Interactive judicial federalism: Certified questions in New York

Fordham Law Review

Volumn 69, Issue 2, 2000, Pages 373-421

  Kaye, Judith S ^a   Weissman, Kenneth I ^a  

^a NONE

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EID: 0034555596     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (323)

1. Alabama, New Jersey, North Carolina and Vermont are the only states that have not adopted certification procedures. Although Missouri's legislature has enacted a certification statute, the Missouri Supreme Court held that it violates that state's constitutional limits on the court's jurisdiction. Grantham v. Mo. Dep't of Corr., No. 72576, 1990 WL 602159, at *1 (Mo. July 13, 1990). Appendix A provides a complete list of state certification laws.
2. N.Y. Const. art. VI, § 3(b), cl. 9; N.Y. Ct. R. § 500.17(a) (N.Y. Ct. App.) (McKinney 2000).
3. While New York's certification procedure may also be utilized by state appellate courts of last resort, no state court has yet invoked it, nor has the New York Court of Appeals certified a question to any other state court. To date, only the Second and Eleventh Circuit Courts of Appeals have certified questions to New York's high court. Thus, with state-state interaction still on the horizon, this article will focus on federal-state certification.
4. See, e.g., George C. Pratt, The State of New York's State-Federal Judicial Council, 3 Touro L. Rev. 1, 1 (1986) (noting that "in practice our federal and state courts regularly experience friction at points of overlapping jurisdiction"); Jack B. Weinstein, Coordination of State and Federal Judicial Systems, 57 St. John's L. Rev. 1, 1 (1982) (describing the state and federal courts as "two independent systems whose interplay often perplexes the citizen as well as the theorist visualizing the law as an integrated whole").
5. See, e.g., George C. Pratt, The State of New York's State-Federal Judicial Council, 3 Touro L. Rev. 1, 1 (1986) (noting that "in practice our federal and state courts regularly experience friction at points of overlapping jurisdiction"); Jack B. Weinstein, Coordination of State and Federal Judicial Systems, 57 St. John's L. Rev. 1, 1 (1982) (describing the state and federal courts as "two independent systems whose interplay often perplexes the citizen as well as the theorist visualizing the law as an integrated whole").
6. Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18-19 (1842).
7. Id.
8. The Act has survived virtually unchanged since the days of Swift, and now provides: "The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply." 28 U.S.C. § 1652 (1994).
9. The local matters on which federal courts followed state common law under Swift fell into four broad categories: property, real estate, taxes and liens; water rights; municipal corporations; and matters of status, such as marital rights. See Swift, 41 U.S. at 18-19; 17 James W. Moore et al., Moore's Federal Practice § 124 App.01[3] (3d ed. 1997).
10. See 17 Moore, supra note 8, § 124.01[1], at 124-30 (Under Swift v. Tyson, "'state law' did not include state court decisions on matters of commercial and contract law or general jurisprudence, such as torts, conflicts of law, and damages."). The Court in Swift reasoned: In the ordinary use of language, it will hardly be contended [sic] that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws. . . . The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof . . . . 41 U.S. at 18.
11. See, e.g., Hewlett v. Schadel, 68 F.2d 502, 504 (4th Cir. 1934) ("To hold to the rule of Swift v. Tyson . . . will preserve a uniform body of law upon which those who do business in other states can depend, and which will inevitably have a unifying influence on the decisions of the state courts themselves.").
12. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74 (1938).
13. See id. at 74-75; Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 523-24 (1928) (describing how company reincorporated in a neighboring state in order to create diversity jurisdiction and circumvent Kentucky law); Robert H. Jackson, The Rise and Fall of Swift v. Tyson, 24 A.B.A. J. 609, 613 (1938): Perhaps the chief beneficiaries of the doctrine of Swift v. Tyson were corporations doing business in a number of states. Such corporations could claim to be citizens of the state of their charter alone, and so when sued could remove cases freely to the federal courts on the ground of diversity of citizenship. When a corporation was the plaintiff, it likewise had an advantage. A Delaware corporation suing a New York citizen with respect to a transaction in New York could bring suit there in either the federal or state court; even though diversity of citizenship existed, the defendant could not remove, being a citizen and resident of the state where suit was brought.
14. Erie, 304 U.S. at 74.
15. 304 U.S. 64 (1938).
16. Id. at 78.
17. Although diversity jurisdiction provides the most frequent occasion for federal court application of state law, a federal court must also apply state law in other situations, such as when supplemental jurisdiction exists, or when federal law incorporates state law. As the Second Circuit noted: [I]t is the source of the right sued upon, and not the ground on which federal jurisdiction over the case is founded, which determines the governing law. Thus, the Erie doctrine applies, whatever the ground for federal jurisdiction, to any issue or claim which has its source in state law. Likewise, the Erie doctrine is inapplicable to claims or issues created and governed by federal law, even if the jurisdiction of the federal court rests on diversity of citizenship. Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538, 540 n.1 (2d Cir. 1956) (citations omitted).
18. Federal courts still apply federal procedural rules. The seminal Supreme Court cases dealing with the distinction between substance and procedure in this context include Hanna v. Plumer, 380 U.S. 460 (1965); Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525 (1958); and Guaranty Trust Co. v. York, 326 U.S. 99 (1945).
19. The Court in Erie also hinted that its decision served constitutional principles of federalism. Erie, 304 U.S. at 80 (noting that the Swift doctrine "invaded rights which in our opinion are reserved by the Constitution to the several States").
20. Erie, 304 U.S. at 78; see also William G. Bassler & Michael Potenza, Certification Granted: The Practical and Jurisprudential Reasons Why New Jersey Should Adopt a Certification Procedure, 29 Seton Hall L. Rev. 491, 492 (1998) ("Locating the proper state rule of decision, even in well-developed areas of state law, can be a difficult task."). The Court in Erie did not address how to decide unsettled questions of state law, as the only question before the Court was whether state law governed, not the content of state law. Erie, 304 U.S. at 80.
21. Guar. Trust, 326 U.S. at 108.
22. Federal courts generally are obligated to consider dicta. See Rocky Mountain Fire & Cas. Co. v. Dairyland Ins. Co., 452 F.2d 603, 603-04 (9th Cir. 1971) ("A federal court exercising diversity jurisdiction is bound to follow the considered dicta as well as the holdings of state court decisions."); 1A James W. Moore & Brett A. Ringle, Moore's Federal Practice § 307[2], at 3068 (2d ed. 1996). This may not be the case, however, when dicta in a state supreme court opinion contradicts the actual holdings of intermediate appellate courts. See, e.g., Nolan v. Transocean Air Lines, 209 F.2d 904, 907 (2d Cir. 1961) (reasserting a previous holding based on opinions of the California District Courts of Appeal over the dicta of the California Supreme Court, which the court characterized as "contrary to [California's] apparent legislative policy [and] overturn[ing], without citation, an unbroken line of decisions of intermediate appellate courts . . . consistent with that policy").
23. Federal courts must follow intermediate state court cases, unless there is reason to believe that the state's highest court would not follow them. Hicks v. Feiock, 485 U.S. 624, 630 n.3 (1988) (citing West v. AT&T, 311 U.S. 223, 237-38 (1940)); Pentech Int'l, Inc. v. Wall St. Clearing Co., 983 F.2d 441, 445-46 (2d Cir. 1993) (same). Trial court opinions, by contrast, should be considered, but are not binding. See, e.g., Craig v. Lake Asbestos of Que., Ltd., 843 F.2d 145, 152 n.6 (3d Cir. 1988) (stating that a New Jersey Superior Court decision, although not binding, was instructive); MGM Grand Hotel v. Imperial Glass Co., 533 F.2d 486, 489 n.5 (9th Cir. 1976) (stating that an unpublished trial court opinion is not binding, but nonetheless may be persuasive). For a discussion of federal court deference to lower state court interpretations of unclear law, as well as deference to the interpretation of state law by other federal courts, see Craig A. Hoover, Note, Deference to Federal Circuit Interpretations of Unsettled State Law: Factors, Etc., Inc. v. Pro Arts, Inc., 1982 Duke L.J. 704.
24. See, e.g., Liriano v. Hobart Corp., 132 F.3d 124 (2d Cir. 1998): [W]hen the state's highest court has cast doubt on the scope or continued validity of one of its earlier holdings, or when there is some law in the intermediate state courts, but no definitive holding by the state's highest tribunal . . . a party favored by the lower court decisions or by the weakened high court holding will seek federal jurisdiction with the knowledge that the federal courts, unlike the state's highest court, will feel virtually bound to follow these decisions. Id. at 132.
25. Perez-Trujillo v. Volvo Car Corp. (Swed.), 137 F.3d 50, 55 (1st Cir. 1998) (quoting Rodriguez-Suris v. Montesinos, 123 F.3d 10, 13 (1st Cir. 1997)); see also Anderson v. Nissan Motor Co., 139 F.3d 599, 601 (8th Cir. 1998); Fioretti v. Mass. Gen. Life Ins. Co., 53 F.3d 1228, 1235 (11th Cir. 1995); Bank of N.Y. v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir. 1994); Moores v. Greenberg, 834 F.2d 1105, 1112 (1st Cir. 1987) (referring to federal courts' duty to make informed prophecy on state substantive law issues); John R. Brown, Certification - Federalism in Action, 7 Cumb. L. Rev. 455, 455 (1977) (noting that federal judges were often required to "trade [their] judicial robes for the garb of prophet"); cf. Yohannon v. Keene Corp., 924 F.2d 1255, 1264 (3d Cir. 1991): [A] federal court sitting in diversity must often take on the mantle of the soothsayers of old and predict what the supreme court of a particular state would do if it were presented with the issue that controls the case before the federal court. Such contemporary predictions are just as chancy a business as the divination of dreams that heathen kings of ancient biblical lands so often called upon their counselors to interpret in the stories of the Old Testament. Like them, in taking on the task, we hope that our prophecy will find favor in the eyes of the authority that may one day brand it true or false.
26. Henry J. Friendly, Federal Jurisdiction: A General View 142 (1973) (quoting J. Skelly Wright, The Federal Courts and the Nature and Quality of State Law, 13 Wayne L. Rev. 317, 322 (1967)); see also Arthur L. Corbin, The Common Law of the United States, 47 Yale L.J. 1351, 1352 (1938) (noting that federal judges will be "limited in a way in which the [state] judges are not themselves limited").
27. Henry J. Friendly, Federal Jurisdiction: A General View 142 (1973) (quoting J. Skelly Wright, The Federal Courts and the Nature and Quality of State Law, 13 Wayne L. Rev. 317, 322 (1967)); see also Arthur L. Corbin, The Common Law of the United States, 47 Yale L.J. 1351, 1352 (1938) (noting that federal judges will be "limited in a way in which the [state] judges are not themselves limited").
28. Henry J. Friendly, Federal Jurisdiction: A General View 142 (1973) (quoting J. Skelly Wright, The Federal Courts and the Nature and Quality of State Law, 13 Wayne L. Rev. 317, 322 (1967)); see also Arthur L. Corbin, The Common Law of the United States, 47 Yale L.J. 1351, 1352 (1938) (noting that federal judges will be "limited in a way in which the [state] judges are not themselves limited").
29. A federal court sitting in diversity applies the forum state's choice of law rules. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).
30. Nolan v. Transocean Air Lines, 276 F.2d 280, 281 (2d Cir. 1960).
31. As an inevitable result of their awkward role as seers, federal courts frequently are incorrect in forecasting state law. See, e.g., Jerome I. Braun, A Certification Rule for California, 36 Santa Clara L. Rev. 935, 937-40 (1996) (discussing instances where judges have incorrectly guessed at what state law would be when ruled upon by the highest state court); John B. Corr & Ira P. Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand. L. Rev. 411, 415 n.11 (1988) (listing cases in which state courts explicitly disagreed with federal courts' interpretations of state law); Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 Va. L. Rev. 1671, 1679-80 (1992) ("[T]he state courts have found fault with a not insignificant number of past 'Erie guesses' made by the Third Circuit and our district courts. . . . It is not that Third Circuit judges are particularly poor prognosticators. All of the circuits have similar problems in predicting state law accurately." (footnote omitted)); Stella L. Smetanka, To Predict or to Certify Unresolved Questions of State Law: A Proposal for Federal Court Certification to the Pennsylvania Supreme Court, 68 Temp. L. Rev. 725, 729-35 (1995) (examining the Third Circuit's incorrect predictions of state law).
32. As an inevitable result of their awkward role as seers, federal courts frequently are incorrect in forecasting state law. See, e.g., Jerome I. Braun, A Certification Rule for California, 36 Santa Clara L. Rev. 935, 937-40 (1996) (discussing instances where judges have incorrectly guessed at what state law would be when ruled upon by the highest state court); John B. Corr & Ira P. Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand. L. Rev. 411, 415 n.11 (1988) (listing cases in which state courts explicitly disagreed with federal courts' interpretations of state law); Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 Va. L. Rev. 1671, 1679-80 (1992) ("[T]he state courts have found fault with a not insignificant number of past 'Erie guesses' made by the Third Circuit and our district courts. . . . It is not that Third Circuit judges are particularly poor prognosticators. All of the circuits have similar problems in predicting state law accurately." (footnote omitted)); Stella L. Smetanka, To Predict or to Certify Unresolved Questions of State Law: A Proposal for Federal Court Certification to the Pennsylvania Supreme Court, 68 Temp. L. Rev. 725, 729-35 (1995) (examining the Third Circuit's incorrect predictions of state law).
33. As an inevitable result of their awkward role as seers, federal courts frequently are incorrect in forecasting state law. See, e.g., Jerome I. Braun, A Certification Rule for California, 36 Santa Clara L. Rev. 935, 937-40 (1996) (discussing instances where judges have incorrectly guessed at what state law would be when ruled upon by the highest state court); John B. Corr & Ira P. Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand. L. Rev. 411, 415 n.11 (1988) (listing cases in which state courts explicitly disagreed with federal courts' interpretations of state law); Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 Va. L. Rev. 1671, 1679-80 (1992) ("[T]he state courts have found fault with a not insignificant number of past 'Erie guesses' made by the Third Circuit and our district courts. . . . It is not that Third Circuit judges are particularly poor prognosticators. All of the circuits have similar problems in predicting state law accurately." (footnote omitted)); Stella L. Smetanka, To Predict or to Certify Unresolved Questions of State Law: A Proposal for Federal Court Certification to the Pennsylvania Supreme Court, 68 Temp. L. Rev. 725, 729-35 (1995) (examining the Third Circuit's incorrect predictions of state law).
34. As an inevitable result of their awkward role as seers, federal courts frequently are incorrect in forecasting state law. See, e.g., Jerome I. Braun, A Certification Rule for California, 36 Santa Clara L. Rev. 935, 937-40 (1996) (discussing instances where judges have incorrectly guessed at what state law would be when ruled upon by the highest state court); John B. Corr & Ira P. Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand. L. Rev. 411, 415 n.11 (1988) (listing cases in which state courts explicitly disagreed with federal courts' interpretations of state law); Dolores K. Sloviter, A Federal Judge Views Diversity Jurisdiction Through the Lens of Federalism, 78 Va. L. Rev. 1671, 1679-80 (1992) ("[T]he state courts have found fault with a not insignificant number of past 'Erie guesses' made by the Third Circuit and our district courts. . . . It is not that Third Circuit judges are particularly poor prognosticators. All of the circuits have similar problems in predicting state law accurately." (footnote omitted)); Stella L. Smetanka, To Predict or to Certify Unresolved Questions of State Law: A Proposal for Federal Court Certification to the Pennsylvania Supreme Court, 68 Temp. L. Rev. 725, 729-35 (1995) (examining the Third Circuit's incorrect predictions of state law).
35. See Gerald M. Levin, Note, Inter-Jurisdictional Certification: Beyond Abstention Toward Cooperative Judicial Federalism, 111 U. Pa. L. Rev. 344, 345 (1963). The forecasts of state law are, however, reviewable de novo by federal appellate courts. Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991).
36. See Brown, supra note 24, at 456 (noting the "frustration for litigants when the rule of law [that federal courts] prescribe turns out to be a ticket for one ride only").
37. "It has been awkward - and, to some, not a little embarrassing - when our first guess turns out to be wrong and the state court makes the second and last guess by reversing our holding." Brown, supra note 24, at 455; see also R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) ("In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. The reign of law is hardly promoted if an unnecessary ruling of a federal court is . . . supplanted by a controlling decision of a state court."); Braun, supra note 28, at 937-39 (reviewing cases in which federal courts' predictions of state law were incorrect). Despite the difficulties of predicting state law, some have regarded the process as beneficial by allowing the state and federal court systems to be "cross-pollinated" as lawyers practicing in both sets of courts bring ideas from one to the other. See David L. Shapiro, Federal Diversity Jurisdiction: A Survey and a Proposal, 91 Harv. L. Rev. 317, 324-26 (1977); Geri J. Yonover, A Kinder, Gentler Erie: Reining in the Use of Certification, 47 Ark. L. Rev. 305, 338-39 (1994).
38. "It has been awkward - and, to some, not a little embarrassing - when our first guess turns out to be wrong and the state court makes the second and last guess by reversing our holding." Brown, supra note 24, at 455; see also R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) ("In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. The reign of law is hardly promoted if an unnecessary ruling of a federal court is . . . supplanted by a controlling decision of a state court."); Braun, supra note 28, at 937-39 (reviewing cases in which federal courts' predictions of state law were incorrect). Despite the difficulties of predicting state law, some have regarded the process as beneficial by allowing the state and federal court systems to be "cross-pollinated" as lawyers practicing in both sets of courts bring ideas from one to the other. See David L. Shapiro, Federal Diversity Jurisdiction: A Survey and a Proposal, 91 Harv. L. Rev. 317, 324-26 (1977); Geri J. Yonover, A Kinder, Gentler Erie: Reining in the Use of Certification, 47 Ark. L. Rev. 305, 338-39 (1994).
39. Uncertainty is created because a federal court decision involving issues of state law is binding on the parties to that litigation, but has no stare decisis effect on future state court litigants. See Brown, supra note 24, at 456; Note, New York's Certification Procedure: Was it Worth the Wait?, 63 St. John's L. Rev. 539, 542-43 (1989): [F]ederal courts [are placed] in the unenviable position of having to decide state law-absent a controlling decision of the highest state court-while lacking the authority to make the decision binding upon anyone but the instant litigants. Often, this inherent problem is then exacerbated when other federal courts or foreign state courts, ruling on similar issues, use the possibly incorrect holding of the first federal court as authority in their rulings on the same law. This domino effect continues until broken by a final decision in the highest court of the state whose law is in question.
40. Meredith v. Winter Haven, 320 U.S. 228, 234 (1943).
41. United Servs. Life Ins. Co. v. Delaney, 328 F.2d 483, 484-85 (5th Cir. 1964) (en banc), cert. denied, 377 U.S. 935 (1964).
42. See Richard B. Lillich & Raymond T. Mundy, Federal Court Certification of Doubtful State Law Questions, 18 U.C.L.A. L. Rev. 888, 890 n.22 (1971).
43. 312 U.S. 496 (1941).
44. Burford v. Sun Oil Co., 319 U.S. 315, 334 (1943).
45. La. Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 29 (1959); see also Charles A. Wright, The Law of Federal Courts, § 52, at 329-30 (5th ed. 1994) (discussing abstention in cases involving issues of special interest to the state); 17A Charles A. Wright et al., Federal Practice and Procedure § 4241, at 13-14 (same).
46. See Meredith v. Winter Haven, 320 U.S. 228, 234-35 (1943).
47. Of course, there is no guarantee that the case will make its way to the state's highest court, and an abstaining federal court, therefore, may be forced to rely on a lower court's prediction of how the high court would rule. See Martha A. Field, The Abstention Doctrine Today, 125 U. Pa. L. Rev. 590, 604-05 (1977).
48. See, e.g., Arizonans for Official English v. Ariz., 520 U.S. 43, 76 (1997) ("Attractive in theory because it placed state-law questions in courts equipped to rule authoritatively on them, Pullman abstention proved protracted and expensive in practice, for it entailed a full round of litigation in the state court system before any resumption of proceedings in federal court."); England v. La. State Bd. of Med. Exam'rs, 375 U.S. 411, 418 (1964) (noting the "delay and expense to which application of the abstention doctrine inevitably gives rise"); Levin, supra note 29, at 346-48 (discussing the cost and delay in bringing a second suit after abstention); Lillich & Mundy, supra note 35, at 890 ("This authoritative determination of state law . . . had an added price in terms of delay and cost to litigants."); John A. Scanelli, The Case for Certification, 12 Wm. & Mary L. Rev. 627, 632-34 (1971) (discussing the added cost and delay of bringing a second suit in state court); Memorandum and Recommendation of the N.Y. Law Revision Comm'n to the 1984 Legislature Relating to Certification of Questions of Law to the Court of Appeals, at 6 (1984) ("The expense and delay caused by proceeding through the lower state courts up to the highest state court to obtain a definitive resolution of state law can make such abstention an onerous burden on litigants.").
49. Levin, supra note 29, at 346.
50. See id. at 347; see also Comment, Abstention and Certification in Diversity Suits: "Perfection of Means and Confusion of Goals," 73 Yale L.J. 850, 866 (1964) (noting that if abstention were to be used regularly, opponents of the doctrine could "mount a convincing argument that federal judges would be reduced to little more than sterile monitors shuttling traffic between a dual system of courts at appropriate stages of the litigation. Litigants would, again, be discouraged from invoking the diversity jurisdiction as judges felt themselves under greater pressure to invoke the doctrine, and apparent congressional intent would be, to that extent, disserved.").
51. See, e.g., Comm. on Federal Courts, N.Y. State Bar Ass'n, The Abstention Doctrine: The Consequences of Federal Court Deference to State Court Proceedings, reprinted in 122 F.R.D. 89, 106-07 (1988) (recommending cautious use of abstention and the need for federal courts to assess carefully whether abstaining "will have the practical effect of frustrating or unduly delaying the adjudication of federal claims"); Unif. Certification of Questions of Law Act of 1967, 12 U.L.A. 81, 82 (1996) (prefatory note) (commenting that abstention "has proved to be quite unsatisfactory"); Bassler & Potenza, supra note 19, at 493 (referring to abstention as "a rarely applied and awkward procedural device"); Field, supra note 40, at 605 (arguing that abstention is not worth the costs it imposes on litigants).
52. E.g., Arizonans for Official English, 520 U.S. at 76 ("Certification procedure, in contrast [to abstention], 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."); Tunick v. Safir, 209 F.3d 67, 79 (2d Cir. 2000) ("[T]he delay created by certification is almost never as great as that imposed by abstention.").
53. Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 212 (1960).
54. The Florida statute authorized the Florida Supreme Court to adopt rules for receiving certified questions from the United States Supreme Court and federal courts of appeals when a question of Florida state law was "determinative" and there were "no clear controlling precedents" from state court decisions. 1945 Fla. Laws, ch. 23098, § 1 (codified at Fla. Stat. § 25.031 (1998)).
55. There had been intra-jurisdictional certification of questions of law in the United States as far back as 1802, when Congress authorized the circuit courts to certify questions to the Supreme Court. See Act of April 29, 1802, ch. 31, § 6, 2 Stat. 156, 159-61. Justice Oliver Wendell Holmes commented that such certification is "a mode of disposing of cases in the least cumbersome and most expeditious way." Chi., Burlington & Quincy Ry. Co. v. Williams, 214 U.S. 492, 495-96 (1909) (Holmes, J., dissenting). The British had established inter-jurisdictional certification procedures in the British Law Ascertainment Act of 1859, 22 & 23 Vict., ch. 63 (Eng.) (relating to certification of questions of law to other dominions of Great Britain), and the Foreign Law Ascertainment Act of 1861, 24 & 25 Vict., ch. II (Eng.) (relating to certification of questions of law to foreign countries). These Acts were forerunners of certification laws in the United States. See Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal For Reform, 18 J. Legis. 127, 131-33 (1992); M. Bryan Schneider, "But Answer Came There None": The Michigan Supreme Court and the Certified Question of State Law, 41 Wayne L. Rev. 273, 289-90 (1995).
56. There had been intra-jurisdictional certification of questions of law in the United States as far back as 1802, when Congress authorized the circuit courts to certify questions to the Supreme Court. See Act of April 29, 1802, ch. 31, § 6, 2 Stat. 156, 159-61. Justice Oliver Wendell Holmes commented that such certification is "a mode of disposing of cases in the least cumbersome and most expeditious way." Chi., Burlington & Quincy Ry. Co. v. Williams, 214 U.S. 492, 495-96 (1909) (Holmes, J., dissenting). The British had established inter-jurisdictional certification procedures in the British Law Ascertainment Act of 1859, 22 & 23 Vict., ch. 63 (Eng.) (relating to certification of questions of law to other dominions of Great Britain), and the Foreign Law Ascertainment Act of 1861, 24 & 25 Vict., ch. II (Eng.) (relating to certification of questions of law to foreign countries). These Acts were forerunners of certification laws in the United States. See Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal For Reform, 18 J. Legis. 127, 131-33 (1992); M. Bryan Schneider, "But Answer Came There None": The Michigan Supreme Court and the Certified Question of State Law, 41 Wayne L. Rev. 273, 289-90 (1995).
57. A speech given by Professor Philip B. Kurland - a former law clerk to Justice Frankfurter, author of Clay-shortly before Clay was decided may have planted the seed for Supreme Court support of certification. In addressing the problems of abstention, Professor Kurland stated: Probably the best solution to the delay problem is the one tendered by the legislature of the State of Florida which has never been utilized . . . . The Florida statute authorizes its high court to receive questions of State law by certification from a federal appellate court. . . . With such a certified and authoritative answer, the federal courts could readily proceed to judgment. . . . Here again we could have a demonstration of cooperative judicial federalism which would justify those of us who think that the federal form of government has a contribution to make toward the preservation of justice in this country. Philip B. Kurland, Toward a Cooperative Judicial Federalism: The Federal Court Abstention Doctrine, reprinted in 24 F.R.D. 481, 489-90 (1960) (Speech to the Conference of Chief Justices, Aug. 20, 1959, at Miami Beach, Florida); see also 17A Wright, supra note 38, § 4248, at 160-61 & n.8 (discussing Kurland's speech).
58. See Clay, 363 U.S. at 212 n.3; In re Fl. Appellate Rules, 127 So. 2d 444, 445 (Fla. 1961) (court rule implementing Florida's certification procedure).
59. Robbins, supra note 48, at 165.
60. 363 U.S. at 212.
61. 416 U.S. 386 (1974).
62. Id. at 390-91.
63. 428 U.S. 132 (1976).
64. Id. at 148.
65. Id. at 151.
66. 520 U.S. 43 (1997).
67. Id. at 74-75.
68. Id. at 77 (citation omitted).
69. Id. at 79.
70. 120 S. Ct. 469 (1999).
71. Id. at 470-71; see Pa. Stat. Ann. tit. 35, § 6018.401(a) (Purdon 1993).
72. Fiore, 120 S. Ct. at 471-72.
73. Id. at 473. The question certified was "Does the interpretation of Pa. Stat. Ann., tit. 35, § 6018.401(a) (Purdon 1993), set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A.2d 1109, 1112 (1993), state the correct interpretation of the law of Pennsylvania at the date Fiore's conviction became final?" Id. The question remains pending before the Pennsylvania high court. For additional Supreme Court uses of certification, see Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 395-97 (1988) (two questions certified to the Virginia Supreme Court regarding a state statute making it unlawful to display for a commercial purpose sexually explicit materials that could be seen and examined by juveniles); Elkins v. Moreno, 435 U.S. 647, 668-69 (1978) (question certified to the Court of Appeals of Maryland regarding whether certain non-immigrant aliens residing in Maryland are capable of becoming Maryland domiciliaries and thereby receiving certain benefits in applying to and paying tuition at the University of Maryland); Dresner v. City of Tallahassee, 375 U.S. 136, 136-39 (1963) (in order to determine whether it had jurisdiction, the Court certified two questions to the Supreme Court of Florida); and Aldrich v. Aldrich, 375 U.S. 75, 75-76 (1963) (the Court certified four questions to Florida's high court regarding alimony decrees and jurisdictional issues). Earlier this year, the Supreme Court declined to certify a question regarding interpretation of Nebraska's partial-birth abortion statute to the Nebraska Supreme Court, as certification had not been sought by the Attorney General, the statute was not fairly susceptible to a narrowing construction, and the question would not have been determinative. See Stenberg v. Carhart, 120 S. Ct. 2597, 2616-17 (2000).
74. Unif. Certification of Questions of Law Act (1967), 12 U.L.A. 82 (1996). The Act was revised in July 1995. See Unif. Certification of Questions of Law [Act][Rule] (1995), 12 U.L.A. 67, 71 (1996).
75. The states were Florida, Maine, Washington and Hawaii. See Unif. Certification of Questions of Law Act (1967), 12 U.L.A. 82-83 (1996) (prefatory note).
76. Id. at 82 n.2.
77. Id. at 86. Because of the inter-jurisdictional nature of certification, the National Conference of Commissioners on Uniform State Laws posited that it would "be eminently desirable that uniformity be achieved in this area." Id. at 83. The Conference predicted that "[u]niformity would make probable the greater use of certification," as attorneys and judges from around the country would be "faced not with an unfamiliar act, but rather with a carbon of the act of their own states." Id.
78. The ALI's proposal read: A court of the United States may certify to the highest court of a State a question of State law, if (1) the State has established a procedure by which its highest court may answer questions certified from such court of the United States; (2) the question of State law may be controlling in the action and cannot be satisfactorily determined in light of the State authorities; and (3) the court expressly finds that certification will not cause undue delay or be prejudicial to the parties. American Law Institute, Study of Jurisdiction Between State and Federal Courts, Official Draft § 1371(e) (1969). According to the commentary accompanying this provision, "a large majority" of the ALI supported certification, as long as appropriate safeguards were developed "to prevent abuse of that device." Id. at 292 (commentary to subsection (e)).
79. "The rules of the highest state court should provide a procedure whereby a federal court may request an authoritative statement of state law applicable in a case pending in the requesting court. The state high court may, but need not, answer the request for certification." A.B.A., Jud. Admin. Div., Standards Relating to Appellate Courts §3.33(c) (1977). The ABA again strongly endorsed certification in 1983, when its House of Delegates unanimously adopted a resolution encouraging the enactment of certification legislation in every state. See A.B.A., Special Committee on Coordination of Fed. Jud. Improvements, Report to the House of Delegates (1983); Letter from Robert D. Evans, Director, Governmental Affairs Group, American Bar Association, to Hon. Edward Griffith, Member of the New York Assembly (Mar. 21, 1983) (on file with authors) (noting unanimous ABA House of Delegates support for certification).
80. See William Schwarzer, "Letter to Our Readers," in FJC Directions: Special State-Federal Issue (A Distillation of Ideas from the National Conference on State-Federal Judicial Relationships) 1, 6 (1993).
81. Judicial Conference of the United States, Long Range Plan for the Federal Courts 32-33 (Dec. 1995); see also Jona Goldschmidt, American Judicature Society, Studies of the Justice System, Certification of Questions of Law: Federalism in Practice 2 (1995) ("[I]t is hoped that dissemination of this report will improve and facilitate the certification procedure where it exists, and encourage its adoption where it does not.").
82. Judicial Conference of the United States, Long Range Plan for the Federal Courts 32-33 (Dec. 1995); see also Jona Goldschmidt, American Judicature Society, Studies of the Justice System, Certification of Questions of Law: Federalism in Practice 2 (1995) ("[I]t is hoped that dissemination of this report will improve and facilitate the certification procedure where it exists, and encourage its adoption where it does not.").
83. See infra Appendix A; see also Bassler & Potenza, supra note 19, at 495 n.18 (listing forty-five states, in addition to the District of Columbia and Puerto Rico, that have adopted a certification procedure); Goldschmidt, supra note 73, at 15-16 (listing the forty-three states that had a certification procedure as of that time); Jessica Smith, Avoiding Prognostication and Promoting Federalism: The Need for an Inter-Jurisdictional Certification Procedure in North Carolina, 77 N.C. L. Rev. 2123, 2129-30 (1999) (noting that North Carolina is only one of four states that have not enacted a certification procedure).
84. See supra notes 46-52 and accompanying text (discussing Clay v. Sun Ins. Office Ltd., 363 U.S. 207 (1960)).
85. Letter from Michael J. Hutter, Executive Director, New York State Law Revision Commission, to Joseph W. Bellacosa, Clerk of the New York Court of Appeals (Nov. 1, 1983).
86. Id.; see also Memorandum of the Law Revision Comm'n Relating to Certification of Questions of Law to the Court of Appeals (1984), reprinted in 1984 N.Y. Laws 2975, 2975-76; 1969 Report of the N.Y. Law Revision Comm'n 17 (noting that the Commission had continued for further study its investigation into state legislation relating to federal court abstention). The 1966 study, entitled Federal Courts: State Legislation Relating to Abstention When Points of Local Law Must Be Decided, served as the basis of a law review article five years later. See Lillich & Mundy, supra note 35, at 888.
87. By 1984, twenty-four states and Puerto Rico had adopted a certification procedure. Memorandum of the Law Revision Comm'n, supra note 77, at 2977.
88. See, e.g., Kurland, supra note 49 at 489-90 (1960) (commending Florida's certification statute); Wright, Federal Courts § 52 (4th ed. 1983) (discussing certification generally); Levin, supra note 29, at 348-50 (noting the simplicity and efficiency of inter-jurisdictional certification); Lillich & Mundy, supra note 35, at 899 ("Certification statutes and rules . . . have received the approval of most commentators who have analyzed them."); Allan D. Vestal, The Certified Question of Law, 36 Iowa L. Rev. 629, 645 (1951); Abstention and Certification in Diversity Suits, supra note 43, at 867-69 (1964) (highlighting the "speed, authority and economy possible using certification procedures").
89. See, e.g., Kurland, supra note 49 at 489-90 (1960) (commending Florida's certification statute); Wright, Federal Courts § 52 (4th ed. 1983) (discussing certification generally); Levin, supra note 29, at 348-50 (noting the simplicity and efficiency of inter-jurisdictional certification); Lillich & Mundy, supra note 35, at 899 ("Certification statutes and rules . . . have received the approval of most commentators who have analyzed them."); Allan D. Vestal, The Certified Question of Law, 36 Iowa L. Rev. 629, 645 (1951); Abstention and Certification in Diversity Suits, supra note 43, at 867-69 (1964) (highlighting the "speed, authority and economy possible using certification procedures").
90. See, e.g., Kurland, supra note 49 at 489-90 (1960) (commending Florida's certification statute); Wright, Federal Courts § 52 (4th ed. 1983) (discussing certification generally); Levin, supra note 29, at 348-50 (noting the simplicity and efficiency of inter-jurisdictional certification); Lillich & Mundy, supra note 35, at 899 ("Certification statutes and rules . . . have received the approval of most commentators who have analyzed them."); Allan D. Vestal, The Certified Question of Law, 36 Iowa L. Rev. 629, 645 (1951); Abstention and Certification in Diversity Suits, supra note 43, at 867-69 (1964) (highlighting the "speed, authority and economy possible using certification procedures").
91. Interview with John J. Halloran, Jr. (May 12, 2000).
92. Id.
93. Id.
94. Assemb. 10676, 207th Sess., § 53-a (N.Y. 1982).
95. Id. § 1.
96. Id.
97. The purpose of the letter was to "solicit[] any commentary you would care to offer as to the impact of this legislation upon the Court of Appeals." Letter from John J. Halloran, Legislative Assistant to Edward Griffith, to Joseph Bellacosa, Chief Clerk, New York Court of Appeals (Feb. 24, 1982).
98. Letter from Joseph W. Bellacosa, Chief Clerk, New York Court of Appeals, to John J. Halloran, Legislative Assistant to Assemblyman Edward Griffith (Mar. 2, 1982).
99. Assemb. 10676, 207th Sess., § 1 (N.Y. 1982).
100. Letter from Joseph W. Bellacosa, supra note 87.
101. There are three exceptions to this restriction, where the court also may review facts: when a defendant has been sentenced to death; in certain cases when the intermediate appellate court has found new facts; and when a judge has requested that the court review a determination of the Commission on Judicial Conduct. N.Y. Const. art. VI, §§ 3(a), 22(d).
102. See N.Y. Const. art. VI, § 3(b).
103. Letter from Joseph W. Bellacosa, supra note 87. "The courts of New York do not issue advisory opinions for the fundamental reason that in this State '[t]he giving of such opinions is not the exercise of the judicial function.'" Cuomo v. Long Island Lighting Co., 71 N.Y.2d 349, 354 (1988) (quoting Matter of State Indus. Comm'n., 224 N.Y. 13, 16 (1918)). The court was not alone in this concern. Indeed, the opening of a New York Times article describing the proposed constitutional amendment to allow certification read "Should New York's highest court be able to give advisory opinions to out-of-state courts?" Maurice Carroll, New York Ballot to Pose 5 Questions, N.Y. Times, Oct. 27, 1985, at A54. Likewise, in announcing that the amendment passed, the New York Law Journal proclaimed that voters had approved a "proposition allowing the New York Court of Appeals to issue advisory opinions on state law for federal courts or other state appellate courts." Voters Approve Court Question by Big Margin, N.Y. L.J., Nov. 7, 1985, at 1.
104. Letter from Joseph W. Bellacosa, supra note 87. "The courts of New York do not issue advisory opinions for the fundamental reason that in this State '[t]he giving of such opinions is not the exercise of the judicial function.'" Cuomo v. Long Island Lighting Co., 71 N.Y.2d 349, 354 (1988) (quoting Matter of State Indus. Comm'n., 224 N.Y. 13, 16 (1918)). The court was not alone in this concern. Indeed, the opening of a New York Times article describing the proposed constitutional amendment to allow certification read "Should New York's highest court be able to give advisory opinions to out-of-state courts?" Maurice Carroll, New York Ballot to Pose 5 Questions, N.Y. Times, Oct. 27, 1985, at A54. Likewise, in announcing that the amendment passed, the New York Law Journal proclaimed that voters had approved a "proposition allowing the New York Court of Appeals to issue advisory opinions on state law for federal courts or other state appellate courts." Voters Approve Court Question by Big Margin, N.Y. L.J., Nov. 7, 1985, at 1.
105. Letter from Joseph W. Bellacosa, supra note 87. The court entertained 722 full appeals in 1982, and 684 in 1983. 1982 Annual Report of the Clerk of the Court to the Judges of the New York State Court of Appeals, appendix 4; 1983 Annual Report of the Clerk of the Court to the Judges of the New York State Court of Appeals, appendix 4. After the court gained greater certiorari jurisdiction in 1986 (see infra note 123 and accompanying text), the number of appeals became far more manageable. In 1998, for example, the court heard 198 appeals, and in 1999, the Court heard 208. 1998 Annual Report of the Clerk of the Court to the Judges of the New York State Court of Appeals, appendix 3; 1999 Annual Report of the Clerk of the Court to the Judges of the New York State Court of Appeals, appendix 3. Again, the court was not alone in its concern over the effects of a certification procedure on its caseload. For example, a September 1983 report on Assembly Bill 2229 by the Committee on State Legislation of the New York County Lawyers' Association recommended disapproval of the bill because of the need for further study "to establish that the procedure, if implemented in New York State, would not cause unnecessary delay and increased expense to litigants." N.Y. County Lawyers' Ass'n, Report on Proposed Legislation Allowing the Court of Appeals to Answer Questions of Law Certified to it by Specified Federal Courts 5 (Sept. 1983) [hereinafter N.Y.C.L.A. Report]. The N.Y.C.L.A. Report noted that in the years leading up to 1982 "the caseload of the Court of Appeals has increased in staggering proportions." Id. at 5. Of all the potential concerns raised about certification, the Association found none to be "so compelling as that of delay," a problem especially difficult "in a state with as heavy a caseload as New York," and worried about the practical effect of certification on New York litigants, given the already strained resources of the Court of Appeals. Id. at 4-6.
106. Although the Supreme Court declined to express its view about Assemblyman Griffith's specific proposal, in a letter responding to John Halloran the Court (through its Clerk) noted that "it is a matter of public knowledge that appellate judges, generally, favor legislation in the States authorizing the Supreme Court to certify to the highest court of the State a question of state law on which a Federal appellate court is called on to act." Press Release, Assemblyman Edward Griffith (Mar. 14, 1983) (on file with authors). We were unsuccessful in locating the actual letter from the Supreme Court to Mr. Halloran.
107. Letter from Sol Wachtler, Judge, Court of Appeals of the State of New York, to Gordon A. Howe, II, Assistant Counsel to the Majority Leader (Apr. 27, 1984); see also Pratt, supra note 4, at 3-4 (noting that one of the issues discussed by the Council in 1982 was "the possibility of instituting a procedure for certifying questions of state law to the New York Court of Appeals," and that institution of such a procedure is a "substantial achievement - although not one that can be attributed solely to the efforts of the council"); Steven Flanders, A New Approach Revitalizes State-Federal Judicial Council, N.Y. L.J., Oct. 4, 1984, at 1 (describing the role of the Council in persuading the Court of Appeals to support certification). The Advisory Group to the Council recently produced a handbook on certification for New York practitioners. See Advisory Group to the State and Federal Judicial Council, Practice Handbook on Certification of State Law Questions by the United States Court of Appeals for the Second Circuit to the New York State Court of Appeals (Feb. 25, 2000).
108. Interview with John J. Halloran, Jr. (May 12, 2000); Robert MacCrate et al., Appellate Justice in New York (Am. Judicature Soc'y 1982). Professor Rosenberg suggested that New York's certification procedure allow the Court of
109. Assemb. 2229, 208th Sess. (N.Y. 1983); Letter from John J. Halloran, Legislative Assistant to Edward Griffith, to Joseph W. Bellacosa, Chief Clerk, New York Court of Appeals (Apr. 29, 1982).
110. Assemb. 2229, 208th Sess. (N.Y. 1983).
111. S. 5631, 208th Sess. (N.Y. 1983).
112. See N.Y. Legis. Rec. & Index, at A 172, S 465 (1983).
113. Interview with John J. Halloran, Jr. (May 12, 2000).
114. Letter from Michael J. Hutter, Executive Director, New York State Law Revision Commission, to Joseph W. Bellacosa, Chief Clerk, New York Court of Appeals (Nov. 1, 1983); Memorandum of the Law Revision Comm'n, supra note 77, at 2977; accord Letter from Michael J. Hutter to John Halloran, supra note 96; Interview with John J. Halloran, Jr. (May 12, 2000).
115. See S. 7316, 209th Sess. (N.Y. 1984).
116. Id.
117. Id.
118. Id.
119. Assemb. 8860, 207th Sess. (N.Y. 1984).
120. Memorandum of the Law Revision Comm'n, supra note 77, at 2978-79.
121. Id. at 2980.
122. The objections mentioned by the Commission were that "the questions presented are too abstract; the procedure seeks advisory opinions from state courts; the procedure creates delay in the resolution of cases; and the procedure would create unnecessary certifications that would overwhelm the state courts."Id. at 2982 (citing Lillich & Mundy, supra note 35, at 900).
123. Memorandum of the Law Revision Comm'n, supra note 77, at 2982.
124. See id. at 2978-79. The Democratic Study Group of the New York State Assembly also supported certification, noting that "[t]he certification procedure proposed in this amendment has been regarded with extraordinary enthusiasm by legal commentators and 25 jurisdictions have already adopted such procedures." It also noted that the United States Supreme Court had expressed enthusiasm for the procedure. Democratic Study Group of the N.Y. State Assemb., Rep. on B. No. A 5453, Constitutional Amendment: Certification of Questions of Law to the New York Court of Appeals. The New York State Bar Association took no position on the issue. Id. As noted above, the New York County Lawyers' Association initially disapproved the bill on the ground that further study was "required to establish that the procedure, if implemented in New York State, would not cause unnecessary delay and increased expense to litigants." N.Y.C.L.A. Report, supra note 93, at 1. In August 1985, however, a County Lawyers' Association Committee recommended approval of the constitutional amendment, with a few minor changes. This decision was based on the "belief that the certification procedure, although necessarily involving a delay in the federal court or sister state court proceeding, will result in a more uniform interpretation and application of New York law and cause less of a time delay and involve less expense than that currently faced by litigants encountering the abstention doctrine." N.Y. County Lawyers' Ass'n Comm. on the Fed. Courts, Comments on Proposed Constitutional Amendment Permitting Certification of Questions of Law to the Court of Appeals of New York 6 (Aug. 1985).
125. N.Y. Legis. Rec. and Index, at A 609 (1984).
126. The Senate passed the resolution on May 29, 1984. Id.
127. Letter from Sol Wachtler, supra note 95. The letter indicated that "certain members of our Court have expressed concern" that the language should be changed to restrict state court certifications to those from state courts of last resort.
128. N.Y. Legis. Rec. and Index, at A 609 (1984).
129. N.Y. Const. art. XIX, § 1.
130. The resolutions passed in 1985 - which had, as required, the identical language to those passed in 1984 - were N.Y. Senate Bill 3620 (1985) and N.Y. Assembly Bill 5453 (1985). The resolution passed the Senate on April 30, 1985, and the Senate version substituted for the Assembly version on June 17. That same day, the Assembly passed the resolution. N.Y. Legis. Rec. and Index, at S 306 (1985).
131. N.Y. Const. art. VI, § 3(b), cl. 9. The amendment, which was on the ballot on November 5, 1985, passed by a vote of 1,249,238 to 654,198. Manual for the use of the Legislature of the State of New York (1988-89), at 216; Voters Approve Court Question by Big Margin, N.Y. L.J., Nov. 7, 1985, at 1 (reporting that, with ninety-six percent of the vote counted, 1,130,092 voted in favor of the amendment, and 601,055 voted against it). Before a constitutional amendment is put to the voters in New York, the Attorney General's office prepares a plain-language abstract of the amendment, which the State Board of Elections may then alter. Telephone Interview by Frances Murray, Librarian, Court of Appeals of the State of New York, with Lew A. Millenbach, Office of the Attorney General of the State of New York (May 10, 2000); accord, Telephone Interview by Frances Murray with Peter S. Kosinski, Deputy Executive Director, New York State Board of Elections (May 15, 2000). The abstract disseminated to the voters regarding the certification amendment read: On occasion, an unresolved question of New York law may determine the outcome of a case pending before a court of another state or a federal court. This amendment would expand the jurisdiction of New York's highest court, the Court of Appeals, by permitting it to answer such questions at the request of the United States Supreme Court, a court of appeals of the United States or the highest court of another state. A yes vote on the question below would indicate your approval of the amendment to enlarge the jurisdiction of the Court of Appeals to permit it to answer such questions. A no vote would indicate your disapproval. New York voters were busy at the ballot on Election Day 1985, as the certification procedure was one of five constitutional amendments confronting them that day. See Carroll, supra note 92.
132. N.Y. Const. art. VI, § 3(b), cl. 9. The amendment, which was on the ballot on November 5, 1985, passed by a vote of 1,249,238 to 654,198. Manual for the use of the Legislature of the State of New York (1988-89), at 216; Voters Approve Court Question by Big Margin, N.Y. L.J., Nov. 7, 1985, at 1 (reporting that, with ninety-six percent of the vote counted, 1,130,092 voted in favor of the amendment, and 601,055 voted against it). Before a constitutional amendment is put to the voters in New York, the Attorney General's office prepares a plain-language abstract of the amendment, which the State Board of Elections may then alter. Telephone Interview by Frances Murray, Librarian, Court of Appeals of the State of New York, with Lew A. Millenbach, Office of the Attorney General of the State of New York (May 10, 2000); accord, Telephone Interview by Frances Murray with Peter S. Kosinski, Deputy Executive Director, New York State Board of Elections (May 15, 2000). The abstract disseminated to the voters regarding the certification amendment read: On occasion, an unresolved question of New York law may determine the outcome of a case pending before a court of another state or a federal court. This amendment would expand the jurisdiction of New York's highest court, the Court of Appeals, by permitting it to answer such questions at the request of the United States Supreme Court, a court of appeals of the United States or the highest court of another state. A yes vote on the question below would indicate your approval of the amendment to enlarge the jurisdiction of the Court of Appeals to permit it to answer such questions. A no vote would indicate your disapproval. New York voters were busy at the ballot on Election Day 1985, as the certification procedure was one of five constitutional amendments confronting them that day. See Carroll, supra note 92.
133. N.Y. Const. art. XIX, § 1 ("[I]f the people shall approve and ratify such amendment or amendments by a majority of the electors voting thereon, such amendment or amendments shall become a part of the constitution on the first day of January next after such approval.").
134. N.Y. Const. art. VI, § 3(b), cl. 9.
135. See Memorandum dated April 23, 1984, attached to Letter from Sol Wachtler, Judge, New York Court of Appeals, to Gordon Howe, II, Assistant Counsel to Senate Majority Leader (Apr. 27, 1984) (expressing unanimous support of the bill).
136. Amendments enacted in 1985, and effective January 1, 1986 - the same day as the certification amendment - eliminated several categories of civil appeals as of right. See Act of July 11, 1985, ch, 300, § 1, 1985 N.Y. Laws 2182; N.Y. C.P.L.R. 5601 (McKinney 1995). At present, a party may appeal as of right in a civil case when two judges at the New York Supreme Court, Appellate Division (an intermediate appellate court) dissent on a question of law, or a substantial constitutional question is directly at issue in an appellate division order. See N.Y. C.P.L.R. 5601. Prior to the 1985 amendments, a party in a civil case could also appeal when a single justice below dissented, when the appellate division reversed the judgment or order appealed from, or when the appellate division substantially modified the judgment or order of the court below. See Act of July 11, 1985, supra. On the criminal side, all non-capital appeals to the court of appeals are by permission only. See N.Y. Crim. Proc. Law §§ 450.90, 460.20 (McKinney 1994). A defendant who is sentenced to death, by contrast, may appeal as of right directly to the court of appeals. N.Y. Const. art. VI, § 3(b); N.Y. Crim. Proc. Law § 450.70.
137. See Memorandum dated April 23, 1984, supra note 122 (noting that, if the legislation restricting appeals as of right to the Court of Appeals was not enacted, the court "would, of necessity, have to limit the amount of certified questions we would accept").
138. See id. ("[W]e believe that an essential requirement of the proposed legislation is to allow this Court to establish its own rules with respect to the selection of those certified questions which this Court will address"). In the early days of interjurisdictional certification, the contention that certified questions seek advisory opinions was "[p]robably the most damaging argument against the use of certification." Corr & Robbins, supra note 28, at 419. This concern is minimized, however, by the requirement that the certified questions of New York law "may be determinative." N.Y. Ct. R. § 500.17(b) (N.Y. Ct. App.) (McKinney 2000). Furthermore, as one early commentator noted: In inter-jurisdictional certification . . . the answer is responsive to a question which was presented in actual litigation and presumably was posed nonabstractly by a federal court bound to solicit an answer in accordance with a standard at least as stringent as the state's own justiciability requirement. Most significantly, that answer will determine the rights of federal court parties, will have res judicata and stare decisis effect, and will authoritatively settle state law on the question. Levin, supra note 29, at 357. Most state courts that have considered the issue have concluded that answers to certified questions are not advisory opinions. See, e.g., W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 811 P.2d 627, 633 (Or. 1991) (stating that while the court's authority does not extend to advisory opinions, it does extend to certified questions); Schlieter v. Carlos, 775 P.2d 709, 710 (N.M. 1989) (finding that the intent behind certification is to avoid issuing advisory opinions).
139. N.Y. Const. art. VI, § 3(b), cl. 9.
140. See 1986 Annual Report of the Clerk of the Court to the Judges of the N.Y. Court of Appeals 13 (noting that "the flexible rule adopted by the Court" would allow the court to tailor procedures to "the peculiar circumstances of the certification").
141. N.Y. Ct. R. § 500.17(a). The provision was effective January 1, 1986, the same day as the certification amendment. The parallel rule of the Second Circuit, the most frequent sender of certified questions to the state Court of Appeals, provides that the Circuit Court may, on motion of a party or sua sponte, "certify to the highest court of a state an unsettled and significant question of state law that will control the outcome of a case pending before this Court." N.Y. Ct. R. § 0.27 (2d Cir.) (McKinney 2000). The rule further provides that certification "will be in accordance with the procedures provided by the state's legislature or highest state court rules," and that certification "may stay the proceedings in this Court pending the state court's decision whether to accept the certification and its decision of the certified question." Id.
142. The Uniform Certification of Questions of Law Act, in contrast, restricts the ability of a state high court to answer certified questions to those situations where "there is no controlling appellate decision, constitutional provision, or statute of this State." Unif. Certification of Questions of Law Act § 3 (1995).
143. N.Y. Ct. R. § 500.17(b) (N.Y. Ct. App.) (McKinney 2000).
144. Id. at § 500.17(c). If any additional papers are required for proper review of the question, the court, through the Clerk, may request them. Id. at § 500.17(e). Furthermore, if the constitutionality of a New York statute affecting the public interest is involved, and neither the state nor a state agency is a party, the Clerk of the Court must notify the state Attorney General. Id. at § 500.17(f).
145. 1998 Annual Report of the Clerk of the Court to the Judges of the N.Y. State Court of Appeals 7. One commentator has suggested that this rule is "contrary to the will of the people of New York" reflected in the constitutional amendment allowing the court to accept certified questions, as the constitutional provision does not state -as does the Court of Appeals Rule-that the court should review the merits of the question in deciding whether to accept it. Jack J. Rose, Note, Erie R.R. and State Power to Control State Law: Switching Tracks to New Certification of Questions of Law Procedures, 18 Hofstra L. Rev. 421, 432-33 (1989). This criticism ignores the express grant of constitutional authority to the court to "adopt and from time to time . . . amend a rule to permit the court to answer questions of New York law certified to it." N.Y. Const. art. VI, § 3(b), cl. 9 (emphasis added). The constitution leaves to the court the procedures for accepting certified questions, and by the use of the word "permit," clearly contemplates the Court's rejection of questions that would not further the salutary goals of certification or which would unduly burden the Court's docket. Indeed, no state has adopted a procedure that requires its high court to accept a certified question.
146. 1998 Annual Report of the Clerk of the Court to the Judges of the New York State Court of Appeals 7. The court makes a threshold determination of the procedure to follow for deciding the merits. N.Y. Ct. R. § 500.17(d) (N.Y. Ct. App.) (McKinney 2000). In addition to deciding a case after full briefing and oral argument, the Court of Appeals may examine the merits of an appeal, on its own motion, by an expedited procedure. Such expedited appeals may be determined on the briefs submitted to previous courts, the record and writings of the courts below and additional written submissions of counsel. See id. at § 500.4. An expedited procedure is generally used in cases governed by clear recent controlling precedent or narrow issues of law not of overriding or statewide importance, or where there are non-reviewable questions of discretion, affirmed findings of fact or non-preserved issues of law. Although these factors are not likely to be present when the court accepts a certified question of law, the expedited procedure was used by the Court of Appeals in resolving the first question certified to it, in Kidney v. Kolmar Laboratories, Inc., 68 N.Y.2d 343 (1986). See N.Y. Ct. R. § 500.4(b).
147. See N.Y. Ct. R. § 500.17(g).
148. See Goldschmidt, supra note 73, at 15-16 (tbl. 2).
149. See id. at 16-17 (tbl. 2); see also Cal. R. Ct. 29.5(a) (West rev. ed. 2000) (stating that the California Supreme Court may answer certified questions of law from the court of last resort of any state).
150. See Goldschmidt, supra note 73, at 15-16 (tbl. 2). The Uniform Act uses the all-encompassing phrase "court of the United States," which is meant to include all federal courts, including bankruptcy courts. Unif. Certification of Questions of Law Act § 3 (1995). A few states also allow specialized federal courts to submit certified questions of law, such as the Court of International Trade, the Bankruptcy Court, the Bankruptcy Appellate Panel, the Judicial Panel on Multidistrict Litigation, the Tax Court, and the Court of Military Appeals. See Goldschmidt, supra note 73, at 17 (tbl. 2).
151. See Memorandum of the Law Revision Comm'n, supra note 77, at 2985-86. Despite the fears of the Commission and the other jurisdictions that have excluded district court certification in order to prevent too many certified questions, certification has been used judiciously, and "there has been no avalanche even in those states which permit district court certification." Braun, supra note 28, at 957-58; see also J. Michael Medina, The Interjurisdictional Certification of Questions of Law Experience: Federal, State, and Oklahoma - Should Arkansas Follow?, 45 Ark. L. Rev. 99, 114 (1992) ("Empirical evidence from states which permit district court certification shows that state appellate dockets are not flooded by questions certified from district courts.").
152. N.Y. Ct. R. § 500.17(a) (N.Y. Ct. App.) (McKinney 2000).
153. Id. at § 500.17(b). The Uniform Certification of Questions of Law Act has a more permissive standard, allowing a state high court to answer a certified question of law "if the answer may be determinative of an issue in pending litigation." Unif. Certification of Questions of Law Act § 3 (1995) (emphasis added).
154. Bassler & Potenza, supra note 19, at 551; see also Robbins, supra note 48, at 179-80 (arguing that the "must be determinative" language "leads to counterproductive battles concerning which questions should be answered. The answering and certifying courts then become bogged down in procedural, rather than substantive, determinations.").
155. Robbins, supra note 48, at 180. The dispositive significance of the issue in the pending federal case is clearly important to the state court. Indeed, the "may be determinative" requirement has contributed to the rejection of certified questions in two cases, Retail Software Servs., Inc. v. Lashlee, 71 N.Y.2d 788 (1988), and Yesil v. Reno, 92 N.Y.2d 455 (1998). See infra notes 213-23, 243-48 and accompanying text. The state court, nevertheless, has been cognizant of the distinction between "may be determinative" and the stricter "must be determinative." For example, in Hertz Corp. v. City of New York, 967 F.2d 54 (2d Cir. 1992), the question certified was whether a local law enacted by the New York City Council was preempted by provisions of New York's General Business Law enacted by the state legislature. The state court accepted the question, even though it was not necessarily determinative of the appeal. If the court answered in the negative, which it did, the Second Circuit still could have struck down the local law on federal preemption grounds, as plaintiff claimed the law also violated the federal Constitution and Sherman Antitrust Act. See id. at 56. On the other hand, if the certified question were answered in the affirmative, the local law would be invalid and the Second Circuit would not have to reach the federal preemption questions. Id. at 57. Thus, while the question would not have satisfied a "must be determinative" standard, it did satisfy the "may be determinative" standard.
156. Statistics in this article concerning certification to the New York Court of Appeals are accurate as of Oct. 13, 2000. Citations to the questions received by the New York State Court of Appeals and its responses are provided in Appendix B infra. Between 1990 and 1994, the average number of questions certified by United States Circuit Courts of Appeals nationwide was 14.8. During that period, the Second Circuit certified thirteen questions to the state Court of Appeals. See Goldschmidt, supra note 73, at 28.
157. See Memorandum from Laurene L. Tacy, Assistant Deputy Clerk of the Court of Appeals, to Stuart M. Cohen, Clerk of the Court of Appeals (June 30, 2000). Through the first half of 2000, when the court accepted two of the three questions received, the average time from certification to acceptance or rejection was approximately five weeks. Id.
158. But see, e.g., Bruce M. Selya, Certified Madness: Ask a Silly Question . . . , 29 Suffolk U. L. Rev. 677, 681 n.18, 688-89 (1995) (discussing cases in which state courts took a long time to respond to certified questions, and noting that, while certification may be faster than abstention, it still is not as fast as federal court determination of all issues before it).
159. Kidney v. Kolmar Labs., No. 86-7194, slip op. at 2-3 (2d Cir. July 7, 1986).
160. Id. at 3.
161. See Kidney v. Kolmar Labs., 68 N.Y.2d 343, 344 (1986).
162. N.Y. Soc. Services Law § 104-b[2] (McKinney 1993).
163. Kidney, 68 N.Y.2d at 345.
164. See id. at 346-47.
165. Kidney v. Kolmar Labs., 808 F.2d 955, 957 (2d Cir. 1987).
166. See Wildenstein & Co. v. Wallis, 79 N.Y.2d 641 (1992).
167. See Madden v. Creative Servs., Inc., 84 N.Y.2d 738 (1995).
168. See Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449 (1995).
169. See Engel v. CBS, Inc., 93 N.Y.2d 195 (1999).
170. 20 F.3d 66 (2d Cir. 1994).
171. See Bocre Leasing Corp. v. Gen. Motors Corp., 84 N.Y.2d 685 (1995).
172. Id. at 694.
173. 476 U.S. 858 (1986).
174. Bocre Leasing, 84 N.Y.2d at 693-94.
175. 42 F.3d 106 (2d Cir. 1994), certified question answered in 87 N.Y.2d 248 (1995).
176. In addition to Bocre and Denny, the Second Circuit has, on several occasions, certified questions containing policy choices "singularly appropriate for resolution by the New York Court of Appeals." Banque Worms v. BankAmerica Int'l, No. 90-7106/7107, slip op. at 5 (2d Cir. May 30, 1990); see, e.g., Royal Indem. Co. v. Providence Wash. Ins. Co., No. 97-7301 (2d Cir. Mar. 6, 1998) (validity of exclusion in truckers' insurance policy); West-Fair Elec. Contractors v. Aetna Cas. & Sur. Co., 49 F.3d 48 (2d Cir. 1995) (enforcement of liens); Fed. Home Loan Mortgage Corp. v. N.Y. State Div. of Hous. & Cmty. Renewal, No. 94-7677 (2d Cir. Apr. 28, 1995) (rent stabilization); Madden v. Creative Servs., Inc., 24 F.3d 394 (2d Cir. 1994) (third party intrusion into attorney-client privilege); Westinghouse Elec. Corp. v. New York City Transit Auth., 990 F.2d 76 (2d Cir. 1993) (validity of contractual alternative dispute resolution provision authorizing the employee of a party to make binding decisions on all questions arising under the contract); Hertz Corp. v. City of New York, 967 F.2d 54 (2d Cir. 1992) (preemption of municipal legislation by state legislation); Home Ins. Co. v. Am. Home Prods. Corp., 873 F.2d 520, 522 (2d Cir. 1989) (duty of insurer to "reimburse insured for punitive damages awarded [in an] out-of-state judgment"); and Banque Worms, No. 90-7106/7107, slip op. at 5 (ability to recover money sent in a mistaken wire transfer).
177. Denny, 87 N.Y.2d at 253-54.
178. Id. at 255.
179. Id.
180. For commentary on Denny, see Peter J. Ausili, Ramifications of Denny v. Ford Motor Co., 15 Touro L. Rev. 735 (1999); Sean M. Flower, Is Strict Product Liability in Tort Identical to Implied Warranty in Contract in the Context of Personal Injuries?: Denny v. Ford Motor Company, 62 Mo. L. Rev. 381 (1997); Victor E. Schwartz & Mark A. Behrens, An Unhappy Return to Confusion in the Common Law of Products Liability - Denny v. Ford Motor Company Should Be Overturned, 17 Pace L. Rev. 359 (1997).
181. For commentary on Denny, see Peter J. Ausili, Ramifications of Denny v. Ford Motor Co., 15 Touro L. Rev. 735 (1999); Sean M. Flower, Is Strict Product Liability in Tort Identical to Implied Warranty in Contract in the Context of Personal Injuries?: Denny v. Ford Motor Company, 62 Mo. L. Rev. 381 (1997); Victor E. Schwartz & Mark A. Behrens, An Unhappy Return to Confusion in the Common Law of Products Liability - Denny v. Ford Motor Company Should Be Overturned, 17 Pace L. Rev. 359 (1997).
182. For commentary on Denny, see Peter J. Ausili, Ramifications of Denny v. Ford Motor Co., 15 Touro L. Rev. 735 (1999); Sean M. Flower, Is Strict Product Liability in Tort Identical to Implied Warranty in Contract in the Context of Personal Injuries?: Denny v. Ford Motor Company, 62 Mo. L. Rev. 381 (1997); Victor E. Schwartz & Mark A. Behrens, An Unhappy Return to Confusion in the Common Law of Products Liability - Denny v. Ford Motor Company Should Be Overturned, 17 Pace L. Rev. 359 (1997).
183. 132 F.3d 124 (2d Cir. 1998).
184. The jury concluded that, between defendants, Hobart was 5% liable, and plaintiff's employer, who owned the grinder when the guard was removed, was 95% liable. The jury subsequently assigned one-third of the responsibility to plaintiff. Id. at 125-26.
185. See, e.g., Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 297 (1992) ("[A] plaintiff may recover in strict products liability or negligence when a manufacturer fails to provide adequate warnings regarding the use of its product . . . .").
186. Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 475 (1980).
187. See Cover v. Cohen, 61 N.Y.2d 261, 274-75 (1984).
188. See Liriano, 132 F.3d at 129-31 (citing cases).
189. Id. at 132.
190. Liriano v. Hobart Corp., 92 N.Y.2d 232, 240 (1998) (citing Lugo v. LJN Toys, Ltd., 75 N.Y.2d 850 (1990)).
191. See id; see also Cover, 61 N.Y.2d at 274-75 (noting that a manufacturer may be liable for failing to warn of risks that the manufacturer learns of after the sale). The Court of Appeals declined to answer the second part of the Second Circuit's question - whether a manufacturer's liability on a failure to warn theory would be barred as a matter of law on the facts of this case - as a resolution of this issue required a fact-specific inquiry but did not involve any unsettled New York law. Liriano, 92 N.Y.2d at 243. For a detailed analysis of Liriano, see Hildy Bowbeer & David S. Killoran, Liriano v. Hobart Corp.: Obvious Dangers, the Duty to Warn of Safer Alternatives, and the Heeding Presumption, 65 Brook. L. Rev. 717 (1999).
192. 127 F.3d 295 (2d Cir. 1997), certified question answered in 91 N.Y.2d 685 (1998).
193. Rooney, 127 F.3d at 296-98. For a discussion of at-will employment, see Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333-36 (1987).
194. 92 N.Y.2d 458 (1998).
195. Id. at 460. The New York U.C.C. provides "[w]hen reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return." N.Y. U.C.C. § 2-609(1) (McKinney 1993).
196. Norcon Power, 92 N.Y.2d at 468. The court limited its holding to long-term commercial contracts that are "complex and not reasonably susceptible of all security features being anticipated, bargained for and incorporated." Id.
197. Messner Vetere Berger McNamee Schmetterer Euro RSCG Inc. v. Aegis Group PLC, 93 N.Y.2d 229 (1999).
198. Westinghouse Elec. Corp. v. New York City Transit Auth., 82 N.Y.2d 47 (1993).
199. West-Fair Elec. Contractors v. Aetna Cas. & Sur. Co., 87 N.Y.2d 148 (1995).
200. Insurance contracts, a staple of the state court docket, have been a steady source of certified questions. The court has been asked to determine whether "'a commercial general liability policy [was] excess to the third-party liability coverage provided by a homeowner's policy,'" where both policies covered the subject loss, see Great N. Ins. Co. v. Mount Vernon Fire Ins. Co., 92 N.Y.2d 682, 684 (1999); "'[w]hether a non-trucking-use exclusion from coverage in an insurance policy obtained by the owner of a commercial vehicle is valid'" in New York, see Royal Indem. Co. v. Providence Wash. Ins. Co., 92 N.Y.2d 653, 656 (1998); whether conduct fell within a clause excluding coverage for assault and battery, see Mount Vernon Fire Ins. Co. v. Creative Hous. Ltd., 88 N.Y.2d 347 (1996); whether a reinsurer must "'prove prejudice before it can successfully invoke'" a late-notice defense, see Unigard Sec. Ins. Co. v. N. River Ins. Co., 79 N.Y.2d 576, 581 (1992); and whether an insurer is required to reimburse the insured for punitive damages awarded in an out-of-state judgment, see Home Ins. Co. v. Am. Home Prods. Corp., 75 N.Y.2d 196 (1990).
201. Despite the enduring importance of the common law, the proliferation of legislation during the last half of the twentieth century has made statutory interpretation "likely the principal task engaged in by state courts." Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1, 18-19 (1995); see also Guido Calabresi, A Common Law for the Age of Statutes 1 (Harv. Univ. Press 1982) (discussing the "'statutorification' of American law").
202. Despite the enduring importance of the common law, the proliferation of legislation during the last half of the twentieth century has made statutory interpretation "likely the principal task engaged in by state courts." Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1, 18-19 (1995); see also Guido Calabresi, A Common Law for the Age of Statutes 1 (Harv. Univ. Press 1982) (discussing the "'statutorification' of American law").
203. Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 77 N.Y.2d 28 (1990).
204. Fed. Home Loan Mortgage Corp. v. N.Y. State Div. of Hous. & Cmty. Renewal, 87 N.Y.2d 325 (1995).
205. Ins. Co. of N. Am. v. ABB Power Generation, Inc., 91 N.Y.2d 180 (1997).
206. Joblon v. Solow, 91 N.Y.2d 457 (1998).
207. Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554 (1999).
208. 94 N.Y.2d 436 (2000).
209. Id. at 439.
210. Section 51 of the Civil Rights Law provides, in relevant part, that "[a]ny person whose name, portrait, picture or voice is used within this state for . . . the purposes of trade without the written consent first obtained as above provided [in section 50] may . . . sue and recover damages for any injuries sustained by reason of such use." N.Y. Civ. Rights Law § 51 (McKinney 1992 and Supp. 2000).
211. Howell v. N.Y. Post Co., 81 N.Y.2d 115, 123 (1993); Stephano v. News Group Publ'ns, Inc., 64 N.Y.2d 174, 184 (1984).
212. Finger v. Omni Publ'ns Int'l Ltd., 77 N.Y.2d 138, 143 (1990).
213. See, e.g., Spahn v. Julian Messner, Inc., 21 N.Y.2d 124 (1967) (allowing recovery under section 51 of New York's Civil Rights Law when the presentation is knowingly fictionalized); Binns v. Vitagraph Co. of Am., 210 N.Y. 51, 57 (1913) ("A picture within the meaning of the statute is not necessarily a photograph . . . , but includes any representation . . . .").
214. Messenger v. Gruner + Jahr Printing & Publ'g, 175 F.3d 262, 266 (2d Cir. 1999). The federal court also asked whether there are any additional limitations on plaintiff's cause of action that precluded her recovery in the case. Id. In light of the state court's response to the first certified question, it was unnecessary to answer the second. See infra notes 199-200 and accompanying text.
215. Messenger v. Gruner + Jahr Printing & Publ'g, 94 N.Y.2d 436, 446 (2000).
216. The Second Circuit ultimately vacated the District Court's judgment and remanded for further proceedings in accordance with the state court's answer. See Messenger v. Gruner + Jahr Printing & Publ'g, 208 F.3d 122, 124 (2d Cir. 2000), petition for cert, filed (May 30, 2000) (No. 99-1915).
217. In the first five years of the procedure's availability, the state Court of Appeals received certified questions only seven times. See infra Appendix B.
218. See The Comm. on Fed. Courts of the Ass'n of the Bar of the City of New York, 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, 111, 125 (1987) (noting that "concern about delay has been one of the reasons cited by various courts which have declined to certify questions," concluding that certification "would in most cases merely add to the time and expense of resolving disputes and frustrate litigants who are properly before the federal courts," and recommending that the Second Circuit certify only in a "rare case"); see also Larry M. Roth, Certified Question from the Federal Courts: Review and Re-proposal, 34 U. Miami L. Rev. 1 (1979) (arguing that Florida should establish a specialized court to deal with certified questions).
219. See The Comm. on Fed. Courts of the Ass'n of the Bar of the City of New York, 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, 111, 125 (1987) (noting that "concern about delay has been one of the reasons cited by various courts which have declined to certify questions," concluding that certification "would in most cases merely add to the time and expense of resolving disputes and frustrate litigants who are properly before the federal courts," and recommending that the Second Circuit certify only in a "rare case"); see also Larry M. Roth, Certified Question from the Federal Courts: Review and Re-proposal, 34 U. Miami L. Rev. 1 (1979) (arguing that Florida should establish a specialized court to deal with certified questions).
220. See Schneider, supra note 48, at 294.
221. Not all courts state their reasons for declining certified questions. See, e.g., Conn. Performing Arts Found., Inc. v. Brown, 801 F.2d 566, 568 (2d Cir. 1986) (noting that the Connecticut Supreme Court rejected a certified question in that case without comment); Schneider, supra note 48, at 315 ("The Michigan Supreme Court, to say the least, is not very receptive to the certified question. Not only does the court refuse to answer most questions, but it generally fails to state the reasons for its refusal."); Selya, supra note 145, at 681-82 n.19 (citing cases in which state courts gave little or no reason for rejecting certified questions).
222. Of course, rejection of a certified question is not a decision on the merits, and therefore offers no clue as to how the state court would answer the question. See Richard Alan Chase, Note, A State Court's Refusal to Answer Certified Questions: Are Inferences Permitted?, 66 St. John's L. Rev. 407, 422 (1992).
223. 69 N.Y.2d 310 (1987).
224. The questions were: (a) whether "loss of normal pursuits and pleasures of life" or "loss of enjoyment of life" is a separately compensable item of damages apart from other items, such as pain and suffering; and (b) if so, whether a claimant must possess cognitive awareness in order to recover for such a loss. Id. at 311 n.[*].
225. See McDougald v. Garber, 135 A.D.2d 80, 82 (N.Y. App. Div. 1988).
226. McDougald v. Garber, 132 Misc. 2d 457 (N.Y. Sup. Ct. 1986).
227. Rufino, 69 N.Y.2d at 312. The Court of Appeals eventually did confront the questions presented in Rufino through the "normal process" of the McDougald appeal. The Appellate Division affirmed the trial court in McDougald, holding that "loss of enjoyment is a damage element separate and distinct from pain and suffering, for which compensation may be awarded despite the injured party's lack of cognitive awareness." McDougald, 135 A.D.2d at 82. After the state Court of Appeals declined to answer the certified questions in Rufino, the Second Circuit followed "the well reasoned opinion" of the lower courts in McDougald. Rufino v. United States, 829 F.2d 354, 361 (2d Cir. 1987). When the state Court of Appeals decided McDougald, however, it disagreed on both questions, holding that cognitive awareness is a prerequisite to recovery, and that a jury should not make a "loss of enjoyment of life" award separate from its pain and suffering award. McDougald v. Garber, 73 N.Y.2d 246, 254 (1989).
228. 838 F.2d 661 (2d Cir. 1988).
229. N.Y. Gen. Bus. Law § 686 (McKinney 1984). The statute provides: Any person who shall offer to sell or sell a franchise in this state as a franchisor, subfranchisor or franchise sales agent shall be deemed to have irrevocably appointed the secretary of state as his or its agent upon whom may be served any summons, complaint . . . or other process directed to such person . . . in any action, investigation, or proceeding which arises under this article or a rule hereunder, with the same force and validity as if served personally on such person.
230. See Retail Software Servs., Inc. v. Lashlee, 71 N.Y.2d 788, 789 (1988).
231. See id. at 790; N.Y. C.P.L.R. § 302(a) (McKinney 1990).
232. See Retail Software Servs., 838 F.2d at 662.
233. Id. (citations omitted).
234. Retail Software Servs., 71 N.Y.2d at 789.
235. Id. (quoting N.Y. Const. art. VI, § 3(b)(9)).
236. Id. at 790-91.
237. See Retail Software Servs., Inc. v. Lashlee, 854 F.2d 18, 21 (2d Cir. 1988).
238. Retail Software Servs., 71 N.Y.2d at 791.
239. Id. Without the constitutional issue before it, the court cannot effectively implement the rule of construction that courts "should, of course, interpret a statute so as to avoid constitutional infirmities, if at all possible." People v. Ferber, 52 N.Y.2d 674, 678 (1981).
240. After determining that New York's long-arm statute applied, the circuit court applied the Supreme Court's "minimum contacts" jurisprudence, concluding that the exercise of jurisdiction in this case would not violate the Due Process Clause. Retail Software Servs., 854 F.2d at 22-24.
241. David D. Siegel, The Second Circuit Gets Some Mixed Signals From the New York Court of Appeals About Certifying New York Law Questions, 346 N.Y. St. L. Dig. 1 (Oct. 1988).
242. See Tunick v. Safir, 209 F.3d 67, 99 (2d Cir. 2000) (characterizing as "obviously unpleasant" the Court of Appeals' "task of refusing to accept questions certified by this Court") (Van Graafeiland, J., dissenting).
243. See, e.g., Conn. Performing Arts Found., Inc. v. Brown, 801 F.2d 566, 568 (2d Cir. 1986) ("Although resolution of these questions of Connecticut law by the Connecticut Supreme Court would appear to have been in the interest of judicial economy, the supreme court denied certification without comment. Left without guidance from the state on this question of state law portending serious consequences for a significant cultural institution in the State of Connecticut, we must now, for better or for worse, address [the questions].").
244. Despite the large number of cases the state Court of Appeals has accepted, the rare declination still presents the possibility of chilling the certification atmosphere. See Rangolan v. County of Nassau, Nos. 99-9343, 99-9397, 2000 WL 777952, at *6 (2d Cir. June 15, 2000) ("I know that in the current climate, i.e., in light of [the declination of a certification request in] Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000), [certification] may not be a workable recommendation.").
245. See Home Ins. Co. v. Am. Home Prods. Corp., 873 F.2d 520 (2d Cir. 1989).
246. See Alexander & Alexander Servs., Inc. v. Lloyd's Sydicate 317, 902 F.2d 165 (2d Cir. 1990); Banque Worms v. BankAmerica Int'l, No. 90-7106/7107 (2d Cir. May 30, 1990).
247. See Ass'n of Surrogates and Supreme Court Reporters v. New York, No. 90-9036 (2d Cir. Mar. 21, 1991); Wildenstein & Co., Inc. v. Wallis, 949 F.2d 632 (2d Cir. 1991); Unigard Security Ins. Co., Inc. v. N. River Ins. Co., 949 F.2d 630 (2d Cir. 1991).
248. See Hertz Corp. v. City of New York, 967 F.2d 54 (2d Cir. 1992); Gonzales v. Armac Indus., Ltd., 970 F.2d 1123 (2d Cir. 1992); Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47 (2d Cir. 1992).
249. 77 F.3d 574 (2d Cir. 1996), certified question declined in 88 N.Y.2d 254 (1996).
250. See id. at 575-76.
251. See 29 U.S.C. § 1132(a)(3)(B), (e)(1) & (f).
252. See Grabois, 77 F.3d at 576.
253. Id. at 577-78.
254. Id. at 578.
255. Grabois v. Jones, 88 N.Y.2d 254, 255 (1996).
256. Id.
257. Grabois v. Jones, 89 F.3d 97, 101 (2d Cir. 1996).
258. Id. at 100.
259. Grabois v. Jones, No. 94-2070, 1998 WL 158756, at *4 (S.D.N.Y. Apr. 3, 1998).
260. 172 F.3d 39, 1998 WL 667661 (2d Cir. Sept. 18, 1998), certified question declined in 92 N.Y.2d 455 (1998).
261. See id. at *1.
262. Yesil, 92 N.Y.2d at 457.
263. Id. at 456-57.
264. Id. at 457; see David D. Siegel, Court of Appeals Refuses to Answer Two Questions Certified by Second Circuit, One Because Too Loose and the Other Because Likely to Arise Only in Federal Court, 470 N.Y. St. L. Dig. 1 (Feb. 1999) ("A response to the question would be like an opinion containing nothing but dicta. . . . For the New York Court of Appeals to try to formulate a list of all the possibilities [of contacts relevant to long-arm jurisdiction] would be unwise, and its answer in any event a tome.").
265. See Yesil v. Reno, 175 F.3d 287, 288-89 (2d Cir. 1999).
266. 209 F.3d 67 (2d Cir. 2000), certified question declined in 94 N.Y.2d 709 (2000).
267. Id. at 69.
268. Id.
269. N.Y. Penal Law §§ 245.01, 245.02 (McKinney 2000).
270. Tunick, 209 F.3d at 69.
271. Id. at 68.
272. Id. at 71 (internal quotation marks and citation omitted).
273. The Court's decision was made on its own, not at the request of either party. Id. at 89 n.18.
274. Id. at 90.
275. See id. at 71 (discussing People v. Gilmore, 120 Misc. 2d 741 (1983) and People v. Wilhelm, 69 Misc. 2d 523 (1972)).
276. Id. at 73; see supra notes 58-61 and accompanying text (discussing Arizonans for Official English v. Ariz., 520 U.S. 43 (1997)).
277. See Tunick, 209 F.3d at 81-84.
278. Id. at 85, 87.
279. Id. at 89.
280. Id. at 95.
281. Id. at 96 (emphasis in original).
282. See id.; see also id. at 99-100 (Van Graafeiland, J., dissenting).
283. Id. at 96 (Sack, J., concurring).
284. Id. at 89; see also SG Cowen Sees. Corp. v. Messih, 2000 WL 1174969, at *7 n.1 (2d Cir. Aug. 18, 2000) (citing Tunick v. Safir, and declining to certify question because certification not deemed feasible in light of need for expedition).
285. Tunick v. Safir, 94 N.Y.2d 709, 711 (2000).
286. Id.
287. Id. at 712. Once again, in declining the questions, the court underscored the great value in New York's certification procedure, noting that it "can provide the requesting court with timely, authoritative answers to open questions of New York law, facilitating the orderly development and fair application of the law and preventing the need for speculation." Id. at 711-12.
288. See Tunick v. Safir, No. 99-7823, 2000 U.S. App. LEXIS 11088 (2d Cir. May 19, 2000).
289. See Shaila K. Dewan, Live! Nude! And Legal! Artist Gets his Naked Photo, N.Y. Times, June 5, 2000, at B3.
290. 119 F.3d 148 (2d Cir. 1997).
291. Id. at 154.
292. See id. at 153-57 (citing Forni v. Ferguson, 232 A.D.2d 176 (1st Dep't 1996) and Perkarski v. Donovan, Nos. 95-11161, slip op. (N.Y. Sup. Ct. Oneida County Sept. 27, 1995)).
293. Id. at 157 (Calabresi, J., dissenting).
294. Id.
295. Id. at 157-59. According to Judge Calabresi, forum shopping when there is authority in the intermediate state courts, but not the state high court, will frequently lead to a funneling of all similar litigation into federal court. "If the federal court treats the plaintiff more favorably than the state tribunal would, then the plaintiff always files in federal court; similarly any departure in the manufacturer's favor leads the defendant to remove any suit filed in state court." Id. at 158 (Calabresi, J., dissenting) (quoting Todd v. Société BIC, S.A., 9 F.3d 1216, 1222 (7th Cir. 1993)).
296. 836 F.2d 103 (2d Cir. 1987), cert. denied, 486 U.S. 1056 (1988).
297. Id. at 106 (citing DeWeerth v. Baldinger, 658 F. Supp. 688 (S.D.N.Y. 1987)).
298. Id. at 108 n.5. The court did not state whether certification was raised by a party or sua sponte.
299. Id. at 110.
300. 77 N.Y.2d 311 (1991).
301. Solomon R. Guggenheim Found, v. Lubell, 153 A.D.2d 143 (App. Div. 1st Dep't 1990).
302. See, e.g., MacFawn v. Kresler, 88 N.Y.2d 859, 860 (1996) (holding that dismissal of grand larceny charge against an employee due to insufficient evidence did not constitute termination in favor of employee for purposes of malicious prosecution action against employer).
303. See N.Y. Crim. Proc. Law § 30.30 (McKinney 1992) (providing for dismissal of a criminal prosecution if the state is not ready for trial within specified time periods).
304. 118 F.3d 938 (2d Cir. 1997), cert. denied, 522 U.S. 1115 (1998).
305. Id. at 949-50.
306. Id. at 950. The court did not state whether either party requested certification.
307. Before the state Court of Appeals ultimately decided the issue, other federal courts cited Murphy in deciding the same question. See, e.g., Posr v. Court Officers Shield #207, 180 F.3d 409, 417-18 (2d Cir. 1999); Kurschus v. Painewebber, Inc., 16 F. Supp. 2d 386, 392-93 (S.D.N.Y. 1998).
308. 2000 WL 893310 (N.Y. July 6, 2000).
309. Id. at *5.
310. Id. at *6.
311. The Second Circuit has discussed its decision not to certify in several additional cases. In Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531 (2d Cir. 1997), the court noted that the defendant, who disagreed with the court's choice-of-law holding, was the party that had removed the case to federal court in the first place, and that neither party asked the court to certify the question to the state high court. Id. at 1541 n.8. Furthermore, whether New York's tort or contract choice of law rules applied - the question at issue - the Second Circuit concluded it was likely that New York law governed the dispute. In Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988), the Second Circuit decided not to certify to the Connecticut Supreme Court the meaning of a statute subject to a constitutional challenge for vagueness and overbreadth, as it concluded the statute was not reasonably susceptible to a limiting interpretation. Id. at 434-36. In Lehman v. Dow Jones & Co., Inc., 783 F.2d 285 (2d Cir. 1986), the case was in an advanced procedural stage when the certification procedure became effective. The court stated: "[W]e have determined not to seek to avail ourselves of the procedure in this case, happy as we are to have it available in the future." Id. at 294 n.9. Most recently, the Second Circuit addressed its decision not to certify a question to the New York State Court of Appeals in two cases. Goodlett v. Kalishek, 2000 WL 1056066, at *6-9 (2d Cir. Aug. 1, 2000) (Feinberg, J., dissenting) ("I see no persuasive reason why, in a situation where the stakes are high and the law is arguably unclear, we should not try to make sure we properly understand New York law before proceeding further."); SG Cowen Secs. Corp. v. Messih, 2000 WL 1174969, at *7 n.1 (2d Cir. Aug. 18, 2000) (finding that certification was not feasible in light of need for prompt resolution).
312. 304 U.S. 64 (1938).
313. See Carroll Seron, Federal Judicial Center, Certifying Questions of State Law: Experience of Federal Judges 10 (1983) (reporting that eighty-four percent of judges surveyed found the procedure to be "extremely useful," and seventy-six percent gave it a "very positive" rating); Corr & Robbins, supra note 28, at 457 (noting that judges surveyed "indicated overwhelming judicial support for the certification process"); Goldschmidt, supra note 73, at 110 (judges highly satisfied with certification). Nevertheless, like most things in life, certification also has its critics. See, e.g., Selya, supra note 145, at 691 (arguing that certification has been ineffective in meeting its goals while adding to the time and cost of litigation); Yonover, supra note 31, at 316-17 (noting past criticisms of certification process and proposing procedural limitations).
314. See, e.g., Lazard Freres & Co., 108 F.3d at 1541 n.8 (noting in declining to certify that defendant, who disagreed with its holding, had removed the case to federal court); Tidler v. Eli Lilly & Co., 851 F.2d 418, 426 (D.C. Cir. 1988) (commenting that plaintiffs' choice of a federal forum "is not helpful to their request for certification"); Smigiel v. Aetna Cas. & Sur. Co., 785 F.2d 922, 924 (11th Cir. 1986) ("[T]his court is struck by an amazing irony. Aetna, which now prays for an opinion from a Florida court, petitioned to remove the case from the jurisdiction of the state courts."); Smith v. FCX, Inc., 744 F.2d 1378, 1379 (4th Cir. 1984) (noting that because plaintiff filed suit in federal court, his request for certification "comes with little grace"); Cantwell v. Univ. of Mass., 551 F.2d 879, 880 (1st Cir. 1977) ("[T]he bar should take notice that one who chooses the federal courts in diversity actions is in a peculiarly poor position to seek certification. We do not look favorably, either on trying to take two bites at the cherry by applying to the state court after failing to persuade the federal court, or on duplicating judicial effort."); Yonover, supra note 31, at 325-59.
315. No. 86-7194, slip op. (2d Cir. July 7, 1986).
316. No. 86-6175, slip op. (2d Cir. Jan. 21, 1987).
317. See Sec. Investor Prot. Corp. v. BDO Seidman, LLP, Nos. 99-7719(L), 99-7720(C), 2000 WL 713909 (2d Cir. June 5, 2000); Green v. Montgomery, No. 99-7515, 2000 WL 674757 (2d Cir. May 24, 2000); Tunick v. Safir, 209 F.3d 67 (2d Cir. 2000); Messenger v. Gruner + Jahr Printing & Publ'g, 175 F.3d 262 (2d Cir. 1999).
318. Indeed, the importance of a fully developed record was a key reason why the constitutional amendment permitting certification does not allow the state court to accept questions from federal trial courts. See supra note 98 and accompanying text.
319. N.Y. Ct. R. § 0.27 (2d Cir.) (McKinney 2000).
320. See, e.g., Engel v. CBS, Inc., 93 N.Y.2d 195, 199 (1999) (clarifying the certified question to make it more answerable); In re Southeast Banking Corp. v. First Trust of N.Y., 93 N.Y.2d 178 (1999) (same). The question posed in Southeast Banking Corp., 156 F.3d 1114 (11th Cir. 1998) - which asked for "any language" that could alert a junior creditor to its assumption of the risk-called for a potentially endless litany of relevant language. Id. at 1125. Thus, the state court recast the question, "within the procedural boundaries" of the certification. Southeast Banking Corp, 93 N.Y.2d at 181. Two questions sent by the Second Circuit in Wildenstein & Co., Inc. v. Wallis, 949 F.2d 632 (2d Cir. 1991) also were recast. The questions asked in general whether "the New York Rule Against Perpetuities applies to preemptive rights and future consignment interests in personal property," and whether "the New York common law rule against unreasonable restraints on alienation invalidates preemptive rights and future consignment interests in personal property." Id. at 636. Answers to the questions as written would merely have set forth general propositions and would not have determined whether the particular agreement at issue was invalid. The state Court of Appeals recognized, however, that the questions "must be construed in the context of the real case in controversy in order to provide meaningful and appropriate answers." Wildenstein & Co. v. Wallis, 79 N.Y.2d 641, 645 (1992).
321. See, e.g., Madden v. Creative Servs., Inc., 24 F.3d 394 (2d Cir. 1994): Though certifying to the Court of Appeals the questions as framed above, we also wish to make clear that we have no desire to restrict the Court of Appeals from considering any state law issues that it might wish to resolve in connection with this appeal. Therefore, though our immediate request is for answers to the questions as framed, we would welcome any guidance the Court of Appeals might care to provide us with respect to any state law issues presented by this appeal. Id. at 397. For similar statements, see also Sec. Investor Prot., 2000 WL 713909, at *18; Green, 2000 WL 674757, at *8; Ins. Co. of N. Am. v. ABB Power Generation Inc., 112 F.3d 70, 73 (2d Cir. 1997); Mount Vernon Fire Ins. Co. v. Creative Hous. Ltd., 70 F.3d 720, 723-24 (2d Cir. 1995); West-Fair Elec. Contractors v. Aetna Cas. & Sur. Co., 49 F.3d 48, 51 (2d Cir. 1995); Consorti v. Owens-Corning Fiberglas Corp., 45 F.3d 48, 51 (2d Cir. 1995).
322. 71 N.Y.2d 788 (1988).
323. This problem is, of course, not unique to New York. For examples from Massachusetts, see Herbert P. Wilkins, Certification of Questions of Law: The Massachusetts Experience, 74 Mass. L. Rev. 256, 257 (1989) (noting that two cases in which federal courts certified issues of statutory construction but not the "associated constitutional questions placed [Massachusetts'] Supreme Judicial Court in an awkward position" because that court tried to save the statutes to the extent constitutionally permissible).