Detour Ahead: Federal Court
Certification of Questions of
Insurance Coverage Law to
State Supreme Courts
Judge James G. Carr
Sr. U.S. District Court Judge for the Northern District of Ohio
Toledo, OH
Yvette McGee Brown
Jones Day
Columbus, OH
Keven Drummond Eiber
Brouse McDowell LPA
Cleveland, OH
Steven R. Smith
Connelly, Jackson & Collier LLP
Toledo, OH
Max H. Stern
Duane Morris LLP
San Francisco, CA
DETOUR AHEAD: FEDERAL COURT CERTIFICATION OF QUESTIONS OF INSURANCE COVERAGE LAW TO STATE SUPREME COURTS
2015 Insurance Coverage Litigation Committee CLE Seminar (March 5-7, 2015)
Loews Ventana Canyon, Tucson AZ
JURISDICTION
STATUTORY REQUIREMENTS FOR
CERTIFICATION
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
WHEN WILL STATE SUPREME COURT ACCEPT
The 50 States
AR
Ark. Sup. Ct. R. 6-8: if there are involved in any
A federal court of the United States.
proceeding before a certifying court questions of
Arkansas law which may be determinative of the
cause then pending in the certifying court and as to
which it appears to the certifying court there is no
controlling precedent in the decisions of the Supreme
Court of Arkansas.
The Court seems to certify questions when the statutory
requirements have been met. Certification opinions simply state
the rule and then certify. Fireman's Fund Ins. Co. v. Care
Mgmt. , 2009 U.S. Dist. LEXIS 57440 (E.D. Ark. June 15,
2009).
The Supreme Court of Arkansas is extremely receptive to certified questions. Indeed,
despite the fact that they have the discretion to decline, it seems as though they
always respond. The Court has stated, however, that it will only accept questions
where all facts material to the question of law are undisputed and there are special
reasons therefore such as: 1) the question is one of first impression and is of such
substantial public importance as to require a prompt and definitive resolution by this
court 2) the question is one with respect to which there are conflicting decisions in
other courts and 3) the question concerns an unsettled issue of the constitutionality or
construction of a statute of this state. These “special reasons” are not exhaustive.
Longview Prod. Co. v. Dubberly , 352 Ark. 207, 99 S.W.3d 427 (2003). The court has
even stated that it may elect to settle an issue even though the issue has become moot
in the time since the Federal Court certified it. Med. Liab. Mut. Ins. Co. v. Alan Curtis
Enters. , 373 Ark. 525, 285 S.W.3d 233 (2008).
AL
Ala. RAP Rule 18: if a certifying court finds that there A court of the United States.
are involved in any proceeding before it questions or
propositions of Alabama law which are determinative
of said cause and that there are no clear controlling
precedents in the decisions of the Supreme Court of
Alabama, the court may certify.
"A" In addition to the statutory requirements, the Court may
consider judicial efficiency and the tendency of a certain issue
to recur in litigation. Weeks v. Wyeth, Inc. , 2011 U.S. Dist.
LEXIS 151595 (M.D. Ala. Aug. 25, 2011). The Court should
wait until the factual record has been developed sufficiently
before certifying. Bussey v. Macon County Greyhound Park,
Inc ., 2011 U.S. Dist. LEXIS 34808 (M.D. Ala. Mar. 31, 2011).
The court should certify when there is substantial doubt as to
the application of state law which will be determinative of the
case, so as to avoid making unnecessary Erie guesses and to
offer the state court the opportunity to interpret its own law.
Price v. Time, Inc., 304 F. Supp. 2d 1294 (N.D. Ala. 2004).
The Court is generally receptive to certified questions, answering several a year on
average, but has declined to answer questions because they were not determinative of
the cause or because there was controlling precedent. Sawyer v. Collins , 129 So. 3d
1004 (Ala. 2013); Stewart Title Guar. Co. v. Shelby Realty Holdings, LLC , 83 So. 3d
469 (Ala. 2011).
AK
Alaska R. App. P. 407: if there are involved in any
proceeding before a certifying court questions of
Alaska law which may be determinative of the cause
then pending in the certifying court and as to which it
appears to the certifying court there is no controlling
precedent in the decisions of the Alaska Supreme
Court.
Certification should not be routinely granted, but, rather, is
appropriate where the state law question is a "close" one and a
policy of importance to the State of Alaska is involved. Am.
Equity Ins. Co. v. Steelman , 2005 U.S. Dist. LEXIS 48832 (D.
Alaska May 26, 2005). There are very few instances of the
court granting, or even considering, certification.
The Supreme Court of Alaska will accept certification if there is a determinative
question of law for which there is no controlling precedent. Kallstrim v. U.S., 43 P.3d
162, 164 (Alaska 2002). The Court is receptive to certified questions, although it does
not deal with many.
The Supreme Court, a Court of Appeals of
the United States, a United States District
Court, a United States bankruptcy court, or
United States bankruptcy appellate panel.
Page 1 of 34
JURISDICTION
AZ
CA
CO
CT
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
Ariz. Rev. Stat. Ann. § 12-1861: if there are involved The Supreme Court, a Court of Appeals of
in any proceedings before a certifying court questions the United States, a United States District
of Arizona law which may be determinative of the
Court, or a tribal court.
cause then pending in the certifying court and as to
which it appears to the certifying court there is no
controlling precedent in the decisions of the Supreme
Court or intermediate appellate courts of Arizona.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
Where the statutory requirements have been met, the Court
has the discretion to certify or not. Federal courts may consider
the timing of certification, and should be skeptical of
certification after the moving party has had the Court rule
against it. In re Mortg. Elec. Registration Sys. (MERS) Litig. ,
2011 U.S. Dist. LEXIS 117108 (D. Ariz. Sept. 30, 2011).
WHEN WILL STATE SUPREME COURT ACCEPT
The Court is generally receptive of certified questions. The Court will not second-guess
the Court of Appeals on whether the question certified will be case determinative, as
the language merely requires the issue “may” be determinative. Additionally, just
because the statutory meaning is plain to the State court, that is no reason to deny the
request where the federal court was unclear on the correct answer. Finally, the court
will be receptive to attempts by the federal courts to avoid resolution of constitutional
issues through certification of potentially dispositive state issues. Scheehle v. Justices
of the Supreme Court , 203 Ariz. 520, 57 P.3d 379 (2002).
Cal. R. Ct. 8.548: if the decision could determine the The Supreme Court, a United States Court A federal district court cannot certify to the California Supreme 8.548(f)(1): In exercising its discretion to grant or deny the request, the Supreme Court
outcome of a matter pending in the requesting court, of Appeals, or the court of last resort of any Court.
may consider whether resolution of the question is necessary to secure uniformity of
and there is no controlling precedent.
state, territory, or commonwealth.
decision or to settle an important question of law, and any other factor the Court deems
appropriate. The Court receives several requests every year, and accepts more of
them than not. In instances in which the Court denied the request, it did not supply
reasoning for their decision, except to say that the statutory requirements were not
met. Chaffer (Andrew Pasquale) v. Prosper (K.); Lockyer (Bill) , 2009 Cal. LEXIS 2693
(Cal. Mar. 11, 2009).
Colo.A.R. 21.1: if there is involved in any proceeding The Supreme Court, a Court of Appeals of Where the statutory requirements are met, the decision to
The Supreme Court of Colorado seems to be extremely receptive to certified questions
before a certifying court questions of Colorado law
the United States, a United States District certify is still within the Court’s discretion. Certification is not to where the statutory requirements have been met.
Court, or a United States Court of Claims. be routinely invoked whenever a federal court is presented with
which may be determinative of the cause then
pending in the certifying court and as to which it
an unsettled question of state law. There should be some
appears to that court there is no controlling precedent
element of public policy or another principle to encourage
certification. Where there exists a reasonably clear and
in the decisions of the Colorado Supreme Court.
principled course, the Court should decide on its own. Ace
Am. Ins. Co. v. Dish Network, LLC , 2014 U.S. Dist. LEXIS
26859 (D. Colo. Mar. 3, 2014).
Conn. Gen. Stat. § 51-199b(d): if the answer may be A court of the United States or the highest
determinative of an issue in pending litigation in the court of another state or of a tribe.
certifying court and if there is no controlling appellate
decision, constitutional provision or statute of
Connecticut.
Even when statutory requirements have been met, the court will Certification requests are rarely denied when the statutory requirements have been
met.
employ certification only sparingly. Lopez v. Smiley , 375 F.
Supp. 2d 19 (D. Conn. 2005).
Additionally, insurance cases are considered prime candidates
for certification because of the Connecticut Supreme Court’s
preeminence in the area. Israel v. State Farm Mut. Auto. Ins.
Co., 239 F.3d 127, 135-36 (2d Cir. 2000).
Page 2 of 34
JURISDICTION
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
D.C. Code Ann. § 11-723: if there are involved in any The Supreme Court, a Court of Appeals of
proceeding before any certifying court questions of
the United States, or the highest appellate
District of Columbia law which may be determinative court of any state.
of the cause pending in such certifying court and as
to which it appears to the certifying court there is no
controlling precedent in the decisions of the District of
Columbia Court of Appeals.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
A federal district court cannot certify to the District of Columbia. The Court seems generally receptive to certified questions, although it does not
receive many.
DE
Del. Sup. Ct. R. 41: certification is appropriate where
there exists an important and urgent reason for an
immediate determination of the questions certified.
The rule also supplies an illustrative list of reasons
which would fall into this category: 1) the question of
law is of first instance in Delaware, 2) the decisions of
the trial courts are conflicting upon the question of
law, and 3) the question of law relates to the
constitutionality, construction or application of
Delaware law which has not been, but should be,
settled. These examples are not exhaustive.
Certification will also not be granted if facts material
to the issue certified are in dispute.
The District Court of Delaware rarely certifies questions. The
process should only be used where a determination would
terminate the litigation. Additionally, while it is not a strict
requirement, the question should fall into one of the three
proscribed illustrations given by the rule. Official Comm. of
Unsecured Creditors v. Fleet Retail Fin. Group (In re
Hechinger Inv. Co. , 280 B.R. 90 (D. Del. 2002).
FL
Fla. Stat. Ann. § 25.031: if there are involved in any The Supreme Court, any Circuit Court of
District Courts cannot certify to the Florida Supreme Court.
proceeding before a certifying court questions or
Appeals of the United States, or the Court of
propositions of the laws of Florida which are
Appeals of the District of Columbia.
determinative of the cause, and there are no clear
controlling precedents in the decisions of the
Supreme Court of Florida.
GA
Ga. Code Ann. § 15-2-9: if a certifying court finds
that there are involved in any proceeding before it
questions of Georgia law which are determinative of
the case and there are no clear controlling precedents
in the decisions of the Supreme Court of Georgia.
DC
The Supreme Court, any federal Court of
Appeals, any federal District Court, the
highest appellate court of any state,
Delaware courts, the United States
Securities and Exchange Commission, and
United States Bankruptcy Courts.
The Supreme Court, any circuit court of
appeals or district court of appeals for the
United States, or to the Court of Appeals or
the District Court of the District of Columbia.
While the three examples of “important and urgent” supplied by the rule are not
exhaustive, the Supreme Court of Delaware frequently declines to answer questions,
especially when they are not of the nature of any of those illustrations. The court also
seems to be more amenable to questions which would be recurring. Penn Mut. Life
Ins. Co. v. Oglesby , 695 A.2d 1146 (Del. 1997); Konstantopoulos v. Westvaco Corp. ,
690 A.2d 936 (Del.1996).
The Court is generally receptive of certified questions, and receives several a year.
The Court will not delve into any issues outside those certified to it by the certifying
court. Auto-Owners Ins. Co. v. Pozzi Window Co. , 984 So. 2d 1241 (Fla. 2008).
Where the statutory requirements have been met and there is The Court is generally receptive to certified questions and rarely declines to answer.
doubt as to the application of state law, the Court should certify The Court receives several certified questions every year.
the question to the state supreme court to avoid making
unnecessary Erie guesses and to offer the state court the
opportunity to interpret or change its own law. Schorr v.
Countrywide Home Loans, Inc. , 2009 U.S. Dist. LEXIS 90831
(M.D. Ga. Sept. 29, 2009). Certification is especially proper
where the issue will have a significant impact on state policy or
will have significant statewide implications. Dekalb County Sch.
Dist. v. Ga. State Bd. of Educ., 2013 U.S. Dist. LEXIS 35840
(N.D. Ga. Mar. 15, 2013).
Page 3 of 34
JURISDICTION
HI
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
Haw. R. App. P. 13: if there is involved in any
A federal District Court or federal Appellate
proceeding before a certifying court a question of
Court.
Hawaii law that is determinative of the cause and for
which there is no controlling precedent in the Hawaii
judicial decisions.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
The Court will likely certify where there is a novel question of The Court seems generally receptive to certified questions, but will not answer
state law that been interpreted differently amongst other
questions that it believes to be non-determinative of the cause. Matsuura v. E.I. du
jurisdictions. St. Paul Fire & Marine Ins. Co. v. Liberty Mut. Ins. Pont de Nemours & Co. , 102 Haw. 149, 73 P.3d 687 (2003).
Co. , 2014 U.S. Dist. LEXIS 47385 (D. Haw. Mar. 31, 2014).
The Court, however, should not certify questions when the
answer is reasonably clear and the Court can, using its best
judgment, predict how the Hawaii Supreme Court would decide
the issue. Kauai Beach Villas-Phase II, LLC v. Cnty. of Kauai ,
955 F. Supp. 2d 1156 (D. Haw. 2013). There also is a
presumption against certification after the Federal District Court
has issued a decision because a party should not be allowed a
second chance at victory through the certification process after
an adverse District Court ruling. Ill. Nat'l Ins. Co. v. Nordic
PLC, Inc. , 2013 U.S. Dist. LEXIS 5429 (D. Haw. Jan. 14,
2013).
Page 4 of 34
JURISDICTION
IA
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Iowa Code § 684A.1: if there are involved in a
proceeding before a certifying court questions of Iowa
law which may be determinative of the cause then
pending in the certifying court and as to which it
appears to the certifying court there is no controlling
precedent in the decisions of the appellate courts of
this state.
N.D. Ia. LR 83: the court may certify if authorized by
state statute or rule.
WHICH COURTS MAY CERTIFY
The Supreme Court, a Court of Appeals of
the United States, a United States District
Court or the highest appellate court or the
intermediate appellate court of another
state.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
Certification may be accepted if the question is one of first
impression and is of such substantial public importance as to
require a prompt and definitive resolution by the court. Absent a
close question of state law or a lack of state guidance, a federal
court should determine all the issues before it. Willsey v.
Shelter Mut. Ins. Co. , 2013 U.S. Dist. LEXIS 116256 (W.D.
Ark. Aug. 16, 2013). Additionally, the Court should look for a
“special reason” as illustrated by the Supreme Court of
Arkansas in Longview Prod. Co. v. Dubberly , 352 Ark. 207, 99
S.W.3d 427 (2003). See Adams v. Cameron Mut. Ins. Co. ,
2013 U.S. Dist. LEXIS 63544 (W.D. Ark. May 3, 2013). A court
should consider the following factors when determining whether
to certify: 1) the extent to which the legal issue under
consideration has been left unsettled by the state courts, 2) the
availability of legal resources which would aid the court in
coming to conclusion on the legal issue, 3) the court’s
familiarity with the pertinent state law, 4) the time demands on
the court’s docket and the docket of the state supreme court, 5)
the frequency that the legal issue in question is likely to recur,
and 6) the age of the current litigation and the possible
prejudice to the litigants which may result from certification.
Hagen v. Siouxland Obstetrics & Gynecology, P.C., 964 F.
Supp. 2d 951 (N.D. Iowa 2013). Additionally, a Court might
consider whether there is any split of authority amongst those
jurisdictions that have considered the issue. Bituminous Cas.
Corp. v. Sand Livestock Sys., 2005 U.S. Dist. LEXIS 12276
(N.D. Iowa June 22, 2005). The practice of seeking certification
after a judgment has been entered against a party is
discouraged, and only in limited circumstances can it be
overcome. Cooper v. Wullweber, 2012 U.S. Dist. LEXIS 9580
(N.D. Iowa Jan. 26, 2012). The Court may take into
Page 5 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
The Court is normally very receptive to certified questions, however questions may be
declined if the factual record is not clear or complete and the legal questions are
therefore difficult to ascertain. Eley v. Pizza Hut of Am., Inc. , 500 N.W.2d 61 (Iowa
1993). The Court has also declined to answer when the question is one of applying
facts to a standard. Bituminous Cas. Corp. v. Sand Livestock Sys ., 728 N.W.2d 216
(Iowa 2007). The Court also declined to answer where it was evenly split on the
outcome. Hagen v. Siouxland Obstetrics & Gynecology, P.C. , 2014 Iowa Sup. LEXIS
48 (Iowa May 9, 2014).
JURISDICTION
ID
IL
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
Idaho A.R. 12.3: if 1) the question of law certified is a The Supreme Court, a Court of Appeals of
controlling question of law in the pending action in the the United States, or a United States District
certifying court as to which there is no controlling
Court.
precedent in the decisions of the Idaho Supreme
Court, and 2) an immediate determination of the
Idaho law with regard to the certified question would
materially advance the orderly resolution of the
litigation in the certifying court.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
The Court will not certify where it is merely applying the facts of
a case to established Idaho law. Brown v. Valley County , 2013
U.S. Dist. LEXIS 51772 (D. Idaho Apr. 9, 2013). A court may
look to other state court decisions and other available authority
in an attempt to apply the Idaho law, and thereby avoid
certifying the issue. Santana v. Zilog, Inc. , 878 F. Supp. 1373
(D. Idaho 1995). There are very few instances of certification
from the Idaho District Court.
Ill. Sup. Ct. R. 20: if the certifying court finds that
Only the Supreme Court and the Court of
there are questions before it which may be
Appeals for the Seventh Circuit may certify.
determinative of the said cause, and there is no
controlling precedent in the decisions of the Supreme
Court of Illinois.
District Courts cannot certify to the Illinois Supreme Court.
Illinois district courts have certified to other State Supreme
Courts, however, and in doing so have shown an openness to
the process. Where cases turn on state law questions of first
impression and the court sees no clear answer, certification
may be appropriate. The Court is even more likely to certify
when the question is regarding another state’s public policy.
Having another state give the authoritative answer to a
question of its law is preferable. Amaro v. Capital One Bank ,
1999 U.S. Dist. LEXIS 966 (N.D. Ill. Feb. 1, 1999).
Page 6 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
I.A.R. 12.3(c): The Court will decline to answer if it finds that it appears there is another
ground for determination of the case pending in the certifying court, or that the question
certified for adjudication is not clearly defined in the Order of Certification, or that there
is not an adequate showing that the question of law qualifies for determination.
However, the Court almost always accepts certified questions.
Certified questions are almost always answered as long as they meet the requirements
of the statute.
JURISDICTION
IN
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
Ind. R. App. P. 64(A): when it appears to the
The Supreme Court, any federal Court of
certifying court that a proceeding presents an issue of Appeals, or any federal District Court.
Indiana law that is determinative of the case and on
which there is no clear controlling Indiana precedent.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
Where the statutory requirements are met, certification is still Certified questions are almost always answered when they meet the statutory
discretionary. The Court disfavors certification when it is made requirements.
after the district court has already decided the issue or tried the
case, and where the party moving for certification is the one
who chose the federal forum. The Court advocates for restraint
in the use of certification so as to not overburden the state
courts. Patel v. United Fire & Cas. Co. , 80 F. Supp. 2d 948
(N.D. Ind. 2000). The Court has declined to certify based on
precedent at the state court of appeals (on the basis that it was
controlling precedent). Fed. Ins. Co. v. Stroh Brewery Co. , 35
F. Supp. 2d 650 (N.D. Ind. 1998).
Where the statutory requirements are met, certification is still
discretionary. The court has noted several factors recognized
by the Seventh Circuit that play into deciding whether to certify,
namely: 1) the degree of uncertainty that exists on the issue, 2)
whether the issue presents a matter of public concern, 3)
whether it is likely to recur, 4) whether the state’s highest court
would consider the issue important in the growth of the state’s
jurisprudence and whether the decision would affect citizens of
the state almost exclusively and, 5) whether the intermediate
courts of the state are in disagreement on the issue or the issue
is one of first impression for the state’s highest court.
Additionally the timing of the motion, and whether the party
bringing the motion chose federal court, can be considered.
Luttrull v. McDonald's Corp. , 2005 U.S. Dist. LEXIS 5541 (S.D.
Ind. Jan. 13, 2005).
Page 7 of 34
JURISDICTION
KS
KY
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Kan. S.A. § 60-3201: If there are involved in any
proceeding before a certifying court questions of
Kansas law which may be determinative of the cause
then pending in that court and as to which it appears
to that court there is no controlling precedent in the
decisions of the Supreme Court and court of appeals
of Kansas.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
The Supreme Court, a Court of Appeals of Where the statutory requirements have been met, the court has
the United States, a United States District the discretion to certify, but "'[c]ertification is not to be routinely
Court, and the highest appellate court, or the invoked whenever a federal court is presented with an
intermediate appellate court, of any other
unsettled question of state law.'" Marzolf v. Gilgore , 924 F.
state.
Supp. 127, 129 (D. Kan. 1996) (quoting Armijo, 843 F.2d 406).
Federal courts should decide questions of state law when
necessary to render a judgment, unless there exists some
recognized public policy or defined principle guiding the
exercise of the jurisdiction conferred. CCPS Transp., LLC v.
Sloan , 2013 U.S. Dist. LEXIS 105411 (D. Kan. July 29, 2013).
"Certification is never compelled, even when there is no state
law governing an issue." Boyd Rosene & Assocs., Inc. v. Kan.
Mun. Gas Agency , 178 F.3d 1363, 1364 (10th Cir. 1999). The
Court may decline to certify where there are remaining
questions of fact, and where the process would not conserve
time, energy and resources. Fairfax Portfolio, LLC v. Owens
Corning Insulating Sys., LLC , 2012 U.S. Dist. LEXIS 4775 (D.
Kan. Jan. 17, 2012).
Ky. Civ. R. 76.37: if questions of Kentucky law may
be determinative of the cause then pending before
the originating court and there is no controlling
precedent in the decisions of the Supreme Court or
Court of Appeals of Kentucky.
Supreme Court, any Court of Appeals for the
United States, any United States District
Court, the highest appellate court of any
other state, or the District of Columbia.
Where the statutory requirements have been met, certification
remains discretionary. The state court need not have
addressed the exact question at issue, so long as established
principles exist to govern a decision. The Court strongly
disfavors post-judgment requests for certification, or “second
bites at the apple.” The Court is also less likely to certify if the
moving party chose federal court. Boyd County ex rel. Hedrick
v. MERSCORP, Inc. , 2014 U.S. Dist. LEXIS 59921 (E.D. Ky.
Apr. 30, 2014)
Page 8 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
The Court will generally answer questions certified to it as long as they meet the
requirements of the statute. The Court will decline to answer where the question has
already been settled by the Kansas Court of Appeals, or where the question comes
from a non-approved certifying court. Union Ins. Co. v. Mendoza , 2010 Kan. LEXIS
891 (Kan. Oct. 8, 2010); Biery v. United States , 2010 Kan. LEXIS 910 (Kan. Sept. 23,
2010).
Kentucky almost always agrees to answer certified questions directed at it from federal
courts, as long as the statutory requirements are met (my research found no opinions
refusing to answer, but a federal court opinion referencing a denial can be found at
White v. Manchester Enter. , 910 F. Supp. 311 (E.D. Ky. 1996).)
JURISDICTION
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
La. Sup. Ct. R. XII: if there are involved in any
The Supreme Court, any Circuit Court of
proceeding before a certifying court questions or
Appeal.
propositions of Louisiana law which are determinative
of said cause independently of any other questions
involved in said case and there are no controlling
precedents in the decisions of the Supreme Court of
Louisiana.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
District Courts cannot certify to the Louisiana Supreme Court. The Supreme Court, from 2004-2014, declined to answer more certified questions than
it accepted. When the Court does this, it either gives no explanation, or simply states
that the issue has been resolved in its precedent. St. Joseph Abbey v. Castille , 106
So. 3d 542 (La. 2013); State v. George , 27 So. 3d 289 (La. 2010).
MA
Mass. Sup. Jud. Ct. R. 1:03: if there are involved in
the proceeding questions of Massachusetts law which
may be determinative of the cause then pending in
the certifying court and as to which it appears to the
certifying court there is no controlling precedent in the
decisions of the Supreme Court of Massachusetts.
Where the statutory requirements are met the Court will certify The Court is generally receptive to certified questions when the statutory requirements
unless the course the Massachusetts Supreme Court would
are met, but has declined to answer based on insufficient statements of fact.
take is reasonably clear. Additionally, courts may consider
other sources of law if those sources convincingly show how
the state Supreme Court would rule. Mount Vernon Fire Ins.
Co. v. VisionAid, Inc. , 2014 U.S. Dist. LEXIS 69234 (D. Mass.
May 19, 2014). The fact that a legal issue is close or difficult is
not normally enough to warrant certification. Perez v. Greater
New Bedford Voc. Tech. Sch. Dist. , 2013 U.S. Dist. LEXIS
161650 (D. Mass. Nov. 13, 2013).
ME
Me. R. App. P. 25: when it shall appear to a certifying The Supreme Court, any Court of Appeals,
court that there are involved in any proceeding before any District Court.
it one or more questions of Maine law which may be
determinative of the cause and that there are no clear
controlling precedents in the decisions of the
Supreme Judicial Court.
LA
The Supreme Court, any Court of Appeals
for the United States, any United States
District Court, or the highest appellate court
of any other state. Also, the U.S. Bankruptcy
Appellate Panel for the First Circuit has
been allowed to certify questions. See,
Treglia v MacDonald (1999) 430 Mass 237,
717 NE2d 249.
Generally, if the requirements of the Supreme Judicial Court
are met (including the lack of material facts in dispute
requirement), the Court will certify. Dinan v. Alpha Networks
Inc., 857 F. Supp. 2d 162 (D. Me. 2012). But certification is not
appropriate where the state law is “sufficiently clear” to allow a
federal court to predict its course. In re Hannaford Bros. Co. ,
660 F. Supp. 2d 94 (D. Me. 2009). The Court may be less likely
to certify in instances of contract construction, although this
may be limited to simple questions. Tobin v. Nat'l Grange Mut.
Ins. Co. , 2009 U.S. Dist. LEXIS 51578 (D. Me. June 15, 2009).
Page 9 of 34
The Court will generally accept if the statutory requirements are met, however it may
not do so if there is a dispute as to the material facts at issue, especially where the law
will depend on factual distinctions. The Court’s answer, at least in one alternative, must
be determinative of the case. Darney v. Dragon Prods. Co. , LLC, 2010 ME 39, 994
A.2d 804.
JURISDICTION
MD
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
Md. Code Ann., Cts. & Jud. Proc. § 12-603: may
A court of the United States, an appellate
answer a question of law from a certifying court if the court of another state or a tribe.
answer may be determinative of an issue in pending
litigation in the certifying court and there is no
controlling appellate decision, constitutional provision,
or statute of this State.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
Where the statutory requirements have been met, the decision The Court of Appeals is extremely receptive to certified questions, and I could not find
to certify is discretionary. Certification should not be invoked
an example of the Court declining to answer.
absent genuinely unsettled matters of state law, and where
ample precedent exists to guide the federal court, the Court
should decide the case. Lynn v. Monarch Recovery Mgmt. ,
2013 U.S. Dist. LEXIS 41700 (D. Md. Mar. 22, 2013). The Court
will consider not only the uncertainty it faces in its decision but
also the potential impact of the decision. Bourgeois v. Live
Nation Entm't, Inc. , 2012 U.S. Dist. LEXIS 83423 (D. Md. June
14, 2012). The Court may also deny certification if it feels that
doing so would cause unnecessary delay or use of resources.
Antonio v. Sec. Servs. of Am., LLC , 2010 U.S. Dist. LEXIS
72148 (D. Md. July 16, 2010).
Page 10 of 34
JURISDICTION
MI
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Mich. Ct. R. 7.305(b): a question that Michigan law
may resolve and that is not controlled by Michigan
Supreme Court precedent.
WHICH COURTS MAY CERTIFY
A federal court, state appellate court, or
tribal court.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
Where the statutory requirements have been met, the decision
to certify will still be discretionary. Certification is most
appropriate if the state law question is new and unsettled.
District courts should take into account whether the Sixth
Circuit has examined the issues and found them to be settled.
Pack v. Damon Corp. , 2006 U.S. Dist. LEXIS 22806 (E.D.
Mich. Apr. 25, 2006). The Court has noted the “unlikely
acceptance” of the Michigan Supreme Court, and has declined
to certify based on a fear of further delaying an already lengthy
litigation process. The Court also considers whether the
certification motion comes early in the process, after briefing, or
even post-judgment; the later, the less likely for certification.
Lozada v. Dale Baker Oldsmobile, Inc., 145 F. Supp. 2d 878
(W.D. Mich. 2001). The Bankruptcy Court for Michigan has also
recognized that in Chapter 7 proceedings, certification may not
be proper, considering the need for expeditious resolution. In
Re Spradlin, 231 B.R. 254, 256 n.1 (Bankr. E.D. Mich. 1999).
Page 11 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
The Court frequently declines to answer questions certified to it by federal courts. This
may have been a function of judges in the past who found certification to be
unconstitutional under the Michigan Constitution, however. See Miller v. Ford Motor
Co. (In re Certified Question ), 479 Mich. 498, 740 N.W.2d 206 (2007). The Court has
grown more receptive in recent years.
JURISDICTION
MN
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Minn. Stat. Ann. § 480.065: if the answer may be
determinative of an issue in pending litigation in the
certifying court and there is no controlling appellate
decision, constitutional provision, or statute of
Minnesota.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
The most important consideration in deciding whether to certify The Supreme Court of Minnesota is extremely receptive to certified questions. I could
Any court of the United States or an
appellate court of another state, or a tribe, or is whether the Court finds itself genuinely uncertain about a
find no example of the court declining to answer a question.
Canada or a Canadian province or territory, question of state law. The existence of conflicting, or unclear,
or Mexico or a Mexican state.
authorities weighs in favor of certification. Sari v. Wells Fargo
Bank, N.A. , 2013 U.S. Dist. LEXIS 109322 (D. Minn. Aug. 5,
2013). That being said, certification is not obligatory even when
the state law is in doubt, and absent a close question of state
law or the lack of state sources, a federal court should
determine all the issues before it. H.B. Fuller Co. v. United
States Fire Insurace Co. , 2011 U.S. Dist. LEXIS 77896 (D.
Minn. July 18, 2011). The Court looks upon late requests for
certification (after the question has been submitted for decision)
and moving parties who brought the case in federal court in the
first place, with skepticism. Questions which may be likely to
recur are viewed more favorably for certification. Sun Life
Assur. Co. v. Paulson , 2008 U.S. Dist. LEXIS 99633 (D. Minn.
Dec. 3, 2008).
Does not permit certification.
Distict Courts cannot certify to the Missouri Supreme Court.
Does not permit certification.
MO
Mo. Ann. Stat. § 477.004 would allow for
certification, but the Missouri Supreme Court has
held that the process is unconstitutional under
the Missouri Constitution. Grantham v. Mo. Dep't
of Corr., 1990 Mo. LEXIS 129 (Mo. July 13, 1990).
MS
Miss. R. App. P. 20: if there are questions or
propositions of Mississippi law which are
determinative of all or part of a cause before a
certifying court, and there are no controlling
precedents in the decisions of the Mississippi
Supreme Court.
The Supreme Court and any United States
Court of Appeals.
District Courts cannot certify to Mississippi Supreme Court.
MT
Mont. R. App. P. 44: if the answer may be
determinative of an issue in pending litigation in the
certifying court and there is no controlling appellate
decision, constitutional provision, or statute of
Montana.
A court of the United States, or the highest
court of another state or of a tribe or of
Canada, a Canadian province or territory,
Mexico, or a Mexican state.
Where the statutory requirements are met, the ability to certify The court seems to be receptive to certified questions. I could not find any instances of
important, undecided issues to the state Supreme Court is
the court declining to answer where the statutory requirements were satisfied.
important to the federal court, particularly where the legal issue
is significant and presents important public policy ramifications.
BNSF Ry. Co. v. Feit , 2011 U.S. Dist. LEXIS 103696 (D. Mont.
Sept. 12, 2011).
NC
North Carolina Certification not available.
Certification not available.
Cannot certify to North Carolina.
Page 12 of 34
The Court is generally receptive to certified questions. The Court has, however,
declined to answer a question on the basis that the issue was not “squarely presented”
by the parties in a constitutional inquiry. Sears v. Learmonth , 95 So. 3d 633 (Miss.
2012).
Certification not available.
JURISDICTION
ND
STATUTORY REQUIREMENTS FOR
CERTIFICATION
N.D. R. App. P. 47: if 1) questions of North Dakota
law are involved in any proceeding before the
certifying court which may be determinative of the
proceeding, and 2) it appears to the certifying court
there is no controlling precedent in the decisions of
the Supreme Court of North Dakota.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
The Supreme Court, any Court of Appeals of The District Court certifies questions very infrequently. The
the United States, any United States District Court recognizes that where a court would have to indulge in
Court, or the highest appellate or
speculation or conjecture to make a decision, it should certify,
intermediate appellate court of any other
but also notes that certification should be reserved for close
state.
questions that lack state sources. Delorme v. Autos, Inc. , 2012
U.S. Dist. LEXIS 94861 (D.N.D. July 10, 2012).
WHEN WILL STATE SUPREME COURT ACCEPT
The Court will generally answer questions where the two requirements have been met,
but will decline if the answers would not be dispositive, wholly or principally, of the
issues in the case. A less stringent standard will be applied in answering questions
from the Courts of other jurisdictions (including federal, where “may be dispositive” will
be the standard). McKenzie Cnty. v. Hodel , 467 N.W.2d 701 (N.D. 1991).
NE
Neb. Rev. Stat. § 24-219: if there are involved in any The Supreme Court, a Court of Appeals of
proceeding before a certifying court questions of
the United States, or a United States District
Nebraska law which may be determinative of the
Court.
cause then pending in the certifying court as to which
it appears to the certifying court there is no controlling
precedent in the decisions of the Supreme Court of
Nebraska.
I could find only two instances of the District Court discussing
the certification of questions to the state Supreme Court,
although a review of State court opinions indicates the District
Court has done so several other times. The Court declined to
certify where there was controlling precedent on which to make
their decision. Doe v. Nebraska , 2010 U.S. Dist. LEXIS 37622
(D. Neb. Apr. 15, 2010). The Court certified a question of state
law in lieu of Pullman abstention, but the Nebraska Supreme
Court declined to answer. Keller v. City of Fremont , 2010 U.S.
Dist. LEXIS 89638 (D. Neb. Aug. 25, 2010).
NH
N.H. Sup. Ct. R. 34: if there are involved in any
The Supreme Court, a Court of Appeals of
proceeding before a certifying court questions of New the United States, or the District of
Hampshire law which may be determinative of the
Columbia, or a District Court.
cause then pending in that court and as to which it
appears to that court there is no controlling precedent
in the decisions of the Supreme Court of New
Hampshire.
Where the statutory requirements are met the Court will usually The Court accepts certified questions when they comply with the statutory
certify unless the state law is sufficiently clear to allow the
requirements.
Court to make its own prediction. Additionally, while not
dispositive, the Court looks unfavorably upon parties who
originally requested the federal forum filing for certification.
Gans v. Gant , 2013 DNH 93.
Page 13 of 34
The Nebraska Supreme Court receives very few certification requests, but will usually
accept. The Court has however declined to answer where the question related to a
federal constitutional challenge of a state law. This was because resolution of whether
the statute was constitutional under the state statute would not resolve the federal case
as the federal challenge would still apply. Keller v. City of Fremont , 280 Neb. 788, 790
N.W.2d 711 (2010).
JURISDICTION
NJ
NM
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
Rule 2:12A: if the answer may be determinative of an The Third Circuit Court of Appeals.
issue in litigation pending in the Third Circuit and
there is no controlling appellate decision,
constitutional provision, or statute in this state.
N.M. Stat. Ann. § 39-7-4: if the answer may be
determinative of an issue in pending litigation in the
certifying court and there is no controlling appellate
decision, constitutional provision or statute of New
Mexico.
By a court of the United States or by an
appellate court of another state, a tribe,
Canada, a Canadian province or territory,
and Mexico or a Mexican state.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
District Courts cannot certify to NJ Supreme Court.
The Supreme Court of New Jersey regularly fails to explain itself when deciding
whether to accept or decline a certified question. The Court declines nearly as many
requests as it accepts. The process is relatively young (1999), however, so the Court
has not had many opportunities. Knoepfler v. Guardian Life Ins. Co. of Am. , 185 N.J.
612, 889 A.2d 1063 (2005); Delta Funding Corp. v. Harris , 185 N.J. 255, 883 A.2d
1055 (2005). Former Supreme Court Justice Zazzali has indicated that Rule 2:12-4,
which governs New Jersey’s appellate court’s certification of questions, provides
guidance. Under that rule the Court will accept questions 1) where the appeal presents
a question of public importance which has not been but should be settled by the
Supreme Court, or is similar to a question presented on another appeal to the Supreme
Court, 2) if the decision under review is in conflict with any other decision of the same
or a higher court or calls for an exercise of the Supreme Court’s supervision, or 3) if the
interest of justice requires.
The Court retains discretion to certify even where the statutory
requirements are met. Certification is not to be routinely
invoked whenever the Court is presented with an unsettled
question of state law, and the Court should consider judicial
economy and the potential public interests of the state court
when making its decision to certify. Bonham v. Indem. Ins. Co.
of N. Am. , 507 F. Supp. 2d 1196 (D.N.M. 2007). The Court
generally will not certify questions when the requesting party
seeks certification only after having received an adverse
decision from the district court. Arnold v. Farmers Ins. Co. ,
827 F. Supp. 2d 1289 (D.N.M. 2011).
Page 14 of 34
The Court is generally receptive of certified questions, but will not allow the process to
be used in a way that resembles advisory opinions. Therefore, questions must be
squarely presented to and litigated by the certifying court. Additionally, the certifying
court should resolve the facts necessary for a determination before certification. City of
Las Cruces v. El Paso Elec. Co. , 1998-NMSC-006, 124 N.M. 640, 954 P.2d 72. The
Court will also consider whether the question is one of substantial public interest.
Schlieter v. Carlos , 108 N.M. 507, 511, 775 P.2d 709, 713 (1989).
JURISDICTION
NV
NY
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Nev. R. App. P. 5: if there are involved in any
proceeding before those courts questions of Nevada
law which may be determinative of the cause then
pending in the certifying court and as to which it
appears to the certifying court that there is no
controlling precedent in the decisions of the Nevada
Supreme Court.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
The Supreme Court of the United States, a Where the statutory requirements are met, the Court should
Court of Appeals of the United States or of keep in mind that when a federal court confronts an issue of
the District of Columbia, a United States
state law which the state’s highest court has not addressed, the
District Court, or a United States Bankruptcy federal court typically should predict how the state’s highest
Court.
court would decide the issue. Branch Banking & Trust Co. v.
Frank , 2012 U.S. Dist. LEXIS 59916 (D. Nev. Apr. 30, 2012).
When making its decision, the Court should consider whether
the state law question presents a significant question of
important state public policy, whether the issue involved has
broad application, whether law from other states is instructive,
the state court’s case load, and comity and federalism
concerns. It may also consider the timing of the certification
and whether certification will achieve savings to time money
and resources. Hansen v. State Farm Mut. Auto. Ins. Co. , 2013
U.S. Dist. LEXIS 165207 (D. Nev. Nov. 19, 2013). Several
questions are certified to the Supreme Court of Nevada from
this court every year.
N.Y. Ct. App. R. 500.27(a): where a case is pending The Supreme Court, any United States
Not permitted to certify to the New York Court of Appeals.
before a certifying court for which no controlling
Court of Appeals, or a court of last resort of
precedent of the Court of Appeals (the highest court any other state.
in NY) exists, the court may certify the dispositive
questions of law to the Court of Appeals.
Page 15 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
The Court generally answers questions certified to it, as long as they meet the
statutory requirements. The Court may also look to see if the question certified is one
of importance to state law. Weinstein v. Fox (In re Fox) , 302 P.3d 1137 (Nev. 2013).
The Court’s review is limited to the facts provided by the certification order. Wilmington
Trust FSB v. A1 Concrete Cutting & Demolition, LLC (In re Fontainebleau Las Vegas
Holdings, LLC) , 289 P.3d 1199 (Nev. 2012).
The Court generally accepts questions certified to it as long as they meet the statutory
requirements. The Court has noted that where the issue may not be determinative, and
where the question is too abstract or overly generalized, it may decline to answer it.
Yesil v. Reno , 92 N.Y.2d 455, 705 N.E.2d 655 (1998). Additionally, the Court of
Appeals has denied requests in the name of efficiency and expediency. Tunick v.
Safir , 94, N.Y.2d 709, 711 (2000) (per curiam).
JURISDICTION
OH
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Ohio S.Ct. Prac. R. 9.01: for questions of Ohio law
that may be determinative of the proceeding and for
which there is no controlling precedent in the
decisions of the Ohio Supreme Court.
WHICH COURTS MAY CERTIFY
Any court of the United States.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
Where the statutory requirements have been met, the decision
to certify will still be discretionary. The requirements of the Ohio
statute do not mean that a federal court should certify any
question not specifically addressed by the Ohio Supreme
Court. Certification should be used where it would save time,
energy, and resources, or where there are conflicting federal
interpretations of an important state law question which would
otherwise evade state court review. Certification should not be
invoked just because the analysis may be difficult. Cincinnati
Ins. Co. v. St. Paul Protective Ins. Co. , 2007 U.S. Dist. LEXIS
66352 (N.D. Ohio Sept. 7, 2007). Certification is most
appropriate when the question is new and state law is
unsettled. The longer parties wait in the procedural process, the
less appropriate certification becomes. Kline v. Mortgage Elec.
Sec. Sys., 2013 U.S. Dist. LEXIS 133765 (S.D. Ohio Sept. 18,
2013); Gascho v. Global Fitness Holdings, LLC, 918 F.Supp.2d
708, 713 (S.D. Ohio 2013).
Page 16 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
The Ohio Supreme Court is generally accommodating to certified questions of state
law, however in the rare cases that the Court declines to answer the question, its
opinions usually contain nothing more than its decision not to hear the question.
Among reasons the Court has supplied for these refusals are the law being settled and
the question being too factually specific. See, Dunn v. Ethicon, Inc. , 106 Ohio St. 3d
1531 (2005); Copper v. Buckeye Steel Castings , 67 Ohio St. 3d 563 (1993).
JURISDICTION
OK
OR
STATUTORY REQUIREMENTS FOR
CERTIFICATION
20 Okl. St. § 1602: if the answer may be
determinative of an issue in pending litigation in the
certifying court and there is no controlling decision of
the Supreme Court or Court of Criminal Appeals,
constitutional provision, or statute of Oklahoma.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
A court of the United States, or an appellate Certification is generally appropriate where the legal issue is
court of another state, or a federally
novel and the applicable state law is unsettled, but it should not
recognized Indian tribal government, or
be routinely invoked simply because a question is unsettled.
Canada, a Canadian province or territory,
Additionally, where the moving party has unreasonably delayed
Mexico, or a Mexican state.
in asking for certification, that request will be viewed with
skepticism. Empire Bank v. Dumond, 2014 U.S. Dist. LEXIS
93737 (N.D. Okla. July 10, 2014). The judicial policy of a state
should generally be decided by the state, not a federal court.
Hunnicutt v. Zeneca, Inc., 2012 U.S. Dist. LEXIS 4391 (N.D.
Okla. Jan. 13, 2012). The Western District typically states the
statutory rule and finds either that it has been met or that is has
not. Bankston v. Conocophillips Pipeline Co., 2007 U.S. Dist.
LEXIS 57998 (W.D. Okla. May 3, 2007).
Or. Rev. Stat. § 28.200: if there are involved in any
proceedings before a certifying court questions of
Oregon law which may be determinative of the cause
then pending in the certifying court and as to which it
appears to the certifying court there is no controlling
precedent in the decisions of the Supreme Court and
the intermediate appellate courts of Oregon.
The Supreme Court, a Court of Appeals of
the United States, a United States District
Court, a panel of the Bankruptcy Appellate
Panel Service or the highest appellate court
or the intermediate appellate court of any
other state.
The Court seems reluctant to certify, finding in most cases that
there is controlling precedent or that the issue is not
determinative. Additionally, the Court will refuse to certify where
the question poses disputed issues of fact. Painewebber Inc. v.
Banyan Corp. , 2000 U.S. Dist. LEXIS 20448 (D. Or. Mar. 4,
2000). The Court, before certifying, should make sure that the
factors laid out in Western Helicopter Servs. Inc. v. Rogerson
Aircraft Corp. , are met. 311 Ore. 361, 364, 811 P.2d 627, 630
(1991). These are: (1) the request must come from a
designated court; (2) the question must be one of law; (3) the
applicable law must be Oregon law; (4) the question must be
one that "may be determinative of the cause;" and (5) it must
appear to the certifying court that there is no controlling
precedent from Oregon courts. Western Helicopter at 40.
Page 17 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
The Court is generally receptive to certified questions. Scottsdale Ins. Co. v. Tolliver ,
2005 OK 93, 127 P.3d 611, 612 (citing the few instances in which the Court has
declined to answer a question). The Supreme Court is constrained by the facts certified
to it and its examination is confined to resolving legal issues. Gov't Emples. Ins. Co. v.
Quine , 2011 OK 88, 264 P.3d 1245. Additionally, the Court will not answer questions
where the certifying court has the option to refuse jurisdiction over the matter because
in the event the certifying court did so, the Supreme Court’s answer would be an
advisory opinion. Ball v. Wilshire Ins. Co. , 2007 OK 80, 184 P.3d 463.
The Court is generally receptive, but has stated that Oregon Court of Appeals
decisions will count as “controlling precedent” and therefore that questions should not
be certified where there has been discussion of the issue at the appellate level.
Kambury v. DaimlerChrysler Corp. , 334 Or. 367, 50 P.3d 1163 (2002). For an older
case discussing the factors the Supreme Court will take into consideration when
exercising their discretion, see W. Helicopter Services, Inc., v. Rogerson Aircraft
Corp. , 311 Or. 361, 366 (1991). These include considerations of comity, the
importance of the question, the procedural posture of the case, and whether the case
is one of Pullman abstention.
JURISDICTION
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
204 Pa. Code 29.451; Pa. Sup. Ct. Operating P.
The Supreme Court and any Court of
10(A)(1-2): where there are special and important
Appeals of the United States.
reasons for granting certification. The Court also
enumerates three reasons for granting certification,
although they are not meant to be exhaustive: 1) the
question of law is one of first impression and is of
such substantial public importance as to require
prompt and definitive resolution, 2) the question of
law is one with respect to which there are conflicting
decisions in other courts, and 3) the question of law
concerns an unsettled issue of the constitutionality,
construction, or application of a statute of the
Commonwealth. A question will not be accepted
unless all facts material to the question of law are
undisputed.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
District Courts cannot certify to the Pennsylvania Supreme
The Supreme Court generally accepts certified questions if they meet the statutory
Court.
requirements. Since 2000, there have been only two instances in which the court
declined to answer a certified question, and 10 in which the Court accepted. Fross v.
Cnty. of Allegheny , 610 Pa. 421, 20 A.3d 1193 (2011) (granting certification); but see
Kirleis v. Dickie , 2008 Pa. LEXIS 2387 (Pa. Oct. 22, 2008) (declining to answer the
question).
RI
R.I. Sup. Ct. art. I, R. 6(a): if there is involved in any The Supreme Court, a Court of Appeals of
the United States, or of the District of
proceeding before a certifying court a question of
Rhode Island law which may be determinative of the Columbia, or a United States District Court.
cause then pending in that court and as to which it
appears to the certifying court there is no controlling
precedent in the decisions of the Supreme Court of
Rhode Island.
Even where the statutory requirements are met, the Court
Where the statutory requirements have been met, the Supreme Court will answer the
should be aware that certification is not appropriate where
question. Am. States Ins. Co. v. LaFlam , 69 A.3d 831 (R.I. 2013).
Rhode Island law and other authorities from other jurisdictions
have provided a clear path on state law. Marano v. RBS
Citizens Fin. Group , 2012 U.S. Dist. LEXIS 186225 (D.R.I.
Dec. 27, 2012).
SC
S.C. App. Ct. R. 244: if there are involved in any
Any federal court of the United States or the
proceeding before a certifying court questions of
highest appellate court or an intermediate
South Carolina law which may be determinative of the appellate court of any other state.
cause then pending in the certifying court and it
appears to the certifying court there is no controlling
precedent in the decisions of the Supreme Court of
South Carolina.
Certification should deal with pure questions of law, not
The Supreme Court is extremely receptive to certified questions, answering several
each year.
applications of evidence to standards. Fagnant v. Johnson ,
2013 U.S. Dist. LEXIS 123958 (D.S.C. Aug. 28, 2013).
Certification is appropriate when the federal tribunal is required
to address a novel issue of local law which is determinative in
the case before it. Integon Gen. Ins. Corp. v. Bartkowiak , 2010
U.S. Dist. LEXIS 111368 (D.S.C. Oct. 19, 2010).
PA
Page 18 of 34
JURISDICTION
SD
TN
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
CERTIFICATION
S.D. Codified Laws § 15-24A-1: if there are
The Supreme Court, a Court of Appeals of
questions of South Dakota law involved in any
the United States, or a United States District
proceeding before a certifying court which may be
Court.
determinative of the cause pending in that court and it
appears to that court and to the Supreme Court of
South Dakota that there is no controlling precedent in
the decisions of the Supreme Court of South Dakota.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
Where the statutory requirements have been met, the Court
The Supreme Court is extremely receptive to certified questions, although it does not
may consider the potential public policy effects of the decision, deal with many.
and whether the state is more properly equipped to determine
the issue as a result. Gronseth v. Chester Rural Fire Prot.
Dist., 2009 U.S. Dist. LEXIS 31802 (D.S.D. Apr. 9, 2009).
Tenn. Sup. Ct. R. 23, Sec. 1: if the certifying court
determines that, in a proceeding before it, there are
questions of Tennessee law which will be
determinative of the cause and as to which it appears
there is no controlling precedent in the decisions of
the Supreme Court of Tennessee.
Where the statutory requirements have been met, the decision The court seems to answer nearly all questions certified to it by a court within the reach
to certify will still be discretionary. Certification is most
of the statute.
appropriate when the question is new and state law is
unsettled. Where there is a reasonably clear and principled
course, it should be followed. Becker v. Ford Motor Co. , 2013
U.S. Dist. LEXIS 161613 (E.D. Tenn. Nov. 13, 2013). The Court
should not certify where the question is neither intricate nor
repetitive. Where the answer is reasonably clear, there should
be no certification. Loveday v. Sevier County , 2000 U.S. Dist.
LEXIS 4017 (E.D. Tenn. Mar. 20, 2000). Timing can be a factor
as well, and the later the request, the less favorably it will be
considered. Am. Bank, FSB v. Cornerstone Cmty . Bank, 903 F.
Supp. 2d 568 (E.D. Tenn. 2012).
Where the statutory requirements have been met, the decision
to certify will still be discretionary. Certification should be used
sparingly, especially with respect to run-of-the-mill legal
questions. Renteria-Villegas v. Metro. Gov't of Nashville &
Davidson County, 2011 U.S. Dist. LEXIS 102918 (M.D. Tenn.
Sept. 12, 2011).
The Supreme Court, any Court of Appeals of
the United States, any District Court of the
United States in Tennessee, or any U.S.
Bankruptcy Court in Tennessee.
Page 19 of 34
JURISDICTION
TX
UT
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Tex. R. App. P. 58.1: if the certifying court is
presented with determinative questions of Texas law
having no controlling Supreme Court of Texas
precedent.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
Any federal appellate court. This means no A federal district court cannot certify to the Texas Supreme
The Court is extremely receptive to certified questions from the Fifth Circuit and other
Circuit courts. I could not find any instances of the Court declining to answer a certified
U.S. District Courts. Marketic v. U. S. Bank Court; for a case that discusses the issue in the Western
Nat'l Ass'n , 436 F. Supp. 2d 842, 852 fn. 7 District, see Carbon Processing & Reclamation, LLC v. Valero question.
Mktg. & Supply Co., 823 F. Supp. 2d 786 (W.D. Tx. 2011).
(N.D. Tex. 2006).
Utah R. App. P. 41: if the state of the law of Utah is
applicable to a proceeding before a certifying court
and is uncertain (i.e. there appears to be no
controlling Utah law), and if the question certified
constitutes a controlling issue of law in that
proceeding.
A court of the United States.
Certification is not to be routinely invoked whenever a Court is The Supreme Court of Utah is generally receptive to certified questions.
confronted with an unsettled question of state law, but where
an issue is one of state policy the state is better equipped to
handle the question. Concerns of comity, federalism, and the
efficient use of judicial resources may also weigh in favor of
certification. Ray v. Wal-Mart Stores, Inc. , 2013 U.S. Dist.
LEXIS 146778 (D. Utah Oct. 8, 2013). Additionally, the Court
may consider whether the issue is likely to recur in other cases.
Carranza v. United States , 2009 U.S. Dist. LEXIS 41197 (D.
Utah May 14, 2009).
Page 20 of 34
JURISDICTION
VA
VT
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Va. Sup. Ct. R. 5:40: if a question of Virginia law is
determinative in any proceeding pending before the
certifying court and it appears there is no controlling
precedent on point in the decisions of the Supreme
Court or Court of Appeals of Virginia.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
The Supreme Court, any United States
Certification of an issue is preferably done at the appellate
The Supreme Court is extremely receptive to certified questions, although it may
Court of Appeals, any United States District stage, as the development of a more complete record is
sometimes reformulate the question.
Court, or the highest appellate court of any necessary to bring the issue into sharper focus. Additionally,
state, territory, or the District of Columbia. the matter might be settled by the two parties or it may be
changed or deemed unimportant to the disposition. In general,
certification by a district court should be reserved for when the
unsettled issue of Virginia law is a) dispositive and centrally
important to the case, b) not likely to be settled, rendered moot
or altered by factual development or litigation, and c) not
uniformly and sensibly settled in other jurisdictions. Bank of
Am. v. Musselman , 222 F. Supp. 2d 792 (E.D. Va. 2002).
Regardless of the availability of Rule 5:40’s certification
procedure, certification is never compelled and remains in the
discretion of the certifying court. Certification should be
cautiously exercised. District Courts should be even more
cautious. Coles v. Jenkins, 24 F. Supp. 2d 599 (W.D. Va.
1998). The Court may take into account the time and resources
necessary to certify in making its decision, as well as its
relative ability to predict the state law determination. Legard v.
EQT Prod. Co., 771 F. Supp. 2d 607 (W.D. Va. 2011)
Vt. R.A.P. Rule 14: if the answer might determine an Any federal court.
issue in pending litigation and there is no clear and
controlling Vermont precedent.
Where the statutory requirements have been met, the decision
to certify is a discretionary one. Certification may be
appropriate when a state's highest court has cast doubt on the
scope or continued validity of an earlier holding or where doubt
has been cast by other courts, states or commentators, or
when a state's highest court has not yet definitively ruled on an
issue on which there is intermediate state court law, particularly
if there is a split of authority in the lower courts. Soutiere v.
BetzDearborn, Inc. , 2002 U.S. Dist. LEXIS 28510 (D. Vt. Apr.
17, 2002). Certification is seemingly infrequent.
Page 21 of 34
While it is clear that the Vermont Supreme Court will accept certified questions of law,
the Court has also declined on numerous occasions. City of Burlington v. Indem. Ins.
Co. of N. Am. , 346 F.3d 70 (2d Cir 2003); Travelers Ins. V. Carpenter , 858 A.2d 702
(Vt. 2004). It is unclear how frequent the denials may be because the court regularly
issues them in unpublished opinions, and without explanation.
JURISDICTION
WA
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Wash. Rev. Code § 2.60.020: if it is necessary to
ascertain the local law of Washington in order to
dispose of a proceeding and the local law has not
been clearly determined, such federal court may
certify to the Supreme Court of Washington the
question of local law involved.
WHICH COURTS MAY CERTIFY
Federal courts.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
Certification rests in the discretion of the federal court, and
should not be used merely because there is some difficulty
ascertaining local law. Certification may be proper where the
issue will materially alter the determination of the federal
constitutional questions at issue and the unique facts of the
case make the Court unsure of how the state would hold.
Savage Land, LLC v. Spokane County Water District No. 3 ,
2013 U.S. Dist. LEXIS 72801 (E.D. Wash. May 22, 2013).
Certification may also be more likely where important state
issues and concerns are present and the issue has little federal
impact. McClellan v. World Book Encyclopedia , 1990 U.S. Dist.
LEXIS 20262 (E.D. Wash. Jan. 9, 1990). In addition, there is a
presumption against certifying a question to the state after the
federal district court has issued a decision. Robertson v. GMAC
Mortg. LLC, 2014 U.S. Dist. LEXIS 71541 (W.D. Wash. May 23,
2014). The interests of judicial efficiency and comity should
also be kept in mind when the Court is exercising its discretion.
Frias v. Asset Foreclosures Servs., 2013 U.S. Dist. LEXIS
147444 (W.D. Wash. Sept. 25, 2013).
Page 22 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
The Court is receptive to certified questions, declining to answer them rarely, if at all.
The Court does however limit its discussion of the issues to a narrow view of the
question presented to it by the certifying court. Wash. Water Power Co. v. Graybar
Elec. Co. , 112 Wash. 2d 847, 774 P.2d 1199 (1989).
JURISDICTION
WI
STATUTORY REQUIREMENTS FOR
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFICATION
CERTIFY
Wis. Stat. 821.01: if there are involved in any
The Supreme Court, the federal Courts of A federal district court cannot certify to the Wisconsin Supreme Certified questions are almost always answered when they meet the statutory
proceeding before a valid certifying court questions of Appeals, and the highest appellate courts of Court.
requirements.
Wisconsin law which may be determinative of the
other states.
cause then pending in the certifying court and as to
which there appears to be no controlling precedent in
the decisions of the Supreme Court of Wisconsin or
court of appeals of Wisconsin.
Page 23 of 34
JURISDICTION
WV
WY
STATUTORY REQUIREMENTS FOR
CERTIFICATION
W. Va. Code § 51-1A-3: if the answer may be
determinative of an issue in a pending cause in the
certifying court and there is no controlling appellate
decision, constitutional provision or statute of West
Virginia.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
WHEN WILL STATE SUPREME COURT ACCEPT
CERTIFY
Any court of the United States or the highest Certification may be less likely where the moving party made The Supreme Court of Appeals is extremely receptive to certified questions of law,
appellate court or the intermediate appellate the decision not to move for certification before entry of
although it may sometimes reformulate them. Barr v. NCB Mgmt. Servs ., 227 W. Va.
court of another state or of a tribe or of
judgment or appeal the judgment thereafter. In effect, the party 507, 711 S.E.2d 577 (2011).
Canada, a Canadian province or territory,
may “voluntarily pass[ed] over the means to protect his interest
Mexico or a Mexican state.
in litigation.” Fluharty v. Quicken Loans, Inc. , 2014 U.S. Dist.
LEXIS 20317 (N.D. W. Va. Feb. 19, 2014). Questions should
not be broad, open ended or highly fact specific. The Court may
consider the legal and economic implications to the State and
its citizens that a decision may have. Cain v. XTO Energy Inc.,
2013 U.S. Dist. LEXIS 126435 (N.D. W. Va. Mar. 28, 2013).
See Frederick Mgmt. Co., LLC v. General Assur. of Am., Inc.,
2014 U.S. Dist. LEXIS 79400 (S.D. W. Va. June 11, 2014). The
mere difficulty of ascertaining local law does not appear to be
an adequate reason for certification. Collier v. United States (In
re Charco, Inc.), 2004 U.S. Dist. LEXIS 23160 (S.D. W. Va.
2004).
Wyo. Stat. Ann. § 1-13-106: if there are involved in A federal court.
any proceeding before a federal court questions of
Wyoming law which may be determinative of the
cause and as to which it appears to the federal court
there is no controlling precedent in the existing
decisions of the Wyoming Supreme Court.
Miech v. Sheridan County , 2002 U.S. Dist. LEXIS 28117 (D.
Wyo. Jan. 8, 2002) (restating the statutory rquirements)
Page 24 of 34
The Court will answer certified questions when it decides that they meet the statutory
requirements. Gess v. Flores , 2011 WY 48, 249 P.3d 715 (where the court noted that
a recent opinion was controlling on the issue); Campbell Cnty. Mem. Hosp. v. Pfeifle ,
2014 WY 3, 317 P.3d 573, at 576 (discussing an issue’s lack of determinativeness).
The Court will not engage in fact finding while answering a question, and will only
resolve questions of law. Reliance Ins. Co. v. Chevron U.S.A. , 713 P.2d 766 (Wyo.
1986).
JURISDICTION
STATUTORY REQUIREMENTS FOR
CERTIFICATION
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
WHEN WILL STATE SUPREME COURT ACCEPT
District of Puerto Rico
P.R. Laws Ann. tit. 32, App. III, Rule 53.1(f): if a
certifying court determines that there exists a matter
of Puerto Rican law that could determine the outcome
of a judicial matter, and if in the opinion of the
certifying court there is no previous jurisprudence of
the Supreme Court of Puerto Rico.
The Supreme Court, a Court of Appeals of
the United States, a District Court of the
United States, or the highest appellate court
of any state in the American Union.
Efficiency, judicial certainty, comity, and deference to the
In addition to requiring the issue to be determinative and lacking in precedent, the court
highest state court drive consideration of the use of certification will require that accountings of the facts relevant to the questions are included. There
does not seem to be any hostility to the process.
when the statutory requirements are met. Allman v. Padilla ,
979 F. Supp. 2d 205 (D.P.R. 2013). The process should be
avoided where the course a state court would take is
reasonably clear. Cruz Aviles v. Bella Vista Hosp., Inc. , 112 F.
Supp. 2d 200 (D.P.R. 2000).
District of the Virgin
Islands
V.I.S.Ct.R. 38: if there is involved in any proceeding
before the certifying court a question of law which
may be determinative of the cause then pending in
the certifying court and for which it appears there is
no controlling precedent in the decisions of the
Supreme Court of the Virgin Islands.
Any court of the United States.
There has been only one instance of certification to the
Unclear as the Court itself, and the certification process, is extremely new.
Supreme Court of the Virgin Islands in the Third Circuit, as
discussed in Banks v. Int'l Rental & Leasing Corp. , 680 F.3d
296 (3d Cir. 2012). The Court there merely recognized that the
statutory requirements had been met.
Miscellaneous District Courts
Page 25 of 34
JURISDICTION
STATUTORY REQUIREMENTS FOR
CERTIFICATION
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
Federal Circuit Courts
Court of Appeals, 1st Certification is discretionary and may be permitted
where the statutory requirements of the state in
Circuit
question have been met.
“That a legal issue is close or difficult is not normally enough to
warrant certification, or else diversity cases would regularly
require appellate proceedings in two courts. We consider
additional factors -- including the dollar amounts involved, the
likely effects of a decision on future cases, and federalism
interests -- in deciding whether to certify questions”
Easthampton Sav. Bank v. City of Springfield , 736 F.3d 46 (1st
Cir. 2013); Am. States Ins. Co. v. Laflam , 672 F.3d 38 (1st Cir.
2012).
Court of Appeals, 2nd Rule 27.2: if state law permits, the court may certify
to that state’s highest court.
Circuit
When questions are certified, they tend to focus on 1) the
clarity of the existing case law, 2) the importance of the issue
(both in how it will recur and its public policy implications) and
3) whether an answer will determine the outcome of the case.
O'Mara v. Town of Wappinger , 485 F.3d 693, 698 (2d Cir.
2007). Additionally, certification is appropriate "'where an
unsettled question of state law raises important issues of public
policy, where the question is likely to recur, and where the
result may significantly impact a highly regulated industry.'"
State Farm Mut. Auto. Ins. Co. v. Mallela , 372 F.3d 500, 505
(2d Cir. 2004).
Page 26 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
JURISDICTION
Court of Appeals, 3rd
Circuit
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Rule 110.1: the Court may certify where the
procedures of a state high court provide for
certification and the question of state law will control
the outcome of the case.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
The 3rd Circuit uses certification relatively infrequently, and the
states which it covers were all among the latest to adopt
certification. As a result, the case law for the 3rd Circuit is
scarce. In addition to each state’s statutory requirements, this
is how the Court deals with certification to each state.
Delaware: the court will explicitly state the “important and
urgent” reasons for an immediate determination by the
Supreme Court of Delaware, among which may be a significant
public impact. Kerns v. Dukes, 153 F.3d 96, 107 (3d Cir. 1998).
See also Penn Mut. Life Ins. Co. v. Oglesby, 695 A.2d 1146
(Del. 1997) (dealing with certified question from Third Circuit in
insurance context). New Jersey: The Court refrains from
certifying cases where it can confidently predict how the
Supreme Court would decide the issue. The Court also makes
a point to state that the question is “of such substantial public
importance as to require prompt and definitive resolution” by
the Supreme Court. Delta Funding Corp. v. Harris, 426 F.3d
671 (3d Cir. 2005). Pennsylvania: the Court refrains from
certifying cases where it can confidently predict how the
Supreme Court would decide the issue, and the court makes a
point to state that the question is “of such substantial public
importance as to require prompt and definitive resolution” by
the Supreme Court. Mitchell Partners, L.P. v. Irex Corp., 2011
U.S. App. LEXIS 26430 (3d Cir. Pa. Sept. 28, 2011).
Page 27 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
JURISDICTION
Court of Appeals, 4th
Circuit
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Certification is discretionary and may be permitted
where the statutory requirements of the state in
question have been met.
WHICH COURTS MAY CERTIFY
See below.
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
“It is appropriate for this court to certify a question of state law
to the state's highest tribunal ‘when [we are] required to
address a novel issue of local law which is determinative in the
case before [us].’” Grattan v. Bd. of Sch. Commissioners of
Baltimore City , 805 F.2d 1160, 1164 (4th Cir. 1986). In
addition, the Court may consider the importance of allowing a
state’s highest court decide questions of law with policy
impacts, especially in situations where the issue is likely to
recur. Travco Ins. Co. v. Ward , 468 F. App'x 195 (4th Cir.
2012). The Court frequently certifies questions (at least 9
instances from 2012-2014), and in most instances simply
restates the statutory requirements of the state it is certifying to,
with an explanation of how the case meets those requirements.
Page 28 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
JURISDICTION
Court of Appeals, 5th
Circuit
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Certification is discretionary and may be permitted
where the statutory requirements of the state in
question have been met.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
The Court advocates restraint in certification absent a
compelling reason to do so, noting that the absence of a
definitive answer from the state supreme court is not sufficient
to warrant certification. Certification is also not the proper
avenue to change binding federal precedent on a state issue.
Additionally, the Court should be slow to grant certification
where the moving party also chose the federal forum. Johnson
v. Teva Pharms. USA, Inc. , 2014 U.S. App. LEXIS 13242 (5th
Cir. La. July 11, 2014). While certification should not be used
as a panacea for resolution of complex or difficult state law
questions unanswered by that state’s highest court, it may be
appropriate where important state interests are at stake and the
state courts have not provided clear guidance on how to
proceed. Lemoine v. Wolfe , 2014 U.S. App. LEXIS 13832. See
also Nat'l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass'n , 507
F.3d 309 (5th Cir. 2007).
Page 29 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
JURISDICTION
Court of Appeals, 6th
Circuit
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Certification is discretionary and may be permitted
where the statutory requirements of the state in
question have been met.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
If the state’s statutory requirements have been met, certification
is still discretionary. The Court rarely certifies questions,
especially when the moving party failed to request certification
at the District Court level. City of Columbus v. Hotels.Com,
L.P. , 693 F.3d 642 (6th Cir. 2012). Motions for certification are
even more disfavored after briefing at the Appellate stage, as
this is seen as a waste of judicial economy and resources.
Carolina Cas. Ins. Co. v. Panther H. Transp., Inc. , 402 F. App’x
62 (6th Cir. 2010). Movants who chose the federal court will
also be less likely to receive certification. Shaheen v. Yonts ,
394 F. App’x 224 (6th Cir. 2010). The Court will sometimes
deny certification on the basis that it would cause unnecessary
delay, especially with respect to questions to the Michigan
Supreme Court (which rarely answers the question). Lozada v.
Dale Baker Oldsmobile, Inc. , 145 F. Supp. 2d 878 (W.D. Mich.
2001). The Court will sometimes certify in order to avoid
constitutional adjudication, where a state court issue would be
determinative. Planned Parenthood Cincinnati Region v.
Strickland , 531 F.3d 406, 408 (6th Cir. 2008). The Court will
also be more likely to certify where a particular question of state
law, by way of diversity jurisdiction, frequently avoids state
adjudication. Geib v. Amoco Oil Co. , 29 F.3d 1050, 1060 (6th
Cir. 1994). In addition, much of the reasoning from the District
Courts below comes from Sixth Circuit opinions and would be
applicable in a case before it.
Page 30 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
JURISDICTION
Court of Appeals, 7th
Circuit
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Circuit Rule 52: when a state allows a federal court
to certify to the highest court of the state “questions
arising under the laws of that state which will control
the outcome of a case pending in federal court” the
court may, sua sponte , or on the motion of the
parties, certify a question to the state court in
accordance with the rules of that court. The Court will
only certify a question after merits briefing on the
issue. Motion for certification must be included in the
moving party’s brief.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
Certification is discretionary, in addition to Rule 52 and the
state statutes. “The most important consideration is whether we
find ourselves genuinely uncertain about a question of state law
that is key to a correct disposition of the case. Certification is
also appropriate when the case concerns a matter of vital
public concern, where the issue is likely to recur in other cases,
where resolution of the question determines the outcome of the
case, and where the state supreme court has yet to have an
opportunity to illuminate a clear path on the issue. Lyon Fin.
Servs. v. Ill. Paper & Copier Co. , 732 F.3d 755 (7th Cir. 2013).
Whether the decision will almost exclusively effect citizens of
that state is also a matter of consideration. Tammi v. Porsche
Cars N. Am., Inc., 536 F.3d 702 (7th Cir. 2008). But
certification may not be appropriate where the question is tied
to the specific facts of the case and would not produce a
decision with precedential significance. Harney v. Speedway
SuperAmerica, LLC , 526 F.3d 1099 (7th Cir. 2008). If the party
moving for certification chose the federal forum, that should be
considered but will not be determinative. Plastics Eng'g Co. v.
Liberty Mut. Ins. Co. , 514 F.3d 651 (7th Cir. 2008).
Page 31 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
JURISDICTION
Court of Appeals, 8th
Circuit
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Certification is discretionary and may be permitted
where the statutory requirements of the state in
question have been met.
Court of Appeals, 9th Certification is discretionary and may be permitted
where the statutory requirements of the state in
Circuit
question have been met.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
Where the statutory requirements of a State Supreme Court
have been met, the Court of Appeals decision to certify is
entirely discretionary. The process is most appropriate where
state law is in doubt and touches on public policy concerns that
are of particular interest to state law. Restraint should,
however, be exercised. Lickteig v. Kolar , 2009 U.S. App.
LEXIS 29111 (8th Cir. Minn. Sept. 17, 2009). The Court seems
to employ the certification process sparingly and I could find
only a few instances of certification over the course of the last
ten years. This may be because the Court is willing to look to
state supreme court dicta, state appellate court decisions
(where permitted by statute), and other jurisdictions in
determining whether a clear answer can be deduced. In re
Western Iowa Limestone, Inc. , 538 F.3d 858 (8th Cir. 2008);
Casualty Co. v. Advance Terrazzo & Tile Co. , 462 F.3d 1002
(8th Cir. 2006); Midwest Oilseeds, Inc. v. Limagrain Genetics
Corp. , 387 F.3d 705 (8th Cir. 2004).
In addition to the statutory requirements of a state, certification
may be especially appropriate where the issues of law are
complex and have significant policy implications. Perez-Farias
v. Global Horizons, Inc. , 668 F.3d 588 (9th Cir. 2011). The
Court may also consider forum shopping that may occur if they
do not certify the question and get a uniform answer for the
state and federal courts. Beeman v. Anthem Prescription
Mgmt., LLC , 682 F.3d 779 (9th Cir. 2012). Considerations of
federalism and comity may also play a role in the decision
(especially where resolution of the issue will have a major
impact on the state). Orange Cnty. Dep't of Educ. v. Cal. Dep't
of Educ. , 650 F.3d 1268 (9th Cir. 2011). For cases dealing with
questions of insurance law, see Progressive Gulf Ins. Co. v.
Faehnrich , 627 F.3d 1137 (9th Cir. 2010) and, Apana v. TIG
Ins. Co. , 574 F.3d 679 (9th Cir. 2009).
Page 32 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
JURISDICTION
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Court of Appeals, 10th USCS Ct App 10th Cir, Cir R 27.1: the court may
certify when the situation meets that state Supreme
Circuit
Court’s rules.
Court of Appeals, 11th Certification is discretionary and may be permitted
where the statutory requirements of the state in
Circuit
question have been met.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
Certification is within the sound discretion of the federal court
and is appropriate when it will conserve the time, energy, and
resources of the parties as well as of the Court itself. Thus, the
Court will apply judgment and restraint before certifying, and
will not certify every time an arguably unsettled question of
state law arises. Pino v. United States , 507 F.3d 1233, 1235
(10th Cir. 2007). When a reasonably clear and principled
course exists, the court will seek to follow it. Pino v. United
States , 507 F.3d 1233, 1235 (10th Cir. 2007). Additionally,
certification may be more appropriate where the issue has
distinctly state implications and policy concerns. Hartford Ins.
Co. v. Cline , 427 F.3d 715 (10th Cir. 2005). The Tenth Circuit
frequently deals with certification requests, and certified at least
nine cases from 2012-2014.
The Eleventh Circuit is very permissive in its certification
procedure. Where the statutory requirements have been met,
and there is substantial doubt as to how the Supreme Court of
a particular state would hold, the Court is likely to certify.
Moreno v. Nationwide Ins. Co. , 105 F.3d 1358, 1360 (11th Cir.
1997); Tobin v. Mich. Mut. Ins. Co. , 398 F.3d 1267, 1274 (11th
Cir. 2005); Ala. Educ. Ass'n v. State Superintendent of Educ. ,
746 F.3d 1135, 1145 (11th Cir. 2014).
Page 33 of 34
WHEN WILL STATE SUPREME COURT ACCEPT
JURISDICTION
Court of Appeals,
D.C. Circuit
STATUTORY REQUIREMENTS FOR
CERTIFICATION
Certification is discretionary and may be permitted
where the statutory requirements of the state in
question have been met.
WHICH COURTS MAY CERTIFY
WHEN WILL FEDERAL DISTRICT COURT IN THE STATE
CERTIFY
In addition to statutory requirements, the Court should look to
whether the case is one of public importance. Nationwide Mut.
Ins. Co. v. Richardson , 270 F.3d 948, 2001 U.S. App. LEXIS
23724 (C.A.D.C. 2001). If a discernable path exists, however,
the Court should attempt to follow it instead of certifying. Dial A
Car v. Transportation, Inc. , 132 F.3d 743, 1998 U.S. App.
LEXIS 546 (C.A.D.C. 1998).
Page 34 of 34
WHEN WILL STATE SUPREME COURT ACCEPT