November 22, 2013

Keeping the Ninth Circuit waiting a bit

The Supreme Court is authorized to answer state law questions asked by courts in certain other jurisdictions.  But the Supreme Court isn’t required to answer a request and the rule does not set a deadline for the court to decide whether or not it will provide an answer.  Instead of a fixed date, the court appears to use as a rule of thumb the analogous deadline set for ruling on petitions for review — 60 days after the petition is filed, with the possibility of the court extending its own time by an additional 30 days.

This timing came to mind because there’s one pending Ninth Circuit request for an answer in which the court is using the equivalent of the 30-day extension period.  The court filed the Ninth Circuit’s request in Beauchamp v. City of Long Beach 65 days ago, and it will be 4 more days until the court’s next conference (the only Tuesday conference of the year).

This wait for an answer is not unprecedented.  Looking at the 10 requests before Beauchamp, we saw periods of as long as 68 and 70 days between filing a request and the ruling on the request.  However, there were also rulings on requests after only 35, 41, and 43 days and the average wait is only 56 days.

One common denominator:  in three of the last ten requests, the Supreme Court has declined to answer the Ninth Circuit’s question, and in all three the court waited more than 60 days to say “no.”

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