When is Certification Worthwhile?

*This is the fifth in a series of posts about the certification of questions of state law. Earlier posts can be found here, here, here, and here.

In addition to considering procedural posture  and the potential for avoiding constitutional questions, the Sixth Circuit also considers whether it is worth its while to certify a question to a state court. 

In considering whether the inevitable delay caused by certification is worthwhile, the Sixth Circuit may consider the likelihood of a particular state supreme court declining to answer the question.  For example, it has remarked on the Michigan Supreme Court’s skepticism toward certified questions.   See Knox v. Eli Lilly & Co., 592 F.2d 317, 319 (6th Cir. 1979) (“This is not the first time our questions have been rebuffed by the Michigan Supreme Court . . . . If our requests for assistance are to be denied, however, the certification procedure is worse than useless, as it only further delays the lethargic movement of civil cases through the courts.”); see also Lozada v. Dale Baker Oldsmobile, Inc., 145 F. Supp. 2d 878, 896 (W.D. Mich. 2001) (“[T]he court is reluctant to delay this action further by deferring trial in anticipation of the unlikely acceptance for certification by the Michigan Supreme Court.” (citing Knox)); see generally “But Answer Came There None”: The Michigan Supreme Court And The Certified Question Of State Law, 41 Wayne L. Rev. 273 (1995). Also, certain cases may be viewed as especially sensitive to delays. See, e.g., In re Spradlin, 231 B.R. 254, 256 n.1 (Bankr. E.D. Mich. 1999) (acknowledging that the issue should “probably” be certified, but declining to certify because “Congress clearly intended for chapter 7 [bankruptcy] cases to be administered expeditiously”). Other courts, for instance the Ohio Supreme Court, are generally more receptive to answering certified questions.

The Sixth Circuit also prioritizes certification for questions of state law that, due to the wide net cast by diversity jurisdiction, recur in federal court such a vast majority of the time that state courts would not otherwise get a chance to address the issues. See Geib v. Amoco Oil Co., 29 F.3d 1050, 1060 (6th Cir. 1994) (“In light of the likelihood that section 27 claims will recur in federal litigation, without an opportunity for Michigan courts to determine whether that provision authorizes private actions, we believe that state sovereignty over this matter can most effectively be preserved through certification of  this question.”); Fifth Column, LLC v. Village of Valley View, 2000 U.S. App. LEXIS 15065, at *25-26 (6th Cir. June 13, 2000).  Where an entire body of state law risks being developed solely by federal courts, the Sixth Circuit considers certification to be “judicious.”  Geib, 29 F.3d at 1060.

To persuade the court to certify a question of state law, advocates should not confine themselves to doctrinal arguments, but should also explain why certification is worth the time and effort in the particular case.