In appreciation of a chief judge’s quiet leadership

The office of chief judge for any federal court is tricky. It involves a great deal of extra administrative work as well as the expectation—from the title, at least—that one is somehow “in charge” of the court. Yet the chief judge’s vote has no more weight than that of his or her colleagues, and because one assumes the role through seniority, not election, a chief judge lacks even the ability to rely on any kind of perceived mandate. The institution that the chief judge is supposed to lead, moreover, includes lots of colleagues with lifetime appointments!

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Practical Pointers for Certifying Questions to State Courts

Prior posts have discussed the comparative rarity of certified questions of state law in the Sixth Circuit (here and here).  This post gives practical pointers to improve your odds of success with certified questions both in the Sixth Circuit and in the state courts.

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Invited Error, Erie, and Pleading Standards – What to Make of Smith v. General Motors?

The Sixth Circuit handed down a recent decision, Smith v. General Motors, that, on its face, could be construed as having a wide-reaching impact on the pleading standard for certain product-liability and fraud claims.  But the panel was careful to disclose the larger, admittedly “odd” context of the case, making it difficult to discern just how far Smith’s holding might reach.

Smith involved allegedly defective dashboards in certain GM vehicles.  Plaintiffs alleged that these GM dashboards were prone to cracking and that, in theory, such cracking could “lead to an airbag malfunction or shrapnel spray during a crash,” though no plaintiff claimed to have actually been injured by the alleged defect.  (Slip Op. at 3–4.)

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Sixth Circuit concludes that the Kentucky Billboard Act violates the First Amendment.

The Kentucky Billboard Act requires a permit for billboards that advertise off-site activities—but no permit is required for on-site billboard advertising. Lion’s Den, an “adult superstore” that sought to advertise to interstate drivers with a billboard on a neighbor’s property, challenged the law as a violation of its rights under the First and Fourteenth Amendments. The district court agreed with Lion’s Den and enjoined enforcement of the Act. Recently, the Sixth Circuit affirmed.

Judge Sutton’s opinion for the court proceeded from the proposition that government regulation of speech based on its content is constitutional only if the regulation satisfies strict scrutiny. The on-site/off-site distinction is content-based: to know which rules apply to a billboard, one has to know the message on the billboard. Continue Reading

Certifying Questions To State Supreme Courts – Lessons from Lindenberg

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.

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Academic focus on a pending Sixth Circuit en banc

Almost a year ago, the Sixth Circuit reheard en banc Preterm-Cleveland v. Himes, which involves a constitutional challenge to an Ohio law that bans abortion where the reason for the abortion is that the fetus has or may have Down syndrome. After the en banc oral argument, the Supreme Court decided June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020), but no single opinion garnered a majority of the Justices. The parties in Preterm-Cleveland promptly filed dueling 28(j) letters that addressed June Medical and, specifically, the import of Chief Justice Roberts’s concurring opinion.

The en banc case remains pending. Now Professor Marc Spindelman of Ohio State’s Moritz College of Law has published this article in the Georgetown Law Journal Online that analyzes in greater depth the meaning of the Chief Justice’s concurring opinion and applies that analysis to Preterm-Cleveland.

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.

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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.’”

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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

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