The Ninth Circuit of late has used rather sparingly its power under rule 8.548(a) to ask the California Supreme Court to answer questions of state law. Over the past 31 months, the federal court has made only three requests, the last one coming in January. But there was almost another ask last month.
In Weiss v. The Permanente Medical Group, an employee’s lawsuit claiming discrimination in not granting a religious exemption from a COVID-19 vaccine requirement, a divided Ninth Circuit memorandum reversed the dismissal of a privacy claim under the California Constitution. (In a separate opinion, the panel unanimously reversed the dismissal of federal and state statutory claims.)
The memorandum majority held, “Weiss has alleged a sufficiently significant intrusion into her privacy interests by stating that her employment was conditioned on taking a vaccine that she objected to, that TPMG asked intrusive questions about her religious and medical history, and that TPMG did not seriously consider her religious objections.”
The dissent framed the issue this way: “Whether a private health care provider’s policy requiring employees to either obtain a COVID-19 vaccination or qualify for a religious or medical exemption constitutes a ‘serious invasion of privacy’ under the California Constitution.” And it contended the Ninth Circuit should request the Supreme Court’s help because, quoting rule 8.548(a), “[t]his issue lacks ‘controlling precedent’ under California law and ‘could determine the outcome’ of this case.” The dissent also found it “doubtful the California Supreme Court would agree” with the panel majority, “predict[ing] the California Supreme Court would hold that TMPG’s COVID-19 vaccination policy does not constitute a serious invasion of privacy under the California Constitution.”
If the case had been referred to the Supreme Court, it would have added to that court’s pandemic docket.
Occasionally, on rehearing or en banc, the Ninth Circuit has changed its mind about not referring a state law question to California’s high court. (See here, here, and here.)
Related:
Ask not what the Supreme Court can do for the Ninth Circuit
Ninth Circuit dissenter wanted to send insurance law question to the Supreme Court
