One of the downsides of certifying questions to state court -- as the Ninth Circuit has increasingly done -- is that it may take some time to resolve the already-lengthy appellate process. I have a general sense (based on nothing) that the California Supreme Court may be resolving these things faster than it once did. But the entire process may still take some time.
Take this case, for example. The question is whether two Sheriff's Deputies in San Diego wrongfully shot and killed a suicidal person who was holding a knife. The district court grants summary judgment to the defendants. Plaintiffs file their appeal in 2009.
The panel issues a split opinion in March of 2011 that partially reverses and remands. Three months later -- presumably in response to en banc grumbling -- the panel certifies the underlying state law question to the California Supreme Court. Which decides to answer the question. Issuing an opinion this morning that gives the Ninth Circuit an answer.
So it's now been four years on appeal. But we're not even close to over. The Ninth Circuit now has to take the California Supreme Court's legal answer and apply it to the facts. Most likely, it decides to send the case back to district court. More time. So we're five or six or seven years out and we're still in the middle of the lawsuit. That's not particularly good for justice, which we hope to be speedy. It's also not particularly good for taxpayers, who have to fund the defense. About the only people who benefit are the plaintiffs' attorneys, since it's a Section 1983 case and they get their fees paid if they win. But only if they win.
It may be inevitable that cases like this take forever. It's certainly more important to get these types of cases right than it is out crank out an opinion speedily that's wrong.
But one downside of certification is that it often ends up taking a fair amount of time. Even in the best of circumstances.
This case is a reminder.
