*This is the third in a series of posts about the certification of questions of state law. Earlier posts can be found here and here.
The practice of certifying questions to state supreme courts is well established, and each state supreme court within the Sixth Circuit’s jurisdiction — Kentucky, Ohio, Michigan and Tennessee — accepts questions from federal courts. See Ky. Civ. R. 76.37; Ohio S. Ct. R. Prac. 5.04; Mich. Ct. R. 7.305; Tenn. S. Ct. R. 23. This blog has already briefly explored the factors that make it more or less likely for the Sixth Circuit to certify a question to a state supreme court, but the question arises as to how often the Sixth Circuit actually certifies questions to such courts. The present post addresses this question and provides a brief overview of Sixth Circuit practice over the previous five years.
Certain caveats are in order. The statistics and trends cited in this post are based on available online research in Lexis and Westlaw, as well as review of the secondary literature. Such an approach has clear limits. For one, requests for certification that were made separately from the litigants’ briefs and that were denied prior to argument may not be represented in the online databases. Although it is likely that those databases will contain most or all instances where litigants’ certification requests were granted by the Sixth Circuit, it is less certain that they contain opinions or orders where the Sixth Circuit denied certification requests or where a state supreme court subsequently rejected such a request. Even so, the following overview, even if not exhaustive, will hopefully remain useful for identifying broad trends.
Review of the electronic databases indicates that, over the last five years, Sixth Circuit panels have considered certifying questions on at least 27 occasions, granting certification in only 3 of them. The difficulty in obtaining certification is further emphasized by the fact that, of the 24 denials, 21 were unanimous — only in 3 cases did the dissenting judge argue that an issue should have been certified. A few other observations are of interest. In every case where the issue of certifying a question was raised, it was in a civil, not criminal, matter. No type of civil case was a standout, however; requests for certification occurred in all types of civil cases, ranging from torts, contracts and shareholder derivative actions to cases involving violation (or interpretation) of state statutes. Where requests were made, the distribution by state supreme court was almost even: there were 7 requests apiece to certify questions to the supreme courts of Kentucky, Ohio and Tennessee, and 4 requests to certify questions to the Michigan Supreme Court. (In addition, there were 2 requests — both denied — to certify to other state supreme courts, namely those of Georgia and Indiana.) Because the number of questions actually certified in this sample is so small, it is difficult to draw many conclusions. Yet, it is perhaps noteworthy that in two of those three cases, the decision to certify a question was undertaken sua sponte, without prompting from the litigants. Stated differently, where a litigant sought certification, such requests were overwhelmingly rejected.
Because the data is limited (and subject to the caveats listed above), it is difficult to be very proscriptive for litigants appearing before the Sixth Circuit. But it nevertheless seems safe to say that litigants have their work cut out for them if they are attempting to persuade the Sixth Circuit to certify questions to state supreme courts.
