Federal Court Certification of State-Law Questions: Active Judicial Federalism

Abstract

Judicial federalism?the sharing of jurisdiction and interpretive authority between the state and federal courts?poses tremendous challenges to courts attempting to resolve individual disputes in an increasingly complex legal landscape. As a practical matter, state judges must regularly interpret and apply federal statutory and constitu tional law, while both supplemental and diversity jurisdiction bring state statutory, constitutional, and common-law issues to federal judges. In most cases, a judge apply ing the law of another jurisdiction can look to court decisions from that jurisdiction for guidance, but when no such guidance exists, judges are forced to put themselves in the shoes of another. State court judges are generally left to their own devices and cannot avoid inter preting federal laws, even when doing so presents a matter of first impression. Federal court judges, on the other hand, have a number of weapons in their arsenal that let them avoid prediction of unsettled state-law questions. First, under certain circum stances, a federal court exercising federal-question jurisdiction may decline to exer cise supplemental jurisdiction over state-law claims, thus forcing the parties to litigate their dispute in both state and federal court. Second, under relatively rare circumstances, a federal court may invoke the abstention mechanism first described by the Supreme Court in Railroad Commission of Texas v. Pullman Co. (1941). Specifically, Pullman abstention is appropriate when resolution of a state-law question may eliminate the need for a federal court to address a federal constitutional question. When Pullman abstention is properly invoked, the federal court stays further proceedings on the case before it while the parties file a declaratory judgment action in state court; the federal court retains jurisdiction over the federal claims but stays its hand until the state-law question wends its way through the entire state court process. Finally, federal court judges may retain jurisdiction over all claims, state and federal, and bypass the unwieldy Pullman process by going straight to those responsi ble for declaring state law: federal judges may certify novel questions of state law directly to the state s highest court. Federal courts have been quick to point out this particular advantage of certification in Pullman abstention cases like Be?lotti v. Baird (1976) and Gnffin Hospital v. The Commission on Hospitals and Healthcare (1986). Forty-seven states, the District of Columbia, and Puerto Rico have some provision of state law, in either a statute or a court rule, that allows the highest court in the state to answer legal questions certified by federal courts. At first blush, the procedure appears to be the ultimate act of deference to the sovereignty of states and the sanctity of state law. As one commentator remarked, "[T]he availability of certification produces a weird sort of security patrol in which federal courts surveil the border between the [state and federal] systems and from time to time repel their own attempts to invade the province of state law" (Selya,