Certification is a procedure that allows a federal court, deciding a question of state law, to request that the highest state court review the issue and explain how it would rule. The state court then has the opportunity to accept the certified question and provide an answer, or to decline to decide the issue. Any party to the litigation typically can certify a question of state law, or the federal court can certify a question sua sponte. The creation of a certification procedure is minimally burdensome on the highest state court because it is completely discretionary. Certified questions only arise when a decision hinges on an ambiguous issue of state law. Federal courts “do not employ certification lightly”: certifying a question transfers authority to another court and thus is used only when necessary.
There are a number of ways that a certification procedure benefits litigants and the court system. Certification gives the state judiciary the authority to decide the meaning and application of its own law. This relieves the federal court of the burden of determining how the law of another jurisdiction would be applied, and it facilitates consistency within the body of state law. By allowing the highest state court to weigh in on an issue, there is a reduced likelihood that an incorrect rule of decision will be applied. Certification supports comity and cooperative federalism between the state and federal judiciary. It discourages forum shopping—whereby a plaintiff may bring a case in federal court or state court based upon the expected result—by developing a uniform body of state law. Certification procedures promote certainty regarding the law because the highest court’s statement of its own law will be “definitive” by definition. By contrast, a federal court’s attempt to determine an unsettled issue of state law can be reversed when the state court subsequently decides the issue. Finally, a certification procedure is a means of facilitating the accurate application of the law, and it does not require either federal courts or state courts to take any unwanted action.
The practical need for a certification procedure arose in response to the decision of Erie Railroad Co. v. Tompkins. In 1938, the Supreme Court of the United States famously held that a federal court sitting in diversity is required to apply substantive state law. Because federal courts were often required to apply state law under Erie, a problem arose when the law of a state was unsettled, contradictory, or unclear. In 1945, Florida became the first state in the United States to initiate a process enabling a federal district court, court of appeals, or the Supreme Court of the United States to certify an uncertain question to the highest state court. Other states slowly followed Florida’s lead, and by 1976 fifteen states had created procedures for certification. By 1998, forty-six states had instituted a mechanism allowing certification of state-law questions in federal court.
Today, every state in the United States, with the exception of North Carolina, has enacted a certification procedure. In addition, the District of Columbia, Guam, the Northern Mariana Islands, and Puerto Rico have all instituted certification procedures. The lack of a certification procedure in our state poses significant problems for federal courts applying North Carolina law.
Consider the case of United States v. Kelly. The defendant in Kelly had been convicted under a state statute, section 14-33(c)(2) of the North Carolina General Statutes, of a crime that might qualify as a misdemeanor crime of domestic violence under 18 U.S.C. § 922(g)(9). The law, 18 U.S.C. § 922(g)(9), is a federal statute that makes it a crime for an individual convicted of a “misdemeanor crime of domestic violence” to own a firearm. This statute has significant implications for the safety of victims of domestic abuse, and it has been repeatedly upheld despite challenges under the Second Amendment of the U.S. Constitution. Allowing individuals convicted of domestic violence to own guns would almost certainly result in increased violence, with a disproportionate amount directed toward women. Indeed, being shot by an intimate partner is the most common way that women are intentionally killed in the United States, and a domestic abuse victim is twelve times more likely to be killed when the perpetrator has a gun than when he does not.
Previous North Carolina case law made it very difficult for the Kelly court to determine the elements of this offense under state law. North Carolina courts had inconsistently described the level of physical violence required for a violation of section 14-33(c)(2). Without the opportunity to certify the question to the Supreme Court of North Carolina, the Kelly court had no other option than to make a prediction of how that court would rule on the basis of conflicting and contradictory case law. The problem faced by the court in Kelly is unsettling and unacceptable, and it illustrates the unique difficulties involved in applying a federal law that is predicated upon an uncertain issue of North Carolina law. Moreover, the Fourth Circuit Court of Appeals has repeatedly referenced its inability to certify questions to the Supreme Court of North Carolina, and federal appellate judges have been forced to decide cases with important implications for our state on the basis of unclear or contradictory North Carolina case law.
