The Ninth Circuit often makes use of rule 8.548, which allows certain courts outside the California state judicial system to ask the Supreme Court to decide questions of California law. The Supreme Court is almost always obliging. Last year, the federal appellate court sought help in five cases and the Supreme Court agreed to answer questions in four of them.
Sometimes, however, the Ninth Circuit almost asks for help, when the court’s judges disagree about whether to refer the case or to decide the California law issue themselves. (E.g., here.) That happened again last week.
In City of Pomona v. SQM North America Corporation, a products liability case, the Ninth Circuit reversed a defense judgment after jury trial in a memorandum disposition by Judge Kim Wardlaw and a district court judge sitting pro tem. The court found prejudicial instructional error. But Judge Kenneth Lee dissented, claiming the Supreme Court itself should be asked to clear up what he sees as an ambiguity in the court’s 1978 decision that the majority cites as a reason for the reversal. The majority says there’s nothing to clarify — “we simply take the California Supreme Court at its word.”
The Ninth Circuit panel memorandum is not necessarily the end of the story. Occasionally, the federal court has changed its mind on rehearing or en banc about referring a state law question to California’s high court. (See here, here, and here.)
[March 17 update: There will be no rehearing or rehearing en banc. The majority judges and the dissenter, too, today voted to deny rehearing en banc and no other judge of the full court requested a vote on whether to rehear the matter en banc.]
