*This is the fourth in a series of posts about the certification of questions of state law. Earlier posts can be found here, here, and here.
The Sixth Circuit may certify state law questions, even sua sponte, in cases where the answer(s) “might avoid in whole or in part the necessity for federal constitutional adjudication.” Am. Booksellers Found. for Free Expression v. Strickland, 560 F.3d 443, 446 (6th Cir. 2009) (quoting Bellotti v. Baird, 428 U.S. 132 (1976)). In such cases, both parties may be primarily interested in forcing the court to confront a high-profile constitutional question, and prefer that the outcome not turn on state law. See Planned Parenthood Cincinnati Region v. Strickland, 531 F.3d 406, 408 (6th Cir. 2008) (“When asked about certification at oral argument, both Planned Parenthood and the State encouraged this court to speculate on how the Supreme Court of Ohio would interpret the statute as opposed to seeking an authoritative interpretation from the Ohio high court via certification.”). But the court has repeatedly certified state law questions to avoid thorny constitutional dilemmas. See, e.g., Planned Parenthood, 531 F.3d 406; House v. Bell, 311 F.3d 767 (6th Cir. 2002) (en banc) (certifying to avoid the question of whether the habeas petitioner’s showing of actual innocence sufficed to render his conviction unconstitutional); Am. Booksellers, 560 F.3d at 446; cf. Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (6th Cir. 2007) (declining certification because “[c]ertification . . . is appropriate only where . . . . a construction . . . is fairly possible that will contain the statute within constitutional bounds.” (citations and internal quotation marks omitted)).
When employing certification as a means of constitutional avoidance, the Sixth Circuit may hint at the consequences of the state court choosing one interpretation over another. For example, when certifying a question of Ohio statutory interpretation in Am. Booksellers, the court strongly implied that “the narrowing construction the Attorney General puts forth” would lead to a finding that the statute in question was constitutional. Am. Booksellers, 560 F.3d at 446-47. However, such hints are not always appreciated by state courts. See, e.g., In re Certified Question from United States Dist. Court, Eastern Dist. etc., 420 Mich. 51 (Mich. 1984) (“Thus, it is plain that the certified question procedure has not been employed to obtain an expression of this Court’s opinion on a matter of Michigan law at all . . . . It has been employed instead to obtain a ruling from this Court on a question of First Amendment federal constitutional law with very explicit instructions from the federal court to this Court how that answer should be written to avoid federal court adjudication that the statute is unconstitutional . . . .”).
Although constitutional controversies draw more attention, litigants must remain mindful of potentially dispositive state law issues because the Sixth Circuit may certify sua sponte and may even provide some subtle direction to the state court.
