In today's Recorder Ben Feuer's On Appeals column presents 20 Years On, California Supreme Court's Federal Certification Rule a Success.
In 1998, a fashionably late California joined 44 states in adopting a procedure to allow out-of-state courts to request the state supreme court decide unsettled questions of state law relevant to their ongoing proceedings. Primarily aimed at federal courts, which frequently hear state law claims under their diversity jurisdiction, the rule was controversial and faced stiff resistance at the outset. But now, two decades on, it’s turned out a great success. ....
California Rule of Court 8.548 provides a formal request process by which a federal court faced with a decision that hinges on California law can ask the California Supreme Court to decide the issue. It must be one without clear California precedent, and the request must be framed as a question. While the original rule required the request to be stamped with a “certified” seal by the federal court—hence the “certification” moniker applied to the procedure—the rule has since been revised to operate off any order issued by a foreign court.....
Thus far in 2018, the court has already granted five requests from the Ninth Circuit, denied two, and at least one is currently pending—with nearly a quarter of the year left. ....
Thus, the lesson for counsel with diversity appeals involving California law is to ensure they always evaluate the potential for requesting referral to the California Supreme Court at the outset. Given how well the certification rule has worked in the past two decades—and especially if California law is genuinely ambiguous—the courts may be inclined to seriously consider the request.
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