Consistency of a Rule Is Tested Against the Statutory Scheme
The Judicial Council of California is constitutionally empowered to adopt rules for court administration, practice and procedure, providing they are not inconsistent with statute. (Cal. Const., art. VI, 6).
The consistency of a rule is tested against the statutory scheme the rule was intended to implement. (See People v. Hall (1994) 8 Cal. 4th 950, 959-960 35 Cal. Rptr. 2d 432, 883 P.2d 974).
California Constitution, article VI, section 14 requires the Legislature to provide for the prompt publication of such opinions of the Courts of Appeal "as the Supreme Court deems appropriate." GOVERNMENT CODE SECTION 68902 STATES:
"Such opinions . . . of the courts of appeal . . . as the Supreme Court may deem expedient shall be published in the official reports which shall be published under the general supervision of the Supreme Court."
The broad constitutional and legislative authority granting the Supreme Court selective publication discretion manifests a policy that California's highest court, with its supervisory powers over lower courts, should oversee the orderly development of decisional law, giving due consideration to such factors as (a) "the expense, unfairness to many litigants, and chaos in precedent research," if all Court of Appeal opinions were published, and (b) whether unpublished opinions would have the same precedential value as published opinions. (People v. Valenzuela (1978) 86 Cal. App. 3d 427, 441 150 Cal. Rptr. 314 (dis. opn. of Jefferson, J.) addressing issue not addressed in maj. opn).
By providing the mechanism for realizing this policy, the rules are consistent with the statutory scheme they were intended to implement.