Bank Group Seeks Depublication Of Bank Libel Opinion

In this post, I wrote about a recent decision by the First District Court of Appeal declaring Financial Code Section 1327 unconstitutional on its face. Summit Bank v. Rogers, 2012 Cal. App. LEXIS 633 (May 29, 2012).  That statute generally makes it illegal to make derogatory comments about a bank.  In this 2010 post, I had speculated on constitutionality of Section 1327:

Moreover, it seems that prosecution would invite a claim that the statute violates the First Amendment of the U.S. Constitution and Article I, § 2(a) of the California Constitution. That is what happened with a similar Nevada statute, NRS 668.10. [citing Culinary Workers Union Local 226 v. Frankie Sue Del Pappa, 200 F.3d 614 (1999)].

Recently, the California Bankers Association asked the California Supreme Court to depublish the Summit Bank opinion.  The CBA argues:

The constitutionality of the bank libel statute had not been litigated at trial nor by the parties on appeal, but was first raised by the court of appeal itself.  The issue was simply not ripe for adjudication and it was inappropriate for the court to take the extraordinary action.

Requests for depublication are governed by the California Rules of Court.  See Rule 8.1125.  Pursuant to Article 6, Section 14 of the California Constitution, the Supreme Court has the ultimate authority to decide what gets published and the legislature has the responsibility of providing for the prompt publication of opinions.

Should the CBA succeed in its request, the depublication order should not be an expression of the Supreme Court’s opinion of the correctness of the result of the decision or of any law stated in the opinion.  Rule 8.1125(d). However, the opinion, with limited exceptions, “must not be cited or relied on by a court or a party in any other action.”  Rule 8.1115(a)