The U.S. Supreme Court is not the only court with a shadow docket, “shadow docket” referring to cases decided without full briefing or oral argument.  California’s Supreme Court has one, too.

We’ve written about how the state court years ago attached short statements to Court of Appeal opinions it was declining to review.  The statements sometimes made law, including at least once disapproving an earlier appellate decision.

Much more recent instances of shadow docket decisions have come in responses to Ninth Circuit requests under rule 8.548 for answers to specific questions of California law.

Take the 2018 case of Patterson v. City of Yuba City, for example.  On a state law issue of importance to the Ninth Circuit in the matter, a 2007 Sixth District Court of Appeal opinion had questioned the reasoning of a 1999 Fourth District, Division Two opinion, so the federal court said it was “left at an impasse” and asked the Supreme Court for help.  (Patterson v. City of Yuba City (9th Cir. 2018) 884 F.3d 838, 842.)  The case ended up on the shadow docket.

The Supreme Court’s very brief order two months later said the court was denying the request “to decide questions of California law,” but the order then essentially did decide the question anyway.  The order included a “see” cite to the Fourth District case and to a 2015 opinion from another Court of Appeal that followed the Fourth District decision.  The order didn’t mention the Sixth District case.  The Ninth Circuit took the not-so-subtle hint, noting the order’s citations and saying it was “therefore” relying on the Fourth District opinion rather than the Sixth District opinion “as a guide for how the California Supreme Court would decide this case.”  (Patterson v. City of Yuba City (9th Cir. 2018) 748 Fed.Appx. 120, 121, fn. 1.)

Patterson is not unique.

In 2007, the federal appeals court said Supreme Court and Court of Appeal decisions didn’t “provide a conclusive answer” whether, under the state constitution, to “review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard.”  (Fantasyland Video, Inc. v. County of San Diego (9th Cir. 2007) 496 F.3d 1040, 1040.)  It requested an answer from the Supreme Court.

The Supreme Court “denied” the request, but added two sentences to its denial order saying that “California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny” and that “[c]urrently, California law does not suggest that restrictions upon the hours that adult businesses may operate require review under any test other than the intermediate scrutiny standard applicable to other content-neutral regulations.  [Citations.]”  The Ninth Circuit then went along with what the Supreme Court had “indicated in its response to our certified question.”  (Fantasyland Video, Inc. v. County of San Diego (9th Cir. 2007) 505 F.3d 996, 1001.)

And in 2015, the Ninth Circuit asked for Supreme Court aid because it found “no controlling precedent” about how to interpret an “ambiguous” California statute.  (Davis v. Devanlay Retail Group, Inc. (9th Cir. 2015) 785 F.3d 359, 360.)  After almost four months, the Supreme Court denied the request, but said it was doing so “[i]n light of [a] subsequent [Court of Appeal] opinion” cited in the denial order.  At the same time, the court denied review and depublication of the appellate opinion.  The shadow docket ruling was the equivalent of endorsing the Court of Appeal decision as the “controlling precedent” the Ninth Circuit was looking for.

We’ll discuss still more shadow docket cases in the future.