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general / Appellate Practice

When the 9th Circuit turns to the California Supreme Court

The 9th U.S. Circuit Court of Appeals must occasionally resolve questions of California law. What happens when California law is unclear or undeveloped? A panel of the 9th Circuit sometimes invokes a certification procedure unavailable to California’s lower courts: It can ask the California Supreme Court to decide state-law questions. Ninth Circuit panels sporadically take advantage of this option, and the Supreme Court often (but not always) agrees to take up these certified questions.

So far, so good. But what happens when one panel of the 9th Circuit decides an issue of California law in a binding, published opinion — without resorting to the certification procedure — and a later panel expresses doubts about the prior panel decision and would prefer to certify the issue to the California Supreme Court? The answer turns out to be thorny.

For years, circuit precedent indicated that the later panel may not disregard the prior panel’s decision, and may certify the question of state law only if intervening developments in state law, occurring after the earlier panel’s decision, warrant certification. Recently, however, a panel in Troester v. Starbucks Corp., 680 F. App’x 511 (9th Cir. 2016), employed a different standard. The panel certified an issue to the California Supreme Court based on state appellate decisions predating (not postdating) 9th Circuit precedent that had resolved the same state law question without certification.

It remains to be seen if this recent development portends the 9th Circuit’s adoption of a new, less stringent certification standard.

The Usual Rules Governing Certification to the California Supreme Court

California Rule of Court 8.548 authorizes the California Supreme Court, on request of the 9th Circuit, to decide a certified question of state law if it will be outcome-determinative and there is no controlling precedent.

The 9th Circuit reserves this certification procedure for questions presenting “significant issues, including those with important public policy ramifications, and that have not yet been resolved by the state courts.” Kremen v. Cohen, 325 F.3d 1035, 1037 (9th Cir. 2003). Certification is not employed for “run-of-the mill” cases or to evade diversity jurisdiction. Id. at 1038.

9th Circuit Precedent and the Certification Standard

Ninth Circuit panels decide questions of California law by following decisions of the California Supreme Court. If there are none, panels follow decisions of the California Courts of Appeal “unless there is convincing evidence that the California Supreme Court would hold otherwise.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 889 (9th Cir. 2010). And if California courts have never addressed a question, a panel must draw upon other legal sources, including the views of California agencies, treatises and other states’ jurisprudence.

Ordinarily, “[o]nce a [9th Circuit] panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the [United States] Supreme Court.” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). A later panel may not choose a different rule than an earlier panel unless intervening higher-court decisions or comparable legal developments undercut the earlier panel’s decision. Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc). This rule applies to panel decisions interpreting California law: A prior panel’s “interpretation of California law” is “‘only binding’” on a later panel “in the absence of any subsequent indication from the California courts that [the 9th Circuit’s] interpretation was incorrect.” Munson v. Del Taco, Inc., 522 F.3d 997, 1002 (9th Cir. 2008) (citation omitted).

Hence, when a new panel confronts a California law issue resolved by a prior panel, the new panel examines whether intervening California Court of Appeal decisions cast doubt on the earlier panel’s decision.

In Munson, a 9th Circuit panel addressed a question of state law that was resolved by a different panel years earlier. The Munson panel certified the issue to the California Supreme Court instead of following the earlier panel. The Munson panel did so because an intervening California Court of Appeal opinion declared the earlier federal precedent was wrong. While that could have been enough to disregard the earlier panel decision and proceed, there were reasons to doubt the Supreme Court would agree with the intervening decision. And that left the Munson panel “uncertain as to how to predict accurately what the California Supreme Court would hold,” further bolstering the case for certification. Id. at 1001-03.

Likewise, Emery v. Clark, 604 F.3d 1102 (9th Cir. 2010), addressed a question of California law resolved by prior panels (over a dissent). Several California Courts of Appeal had since concluded that those earlier panel decisions misinterpreted California law. Confronted by this conflict and the dissent, the Emery panel determined that “the California Supreme Court should have the opportunity to speak for itself” and therefore certified the issue. Id. at 1119-20.

Recent Signs of a Less Stringent Certification Standard

In Troester, the 9th Circuit recently took a different approach — certifying to the Supreme Court an issue already resolved by a prior panel absent intervening developments undermining confidence in the prior panel decision.

The plaintiff in Troester alleged that his former employer violated California’s wage-and-hour laws by failing to pay for time spent on activities while closing a store. For years, federal courts had recognized a “de minimis” defense to wage-and-hour claims arising under federal law. This defense foreclosed employees from recovering otherwise compensable time in de minimis amounts. The district court in Troester granted summary judgment to the employer on this basis.

On appeal, plaintiff argued the de minimis rule was inapplicable to claims under California law. While the appeal was pending, a 9th Circuit panel resolved that issue in a different case. Corbin v. Time Warner Entm’t-Advance/Newhouse P’ship, 821 F.3d 1069, 1081 n.11 (9th Cir. 2016).

The Corbin panel found no California Supreme Court decision on point. The panel therefore followed a California Court of Appeal decision applying the federal de minimis standard to a state wage claim (the same rule adopted by California’s Division of Labor Standards Enforcement, the state agency charged with the enforcement of California’s labor laws).

Nonetheless, a month later, the Troester panel certified the de minimis rule issue to the California Supreme Court. The panel acknowledged that Corbin had recently resolved the issue. Yet the panel did not identify any intervening post-Corbin legal developments casting doubt on Corbin. The state authorities Troester cited to justify certification were decided before Corbin, and the Corbin panel expressly found no convincing evidence the California Supreme Court would refuse to apply the de minimis rule to California claims. In effect, the Troester panel simply disagreed with Corbin, believing pre-Corbin cases raised questions about whether California’s high court would apply the de minimis rule.

It is unclear whether Troester signals a new approach to certification. The Troester panel did not publish its certification order. It remains to be seen whether future 9th Circuit panels assessing whether to certify questions of state law resolved by prior 9th Circuit precedent feel bound by the stringent law-of-the-circuit rule enunciated in Massanari and Miller, or whether panels relax their criteria to permit certification under the circumstances presented in Troester.


Ben Armistead

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