Last week, the Ninth Circuit requested the California Supreme Court’s help on some state law issues. Actually, the Court of Appeals didn’t request help, but rather certified questions to the Supreme Court. That’s the problem. “Certification” is so 12 years ago, as we’ve mentioned before.
California added a rule in 1998 authorizing the Supreme Court to answer questions of California law at the request of the United States Supreme Court, a United States Court of Appeals, or a state, territory, or commonwealth court of last resort. The rule called for the requesting court to “certify” questions. The terminology changed in 2003. Certification was abandoned in favor of simply having a court “request” the Supreme Court to “decide a question of California law.” That’s still the way the rule reads today.
The Judicial Council’s Appellate Advisory Committee noted the reason for the change. In its comment to the rule revision, the committee called certification “an unnecessary formalism” and it explained, “The ‘certification’ requirement apparently served the purpose of guaranteeing that the request was authentic. But the same purpose is served equally well by the more fundamental requirement — imposed by both the former and revised rules — that the request must be presented to the Supreme Court by a formal order of the requesting court. . . . Such an order is manifestly a sufficient guarantee of authenticity.”
The Ninth Circuit doesn’t always grasp the nuances of the Supreme Court rules. Will the Ninth Circuit stop certifying questions and just request answers instead? It’s not too much to ask.