RULE 47. UNIFORM CERTIFICATION OF QUESTIONS OF LAW
Effective Date: 9/1/1983
Obsolete Date: 3/1/2003
(Federal Courts and Other Appellate Courts)
(a) Power to Answer. The supreme court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, a United States district court, or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which 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 cause.
(c) Contents of Certification Order. A certification order shall set forth:
1. the questions of law to be answered; and
2. a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.
(d) Preparation of Certification Order. The certification order shall 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 copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of the supreme court, the record or portion thereof may be necessary in answering the questions.
(e) Costs of Certification. Fees and costs shall be the same as in civil appeals docketed before the supreme court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification.
(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 shall be sent by the clerk to the certifying court and to the parties.
(h) Power to Certify. The supreme court of this state, 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 it appears to the certifying court that there are involved in any proceeding before the court questions of law of the receiving state which may be determinative of the cause then pending in the certifying court and it appears to the certifying court that there are no controlling precedents in the decisions of the highest court.
(i) Procedure on Certifying. The procedures for certification from this state to the receiving state shall be those provided in the laws of the receiving state.
(j) Severability. If any provision of this rule or the application thereof to any person, court, or circumstance 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, and to this end the provisions of this rule are severable.
(k) Construction. This rule shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
(l) The 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; October 1, 2014.
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.
Rule 47 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."
SOURCES: Joint Procedure Committee Minutes of April 25-26, 2002, page 27.
STATUTES AFFECTED:
CONSIDERED: N.D.C.C. §§ 32-24-01 through 32-24-04.