Friday, March 7, 2008

What is "Depublication" of a Court Ruling?

In response to the Long case, the Homeschool Legal Defense Agency has started a petition requesting that the California Supreme Court "depublish" the Second Appellate Court's ruling number B192878. You can sign the HSLDA petition here.

You may be wondering what exactly does it mean for a ruling to be "depublished". I found an excellent article on the subject by attorney Kent Richland that was originally published in Los Angeles Lawyer magazine. Here are some highlights:

"Depublication [is] the California Supreme Court's discretionary power to order that a Court of Appeal opinion not be published in the Official Reports, therefore depriving the opinion of precedential value....Former Supreme Court Justice Joseph Grodin has explained that depublication is utilized when 'a majority of the justices consider the [appellate court's] decision to be wrong in some significant way, such that it would mislead the bench and bar if it remained as citable precedent,' but the issue is not of sufficient societal importance to justify full-scale review....

Depublication permits the supreme court to reserve the review process- which involves an enormous expenditure of its resources -to only the most important cases, while at the same time limiting the potential damage which might result from the fact that the trial courts are bound to follow published opinions, even if they are wrong....

Depublication thus seems to be a sensible tool for 'damage control'- particularly useful today, when the supreme court's resources are at a special premium because of the number of non-discretionary matters...which it has before it."

So in the case of the Longs, the CA Supreme Court could decide not to do a full review of whether this one particular family ought to be allowed to homeschool their children (about which there may be legitimate concerns) but rather simply say that the Second Appellate Court's decision should not be binding on all the other 166,000 or so homeschoolers in the state.

That seems to be the best option in my personal opinion. We will probably never know the truth about whether the allegations made against Mr. Long by two of his daughters are, in fact, legitimate since it's a classic "he said/she said" situation. But whatever the case may be, the judges ought to limit their ruling to the troubled family in question rather than declaring that all homeschooling in the state is illegal unless done by a credentialed tutor.

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