Certified Questions To State Supreme Courts Are Especially Rare In The Sixth Circuit

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.

A “Side Note” About Ripeness

The Sixth Circuit recently decided OverDrive Inc. v. Open E-Book Forum, a copyright case with an Article III twist.  Pertinent here, the plaintiff argued that a potential transfer of assets—that might or might not occur in an impermissible way—would (if it occurred in that certain way) “violate the [Copyright] Act in the future.”  That framing was bound to perk up the ears of any federal court, and the panel’s (Boggs, Sutton, Nalbandian) application of the ripeness doctrine to the case at hand was straightforward; it concluded that the plaintiff was asking the federal courts to wade into a hypothetical dispute, riddled with “contingencies and speculation” that “obstruct federal ‘judicial review.’”

Notably, however, the panel offered a “side note” forecasting a different future dispute – this one about ripeness doctrine.  The standard, two-question ripeness inquiry asks (1) “[d]oes the claim arise in a concrete factual context and concern a dispute that is likely to come to pass?” and (2) “[w]hat is the hardship to the parties of withholding court consideration?”  The OverDrive panel notes that just “one negative answer creates a ripeness problem.” But could a court really ever answer “yes” to the first question, but then decline to exercise jurisdiction based on a “no” answer to the second?  The OverDrive panel thinks that’s “doubtful,” pointing to recent Supreme Court precedent reminding federal courts that their “obligation to hear and decide cases within [their] jurisdiction is virtually unflagging.” Kiser v. Reitz, 765 F.3d 601, 606–07 (6th Cir. 2014) (internal quotation marks omitted) (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014)).  “For now,” the panel says that courts should continue to look at both questions, see Trump v. New York, 141 S. Ct. 530, 536 (2020) (considering both ripeness questions), though “[p]erhaps over time the second inquiry will merge into the first, merely offering a way of establishing concreteness, or its absence[.]”  Of course, that determination will have to wait for a future dispute.

Sixth Circuit practice tip: pendent appellate jurisdiction

The Sixth Circuit’s recent decision in Watkins v. Healy is an interesting read on its own:  Ledura Watkins was released after 42 years in prison for a murder conviction that was overturned with the help of the WMU-Cooley Innocence Project.  Watkins has now brought a 42 U.S.C. § 1983 civil rights suit against the alleged key players in his conviction, which was based on a single hair and a classmate’s repeatedly recanted testimony.  But the opinion also includes some useful pointers on appellate jurisdiction.  Continue Reading

Supreme Court Denies Certiorari in Challenge to Michigan’s Alcohol Delivery Law

On Monday the Supreme Court addressed—or, perhaps more to the point, chose not to address—an issue close to the hearts of many in the midst of a pandemic: home delivery of fine wine and spirits.  The Court declined to review the Sixth Circuit’s decision in Lebamoff v. Whitmer, which upheld the State of Michigan’s alcohol delivery laws in the face of a dormant Commerce Clause challenge.

Like many states, Michigan employs a “three-tier system” for alcohol distribution.  State-licensed alcohol producers and manufacturers (first tier) sell their products to licensed wholesalers (second tier), who in turn distribute the product to licensed retailers (third tier).  Participants in each tier are heavily regulated by the State, which retains the authority to impose price controls, taxes, and other health-and-safety regulations.  By requiring all alcohol entering the State to pass through this three-tier system, Michigan ultimately controls the amount of alcohol sold within its borders.

In 2016 Michigan enacted a statute permitting licensed retailers (the third tier) to offer home delivery.  While consumers undoubtedly welcomed this development (particularly on those harsh winter weekends when they were facing—and losing to—the Ohio State Buckeyes), retailers in neighboring states apparently were not impressed.  An Indiana retailer, Lebamoff Enterprises, sued the State, arguing that the statute violated the dormant Commerce Clause by allowing in-state—but not out-of-state—retailers to deliver alcohol to Michigan residents.

The Sixth Circuit rejected Lebamoff’s argument this past April, holding that the statute was a valid exercise of the State’s authority to regulate the importation of alcohol under the Twenty-first Amendment. Continue Reading

New year comings and goings

Happy New Year from everyone here at the Sixth Circuit Blog!  We’re kicking off 2021 with some exciting news.  Ben Beaton, my appellate practice co-chair who often graced these pages, was sworn in last month as a US District Judge for the Western District of Kentucky.  We will miss Judge Beaton and his contributions to SPB’s work.  But we couldn’t be happier for him, and all of WDKY, as he surely will make a very fine judge.  We’re also pleased to announce that Keith Bradley, an appellate and regulatory specialist based in Denver, will serve as co-chair and help continue to grow our national practice.  You can read about Keith’s deep experience in appellate and administrative law and his impressive background here and here.

All our best wishes for 2021.  Stay tuned as we cover the latest developments out of the Sixth Circuit during these unusual times.

Assessing the amount in controversy when seeking to vacate an arbitral award

Yesterday’s published decision in Hale v. Morgan Stanley Smith Barney LLC established the law of the circuit on a nifty issue of subject matter jurisdiction in the context of arbitration. Where a plaintiff from one state has initiated arbitration against a defendant from another state, seeking millions, but has then received an arbitral award of zero, does a federal court have diversity jurisdiction to entertain the plaintiff’s motion under 9 U.S.C. § 10(a) to vacate the arbitral award? Yes, it does. In an opinion by Judge Donald for a panel that also included Chief Judge Cole and Judge Readler, the Sixth Circuit revisited its last published opinion germane to the issue (decided over 25 years ago!) and explained that its conclusion “was not that the amount of the arbitrator’s award should be considered when calculating the amount in controversy in this context, but that in making such determinations, it is necessary to look to the amount alleged to be in controversy in the complaint.”

Is Title IX’s deliberate-indifference standard a question of law for the court to decide? Yes—at least “in an appropriate case,” says the en banc Sixth Circuit.

Continuing an active year for Title IX precedent, the Sixth Circuit issued an en banc decision in Foster v. University of Michigan, which adds further contour to the Circuit’s Title IX “deliberate indifference” jurisprudence. It also implicitly raises—but does not necessarily answer—important questions regarding the appropriate standard of review for such claims.

In Foster, a divided panel (Judges Clay, Moore, and Sutton, with the latter dissenting) had reversed the district court’s grant of summary judgment for the University of Michigan, holding that the plaintiff had established a genuine dispute of material fact regarding whether the school was deliberately indifferent to the sexual harassment she suffered from a fellow student (the respondent). The original panel majority and dissenting opinions agreed that the plaintiff was subjected to sexual harassment and that the school had notice of that harassment. So, as is often the case, the only remaining question was whether the school’s response was “clearly unreasonable in light of the known circumstances” such that it amounted to “deliberate indifference” under Davis v. Monroe County Board of Education, 526 U.S. 629, 650 (1999). The panel originally concluded that questions of fact remained regarding whether Michigan’s response to the respondent’s harassment was actionable under Title IX, including, among others, whether Michigan had conceded that its response was inadequate yet failed to take any additional measures and whether the university adhered too long to its “no contact order” remedy in the face of mounting evidence that the respondent was likely to violate that order. 952 F.3d 765, 784–88 (6th Cir. 2020).  Judge Sutton dissented, and would have held that Michigan’s response was appropriate “proportionate escalation.” The dissenting opinion at the panel stage worried that the majority was “dilut[ing] deliberate indifference into mere reasonableness.” Id. at 791–95.

The Sixth Circuit took the case en banc and affirmed the district court’s judgment, holding, as a matter of law, that Michigan did not show deliberate indifference.  The en banc majority (Sutton, J.), echoing the Supreme Court in Davis, explained that the deliberate-indifference standard presents a “high bar” to imposing Title IX liability on a university and that, “[i]n an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not [deliberately indifferent] as a matter of law.”  (Slip Op. at 7, 14–15.)  Plaintiff’s case, according the en banc majority, was such a case. Continue Reading

Sixth Circuit stays injunction in challenge to Kentucky public health measures that did not exempt religious schools from general prohibition on in-person instruction.

This post arrives thanks to Erica M. Van Heyde, a 2020 graduate of The Ohio State University Mortiz College of Law, who joins Squire Patton Boggs as an associate in 2021. 

Like most states, Kentucky is experiencing a surge in COVID-19 cases. Governor Andy Beshear has responded by implementing a number of public health measures aimed at quelling the spread of the virus. Among these was executive order 2020-969, which prohibited in-person instruction at all public and private schools in the Commonwealth. The order was quickly challenged by Danville Christian Academy, a Christian private school located near Lexington. The school, joined by Kentucky’s Attorney General, argued that enforcing the order against religious institutions violated the Free Exercise Clause of the First Amendment.

A district court in Frankfort, Kentucky granted a motion for preliminary injunction, restraining the Governor from enforcing the order against any private, religious school that otherwise adhered to Kentucky’s public health measures. The Governor (represented by his own counsel and adverse to the state’s Attorney General) immediately appealed to the Sixth Circuit, which on Sunday stayed the injunction via order.

In staying the injunction, the panel (Moore, Rogers, White, JJ.) focused on the plaintiffs’ likelihood of success on the merits of the constitutional challenge. The Free Exercise Clause, as applied to the states through the Fourteenth Amendment, provides that the states shall make no law prohibiting the free exercise of religion. Laws that discriminate against religious practices are subject to strict scrutiny and usually invalidated. By contrast, neutral laws of general applicability that incidentally burden religious practices are usually valid. The court concluded that the executive order in question fell into the latter category. The court reasoned that Governor Beshear’s order “applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest.”

The court distinguished the present order from orders that were successfully challenged in recent Supreme Court and Sixth Circuit precedent. Continue Reading

Tennessee election officials’ motion to stay injunction “too little, too late,” so first-time voters may continue to vote by mail.

This post arrives thanks to Erica M. Van Heyde, a 2020 graduate of The Ohio State University Mortiz College of Law, who joins Squire Patton Boggs as an associate in 2021. 

Last week, in Memphis A. Philip Randolph Institute v. Hargett, the Sixth Circuit considered the application of the factors for a stay pending appeal of a district court’s injunction regarding the mechanics of the election in Tennessee, issuing a published decision that is the court’s latest contribution to the burgeoning case law about voting rights, COVID-19, and the role of the federal courts.

In Tennessee, as in many other states, the convergence of the COVID-19 pandemic and the 2020 presidential election is expected to result in a steep increase in absentee voting. In May of this year, one Tennessee voter and several voter outreach organizations brought suit against state elections officials to challenge the state’s statutory scheme governing absentee voting. The plaintiffs specifically sought a preliminary injunction to enjoin the enforcement of a law that prevents some first-time voters from voting absentee. A district court in Nashville granted that injunction early in September, holding that the restriction violated the constitutional rights of first-time voters.

Election officials did not appeal the injunction until October 5th, nearly a month after it was granted. Last week a panel of the Sixth Circuit (Moore, Gibbons, Readler, JJ.) denied the defendants’ motion to stay the injunction, relying principally on the non-merits factors for a stay, meaning that the absentee voting restriction will not be enforced against the approximately 128,000 first-time voters in Tennessee this election. Continue Reading

In staying injunction, the Sixth Circuit effectively upholds Ohio’s limitation of ballot drop boxes to one per county.

Ohioans have four ways to cast a ballot in this (currently underway) Presidential election: (1) vote in person on election day, (2) vote in person at some point in the four weeks leading up to election day, (3) mail in an absentee ballot; or (4) drop off an absentee ballot at a drop box.  Given the ongoing COVID-19 pandemic in Ohio and across the U.S., Ohio voters are reasonably anxious about casting their vote in-person—options one and two—as detailed in the A. Philip Randolph Institute of Ohio, et al. v. LaRose district court proceedings (Polster, J., coincidentally).  Election officials anticipate a record 2.4 million Ohioans will request absentee ballots for the November 3, 2020 election.  Ohio voters may accordingly be equally anxious about the U.S. Postal Service’s ability to handle such unprecedented volume of election mail (option three)—a looming challenge that Ohio Secretary of State Frank LaRose acknowledged in the district court he is but “cautiously optimistic” the Postal Service will be able to meet.  Consequently, the fourth option—dropping off an absentee ballot at a drop box—has emerged as the preferred method of voting for “a large number of Ohio voters.”  (Polster, J.)

Shortly before absentee voting was set to begin in Ohio, Secretary LaRose issued Directive 2020-16 which, among other things, limits drop box locations to one per county.  To be sure, the Secretary of State has overall control of elections in Ohio, and possesses the statutory authority to issue election directives.  But, ordinarily, the 88 bipartisan county boards of elections determine the location of absentee ballot drop boxes, consistent with their statutory authority to “control the local aspects of elections,” and duty to “fix and provide the places for registration and for holding primaries and elections,” as noted by Judge White in her dissenting opinion in the Sixth Circuit’s Friday evening decision on the matter.  “This makes sense,” she explains, as “county populations, geographic dimensions, and infrastructure vary considerably throughout the state.”  (highlighting Cuyahoga County’ 850,000 voters to Noble County’s fewer than 10,000.)

District Court Enjoins Directive 2020-16

Given the “unprecedented juxtaposition of the worst pandemic in a century coupled with reasonable concern and anxiety over the ability of the U.S. Postal Service to handle what will undoubtedly be the largest number of absentee voters in Ohio’s history,” (Polster, J.), a collection of non-partisan civil rights organizations and individual voters challenged Directive 2020-16 as an unconstitutional infringement on Ohioans’ right to vote.  Continue Reading

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