RULE 47. UNIFORM CERTIFICATION OF QUESTIONS OF LAW
(Federal Courts and Other Appellate Courts)
(a) Power to Answer. The supreme court may answer questions of law certified to it by the United States Supreme Court, a court of appeals of the United States, a United States district court, or the highest appellate or intermediate appellate court of any other state, when requested by the certifying court and the following conditions are met:
(1) questions of law of this state are involved in any proceeding before the certifying court which may be determinative of the proceeding;
(2) it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
(b) Method of Invoking. This rule may be invoked by an order of any of the courts referred to in subdivision (a) upon the court's own motion or upon the motion of any party to the proceeding.
(c) Contents of Certification Order. A certification order must contain:
(1) a question of law formulated in a manner allowing the question to be answered by a "yes" or "no";
(2) a statement of all facts relevant to the question certified, showing fully the nature of the controversy in which the question arose;
(3) a statement demonstrating there is no controlling precedent in the decisions of the supreme court.
(d) Preparation of Certification Order. The certification order must be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the supreme court by the clerk of the certifying court. The supreme court may require the original or a copy of the record, or of any portion of the record, before the certifying court to be filed with the certification order if, in the opinion of the court, the record or a portion of the record may be necessary in answering the questions.
(e) Fees and Costs. Fees and costs are> the same as in civil appeals docketed before the supreme court and must be equally divided among the parties unless the certifying court orders otherwise in its certification order.
(f) Briefs and Argument. Unless the certifying court specifies the order and time within which the briefs must be filed and served, all proceedings, including oral argument, in the supreme court will be governed by these rules and the plaintiff will be deemed to be the appellant.
(g) Opinion. The written opinion of the supreme court stating the law governing the questions certified must be sent by the supreme court clerk to the certifying court and to the parties.
(h) Power to Certify. The supreme court, on its own motion or the motion of any party, may order certification of questions of law to the highest court of any state when the following conditions are met:
(1) it appears to the court that there are questions of law of the receiving state involved in any proceeding before the court which may be determinative of the proceeding;
(2) it appears to the court that there are no controlling precedents in the decisions of the highest court of the receiving state.
(i) Procedure for Certifying. The procedure for certification from this state to the receiving state is that provided in the laws of the receiving state.
(j) Severability. If any provision of this rule or the application of this rule is held invalid, the invalidity does not affect other provisions or applications of the rule which can be given effect without the invalid provision or application.
(k) Construction. This rule must be construed to effectuate its general purpose, which is to make uniform the law of those states which enact the Uniform Certification of Questions of Law Rule.
(l) Withdrawal of Order. A certification order may be withdrawn by subsequent order of the certifying court before issuance of the written opinion of the supreme court.
(m) Short Title. This rule may be cited as the Uniform Certification of Questions of Law Rule.
Rule 47 was amended, effective March 1, 1996; March 1, 2003.
Rule 47 is substantially the same as the 1967 Uniform Certification of Questions of Law Act as drafted by the National Conference of Commissioners on Uniform State Laws.
Rule 47 was revised, effective March 1, 2003. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
The following comments are based upon the official Comments to the Uniform Certification of Questions of Law Act.
This rule provides that the supreme court has the right to answer questions certified to it; it is not mandatory that the court answer certified questions. See, for example, Atlas Life Insurance Co. v. W. I. Southern, Inc. , 306 U. S. 563, 59 S. Ct. 657, 83 L. Ed. 987 (1939) , and National Labor Relations Board v. White Swan Co. , 313 U. S. 23, 61 S. Ct. 75, 85 L. Ed. 1165 (1941) (in both cases the Supreme Court of the United States refused to answer certified questions).
The courts listed as the court which may certify questions are the Supreme Court, the federal Courts of Appeals and the federal District Courts, which would include three-judge District Courts under 28 U. S. C. 2281 and 2284. Also included are "the highest appellate court or the intermediate appellate court" of other states. This provision allows certification of questions in conflicts cases.
The statement of facts in a certification order should present all of the relevant facts. The purpose is to give the answering court a complete picture of the controversy so that the answer will not be given in a vacuum. The certifying court could include exhibits, excerpts from the record, a summary of the facts found by the court, and any other document which will be of assistance to the answering court.
Subdivision (f) provides for incorporation by reference of the local rules or statutes governing briefs and arguments.
Subdivisions (h) and (i) allow certifications from the supreme court to the highest court of another state. This could prove to be very useful in the case of conflicts of laws where the supreme court wishes to apply the law of another state. If the law of that state is unclear on the point, a question could be certified. This is the reciprocal provision of subdivision (a).
Subdivision (l) is not part of the uniform rule. It was added in 1996 to formalize the procedure for withdrawal of the certification order when the case pending in the certifying court is settled prior to the issuance of the opinion by the supreme court.
SOURCES: Joint Procedure Committee Minutes of April 25-26, 2002, page 27.
CONSIDERED: N.D.C.C. §§ 32-24-01 through 32-24-04.