I was wondering when we were finally going to see one of these.
Over the past decade or so, the Ninth Circuit has become much more pro-certification. I haven't run any hard numbers, but my internal (admittedly vague) calculations are that we're seeing the Ninth certify questions at a rate of triple (or more) of what we did, say, 15-20 years ago. My sense is also that this heightened pace has only intensified further during the last couple of years. With pretty much the uniform concurrence of everyone on the panel.
Today, however, Judge Bybee dissents from the certification order. Since his dissent is both cogent and concise, I can quote it in full:
"Fifteen years ago we certified a nearly identical question to the Arizona Supreme Court. See State Farm Mut. Auto. Ins. Co. v. Falness, 39 F.3d 966, 967 (9th Cir. 1994). We received an answer and we then issued an opinion in Falness. Id.; State Farm Mut. Auto. Ins. Co. v. Falness, 872 P.2d 1233, 1234 (Ariz. 1994). Falness is not in question in Arizona courts. Indeed, the Arizona Supreme Court has cited our Falness decision with approval. See Philadelphia Indem. Ins. Co. v. Barerra, 21 P.3d 395, 404 (Ariz. 2001) (en banc). Here, the majority has certified nearly the same question again to the Arizona Supreme Court. There really isn’t much doubt how this case must be resolved after Falness. Rather, we are certifying because we doubt the wisdom of Arizona’s application of its rule. In effect, we are inviting Arizona to revisit the reasonable expectations doctrine as applied to the named insured exclusion. I have my own doubts about the wisdom of the rule and its operation in Arizona, but I still don’t think there is any lack of “controlling precedent in the decisions of the [Arizona S]upreme [C]ourt and intermediate appellate courts” to justify our order. See ARIZ. REV. STAT.
§ 12-1861. I respectfully dissent."
To me, this raises the interesting issue of what one should do when the State Supreme Court says X but you think the law should be Y. Judge Bybee seems to be saying that the majority's in this boat and that in such a setting the decision to certify is improper. He also implies (and I have no reason to disbelieve him) that as to the substantive merits, he's in this boat as well -- and that, despite his misgivings as to the wisdom of the underlying state law, he nonetheless wouldn't certify.
The reason the issue is complicated, at least to me, is that obviously the panel thinks that there's some hope that the state law is in fact Y. Otherwise it would make no sense to certify, since the State Supreme Court will merely respond by saying "Nope, X is the rule." Remember, in this regard, that in cases under state law, the federal courts (including the Court of Appeals) are required to predict what this state supreme court would do, not merely read the existing cases. That's what state law "is".
So obviously the panel thinks that state law "might" be Y, since if they were 100% sure that the law "is" X -- i.e., that the State Supreme Court would say, yep, X applies -- there'd be no point in certifying the case. So then the issue becomes how much uncertainty justifies a decision to certify. One percent? Ten percent? Fifty percent?
Judge Bybee implicitly provides an answer to this question by arguing, at the end of his dissent, that the court should not certify because "I still don’t think there is any lack of 'controlling precedent in the decisions of the [Arizona S]upreme [C]ourt and intermediate appellate courts' to justify our order." But notice that this quote is not from any federal source, but is instead from Arizona's internal certification statutes. A federal court is not required to follow this standard; rather, Arizona's just telling its own supreme court that it can't answer a question unless the federal court was convinced (i.e., "that it appears to the certifying court") that there is no controlling state precedent.
Now, maybe Judge Bybee is saying (albeit obliquely) that a federal court shouldn't certify unless it's convinced that the state is permitted to answer the question pursuant to its internal state procedures. You could devise comity or other plausible rationales for such a view, but my sense is that they'd come up short. Or maybe the quotation is merely a coy attempt by Judge Bybee to persuade the Arizona Supreme Court not to take up the question, by implicitly arguing that they can't. But this both seems a wrong view of what the Arizona statute says as well as impugns Judge Bybee's motives, so I'll reject that theory as well.
Which leaves the question: So what's the standard, if not state law? Judge Bybee doesn't answer that question, but then again, neither does the majority.
It seems to me that certification is plausible -- and permissible -- if a federal court thinks that there's an actual chance (i.e., a non-hypothetical probability) that the state supreme court will say the law is Y even though existing state precedent says X. So even if there's a one percent chance, that's fine, at least as a categorical matter. Mind you, when you assess whether you should certify, that probability gets thrown into the mix alongside a ton of other equitable considerations. How long will certification take? What's the downside to the parties or the system of delay? What's the probability of not getting an answer back? All these factor into whether you should vote to certify.
So, in the end, I think that Judge Bybee has to do a little bit more here than he does to justify his vote. It'd be one thing if he said "I think there's no chance whatsoever that the current Arizona Supreme Court will change its mind, so certification is improper." And it'd be another thing if he said "I think there's a totally low chance that the Arizona Supreme Court will change its mind, and given the harms unique to this case engendered by delay, certification is thus not worthwhile." But I'd like to see (1) which version of this argument Judge Bybee intends (perhaps both?); and (2) more support for such a conclusion. Since, at least to me, it's not there just yet.
This is not a slam at all on Judge Bybee, since the majority doesn't really answer this question either, an issue that in any event I haven't seen virtually anyone else answer either. But it is something to think about. When should a federal court certify when it has some reason to think/hope that state law will change? Particularly with the rise in certification orders in the Ninth Circuit, I'd love to see someone on the court give explication of this issue a shot.