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Munson v. Del Taco (9th Cir. - April 14, 2008)

By Shaun Martin

There's courtesy, and then there's courtesy.

Appellate certification requests often begin with a standard boilerplate; for example, the common "We respectfully ask the California Supreme Court to exercise its discretion and decide the certified questions below. . . ." That's how, for example, the Ninth Circuit on Thursday formulated its certified question, and the certification order then goes through the usual steps to formulate and present the question. During which, of course, the Ninth Circuit continues the usual mantra of respect, including standard lines like: "We understand that the Supreme Court of California may reformulate our question, and we agree to accept and follow the court?s decision." Sure, it's rote at this point, but, still, it's uniformly respectful.

But the Ninth Circuit today ups the respect ante, and not only includes all those standard mantras, but adds some more. Lines like: "We are mindful that our request adds to the demanding caseload of the California Supreme Court, but this case raises difficult questions of California law on which trial courts, both state and federal, are sharply divided. The questions have broad implications for disability rights under the Unruh Civil Rights Act (?Unruh Act?), Cal. Civ. Code § 51, and for countless lawsuits alleging violations of the Unruh Act. Comity and federalism counsel that the California Supreme Court, rather than this court, should answer these questions."

Which makes sense; after all, you're basically asking the California Supreme Court to do your work for you. For free. So you might as well pitch the assignment.

Sort of like: "Painting this fence is so fun. Important, too."

We'll see if the California Supreme Court takes the bait.

Full post as published by California Appellate Report on April 14, 2008 (boomark / email).