New Kinds of Non-Publication:
Depublication, Stipulated Reversal, and
Vacatur Upon Settlement

• At their heart, depublication, stipulated reversal, and vacatur upon settlement involve a sanctioned tampering with the public judicial record.

• Nonpublication policies are inextricably linked with the practice of depublication, which has been established so far only in California.

DEPUBLICATION

• There is no doubt that the California Supreme Court is using depublication as a time-economical substitute for full review.

• Depublication fails to comport with established standards of public exposure of judicial acts because the decertification order fails to set forth the reasoning of the Supreme Court.

• Justices of the Supreme Court need not agree as to why a decision is being depublished, thus undercutting the rationale that depublication removes wrongly reasoned cases from the law.

• Similarly, this undercuts the argument that a depublication order is a precise expression of opinion by the supreme court regarding the correctness of the result reached or the opinion produced by the Court of Appeal.

• Depublication procedures ignore the court's own criteria for publication.

• Depublication may be based upon inadequate information, or because no set procedures exist for requesting or opposing the use of the procedure.

• Requests for publication are rarely granted by the supreme court.

• Depublication creates uncertainty in the law because of the appearance and disappearance of precedential opinions.

• Because litigants are left without a reasoned disposition of the appellate suit, depublication is thus inconsistent with the policy of explaining judicial acts in writing.

• Depublication is selectively employed most aggressively against divisions of the court of appeal with a prevailing judicial philosophy contrary to the prevailing judicial philosophy of the Supreme Court.

• Depublication rules have been used by the California Supreme Court to silence criticism of their own rules by lower courts.

• Statistical analyses demonstrate that the court has used depublication disproportionately in criminal cases.

• When the California Supreme Court depublishes a court of appeal decision, it resolves no dispute, since the appellate court's decision stands. But the supreme court's depublication makes law, if only by eliminating the appellate opinion as a citable precedent, and the law thus made is not supported by the decision of any case.

• In several instances, more than a year has transpired before a decision has been depublished. This practice has allowed putatively inaccurate decisions to serve as precedent in other cases and has allowed decisions in those other cases to stand.

• Depublication promotes unequal treatment; the losing party still loses. But because the case cannot be cited as precedent, the next litigant in a like situation is more likely to win.

• Because courts cannot know whether the Supreme Court disagreed with the lower court's result or just its reasoning, they will assume that the result was flawed.

• Depublication so erodes stare decisis that the Supreme Court increasingly finds itself in a circumstance where it agrees with cases it has depublished and disagrees with opposing ones it has left on the books.

• De facto, depublication sends lower courts a statement of what the Supreme Court thinks the law is not.

• Depublished opinions are readily and permanently available in LEXIS and Westlaw, as well as in the California Reporter. They are "unpublished" only one place: the bound volumes of the California Appellate Reports, where these opinions are not published. To call them "unpublished" thus is a fiction.

• In practice, the California Supreme Court can and does rely upon depublished opinions, but lawyers of face a real threat of sanctions or the risk of antagonizing the judge if they do something that constitutes "citing."

STIPULATED REVERSAL AND VACATUR UPON SETTLEMENT

• Both depublication and stipulated reversal undo the work of a lower court and implicitly disparage that court's role.

• Vacatur upon settlement is a practice in which courts destroy decisions in accordance with settlement agreements by the parties.

• Vacatur has the effect of eradicating, erasing, and nullifying decisional law without any explanation or reason.

• Vacatur leaves no indication whether the vacated judgment was correct.

• Both vacatur upon settlement and summary reversals provide lower courts with no information about the assumed nature of the reversible error.

• This, in turn, denies the legal community and any potential litigant an understanding of the court's logic and interpretation of the law.

• Stipulated reversals are not the same as vacatur; they are affirmative findings of fact.

• Stipulated reversals are applied unevenly; some circuits only will vacate decisions.

• A stipulated reversal involves the courts in the destruction of a judgment, which is a public product fashioned at public expense with public resources.

• The courts are not dispute-resolution services; court judgments are designed to benefit the public as well as litigants.

• Stipulated reversals erode public confidence in the judiciary, discourage pretrial settlements, and annul judgment that might have value for third parties.

• Economic arguments (savings of court resources) and labor arguments (minimizing the burden on courts and judges) are no more valid for stipulated reversals than for non-publication.

• Stipulated reversals remove a major additional cost of going to trial: the risk of incurring an adverse judgment that cannot be bought off or settled. Even more costly to the losing defendant may be the collateral estoppel effects and precedential effects of the unreversed judgement. The removal of these risks discourages pretrial settlement.