March 27, 2014

Not certifiable

Yesterday, the Supreme Court agreed to answer a state law question at the Ninth Circuit’s request.  Sometimes, however, the Ninth Circuit and other courts resist the urge to ask for the Supreme Court’s help.

Last week, two judges on a Ninth Circuit panel — in Young v. Hilton Worldwide, Inc. — rejected the dissenting judge’s suggestion that the case presented an issue that should at some point be certified to the Supreme Court.  The majority felt an existing Supreme Court decision adequately covered the issue, while the dissenter thought the court possibly “was less careful than it should have been” in that decision.

But at least the Ninth Circuit could have referred the question to the Supreme Court if it had wanted to.  In a case before the California Court of Appeal — Southwick v. Crownover — the appellant asked the Court of Appeal “to ‘certify the case for review’ to the California Supreme Court and to stay further proceedings until the constitutional issues raised herein are resolved by the high court.”  The appellate court denied the request “as inconsistent with the appellate procedures of this State.”  And inconsistent it is.  Rule 8.548(a) allows the Supreme Court to answer a question of California law at the request only of “the United States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth.”

Technically, both the Young dissenter and the Southwick appellant were wrong to suggest “certification” at all.  “Certification” is so 12 years ago.  Former rule 29.8 used to allow a court to “certify” a question to the Supreme Court.  But that terminology was eliminated in 2003, in favor of the current provision for a “request” that the Supreme Court “decide a question of California law.”  According to the Advisory Committee Comment to the rule, “certification” was “delete[d] . . . as an unnecessary formalism.”

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