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ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
COUNCIL ON JUDICIAL ADMINISTRATION
COMMITTEE ON FEDERAL COURTS

REPORT AND RECOMMENDATIONS ON SECOND CIRCUIT CERTIFICATION OF DETERMINATIVE STATE LAW ISSUES TO THE NEW YORK COURT OF APPEALS

The certification procedure "allows a federal court faced with a novel state-law question to put the question directly to the State’s highest court, reducing the delay, cutting the cost, and increasing the assurance of gaining an authoritative response." Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1073 (1997). Forty-three states, the District of Columbia and Puerto Rico have adopted certification procedures. 1New York State established a certification procedure by a constitutional amendment adopted in the November 5, 1985 general elections. The constitutional amendment provides:

The court of appeals shall adopt and from time to time may amend a rule to permit the court to answer questions of New York law certified to it by the Supreme Court of the United States, a court of appeals of the United States or an appellate court of last resort of another state, which may be determinative of the cause then pending in the certifying court and which in the opinion of the certifying court are not controlled by precedent in the decisions of the courts of New York.

N.Y. Const. art. VI, 3(b)(9). The procedure for certifying a question of law to the New York Court of Appeals is governed in the certifying court by Second Circuit Rule 0.27 ("Certification of Questions of State Law") and in the answering court by New York Court of Appeals Rule 500.17 ("Discretionary Proceedings to Review Certified Questions from Federal Courts and Other Courts of Last Resort").

Certification is discretionary for both the Second Circuit and the New York Court of Appeals. The Second Circuit, sua sponte or on motion of a party, "may certify" to the New York Court of Appeals "an unsettled and significant question of state law that will control the outcome of a case" pending before the Second Circuit. 2d Cir. R. 0.27. New York Court of Appeals Rule 500.17 provides that, "[w]henever it appears to the Supreme Court of the United States, any United States Court of Appeals, or a court of last resort of any other state that determinative questions of New York law are involved in a cause pending before it for which there is no controlling precedent of the Court of Appeals, such court may certify the dispositive question of law to the [New York] Court of Appeals." N.Y. Ct. App. R. 500.17(a). The New York Court of Appeals "on its own motion, will examine the merits presented by the certified question, first to determine whether to accept the certification, and second, the review procedure to be followed in determining the merits." N.Y. Ct. App. R. 500.17(d). By confining certification to the appellate level, the Second Circuit rule controls the absolute number of questions certified to the New York Court of Appeals and assures that the questions are presented on a fully developed factual record.

There has been considerable debate about the relative merits of certification, with proponents arguing for more frequent certification while critics have emphasized the procedure’s limits. The United States Supreme Court has encouraged the use of certification, which "in the long run save[s] time, energy, and resources and hel[ps] build a cooperative judicial federalism." Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974). Although the Second Circuit has acknowledged that certification is a "valuable device for cooperation among the federal and states courts" and "for securing prompt and authoritative resolution of unsettled questions of state law, especially those that seem likely to recur and to have significance beyond the interests of the parties in a particular lawsuit", Kidney v. Kolmar Laboratories, Inc., 808 F.2d 955, 956-57 (2d Cir. 1987), 2 the procedure was infrequently used in New York before 1993. See McCarthy v. Olin Corp., 119 F.3d 148, 157 (2d Cir. 1997) (Calabresi, J., dissenting) ("[I]n 1992, [the Second Circuit] had certified only five issues over the preceding six-year period.").

In the past five years, the Second Circuit has certified state law questions to the New York Court of Appeals with increasing frequency. Unsettled state law questions in twenty-two cases were certified by the Second Circuit to the New York Court of Appeals from 1993 through December 1, 1998. 3

In the eleven months preceding December 1, 1998, the Second Circuit used New York’s certification procedure in eight cases, reflecting an apparent willingness on the Court’s part to certify more frequently. The time required for Second Circuit certification to the New York Court of Appeals during 1993-1998 ranged from two to thirteen months.

There are no written guidelines specifying when certification may be appropriate. Analysis of the Second Circuit and New York Court of Appeals decisions addressing the issue suggests that certification of outcome-determinative state law questions is proper in the following circumstances:

I. The New York Court of Appeals has not yet spoken on an issue and the State’s intermediate appellate courts have reached conflicting results.

II. The New York Court of Appeals has cast doubt on the scope or continued validity of an earlier decision by the Court.

III. The certified issue is important, has broad general significance, and is likely to recur with some frequency.

IV. The certified issue directly implicates a strong public policy interest of New York.

V. The certified issue involves the constitutionality, construction or novel application of a New York statute.

VI. The certified issue presents a complex question of New York common law for which no New York authority can be found.

The judicious use of the certification procedure in these types of cases promotes comity, relieves the federal court of time-consuming speculation about state law, protects the state from having its law misinterpreted or misapplied, and "does in the long run save time, energy and resources". Lehman Brothers, 416 U.S at 391.

The certification process and judges’ attitudes toward it have been the subject of three empirical studies published in 1983, 1988 and 1995 respectively. 4

Participating judges in each study were asked a series of questions about the benefits of, and problems with, certification. All three studies found broad judicial support for, and satisfaction with, certification. The benefits gained from the certification process included (1) promoting federalism and comity; (2) affording state courts the right to define their own substantive law; (3) avoiding potentially erroneous federal precedent on important state law and policy issues; (4) producing a definitive explication of state law that is a reliable, controlling precedent; (5) promoting long-term efficiency by providing uniform and consistent results; (6) deterring forum shopping; and (7) sparing litigants the cost and delay caused by abstention.

Although the studies acknowledged that certification will impose additional time and expense on the litigants, "the burden proved to be much less important than commentators had initially anticipated when measured against the benefits of certification." Corr and Robbins, supra at 457. The additional time required for certification was "outweighed by the procedure’s advantages, specifically that an accurate answer from the appropriate tribunal avoids further litigation and that relations between state and federal courts are improved." Seron, supra at (v). The most recent study, which was published in 1995, concluded:

With respect to the cost and delay issue, it should be noted that there will always be additional cost and delay in litigating the meaning of an unclear point of state law, whether the arguments are made in a federal court or in a state supreme court upon certification .... The benefits, however, in terms of the savings in costs and time to future litigants who will not have to litigate the same issue through all the levels of a state court judiciary greatly outweigh these additional costs of briefs and travel incurred by litigants in a single certification case.

Goldschmidt, supra at 109. 5

Practitioners who have had recent experience with certification in the Second Circuit have expressed the need for written procedural rules implementing the process. Without written rules, attorneys must determine the practice for themselves, compounding the delay and costs associated with certification. The following proposed procedural rules are intended to mitigate the burden on litigants that certification may cause.

VII. Second Circuit Rule 0.27 provides that "certification may be made by [the Second Circuit] sua sponte or on motion of a party filed with the clerk of [the] Court." The Second Circuit should adopt a rule to implement the certification procedure by motion of a party. Within ten (10) days after the service and filing of Second Circuit Forms C and D, a party should serve and file written notice of an intention to move for certification on specified issues. Except as otherwise provided by order of the Court, a motion for certification should be included in the moving party’s brief on the merits of the appeal.

VIII. The general practice in the Second Circuit is to require the parties to file letter briefs after they have received an answer to a certified question from the New York Court of Appeals. A formal rule implementing that practice should be adopted.

IX. The general practice in the New York Court of Appeals has been to give notice of its decision to accept or reject a certified question within sixty days of certification. That practice should be incorporated in a formal rule.

X. The New York Court of Appeals should adopt a formal rule clarifying the appellant-appellee designations on certified questions to the Court. The formal rule should implement the current practice of retaining the same appellant-appellee designations used in the Second Circuit.

XI. There should be a mechanism for affording exigent treatment to certified questions that are urgent or require a decision by a certain date. The New York Court of Appeals should expedite review of certified questions designated for exigent treatment by the Second Circuit or upon motion of a party for good cause shown.

XII. The New York Court of Appeals, "on its own motion, will examine the merits presented by the certified question, first to determine whether to accept the certification, and second, the review procedure to be followed in determining the merits." N.Y. Ct. App. R. 500.17(d). Thereafter, the New York Court of Appeals "shall instruct the Clerk to request any additional papers which it requires for its review." N.Y. Ct. App. R. 500.17(e). In practice, the New York Court of Appeals has generally required the parties to serve and file new briefs on the certified question. Practitioners have commented that rebriefing the issues often needlessly compounds the cost and delay. Whenever practicable, the New York Court of Appeals should answer the certified question on the basis of the record and briefs filed in the Second Circuit. Supplemental briefing may not be necessary in cases where a party has made a motion for certification. However, the litigants should be afforded the opportunity to brief the certified question in (1) cases involving questions certified by the Second Circuit on its own motion; (2) cases in which there has been a substantive development in the law on the certified question after the Second Circuit briefs were filed; and (3) cases in which the Second Circuit has expressly permitted the New York Court of Appeals to reformulate or clarify the certified question and the altered question was not previously briefed by the parties.

The adoption of the procedural rules suggested above will avoid the uncertainty and speculation that currently surrounds the certification process. The proposed rules have the added advantage of mitigating the delay and costs associated with certification. The certification procedure can continue to be refined and improved through informal communications between the Second Circuit and the New York Court of Appeals at state-federal judicial councils.

Although the burden that certification can impose on litigants and the court system cautions against indiscriminate use of the procedure, the Second Circuit should not be reluctant to use certification in appropriate cases where the Court finds itself uncertain about a significant issue of state law that is essential to a correct disposition of the case before it. Nor should the New York Court of Appeals be reluctant to accept certified questions. In cases where the New York Court of Appeals rejects a certified question, a brief statement of the reasons for doing so should be given by that Court.

December 1, 1998


Committee on Federal Courts

Guy Miller Struve, Chair
Ola N. Rech, Secretary

Stuart_E__Abrams

Hon__Theodore_H__Katz
Allan Arffa Daniel J. Kramer
Jacob Aschkenasy Steven C. Krane
Joseph T. Baio Robert J. Lack
Hon. Lucy Adams Billings Kim J. Landsman
Evan R. Chesler Seth Lesser
Brian M. Cogan Lewis J. Liman
Edward Copeland Carl Loewenson
Matthew Diller Robert W. Mullen
William K. Dodds Sean O’Brien
Hon. Carol A. Edmead Hon. Cheryl L. Pollak
Mark C.M. Fang Tracey Salmon Smith
Ira M. Feinberg Jay G. Strum
David Friedman Mary Kay Vyskocil
R. Peyton Gibson Robert A. Wallner
Gregory Horowitz Lillian S. Weigert
Daniel M. Isaacs Natalie R. Williams
James W. Johnson Joseph P. Zammit

COUNCIL ON JUDICIAL ADMINISTRATION

Robert L. Haig, Chair
Sarah L. Reid, Secretary

Richard T. Andrias
Steven J. Antonoff
Jacob Arschkenasy
Robert E. Bailey
Paris R. Baldacci
Celia Goldwag Barenholtz
Helaine M. Bennett
Gary S. Brown
Nancy A. Brown
Deirdre A. Burgman
Austin V. Campriello
Roy H. Carlin
P. Kevin Castel
Ellen M.Coin
Brendan M. Connell, Jr.
Melanie L. Cyganowski
William M. Dallas, Jr.
George B. Daniels
Julia R. Davis
Charles E. Dorkey III
Joan L. Ellenbogen
Linda A. Fairstein
Gerald J. Fields
John E. Finnegan
Steven G. Foresta
Amanda Gallagher
Paula Galowitz
John L. Gardiner
David R. Gelfand
Lenore Grittis
Thomas H. Golden
Erika D. Gorrin
Salvatory J. Graziano
James W. Harbison, Jr.
Alexander W. Hunter, Jr.
Debra A.James
Robert Jossen
Barry M. Kamins
Beth L. Kaufman
Norman C. Kleinberg
Marilyn C. Kunstler
Deborah E. Lans
Craig Leen
Robert J. Levisohn
Robert P. LoBue
Mitchell A. Lowenthal
Jerianne E. Mancini
Frank Maas
Maria Milin
Jonathan W. Miller
Charles G. Moerdler
David M. Morris
Brian J. Noona
Marilyn G. Ordover
Steven R. Paradise
Sheryl L. Parker
Jane W. Parver
Gerald G. Paul
Ann T. Pfau
Richard Lee Price
Porfirio F. Ramirez, Jr.
William C. Rand
Claudia E. Ray
Roy L. Reardon
Anne Reiniger
Steven A. Reiss
Rosalyn Heather Richter
Eric Rieder
Stephen G. Rinehart
David Rosenberg
David E. Ross
Jay G. Safer
Shira A. Scheindlin
Stella Schindler
Edward T. Schorr
Marcia Lynn Sells
Steven B. Shapiro
Jaqueline W. Silbermann
George Bundy Smith
Debra B. Steinberg
Andrew W. Stern
Guy Miller Struve
Eric A. Tirschwell
Paul A. Tumbleson
Mark Walfish
Eric D. Welsh
Aviva O. Werthimer
John S. Willems
Ronald P. Younkins

NOTES

1 Schneider, "But Answer Came There None": The Michigan Supreme Court and The Certified Question of State Law, 41 Wayne L. Rev. 273, 275-277 (Winter 1995).

2 Kidney represented the inaugural use of Second Circuit certification to the New York Court of Appeals. 808 F.2d at 956.

3 The cases in which the Second Circuit certified state law issues to the New York Court of Appeals from 1993 through December 1, 1998 are identified on the Chart attached to this Report.

4 See Goldschmidt, Certification of Questions of Law: Federalism in Practice (American Judicature Society 1995); Corr and Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand. L. Rev. 411 (1998); Seron, Certifying Questions of State Law: Experience of Federal Judges (Federal Judicial Center 1983).

5 In February 1987, The Committee on Federal Courts of the Association of the Bar of the City of New York published a report entitled "Analysis of State Laws Providing for Certification by Federal Courts of Determinative State Issues of Law." 42 Rec. Ass’n B. City N.Y. 101 (1987). The Committee Report was published only one year after the New York Court of Appeals’ certification procedure became effective on January 1, 1986, and the Report had the benefit of only two cases in which certification to the New York Court of Appeals had been an issue. Id. at 108-09. Based on the limited experience with certification in New York as of February 1987, the Committee Report concluded that the procedure "would in most cases merely add to the time and expense of resolving disputes and frustrate litigants who are properly before federal courts", and it consequently recommended Second Circuit certification only in a "rare case". Id. at 125. In the eleven years since the Committee Report was published, certification procedures have become widespread, the United States Supreme Court has praised the substantial efficiencies that certification provides in resolving unsettled state law questions, and empirical studies have established that the benefits gained from certification outweigh the additional delay and costs incurred by individual litigants in a single certification case. See, e.g., Sorrentino and Broudy, Certified Questions of Law by the Second Circuit to the New York Court of Appeals, 65 N.Y. St. B. J. 8, 13 (March/April 1993) (certification "offers an excellent mechanism for authoritative resolution of significant issues of state law").