Originally Posted by Window_Seat
Not trying to pick a fight with you... But according to some of your questions to Gray, it seems you imply that the District Court had some responsibility to notify the state (since it would seem awkward to me for the District Judge to just sit there and watch the Plaintiff make these errors without doing something), and that is what I was thinking as well, so if that were the case, wouldn't it be predictable for the Ninth Circuit to remand Peruta with instructions based on that issue?
No, that would be illogical and very unlikely. The 9th circuit has jurisdiction regardless of the failure to notify under rule 5.1. An appellate court may remand a case to the district court under rule 5.1 where notice was not given and where the parties defending that constitutionality of the statute have waived or abandoned various arguments in district court, including the appropriate standard of review, the possibility of a saving construction, and the interests served by the statute.
Absent some indication of harm or prejudice to the State's opportunity to fully present its views however, belated certification, while not ideal, is sufficient to honor the purpose of the federal statute.
Furthermore, there is general agreement that rule 5.1 should not be ignored, but, at least where the constitutionality of the statute has been upheld, there is no practical purpose to be served in remanding. Merrill v. Town of Addison, 763 F.2d 80 (2d Cir. 1985). This makes sense when you consider the purpose of the rule. If the constitutionality was upheld it makes for a very difficult argument that the government's position was not well represented. Since both Peruta and Richards are appealing a loss there is almost no chance at all of a remand, regardless of a failure by both plaintiffs and (apparently?) both district courts to notify/certify.