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By Nicholas Datlowe
Nov. 16 — Even the U.S. Supreme Court asks for help sometimes.
The uncommon, though not unheard of, procedural tool of certifying a question to a lower court could come into play in the recently–concluded argument session in the case Foster v. Chatman, U.S., No. 14-8349, argued 11/2/15, (84 U.S.L.W. 3229, 11/3/15).
Justice Anthony M. Kennedy raised the issue during oral argument Nov. 2.
“Do you think this would be an appropriate case for us to exercise our discretion to certify the question to the [Georgia] Supreme Court?” he asked Georgia Deputy Attorney General Beth Burton.
The question—whether review of state habeas corpus decisions is discretionary or mandatory in the Georgia high court—mattered because it might determine to which court the U.S. Supreme Court directs its writ of certiorari and, potentially, the relief it can grant.
“We would certainly like an answer from the Georgia Supreme Court on that issue,” Burton said.
Certifying a question allows the court to seek an authoritative answer to a question of state law from the state's court of last resort, Dan Himmelfarb, a partner at Mayer Brown, Washington, told Bloomberg BNA.
Himmelfarb is one of the authors of a leading treatise on Supreme Court practice, Stephen M. Shapiro et al., “Supreme Court Practice” §17.III (10th ed. 2013).
Florida was the first state to pass a statute permitting federal courts to certify questions to its supreme court, in 1945. It has since been joined by 46 other states, as well as the District of Columbia and several other federal territories.
According to “Supreme Court Practice,” New Jersey allows certified questions only from the U.S. Court of Appeals for the Third Circuit. Missouri has a statute permitting certified questions, but it was declared unconstitutional by the state supreme court in 1990. Only North Carolina has never enacted a statute permitting certified questions.
Specific procedures for submitting certified questions vary by state, as does what happens after submission.
For example, Georgia Supreme Court Rule 46 permits certain federal courts, including the U.S. Supreme Court, to submit questions to it which will be “determinative” of the cases that raise them.
The submitting court formulates the question and transmits it to the Georgia court, along with those parts of the record the submitting court believes relevant.
The Georgia court may then request briefing, oral arguments or other motions as normal.
Although some states have discretion to reject certified questions, “as a practical matter they will issue a decision” in a case presented by the U.S. Supreme Court, Himmelfarb said.
The court “is required by law to issue a decision within two court terms from the time it is docketed,” which “generally is about six months,” Georgia Supreme Court Public Information Officer Jane Hansen told Bloomberg BNA.
Although the procedure is “relatively new,” Himmelfarb says, the Supreme Court has endorsed it strongly on several occasions.
In Lehman Bros. v. Schein, 416 U.S. 386 (1974), the high court held that federal courts could certify questions even when presiding over diversity cases that presented no constitutional issue.
In Elkins v. Moreno, 435 U.S. 647 (1978), the court certified a question to the Maryland Supreme Court, despite the fact that neither party had requested it do so and the lower courts had already made a determination regarding the state law issue.
The U.S. Supreme Court has also required certification—or certified questions itself—in cases where the interpretation of state law may bear on a constitutional question before the federal court.
For example, in Virginia v. Am. Booksellers Ass'n, 484 U.S. 383 (1988), the high court requested clarification as to the scope of a Virginia law restricting juveniles from accessing sexually explicit material that, interpreted a certain way, could have run afoul of the First Amendment.
The procedure is in some ways similar to abstention, which permits a state court to make decisions about state law before a federal court weighs in. But the Supreme Court said in Bellotti v. Baird, 428 U.S. 132 (1976), that certification may be preferable, especially in cases where time is of the essence, because the straightforward procedure simplifies the analysis of applying the state court's holding to the federal court's case.
That isn't to say that the court has completely settled when certification is appropriate.
Dissenting in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), Justice John Paul Stevens argued that the court should have certified the question of whether Colorado law gave a litigant a right to enforcement of a restraining order.
Writing for the majority, which held that it didn't, Justice Antonin Scalia responded that none of the litigants had requested certification and accused Stevens of taking an “anyone-but-us” approach to the question.
Himmelfarb suggested that whether the court certifies a question may depend on whether it wants to solve the federal issue presented in the case.
And the procedure is still relatively uncommon—Himmelfarb estimates that the Supreme Court has certified at most “a few dozen” questions for state courts.
The procedure may also be getting rarer, Himmelfarb said.
He noted two phenomena that may contribute to this trend:
The first is that the Supreme Court's jurisdiction is almost entirely discretionary. Except in certain, rare circumstances, it doesn't have to take cases it doesn't want to, he said.
The second is a “sophisticated Supreme Court bar that knows how to get cert. denied,” he said.
For example, a petitioner may emphasize an unresolved state law question that may make answering the federal question difficult.
“This court takes about 75 cases or fewer per term, and doesn't like to take cases unless they present clean issues for it to resolve,” he said. If the federal question turns on a determination of state law, the court may determine that the case is “not a good vehicle” for determining the issue, he said.
This determination may come after certiorari has already been granted, Himmelfarb said. “This is often why we see cases dismissed as improvidently granted,” he said.
A case is stayed at the Supreme Court while the state court considers the certified question.
This delays resolution of the case before the court, especially in cases where the state court requests briefing and argument on the issue. Himmelfarb said this “may be part of the calculus” in requesting certification, as in some cases the delay may moot the case.
In one case—Elkins—the delay between the certification of the question and the ultimate resolution of the case was more than four years.
The case returns automatically to the supreme court once the question has been answered, without the need for an additional petition for certiorari.
Once the court has its answer, Himmelfarb said there are several possible actions the court could take. The court could decide the case outright, request additional briefing or request briefing and additional argument.
He said that the last option was the least likely.
As for whether the Georgia court might accept the certified question posed by Foster, “I don't have an answer,” Hansen said.
It's “a hypothetical question, since we haven't been asked,” she added.
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