Why Did the Supreme Court Punt on a Jurisdictional Issue?

Regular readers know I am a jurisdiction geek, and today I get to sink my teeth into a jurisdictional oddity. Well, not a jurisdictional oddity so much as the odd behavior of the Supreme Court with respect to a jurisdictional question.

I’ll get to the Supreme Court in a minute. First, a brief rundown on the issue from the case that led me to raise the question in the title to this post.

In State of California ex rel Department of Pesticide Regulation v. Pet Food Express Limited, case no. C057156 (3d Dist. July 31, 2008), the court of appeal holds that an order enforcing an administrative subpoena is appealable. Borrowing from court of appeal precedent finding that an order enforcing a legislative subpoena is appealable, the court applied the same reasoning to the administrative subpoena in this case. Because the order is the final resolution of the rights between the parties in an original proceeding instituted specifically to enforce compliance — whether that proceeding is deemed a “special proceeding” or an “action” — it is a judgment within the meaning of Code of Civil Procedure section 577 (“A judgment is the final determination of the rights of the parties in an action or proceeding”). It is thus appealable under Code of Civil Procedure section 904.1, subdivision (a)(1).

Interesting enough, but not fascinating. What I did find fascinating was the court’s description regarding the history of the appealability issue.

The court first notes the split of authority at the court of appeal level. While several court of appeal decisions decided such appeals without any explicit consideration of the appealability issue — presumably assuming the appealability of such orders — the remaining courts were split. Some found such orders appealable, others found such orders reviewable by writ only but construed the appeal as a writ petition in the interests of justice.

The amazing thing is that in spite of this split, the Supreme Court had twice entertained such cases and neither time decided the appealability issue. Obviously, the question af appealability was not one of the issues on which the Supreme Court accepted review, but appealability is a jurisdictional requirement that cannot be waived by the parties. The first time around, in Craib v. Bulmash (1989) 49 Cal.3d 475, I can see how the Supremes might not address it if neither party did (Pet Food describes the Supreme Court decision as silent on the issue) because it, like some courts of appeal, could have presumed jurisdiction. But the second time around, in Arnett v. Dal Cielo (1996) 14 Cal4th 4, the Supremes explicitly noted the split in the courts of appeal, decided that the “better view” was that such orders are appealable, but declined to decide the issue because neither party raised it!

Come again? Declined to decide a jurisdictional issue that was squarely presented and on which there was a split of authority in the courts of appeal? And here’s a fact that makes it even stranger: the authority the Supremes relied on as the “better view” had based its decision that the order was appealable in part on the Supreme Court’s previous failure to resolve the issue, i.e., the Supreme Court’s apparent assumption of appealability. In light of all this, the Pet Food court calls the Supremes’ avoidance of the issue “perplexing.” Oh, yes, I’d say so.

Perhaps Pet Food will be the case in which the Supreme Court finally decides the issue. It sure seems to have teed up the issue.