Federal cases frequently involve questions of state law. When state court precedent does not offer a clear answer, federal courts have three options: to answer, abstain, or to certify the question to a state supreme court, which may or may not provide an answer. The last option, certification, “first came to public attention in 1960 when the Supreme Court commented favorably on an obscure Florida statute permitting the state’s supreme court to answer state law questions certified by a federal appellate court.” Smith v. Johnson Propeller Co., 1996 U.S. App. LEXIS 9846, at *22 n.2 (Fed. Cir. Apr. 24, 1996) (referring to Clay v. Sun Ins. Office, Ltd., 363 U.S. 207 (U.S. 1960)). The Supreme Court has continued to use and endorse certification as a means to “save time, energy, and resources and help build a cooperative judicial federalism,” and today nearly every state has some sort of certification procedure. Arizonans for Official English v. Arizona, 520 U.S. 43, 77 (1997) (internal quotation marks omitted).
This is the first in a short series of posts examining the process of certification within the Sixth Circuit. Michigan and Kentucky adopted certification procedures in 1976 and 1978, while Ohio and Tennessee did not do so until over a decade later (1988 and 1989), despite nudges from the federal courts. As early as 1972, one judge in the Southern District of Ohio opined that “[t]he adoption of a procedure for the certification of questions of Ohio law to the Supreme Court of Ohio from the United States District Courts for the Northern and Southern Districts of Ohio and the United States Court of Appeals for the Sixth Circuit would seem to be a useful step toward eliminating uncertainty as to the requirements of Ohio law in diversity cases.” In re Air Crash Disaster near Dayton, 350 F. Supp. 757, 768 n.1 (S.D. Ohio 1972); see also Trahan v. E.R. Squibb & Sons, Inc., 567 F. Supp. 505, 510 (M.D. Tenn. 1983) (“Unfortunately, there is no mechanism in Tennessee for certification of a question to the Supreme Court.”). The posts will discuss certification from various perspectives, including those of the litigants, the federal courts and the state courts.
