These cases typically arise when the court before which litigation is actually pending is required to decide a matter that turns on the law of another state or jurisdiction. If that other jurisdiction's law is unclear or uncertain, a certified question can then be sent to that jurisdiction's courts to render an opinion on the question of law that arose in the court in which the actual litigation is pending. The courts to whom these questions of law are certified are typically appellate courts or state supreme courts.
Historically, the procedure under which one court certifies a question to another, arises out of the distinction in the law of England between common law courts and equity courts. At one time, these two were separate and parallel legal systems, differing in procedure and the sort of case each had primary jurisdiction over. From time to time, a legal issue would arise in one court that fell within the other's jurisdiction and expertise; in this situation, the two courts could certify legal questions to each other. This remains possible in the state of Delaware, which continues to have a separate Court of Chancery. Charles Dickens made reference to the process of the two separate courts certifying questions to each other as a part of the interminable litigation in Jarndyce v. Jarndyce which figures in the plot of Bleak House:
- Equity sends questions to law, law sends questions back to equity; law finds it can’t do this, equity finds it can’t do that; neither can so much as say it can’t do anything, without this solicitor instructing and this counsel appearing for A, and that solicitor instructing and that counsel appearing for B; and so on through the whole alphabet, like the history of the apple pie.
In Clay v. Sun Insurance Office, Ltd., the United States Supreme Court confronted a situation where a circuit court of appeals could not "make a competent guess" about how the Florida courts would construe an insurance statute. The court observed that the Florida legislature had passed a statute allowing the federal courts to certify questions of state law to the Florida Supreme Court, but that the Florida courts had not yet made a rule establishing procedures under the statute. After the Clay decision, the various states began to adopt statutes or rules allowing for the certification of questions of state law to state courts. The relatively streamlined process of sending a certified question to a state appellate court also relieves federal courts of the unwieldy procedure of Pullman abstention, under which Federal courts abstain from deciding on the constitutionality of state laws while litigation seeking the construction of those laws is pending in state courts. In 1967, a Uniform Act was first proposed to establish a standard procedure for certified questions. In Lehman Bros. v. Schein, the Supreme Court praised the certified question procedure as helping to build a cooperative judicial federalism.
As of 2014, forty-nine states, the District of Columbia, Guam, the Northern Mariana Islands, and Puerto Rico have established procedures under which questions of state and local law may be certified to their courts. Only the state supreme court of North Carolina lacks a certification process.
Certification of questions to state courts
Between state and federal courts
The typical case involving a certified question involves a Federal court, which because of diversity, supplemental, or removal jurisdiction is presented with a question of state law. In these situations, the Erie doctrine requires the Federal court that acquires jurisdiction over cases governed in part by state law to apply the substantive law of the states.
Generally, the Erie doctrine requires the Federal court to predict how the courts of a given state would rule and decide a given issue. Many states, however, allow certified questions to be addressed from the Federal court to the appellate court or state supreme court of that state, allowing the state court to decide those questions of law.
The state courts issuing these rulings do not consider the issuance of these rulings to be advisory opinions; they relate to genuine disputes, even though those disputes are actually pending in another court. Some state supreme courts have held that the state supreme court possesses an inherent judicial power to decide state law controversies submitted by other jurisdictions, even in the absence of a statute or rule authorizing these answers. Other state courts have interpreted their states' constitutions in a manner similar to the Federal interpretation of the cases and controversies clause of the United States Constitution. The Federal courts hold that this clause restricts a court's authority to rule on moot or unripe controversies over which that court may not have jurisdiction; states that follow this rule will generally not answer certified questions of state law. In some of those states, the power to issue rulings on certified questions has been granted to the courts by constitutional amendment.
Many states, by legislation or by judicial rule making, have adopted a Uniform Act called the Uniform Certification of Questions of Law Act. The uniform act provides that a state supreme court may answer questions of law certified to it by the United States Supreme Court, a court of appeals of the United States, a United States district court, or the highest appellate or intermediate appellate court of any other state. The certifying court must certify the question in writing, and the state court will accept jurisdiction and decide the issue if:
- "questions of law of this state are involved in any proceeding before the certifying court which may be determinative of the proceeding"; or
- "it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state."
In state courts
In some states, the name "certified question" is given to what is also known as an interlocutory appeal, a procedure under which an appellate court, at its discretion, may review a decision made by a trial court that has been made before a final judgment has been entered, and that ordinarily could not be appealed directly.
Certification of questions to the United States Supreme Court
Rule 19 of the Supreme Court Rules allows for the certification of legal questions to the United States Supreme Court. The rule provides that "a United States court of appeals may certify to this Court a question or proposition of law on which it seeks instruction for the proper decision of a case. The certificate shall contain a statement of the nature of the case and the facts on which the question or proposition of law arises. Only questions or propositions of law may be certified, and they shall be stated separately and with precision."
Certification of a question of law to the United States Supreme Court is another way, in addition to the writ of certiorari, direct appeal, and original jurisdiction, by which cases can be brought to the docket of the Supreme Court. It is a very infrequent procedure, and has happened only five times over the past six decades.
- Black's Law Dictionary, 6th ed., "Certification of question of state law"
- Severns v. Wilmington Medical Center, Inc., Del.Supr., 421 A.2d 1334 (1980). See also, Delaware Court of Chancery Rule 72(b) Archived 2009-10-08 at the Wayback Machine.
- Charles Dickens, Bleak House, ch. 8, "Covering a Multitude of Sins"
- 377 U.S. 179 (1960)
- Clay v. Sun Insurance Office, Ltd., 377 U.S. 179, (1960)
- Wendy L. Watson, McKinzie Craig, and Daniel Orion Davis, Federal Court Certification of State Law Questions
- Lehman Bros. v. Schein, 416 U.S. 386 (1974)
- Michael Klotz, "Avoiding Inconsistent Interpretations: United States v. Kelly, the Fourth Circuit, and the Need for A Certification Procedure in North Carolina," 49 Wake Forest L Rev 1173 
- Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)
- Thomas R. Newman and Steven J. Ahmuty, Jr., "Court of Appeals Review of Certified Questions from Other Courts". New York Law Journal, v 231, no. 23 (Feb. 4, 2004)
- Watson et al., above; citing In re Elliott (Washington Sup. Ct., 1968)
- See, e.g., Constitution of the State of New York, Article VII, ss. 3(b)(9), ratified 1985.
- See, e.g., North Dakota Rules of Appellate Procedure, rule 47
- See, e.g., Illinois Rule of Appellate Procedure 308 Archived April 30, 2010, at the Wayback Machine
- Supreme Court Rules, part IV, rule 19
- 28 U.S.C. 1254
- Marcia Coyle, "Supreme Court Asked to Take Certified Question for Only Fifth Time in Six-Plus Decades Archived 2010-12-05 at the Wayback Machine" (byline August 03, 2009; accessed Oct. 13, 2009)