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Certifying State Law Questions to the Connecticut Supreme Court

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Certifying State Law Questions to the Connecticut Supreme Court Erick Sandler is a partner at Day Pitney LLP in Hartford and is a member of its commercial litigation department and head of the firm’s appellate practice group. Attorney Sandler is a member of the CBA Appellate Advocacy Section Executive Com- mittee, Litigation Section Executive Certifying Committee, Federal Practice Section, and Young Lawyers Section. John Cerreta is an as- State Law sociate at Day Pitney LLP in Hartford and is a member of its commer- cial litigation depart- Questions ment and the firm’s ap- pellate practice group. Attorney Cerreta is a member of the CBA Appellate Advocacy Section, to the Litigation Section, Federal Practice Connecticut Section, and Young Lawyers Section. Supreme Court By Erick Sandler and John Cerreta 20 Connecticut Lawyer October 2013 Visit www.ctbar.org - Pullman rule.9 - necticut have occasionally denied certi- Aeral courts’ workload consists of decid- tion has also gained general acceptance as ing questions significant of state law.portion Diversity of the cases fed a tool for resolving At the all samemanner time, of unsettledcertifica particularly when the circumstances sug- make up fully 30 percent of the federal state law issues that arise in federal cas- gestfication that motions the moving on timelinessparty may grounds,be sand- civil docket,1 and even federal-question es.10 cases tend to feature at least one supple- may “save time, energy, and resources” for - When utilized properly, certification bagging the court19 by seeking certification mental state law claim or raise other state both state and federal courts, while pro- vorable decision. Even if no party moves for the first time upon receipt of an unfa law issues.2 Federal courts usually will viding an opportunity for courts to work not have binding state precedent on the together toward a more “cooperative judi- certify a question on its own motion.20 for certification, a court may still elect to precise questions presented,3 so federal cial federalism.”11 courts must venture their best “Erie guess touches on interests in comity and federal- The thinking is that, because certification as to how” the state’s highest court might ism that extend beyond the parties, courts see Conn. rule if faced with the question.4 Connecticut, for its part, first enacted its Pub. Acts No. 85-111, and has since updat- 21 certification statute in 1985, where no party makes a request. While state law issues are clearly within ed the law to conform to the 1995 version may appropriately seek certification even the federal courts’ jurisdiction and com- II. The Factors That Federal petence,5 judges of both the second circuit of Law Act, see Conn. Gen. Stat. § 51- Courts Consider in Deciding of the12 Uniform Certification of Questions and the District of Connecticut have, at 199b. The statute authorizes the state Whether to Certify times, expressed discomfort at the pros- - pect of “attempting to predict how the tion “if the answer may be determinative tool in the right circumstances, but as Supreme Court to accept a certified ques Certification is undoubtedly a valuable Connecticut Supreme Court would rule” of an issue” pending before the certifying a practical matter courts considering whether to employ the device must take a on important questions of Connecticut court, and “if there is no controlling” Con- 13 discriminating approach. Every year, fed- law.6 In the correct circumstances, these necticut authority on point. The Practice eral courts in the second circuit “must… courts elect to forego the usual “Erie decide scores” of Connecticut law ques- guess” in favor of certifying the state law Book specifies that the question presented14 tions that have never before “reached the question to the Connecticut Supreme as will be determinative of the case.” The in a certification request “should be such Connecticut Supreme Court.”22 It simply Court. The purpose of this article is to state Supreme Court is authorized to re- - - tion in all or even many of these cases. tion process for the Connecticut practitio- trial and appellate courts, as well as from ceive certified questions from all federal Thewould Connecticut be infeasible Supreme to order Court certifica is busy ner,provide including a basic the overview factors that of the local certifica federal “the highest court of another state” or of a 15 enough working through a full docket of courts consider in deciding whether to Native American tribe. cases from its own court system—bury- certify, and the process by which the Con- Although the Connecticut Supreme Court necticut Supreme Court accepts and de- can accept questions from a wide range of courts would only serve to undermine the courts, in practice, more than 90 percent basicing it goalin certified of saving questions “time, energy, from andfederal re- cidesI. Background certified questions. on the Certification Process from the local federal courts—the Court procedures.23 Federal courts faced with of Appealsits certified-questions for the Second Circuitdocket and come the sources” through the use of certification The practice of certifying important and questions of Connecticut law thus “resort District of Connecticut.16 As between the 24 unsettled questions of state law to a state lest certi- two, the District of Connecticut has sent a high court is now well established. More - to certification only sparingly,” than 50 years ago, the US Supreme Court burdens” of the federal courts “to those tions to the state Supreme Court. The sec- whosefication burdens become are a “device at least for as great.”shifting25 the slightly greater number of certified ques 7 ond circuit, however, is itself a frequent and direct alternative to the Pullman ab- A. The core considerations: clarity endorsed certification as a more efficient stention doctrine, which directs federal of existing law, importance, and the New York Court of Appeals.17 courts to abstain from deciding constitu- issuer of certified questions, especially to capacity to resolve the litigation. In seeking to identify the best candidates consider potentially determinative state either the second circuit or the District lawtional issues. claims8 so that state courts can first- ofA partyConnecticut wishing may to seekdo so certification by motion. in18 and the District of Connecticut tend to tion has come to occupy much of the “ter- There are no explicit time limits on such focusfor certification, on three core both factors: the second the clarity circuit ritory once dominated” In the years by since, the traditional certifica requests, but judges in the District of Con- of existing state law, the importance of Connecticut Lawyer October 2013 21 the issue, and whether an answer to the 2. Importance. - state policy questions.”51 In addition, fed- - priately limited to “important” questions eral courts have also recognized that, if come of the pending federal case.26 that “Connecticut Certification has a strong is alsointerest” appro in the federal-question claims in a case have certified question may determine the out resolving through its own court system.39 been dismissed and the remaining supple- 1. Uncertainty under existing state law. This is a broad standard that may encom- Perhaps the most basic consideration, pass any number of substantive legal is- issues, the “better course” may be to allow sues, but one area that seems to come up thosemental issues claims to present “run their difficult orderly state course law is whether the question at issue is un- again and again in the cases is insurance in the state courts by declining to exercise settledfundamental under to currentany certification state law. request,27 This law. “Insurance is an important industry supplemental jurisdiction over them.”52 requires more than just the absence of in Connecticut,”40 and the “preeminence” on-point state precedent dictating the Another useful indicator of “importance” of the Connecticut Supreme Court “in the outcome. Federal courts have a duty to is whether the issue is “likely to recur.”53 - “interpret ambiguous state statutes” and Frequently recurring issues will necessar- nized.41 - decide questions of state common law, tionfield toof theinsurance Connecticut law” Supremeis widely Court… recog “even in the absence of controlling state especially This compelling” makes the “case in for“insurance certifica authority.”28 - ily have a significant impact beyond the disputes.”42 And, at least in recent years, question arises, and they will often be ap- served for cases where the question is not particular litigation in which the certified Certification is properly re nearly half of the Connecticut Supreme just unresolved by precedent, but is also highest court.54 difficult to resolve. In other words, exist- propriate for certification to Connecticut’s questions have involved some issue re- 3. Effect on the outcome. In addition to latedCourt’s to decisionsinsurance inlaw. response43 to certified guidance” to permit a reliable prediction - undering precedent Erie.29 must “provide insufficient Insurance aside, local federal courts have being “unsettled and…significant,”55 a certi - outcome of the case. This requirement is fied question should also be crucial to the tive issues—from child protection,44 necessary to avoid wasteful litigation of warranted if the question at issue impli- toalso personal identified injury, numerous45 to commercial other substan pa- catesSo, for a example,“well developed” certification line ofmay Connecti not be- per46 - - cut precedent covering analogous circum- certified questions. When a federal court 30 - stances. certifies a question to the Connecticut56 Su necticut—that Supreme may be Court. of sufficient Generally, impor if the oral argument must be completed, fol- warranted for questions that require little tance to warrant certification to the Con lowedpreme byCourt, the ainternal full round deliberations of briefing and Certification may also not be case involves statutory interpretation, more than application of existing law to preparation of opinions within the Court.
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