Last month, the Ninth Circuit acted too quickly after the Supreme Court in Kuciemba v. Victory Woodworks answered questions of California law that the federal court had posed. The Court of Appeals issued its opinion adopting the Supreme Court’s answers, but it did so while the answers were still subject to modification or reversal. Although a substantive change in the Supreme Court’s opinion was unlikely, the Ninth Circuit still should have waited for the Supreme Court clerk to “notify [the requesting] court and the parties when the decision is final.” (Rule 8.548(f)(6).)
The Supreme Court today issued its finality letter in Kuciemba without its opinion having changed.
A similar wait-a-minute incident occurred earlier last month when Manson family member Leslie Van Houten was released from prison in accord with a Court of Appeal decision. The divided opinion had overturned Governor Newsom’s reversal of a parole grant, but the decision wasn’t final yet when Van Houten was released. Even though the Governor said he wasn’t going to challenge the Court of Appeal’s ruling, the Supreme Court still had jurisdiction to grant review on its own motion, something it does occasionally, and the Court of Appeal wasn’t going to issue its remittitur — marking the finality and effectiveness of that court’s judgment — until the Supreme Court’s own-motion-review time had expired.
In Van Houten, the Supreme Court did not grant review on its own motion and the Court of Appeal issued its remittitur last week.
Both Kuciemba and Van Houten turned out to be cases of “no harm, no foul,” but it’s still a better practice to take into account appellate finality rules before acting.