3. CERTIFICATION OF STATE LAW QUESTIONS

• Jurisdiction: United States

3. Certification of State Law Questions

A relatively recent aspect of Court of Appeals jurisdiction is its ability to respond to questions of New York law posed by a federal appellate court or by the highest court of another state. Generally, courts are loathe to render advisory opinions. Points of law are customarily decided as necessary to the resolution of a specific, real controversy between particular litigants.

If a case is being heard in the New York state courts, the legal issues are addressed by the trial court, subject to review by the Appellate Division and, thereafter, by the Court of Appeals. But if a case is being litigated in another state, or in federal court (because the litigants are citizens of different states), and New York law provides the substantive legal principles that control the outcome, the forum court must look to the New York statutes and reported cases of the Court of Appeals and other New York courts to ascertain what New York law is. From time to time, issues arise that may as yet be unsettled. This may be because the issue has never previously been considered by any New York appellate court, because the Appellate Divisions have divided on the question, or because there is scant and diverse authority on the matter. Absent the ability to ask the Court of Appeals to address the question, a federal or state court would be required to prognosticate as to what the Court of Appeals would do if and when the issued reached it. The prediction may prove to be right but if it turns out to be wrong serious consequences may have been visited upon the litigants.

Recognizing the frequency with which New York law is applied in federal and sister state courts, and to provide a means for these courts to obtain a definitive ruling from the Court of Appeals on unsettled questions of New York law, the New York Constitution was amended in 1985 to create a certification procedure. The Court of Appeals was empowered to adopt rules to permit it to answer questions of New York law certified to it by the Supreme Court of the United States, any federal court of appeals, or by the highest court of another state.⁹⁸ Questions may not be posed by lower federal courts, by intermediate or trial courts of other states, or by foreign courts. Nor may courts within New York ask questions directly of the Court of Appeals.

The question of law to be certified needs to be of such importance to the case pending in the certifying court that it “may be determinative of the cause then pending.” The certifying court must also attest that, in its view, the answer is not controlled by existing New York precedent.⁹⁹...