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June 22, 2021 – Federal courts faced with unresolved state law issues often have to “guess what” the highest court in the state would decide. But many courts are turning to an alternative: just ask the state court.
This process, known as the certification of questions of law, can provide federal courts with certain and conclusive answers, greater consistency and avoid forum shopping, and ensure that state courts have the final say on the law. of State. Its use has grown considerably in recent years, whether because there is a greater appreciation for the principles of federal-state comity incorporated into certification, or because the increased use of the process itself has legitimized and encouraged spontaneous requests or decisions for certification.
Certification is not a question of jurisdiction, as the state Supreme Court is only asked to resolve a legal question, not to decide the case. After the state court has answered the question, the federal court applies the law to the facts, considers all outstanding issues, and determines whether to refer to a lower federal court or agency.
Although the opinion of the state court sets a binding precedent with regard to state law – the same as if it had been given in a different case – and may, under the certification rules of the State, have the force of res judicata as to the parties – the federal court renders its judgment as a matter of its own authority under federal law.
Unfamiliar to many lawyers, certification is a creation of state laws and court rules, not federal law; the federal courts simply decide to avail themselves of this resource.
Florida enacted the first certification law seven years after the United States Supreme Court ruled in Erie Railroad v. Tompkins (1938) that state law governed diversity matters, but that state did not adopt any certification procedures until 1961, after the United States Supreme Court urged this to be the case in Clay v . Sun Insurance Office (1961).
As of 2017, 49 states, the District of Columbia and three territories had established procedures; only North Carolina is lacking. At least 23 states and DC have adopted, by law or by court order, the Uniform Certification of Questions of Law Act (1967); eight states adopted the 1995 version of the law; and other states have borrowed key operational language from the Act.
The Federal Court and the State Supreme Court are custodians and, subject to state procedures, each has a substantially non-reviewable discretion to grant or accept certification. The United States Supreme Court, in its early certification decisions in Lehman Bros. v. Schein (1974), indicated that although “[w]We do not suggest that in case of doubt about the local legislation and when the certification procedure is available, the recourse to this one is obligatory, “the certification” allows, of course, in the long term to save time, energy and resources and contributes to building a cooperative judicial federalism.
A recent case is illustrative. In Lindenberg v. Jackson National Life Insurance Co. (2018), the U.S. Sixth Court of Appeals – by a 2-1 vote and fierce dissent – struck down a Tennessee statute under the state constitution and also refused to certify the matter to the Tennessee Supreme Court, even though that court had previously expressed its willingness to hear the matter once it was ripe.
The state of Tennessee, supported by other states as an amici curiae, has filed a certiorari petition challenging the denial of certification for the Sixth Circuit. While the United States Supreme Court denied certiorari, the Tennessee Supreme Court accepted a district court’s certification of the same constitutional question in McClay v. Airport Management Services (2020) and dismissed the Sixth Circuit view as “unconvincing”. Certification by the Sixth Circuit would have resolved the constitutional issue quickly and consistently.
Knowledge of state certification rules is essential. Not all states allow certification of questions of law by the United States Supreme Court and federal appellate courts, but not all allow certification by federal district courts, bankruptcy courts, and other courts in the United States. article I, or tribal courts.
State rules generally govern how federal courts may invoke the procedure, the nature of the question of law to be certified, the required content of the certification order, the scope of any briefing in the court of Condition and other details. The certification order should generally include specific wording of the certified question; a statement of all facts relevant to the certified question and fully showing the nature of the controversy in which the question arose; and an explanation of why certification is appropriate.
The wording of the certified question is of the utmost importance, although the State Supreme Court has the right to reformulate the question as it sees fit. The question of law should be framed as a compact question ending with a question mark, and it should be framed in terms of generally applicable law, and not in terms of the specific facts of the case. Parties should be disciplined when proposing questions of law: most courts will not certify more than one or two concisely worded questions.
In deciding whether to certify, courts will consider whether the question of law is likely to be determinative of the case or appeal, and whether there is a lack of supervisory authority in the state. Depending on state rules, this may require analyzing interim state appeal decisions as well as state Supreme Court case law, as well as what the decisions and records indicate did. not been resolved, for example, whether the state Supreme Court reserved the issue in an earlier case, or whether state courts are likely to resolve the issue soon.
Federal courts will also take into account the novelty and importance of the state law issue. While there may be a general perception that certification is reserved for high-profile issues arising from state constitutions, this is not the case. Courts also certify questions concerning the interpretation of statutes, regulations, administrative orders, court rules and state common law in a wide variety of areas. Many certified issues can appear dry or niche at best.
The proposed certification can be rejected for many practical reasons. Examples include delays in resolving the appeal or other proceeding in the certifying tribunal, and concerns as to whether, in light of unresolved factual issues, the question of law could be framed to produce a sufficiently helpful response from the State Supreme Court.
As state rules recognize, federal courts can certify matters on motion or ex officio. A party can move at any time but, in principle, they should do so as soon as possible. In most appeals, the parties wait to seek certification until their main briefs or even the rehearing stage.
Where state rule allows certification of questions of law by district courts, there is no strict requirement that a party seek certification from the district court before seeking certification by the court of law. ‘call. However, the court of appeal may oppose certification when the party has not filed a timely request for certification with the district court.
Parties may support or oppose certification for a variety of tactical reasons, including the consequences of delay and the benefits of receiving conclusive answers to the thorny questions that can arise in many cases. Certainly a party should consider whether the federal or state decision-maker is in their best interests. It is not just a question of which judges are, by reason of their judicial philosophy, background or other considerations, the most likely to promote the desired outcome.
As an institutional matter, a federal court may be more inclined to feel bound by reading the tea leaves of State Supreme Court precedents, intermediate appeal cases, rulings from other jurisdictions, Restatements and academic commentary. The state’s highest court, on the other hand, is free to chart any new course it sees fit, including singling out or categorically rejecting its past decisions. Ultimately, the prudence of certification may depend on whether, in the case, an “Erie estimate” beats a sure thing.
The opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the principles of trust, is committed to respecting integrity, independence and freedom from bias. Westlaw Today is owned by Thomson Reuters and operates independently of Reuters News.