UPDATE: Wallace v. SeaWorld's Roadmap For Reversing Nalwa v. Cedar Fair

Last week I attended IAAPA Expo 2011 in beautiful (and much warmer than Connecticut) Orlando, Florida.  I think all who attended can agree that it was a great time and a fantastic networking opportunity.  To all of you who I met there, I hope to see you soon.  To all of you who I didn't, I hope to meet you soon.

While at IAAPA, I had the opportunity to speak with several of my colleagues, both in and out of any one of the kazillion educational sessions IAAPA offers, and specifically to speak with some of them about last summer's decision from the California federal court in Wallace v. Busch Entertainment.  I've previously written about this case to express my belief that it could contain a subtle signal that at least one federal judge in California does not believe that the Nalwa decision is long for this world.  (I've also written on the Nalwa decision previously - you can find that here).  I continue to believe that the absence of any mention of the Nalwa ruling in Wallace may speak volumes about its perceived persuasiveness.  However a colleague of mine, who practices in California, was not as convinced that there was any message or implication in the Wallace ruling.  According to my colleague, the absence of Nalwa in the Wallace decision is not attributable to the federal court's potential belief that Nalwa is a poor decision, but is simply a product of a California appellate rule that prohibits any court from citing the Nalwa decision once the California Supreme Court has agreed to review the decision.  Well - not being versed in California appellate rules (remember folks, I practice in Connecticut and the two states are PRETTY different), this stopped me in my tracks ... momentarily.  After all, if the Wallace court didn't cite to Nalwa because it wasn't allowed to - where does that leave my entire premise.  Well, I'm happy to report that my premise is safe and sound, and in fact, even assuming my colleague is correct about this rule, even stronger than it was before I knew about the rule.  Keep reading after the jump if you want to know why. 



 First, let me start by saying that the rule that my colleague references makes a a lot of sense; so much, in fact, that I wonder why more states and the federal system don't adopt it.  After all, if the Supreme Court agrees to review a case and could reverse it, it just makes sense that a lot of other courts not rely on that decision as law until we know what the Supreme Court will do.  That approach saves everyone a lot of time and money "undo-ing" a decision based on the Appellate Court case but issued before the Supreme Court's reverses it.  However, even though the rule makes sense, I don't think it explains what happened in Wallace.

The problem is about as straightforward as it gets:  timing.  Wallace was issued on August 16, 2011.  However, the California Supreme Court did not agree to review Nalwa until August 31, 2011, at which time it "de-published" the appellate court's decision thereby prohibiting citation to it under the rules.  The problem is, of course, that until August 31, 2011, other courts, including the Wallace court, could and should have cited to Nalwa as "good law" - except that Wallace didn't.  Which brings us full circle back to my original premise - I do not think the judge in Wallace thought that the Nalwa decision was worth the paper it was written on and found a way to bide time in the hopes that the Supreme Court would reverse.

Second, recognizing that my fifteen to twenty minutes of research on the intricacies of California appellate practice rules may carry a slight (almost infinitesimal really) chance of error on the timing point, I have spent some time thinking about what Wallace means if, in fact, the judge was simply prohibited from citing Nalwa and, in effect, had to write the opinion under the fiction that Nalwa just didn't exist.  In that case, I think the subtlety of the Wallace court's message is gone.  I think it becomes overt.

Under my original premise, I posited that the Wallace judge may have found herself walking a fine line between having to find a way to distinguish Nalwa on surely questionable grounds (the cases are just too similar for any obvious distinguishing factor) or to criticize the California appellate court's bad decision.  My theory was that the judge may have chosen to "overlook" Nalwa to give the California Supreme Court an opportunity to review the case (which, at the time, it had not yet agreed to do).  If the Supreme Court ultimately decided not to review the case, the Wallace judge could always revisit the ruling later and throw out Sea World's assumption of risk defense.  If the Supreme Court reviewed and reversed Nalwa, Sea World's defense would remain viable.

However, if we assume that the court had to pretend that the Nalwa decision just didn't exist at all, it is apparent to me that the Court was sending a message, loudly and clearly, directly to the California Supreme Court that the Appellate Court got it wrong.  Reading the opinions side-by-side, it is striking how both courts cite the exact same cases and yet reach diametrically opposed conclusions.  The problem, of course, is that Nalwa makes A LOT of unsupported legal leaps to get there, while Wallace (and Nalwa's dissenting judge) rely on a plain reading of the prior law to reach what should be a pretty unremarkable conclusion - that amusement rides are subject to the assumption of risk defense just like other sports and recreation activities.  Considered in this light, I read Wallace and hear the judge saying to the California Supreme Court, "Hey, wanna know how badly the appellate court screwed this up?  Keep reading!" and then laying the roadmap for the Supreme Court to reverse Nalwa.  By pretending that Nalwa doesn't exist, the Wallace court had a rare luxury of knowing exactly how the California appellate court would rule on an issue, and not only getting to ignore it entirely, but getting to show the world (and the Supreme Court) how the case should have been decided.  Not a very subtle message, but one I hope the Wallace judge enjoyed sending.