The Ninth Circuit frequently exercises its option under rule 8.548 to ask for the California Supreme Court’s assistance in determining state law issues. And the Supreme Court usually agrees to help. The Ninth Circuit has sent four requests this year; the Supreme Court has granted three (here, here, and here) and one is still pending.
But the federal appeals court apparently doesn’t want to wear out its welcome. Sometimes when it asks a question, it politely “recognize[s] that our certification request adds to the substantial caseload of the Court.” Other times, however, it simply doesn’t ask at all, even though it might be a close call. This restraint occurs more often than you’d think.
We noted a non-ask case four months ago. Recently, there have been other such cases. Just two days ago, in United States v. Martinez-Lopez, an en banc Ninth Circuit declined the pleas of three of its judges to send a question to the Supreme Court. Similarly, last month, in First Resort, Inc. v. Herrera, a concurring judge wanted to ask for a Supreme Court decision on a California state law issue, but the two other panel judges didn’t go along. And also last month, in Cooper v. Tokyo Electric Power Co., the court avoided ruling on an issue of California law that “may well require us to certify a question to the California Supreme Court.”
There might be a number of Ninth Circuit requests, but it could be worse.