Yet I think that what the Court did is squarely impermissible.
Part of it I'm fine with. The Court of Appeal issued an published opinion in 2013. The California Supreme Court granted review in 2013. That meant that the opinion was automatically depublished. (At least under California's crazy rules, which will hopefully soon be amended.) So far, so good.
But then, earlier this year, the petition for review was dismissed. That's fine too. Though the dismissal of the petition doesn't automatically republish the case. So today, the Court orders the opinion republished.
It can do that. It seems right. You granted review, then dismissed review. You're allowed to put the opinion back to its old published -- precedential -- status if you'd like. Fair enough.
During this whole process, however, the status of one of the cases cited in one of the footnotes of the opinion had changed. No biggie. The California Supreme Court simply fixes the problem, and in addition to republishing the opinion, today's order declares:
"The opinion is ordered republished with the following amendment to original footnote 6 at page 723 (additions underlined and deletions stricken through):
Division Five of this appellate district rejected Fitz-Gerald’s analysis in part in People ex rel. Harris v. Pac Anchor Transportation, Inc. (May 18, 2011, B220966) 195 Cal.App.4th 765, review granted August 10, 2011, S194388.
You can see why the Court does this. The status of the case has changed, so it updates the footnote, and also makes a tiny change to the text to make clear that the Court of Appeal was talking about an appellate district.
Except you can't do that.
I've looked at the rules. There's clearly a rule that says that the California Supreme Court can republish a depublished opinion. But I can't find anywhere a rule that says that the California Supreme Court can change the text of the opinion, either inside or outside of the context of a republication order.
Sure, the Court can grant review, and enter its own opinion if it wants. An opinion that then has the precedential effect of an opinion by the California Supreme Court. But it can't change the opinion, even in a minor way, of the Court of Appeal. Or at least I can find no rule anywhere that says otherwise.
Moreover, the existing rule makes sense. For one thing, the Court shouldn't be allowed to put words in another person's mouth -- here, the justices who wrote and concurred in the opinion in the Court of Appeal. For another, we've got a straightforward review process, and it works just fine, so there's no real need to allow the California Supreme Court to "drop down" to the Court of Appeal for a moment and line-edit that tribunal's opinions.
Look, I get it: The amendment here is totally nonsubstantive. I have no doubt that the Court of Appeal would be totally fine with it.
But rules are rules. The California Supreme Court can publish, or depublish, or republish an opinion from the Court of Appeal. It can even grant review and supercede it with an opinion of its own.
But at least as far as I can tell, it's not allowed to amend the opinion below. Either in a substantive fashion or otherwise.
Notwithstanding what the Court does today.