 1991, in Cal. Official Rep. (advance sheet), Oct. 19, 1991, at 15. The Wall Street Journal wondered at this 'quirk of California law.' Benjamin A. Holden, Another Juror Dismissed in Denny Trial, Wall St. J. , Oct. 13, 1993, at B5; see also Seth Mydans, Judge Voids Verdicts and Drops 2d Juror in Riot Assault Trial, N.Y. Times , Oct. 13, 1993, at A1 (stating that decision was 'left in legal limbo'). [FN6]. Cal. Ct. R. 976(b), (c)(1). Rule 976(b) declares that a court of appeal opinion may not be published in the Official Reports unless the opinion: establishes a new rule of law or modifies an existing rule; resolves or creates a conflict; involves a noteworthy legal issue; or makes a significant contribution to legal literature. Rule 976(c)(1) provides that a court of appeal opinion shall be published if a majority of the court rendering the opinion certifies that it meets one or more of those standards. [FN7]. Cal. Ct. R. 976(c)(2) ('An opinion certified for publication shall not be published, and an opinion not so certified shall be published, on an order of the Supreme Court to that effect.'). [FN8]. Cal. Ct. R. 977(a). The exceptions apply when the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel, or when it has collateral relevance in a criminal or disciplinary proceeding. Cal. Ct. R. 977(b). [FN9]. Kelso, supra note 1, at 496; see, e.g., Barnett, supra note 1, at 1034-57; Robert S. Gerstein, 'Law by Elimination': Depublication in the California Supreme Court, 67 Judicature 293 (1984); Gerald F. Uelmen, Publication and Depublication of California Court of Appeal Opinions: Is the Eraser Mightier than the Pencil?, 26 Loy. L.A. L. Rev. 1007 (1993). [FN10]. See, e.g., Philip Hager, Supreme Justices Step Cautiously, Unanimously, Toward Era of Reforms, S.F. Daily J. , Jan. 27, 1994, at 1, 8; Jean Guccione & Philip Hager, Summary Dispositions Are Seen as Improvements, S.F. Daily J. , Jan. 27, 1994, at 8. [FN11]. See infra text accompanying notes 26-44, 109-152. [FN12]. Cal. Ct. R. 979(e). [FN13]. 5 Cal. 4th 580, 853 P.2d 1093, 20 Cal. Rptr. 2d 638 (1993). [FN14]. Id. at 592 n.8, 853 P.2d at 1098-99 n.8, 20 Cal. Rptr. 2d at 643- 44 n.8. [FN15]. See infra text accompanying notes 181-205. [FN16]. See Joseph R. Grodin, The Depublication Practice of the California Supreme Court, 72 Cal. L. Rev. 514, 514 (1984). [FN17]. Biggs, supra note 2, at 1185 n.20 (quoting letter dated Nov. 9, 1976, from retired Chief Justice Donald R. Wright). [FN18]. Chief Justice Rose Elizabeth Bird, Remarks Before the Conference of Delegates at the State Bar Convention in San Francisco, California, on Sept. 10, 1978, in Report, L.A. Daily J. , Oct. 6, 1978, at 8 (copy on file with the Hastings Law Journal). Chief Justice Bird observed that while the supreme court cannot control the number of petitions for review filed, it can control the number granted. Id. She continued: And yet, if the Supreme Court is confronted with a petition where the reviewing court has erred, it must take steps to ensure that the Court of Appeal opinion does not create confusion in the decisional law. In an effort to deal with this situation quickly and still fulfill its oversight function, the Supreme Court has come to rely increasingly on the nonpublication rule to decertify a published opinion with which the court does not agree in lieu of accepting the case for hearing. Id. Chief Justice Bird went on to express misgivings about depublication -- averring, for example, that 'reliance on this technique ironically may result in neither of the two functions of the appellate process, justice and predictability, being fulfilled' -- and called it 'a weak instrument by which to ensure that precedent is followed by the appellate courts of this state.' Id. [FN19]. Grodin, supra note 16, at 514-15. Depublication is 'most frequently used,' Justice Grodin added, 'when the court considers the result to be correct ' but disagrees with some of the reasoning, though 'there are times' when the court 'considers the result to be wrong as well.' Id. at 522. [FN20]. Id. [FN21]. Id. [FN22]. Kelso, supra note 1, at 495 n.221. [FN23]. Gerstein, supra note 9, at 297; see also Jerome B. Falk, Jr., Summary Disposition: An Alternative to Supreme Court Depublication, 5 Cal. Litig. 35, 38 (1992) (referring to 'a judgment ... discredited by depublication'). [FN24]. See Bird, supra note 18; Grodin, supra note 16, at 524 (rejecting a proposal that the court give reasons for its decisions to depublish on the ground, in part, that since the court passes on some 150 items at its weekly conference, 'to reach consensus upon a statement of reasons for depublication would be a heroic feat in such a short time'). [FN25]. See Gerald F. Uelmen, Waiting for Thunderclaps, Cal. Law. , June 1993, at 29. [FN26]. 42 Cal. 3d 552, 724 P.2d 475, 229 Cal. Rptr. 789 (1986). [FN27]. Id. at 553-54, 724 P.2d at 475, 229 Cal. Rptr. at 789. [FN28]. 153 Cal. App. 3d 689, 200 Cal. Rptr. 546 (1984). [FN29]. Id. at 691, 200 Cal. Rptr. at 548. [FN30]. 165 Cal. App. 3d 648, 211 Cal. Rptr. 512 (1985). [FN31]. 161 Cal. App. 3d 559, 207 Cal. Rptr. 715 (1984). [FN32]. Cruz, 165 Cal. App. 3d at 652, 211 Cal. Rptr. at 514. [FN33]. Id., 211 Cal. Rptr. at 514. [FN34]. I say 'identified' to avoid a conclusory use of the word 'cited.' A major question in this Comment will be whether references similar to these constitute 'citing' a case within the meaning of Rule 977(a). See infra text accompanying notes 169-178. My avoidance of the word should not be taken to imply that the court was not 'citing' these cases. [FN35]. Cruz, 165 Cal. App. 3d at 652, 211 Cal. Rptr. at 514. The cases were identified in the official California Appellate Reports as follows: ' In re Van Renselaar (Cal. App.) (ordered depublished Oct. 19, 1984); People v. Lovedy (Cal. App.) (ordered depublished Jan 3, 1985); and People v. Abril (Cal. App.) (ordered depublished Feb. 14, 1985).' Cruz, 165 Cal. App. 3d at 652. The unofficial California Reporter added full Cal. App. and Cal. Rptr. citations for each case. Cruz, 211 Cal. Rptr. at 514. [FN36]. Cruz, 165 Cal. App. 3d at 652, 211 Cal. Rptr. at 514. [FN37]. Id. at 655, 211 Cal. Rptr. at 516 (Lewis, J., dissenting). [FN38]. California Supreme Court Minutes, May 16, 1985, in Cal. Official Rep. (advance sheet), June 20, 1985, at 32. [FN39]. California Supreme Court Minutes, July 11, 1985, in Cal. Official Rep. (advance sheet), Aug. 13, 1985, at 9. [FN40]. 42 Cal. 3d at 554, 724 P.2d at 475, 229 Cal. Rptr. at 789. [FN41]. Id. at 559-61, 724 P.2d at 480, 229 Cal. Rptr. at 793-94. [FN42]. Id. at 560 n.6, 724 P.2d at 480 n.6, 229 Cal. Rptr. at 794 n.6. [FN43]. Telephone Interview with Howard C. Cohen, Esq., Appellate Defenders, Inc., San Diego (Jan. 11, 1994). [FN44]. See infra text accompanying notes 89-100. [FN45]. 50 Cal. 3d 668, 789 P.2d 887, 268 Cal. Rptr. 706 (1990), cert. denied, 498 U.S. 1053 (1991). [FN46]. See id. at 703, 789 P.2d at 905, 268 Cal. Rptr. at 724. [FN47]. Cal. Const. art. I, s 28(f); see Turner, 50 Cal. 3d at 703, 789 P.2d at 905, 268 Cal. Rptr. at 724. [FN48]. 38 Cal. 3d 301, 696 P.2d 111, 211 Cal. Rptr. 719 (1985). [FN49]. Appellant's Opening Brief at 88-90 & n.10, Turner, 50 Cal. 3d at 668, 789 P.2d at 905, 268 Cal. Rptr. at 724 (No. S004658). [FN50]. Id. at 90-93. [FN51]. See Turner, 50 Cal. 3d at 704 n.17, 789 P.2d at 906 n.17, 268 Cal. Rptr. at 725 n.17. [FN52]. The brief stated that 'every Court of Appeal that had addressed the problem' at the time of the trial had resolved it against any restrictions on the admissibility of impeachment priors. Appellant's Opening Brief at 89, Turner (No. S004658). Without citing those decisions, counsel appended a footnote stating, in a tour de force of indirection: 'The foregoing statement regarding Court of Appeal decisions is based upon appellate counsel's study of the Cumulative Subsequent History Table in the Bancroft-Whitney Official Reports advance sheets.' Id. at 89 n.10. [FN53]. Turner, 50 Cal. 3d at 703, 789 P.2d at 905, 268 Cal. Rptr. at 724. [FN54]. Id. at 703-04, 789 P.2d at 905-06, 268 Cal. Rptr. at 725. [FN55]. Id. at 704, 789 P.2d at 906, 268 Cal. Rptr. at 725. [FN56]. Id. at 705, 789 P.2d at 907, 268 Cal. Rptr. at 726. The court's acceptance of counsel's argument presumably meant, however, that other defendants convicted at pre- Castro trials could raise Castro claims on appeal despite their trial counsel's failure to object to admission of the priors. [FN57]. See id. at 704 n.17, 789 P.2d at 906 n.17, 268 Cal. Rptr. at 725 n.17. [FN58]. Id. at 704, 789 P.2d at 906, 268 Cal. Rptr. at 725. [FN59]. Readers of academic literature may cringe at the thought of academic writers getting hold of this technique for doubling their footnote capability. [FN60]. Id. at 704 n.17, 789 P.2d at 906 n.17, 268 Cal. Rptr. at 725 n.17. [FN61]. 'Cal. App.' is the usual way of citing California's official appellate reporter, the California Appellate Reports. [FN62]. Id. at 704 n.17, 789 P.2d at 906 n.17, 268 Cal. Rptr. at 725 n.17. [FN63]. Id. at 704 n.17, 789 P.2d at 906 n.17, 268 Cal. Rptr. at 725 n.17. [FN64]. Id. at 704 n.17, 789 P.2d at 906 n.17, 268 Cal. Rptr. at 725 n.17. [FN65]. 'Cal. Rptr.' is the usual way of citing California's unofficial appellate reporter, the California Reporter. [FN66]. See infra text accompanying notes 184-195. [FN67]. See infra text accompanying notes 184-195. [FN68]. But see Lindeleaf v. Agricultural Lab. Rel. Bd., 41 Cal. 3d 861, 870, 718 P.2d 106, 111, 226 Cal. Rptr. 119, 124 (1986) (referring to depublished opinion by name and docket number and holding that, having been depublished, opinion could not have been relied on as justifying failure to exhaust remedies). [FN69]. Turner, 50 Cal. 3d at 704, 798 P.2d at 906-07, 268 Cal. Rptr. at 725. [FN70]. Id. at 704-05 n.18, 789 P.2d at 906 n.18, 268 Cal. Rptr. at 725 n.18. [FN71]. Id. at 704-05 n.18, 789 P.2d at 906 n.18, 268 Cal. Rptr. at 725 n.18. [FN72]. See supra text accompanying note 8; infra text accompanying notes 184-195. [FN73]. Turner, 50 Cal. 3d at 703-04, 798 P.2d at 906, 268 Cal. Rptr. at 725. [FN74]. Id. at 704-05 n.18, 789 P.2d at 906 n.18, 268 Cal. Rptr. at 725 n.18. [FN75]. See Lindeleaf, 41 Cal. 3d at 870, 718 P.2d at 111, 226 Cal. Rptr. at 124; supra note 68. [FN76]. See infra text accompanying notes 191-193. [FN77]. Turner, 50 Cal. 3d at 704-05 n.18, 789 P.2d at 906 n.18, 268 Cal. Rptr. at 725 n.18. [FN78]. See, e.g., People v. Davis, 147 Cal. 346, 350, 81 P. 718, 720 (1905) (refusal to transfer case not to be regarded as an expression of opinion by the court); People v. Triggs, 8 Cal. 3d 884, 890-91, 506 P.2d 232, 236, 106 Cal. Rptr. 408, 412 (1973) (refusal to grant hearing not to be regarded as an expression of opinion by the court). [FN79]. See supra text accompanying notes 17-21. [FN80]. See infra text accompanying notes 83-117. [FN81]. Turner, 50 Cal. 3d at 703-04 n.18, 789 P.2d at 906 n.18, 268 Cal. Rptr at 725 n.18. [FN82]. See id. at 703-04 n.18, 789 P.2d at 906 n.18, 268 Cal. Rptr. at 725 n.18. [FN83]. Cal. Ct. R. 979. [FN84]. See Uelmen, supra note 25, at 29. [FN85]. See supra note 1; Barnett, supra note 1, at 1034 n.7. [FN86]. Cal. Ct. R. 979. A request for depublication may be made to the supreme court by any person within 30 days after the court of appeal decision becomes final (Rule 979(a)); the court of appeal or any person may submit a response within 10 days (Rule 979(b)); the supreme court shall send notice of its action to each party to the case and to any person who has requested depublication (Rule 979(c)); and nothing in the rule limits the supreme court's power, on its own motion, to order an opinion depublished at any time (Rule 979(d)). [FN87]. Cal. Ct. R. 979(e). [FN88]. See Hearsay: New Court, New Rules, Cal. Law. , Aug. 1990, at 18; Philip Carrizosa, Depublish Time Limit Is Adopted, S.F. Daily J. , July 3, 1990, at 7. According to the former account: A court spokeswoman explained that comments were unnecessary because this rule involves the court itself. When a reporter noted that a public hearing was held before publication rules were last changed in 1982, the spokeswoman consulted with members of the court and returned with this reply: 'That was a different court.' Hearsay: New Court, New Rules, supra, at 18. [FN89]. Letter from Howard C. Cohen, Staff Attorney, Appellate Defenders, Inc., to Stephen R. Barnett (Nov. 12, 1993) (on file with the Hastings Law Journal) hereinafter Cohen Letter. Mr. Cohen states that a petition for review filed by a deputy attorney general in the case had been denied by the supreme court, as untimely, and then, 'long after the appellate opinion had become final, out of the blue the opinion was decertified.' Mr. Cohen says he called the supreme court and was informed that the depublication had been sought by the deputy attorney general. 'Neither the attorney of record nor I as the supervising staff attorney had received any notice from the deputy attorney general,' he writes. Id. Mr. Cohen identifies the case as People v. Matus, 203 Cal. App. 3d 1099, 250 Cal. Rptr. 414 (1988), which became final (as modified) on October 15, 1988, and was depublished on February 2, 1989. Telephone Interview with Howard C. Cohen, supra note 43. [FN90]. Cohen Letter, supra note 89. [FN91]. Id. [FN92]. Id. [FN93]. Id.; Cal. Ct. R. 978(c). [FN94]. Cohen Letter, supra note 89. [FN95]. Id. [FN96]. Id.; see supra text accompanying notes 26-44. [FN97]. Letter from David Kay, Chairperson, Appellate Court Committee, San Diego County Bar Association, to The Honorable Malcolm M. Lucas (May 15, 1990) (attaching draft rule) (on file with the Hastings Law Journal) hereinafter Kay Letter. [FN98]. Id. [FN99]. Compare Cal. Ct. R. 979 with draft attached to Kay Letter, supra note 97. Some of the differences between the San Diego draft and the eventual Rule 979, though minor, are worth noting: (1) On the question of nomenclature ( see supra note 1), although the San Diego draft rule used 'depublication' in its title, as does the eventual rule, the body of the San Diego rule used only 'decertification' or its variants (eight times). The supreme court replaced all these with 'depublication' or its variants. Cal. Ct. R. 979. (2) The San Diego draft required requests for depublication to be made to the court within 60 days after either the filing of the petition for review or the date the court of appeal decision became final; the supreme court shortened this to 30 days after the decision became final. Cal. Ct. R. 979(a) . (3) The San Diego draft allowed 30 days for responses to a request for depublication; the supreme court made it 10 days. Cal. Ct. R. 979(b). (4) Although Mr. Kay's letter stated that the San Diego rule 'would not limit the Supreme Court's power to depublish at any time,' Kay Letter, supra note 97, nothing in the San Diego draft made this explicit. The supreme court made it explicit. Cal. Ct. R. 979(d). (5) The San Diego draft stated that a depublication order should not be deemed an expression of opinion by the supreme court 'of the incorrectness of the result reached by the decision or of any of the law set forth in the opinion' (emphasis added). The supreme court changed the emphasized word to 'correctness,' thus cementing the parallel with Rule 978(c)'s provision concerning the effect of an order directing publication of an opinion. [FN100]. Letter from Robert F. Wandruff, Court Administrator and Clerk of the California Supreme Court, by John C. Rossi, Assistant Clerk-Administrator, to Mr. David Kay (June 29, 1990) (on file with the Hastings Law Journal). I have previously claimed for myself some possible role in inducing the court's adoption of Rule 979, based on an article of mine published in June 1990 that criticized the court for having no rule about depublication. Stephen R. Barnett, The Death of Oral Argument, Cal. Law. , June 1990, at 45; see Barnett, supra note 1, at 1048 n.63. I see no reason to retract that claim. The court in June 1990 may fortuitously have found in its in-box both my article and, as if in response, the San Diego draft rule. [FN101]. Kelso, supra note 1, at 495 n.221. [FN102]. Cal. Ct. R. 979(e) (emphasis added). [FN103]. See Cohen Letter, supra note 89. [FN104]. See Kay Letter, supra note 97; text accompanying note 97. [FN105]. 222 Cal. App. 3d 760, 272 Cal. Rptr. 208 (1990). [FN106]. Id. at 763, 272 Cal. Rptr. at 210. [FN107]. Id. at 765, 272 Cal. Rptr. at 211. [FN108]. Compare also In re Anita G., 15 Cal. App. 4th 1045, 1056-59, 12 Cal. Rptr. 2d 265, 274 (Sills, P.J., dissenting), review granted, 842 P.2d 99, 14 Cal. Rptr. 2d 800 (1992), transferred to court of appeal, 856 P.2d 1133, 22 Cal. Rptr. 2d 277 (1993) (dissent wanting to wait for possible 'signal' from supreme court's action on pending request for depublication), with Anita G., 15 Cal. App. 4th at 1053 n.10, 12 Cal. Rptr. 2d at 270 n.10 (majority saying it would make no difference, quoting Rule 979(e)). [FN109]. 7 Cal. App. 4th 1712, 281 Cal. Rptr. 847 (1991), aff'd, 3 Cal. 4th 860, 838 P.2d 241, 12 Cal. Rptr. 2d 719 (1992). [FN110]. See id. at 1719 n.3, 281 Cal. Rptr. at 851 n.3. [FN111]. Id. at 1719 n.3, 281 Cal. Rptr. at 851 n.3. [FN112]. Id. at 1724, 281 Cal. Rptr. at 855. [FN113]. Id. at 1719 n.3, 281 Cal. Rptr. at 851 n.3; see also County of Los Angeles v. County Assessment App. Bd. No. 1, 13 Cal. App. 4th 102, 109- 10, 16 Cal. Rptr. 2d 479, 483-84 (1993) (rejecting reliance on depublication order and citing Rule 979(e)). [FN114]. People v. McClanahan, 3 Cal. 4th 860, 867-72, 838 P.2d 241, 246- 49, 12 Cal. Rptr. 2d 719, 724-27 (1992). [FN115]. See supra note 42 and accompanying text. [FN116]. Barnett, supra note 1, at 1052. [FN117]. Id. [FN118]. 5 Cal. 4th 580, 853 P.2d 1093, 20 Cal. Rptr. 2d 638 (1993). [FN119]. Id. at 591, 853 P.2d at 1098, 20 Cal. Rptr. 2d at 643. This right arises from Penal Code Sections 1025 and 1164. See id. at 587- 89, 853 P.2d at 1095-98, 20 Cal. Rptr. 2d at 640-43. [FN120]. Id. at 592-97, 852 P.2d at 1099-1102, 20 Cal. Rptr. 2d at 644-47. [FN121]. 150 Cal. App. 3d 1024, 198 Cal. Rptr. 277 (1984). [FN122]. 209 Cal. App. 3d 713, 257 Cal. Rptr. 480 (1989), ordered depublished, California Supreme Court Minutes, Apr. 26, 1990, in Cal. Official Rep. (advance sheet), May 31, 1990, at 3. [FN123]. 215 Cal. App. 3d 1055, 263 Cal. Rptr. 915 (1989), ordered depublished, California Supreme Court Minutes, Apr. 26, 1990, in Cal. Official Rep. (advance sheet), May 31, 1990, at 3. The plurality opinion in Casillas rejected Wojahn's double jeopardy analysis but reached the same result on other grounds. Id. at 1062 & n.4, 263 Cal. Rptr. at 919 & n.4. [FN124]. 217 Cal. App. 3d 968, 266 Cal. Rptr. 380 (1990). [FN125]. See California Supreme Court Minutes, Apr. 26, 1990, in Cal. Official Rep. (advance sheet), May 31, 1990, at 3. [FN126]. 222 Cal. App. 3d 760, 272 Cal. Rptr. 208 (1990); see supra text accompanying notes 105-108. [FN127]. Dee, 222 Cal. App. 3d at 763, 272 Cal. Rptr. at 210. [FN128]. Id. at 763, 272 Cal. Rptr. at 210. [FN129]. Id. at 765, 272 Cal. Rptr. at 211; see supra text accompanying notes 106-107. [FN130]. Saunders, 5 Cal. 4th at 592-97, 853 P.2d at 1099-1102, 20 Cal. Rptr. 2d at 644-47. [FN131]. Id. at 592-97, 853 P.2d at 1095-99, 20 Cal. Rptr. 2d at 640-44. [FN132]. Id. at 602 n.2, 853 P.2d at 1105 n.2, 20 Cal. Rptr. 2d 650 n.2 (Kennard, J., dissenting). [FN133]. Id. at 606, 853 P.2d at 1108, 20 Cal. Rptr. 2d at 653 (Kennard, J., dissenting). [FN134]. Id. at 607, 853 P.2d at 1109, 20 Cal. Rptr. 2d at 654 (Kennard, J., dissenting). Justice Kennard speaks of denials of review in the plural -- e.g., 'denying review of Courts of Appeal decisions that followed Wojahn; ' 'denials of review in some cases.' Id., 853 P.2d at 1109, 20 Cal. Rptr. 2d at 654. However, she cites -- and there appears to have been -- only one such case, Hockersmith. [FN135]. Id. at 606, 853 P.2d at 1108, 20 Cal. Rptr. 2d at 653 (Kennard, J., dissenting). [FN136]. Id. at 606, 853 P.2d at 1108-09, 20 Cal. Rptr. 2d at 653-54 (Kennard, J., dissenting). [FN137]. See supra text accompanying notes 45-82. [FN138]. See infra text accompanying notes 199-201. [FN139]. Saunders, 5 Cal. 4th at 608, 853 P.2d at 1110, 20 Cal. Rptr. 2d at 655 (Kennard, J., dissenting). [FN140]. Id. at 608, 853 P.2d at 1110, 20 Cal. Rptr. 2d at 655 (Kennard, J., dissenting). [FN141]. Id. at 592 n.8, 853 P.2d at 1098-99 n.8, 20 Cal. Rptr. 2d. at 643-44 n.8. [FN142]. Id. at 592 n.8, 853 P.2d at 1098-99 n.8, 20 Cal. Rptr. 2d at 643-44 n.8 (citing Camper v. Workers' Comp. Appeals Bd., 3 Cal. 4th 679, 689 n.8, 836 P.2d 888, 894 n.8, 12 Cal. Rptr. 2d 101, 107 n.8 (1992)). [FN143]. Id. at 592 n.8, 853 P.2d at 1098-99 n.8, 20 Cal. Rptr. 2d at 643-44 n.8. The plural 'foregoing principles' here is puzzling, since the court has noted only one principle -- that denial of review is not an expression on the merits. [FN144]. Id. at 592 n.8, 853 P.2d at 1098-99 n.8, 20 Cal. Rptr. 2d at 643-44 n.8. [FN145]. Id. at 592 n.8, 853 P.2d at 1098-99 n.8, 20 Cal. Rptr. 2d at 643-44 n.8. [FN146]. Id. at 592 n.8, 853 P.2d at 1098-99 n.8, 20 Cal. Rptr. 2d at 643-44 n.8. [FN147]. See Barnett, supra note 1, at 1051-52. [FN148]. Saunders, 5 Cal. 4th at 592 n.8, 853 P.2d at 1098-99 n.8, 20 Cal. Rptr. 2d at 643-44 n.8. [FN149]. Id. at 607-08, 853 P.2d at 1110, 20 Cal. Rptr. 2d at 655 (Kennard, J., dissenting). [FN150]. Turner, 50 Cal. 3d at 704-05 & n.18, 789 P.2d at 906-07 & n.18, 268 Cal. Rptr. at 725-26 & n.18; see supra text accompanying notes 53-55. While the trial counsel's conduct thus may have been consistent with (the subsequently adopted) Rule 979(e), it may have violated Rule 977(a). See infra text accompanying note 193. [FN151]. See supra text accompanying notes 89-100. [FN152]. Huffman, 42 Cal. 3d at 554, 724 P.2d at 475, 229 Cal. Rptr. at 789; McClanahan, 3 Cal. 4th at 867-72, 838 P.2d at 246-49, 12 Cal. Rptr. 2d at 724-27; Saunders, 5 Cal. 4th at 592-97, 853 P.2d at 1099-1102, 20 Cal. Rptr. 2d at 644-47; see supra text accompanying notes 26-42, 109-117, 118-152. [FN153]. See Bird, supra note 18; Grodin, supra note 16, at 522. [FN154]. Grodin, supra note 16, at 514-15, 522. [FN155]. Dee, 222 Cal. App. 3d at 764, 272 Cal. Rptr. at 210. [FN156]. Saunders, 5 Cal. 4th at 597 n.9, 853 P.2d at 1102 n.9, 20 Cal. Rptr. 2d at 647 n.9. [FN157]. Cal. Ct. R. 977(a); see supra note 8 and accompanying text. [FN158]. See infra text accompanying notes 169-233. [FN159]. To assume that the supreme court regards the opinion as 'erroneous' may seem paradoxical and inconsistent with much in the previous pages, as well as with the mandate of Rule 979(e) that a depublication order 'shall not be deemed an expression of opinion' by the supreme court. There is, indeed, something of Alice in Wonderland in any consideration of depublication under Rule 979(e). We are talking here, however, about whether the supreme court has an opinion about the depublished case, not about whether the depublication order should be 'deemed' an expression of opinion by the court. See supra text accompanying notes 101-104. In order to assess depublication's effectiveness, one must assume something about the court's reason for depublishing an opinion. Moreover, it is one thing for the court to say the depublication order itself shall not be given meaning, and another thing for us to analyze the effect the order admittedly has in eliminating the depublished opinion as a citable precedent. Cf. Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984). [FN160]. Auto Equity Sales, Inc. v. Superior Ct., 57 Cal. 2d 450, 455, 369 P.2d 937, 940, 20 Cal. Rptr. 321, 324 (1960). [FN161]. 'No court is required to follow another court's dicta.' Indiana Harbor Belt R.R. Co.. v. American Cyanamid Co., 916 F.2d 1174, 1176 (7th Cir. 1990) (Posner, J.). [FN162]. See supra text accompanying notes 17, 19-21. [FN163]. Auto Equity Sales, 57 Cal. 2d at 455, 369 P.2d at 940, 20 Cal. Rptr. at 324. [FN164]. 'A decision of a court of appeal is not binding in the courts of appeal. One district or division may refuse to follow a prior decision of a district or decision, for the same reasons that influence the federal Courts of Appeals of the various circuits to make independent decisions.' 9 B.E. Witkin, California Procedure s 772, at 740-41 (3d ed. 1985); see also McCallum v. McCallum, 190 Cal. App. 3d 308, 315 n.4, 235 Cal. Rptr. 396, 400 n.4 (1987) ; McGlothlen v. Department of Motor Vehicles, 71 Cal. App. 3d 1005, 1017, 140 Cal. Rptr. 168, 176 (1977); Philip Hager, The Workhorses: California's Appeal Courts, S.F. Daily J. , Jan. 18, 1994, at 1, 7 (stating that panels of California courts of appeal 'function as separate courts, free to disregard rulings of other divisions, even if they are in the same district'). For proof, see the cases cited throughout this Comment that involve conflicting lines of authority in the courts of appeal. [FN165]. See, e.g., Greyhound Lines, Inc. v. County of Santa Clara, 187 Cal. App. 3d 480, 485, 231 Cal. Rptr. 702, 704 (1986) ('We ordinarily follow the decisions of other districts without good reason to disagree ....'). [FN166]. See, e.g., Los Angeles Police Protective League v. City of Los Angeles, 163 Cal. App. 3d 1141, 1147, 209 Cal. Rptr. 890, 893 (1985) ('The reasoning and conclusions expressed in that opinion are sound and we therefore follow them ....'). See also the paper by then-court of appeal justice Otto M. Kaus, Conflicting Court of Appeal Decisions: Precedent Is a Many Splendored Thing or Let Thirteen Flowers Bloom, at 2 (n.d.) (unpublished manuscript, on file with the Hastings Law Journal) ('There are, of course, thousands of Court of Appeal cases which, after citing or referring to decisions of other districts, proceed to follow and apply them. One gathers, however, that they do so because they agree with the decision they follow, not because they are obliged to do so, whether they agree or not.'). [FN167]. In at least one instance, a depublished California opinion has been cited and followed like any other case by courts of another state. See Viviano v. CBS, Inc., 597 A.2d 543, 549-50 & n.5 (N.J. Super. 1991); Hirsch v. General Motors Corp., 628 A.2d 1108, 1115, 1121 (N.J. Super. 1993). Both cases cite fully (with both Cal. App. and Cal. Rptr. cites) and follow County of Solano v. Delancy, 215 Cal. App. 3d. 1232, 264 Cal. Rptr. 721 (1989), ordered depublished, California Supreme Court Minutes, Feb. 1, 1990, in Cal. Official Rep. (advance sheet), Mar. 8, 1990, at 6, concerning the tort of spoliation of evidence. Viviano includes the depublication order as part of the citation, 597 A.2d at 550 & n.5, but apparently treats the case no differently because of it. Hirsch ignores the depublication. See 628 A.2d at 1115. [FN168]. One might illustrate the changed meaning of depublication by reference to a hierarchy of judicial precedent for opinions of the California courts of appeal. In descending order of authority, the ranks would be: 1. Binding Precedents 2. Official Precedents 3. De Facto Precedents 4. Discredited Precedents. The only 'binding precedents' are published court of appeal opinions in their effect on trial courts (absent a published court of appeal opinion the other way). 'Official precedents' are published court of appeal opinions in their effect on courts of appeal. This effect is not binding but is otherwise uncertain. It may carry some indeterminate 'precedential weight,' such as a rebuttable presumption of being followed (absent an opposing published court of appeal opinion); but it may carry no weight beyond the opinion's inherent persuasiveness. See supra text accompanying notes 163-168. 'De facto precedents' are depublished opinions under the new regime of Rule 979(e) and Saunders -- lacking official 'precedential weight,' but precedents in fact and hence perhaps more likely than not to be followed (absent a decision the other way). 'Discredited precedents,' now an obsolete category, were depublished opinions under the 'traditional understanding.' See supra text accompanying notes 16-23. The effect of the changed meaning of depublication thus has been to move depublished opinions up from 'discredited' precedents to 'de facto' ones, narrowing the difference between them and the 'official' precedents that published opinions represent. [FN169]. See Paul D. Carrington et al., Justice on Appeal 36-43 (1976). [FN170]. Kelso, supra note 1, at 491. [FN171]. The latest judicial statistics reported by the Judicial Council of California show 11,003 appeals disposed of by the courts of appeal by written opinion in fiscal year 1991-92. II Judicial Council of California , supra note 4, at 20. Ten percent of these opinions were published, id. at 31, so there were approximately 9,900 unpublished opinions. Meanwhile, according to Dean Uelmen, during the roughly equivalent period from April 1, 1991 to March 31, 1992, the California Supreme Court depublished 101 opinions. Uelmen, supra note 9, at 1007 n.3, 1022. Thus, counting the depublished opinions as unpublished, the depublished opinions were roughly 1% of all the unpublished ones. (Despite the de-secretizing of depublication by adoption of Rule 979 in 1990, see supra text accompanying notes 83-86, and despite the supreme court's continued depublishing of more cases than it publishes, see supra notes 3-4 and accompanying text, the Annual Report of the Judicial Council of California still treats depublication as a state secret (or a skeleton in the closet). Nothing in the Report's section on the work of the California Supreme Court, either in statistics or text, acknowledges the existence of depublication. See II Judicial Council of California , supra note 4, at 3-14.) [FN172]. See supra note 6. [FN173]. Although depublication usually occurs in time to pull the opinion before publication of the bound volume of the California Appellate Reports, the pages where it would have appeared in that volume are assiduously deleted. See, e. g., 11 Cal. App. 4th 1429 (1992) (stating 'Opinion ( In re Cedric G.) on pages 1429-1435 omitted,' and adding in footnote that opinion was 'deleted on direction of Supreme Court by order dated March 11, 1993'; page 1429 in the bound Cal. App. volume is thus followed by page 1436). Hence no other case preempts the citation, which thus indelibly identifies the depublished case not only in its advance sheet incarnation, but also in its permanent recordation in Lexis and Westlaw and unofficial reporters. See infra note 175 and accompanying text. [FN174]. See, e.g., Merrill v. Ballard, 17 Cal. App. 4th 933, 21 Cal. Rptr. 2d 664 (1993), ordered depublished, California Supreme Court Minutes, Nov. 10, 1993, in Cal. Official Rep. (advance sheet), Jan. 4, 1994, at 4 (giving citation: '17 Cal. App. 4th 933'). [FN175]. For example, People v. Rangel, the first of the depublished cases identified in Footnote Seventeen of Turner ( see supra text accompanying notes 58-68), is in Lexis bearing the cites 154 Cal. App. 3d 544 and 201 Cal. Rptr. 671 (1984). (Lexis's own citation system apparently had not begun in 1984.) People v. Laury, one of the depublished cases identified in Justice Kennard's dissent in Saunders ( see infra text accompanying notes 196- 199), is in Lexis bearing the cites 209 Cal. App. 3d 713, 257 Cal. Rptr. 480, and 1989 Cal. App. LEXIS 350 (1989). Either case can be found in Lexis by a search using any of those cites or the case's name and docket number. See infra note 184. [FN176]. These are the Daily Appellate Report, a supplement to the Los Angeles Daily Journal and the San Francisco Daily Journal, and the California Daily Opinion Service, a supplement to The Recorder. [FN177]. See, e.g., Daily Appellate Rep. , Dec. 6, 1993, at 15211 (reporting supreme court's depublication on Dec. 1, 1993, of Poss v. State Farm Fire & Casualty Co., 17 Cal. App. 4th 1507 (1993), and reprinting summary of court of appeal opinion as it originally appeared in Daily Journal on July 30, 1993 (along with page number where full text of opinion appeared in Daily Appellate Report on that day)). [FN178]. Kent L. Richland, Depublication, L.A. Law. , Aug.-Sept. 1990, at 52. [FN179]. 42 Cal. 3d 552, 724 P.2d 475, 229 Cal. Rptr. 789 (1986); see supra text accompanying notes 26-44. [FN180]. Id. at 560 n.6, 724 P.2d at 480 n.6, 229 Cal. Rptr. at 794 n.6. [FN181]. 50 Cal. 3d 668, 789 P.2d 887, 268 Cal. Rptr. 706 (1990); see supra text accompanying notes 45-82. [FN182]. Id. at 704-05 & n.18, 789 P.2d at 905-06 & n.18, 268 Cal. Rptr. at 725-26 & n.18. [FN183]. Id. at 704 n.17, 789 P.2d at 906 n.17, 268 Cal. Rptr. at 725 n.17; see supra text accompanying notes 58-65. [FN184]. The name alone produces each of the seven cases, but in some instances, of course, more than one case. The name combined with the docket number singles out four of the seven cases: People v. Rangel (154 Cal. App. 3d 544, 201 Cal. Rptr. 671 (1984)); People v. Harrison (150 Cal. App. 3d 1142, 198 Cal. Rptr. 762 (1984)); People v. Sweeney (150 Cal. App. 3d 553, 198 Cal. Rptr. 182 (1984)); and People v. Miles (153 Cal. App. 3d 652, 200 Cal. Rptr. 553 (1984)). A fifth case is People v. Castro itself, for which the toenote gives not the docket number but the citation to the subsequent opinion of the supreme court, 38 Cal. 3d 301. A search using the name Castro and this citation (as part of the subsequent history) produces the court of appeal opinion in Castro (151 Cal. App. 3d 48, 198 Cal. Rptr. 645 (1984)). Lexis is not infallible, and for the two remaining cases, People v. Aldana and People v. Juarez, the name-plus-docket-number search does not work. But Aldana can be singled out (151 Cal. App. 3d 948, 199 Cal. Rptr. 156 (1984)) by using the name and the date of depublication given in the toenote (April 19, 1984), and Juarez (149 Cal. App. 3d 1104, 197 Cal. Rptr. 397 (1983)) by using the name and date of transfer by the supreme court (May 16, 1985), also given in the toenote. Another method is to use the case names and limit the search by date or subject matter. A name search limited by the words 'prior felony' appearing in the opinion, for example, retrieves each of the seven cases and for none of them a group of more than six cases. It is then easy enough to skim the headings, dates, and subsequent histories and pick the desired case from each group. [FN185]. Black's Law Dictionary 244 (6th ed. 1990). Black's definition of 'Citation of authorities,' id. at 243, is similar. [FN186]. The American Heritage Dictionary of the English Language 348 (3d ed. 1992). [FN187]. David Mellinkoff , Mellinkoff's Dictionary of American Legal Usage 79 (1992). [FN188]. Turner, 50 Cal. 3d at 704 n.17, 789 P.2d at 906 n.17, 268 Cal. Rptr. at 725 n.17. [FN189]. See supra text accompanying notes 185-187. Insofar as the definitions may seem to require that the cases be not only referred to but also relied on -- e.g., referred to 'in support of propositions of law sought to be established,' see supra text accompanying note 185 -- this requirement was met in Turner; the depublished cases were invoked in support of the court's proposition that 'all but one originally published Court of Appeal decision addressing the issue had so concluded.' Turner, 50 Cal. 3d at 703-04, 789 P.2d at 906, 268 Cal. Rptr. at 725. [FN190]. See supra text accompanying notes 185-187. [FN191]. See supra text accompanying notes 72-75. [FN192]. 50 Cal. 3d at 703-04, 789 P.2d at 906, 268 Cal. Rptr. at 725. [FN193]. Admittedly, Rule 977(a) was designed to prevent unpublished opinions from influencing subsequent law. Thus the classic kind of targeted 'reliance' would be reliance on a depublished opinion to determine what the law is for the present and future. The reliance involved in Turner was reliance at one remove: The court was not relying on the depublished cases directly to establish the law, but rather to justify a lawyer's past reliance on those cases to establish the law. The reliance thus being justified, however, was the classic kind of reliance. It was designed to establish, or predict, what the law then was for the present and future. Thus the Turner court's reliance on the depublished cases to justify the lawyer's reliance on them does offend, albeit indirectly, the primary purpose of Rule 977(a). Nor do the equities support a different conclusion. The trial counsel whose reliance was upheld in Turner could claim no justification for relying on depublished opinions, an act prohibited by Rule 977(a). See supra text accompanying note 8. Compare Lindeleaf v. Agricultural Labor Relations Bd., 41 Cal. 3d 861, 870, 718 P.2d 106, 111, 226 Cal. Rptr. 119, 124 (1986); see supra note 68. The court there rejected reliance on a depublished opinion to establish past law: 'once we ordered Christopher depublished, it could not be cited as authority and Lindeleaf could no longer claim an effective modification of the law.' Id. Lindeleaf was not cited in Turner. [FN194]. But see Lindeleaf, 41 Cal. 3d at 870, 718 P.2d at 111, 226 Cal. Rptr. at 124 (referring to depublished case by name and docket number, in course of rejecting reliance on it to establish past law). [FN195]. The courts of appeal, before and after Turner, likewise have flirted with 'citing' depublished cases, but with no consistency. See, e.g., Weiner v. Fireman's Fund Ins. Cos., 232 Cal. App. 3d 537, 543 n.4, 284 Cal. Rptr. 340, 343 n.4 (1991), ordered depublished, California Supreme Court Minutes, Oct. 3, 1991, in Cal. Official Rep. , Nov. 19, 1991, at 9 (name, 'Cal. App.' designation, docket number, and date of depublication); People v. Cruz, 165 Cal. App. 3d at 652 (name and date of depublication); People v. McClanahan, 7 Cal. App. 4th at 1719 n.3, 281 Cal. Rptr. at 851 n.3, aff'd, 3 Cal. 4th 860, 838 P.2d 241, 12 Cal. Rptr. 2d 719 (1992) (court 'acutely aware' of cases but does not name them); People v. Dee, 222 Cal. App. 3d at 763 (name, 'Cal. App.' designation, docket number, and date of depublication, with court nonetheless declaring that in view of Rule 977(a), 'we therefore give no citations to these ... cases,' 222 Cal. App. 3d at 764); In re Marriage of Padilla, 18 Cal. App. 4th 708, 712 n.4, 22 Cal. Rptr. 2d 630, 632 n.4, review granted, 862 P.2d 662, 24 Cal. Rptr. 2d 662 (1993) (saying supreme court has 'cited' unpublished opinions and consequently citing them fully, with Cal. App. and Cal. Rptr. citations). [FN196]. 5 Cal. 4th 580, 853 P.2d 1093, 20 Cal. Rptr. 2d 638 (1990); see supra text accompanying notes 118-152. [FN197]. Id. at 606-09, 853 P.2d at 1108-10, 20 Cal. Rptr. 2d at 653-55 (Kennard, J., dissenting). [FN198]. Id. at 607, 853 P.2d at 1109, 20 Cal. Rptr. 2d at 654 (Kennard, J., dissenting). [FN199]. See id. at 592 n.8, 853 P.2d at 1098-99 n.8, 20 Cal. Rptr. 2d at 643-44 n.8. [FN200]. Cal. Ct. R. 977(a). [FN201]. 5 Cal. 4th 242, 851 P.2d 1307, 19 Cal. Rptr. 2d 698 (1993). [FN202]. 5 Cal. 4th at 254 n.9; see infra note 204 for a discussion of this footnote as it appears in the California Reporter and Pacific Reporter. [FN203]. In re Michaela C., 2 Cal. App. 4th 1229, 3 Cal. Rptr. 2d 869 (1992), ordered depublished, California Supreme Court Minutes, Apr. 23, 1992, in Cal. Official Rep. (advance sheet), May 26, 1992, at 17-18. [FN204]. The two-tier footnote reads: 9 This analysis is adapted from a concurring opinion by Kline, J., in the Court of Appeal in In re Michaela C.* (Cal.App.). ________________ * Reporter's Note: Opinion in In re Michaela C. (A048689) deleted upon direction of Supreme Court by order dated January 21, 1992. 5 Cal. 4th at 254 n.9. (The Reporter has his dates wrong. January 21, 1992 was the date Michaela C. was decided by the court of appeal. See Michaela C., 2 Cal. App. 4th at 1229, 3 Cal. Rptr. 2d at 869. The date of depublication by the supreme court was April 23, 1992. See California Supreme Court Minutes, Apr. 23, 1992, in Cal. Official Rep. (advance sheet), May 26, 1992, at 17-18.) The versions of this footnote that appear in Cynthia D. as reported in the West Publishing Company's unofficial reporters suggest that West is no longer willing to ride in the Mickey Mouse parade of California's depublication system. Neither the California Reporter nor the Pacific Reporter retains either the two-level structure of the footnote or the 'Reporter's Note.' Compare 5 Cal. 4th at 254 n.9 with 19 Cal. Rptr. 2d at 705 n.9 and 851 P.2d at 1314 n.9. Both versions ignore the docket number supplied in the 'Reporter's Note' and instead give traditional citations for Michaela C.; the California Reporter gives the Cal. Rptr. cite, while Pacific Reporter gives both the Cal. Rptr. and the Cal. App. cite (and drops any notification that the case was depublished). See 19 Cal. Rptr. at 705 n.9; 851 P.2d at 1314 n.9. [FN205]. Scott Graham, But It Was A Really Good Depublished Ruling, The Recorder , July 20, 1993, at 2. The 'Reporter's Note' fig leaf worn by the court in the official version of Cynthia D., 5 Cal. 4th at 254 n.9, was apparently an afterthought. The Recorder's article quotes the original version of the footnote as reading: 'This analysis is adopted from a concurring opinion by Kline, J., in the court of appeal in In re Michaela C. (Nos. A048689, A050714, filed Jan. 21, 1992).' Graham, supra. [FN206]. The Cynthia D. episode illumines another strange aspect of California's nonpublication rules. Court of appeal opinions are automatically depublished when 'superseded' by a grant of review, see Cal. Ct. R. 976(d), and the supreme court often 'grants and holds' cases raising questions that it currently has under review in another case. See California Supreme Court Practices and Procedures 14 (1990); Grodin, supra note 16, at 519. In deciding one of those questions in the case under review, the court may well find that some portion of one of the opinions it has put on 'grant and hold' is persuasive, illuminating, or otherwise worth referring to. But Rule 977(a) , if obeyed, prohibits the court from citing or relying on that opinion. Thus, for one thing, the court may not observe the elemental tenet of intellectual honesty that Justice Panelli wanted to observe in Cynthia D. -- to avoid 'plagiarizing' by giving credit where credit was due. (Although Michaela C. had been affirmatively depublished, it would have been likewise uncitable if it had been put on 'grant and hold' pending disposition of Cynthia D. See Cal. Ct. R. 976(d), 977(a).) Further, the universe of court of appeal precedents that the supreme court may explicitly consider is thus artificially truncated, cutting out the most recent cases. The court may, and often does, cite court of appeal decisions on the issue it is considering that were decided prior to the first case in which it granted review, and that accordingly have not been put on 'grant and hold' and thus depublished. See, e.g., Hill v. National Collegiate Athletic Ass'n, 7 Cal. 4th 1, 18, 865 P.2d 633, 643, 26 Cal. Rptr. 2d 834, 844 (1994); Howard v. Babcock, 6 Cal. 4th 409, 417, 863 P.2d 150, 154, 25 Cal. Rptr. 2d 80, 84 (1993); Massey v. Workers' Comp. Appeals Bd., 5 Cal. 4th 674, 679, 854 P.2d 117, 119, 20 Cal. Rptr. 825, 827 (1993). But the court may not, if it honors Rule 977(a), make similar use of court of appeal opinions decided after that first case and hence put on 'grant and hold' pending the court's decision. Indeed, the same problem applies to the opinion of the court of appeal in the very case under review. Since that opinion has been automatically depublished, the court may not, in faithfulness to Rule 977(a), 'cite' or 'rely on' it, either. But the court (or an individual justice) often recites, paraphrases, or relies on the opinion of the court of appeal, and sometimes expressly adopts parts of that opinion as its own. See, e.g., People v. Superior Court (Lavi), 4 Cal. 4th 1164, 1173-74 n.5, 847 P.2d 1031, 1035 n.5, 17 Cal. Rptr. 2d 815, 819 n.5 (1993), as modified, 5 Cal. 4th 294a (1993) ('Like the Court of Appeal herein, we decline .... '); People v. Tenner, 6 Cal. 4th 559, 568, 862 P.2d 840, 845, 24 Cal. Rptr. 2d 840, 845 (1993) (Mosk, J., dissenting) ('I agree with the Court of Appeal in this case ....'); Municipal Ct. v. Superior Ct. (Gonzalez), 5 Cal. 4th 1126, 1128-29, 857 P.2d 325, 326, 22 Cal. Rptr. 2d 504, 505 (1993) (agreeing with court of appeal opinion and adopting it as court's own). There is no reason why the court should not be freely able to do these things, which may both facilitate and improve its work. It is hard to square these judicial techniques, however, with Rule 977(a). A rule that on its face prohibits the court from using, acknowledging, and citing such supremely relevant materials, or that allows the court to do so only by evasion or scofflawism, tends to undermine the moral authority of the court, besides approaching the absurd. [FN207]. 18 Cal. App. 4th 708, 22 Cal. Rptr. 2d 630, review granted, 862 P.2d 662, 24 Cal. Rptr. 2d 662 (1993). [FN208]. 15 Cal. App. 4th 263, 19 Cal. Rptr. 2d 88, review granted, 856 P.2d 1131, 22 Cal. Rptr. 2d 275 (1993). [FN209]. 'Unless otherwise ordered by the Supreme Court, no opinion superseded by a grant of review, rehearing, or other action shall be published. ' Cal. Ct. R. 976(d); see supra note 206. [FN210]. See supra text accompanying note 8. [FN211]. Padilla, 18 Cal. App. 4th at 712 n.4, 22 Cal. Rptr. 2d at 632 n.4. [FN212]. Id. at 712 n.4, 22 Cal. Rptr. 2d at 632 n.4. [FN213]. Id. at 712 n.4, 22 Cal. Rptr. 2d at 632 n.4. The court at this point cited Rule 977(a), but said nothing about how the supreme court's 'message' might be squared with that rule. [FN214]. Id. at 712-15, 22 Cal. Rptr. 2d at 632-34. Another court of appeal, perhaps taking its cue from Cynthia D., see supra text accompanying notes 201-205, has given a Cal. App. cite for a depublished dissenting opinion, and relied on that opinion as well. In re Monique S., 21 Cal. App. 4th 677, 682 n.6, 25 Cal. Rptr. 2d 863, 866 n.6 (1993) (agreeing with and citing dissent in In re Joshua G., 14 Cal. App. 4th 242, 250-53, 17 Cal. Rptr. 2d 522, 526- 29 (1993), ordered depublished, California Supreme Court Minutes, July 1, 1993, in Cal. Official Rep. , Aug. 19, 1993, at 2). [FN215]. The court quoted from the Damico opinion three times, once by way of stating a precedent, 18 Cal. App. 4th at 714, 22 Cal. Rptr. 2d at 633, and twice in support of arguments the Padilla court was making ( e.g., 'We agree with the Damico court that ....'). Id. at 715, 22 Cal. Rptr. 2d at 634. The Padilla court concluded: 'We therefore agree with the reasoning of three prior cases and Damico ....' Id. at 717, 22 Cal. Rptr. 2d at 635. Unless one can 'rely' only on an assertedly binding precedent -- and California court of appeal decisions never are binding for other California courts of appeal, see supra note 164 and accompanying text -- the Padilla court's use of Damico seems the classic way that a court 'relies on' a precedent to support its legal arguments and conclusion. [FN216]. 17 Cal. App. 4th 681, 21 Cal. Rptr. 2d 490 (1993). [FN217]. The court ruled that a statutory 90-day deadline for requesting a hearing was applicable to writ petitions challenging the state's approval of timber harvesting plans. But 'several years ago ... we filed an opinion ruling the statute inapplicable,' the court said, and that opinion 'was the only law on the subject and was no doubt relied on by parties to timber harvest cases. ' Id. at 687-88, 21 Cal. Rptr. 2d at 493. 'Although that opinion was ultimately depublished by the Supreme Court,' under Rule 979(e) the depublication order 'cannot be 'deemed an expression of opinion of the Supreme Court ...,'' the court continued. Id. at 688, 21 Cal. Rptr. 2d at 493. Thus, the 'interests of fairness' required that the Dakin decision operate only prospectively and not bar the challenge before the court. Id. at 688, 21 Cal. Rptr. 2d at 494. The court in Dakin did not 'cite' the depublished opinion, or even name it. It appears to have 'relied on' that opinion, however, to establish that failure to take certain action was justified under the law prevailing at the time, much as the supreme court did in Turner. See supra text accompanying notes 72-76. The court's statement that the opinion was 'ultimately' depublished suggests that this case was different from Turner -- that the opinion was not yet depublished when 'parties to timber harvest cases' relied on it. The key question, however, would seem to be whether the opinion had been depublished when this plaintiff relied on it. The court hides that information, stating vaguely that the unnamed depublished opinion was issued 'several years ago.' A quick look in Lexis indicates that the case was Sierra Club v. Department of Forestry, 225 Cal. App. 3d 537, 275 Cal. Rptr. 243 (1990), decided (as modified) November 26, 1990, and depublished February 14, 1991. See 1991 Cal. LEXIS 638. The plaintiff in Dakin filed his petition on November 18, 1991 (17 Cal. App. 4th at 684, 21 Cal. Rptr. 2d at 491), which thus appears to have been nine months after depublication of the case he supposedly relied on. The Dakin court might have been more candid, especially since it was doing no more than the supreme court had done in Turner. [FN218]. See Summary of Cases Accepted by Supreme Court, Week of Nov. 15, 1993, in Cal. Official Rep. (advance sheet), Dec. 14, 1993, at 2. [FN219]. 50 Cal. 3d 668, 789 P.2d 887, 268 Cal. Rptr. 706 (1990); see supra text accompanying notes 45-82, 184-195. [FN220]. 5 Cal. 4th 580, 853 P.2d 1093, 20 Cal. Rptr. 2d 638 (1993); see supra text accompanying notes 196-200. [FN221]. 5 Cal. 4th 242, 851 P.2d 1307, 19 Cal. Rptr. 2d 698 (1993); see supra text accompanying notes 201-206. [FN222]. 18 Cal. App. 4th 708, 22 Cal. Rptr. 630, review granted, 862 P.2d 662, 24 Cal. Rptr. 2d 662 (1993); see supra text accompanying notes 207- 218. [FN223]. Turner, 50 Cal. 3d at 704 n.17, 789 P.2d at 906 n.17, 268 Cal. Rptr. at 725 n.17; Saunders, 5 Cal. 4th at 607, 853 P.2d at 1109, 20 Cal. Rptr. 2d at 654 (Kennard, J., dissenting); Cynthia D., 5 Cal. 4th at 254 n.9, 851 P.2d at 1314, 19 Cal. Rptr. 2d at 705. [FN224]. Padilla, 18 Cal. App. 4th at 712 n.4, 22 Cal. Rptr. 2d at 632 n.4. [FN225]. See supra text accompanying notes 184-195. [FN226]. Padilla, 18 Cal. App. 4th at 712 n.4, 22 Cal. Rptr. 2d at 632 n.4; see supra text accompanying notes 184-195. [FN227]. Dakin, 17 Cal. App. 4th at 687-88, 21 Cal. Rptr. 2d at 493-94; see supra text accompanying notes 207-218. [FN228]. See supra text accompanying notes 49-52. [FN229]. Letter from Dennis A. Fischer, Esq. to Stephen R. Barnett (Jan. 14, 1994) (on file with the Hastings Law Journal); Telephone Interview with Dennis A. Fischer (Feb. 11, 1994); see supra note 52 and accompanying text. [FN230]. See supra text accompanying notes 153-157. [FN231]. See supra text accompanying note 168. [FN232]. See supra note 52 and accompanying text. [FN233]. Cf. Elder v. Holloway, 114 S. Ct. 1019, 1021 (1994) (holding that appellate review of qualified immunity dispositions must be conducted in light of all relevant precedents, not simply those cited to or discovered by district court). [FN234]. Kelso, supra note 1, at 496. END OF DOCUMENT