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High Court Tactic : Depublished Cases Stir a Controversy

January 18, 1985|DAN MORAIN | Times Staff Writer

SAN FRANCISCO — The state Court of Appeal ruling shocked the clergy across California: A minister and his church could be sued for malpractice because he counseled a troubled young man who later committed suicide.

Judging from the ruling's expansive language, any cleric who gave spiritual counseling to a parishioner might be open to a lawsuit, like a doctor whose medical treatment goes awry. It stood to open a new profession to an ever-expanding area of litigation where damages commonly mount into the millions. It prompted some ministers to wonder whether they should give up counseling.

As it turned out, however, the California Supreme Court wiped out the precedent set by the ruling. Using a process unique in this state, the high court "depublished" the opinion. In other words, the court told judges and lawyers that the ruling was not binding on any future case, and indeed, should not even be cited.

100 Cases Last Year "It's like a wart you get used to," Court of Appeal Justice James B. Scott of San Francisco said of depublication, a process that was used in roughly 100 cases last year.

Depublication has long disturbed judges, academics and lawyers who say that, at worst, it is a way for the court to censor unpopular views.

Even Chief Justice Rose Elizabeth Bird views it as "a very imprecise and imperfect tool for shaping precedent." She routinely dissents when the rest of the court orders a case depublished.

And in recent months, Atty. Gen. John K. Van de Kamp has joined those who have called for its abolition while the State Bar Committee on Appellate Courts is preparing to make a similar recommendation.

Nevertheless, each week as the high court issues its denials for review of lower court opinions--thus upholding the lower courts--it adds a sentence to a handful of cases stating that those opinions must not be printed in the official volumes.

Signal of Disagreement An order to depublish signals that the high court not only does not want to review the case, but that it disagrees with part of the lower court's reasoning. Yet even though the Supreme Court may disagree with the legal reasoning, a depublication order does nothing to alter the result. In fact, the result is left intact even though it cannot be cited as precedent in other cases.

In the clergy malpractice case, the depublication order meant that no other church or minister in the state would be open for a suit in similar circumstances. But that is a "hollow victory," said David Cooksey, attorney for the Los Angeles church, Grace Community in Sun Valley. His clients still must gear up for trial, set for April.

Like most lawyers whose cases are depublished, Cooksey said he has no idea why the opinion was spiked. But one judge not involved in the case said it may have been depublished because it was so unusual.

Perhaps the high court was concerned that there would be a rash of similar suits. Possibly the justices concluded that it would be improper to decide the issue until after the case had gone to trial. Once that trial is over, the case probably will go back through the appellate courts, giving the high court a chance to rule on it when the case is fully developed.

Usually, the impact of any single depublication order is minor. Indeed, most court of appeal opinions--upwards of 85% of 7,000 rulings a year--are not published officially. They merely settle appeals by applying well-settled law to particular facts of the case, and have no value as precedent in future cases.

Official Reports

But when a court of appeal decides a new area of the law, gives a new interpretation to old law or rules on a case of wide public interest, the three-judge panel responsible for the case orders that it be published, and it is printed in volumes of official reports of court decisions. Lawyers and judges use such opinions to guide them in future cases.

But all this comes undone if the Supreme Court, acting on its own or on requests by lawyers involved or interested in the case, depublishes the case. The once-published case literally is erased from the official law books. Because it can no longer be cited as precedent, it loses its legal significance.

Stephen Barnett, a law professor at the University of California, Berkeley, called depublication "an unhealthy practice," one that is "fundamentally subversive of the notion that courts must operate by making reasoned decisions."

Like most of the court's business, decisions to depublish are made behind closed doors. But unlike its written opinions, the court does not make public its reasons for depublication.

"It's making law without deciding cases," Barnett said. " . . . The court is telling the losing party that the reasons you lose the case are wrong, but you still lose."

Barnett and other critics note that depublication has no guidelines. Nor is there a pattern to the orders.

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