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.