CTS and the Value of Certification Statutes

By Steve Klepper (Twitter: @MDAppeal)

Yesterday’s excellent guest post by Derek Stikeleather managed to set a new record for daily traffic on the Maryland Appellate Blog. Many thanks to Derek (and to Howard Bashman for picking up the post at How Appealing). I’d like to briefly add a small point on CTS Corp. v. Waldburger.

I’ve seen news reports of efforts in the North Carolina Legislature to pass a bill, applying to all pending litigation, declaring that the state’s statute of repose was never intended to apply to tort cases involving contaminated groundwater. [Update: Beth Scherer at the North Carolina Appellate Practice Blog reports that both houses unanimously approved the legislation.] A Marylander might ask why the Fourth Circuit does not simply certify that question to the Supreme Court of North Carolina. There are three cases pending where federal courts have certified questions of Maryland law to the Court of Appeals.

North Carolina, however, is one of only two states in the country without a rule or statute permitting federal courts to certify questions of state law to the state’s highest court. Commentators, including Professor Jessica Smith (a friend of the blog) and Eric Eisenberg (in an excellent student note) have explained that lawmakers have fears regarding the constitutionality of certification under the state constitution. See Jessica Smith, Avoiding Prognostication and Promoting Federalism: The Need for an Inter-Jurisdictional Certification Procedure in North Carolina, 77 N.C. L. Rev. 2123, 2125 (1999); Eric Eisenberg, Note, Divine Comity: Certification (at Last) in North Carolina, 58 Duke L.J. 69 (2008). But Smith and Eisenberg raise numerous counterarguments, and, if the state were to pass a certification statute, the North Carolina Supreme Court could rule on the statute’s constitutionality the first time a federal court certifies a question.

Anecdotally, I can say that the lack of a North Carolina certification statute has frustrated the Fourth Circuit in the past. A judge once asked why the Court shouldn’t just certify a question of North Carolina law, only to receive a gentle reminder from another judge. (I won’t name names.)

Certification can provide a useful means to avoid difficult questions of federal law. Last year, the U.S. Supreme Court dismissed a challenge to an Oklahoma abortion statute after the Oklahoma Supreme Court, on certification, interpreted the statute in a manner that mooted the federal claim.

Perhaps the North Carolina Legislature would want to take this opportunity to pass a certification statute to test the constitutionality of certification under the North Carolina Constitution.