I'm somewhat sympathetic to the points that Judge Bea makes in his dissent. Some of them, anyway.
The case involves a long-running dispute over who owns a piece of Nazi-looted art; in particular, Camille Pissarro’s Rue Saint-Honoré in the Afternoon. The painting's worth $50 million or so, and the parties have been fighting in federal court now for nearly two decades, with multiple appeals up and down the federal system (including the Supreme Court) about what statute of limitations applies and whether California or federal law governs that issue.
At this point in the litigation, it is now clear that California choice of law rules apply, but the disputed issue is whether, pursuant to those rules, a California court would apply its own statute of limitations or those of Spain. That requires application of California's complicated "comparative interest" test, and the parties vociferously dispute how that test should come out in the present case.
So the Ninth Circuit panel votes to certify this question to the California Supreme Court. To which Judge Bea dissents, saying that it is clear (at least in his mind) that Spanish law should apply and thus no need to certify.
I'm not persuaded that the proper resolution of this issue is, in fact, clear. It actually seems super hard to me, notwithstanding Judge Bea's lengthy articulation of why he thinks it's a simple case. I also don't think that Judge Bea's correct that the delay resulting from certification -- these things almost invariably take a year or two to play out -- warrants declining certification here. The case is, at this point, in the final stages of its resolution, and it's already taken quite a long time to get here. To me, the parties can easily wait a little while longer to make sure that we get this final -- likely dispositive -- question right. Especially since we're talking about a painting that's 100+ years old, its original (as well as alleged successor) owners have long since met their reward (their descendants are the ones filing suit), and the painting's being displayed to the public in the interim. Seems to me that the extra little bit of work could easily be worth it.
But what, to me, Judge Bea gets right is that the matter just isn't worth certifying. Yes, it's complicated. But it's largely -- if not exclusively -- a fact-specific dispute, and one that's in an area that doesn't really reverberate across a ton of cases. The parties care deeply whether California has a greater interest in its own statute of limitations in this area rather than Spain, but apart from a few incredibly wealthy museums and art collectors, whether the Spanish or California statute of limitations period applies isn't one that is a core concern for most people. Nor is it one with a ton of disputes in the California Court of Appeal over the content or application of the relevant doctrines. Instead, everyone knows what the rules are. The only question is how they should be applied in this particular -- quite unique, frankly -- setting.
To me, that's not an issue that's really worthy of certification. And when Judge Bea says (in effect) that federal courts should reserve their limited reservoir of certification orders for things that are particularly important, that strikes a chord with me. This is not one of those cases in which I particularly feel like there's a desperate need to get the California Supreme Court to do the federal court's dirty work. It's a fact-specific dispute. Take your shot and see if you can get it right. No unique need to bother the Cal Supremes.
For similar reasons, were I on the California Supreme Court, I'd deny the certification request in this one. Even though I'm almost always on the side of granting such requests when made. In truth, I'm not really sure that Judge Bea is correct that it'll necessarily take the California Supreme Court a ton of time to wade through the certified question, because even though the excepts of record are 2000+ pages, it's pretty straightforward to read the certified questions and related briefs and figure out whether to take or not take a certified question. Probably doesn't take more than a half-day of work.
But at the end of that half day, I'd very likely vote not to accept the case, and to let the federal court apply the relevant California choice of law principles on its own. Federal courts do that literally every single day. No reason they can't do it in this one as well.
Hopefully correctly.
