- those that have been "certified for publication" by a California Court of Appeal but not yet acted on by the Supreme Court; and
- unpublished opinions from other jurisdictions, whether it be the Ninth Circuit, the State of Nevada, or the Republic of Freedonia.
These changes are significant, for they allow both litigants and courts to use the reasoning from other cases in resolving current disputes -- precisely what the legal process is all about. Unpublished or depublished opinions of California's appellate courts remain uncitable, but that is presumably because either the issuing court or the Supreme Court has decided they should not be relied on.
The two phrases added to Rule 977(a) by last year's amendment are indicated here in bold:
An opinion of a Court of Appeal or an appellate department of the superior court that is not certified for publication or ordered published shall not be cited or relied on by a court or a party in any other action . . .
Without the new language, the rule appeared to say that no opinion of any court could be cited or relied on unless and until it was ordered published. But unfairness resulting from such a strict interpretation led to some uncertainty.
Oddly enough, the first uncertainty that the amendment cleared up was what exactly the rule meant by "published." That uncertainty arose when the Fourth Appellate District, Division Three, held that a new Court of Appeal opinion is not really published until the California Supreme Court "deems" it published by denying review. People v. Superior Court (Clark), 22 Cal. App. 4th 1541 (1994).
Clark was based on an interpretation of article VI, section 14, of the California Constitution, which provides for publication of court of appeal opinions "as the Supreme Court deems appropriate." According to Clark, that meant a Court of Appeal's certification of an opinion for publication was merely an intermediate step, because "the ultimate decision as to whether the opinion shall be published rests with the Supreme Court." Thus, an opinion certified for publication -- and even printed in the Advance Sheets -- was not "published" and therefore not citable.
Clark was wrong for a variety of reasons. Not only did it ignore Rule 976(c)(1), which says that a court of appeal opinion "shall be published" if the court issuing the opinion certifies it for publication, but it also made no sense. Indeed, courts and litigants continued after Clark to cite "new" court of appeal opinions. The new amendment to Rule 977(a) recognizes this reality and effectively overrules Clark -- something you aren't likely to learn from Shepard's Citations.
Nor will Shepard's tell you that the new amendment also effectively overrules another anomalous decision from Division Three of the Fourth District, the same court that decided Clark. In ACL Technologies, Inc. v. Northbrook Property & Casualty Ins. Co., 17 Cal.App.4th 1773 (1993), that court said Rule 977 prohibited citing all unpublished opinions, no matter what court they came from. Though other California courts had allowed citation to unpublished federal court decisions and decisions from administrative agencies, the ACL Technologies opinion reasoned that Rule 977's prohibition on the citation of unpublished decisions "makes no differentiation between state or federal cases."
By limiting its application to opinions "of a Court of Appeal or an appellate department of the superior court ," however, the amended rule clearly permits litigants and courts to cite any unpublished opinion they find -- as long as the opinion is not one written by a California Court of Appeal or superior court appellate department. Indeed, the amended rule permits citation to an unpublished California trial court opinion, as well as to an unpublished opinion that would not be citable in the jurisdiction it comes from. Finally, the press release announcing the new amendment notes that the Supreme Court and Judicial Council declined to amend the Rule "to prohibit the citation of opinions available only in a computer-based source of decisional law or in a specialized or topical reporter." Thus, these too may be cited, though, as a matter of fairness, opinions available only in computer-based sources must be furnished to the court and the parties, either with the pleading that cites them, or within a reasonable time in advance of citation in oral argument.
Of course, whether you should cite to any of this unpublished authority is a more perplexing tactical question. Even an opinion that deals with a question of first impression is not likely to carry much weight in a California court if it is unpublished. But if it is all you've got, at least now you know you can use it.