I’ve been giving some more thought to the Ninth Circuit’s opinion in Vazquez v. Jan-Pro Franchising International, Inc., discussed in a post yesterday. The federal Court of Appeals ruled that the California Supreme Court’s opinion last year in Dynamex Operations West, Inc. v. Superior Court applies retroactively. The bottom-line conclusion might be correct, but that’s not what I’ve been thinking about. Instead, my attention is on one of the court’s reasons for its conclusion, a reason that makes no sense.
The Ninth Circuit didn’t exercise the option of asking the Supreme Court itself whether Dynamex is retroactive. Rather, the appellate court relied in part on the Supreme Court’s summary denial of a post-opinion request by one amici, which asked that Dynamex be modified to state the opinion is prospective only. The federal court said:
By denying the petition [sic], even without comment, the court strongly suggested that the usual retroactive application, rather than the exception, should apply to its newly announced rule. To be sure, . . . a denial of a request for clarification is not a holding on the merits. But in an unusual case such as this, it is a data point for us to consider in light of California’s general tradition that judicial pronouncements have retroactive effect.
The denial of the modification request should not be considered persuasive at all, let alone should it be seen as a “strong[ ] suggest[ion]” of the Supreme Court’s views on an issue. This follows from established rules of review.
There are exceptions, but the Supreme Court normally doesn’t consider issues raised only by an amicus curiae (California Building Industry Association v. State Water Resources Control Board (2018) 4 Cal.5th 1032, 1049, fn. 12) or raised — even by a party — for the first time in a rehearing petition (People v. Brooks (2017) 3 Cal.5th 1, 116). The Ninth Circuit itself follows these same general rules. (Tides v. The Boeing Co. (9th Cir. 2011) 644 F.3d 809, 814, fn. 6 [amicus]; U.S. v. Mageno (9th Cir. 2015) 786 F.3d 768, 775 [rehearing petition].)
The Supreme Court’s denial of the amici’s modification request was not necessarily — or likely — on the merits. It could have been — and probably was — for other reasons; say, because the retroactivity issue was raised only by an amicus and/or wasn’t raised until the rehearing petition stage.
In any event, the Supreme Court shouldn’t be required to explain its denials of modification requests and/or rehearing petitions, or else have phantom rulings gleaned from its silence. This is especially true in Dynamex, where two different amici filed requests to modify the opinion and the party petitioned for rehearing.
As mentioned in yesterday’s post, it’s not too late for the Ninth Circuit to ask the Supreme Court to conclusively decide the retroactivity question. It’s also not too late to at least remove from the Ninth Circuit’s opinion its reliance on a Supreme Court summary order.
