March 12, 2017
Occasionally, three justices will want to grant a petition for review, but cannot garner the fourth vote to hear the case. Here’s a variation on that theme: recently, one Ninth Circuit judge (actually, a Fourth Circuit judge sitting by designation) wanted to refer a state law question to the Supreme Court for decision under rule 8.548 of the California Rules of Court, but he couldn’t get either of his two colleagues to go along with the ask. The case is Archer Western Contractors v. National Union Fire Ins. Co. of Pennsylvania and the issue was one of insurance law.
The Ninth Circuit’s requests for Supreme Court help are often in insurance cases (see, e.g., here, here, and here), but this one a majority of the Ninth Circuit panel felt comfortable handling themselves.