Here's something I haven't seen before.
The Ninth Circuit certifies a question to a state supreme court (here, Washington). Shortly thereafter, in a different case, the state supreme court answers the question. So the Ninth Circuit then withdraws the certification.
Makes sense. Just haven't seen it before.
But this got me thinking: Why did the panel certify the question in the first place? Initially I thought that the answer from the Washington Supreme Court might have been serendipitous, hence explaining what transpired. But nope. The Ninth Circuit certified in September 2008, and the state case that ultimately settled the issue was not only directly on point, but was already pending in the Washington Supreme Court at that time; indeed, state cases recognized even prior to September 2008 that this pending decision would anwer the question. Moreover, looking back at the original certification order, even the panel noted that the pending case in the Washington Supreme Court existed and would answer the question.
Which makes me wonder why the panel decided to certify the question rather than merely stay the appeal? Of course there's always a risk that something will happen in the underlying state case; a settlement, decision on other grounds (however unlikely), etc. But at the point at which the panel elected to certify the question, the oral argument in the pending state supreme court case was scheduled for less than 30 days hence. (Here's proof, since the Washington Supreme Court videotapes these arguments and puts 'em up on the web. How cool is that?)
In retrospect, at least, the panel should have waited, rather than certified. Especially since the Washington Supreme Court (like the California Supreme Court) issues its decisions fairly rapidly after oral argument; in this case, for example, within 90 days of oral argument. So the panel had its answer in January 2009, and a stay could have immediately been lifted at that point.
Parenthetically, it took a month and a half after the underlying decision, and only "after consultation with the Washington Supreme Court" (!), for the panel to withdraw the certified question and resume the appeal.
Did I catch this issue when I first read the certification order in September? No. Not in the slightest. So I'm clearly not blaming the panel for something that I too didn't fully grasp at the time. (Though in my defense, the panel might have known a lot more about the case than I did from merely reading the order.) I do think, however, that the general rule should be to stay -- rather than certify -- if there's a decent reason to believe that the question you'd otherwise certify will be resolved by the state supreme court anyway within, say, six months. No reason to go through the difficult (on all sides) certification process if a simple stay will do the job.
I'll call that "Professor Martin's Certification Rule No. 15". Stay tuned over the years for Rule Nos. 1-14 and 16-30. :-)
