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UnCERTain? – Practice Pointers for Certifying a Question of State Law in Federal Court

On Behalf of | Sep 21, 2022 | Slingshots

Certification[1] is a legislatively created procedure which empowers Minnesota state courts to answer a federal court’s question of state law.[2] There are many benefits to certifying questions, including relieving federal judges from having to decide important state issues of law and avoiding contradictory precedent on the state and federal level.[3] While certification often causes complaint and delay, it can “in the long run save time, energy and resources,” and “help[] build a cooperative judicial federalism.”[4]

In Minnesota, certification is most often invoked by the United States District Court for the District of Minnesota considering issues of Minnesota state law. The power to determine state law is vested in the Minnesota Supreme Court which can review and answer a question of law from any United States court “if the answer may be determinative of an issue in pending litigation in the certifying court and there is no controlling appellate decision, constitutional provision, or statute.”[5] However, federal courts ultimately possess discretion as to whether to use a state’s certification procedure, “even when state law is in doubt.”[6] Importantly, unless there is a close question of law and a federal court is without “state sources enabling a nonconjectural determination, a federal court should not avoid its responsibility to determine all issues before it.”[7]

Before a federal court can certify a question for review by the Minnesota Supreme Court, the court must conclude that the issue is central to the disposition of the case.[8] Then, the federal court will consider the following:

  • Is the court “genuinely uncertain” about the issue?[9]

The most important consideration a court reviews is whether the court is genuinely “uncertain” about a question of state law; if it is not, certification is improper.[10] To be “uncertain”, there must be no controlling Minnesota Supreme Court precedent on the dispositive issue, i.e., the question must be “unanswered.” This essentially requires the federal court to determine that there is “enough guidance so that the decision . . . is not merely conjectural.”[11] A federal court deploys several tools to determine whether the issue at hand appropriate for certification.

The federal court may find an issue ripe for certification if the state court had previously signaled its willingness to change a substantive rule of law without definitively ruling.[12] For example, in Guillard v. Niagara Machine and Tool Works, the United States District Court for the District of Minnesota looked to a Minnesota Supreme Court decision that signaled a change in the Minnesota rule regarding employer indemnity was imminent, but the Minnesota Supreme Court failed to define the scope of such change.[13] The federal court found this demonstrated the law on this issue was still unanswered.[14] It therefore refused to “define the perimeters of that change,” and certified the question of law after conducting fact finding.[15]

The federal courts may also look to state legislation to determine whether an issue has been answered. In one case, the court looked to an act which, although the effective date of the act made it inapplicable to the case, the court still used it to consider how the North Dakota Supreme Court would apply the law if the question was certified to the Court.[16] A District of Minnesota Bankruptcy court has even used published history of the framing of the Minnesota state constitution to help interpret case law and found the question of law had not actually gone unanswered.[17]

If a state supreme court recently granted review of a question, the federal district court will likely find that that question will soon be answered and deny a party’s certification motion.[18] For example, in In re McNeilus Manufacturing Explosion, the United States District Court for the District of Minnesota denied a certification motion partly because the Court found that the Minnesota Supreme Court was concurrently reviewing the exact question presented in the matter.[19] While it was possible that the Minnesota Supreme Court could have framed its answer to avoid answering the common question, the District Court found that outcome unlikely to occur.[20] Moreover, the District Court was concerned that if it allowed certification where there was a pending state court appeal, it would generate an improper use of the certification procedures where parties in federal district court could weigh in or intervene on the state court decision.[21]

If the federal court determines there is no sufficiently close question of law, the court should refuse to certify the question and instead determine all the issues before it.[22]

  • Is the relevant question likely to recur?[23]

The next important question to consider when arguing for (or against) certification is whether the relevant question is one likely to recur.[24] In general, if a question is unique to a particular set of facts, or focused more on the application of law than determining a legal standard, a federal court may refuse to certify the question for review as it would be unlikely to recur.

In Hatfield v. Bishop Clarkson Memorial Hospital, the relevant issue on which certification was being considered was one that was also simultaneously pending before the Nebraska Supreme Court.[25] Thus, the federal court found the issue’s recurrence was an “especially persuasive reason” to certify the question because the case at hand would have been subject to dismissal, entailing numerous wasted expenses, if the Nebraska Supreme Court ruled adversely on the issue.

The court would likely refuse to certify a question that had been “unequivocally determined” by a recent act of the state’s legislature.[26] Thus, even if the legislation became effective after the litigation started, federal courts recognize the issue at hand may soon become a non-issue and would be unwilling to spend judicial resources on the certification process.

  • What is the procedural posture of the case?

Finally, the timing of certification is a tricky balance when considering the procedural posture of the case: certification of a question must not be premature before relevant facts are decided, nor too late in the proceedings to resemble or be disguised as an appeal.

For example, the United States District Court for the District of Minnesota refused to certify a question when discovery was ongoing, dispositive motions had not yet been filed, and the case was months from trial.[27] The court found that since the relevant facts were yet to be settled, certifying the question would essentially ask the Minnesota Supreme Court to issue an advisory opinion.[28] Therefore, the issue for the certified question was not yet ripe.

However, there may be appropriate times within or before discovery to certify a question. For example, in Friedlander, the court certified a question where the issue appeared in a motion for judgment on the pleadings.[29] The Friedlander court found this to be appropriate in light of the procedural posture as all relevant facts at such stage must be taken as true and cannot yet be contested.[30]

Federal courts are skeptical of allowing parties to certify questions after an adverse judgment has been entered.[31] A party could otherwise attempt another bite at the apple even after the court has decided an issue, which would increase litigation costs, create delays, and unnecessarily expend judicial resources.[32] And regardless, even without certifying the question, an appeal by one party or the other could be especially likely following any decision on the merits, which could require the Eighth Circuit to certify the question to the Minnesota Supreme Court instead.

So, how can a party best present a question to obtain certification? A party must first ensure the question is one in which the federal court would be genuinely uncertain. Then, it should develop a sufficient factual record for the court to consider and frame the question so that it highlights the unanswered state law that is likely to recur. Ultimately, the certification process can be a beneficial practice to save litigating parties time and money. It can also create good and consistent law and relieve federal judges from having to interpret question within the realm of state judges.

For more information on certifying questions for the Minnesota Supreme Court, contact the experienced litigation attorneys at Eckland & Blando LLP.

[1]              Co-authored by Rachel Lantz, associate at Eckland & Blando; drafting assistance provided by Robby Dube, associate at Eckland & Blando.

[2]              Why Guess? Erie Guesses and the Eighth Circuit, 36 Wm. Mitchell L. Rev. 1625, 1630 (2010).

[3]              Id.

[4]              Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974).

[5]              Minn. Stat. § 480.065, subd. 3 (2021).

[6]              U.S. Bank Nat’l Assn. v. PHL Variable Ins. Co., No. 12-cv-877, 2015 WL 6549595, at *1 (D. Minn. Oct. 27, 2015) (citing Lehman Bros., 416 U.S. at 390-91).

[7]              Smith v. SEECO, Inc., 922 F.3d 406, 412 (8th Cir. 2019) (quoting Shakopee Mdewakanton Sioux Cmty. v. City of Prior Lake, Minn., 771 F.2d 1153, 1157 n.1 (8th Cir. 1985).

[8]              In re Medill, 119 B.R. 685, 688 (Bankr. D. Minn. 1990).

[9]              See Hatfield v. Bishop Clarkson Mem. Hosp., 701 F.2d 1266, 1268 (8th Cir. 1983).

[10]             Southern Glazer’s Wine & Spirits v. Harrington, No. 21-1254, 2022 WL 912032, at *11 (D. Minn. Mar. 29, 2022) (citing Johnson v. John Deere Co., 935 F.2d 151, 153 (8th Cir. 1991)); Tidler v. Eli Lilly & Co., 851 F.2d 418, 426 (D.C. Cir. 1988)).

[11]             Perkins v. Clark Equip. Co., 823 F.2d 207, 210 (8th Cir. 1987).

[12]             See In re Medill, 119 B.R. at 688 (citing Guillard v. Niagara Machine and Tool Works, 488 F.2d 20, 24 (8th Cir. 1973)).

[13]             488 F.2d 20, 24 (8th Cir. 1973).

[14]             Id.

[15]             Id.

[16]             Perkins, 823 F.2d at 210.

[17]             In re Medill, 119 B.R. at 688.  

[18]             In re McNeilus Manufacturing Explosion Coordinated Litigation, 381 F.Supp.3d 1075, 1081 (D. Minn. 2019).

[19]             Id.

[20]             Id.

[21]             Id.

[22]             Perkins, 823 F.2d at 209.

[23]             Hatfield, 701 F.2d at 1268.

[24]             Id.

[25]             Id.

[26]             Perkins, 823 F.2d at 210.

[27]             In re McNeilus Manufacturing Explosion Coordinated Litigation, 381 F.Supp.3d 1075, 1080 (D. Minn. 2019).

[28]             Id.

[29]             Friedlander v. Edwards LifeSciences, LLC, No. 16-cv-1747, 2016 WL 7007489, at *2 (D. Minn. Nov. 29, 2016).

[30]             Id.

[31]             Perkins, 823 F.2d at 210.

[32]             Id.

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