Appellate practitioners are familiar with the need to identify a standard of review for the court of appeal’s review of a trial court decision — but what standard does the Supreme Court apply when it reviews the court of appeal decision?
Before 1984, this was not an issue since at that time the Supreme Court reviewed the trial court ruling, and the intermediate appellate ruling simply disappeared. In 1984, however, the state constitution was amended to note that the Supreme Court reviews the decision of the court of appeal.
This week, the California Supreme Court in City of Stockton v. Superior Court stated (apparently for only the second time) that its review of the appellate decision is an independent judgement review. The court cited its earlier decision in Smiley v. Citibank, 11 Cal. 4th 138 for this proposition which in turn had noted that the court was duty bound not to defer to the court of appeal ruling.
Although the rules of review changed in 1984, California still does not publish the court of appeal decision once review is granted. California Rule of Court 8.1105 provides for automatic depublication once review is granted — it is then up to the Supreme Court to specially order partial publication. This becomes important since the Supreme Court does not review the entire court of appeal decision. Instead, the court only reviews specific issues presented for review.
Appellate counsel should keep this point in mind when advising clients (especially those who are not party to the appeal) whether to ask the court to publish a portion of an appellate ruling on which review has been granted. Without that partial publication order, no part of the appellate ruling may be cited as precedent — including that part on which the Supreme Court did not grant review.