Nine years ago, we wrote about how the Ninth Circuit acted too fast in a case where it had asked for the Supreme Court’s take on a question of California law. The federal appeals court decided an appeal based on the Supreme Court’s opinion answering the question, but didn’t wait for the opinion to become final. Well, the Ninth Circuit did the same thing yesterday in Kuciemba v. Victory Woodworks, Inc.

What we said in 2014 is — edited a bit — true now:

When the Ninth Circuit asks the Supreme Court to decide a question of California law, the Ninth Circuit is required to affirmatively state that it “will accept the [Supreme Court’s] decision.”  (Rule 8.548(b)(2).)  After the Supreme Court’s recent answer of a Ninth Circuit question, the federal appeals court not only accepted the decision, it did so too quickly.

Following an answer of a Ninth Circuit question, the Supreme Court clerk “must notify that court and the parties when the decision is final.”  (Rule 8.548(f)(6).)  Decisions are typically final no sooner than 30 days after the Supreme Court files its opinion, and the clerk sends a finality letter soon after that, as he did, for example, in Yahoo! Inc. v. National Union Fire Insurance Co.

In Kuciemba, the Supreme Court filed its opinion on July 6. Yesterday, just 19 days later, however, the Ninth Circuit issued an opinion affirming the dismissal of the lawsuit “[i]n light of the court’s definitive answer.” But the Supreme Court clerk’s finality letter probably won’t issue for about two weeks.

Nobody has filed a rehearing petition or request for modification in Kuciemba and the Supreme Court’s decision is very unlikely to change.  But still, things would get messy if there were a change after the Ninth Circuit had already ruled based on the original decision.

[August 8 update: Two jumps of the gun turn out to be harmless.]


Professor Shaun Martin noticed the same Kuciemba prematurity problem on his California Appellate Report blog.

Rule 8.548

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

Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions

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