Judge Smith Discusses When the Third Circuit Will Certify a Question to a State’s Highest Court

United States v. Defreitas, ___ F.4th ___ (3d Cir. 2022). This case came out of the Virgin Islands. Its subject matter was the conviction of defendant, an enforcement officer for the United States Virgin Islands Department of Licensing and Consumer Affairs, for soliciting a bribe, in violation of Virgin Islands law, and violating the Travel Act, 18 U.S.C. 1952(a)(3). Defendant had sought sexual favors in exchange for not reporting a female immigrant who was unlawfully present in the Virgin Islands.

In an opinion by Judge Smith, the Third Circuit today vacated defendant’s convictions. But from an appellate practice perspective, the opinion is most significant for its discussion of considerations that guide the Third Circuit in deciding whether to certify one or more questions to the highest court of a state (or, though not a state, the Virgin Islands, since Federal Rule of Appellate Procedure 1(b) includes any territory in its definition of “state”).

Defendant had sought certification of four questions to the Supreme Court of the Virgin Islands, but had not done so until a post-verdict motion for acquittal. The panel here ultimately decided not to certify any questions, but its discussion of what factors influence a decision to certify questions, or not, is valuable.

Judge Smith identified three overarching factors, on which he proceeded to elaborate. He also emphasized that those factors were not “exhaustive, nor that any one of the considerations … should be considered dispositive.” Here are those three factors.

“First, the relevant question’s eventual resolution should be unclear and control an issue in the case. Certifying a question where the answer is clear is inappropriate and unnecessary.” As Judge Smith noted, “certifying a question is appropriate if we determine that we cannot predict how a state court would rule.” Similarly, “an immaterial question should not be certified.” Judge Smith noted that Third Circuit Local Appellate Rule Misc. 110(1) requires that a question “control the outcome of a case” in order to be certified, and that state court rules, such as New Jersey’s Rule 2:12A-1, require that there is “no controlling appellate decision, constitutional provision, or statute,” for a certified question to be answered by the highest state court.

The second consideration is what Judge Smith labeled the “importance” of the question involved. “These ‘importance’ factors demonstrate a state’s interest in the interpretation of its own law as well as our interest in supporting cooperative judicial federalism. For example, open questions of state constitutional law should nearly always be left to the state courts. Likewise, a state’s high court is the most appropriate forum to weigh competing state public policy interests. Further, issues that are likely to recur or which could lead to forum shopping should be certified for an immediate and dispositive resolution” (citations omitted).

Finally, courts should factor in “judicial economy,” which Judge Smith said “encompasses the actions of the parties as well as the cost effectiveness of certification.” He offered as an example that “a court should view with skepticism a party’s request for certification when that party had originally invoked federal jurisdiction.” Likewise, “the timeliness of a request for certification” should be considered, as “certification is not an opportunity for a do-over.”

In this case, the Third Circuit was as capable of resolving the question presented as the Supreme Court of the Virgin Islands, whose capability Judge Smith praised in a footnote, would have been. The question involved neither “important issues of state policy” nor “federalism interests,” and the fact that defendant did not seek certification until after the judgment against him cut against certification. The court thus addressed the issues itself and reversed defendant’s conviction.

In recent years, our Supreme Court has agreed to decide questions certified by the Third Circuit on a fairly regular basis. Some examples are here, here, here, and here [Disclosure: I was counsel in two of those cases]. Today’s decision of the Third Circuit should inform practitioners as to the likelihood of the Third Circuit certifying questions going forward.