With support from the federal bench, the state bench, and the bar, certification may finally be within reach.
Every state in the country except North Carolina has a process by which the corresponding United States Court of Appeals can certify a question of state law to the state’s highest court for consideration. The lack of a certification procedure has engendered much consternation and discussion over the years. The General Assembly (by statute) and the Supreme Court (by rule) would likely have to work together to establish a process for such questions to be considered by our Supreme Court. But would such a measure be valid under the North Carolina Constitution, or would the statute require unconstitutional advisory opinions or overstep the constitutional bounds on the Supreme Court’s jurisdiction?
Setting aside those legal challenges, there have also been practical challenges that have stymied previous efforts at certification.
Proponents of certification, however, might be gaining steam. The North Carolina Appellate Rules Committee has taken an active interest in the question. Chief Justice Martin of the Supreme Court of North Carolina mentioned this morning at the North Carolina Bar Association’s annual meeting that the Supreme Court is interested in investigating whether certification can work in North Carolina. Chief Judge William Traxler of the Fourth Circuit followed, asking the NCBA membership to help North Carolina join the other 49 states because of the importance of certification in certain cases arising under the federal court’s diversity jurisdiction. Judge Traxler noted that his Court has certified only 10 cases (to other states) in the last 4 years, so the burden on our Supreme Court would likely be slight.
All good news for fans of certification. We’ll keep you posted.