For the third time in a little over two months, the Ninth Circuit is asking the Supreme Court to resolve an issue of California law, this time about the Song-Beverly Credit Card Act. In Davis v. Devanlay Retail Group, Inc., the federal appeals court has posed this question: “Does section 1747.08 of the California Civil Code prohibit a retailer from requesting a customer’s personal identification information at the point of sale, after a customer has paid with a credit card and after the cashier has returned the credit card to the customer, if it would not be objectively reasonable for the customer to interpret the request to mean that providing such information is a condition to payment by credit card?”
The Ninth Circuit says that, “[b]ecause we find no controlling precedent, and because the meaning of the statute is ambiguous, we are uncertain whether the district courts are correctly applying California law in construing Song-Beverly to require an objective test of consumer perceptions.” The court’s sales pitch to the Supreme Court is that the answer to the question asked “could have a significant impact on the practices of thousands of California retailers.”
The Supreme Court usually agrees to answer questions when the Ninth Circuit asks. It did so in two different cases last week. Indeed, of the last 14 requests (dating back to the beginning of 2011), the Supreme Court has said “no” only twice (here and here), and the last eight requests have been granted. But the Supreme Court might at some point balk at having the Ninth Circuit add cases to its docket, especially when that docket is comprised of a substantial number of automatic death penalty appeals, which the Supreme Court must decide.
[May 6 Update: The Supreme Court has docketed the case.]