The Sixth Circuit just issued a landmark ruling limiting the availability of Chevron deference to agency interpretations of statutes that can carry criminal sanctions. Our partner Keith Bradley assessed the situation recently in Law360.
Practical Pointers for Certifying Questions to State Courts
Prior posts have discussed the comparative rarity of certified questions of state law in the Sixth Circuit (here and here). This post gives practical pointers to improve your odds of success with certified questions both in the Sixth Circuit and in the state courts.
The decision to ask a federal court to certify a question to a state supreme court should be made as early as possible. Many of the state and federal requirements require significant planning, as the foundation of a successful certification is often laid in the first few months. Given that a certified question can be rejected by either state or federal courts, litigants should review the requirements of both courts before moving a federal court for certification (see, e.g., Ohio S. Ct. Prac. R. 9.01; Mich. Ct. R. 7.308; Ky. R. Civ. P. 76.37; Tenn. Sup. Ct. R. 23). Below are the five chief factors that courts consider when seeking to certify a question of state law:
- Case origin. Plaintiffs that chose to file in federal rather than state court may find the courts skeptical, based on the idea (fair or unfair) that a case raising an important issue of state law should have stayed in state court, and to avoid forum-shopping. Defendants that removed a case to federal court may find the same problem when seeking certification.
- State of the facts. Certification is most appropriate where a case’s factual record is fully developed enough to both allow the court to consider the question in context, and also to ensure that the question is actually necessary and dispositive to an important issue in the case. State courts usually require that all pertinent factual questions be resolved. When moving to seek certification, the best practice is to include a fair and complete summary of the pertinent facts. State courts sometimes reject certified questions because they seem based on fact patters that are too abstract, theoretical, or simply unlikely to recur.
- Timing on certification. Courts frown on parties that seek certification on a question only after losing on that question before the district court. Because the factual record may not be complete until later in a case, counsel should seek certification immediately as soon as the record appears to be sufficiently factually developed for the court to answer the question. This sometimes means seeking certification at the motion to dismiss stage, or at summary judgment, even if the court seems unlikely to actually certify the question until a later stage of the case.
- The question itself. The closer a question is to a new, unsettled, and pure legal question, the easier it will be to certify. But equally more important is whether a reasonably clear answer can be extrapolated from existing law. The Sixth Circuit will not certify a question that appears relatively straightforward under current state law. The more that a question reflects value judgments and issues of public policy, the more desirable it is to have an answer from the state court. Similarly, your chances of success increase if you can show that the question is of considerable or broad importance or application.
- Procedural rules: Certified questions are a procedural minefield. State courts have refused to take certified questions where the federal court’s order failed to designate a moving party, where the moving party did not quickly brief the issue (even when lacking a scheduling order), where the federal court’s order did not contain a recitation of the facts, where the parties did not provide the record, and for a host of other reasons—some of which seem contradictory. That’s all to say litigants need to be exceedingly careful.
Following these guidelines will maximize the chances of success, though the odds are still awfully long in the Sixth Circuit as we explained earlier. If anyone has had success in inducing the state and federal courts to move faster on certification – other than providing everything the courts need in a concise and clear fashion, of course – we’d love to hear from you.
Invited Error, Erie, and Pleading Standards – What to Make of Smith v. General Motors?
The Sixth Circuit handed down a recent decision, Smith v. General Motors, that, on its face, could be construed as having a wide-reaching impact on the pleading standard for certain product-liability and fraud claims. But the panel was careful to disclose the larger, admittedly “odd” context of the case, making it difficult to discern just how far Smith’s holding might reach.
Smith involved allegedly defective dashboards in certain GM vehicles. Plaintiffs alleged that these GM dashboards were prone to cracking and that, in theory, such cracking could “lead to an airbag malfunction or shrapnel spray during a crash,” though no plaintiff claimed to have actually been injured by the alleged defect. (Slip Op. at 3–4.)
GM moved to dismiss plaintiffs’ complaint, relying in part on Mross v. General Motors Co., No. 15-C-0435, 2016 WL 4497300 (E.D. Wis. Aug. 25, 2016), a case involving the same dashboard defect, in which the district court concluded that a complaint must allege the defendant knew both “that the dashboards were likely to crack and that this defect posed the safety concerns alleged in the complaint.” Importantly, the plaintiffs in Smith agreed with GM that Mross set forth the correct legal framework, and even “urged” the district court to follow it. (Slip. Op. at 5.)
The district court accepted the parties’ invitation to follow Mross, and concluded—consistent with Mross’s requirement that a plaintiff plead not only that a defendant knew of the defect, but also knew of the safety risk posed by that defect—that plaintiffs’ claims had to be dismissed.
On appeal, plaintiffs regretted their reliance on Mross, but the panel (Suhrheinrich, Stranch, Nalbandian) held them to their bargain, finding that the invited-error doctrine precluded plaintiffs from arguing that the Mross standard didn’t govern their claims. (Slip Op. at 9.) Indeed, it was the invited-error doctrine that convinced Judge Stranch to concur in the judgment, despite her concerns that a Mross-type standard unfairly “saddl[es] Plaintiffs with an additional burden at the pleading stage.” (Slip Op. at 20–23, Stranch, J., concurring.)
There were also “messy choice-of-law issues” that the court was able to side-step without issuing an opinion on any state’s particular substantive law. Still, it is notable that the panel endorsed Mross’s reasoning, finding support for its holding in the Restatement (Second) of Torts. According to the panel, Mross’s holding that a defendant must know of the defect and its safety risk “flows logically from the text of the Restatement, which only requires disclosure of facts basic to a transaction if a person ‘knows that [another person] is about to enter [a transaction] under a mistake as to them.’” (Slip Op. at 12 (quoting Restatement (Second) of Torts § 551(2)(e)). If plaintiffs’ alleged harm was the failure to disclose the safety risk, the panel questioned how GM could be liable for the failure to disclose that risk—the “fact basic to the transaction” that GM allegedly withheld—unless GM knew about it.
It is on this point that the concurrence sharply differs, and questions whether Mross’s holding is correct. In fact, Judge Stranch thought Mross an “outlier” and, contrary to the panel, argued that Mross did not “flo[w] logically from” the Restatement. (Slip Op. at 22.)
What, then, to make of Smith v. General Motors? Perhaps most important is the panel’s detailed discussion of pleading standards, offering practitioners some concrete examples of (and potential analogies for) what does (or does not) meet Rule 12(b)(6) and Rule 9(b) requirements. (Slip Op. at 13–19.) But in light of the invited-error basis of the court’s ruling, the concurrence maintains that the panel’s opinion does not amount to the Sixth Circuit adopting Mross’s rule. (Slip Op. at 20, Stranch, J., concurring, (“The Seventh Circuit (the court to which the Mross plaintiffs could have appealed) has not clearly adopted Mross’s rule. Nor have we, either before this case or as a result of it.”).) It thus remains to be seen what effect this “odd” case has on pleading standards for tort claims in the circuit. (Slip Op. at 2.)
Sixth Circuit concludes that the Kentucky Billboard Act violates the First Amendment.
The Kentucky Billboard Act requires a permit for billboards that advertise off-site activities—but no permit is required for on-site billboard advertising. Lion’s Den, an “adult superstore” that sought to advertise to interstate drivers with a billboard on a neighbor’s property, challenged the law as a violation of its rights under the First and Fourteenth Amendments. The district court agreed with Lion’s Den and enjoined enforcement of the Act. Recently, the Sixth Circuit affirmed.
Judge Sutton’s opinion for the court proceeded from the proposition that government regulation of speech based on its content is constitutional only if the regulation satisfies strict scrutiny. The on-site/off-site distinction is content-based: to know which rules apply to a billboard, one has to know the message on the billboard. Continue Reading
Certifying Questions To State Supreme Courts – Lessons from Lindenberg
In our prior post, we noted that the Sixth Circuit seldom grants motions to certify questions of state law. And even though the circuit grants less than 20% of such motions, the questions still have to be accepted by the state supreme court. But the certification process is often a rough road.
No recent case better exemplifies those difficulties than Lindenberg v. Jackson Nat’l Life Ins. Co., 912 F.3d 348 (6th Cir. 2018), which held that Tennessee’s statutory cap on punitive damages violates the state constitution. The district court had actually granted certification on that question but the Tennessee Supreme Court (after a seven month delay) declined to take the issue because certain factual questions had not been resolved. The state court suggested instead that certification might be appropriate once the case was on appeal. And, in fact, the State of Tennessee later intervened in the appeal and suggested, in a footnote, that the issue should be certified. The panel, over a dissent from Judge Larsen, decided that the statutory cap violated the state constitution without certifying the question.
The Sixth Circuit’s denial of rehearing en banc produced some important separate opinions that are worth reading for anyone interested in certification. Judge Bush argued that the Sixth Circuit should set clear standards for certification. He saw Lindenberg as ideal for certification because the panel had invalidated a state law based on the state constitution in a decision that would encourage forum-shopping, and where the state supreme court had suggested certification would be appropriate on appeal. Judge Nalbandian wrote separately to encourage the use of certification on federalism grounds.
Judge Clay, in turn, emphasized that certification should be left to the discretion of the panel, and noted the potential for delay: “I am personally aware of multiple instances in which state courts in our circuit have sat on certification requests for up to a year or more, only to deny the requests without taking any action.” Worries about unnecessary delay were especially sharp in Lindenberg, as Judge Clay was writing a full five years after the jury’s verdict.
There is no question that certification entails significant delay. Circuit courts take a couple of months to a year to decide certification motions (about the same pace as merits decisions). Then the state supreme court has to decide whether to accept the question, which takes about four to six months on average. They then need to decide the merits, which averages another five to six months. Then case goes back to the Sixth Circuit, which takes another couple of months to a year. Studies show that seeking certification delays a Sixth Circuit appeal, on average, by a little more than a year—but the delay can stretch up to two years. (See here and here, among others.)
Lindenberg, however, also illustrates the friction that can be caused by federal courts deciding important issues of state law. Not long after that decision, the Tennessee Supreme Court took the unusual step of calling out Lindenberg as “unpersuasive” even though the statute was not at issue in that case. The court also pointedly criticized the Sixth Circuit’s decision not to certify, stating that “the procedure for certifying questions of state law to this Court is designed to promote judicial efficiency and comity, and to protect this State’s sovereignty.” McClay v. Airport Mgmt. Servs., LLC, 596 S.W.3d 686, 693 n.8 (Tenn. 2020). (This censure is, of course, tempered by that court’s lower-than-average willingness to accept certified questions.)
While the certification process can be rough, there are a number of steps litigants can take to maximize their chances of success. We’ll talk about those in the next post on this issue.
Academic focus on a pending Sixth Circuit en banc
Almost a year ago, the Sixth Circuit reheard en banc Preterm-Cleveland v. Himes, which involves a constitutional challenge to an Ohio law that bans abortion where the reason for the abortion is that the fetus has or may have Down syndrome. After the en banc oral argument, the Supreme Court decided June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020), but no single opinion garnered a majority of the Justices. The parties in Preterm-Cleveland promptly filed dueling 28(j) letters that addressed June Medical and, specifically, the import of Chief Justice Roberts’s concurring opinion.
The en banc case remains pending. Now Professor Marc Spindelman of Ohio State’s Moritz College of Law has published this article in the Georgetown Law Journal Online that analyzes in greater depth the meaning of the Chief Justice’s concurring opinion and applies that analysis to Preterm-Cleveland.
Certified Questions To State Supreme Courts Are Especially Rare In The Sixth Circuit
Nearly every state allows federal courts to certify questions of state law to obtain definitive answers from state supreme courts on unsettled issues of state law. The United States Supreme Court has explained that certifications “saves time, energy, and resources and helps build a cooperative judicial federalism.” All states, except North Carolina, have rules or statutes allowing their highest court to accept certified questions from federal courts on questions of state law. Though federal courts decide unsettled questions of state law every day, this procedure remains rarely used—and it is especially rare in the Sixth Circuit.
Studies have shown that some circuit courts are far more likely than others to certify a question of state law. For example, one recent study by the FJC shows that the Ninth Circuit grants the parties’ motions to certify issues of law about 90% of the time. The Third Circuit grants such motions about 50% of the time, the Tenth Circuit grants only 30% of the time, while the most recent study states that the Sixth Circuit granted only 17% of motions to certify between 2010 to 2018.
But that’s not the only hurdle. The state supreme court also needs to accept your appeal. In the Sixth Circuit, the state supreme courts have historically accepted and decided the certified question about 60% of the time. By comparison, state supreme courts in the Third and Ninth Circuits issued opinions on the issue of state law in about 80% of the certified cases.
Assuming those numbers are accurate, litigants in the Sixth Circuit will have an uphill battle attempting to get an answer on state law from a state supreme court. Even though motions to certify are rare in the Sixth Circuit, only about 10% of those motions will ultimately result in an answer on the merits of the question from the state supreme court. By contrast, the same motion is about seven times more likely to result in a decision on state law from a state supreme court.
In a following post, we’ll discuss the ways litigants can increase their chances of success for a certified question in the Sixth Circuit.
A “Side Note” About Ripeness
The Sixth Circuit recently decided OverDrive Inc. v. Open E-Book Forum, a copyright case with an Article III twist. Pertinent here, the plaintiff argued that a potential transfer of assets—that might or might not occur in an impermissible way—would (if it occurred in that certain way) “violate the [Copyright] Act in the future.” That framing was bound to perk up the ears of any federal court, and the panel’s (Boggs, Sutton, Nalbandian) application of the ripeness doctrine to the case at hand was straightforward; it concluded that the plaintiff was asking the federal courts to wade into a hypothetical dispute, riddled with “contingencies and speculation” that “obstruct federal ‘judicial review.’”
Notably, however, the panel offered a “side note” forecasting a different future dispute – this one about ripeness doctrine. The standard, two-question ripeness inquiry asks (1) “[d]oes the claim arise in a concrete factual context and concern a dispute that is likely to come to pass?” and (2) “[w]hat is the hardship to the parties of withholding court consideration?” The OverDrive panel notes that just “one negative answer creates a ripeness problem.” But could a court really ever answer “yes” to the first question, but then decline to exercise jurisdiction based on a “no” answer to the second? The OverDrive panel thinks that’s “doubtful,” pointing to recent Supreme Court precedent reminding federal courts that their “obligation to hear and decide cases within [their] jurisdiction is virtually unflagging.” Kiser v. Reitz, 765 F.3d 601, 606–07 (6th Cir. 2014) (internal quotation marks omitted) (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014)). “For now,” the panel says that courts should continue to look at both questions, see Trump v. New York, 141 S. Ct. 530, 536 (2020) (considering both ripeness questions), though “[p]erhaps over time the second inquiry will merge into the first, merely offering a way of establishing concreteness, or its absence[.]” Of course, that determination will have to wait for a future dispute.
Sixth Circuit practice tip: pendent appellate jurisdiction
The Sixth Circuit’s recent decision in Watkins v. Healy is an interesting read on its own: Ledura Watkins was released after 42 years in prison for a murder conviction that was overturned with the help of the WMU-Cooley Innocence Project. Watkins has now brought a 42 U.S.C. § 1983 civil rights suit against the alleged key players in his conviction, which was based on a single hair and a classmate’s repeatedly recanted testimony. But the opinion also includes some useful pointers on appellate jurisdiction. Continue Reading
Supreme Court Denies Certiorari in Challenge to Michigan’s Alcohol Delivery Law
On Monday the Supreme Court addressed—or, perhaps more to the point, chose not to address—an issue close to the hearts of many in the midst of a pandemic: home delivery of fine wine and spirits. The Court declined to review the Sixth Circuit’s decision in Lebamoff v. Whitmer, which upheld the State of Michigan’s alcohol delivery laws in the face of a dormant Commerce Clause challenge.
Like many states, Michigan employs a “three-tier system” for alcohol distribution. State-licensed alcohol producers and manufacturers (first tier) sell their products to licensed wholesalers (second tier), who in turn distribute the product to licensed retailers (third tier). Participants in each tier are heavily regulated by the State, which retains the authority to impose price controls, taxes, and other health-and-safety regulations. By requiring all alcohol entering the State to pass through this three-tier system, Michigan ultimately controls the amount of alcohol sold within its borders.
In 2016 Michigan enacted a statute permitting licensed retailers (the third tier) to offer home delivery. While consumers undoubtedly welcomed this development (particularly on those harsh winter weekends when they were facing—and losing to—the Ohio State Buckeyes), retailers in neighboring states apparently were not impressed. An Indiana retailer, Lebamoff Enterprises, sued the State, arguing that the statute violated the dormant Commerce Clause by allowing in-state—but not out-of-state—retailers to deliver alcohol to Michigan residents.
The Sixth Circuit rejected Lebamoff’s argument this past April, holding that the statute was a valid exercise of the State’s authority to regulate the importation of alcohol under the Twenty-first Amendment. Continue Reading
