Selective Prospectivity Definition
Relying principally on James B. Beam Distilling Co. v. Georgia (1991) 501 U.S. 529 111 S. Ct. 2439, 115 L. Ed. 2d 481 (Beam) rules violate the constitutional guarantees of due process and equal protection (U.S. Const., 14th Amend.; Cal. Const., art. I, 7, subd. (a)) by creating a system of selective prospectivity that allows courts to create a new rule of law applicable to a single case.
As articulated in Beam, selective prospectivity occurs when a court expressly overrules a decisional precedent, but applies the new rule only to the case in which the new rule is announced, returning to the old rule with respect to all other cases arising on facts predating the pronouncement of the new rule. (501 U.S. at pp. 534-537 111 S. Ct. at pp. 2442-2444).
Beam held that in civil as well as criminal cases, when the court applies a new rule of law to litigants in one case, "it must do so with respect to all others not barred by procedural requirements or res judicata." ( Id. at pp. 538, 544 111 S. Ct. at pp. 2444, 2448).
As Beam also observed, opinions that overrule precedent are rare. "In the ordinary case, no question of retroactivity arises. Courts are as a general matter in the business of applying settled principles and precedents of law to the disputes that come to bar.
Where those principles and precedents antedate the events on which the dispute turns, the court merely applies legal rules already decided, and the litigant has no basis on which to claim exemption from those rules." ( Id. at p. 534 111 S. Ct. at pp. 2442-2443).
The rules protect against selective prospectivity by providing a uniform and reasonable procedure to assure that actual changes to existing precedential decisions are applicable to all litigants.
They require that all opinions of the state's highest court be published. (Rule 976(a)).
They establish comprehensive standards for determining publication of Court of Appeal cases, particularly specifying that an opinion announcing a new rule of law or modifying an existing rule be published. (Rule 976(b)).
They permit any member of the public to request the Court of Appeal to publish an opinion and, if the request is denied, require the Supreme Court to rule thereon. (Rule 978).
In short, the rules assure that all citizens have access to legal precedent, while recognizing the litigation fact of life expressed in Beam that most opinions do not change the law.
If appellant's view prevailed, the Supreme Court would be unable to decertify opinions for publication, which would seriously compromise its ability to control the direction of appellate precedent.
The validity of the publication rules finds support in the parallel rules of the federal court system. In the Court of Appeals for the Ninth Circuit, for example, only opinions, not memoranda, are published. (See U.S. Cir. Ct. Rules (9th Cir.), rules 36-1, 36-2 & 36-3, 28 U.S.C).
Ninth Circuit rule 36-3, like California Rules of Court, rule 977, provides that dispositions other than opinions and orders designated for publication are not precedent and may not be cited except as relevant to law of the case, res judicata or collateral estoppel.