dissenting:
According to the majority, the California Supreme Court’s remand order in In re Rhymes, 215 Cal.Rptr. 852, 701 P.2d 1170 (1985), instructing the court of appeal to refile its opinion, constituted a retroactive application of People v. Harris, 36 Cal.3d 36, 201 Cal.Rptr. 782, 679 P.2d 433 (1984). Having applied Harris retroactively in Rhymes, the majority reasons, the supreme court was thereafter precluded from denying Venson Myers, or anyone else in his position, the benefit of Harris.
The majority reaches the wrong conclusion because it starts with a faulty premise. The one sentence order in Rhymes was not an application of anything; it was a simple housekeeping order, sending back to the court of appeal a case that the supreme court no longer wished to hear. At the same time, the supreme court expressly reserved the retroactivity question for resolution in People v. Myers, 43 Cal.3d 250, 233 Cal.Rptr. 264, 729 P.2d 698 (1987). The California Supreme Court chose to resolve the issue of the retroactivity of Harris in one case rather than in another. This was within its authority to do. There is nothing inequitable in that decision, and it provides no excuse for a federal court to micromanage the California Supreme Court’s docket, overturning an eight-year-old murder conviction.
I
In Harris, the Supreme Court of California decided that defendants may challenge juries selected from voter registration lists by comparing minority representation on those lists to minority representation in the general population. Harris, 36 Cal.3d at 59, 201 Cal.Rptr. 782, 679 P.2d 433. The court explicitly left open the question whether its ruling would apply retroactively:
A majority of the justices of this court, however, do not agree on whether, and to what extent, the rule announced in this case should be given retroactive effect. We therefore take no position as to the disposition of other cases presenting issues concerning the representative character of juries selected from voter registration lists alone.
Id (emphasis added).
At that time, both Rhymes and Myers were before the court, having been held pending Harris. Both cases presented the same substantive issue as Harris but, obviously, only one was necessary in order to decide the question of retroactivity. The court picked Myers for the resolution of that question and sent Rhymes back to the court of appeal with instructions to refile its opinion.
In Myers, the supreme court for the first time addressed the retroactivity issue and denied Myers the benefit of Harris. Myers, 43 Cal.3d at 269, 233 Cal.Rptr. 264, 729 P.2d 698.
I see no inconsistency or invidiousness in the actions of the California Supreme Court. The court was under no obligation to decide the retroactivity of Harris in Rhymes, Myers or any other case. The Equal Protection Clause prevents the court only from applying Harris retroactively to one litigant but not to another. As long as the court continued to avoid review of lower court decisions dealing with the Harris issue, it could decide the retroactivity question whenever it thought it most appropriate.
That is what happened here. Finding itself divided over the question of retroac-tivity in Harris, the court made a considered decision to leave that question open. It then scheduled for argument one of two cases on its docket appropriate for resolving the retroactivity issue, sending the other back to the court of appeal untouched.
By contrast, the majority believes that the supreme court conclusively decided re-troactivity when it remanded Rhymes. But the remand order clearly was not a retroactive application of Harris. For one thing, the supreme court’s refile order in Rhymes is not a decision on the merits under California law. Article VI, section 14 of the California Constitution limits the methods by which California appellate courts may dispose of cases on the merits *427by requiring a written disposition containing stated reasons: “Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.” Cal. Const., Art. VI, § 14. The term “causes” “has been interpreted to mean decisions on the merits." B.E. Wit-kin, 9 California Procedure § 554 at 541 (Bancroft-Whitney, 3d ed. 1985) (emphasis original).
The Rhymes order stated in its entirety:
The above entitled matter is retrans-ferred to the Court of Appeal, Second Appellate District, Division One, with directions to refile its opinion.BIRD, C.J., and BROUSSARD, REYNOSO and GRODIN, JJ„ concur.
In re Rhymes, 215 Cal.Rptr. 852, 701 P.2d 1170 (1985). This laconic order hardly comports with section 14: Not only does it fail to contain a statement of reasons, it does not even purport to be the action of the full court. While four justices signed the order, it is unclear whether the remaining three justices agreed, disagreed or even participated in the decision. If the refile order in Rhymes was a disposition on the merits, it would surely place the California Supreme Court in violation of the state’s constitution, not merely in that case, but in the many other cases where the court has employed a similar device.
The majority relies on People v. Ford, 30 Cal.3d 209, 178 Cal.Rptr. 196, 635 P.2d 1176 (1981), for the proposition that the California Supreme Court can, consistent with its own constitution, reach the merits of a case without stating reasons. But Ford does not help the majority here. In Ford, the supreme court published a full written opinion, with all justices accounted for, in which it explicitly adopted part of the court of appeal decision as its own. 30 Cal.3d at 216, 178 Cal.Rptr. 196, 635 P.2d 1176. The unpublished court of appeal decision was referenced as a statement of the reasons for part of the supreme court’s own judgment in the case. In sharp contrast, the Rhymes order did not adopt the court of appeal decision, nor did it reach any decision of its own; it simply retransferred the case without comment. The opinion of the California Supreme Court in Ford is published in California Reports. By the majority’s reasoning, the supreme court’s opinion in Rhymes is published in California Appellate Reports. I suggest that this would make legal research in California extremely difficult.1
Similarly, the majority places too much emphasis on the rule of Knouse v. Nimocks, 8 Cal.2d 482, 66 P.2d 438 (1937). The majority reasons that, because the court of appeal decision becomes a nullity *428when a case is transferred to the supreme court, the higher court therefore has no option but to reach the merits of the case. This analysis ignores the possibility that, instead of approving, adopting or reversing the lower court, the supreme court may, in light of intervening circumstances, simply change its mind about hearing the case at all.
That is precisely what the court did in Rhymes. Having chosen Myers to resolve the retroactivity issue, there was nothing to be done with Rhymes, so the supreme court reversed its decision to hear the case. This is not a decision on the merits. As Bernard Witkin, the leading authority on California procedure, has noted:
[B]y granting a hearing and later directing adoption of the same opinion, the Supreme Court in effect render[s] a delayed order denying a hearing.
B.E. Witkin, 9 California Procedure § 708 at 680 (Bancroft-Whitney, 3d ed. 1985). This court has previously recognized the well-established rule that “[t]he denial of a hearing by the California Supreme Court [does] not constitute a decision on the merits.” Shaw v. California Dep’t of Alcoholic Beverage Control, 788 F.2d 600, 605 n. 3 (9th Cir.1986). See also People v. Triggs, 8 Cal.3d 884, 890, 106 Cal.Rptr. 408, 506 P.2d 232 (1973) (“our refusal to grant a hearing in a particular case is to be given no weight”) (emphasis in original); Cal.Ct.R. 28 comment. Because, as Witkin notes, a refile order is nothing more than a delayed denial of hearing, it cannot be treated as a ruling on the merits.2
When the supreme court issued its refile order in Rhymes, it simultaneously retained jurisdiction over Myers precisely in order to answer the question of retroactivity. Under these circumstances, it makes absolutely no sense to suggest that the Rhymes order itself was a decision on the merits of retroactivity. Nonetheless, the majority holds that the California Supreme Court decided sub silentio in a one-sentence, four-justice, refile order an issue it had explicitly left open in a previous decision, and then turned around and reversed itself in a full written opinion. I am unable to agree.
II
That should be the end of the matter as far as this court is concerned; there is no need for us to inquire into the reasons that the California Supreme Court decided to resolve retroactivity in Myers rather than Rhymes. As long as the refile order in Rhymes was not a retroactive application of Harris, which it was not, it is none of our business why the California Supreme Court chose to resolve the question in one case rather than another. Nonetheless, to the extent that the supreme court’s motive matters, an examination of the facts of this case reveals a perfectly rational explanation, one consistent with equal protection.
Rhymes and Myers both arose before the supreme court’s decision in Harris, and both presented the Harris issue. Thus, either case could have been used to decide retroactivity, but only one was necessary to do so. The obvious choice was Myers. This was a death penalty case; by statute the California Supreme Court was required to hear Myers’s appeal. See Cal.Penal Code § 1239(b) (West, 1989); Myers, 43 Cal.3d at 255, 233 Cal.Rptr. 264, 729 P.2d *429698. Moreover, Myers presented other questions besides the Harris issue. See Myers, 43 Cal.3d at 256, 233 Cal.Rptr. 264, 729 P.2d 698. Rhymes, on the other hand, was a collateral attack on a misdemeanor conviction, and presented the Harris issue alone. See Rhymes, 170 Cal.App.3d 1100, 217 Cal.Rptr. 439. Since the California Supreme Court had to hear Myers anyway, deciding the retroactivity issue in Rhymes would have been redundant and a waste of judicial resources. Consequently, the court sent Rhymes back down without review.
I suppose the supreme court could have held Rhymes pending a decision on retroac-tivity in Myers, but there were very good reasons for not doing so. At the time her appeal was pending in the supreme court, Deborah Rhymes was awaiting a new trial. Delay is a corrosive factor in a criminal case, potentially prejudicing the rights of the prosecution as well as the defendant. If Rhymes was to be retried — which was certainly a live possibility at the time Myers was set for argument — it needed to be done as promptly as possible, before the evidence grew stale and witnesses died or disappeared.3 At the same time, Myers —a death penalty case — raised a number of additional issues, and was likely to take a long time to decide. In fact, a year and a half passed between the remand order in Rhymes and the supreme court’s decision in Myers. The court therefore had a rational, indeed prudent, basis for sending Rhymes back for immediate trial.
The reasons for sending Rhymes back were particularly compelling, precisely because the court of appeal had anticipated the supreme court’s ruling in Harris. While it may have been constitutionally permissible for the California Supreme Court, in a strict application of non-retroac-tivity, to deny Rhymes the benefit of a court of appeal ruling eventually proven to be correct, it would certainly have been a harsh result. I respectfully submit that the California Supreme Court is not guilty of a violation of equal protection by reserving the retroactivity question while allowing Rhymes to return to municipal court for a new trial.
The Equal Protection Clause does not require perfect equality, merely a rational decision in light of the information available to the decision maker. What the California Supreme Court did here evinces a rational, deliberate decision to deal with two litigants who were, at the time, in unequal situations. The Constitution requires no more.
Conclusion
The jurisdiction of the California Supreme Court, like that of other supreme courts, is largely discretionary; it need not decide every case that comes before it. It is also the court of last resort on questions of California law, and thus serves a function well beyond the resolution of individual cases; its primary function is to shape the law for the most populous state in the nation. Not surprisingly, a decision not to decide a case may reflect considerations independent of the merits of the dispute.
In a federal system, it behooves national courts to display considerable reticence before invading this domain. When a state supreme court takes a coherent series of actions, each amply justified by the situation confronting it, the federal courts have no business getting involved. I fear that today's decision will seriously — and unnecessarily — complicate the already difficult task of the California Supreme Court and the eight other supreme courts in our circuit.
. Harris v. Superior Court, 500 F.2d 1124 (9th Cir.1974), and Lewis v. Borg, 879 F.2d 697 (9th Cir.1989), are even less relevant. First of all, neither case discussed the requirements of California Constitution Article VI, section 14. Moreover, those cases dealt with the issue of when the California Supreme Court’s summary denial of a state habeas petition will satisfy the exhaustion of state remedies requirement for federal habeas review. Such denials are decisions on the merits only in the sense that they fail to indicate that the supreme court denied state habeas on the basis of a procedural default. The petitioner thereby demonstrates to the federal court that there is nothing left for him to do in state court. Harris v. Superior Court, 500 F.2d at 1128-29. As long as the supreme court’s action was not based on a procedural default, the federal court’s inquiry into the nature of that action is at an end.
This is a far different inquiry than we must make today. We are not concerned with whether the Rhymes refile order was evidence of exhaustion. Rather, we must decide whether the order was an explicit adoption of a lower court ruling. Harris v. Superior Court and Lewis will not support the majority's conclusion that it was.
LaRue v. McCarthy, 833 F.2d 140 (9th Cir.1987), also will not make the majority’s case. In LaRue, the petitioner claimed that the California Supreme Court had denied him equal protection by rejecting his petition for a writ of habeas corpus, and thereby refusing to apply retroactively a recent supreme court case. We found no evidence that the supreme court had ever applied the recent case retroactively, and hence found no violation of equal protection. Id. at 142. Relying on Harris, we also concluded that the California Supreme Court's summary denial of the petition for habeas was a decision on the merits as to nonretroactivity. Id. at 143. This conclusion was unnecessary, as the equal protection issue had already been resolved. LaRue, like Harris and Lewis, did not consider the effect of section 14.
. The majority also finds support for the proposition that the refile order was a ruling on the merits in People v. Osuna, 187 Cal.App.3d 845, 232 Cal.Rptr. 220 (1986). However, the court of appeal’s offhand remark in Osuna will not carry the burden the majority places on it. In Osuna, the California Supreme Court retransferred the case to the court of appeal "with directions to refile its opinion with appropriate reference to People v. Duncan (1986) 42 Cal.3d 91, 227 Cal.Rptr. 654, 720 P.2d 2.” People v. Osuna, 231 Cal.Rptr. 756, 727 P.2d 1037 (1986). The court of appeal had to figure out whether these directions were intended to change the outcome of the case. Attempting to interpret the supreme court’s Delphic order, the court of appeal no doubt reasoned that the supreme court would have been more explicit had it intended to change the outcome. See Osuna, 187 Cal.App.3d at 847, 232 Cal.Rptr. 220.
The court of appeal — to the extent that its interpretation was correct — was not, as the majority suggests, saying that the refile order was a ruling on the merits. It was certainly not saying that such orders are intrinsically procedural or substantive. The majority relies on a stray remark made by a lower court trying to puzzle out what its superior court wanted it to do, hardly the stuff of which precedent is made.
. Delay will also be a corrosive factor in Venson Myers’s case. On the basis of a one sentence refile order in a different case, the majority reverses a conviction for first degree murder and several other violent crimes, a conviction affirmed by the state’s highest court. Myers, 43 Cal.3d at 276, 233 Cal.Rptr. 264, 729 P.2d 698. These crimes took place nearly eleven years ago. Id. at 255, 233 Cal.Rptr. 264, 729 P.2d 698. Presenting evidence at trial will now be more difficult for both sides, although the prosecution, because it carries the burden of proof, probably will suffer the greater prejudice.