When I started reading this case, which certifies a question to the California Supreme Court, I had an unusual thought. Unusual for me, anyway. My initial reaction was: "Hey, I love certification as much as the next guy, and generally even more. I typically like the modesty and comity and restraint that it entails. But this seems to go overboard, even for me. There isn't an oft-repeated or critical legal issue at stake here, so I don't see why the Ninth Circuit can't just decide the case by itself. Sure, it's a prediction. But give it a shot." It was, I initially thought, one of those very rare cases in which I thought that certification might not be worthwhile.
But then I read the rest of the opinion. And Judge Gould persuaded me that this is actually precisely the sort of case in which certification is appropriate.
Here's the paragraph that convinced me that Judge Gould was entirely right and I (or at least my first reaction) was wrong:
"When “there is no relevant precedent from the state’s highest court, but . . . there is relevant precedent from the state’s intermediate appellate court,” we “must follow the state intermediate appellate court decision unless [we] find[ ] convincing evidence that the state’s supreme court likely would not follow it.” Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007) (emphasis omitted) . . . . We are particularly reluctant to follow [the California Court of Appeal's decision in] Shipman in light of the harsh result that granting immunity here would create, where Klein’s injuries were so severe and where he would have been able to seek recovery for those injuries from Anderberg’s employer if that employer had been anyone but the federal government. However, because we are “in doubt” about how the Supreme Court of California would resolve this important question of California law concerning immunity of a landowner for its employee’s negligent vehicle operation on its land harming a recreational user of such land, we prefer if possible to let that court speak to the issue rather than making our best prediction of what it would say."
Wonderful. And absolutely correct. I like it when a federal court thinks to itself -- and even says out loud -- "Look, we think that X got it wrong, and might well hold that way. Because that's our idea of justice. But we understand that this is your law, and that our role isn't necessarily to do what's right or equitable here. So we will restrain our own power, let you know what we're thinking, and give you a chance to decide. Let us know if you want to take this thing yourself, or would instead prefer that we just go ahead and do what we're thinking." I very much like the sentiment -- and restraint -- that entails.
