In a program hosted by the Appellate Courts Section of the Los Angeles County Bar Association yesterday (see here), Supreme Court Justice Leondra Kruger and Ninth Circuit Judge John Owens discussed the federal appeals court’s occasional requests to the state high court for help in deciding questions of California law.  Buchalter shareholder and appellate lawyer M.C. Sungaila moderated.

Judge Owens said it’s a “tricky” decision whether to ask the Supreme Court to answer a state law question.  On the one hand, he said, it slows down the Ninth Circuit’s resolution of an appeal when it puts a case on hold pending a Supreme Court decision, and also the Ninth Circuit is hesitant to impose on a busy Supreme Court by adding to the latter’s caseload.  On the other hand, Owens said he doesn’t want to mess up California law, especially given the national and international prominence of the state’s legal system and economy.

Justice Kruger humorously, but sincerely, responded it was “lovely to hear” that the federal court doesn’t want to impose, and she acknowledged the Ninth Circuit is “judicious” about referring cases.  In fact, the Ninth Circuit has sent only eight cases in the last three years, the most recent just last week.  Most requests for answers are granted — for example, the Supreme Court has granted 11 of the last 12 Ninth Circuit requests (not counting last week’s, which is pending), dating back to July 2018.

The judges also talked logistics.

Owens said his court rarely decides before oral argument to ask the Supreme Court for assistance.  Often, that decision is made sua sponte, not on a party’s suggestion.  Owens offered that it might not be the best idea for a party to ask at all since he might interpret the request as a sign the party has a losing position.  He also recommended that, if a request is made, it should be made in a brief, not in a motion.

Kruger disclosed that the Supreme Court handles Ninth Circuit requests like petitions for review, meaning one of the court’s central staffs of attorneys will work up the requests for the justices.  Additionally, the court treats an accepted case as any straight-granted case, meaning the case won’t be expedited unless there’s a specific timing reason to do so.

However, Ninth Circuit referrals aren’t the same as straight-granted cases in all ways.  Kruger said the Supreme Court justices “want to stay in our lane,” so they will stick to answering the posed question(s) without relitigating, for example, whether an issue was waived.  And the court will not apply the law it states to the facts of the case, but will leave that to the Ninth Circuit once the question is answered.  Kruger also said that, in deciding a Ninth Circuit referral case, she will review not only the Supreme Court briefing, but the Ninth Circuit briefing and excerpts of record.


Rule 8.548

The shadow docket . . . of California’s Supreme Court, part 2

Asked and answered:  California Supreme Court responses to Ninth Circuit questions

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

Ask not what the Supreme Court can do for the Ninth Circuit

Requesting the Ninth Circuit to request, not certify