4.17 CERTIFICATION PROCEDURES
4.1701 Discretion of Court. Certification is discretionary in both the proposed certifying court 137 and the receiving court. The Supreme Court of Virginia has provided by Rule that it "may in its discretion answer questions of law certified to it by the Supreme Court of the United States, a United States court of appeals for any circuit, a United States district court, or the highest appellate court of any state, territory, or the District of Columbia . . . if a question of Virginia law is determinative in any proceeding pending before the certifying court and it appears there is no controlling precedent on point in the decisions of this Court or the Court of Appeals of Virginia." 138
4.1702 Principles. Federal courts have articulated certain principles that should inform the decision whether to certify a question of law to the Supreme Court of Virginia (or another state supreme court). In West American Insurance Co. v. Bank of Isle of Wight, 139 Judge Ellis stated that "no question may be certified unless (i) it is determinative of the cause, and (ii) unless there is no controlling Virginia Supreme Court precedent. Issues meeting these criteria may be certified. Whether to do so in the circumstances is within the sound discretion of the certifying court." 140 Further:
Prudent exercise of this discretion is important. All certifying courts should be keenly aware of their obligation not to abdicate their responsibility to decide issues properly before them. They should also be keenly aware that certification involves an imposition on the time and resources of the Supreme Court of Virginia and an increase in the expenditure of time and resources by the parties for, if certification is ordered, they must submit briefs and may be requested to make oral argument. All of this means delay in disposition, increased costs to the parties, and increased
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costs in judicial resources. These factors strongly suggest that the discretion to certify should be cautiously exercised. In appropriate cases it is the "best solution", but every case of an issue yet unresolved by the Supreme Court of Virginia is not an appropriate case. 141
4.1703 Who May Invoke. No party litigant may petition directly to the Supreme Court of Virginia for certification. Questions can be certified only by an order of the Supreme Court of the United States, a United States Court of Appeals, a United States district court, or the highest appellate court of any state or the District of Columbia. 142 The certifying court may invoke these proceedings sua sponte, and a party or parties may move for that certification. An order either granting or refusing a motion for certification is interlocutory and unappealable. 143
4.1704 Procedure. The Supreme Court's Rule requires that certifying courts' orders set forth:
| 1. | The nature of the controversy in which the question arises; | |
| 2. | The question of law to be answered; | |
| 3. | A statement of all the facts relevant to the question certified; |
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| 4. | The names of each of the parties involved; | |
| 5. | The name, Virginia State Bar number, mailing address, telephone number (including any applicable extension), facsimile number (if any), and email address (if any) of counsel for each of the parties involved; | |
| 6. | A brief statement explaining how the certified question of law is determinative of the proceeding in the certifying court; and | |
| 7. | A brief statement setting forth relevant decisions, if any, of this Court and the Court of Appeals of Virginia and the reasons why such decisions are not con-trolling. 144 |
The Supreme Court looks to the certification order for the facts and circumstances underlying the question certified. 145 It "may require the original or copies of all or of any portion of the record before the certifying court to be filed, if," in its opinion, "the record or portion thereof may be necessary in answering the certified question"; and it "may in its discretion restate any question of law certified or may request from the certifying court additional clarification with respect to any question certified or with respect to any facts." 146
This Supreme Court, "in its discretion, may decide whether to answer any certified question of law" and it "may revoke its decision to answer a certified question of law at any time." 147 "A notice accepting a question will include a briefing schedule and, if this Court permits oral argument, a tentative date and the length of time allowed for such argument." 148
If the Supreme Court agrees to answer a certified question, "[t]he form, length, and time for submission of briefs shall comply with Rules 5:26 through 5:32 mutatis mutandis." 149 The fees and costs associated with the
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filing of a certification order are the same as those associated with any civil appeal and are to be paid as provided in the order of the certifying court. 150 An opinion or order stating the law governing each question certified "will be rendered as soon as practicable after the submission of briefs and after any oral argument." 151
4.1705 Survey of Cases. The Supreme Court has answered questions certified by several different courts. 152 A substantial plurality of the decisions have involved either insurance 153 or tort 154 law, in both instances including questions of both statute and common law. The court also has accepted certification in significant numbers of commercial law cases, including banking, credit cards, franchises, contracts, 155 and public law cases, with issues ranging from campaign finance to education and municipal authority, among others, presenting mostly but not exclusively statutory
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questions. 156 Other cases have addressed certified questions involving real property...
