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.