January 24, 2011

The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions

In “A Second Crack at Prop. 8” in last Wednesday’s Daily Journal [subscription required], Second District Court of Appeal senior judicial attorney Phil Goar has written a thoughtful article about California Rules of Court, rule 8.548, which allows various non-California-state courts to ask the California Supreme Court to answer questions of California law. It’s a topic Goar has written about before. (Goar, California’s Certified Question Procedure: From Birth To First Steps (2004) 17 California Litigation 4.)

Goar’s article addresses the procedure in the context of the Ninth Circuit Court of Appeals’ request that the Supreme Court answer a question about the legal standing of ballot initiative proponents to defend an initiative in state court. We’ve discussed that request.

Goar states that “[t]he state Supreme Court has never addressed the validity of Rule 8.548” and comments, “Ironically, the California court rule that may lead to the 9th Circuit striking down Prop. 8 as unconstitutional may itself be unconstitutional” because “some scholars believe it confers jurisdiction on the court in violation of Article VI of the California Constitution” by allowing the court to issue advisory opinions.

The Supreme Court may not have specifically upheld the constitutionality of rule 8.548, but it has acted to discourage constitutional attacks on the procedure. In its first opinion answering a question posed by another court, the Supreme Court went out of its way to note that “[s]ister courts in states with constitutions similar to the California Constitution uniformly have found that jurisdiction to entertain and decide certified questions, under a procedure adopted by rule or statute, is properly within the powers of a state supreme court” and that, “[s]imilarly, our sister-state high courts overwhelmingly have rejected contentions that in answering a certified question a court issues an improper advisory opinion.” (Los Angeles Alliance For Survival v. City of Los Angeles (2000) 22 Cal.4th 352, 361-362.)

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