New York's Certification Procedure: Was It Worth the Wait?

St. John's Law Review Volume 63 Number 3 Volume 63, Spring 1989, Number 3 Article 4 April 2012 New York's Certification Procedure: Was It Worth the Wait? St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation St. John's Law Review (1989) "New York's Certification Procedure: Was It Worth the Wait?," St. John's Law Review: Vol. 63 : No. 3 , Article 4. Available at: https://scholarship.law.stjohns.edu/lawreview/vol63/iss3/4 This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . NOTE NEW YORK'S CERTIFICATION PROCEDURE: WAS IT WORTH THE WAIT? By amendment to the state constitution on November 6, 1985, New York became the thirty-sixth state to allow its highest court to entertain questions of state law certified to it by other courts.' The amendment commanded the New York Court of Appeals to adopt rules and procedures whereby federal appellate courts and other states' highest courts could certify uncertain questions of New York law directly to the Court of Appeals.2 The rules, as enacted, allow certification when it appears to the certifying court "that determinative questions of New York Law are involved... for which there is no controlling precedent of the Court of Appeals."3 Within days of the enactment of the certification rules, the I See N.Y. CONsT. art. VI, § 3(b)(9). The amendment provides: The court of appeals shall adopt and from time to time may amend a rule to permit the court to answer questions of New York law certified to it by the supreme court of the United States, a court of appeals of the United States or an appellate court of last resort of another state, which may be determinative of the cause then pending in the certifying court and which in the opinion of the certifying court are not controlled by precedent in the decisions of the courts of New York. Id.; see Committee on Federal Courts, Analysis of State Laws Providingfor Certificationby Federal Courts of Determinative State Issues of Law, 42 Rec. A.B. City N.Y. 101 (1987) [hereinafter Analysis of State Laws]. For a list of the states that allow certification, see infra note 26. 1 See N.Y. CONST. art. VI, § 3(b)(9). The rules authorized by the constitutional amendment were filed December 17, 1985, to be effective January 1, 1986. [1989] 22 N.Y.C.R.R. § 500.17. [1989] 22 N.Y.C.R.R. § 500.17(a). Section 500.17 provides in pertinent part: (a) Whenever it appears to the Supreme Court of the United States, any United States Court of Appeals, or a court of last resort of any other state, that determinative questions of New York law are involved in a cause pending before it for which there is no controlling precedent of the Court of Appeals, such court ST. JOHN'S LAW REVIEW [Vol. 63:539 Court of Appeals for the Second Circuit was both praising the advent of certification and considering whether certification would be proper under circumstances then confronting the court.4 The certification procedure has been in effect for nearly four years, yet only two certified questions have been answered.5 The initial flourish of excitement and adulation has been replaced by may certify the dispositive questions of law to the Court of Appeals. (b) The certifying court shall prepare a certificate which shall contain the caption of the case, a statement of facts setting forth the nature of the cause and the circumstances out of which the questions of New York law arise, and the questions of New York law, not controlled by precedent, which may be determinative, together with a statement as to why the issue should be addressed in the Court of Appeals at this time. (c) The certificate, certified by the clerk of the certifying court under its official seal, together with the original or copies of all relevant portions of the record and other papers before the certifying court, as it may direct, shall be filed with the Clerk of the Court of Appeals. Id. at § 500.17. While section 500.17 establishes that the acceptance of a certified question of state law is within the discretion of the New York Court of Appeals, id. at § 500.17(d), the propriety of certification in a federal case rests with the certifying court. See Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). For examples of the factors a federal court might entertain when considering certification, see id. at 394 (delay and expense); see also Cuesnongle v. Ramos, 835 F.2d 1486, 1491 (1st Cir. 1987) (federal-state comity); Lee v. Wheeler, 810 F.2d 303, 306 (D.C. Cir. 1987) (degree of uncertainty and avoidance of guesswork); Eli Lilly & Co. v. Home Ins. Co., 764 F.2d 876, 884 (D.C. Cir. 1985) (public importance of question); Harris v. KarriOn Campers, Inc., 640 F.2d 65, 68 (7th Cir. 1981) (certification not requested until appeal); Cantwell v. University of Mass., 551 F.2d 879, 880 (1st Cir. 1977) (plaintiff's choice of forum); Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 275 (5th Cir.) (inability to frame issue), cert. denied, 429 U.S. 829 (1976); Barnes v. Atlantic & Pac. Life Ins. Co. of Am., 514 F.2d 704, 706 (5th Cir. 1975) (possibility of repetition). See generally AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURTS § 1371(e) (Official Draft 1969) (listing circumstances federal courts should consider before certifying). See Lehman v. Dow Jones & Co., Inc., 783 F.2d 285, 294 n.9 (2d Cir. 1986). The Second Circuit stated: "[W]e have determined not to seek to avail ourselves of the procedure in this case, happy as we are to have it available in the future." Id. By the time certification became available in New York, this case was in an advanced procedural stage and for that reason the court decided against its use. Id. New York's certification procedure initially received enthusiastic responses. See, e.g., Kidney v. Kolmar Laboratories, Inc., 808 F.2d 955, 957 (2d Cir. 1987) ("valuable device for securing prompt and authoritative resolution of unsettled questions of state law"); Siegel, A Good Start for the New Certification Procedure Whereby the Court of Appeals Directly Answers New York Law Questions for Other Courts, 329 N.Y. ST. L. DIG. 1, 1 (May 1986) (same). I See Loengard v. Santa Fe Indus., 70 N.Y.2d 262, 514 N.E.2d 113, 519 N.Y.S.2d 801 (1987) (minority shareholder's suit to recover damages for underpayment of shares following merger); Kidney v. Kolmar Laboratories, Inc., 68 N.Y.2d 343, 502 N.E.2d 168, 509 N.Y.S.2d 491 (1986) (department of Social Services lien on tort recovery not defeated by insurer's prior payments). 1989] CERTIFICATION PROCEDURE criticism as to the value and efficiency of the process adopted by the New York Court of Appeals.' This Note will assess the benefits of certification and att (...truncated)