A high-percentage way to get a case into the California Supreme Court is to have the Ninth Circuit make the ask for you. More often than not the Supreme Court will agree to help out the federal appeals court when the latter tribunal needs an answer to a state law question. But what happens when the case settles after the Supreme Court has agreed to answer, but before it has answered, the question? Again, you need the Ninth Circuit to do the asking.
In Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., the Supreme Court agreed to answer the Ninth Circuit’s question about the applicability of California’s Disabled Persons Act to websites. The case settled (after the opening brief on the merits was filed) and one or both of the parties filed in the Supreme Court a motion to dismiss the appeal. Wrong court. The Supreme Court denied the motion, stating that “[t]he appeal is pending not in this court, but in the United States Court of Appeals for the Ninth Circuit” and noting that “the Ninth Circuit has not vacated its order . . . certifying a question to this court . . . or otherwise requested that this court not proceed in this matter.”
So, the appellant then moved in the Ninth Circuit to dismiss the appeal. Last week, the Ninth Circuit granted that motion and withdrew its “request for certification.” That should do it . . . even though the Ninth Circuit used the outdated “certification” nomenclature. Under rule 8.548, the Ninth Circuit now “request[s]” the Supreme Court to “decide a question of California law.”
Expect the Supreme Court to soon get this case off its docket, maybe even at this Wednesday’s conference. Not that it matters a lot, but it will be interesting to see how the court phrases its order. Rule 8.548 doesn’t provide for a situation like this and I don’t remember this happening before. When the court dumps a state court case after granting review, it can “dismiss review.” But “dismissing” the grant of a request to decide a question of California law sounds awkward. I vote for “vacating” the order that granted the request to decide a question of California law.
[October 24 Update: The Supreme Court on October 22 vacated its order granting the Ninth Circuit’s request to decide a question of California law. “Vacated” instead of “dismissed” — good call!]