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Certification of Legal Questions to the Utah Supreme Court

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Certification of Legal Questions to the Utah Supreme Court David Nuffer Candidate for Master of Judicial Studies Duke University Law School Durham, North Carolina March 2018 THESIS Certification of Legal Questions to the Utah Supreme Court Faculty Advisor: Francis McGovern 3/28/2018 5:37 PM Contents Abstract .......................................................................................................................................... iii Acknowledgments.......................................................................................................................... iv Overview of the Certification Process ............................................................................................ v Introduction ..................................................................................................................................... 1 Legal Context .................................................................................................................................. 3 The Development of Certification in the United States .................................................................. 3 Legal Precedent and Alternatives ............................................................................................... 3 Florida First In Certification—and U.S. Supreme Court Commentary ...................................... 5 Uniform Certification of Questions of Law Act ......................................................................... 6 Debate on Value of Certification............................................................................................... 10 Development of Utah’s Certification Process ............................................................................... 14 1975 Certification Rule ............................................................................................................. 15 Comparison with Colorado Rule of Appellate Procedure 21.1 ............................................. 16 Comparison with Uniform Certification of Questions of Law Act (1967) ........................... 16 Holden v. NL Industries Invalidates the 1975 Certification Rule ............................................. 17 1984 Judicial Article of Utah Constitution ............................................................................... 19 Effectuating the Constitutional Revision .................................................................................. 20 Utah Code Provision ............................................................................................................. 20 Utah Rule of Appellate Procedure 41 ................................................................................... 20 Cases Bridging the Certification Processes .............................................................................. 28 Early Certification Cases Under the New Rule ........................................................................ 29 Statistical Overview ...................................................................................................................... 30 Certification by the Tenth Circuit - Summary Statistics ........................................................... 30 Certification in the District and Bankruptcy Courts - Summary Statistics ............................... 32 Certification of Questions of Utah Law from Federal Courts ...................................................... 34 Federal Court Certification Processes ....................................................................................... 34 Federal Court Considerations for Certifying Questions of Utah Law ...................................... 35 Arguments and Authorities Against Certification ................................................................. 36 Criteria for Certification ....................................................................................................... 40 Motion to Certify Denied .......................................................................................................... 41 Remarkable Cases ..................................................................................................................... 45 Significant Legal Issues ........................................................................................................ 51 Certifications by Article I Judges .......................................................................................... 53 The Role of Justice and Judge Parrish .................................................................................. 54 Impact of Certification on Cases .............................................................................................. 58 Certification Motion Causes Cases to Settle ......................................................................... 58 Cases Settle While Questions Pend in Utah Supreme Court ................................................ 59 Answer to Certified Questions Causes Cases to Settle ......................................................... 60 Certification Answer Dispositive for Motion in Federal Case .............................................. 62 Certified Answer Irrelevant ................................................................................................... 62 Deference for Answers to Certified Questions ......................................................................... 63 Utah Supreme Court Responses to Certification Orders .............................................................. 63 Utah Supreme Court Standards When Responding to Certified Questions .............................. 63 Is Certification Worth It? .............................................................................................................. 67 i Costs and Benefits for the Parties ............................................................................................. 67 Costs and Benefits for the Federal and State Systems .............................................................. 68 Summary and Reconciliation of Costs and Benefits ................................................................ 69 Recommendations for Improvement of the Utah Certification Process ....................................... 69 Changes in Federal Practice ...................................................................................................... 70 Recommendation of a Local Federal Rule ............................................................................... 70 Changes in State Rule and Practice .......................................................................................... 77 Conclusions ................................................................................................................................... 80 Appendices .................................................................................................................................... 82 Appendix - Recommendations for Further Study ..................................................................... 82 More detailed study within the scope of the thesis ............................................................... 82 Tenth Circuit involvement in certification ............................................................................ 83 Study of inter-institutional dynamics of certification ........................................................... 83 Other Topics .......................................................................................................................... 83 Appendix—Bibliography .......................................................................................................... 84 Appendix—Uniform Acts ......................................................................................................... 85 Appendix—List of All Cases Considering Certification .......................................................... 89 Appendix—Questions Certified to the Utah Supreme Court ................................................... 94 Appendix—Methods of Gathering Utah Cases Related to Certification ................................ 129 ii Abstract For 30 years, federal courts have certified questions of state law to the Utah Supreme Court. This thesis examines the history and utility of the process and recommends changes to the process in the federal district court and in the Utah Supreme Court. The current focus of federal judges in certifying questions is on utility for the case before the court. But certification of questions from a federal court to a state court is an expression of federalism—a humble acknowledgment by a federal authority which is often regarded as supreme that the state is the proper and best authority to declare its own law. Certification of questions is a rare instance of direct communication between state and federal courts, and a chance for both systems to cooperate in resolution of a single case, in their respective roles. Certification of legal questions from federal courts to state courts has emerged in the last 75 years. Similar purposes were accomplished previously in American law by very cumbersome procedures, and antecedents existed in English law. From Florida’s adoption of the first statutory certification procedure in 1945 through a 1960 U.S. Supreme Court endorsement of certification and promulgation of the Uniform Certification of Questions of Law Act, all states except North Carolina have adopted a certification procedure. The Utah procedure and practice began in 1975 with a rule later found to violate the Utah Constitution. But in 1984, a constitutional
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