It stuns me that there's not a state law version of abstention designed to solve problems like this one.
There's a state statute that says that a city has to do X. That statute allegedly violates the First Amendment and gets challenged in state court. Ultimately, the California Supreme Court upholds the statute.
But that same statute then gets challenged in federal court, again alleging that the statute violates the First Amendment. The federal court agrees, as does the Ninth Circuit. So the statute's unconstitutional.
Since the statute's unconstitutional, the City stops enforcing the statute. At which point plaintiff brings a state court lawsuit to compel the City to enforce the statute, saying that the federal court was wrong and that the statute doesn't violate the First Amendment.
At which point the City says: "Uh, dude, the federal courts have already decided that it does violate the First Amendment. And, the last time I checked, (1) there's this thing called the Supremacy Clause, which makes federal law trump state law, and (2) federal courts get to determine the scope of federal law, which includes the Constitution.
But the plaintiff responds: "Says you. But here's what I know: Lower state courts are bound to follow holdings of higher state courts. So if, as here, higher state courts (e.g., the California Supreme Court) have decided that the statute's constitutional, then the lower state court can't disagree. Regardless of what a federal court has held. (Unless, of course, the U.S. Supreme Court has decided something, which isn't the case here.)"
To which the City says: "I get it. But it's got to be the law that we're required to follow the decision of the Ninth Circuit, right? Because if we don't, you know full well what's going to happen; we'll ignore that decision, someone will sue us in federal court, and they'll automatically win because both the district court and that Ninth Circuit will be bound to follow precedent. So we get sued, lose, pay fees (theirs and ours), and we're back to square one."
At which point plaintiff ends the debate by saying: "All true. Sucks to be you."
And the Court of Appeal agrees.
Now, I've simplified and fictionalized the debate, but everything I've said above is true. The net effect of this opinion is basically to waste everybody's time and to put the City of Los Angeles into bind that's indisputably not of their making.
The Court of Appeal is correct that the problem would be solved if (1) the California Supreme Court granted review of the current case, and (2) overruled its prior decision. But the confluence of both (1) and (2) are most assuredly not certain. So that's hardly a solution.
Plus, again, there's no real point to this charade. The end result is going to be a federal court lawsuit that strikes down the statute (yet again). Why waste everyone's time?
It seems to me that the best solution would be to create an abstention-like doctrine similar to those we have in federal court. I'd limit it to situations like this one in which the federal appellate court for the relevant geographic area (here, California) has finally and conclusively held a statute to violate federal law, including but not limited to the Constitution. Given that decision, the state court should abstain from deciding otherwise, given the practical realities (and downsides) that would inevitably result from following the contrary prior state court ruling. The losing party could then, of course, appeal, and get the case to the California Supreme Court and (eventually) the United States Supreme Court, and if the latter wanted to change the law and reverse the Ninth Circuit, great, problem solved.
But unless and until that happened, you wouldn't go through the futile and wasteful act of ordering the City to comply with a statute that's already been declared unconstitutional and that the federal court will assuredly continue to hold can't be enforced.
Doesn't that sound like the right way to proceed?
So the California Supreme Court should grant review in this one and either (1) invent the doctrine I've just described above (which, again, I can't believe doesn't already exist), or (2) reverse the decision on the merits (e.g., agree with the Ninth Circuit) and be done with it.
I actually prefer (1), since it avoids similar problems in the future.
Regardless, we shouldn't force litigants into positions like the one the City of Los Angeles faces here.
Especially when, as here, it's 100% not their fault.
