Pursuant to 28 USCS § 1254, cases in the courts of appeals shall be reviewed by the Supreme Court by the following two methods:
- By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;
- By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and
after such certification the Supreme Court shall give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.
A number of states have adopted the Uniform Certification of Questions of Law Act, either substantially or entirely, which empowers state supreme courts to answer certified questions when a proceeding before the certifying court involves questions of law that shall be determinative of the pending case, and when the certifying court believes that there is no controlling precedent in the state.
In re von Bulow, 828 F.2d 94, 98 (2d Cir. N.Y. 1987), the court stated that immediate appellate review by certification is appropriate only when the challenged order “involves a controlling question of law” and where “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Since discovery orders are generally collateral in nature, they will rarely satisfy these requirements. A question may be deemed increasingly important, for purposes of determining whether a certification of the question is warranted, if (1) it will have statewide impact, (2) it is likely to be reversed, (3) it will terminate lengthy proceedings, and (4) the harm inflicted on the parties by a wrong ruling by the district court is substantial.
In Johnson v. BE & K Constr. Co., LLC, 593 F. Supp. 2d 1044 (S.D. Iowa 2009), the district court of Iowa stated that the decision of whether to certify a question of law is committed to the discretion of the district court. The U.S. District Court for the Northern District of Iowa has articulated several factors useful in the determination: (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 a 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; (6) the age of the current litigation and the possible prejudice to the litigants which may result from certification; and (7) whether there is any split of authority among jurisdictions that have considered the issues presented in similar situations.
Some state courts favor exercising the power to answer certified or reserved questions where resolving the questions involve public interest and would promote judicial economy. However, the procedure for certifying questions to appellate courts is not to secure an advisory opinion.
In Hightower v. Schwarzenegger, 2009 U.S. Dist. LEXIS 109603, 4-5 (E.D. Cal. Nov. 5, 2009), the court stated that if a district court determines to certify an order for interlocutory appeal because it involves a controlling question of law, after the order is initially entered, the proper procedure is to amend the order to contain the required certification. A certification order that is not directly framed as an amendment of the original order may nonetheless be treated as an amendment. If a district court makes a certification and if timely application is made to the Court of Appeals, that court may, in its discretion, permit an immediate appeal to be taken.
While a state Supreme Court will answer certified questions from such state’s courts only if the answers would wholly or principally dispose of issues in the case, the court will apply a less stringent standard in exercising its discretion to answer certified questions from courts of other jurisdictions. The function of the Supreme Court is simply to answer the questions certified to it, and it is the function of the certifying court to apply those answers to the facts as it finds them.
The question to be certified should be a question of law rather than a question of fact. Only questions or proposition of law shall be certified and they should be separately and precisely stated. A certified question that is doubtful should be one on which there is substantial ground for a difference of opinion. The courts have recognized that they will not answer hypothetical or abstract questions, or questions that are unnecessary to the decision of the pending controversy. In Southern Baptist Hosp. of Florida, Inc. v. Welker, 908 So. 2d 317 (Fla. 2005), the Supreme Court declined to answer the certified question, where the question presupposed the existence of an otherwise viable cause of action for negligent interference with parental rights, and the issue of whether such a cause of action existed was not raised by the parties in the trial court, district court of appeals, or Supreme Court.
Some states refer to a certification of questions process as reporting a case or question. The basic issue to be reported under the certification procedure is the correctness or propriety of a lower court’s finding or order. The report of a question of law, as a departure from the final judgment rule barring piecemeal appeals, should be used only on extraordinary occasions. Therefore, an appeals court will not accept a report unless the question of law posed is one of significant importance and doubt, so as to require a review by the appeals court before the action is allowed to proceed any further.
The certification jurisdiction of the United States Supreme Court is invoked at the discretion and upon the initiative of the court of appeals; certification may not be had by a party as of right. Under the Uniform Certification of Questions of Law Act, any of the specified courts may invoke the certification process either upon the court’s own motion or upon the motion of any party in the case.
Any question of law in any civil or criminal case may be certified at any time by a court of appeals, and upon such certification the Supreme Court may give binding instructions. A state Supreme Court may have jurisdiction to decide a reserved question which is taken to it at an interlocutory stage, as well as at the final judgment stage. A reviewing court may decline to consider a reserved case which is filed late under the time requirement in a court rule, but may suspend that rule when justice requires it.
The certificate should contain a statement of the nature of the case and of the facts on which the question or proposition of law arises. The Supreme Court will not answer a certified question where the certificate fails to disclose whether all the facts and circumstances pertinent to the issue have been certified. In states which follow the Uniform Certification of Questions of Law Act, the requesting court should set forth in its certification order the questions of law to be answered and a statement of all relevant facts showing the full nature of the controversy in which the questions arose.
In W. Linn Corporate Park L.L.C. v. City of W. Linn, 534 F.3d 1091 (9th Cir. Or. 2008), the court stated that the jurisdiction of the Oregon Supreme Court is properly invoked when the certified questions satisfy five statutory criteria. Those criteria require that: (1) the certification 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 in the decisions of the Oregon Supreme Court or the Oregon Court of Appeals.
When a question is certified, the Supreme Court Clerk will notify the parties and docket the case, and counsel should enter their appearances. After docketing the case, the clerk will submit the certificate to the Supreme Court for a preliminary examination to determine whether the case should be briefed, set for argument, or dismissed. Unless and until the preliminary examination of the certificate is completed no brief shall be filed. When a certification order is forwarded to a higher court under the Uniform Certification of Questions of Law Act, the higher court may need the entire original or copies or any portion of the record from the certifying court to be filed with the certification order, if the higher court finds it necessary in answering the questions.
If the Supreme Court orders that the case be briefed or set for argument, the parties should be notified and allowed to file briefs. Any portion of the record to which the parties wish to direct the Supreme Court’s particular attention must be printed in a joint appendix prepared in conformity with the rule by the appellant or petitioner in the court below. Briefs on the merits in cases on certificates should follow the Supreme Court Rules regarding briefs,4 except that the brief for the appellant or petitioner below must be filed within 45 days of the order requiring briefs or setting the case for argument.
The Supreme Court shall grant a motion to amend the certificate where it is necessary, even though a certificate shall be dismissed. Many jurisdictions approve that a state Supreme Court shall examine and reformulate the certified questions if it is necessary to fully address the questions.
A certificate shall be stricken from the docket for want of prosecution, or dismissed for the following:
- On the motion of the applicant; or
- On the unopposed suggestion that the answer to the certified questions would not affect the court of appeals’ action in the suit; or
- If it fails to certify the facts properly.
The Supreme Court will not order up the entire record to cure a defective certificate. Upon granting a petition for certification, the court will dismiss the certification as improvidently granted where an examination of the record and briefs of the parties indicates that the factual premise for the question posed is not present, or where it is possible to dispose of the underlying issue presented by a case without resort to addressing broader constitutional questions that were certified, or if its examination of the record indicates the existence of sharply disputed factual contentions concerning the certified question.