Certified Federal Questions: It’s Time To Expand the Jurisdiction of the Florida Supreme Court
Illustration by Barbara Kelley
In 1938, the U.S. Supreme Court, in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), held that federal courts must apply state law when hearing diversity cases. In 1945, Florida became the first state in the country to provide a mechanism whereby federal courts could seek guidance on unsettled questions of state law. That mechanism — F.S. §25.031 — authorized the Florida Supreme Court to adopt a rule allowing both the U.S. Supreme Court and the U.S. courts of appeals to “certify” questions to it when a case’s outcome turns on Florida law and there is no controlling Florida Supreme Court precedent.[1] This procedure is referred to as interjurisdictional certification.
Fifteen years later, in Clay v. Sun Insurance Office Ltd., 363 U.S. 207, 212 (1960), the U.S. Supreme Court praised Florida for having “the rare foresight” to create such a useful tool.[2] This remark caused other states to follow Florida’s lead.[3] Today, 54 of the country’s 56 jurisdictions[4] have such a procedure — the only ones that lack it are American Samoa and North Carolina.[5]
However, as can be seen from Table 2, which appears at the end of this article, Florida has fallen behind the times. While Florida continues to let only the U.S. Supreme Court and the U.S. courts of appeals send certified questions to the Florida Supreme Court, other jurisdictions now permit such questions to be sent to their supreme courts from a multitude of domestic and foreign courts.
Given the foregoing, this article argues that the time has come for Florida to catch up. Specifically, Florida should expand its certification procedure to include all federal courts as well as all state, tribal, and foreign country appellate courts.
Before proceeding, a moment needs to be spent on nomenclature. “Interjurisdictional certification” — the type discussed in this article — exists alongside “intrajurisdictional certification.” In the former, courts belonging to one court system can ask questions of courts belonging to a different court system. In the latter, inferior courts can ask questions of higher courts in the same court system.[6]
Florida’s Interjurisdictional Certification Procedure
As noted above, in 1945, the Florida Legislature adopted the United States’ first interjurisdictional certification procedure. Unfortunately, research reveals almost nothing about the statute’s history.[7] The House’s journal, for example, reports only that the proposal emerged from the Committee on Statutory Revisions as House Bill 579 and was passed unanimously (71-0), and without discussion, by the full House on May 15, 1945.[8] Likewise, the Senate’s journal reports only that the bill passed unanimously (33-0), and without discussion, on May 31, 1945.[9] The bill then was sent to Gov. Millard F. Caldwell, who took no action on it.[10] As a result, on June 11, 1945, H.B. 579 was filed in the Secretary of State’s Office and became effective immediately.[11]
The 1945 legislative session was an extremely busy one, with more than 350 pieces of legislation being passed.[12] As a result, H.B. 579 flew under the radar — not a single newspaper, for example, reported on it. It seems likely, however, that the bill was the work (either fully or partially) of trial lawyer Thomas D. Beasley, the chair of the Committee on Statutory Revisions and a future House speaker and circuit court judge.[13]
Previous commentators[14] have suggested, quite reasonably, that H.B. 579 was a response to the U.S. Supreme Court’s decision in Meredith v. City of Winter Haven, 320 U.S. 228 (1943). In Meredith, the Fifth Circuit had dismissed the plaintiffs’ lawsuit because it involved unsettled questions of Florida municipal bond law and had suggested that they seek relief in state court.[15]
On appeal, however, the U.S. Supreme Court reversed and held that the Fifth Circuit should have decided the case, even though the Florida Supreme Court “ha[s] not answered [the questions], the answers [a]re difficult, and the character of the answers which the [Florida Supreme Court] might ultimately give remain [] uncertain.”[16] On remand, the Fifth Circuit, after interpreting Florida’s municipal bond law, found for the plaintiffs.[17]
In 1961, the Florida Supreme Court formally implemented F.S. §25.031 by adding Rule 4.61 to the Florida Appellate Rules.[18] That step was taken because in the Clay case, Justice Hugo L. Black had pointed out that the Florida Supreme Court had not adopted a rule permitting certified questions:
[This] Court assumes that there is in Florida a method which will enable the Court of Appeals for the Fifth Circuit to obtain a decision of the Supreme Court of Florida by certifying to them the two questions of state law here involved. Florida does have such a law on paper, but evidently does not have one in fact. The state statute, first passed in 1945 and now appearing as Fla.Stat.Ann. (1959 Supp.) §25.031, authorizes the Supreme Court of Florida to provide rules for obtaining such certifications from federal appellate courts, but the best information obtainable is that the Supreme Court of Florida has never promulgated any such rules, and evidently has never accepted such a certificate.[19]
Today, Rule 4.61 appears as Rule 9.150 of the Florida Appellate Rules.[20] The process set out in the rule is quite simple, and merely requires federal appellate courts to send to the Florida Supreme Court “an opinion. . . or. . . a separate certificate” setting out the question(s) to be answered.[21]
From the beginning, objections were raised concerning the constitutionality of F.S. §25.031.[22] Thus, in 1980, as part of a far-reaching rewording of art. V, §3(b) — the section of the Florida Constitution dealing with the Supreme Court’s jurisdiction — the following was added as new subparagraph (6): “The supreme court. . . [m]ay review a question of law certified by the Supreme Court of the United States or a United States Court of Appeals which is determinative of the cause and for which there is no controlling precedent of the supreme court of Florida.”[23]
The Uniform Certification of Questions of Law Act
In 1967, the National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated the Uniform Certification of Questions of Law Act (UCQLA).[24] This model law was based primarily on Florida Appellate Rule 4.61.[25] In 1995, the NCCUSL released an updated version of the UCQLA known as the Uniform Certification of Questions of Law [Act] [Rule] (UCQLAR).[26] The Restatement (Third) of Conflicts has endorsed both versions.[27]
The UCQLAR, in addition to changing the UCQLA’s name to make it clear that it can be adopted as either a statute or a court rule, expands the list of courts that can certify questions to include: 1) all federal courts (rather than just the U.S. Supreme Court and the U.S. courts of appeals); 2) state intermediate appellate courts (rather than just state supreme courts); 3) tribal appellate courts; and, 4) Canadian and Mexican appellate courts.[28] As a result, one commentator has remarked, “The 1995 [version of the] UCQLA provides for acceptance of certified questions from nearly every existing court.”[29] This statement ignores the fact that only two foreign countries are included (Canada and Mexico).[30]
Currently, “[a]t least 23 states and [the District of Columbia] have adopted, by legislation or court rule, the Uniform Certification of Questions of Law Act (1967); eight states have adopted the 1995 version of the Act; and other states have borrowed key operative language from the Act.”[31] As a result, there is a substantial body of caselaw interpreting both the UCQLA and the UCQLAR.[32]
Fixing Interjurisdictional Certification in Florida
Florida’s current interjurisdictional certification procedure, although once on the cutting edge, has grown rusty with age. This is because it allows only the U.S. Supreme Court and the U.S. courts of appeals to certify questions to the Florida Supreme Court. Of U.S. jurisdictions with an interjurisdictional certification procedure, only one (New Jersey) is more restrictive than Florida and only three (Mississippi, Pennsylvania, and Texas) are as restrictive as Florida.
The most obvious problem with Florida’s current procedure is that it does not allow U.S. district courts to certify questions to the Florida Supreme Court.[33] However, this is just the tip of the iceberg — also excluded are state supreme courts, state intermediate appellate courts, tribal appellate courts,[34] and foreign country appellate courts.
Other U.S. jurisdictions, having considered the issue of interjurisdictional certification later than Florida, have been more expansive in their approaches. As shown in Table 2, 44 U.S. jurisdictions allow certified questions from U.S. district courts; 27 U.S. jurisdictions allow certified questions from other federal courts (including U.S. bankruptcy courts); 25 U.S. jurisdictions allow certified questions from state supreme courts; 13 U.S. jurisdictions allow certified questions from state intermediate appellate courts; nine U.S. jurisdictions allow certified questions from tribal appellate courts; six U.S. jurisdictions allow certified questions from Canadian and Mexican appellate courts; and one U.S. jurisdiction (Delaware) allows certified questions from the U.S. Securities and Exchange Commission as well as any foreign country agency that performs the same tasks as the SEC.
When F.S. §25.031 was passed in 1945, Florida’s restricted approach to interjurisdictional certification was sufficient. After all, not only was Florida breaking new ground with its statute, it was a sparsely populated state with little influence in either national or international affairs.[35] Today, of course, the exact opposite is true: Florida is the third largest U.S. jurisdiction by population; the country’s gateway to the Caribbean and Latin America; the cruise capital of the nation; the home of Walt Disney World, the Kennedy Space Center, Major League Baseball’s Grapefruit League, and the Daytona 500 (among many other tourist attractions); a leader in such diverse industries as aerospace, construction, education, farming, health care, and tourism; and, since 2000, a pacesetter in national political affairs.[36] Indeed, if Florida was its own country, it now would be the world’s 14th largest economy.[37] Moreover, Florida regularly ranks first among U.S. jurisdictions in visits by both domestic and foreign travelers[38] and is the top U.S. jurisdiction for foreign buyers of real estate.[39]
Because of the foregoing changes, the likelihood that the outcome of a case in another jurisdiction will hinge on Florida law has increased dramatically. Thus, it behooves Florida to make it as easy as possible for other courts to obtain guidance on Florida law whenever they need it.[40] As a result, Florida should not just embrace the UCQLAR but should expand on it.[41] Specifically, Florida should allow certified questions from all federal courts; all state appellate courts; all tribal appellate courts; and all foreign country appellate courts.
Objections To Expanding Interjurisdictional Certification
Whenever proposals to expand interjurisdictional certification procedures are made, a common objection is that the answering court will become overwhelmed with requests.[42] This objection, however, is a red herring.
First, nothing requires a court that receives a certified question to answer it (especially if it finds that the question does not need answering).[43] As was explained more than 70 years ago:
There is a possibility that extensive use of certification might hinder the defining court by seriously reducing the time available for consideration of cases brought to the court at its own discretion. This would seem to be highly problematical, [but] an examination of the jurisdictions [that allow certified questions] shows that in none has there been a disproportionate use of certified questions. Should the problem ever arise, the better practice of making the answering of certified questions optional offers an extremely satisfactory method of handling the problem.[44]
Second, even with the vast expansion called for by this article, it is hard to imagine the Florida Supreme Court becoming inundated with certified questions. In fact, federal courts routinely are chided for not asking enough certified questions,[45] and this experience certainly has been true in Florida. On its website, the Florida Supreme Court provides data regarding its caseload going back to 2000.[46] This data is summarized in Table 1. During this 24-year period, the Florida Supreme Court decided a total of 80 certified question cases, which works out to a mere 3.33 cases a year.
Another common objection to expanding interjurisdictional certification is that it slows down the underlying litigation, and drives up its cost, as parties are forced to bring their lawsuit to the answering court.[47] Even where this is a legitimate concern, in the long run it is outweighed by the fact that future litigants and courts are spared from having to make repeated guesses about the same question of state law.[48] As a result, most recent commentators have supported expanding certification.[49]
If We Build It, Will They Come?
Even if the suggestions contained in this article are implemented, there is no guarantee that courts in other jurisdictions will send their questions about Florida law to the Florida Supreme Court. Instead, they might decide to continue to answer such questions themselves at the risk of coming to the wrong conclusion.
To date, no studies have been conducted to determine whether an expansive interjurisdictional certification procedure leads to more questions being asked. Logically, of course, this should be the result, especially if the availability of the procedure is publicized widely.
In the end, however, worrying about whether interjurisdiction certification will be used more frequently if it is expanded misses the point. Florida should care that its law is properly interpreted and should do everything in its power to see that it is. That other jurisdictions may from time to time ignore Florida’s invitation does not mean that Florida should not extend it.
Conclusion
In 1945, Florida pioneered the concept of interjurisdictional certification. In 2024, Florida has been left behind by other jurisdictions that have recognized the value of making such certification widely available. Both to reclaim its prior place, and to help ensure that Florida law is properly applied by courts around both the country and the world, Florida should again take the lead and expand the availability of its interjurisdictional certification procedure as outlined in this article.
[1] See Robert M. Jarvis, Florida Constitutional Law in a Nutshell 418 (2020).
[2] The opinion in Clay was written by Justice Felix Frankfurter. See Clay, 363 U.S. at 208. He apparently learned about Florida’s statute from a presentation given the previous year by Philip B. Kurland, who had served as his law clerk from 1945 to 1946. See Philip B. Kurland, Toward a Cooperative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F.R.D. 481, 489-90 (1960) (speech delivered in Miami Beach on August 20, 1959, to the Conference of Chief Justices). At the time of his speech, Kurland was a tenured law professor at the University of Chicago. See David Binder, Philip B. Kurland, 74, Scholar Who Ruled on Nixon Tapes, N.Y. Times, Apr. 18, 1996.
[3] Initially, however, there was a good deal of opposition to Florida’s seemingly radical reordering of federalism principles. For a further discussion, see, e.g., Christy F. Harris, Note, Florida’s Interjurisdictional Certification: A Reexamination to Promote Expanded National Use, 22 U. Fla. L. Rev. 21, 22 (1969) (discussing the statute’s “cool reception” by other U.S. jurisdictions). But see Gerald M. Levin, Note, Inter-Jurisdictional Certification: Beyond Abstention Toward Cooperative Judicial Federalism, 111 U. Pa. L. Rev. 344, 363 (1963) (praising Florida’s “pioneering” statute and calling for its widespread adoption). The objections (part constitutional, part philosophical, and part practical) eventually fell to the wayside as the benefits of certification came to be more fully understood.
[4] This number consists of the 50 states, the District of Columbia, and America’s five inhabited overseas territories (American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands).
[5] It is not clear why American Samoa has not adopted such a procedure — the best explanation seems to be that the matter simply has not been considered. Clearly, however, the territory’s High Court has the power to adopt a certification procedure. See Am. Samoa Code Ann. §3.0202(a) (“The High Court of American Samoa shall have [the] power to issue all writs and other process, make rules and orders, and do all acts, not inconsistent with law or with the rules made by the Chief Justice of American Samoa, as may be required for the due administration of justice.. . . ”). In contrast, numerous commentators have called on North Carolina to adopt such a procedure, all to no avail. See, e.g., Eric Eisenberg, Note, A Divine Comity: Certification (At Last) in North Carolina, 58 Duke L. J. 69 (2008); Michael Klotz, Comment, Avoiding Inconsistent Interpretations: United States v. Kelly, the Fourth Circuit, and the Need for a Certification Procedure in North Carolina, 49 Wake Forest L. Rev. 1173 (2014); Sharika Robinson, Note, Right, But for the Wrong Reasons: How a Certified Question to the Supreme Court of North Carolina Could Have Alleviated Conflicting Views and Brought Clarity to North Carolina State Law, 34 N.C. Cent. L. Rev. 230 (2012); Jessica Smith, Avoiding Prognostication and Promoting Federalism: The Need for an Inter-Jurisdictional Certification Procedure in North Carolina, 77 N.C. L. Rev. 2123 (1999). See also Vikram David Amar & Jason Mazzone, Why the North Carolina Berger Voter ID Case Pending in the U.S. Supreme Court Would Benefit from Certification to the State High Court: Part Two in a Series, Justia, May 11, 2022, https://verdict.justia.com/2022/05/11/why-the-north-carolina-berger-voter-id-case-pending-in-the-u-s-supreme-court-would-benefit-from-certification-to-the-state-high-court.
[6] An example of intrajurisdictional certification can be found in 28 U.S.C. §1254(2), which permits the U.S. courts of appeals to certify questions to the U.S. Supreme Court, which then can “give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.” A second example, of course, is the ability of Florida’s district courts of appeal to certify questions to the Florida Supreme Court. See Fla. Const. art. V, §3(b)(4)-(5).
[7] As one previous commentator has observed, “There are no known recorded reports or hearings with regard to the legislative history of Fla. Stat. §25.031 (1977).” Larry M. Roth, Certified Questions from the Federal Courts: Review and Re-proposal, 34 U. Miami L. Rev. 1, 6 n.28 (1979).
[8] See Fla. H.R. J. 495, 521, 533, 553-54 (Reg. Sess. 1945).
[9] See Fla. S. J. 796, 834, 875 (Reg. Sess. 1945).
[10] See 1945 Fla. Laws Ch. 23098 (at page 1291). Caldwell subsequently became a member of the Florida Supreme Court (1962-69) and during his tenure participated in six certified question cases. See Martinez v. Rodriguez, 215 So. 2d. 305 (Fla. 1968) (wrongful death case; certified question from the Fifth Circuit); Moragne v. State Marine Lines, Inc., 211 So. 2d 161 (Fla. 1968) (wrongful death case; certified question from the Fifth Circuit); Life Ins. Co. of Va. v. Shifflet, 201 So. 2d 715 (Fla. 1967) (insurance coverage case; certified question from the Fifth Circuit; opinion written by Caldwell); Hopkins v. Lockheed Aircraft Corp., 201 So. 2d 743 (Fla. 1967) (wrongful death case; certified question from the Fifth Circuit); Aldrich v. Aldrich, 163 So. 2d 276 (Fla. 1964) (alimony case; certified question from the U.S. Supreme Court); Green v. American Tobacco Co., 154 So. 2d 169 (Fla. 1963) (wrongful death case; certified question from the Fifth Circuit; Caldwell dissented but did not write an opinion).
[11] See 1945 Fla. Laws Ch. 23098, §4.
[12] See Over 350 State Acts Become Law; Governor Caldwell Withholds Signature, Miami Herald 1, June 12, 1945.
[13] For a profile of Beasley (1904-88), see Thomas Beasley, Former Speaker of the Florida House, Orlando Sentinel B6, Jan. 17, 1988, 1988 WLNR 1982410.
[14]See, e.g., Harris, Florida’s Interjurisdictional Certification at 27-28; Roth, Certified Questions from the Federal Courts at 6-7.
[15] See Meredith v. City of Winter Haven, 134 F.2d 202, 207-08 (5th Cir. 1943).
[16] Meredith, 320 U.S. at 237.
[17] See Meredith v. City of Winter Haven, 141 F.2d 348, 351-52 (5th Cir.), reh’g denied, 141 F.2d 1019 (5th Cir.), cert. denied, 323 U.S. 738 (1944).
[18] See In re Florida Appellate Rules, 127 So. 2d 444, 444-45 (Fla. 1961) (making the rule effective Mar. 1, 1961).
[19] Clay, 363 U.S. at 226 (Black, J., dissenting).
[20] See Fla. R. App. P. 9.150. The rule’s number was changed from 4.61 to 9.510 in 1977. See In re Proposed Florida Appellate Rules, 351 So. 2d 981, 1016 (Fla. 1977). In 1980, the rule’s number was changed again, this time from 9.510 to 9.150. See In re Emergency Amendments to Rules of Appellate Procedure, 381 So. 2d 1370, 1390-91 (Fla. 1980). Both times, only minor changes in wording were made to the predecessor rule.
[21] For a further discussion of the rule’s mechanics, see, e.g., 2 Philip J. Padovano, Florida Appellate Practice §29:7 (2023); 3 Fla. Jur. 2d Appellate Review §§453-455 (2023); Harry Lee Anstead, et al., The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L. Rev. 431, 534-35 (2005).
[22] See, e.g., Stanton S. Kaplan, Certification of Questions from Federal Appellate Courts to the Florida Supreme Court and its Impact on the Abstention Doctrine, 16 U. Miami L. Rev. 413, 426-27 (1962) (wondering whether the Florida Legislature could expand the jurisdiction of the Florida Supreme Court); Brian Mattis, Certification of Questions of State Law: An Impractical Tool in the Hands of the Federal Courts, 23 U. Miami L. Rev. 717, 734 (1969) (wondering whether answers to certified questions constituted impermissible advisory opinions); Charles J. Hanemann, Jr., Comment, Certification to State Courts: Progress in the Field of Federal Abstention, 36 Tul. L. Rev. 571, 572 (1962) (wondering whether the Florida Legislature could authorize a federal court to delegate its responsibilities to a non-art. III court).
[23] Fla. Const. art. V, §3(b)(6). See also Supreme Court Jurisdiction, Miami Herald 2-AA, Mar. 2, 1980 (explaining that this language was intended to “[r]etain[] as constitutional authority rather than merely statutory” authority the Court’s power to hear “[c]ertified questions from [the] U.S. Supreme or [the U.S.] Court[s] of Appeals.” As noted in the text, the decision to add §3(b)(6) came as part of a broader effort to refashion the Florida Supreme Court’s jurisdiction. For all the changes, see Fla. Am. S.J.R. 20-C (1979). Senate Joint Resolution 20-C was approved by the voters during a special election held on March 11, 1980. At the election, the changes appeared on the ballot as Amendment 2 and passed by a vote of 940,420 to 460,266 (67.14%-32.86%). See Florida Amendment 2, Jurisdiction of the State Supreme Court Amendment (March 1980), Ballotpedia, https://ballotpedia.org/Florida_Amendment_2,_Jurisdiction_of_the_State_Supreme_Court_Amendment_(March_1980).
[24] See Unif. Certification of Questions of Law Act, 12 U.L.A. 49 (1967).
[25] See Ira P. Robbins, The Uniform Certification of Questions of Law Act: A Proposal for Reform, 18 J. Legis. 127, 133 (1992) (“The Commissioners patterned the U.L.A. largely on Florida Appellate Rule 4.61 (in addition to British law), as Florida had enacted the first interjurisdictional procedure in the United States.”). For a comparison of the Florida and British systems of interjurisdictional certification, see Allan D. Vestal, The Certified Question of Law, 36 Iowa L. Rev. 629, 643-44 (1951) (explaining that Great Britain adopted its system in 1859 as its empire expanded across the globe).
[26] See Unif. Certification of Questions of Law [Act] [Rule] (1995),12 U.L.A. 70 (1996).
[27] See Restatement (Third) of Conflicts §5.07 (Am. L. Inst., Tent. Draft 2, Mar. 25, 2021).
[28] See Uniform Law Commission, Certification of Questions of Law Act, https://www.uniformlaws.org/committees/community-home?CommunityKey=494b84ff-bd1f-465b-89a0-ffaddf84d7b3 (under “Summary”).
[29] Rebecca A. Cochran, Federal Court Certification of Questions of State Law to State Courts: A Theoretical and Empirical Study, 29 J. Legis. 157, 167 (2003).
[30] Including Canada and Mexico, there currently are 195 countries in the world. See Toby Saunders, How Many Countries Are There in 2024?, BBC Sci. Focus, Jan. 5, 2024, https://www.sciencefocus.com/planet-earth/how-many-countries-are-there (reporting on statistics from the United Nations).
[31] Bennett Evan Cooper, Certification of Questions of Law to State Supreme Courts, Reuters, June 22, 2021, https://www.reuters.com/legal/legalindustry/certification-questions-law-state-supreme-courts-2021-06-22/.
[32] See Eric C. Surette, Annotation, Construction and Application of Uniform Certification of Questions of Law Act, 69 A.L.R. 6th 415, 2011 WL 5041906 (2011 & 2024 Supp.). See also 17A Federal Practice and Procedure, Wright and Miller §4248 (3d ed. 2023).
[33] See Brian E. Mattis & B. Taylor Mattis, Erie and Florida Law Conflict at the Crossroads: The Constitutional Need for Statewide Stare Decisis, 18 Nova L. Rev. 1333, 1380-81 (1994) (lamenting the fact that U.S. district courts cannot certify questions to the Florida Supreme Court). Others have made the same point. See, e.g., Kaplan, Certification of Questions from Federal Appellate Courts at 433; Hanemann, Certification to State Courts at 574.
[34] Both of Florida’s federally recognized tribes (the Miccosukee and the Seminole) have their own courts. See Tonya Kowalski & Robert M. Jarvis, Indian Courts, Florida’s Other Courts: Unconventional Justice in the Sunshine State 173-80 (Robert M. Jarvis, ed. 2018) (explaining that the Miccosukees’ court was established in 1981 while the Seminole court was founded in 2015). Overall, it is estimated that there are approximately 400 tribal courts in the U.S. See U.S. Department of the Interior — Bureau of Indian Affairs, Tribal Court Systems, https://www.bia.gov/CFRCourts/tribal-justice-support-directorate.
[35] See David Colburn & Lance deHaven-Smith, Florida’s Megatrends: Critical Issues in Florida (2d ed. 2010). As these authors explain: “Florida’s growth exploded in the postwar period from 1945 to 1960. Population growth averaged 558 people per day over this [15]-year period, with more than 700 per day arriving during the 1950s. More people moved to Florida in this period than had lived in the state in all the years prior to 1920.” Id. at 33. See also id. at 29 (“[T]he Florida that most of us know today is, in large measure, a post-World War II development.”).
[36] For a further discussion, see, e.g., Mary E. Adkins, Making Modern Florida: How the Spirit of Reform Shaped a New State Constitution (2016); Godefroy Desrosiers-Lauzon, Florida’s Snowbirds: Spectacle, Mobility, and Community since 1945 (2011); Peter Dunbar & Mike Haridopolos, The Modern Republican Party in Florida (2019); Gary R. Mormino, Land of Sunshine, State of Dreams: A Social History of Modern Florida (2005); Jason Vuic, The Swamp Peddlers: How Lot Sellers, Land Scammers, and Retirees Built Modern Florida and Transformed the American Dream (2021).
[37] See Sheridan Meek, Florida’s GDP Growth Now Makes It 14th Largest Economy in the World, Florida Chamber of Commerce, Nov. 21, 2023, https://www.flchamber.com/breaking-news-floridas-gdp-growth-now-makes-it-14th-largest-economy-in-the-world/.
[38] See Cu Fleshman, The Top 5 U.S. States to Visit for International Travelers, Airalo Blog (Jan. 24, 2024), https://www.airalo.com/blog/the-top-5-us-states-to-visit-for-international-travelers; Abdol Rauf, Top 20 Most Visited States in the US, Traveling Rauf (Jan. 6, 2024), https://travelingrauf.com/most-visited-states-in-the-us/raveling.
[39] See Mike Seton, Florida Ranked Top Destination for Foreign Real Estate Buyers, B Magazine (Aug. 9, 2023), https://www.benoitproperties.com/news/florida-ranked-top-destination-for-foreign-real-estate-buyers/.
[40] In the future, if things do not change, it is possible that some courts that cannot certify questions to the Florida Supreme Court will turn to generative artificial intelligence for answers. In December 2022, for example, Jan Swoboda, a German law student, explained how engineers could build such functionality: “I am thinking about creating a fine-tuned GPT model for German court cases. The idea: The user should be able input a fictional case and the model should return the expected ruling of German courts. My approach: I have access to 600,000 German court rulings, from which I could build a dataset to fine-tune a model with. I would put the case-text as the prompt and then the ruling as the completion.” Jan Swoboda, Fine-tuned Model for German Court Cases, OpenAI (Dec. 2022), https://community.openai.com/t/fine-tuned-model-for-german-court-cases/24149.
[41] Although the author believes that any change could be accomplished by the Florida Supreme Court simply amending Rule 9.150, it would be better if the change came via a rewriting of art. V, §3(b)(6), to avoid questions about the expanded rule’s constitutionality.
[42] One set of commentators has gone so far as to argue that interjurisdictional certification is nothing more than a way for federal judges to “shirk[] tiresome legal disputes” and “impress state courts into service on the more tedious legal issues that come before them.” Wendy L. Watson et al., Federal Court Certification of State-Law Questions: Active Judicial Federalism, 28 Just. Sys. J. 98, 99, 103 (2007).
[43] In Greene v. Massey, 384 So. 2d 24 (Fla. 1980), for example, the Florida Supreme Court declined to answer a certified question from the Fifth Circuit and wrote: “We have already stated that the decision of the District Court of Appeal, Second District, constitutes the law of the case. Since under the circumstances a response to the question posed would not be ‘determinative of the cause,’ we decline to undertake an academic discussion of the significance of a reversal ‘in the interests of justice.’ See §25.031, Fla. Stat. (1979), and Fla. R. App. P. 9.510.” Id. at 27-28. See also Watchtower Bible Tract Soc’y of N.Y., Inc. v. Municipality of Ponce, 197 F. Supp. 3d 340, 343 n.3, 345 (D.P.R. 2016) (federal district judge recounts how his first request for a certified answer was denied by the Puerto Rico Supreme Court — later, after he had held additional proceedings, his second request was granted). For a further discussion of when, why, and how state courts reject requests, see Richard Alan Chase, Note, A State Court’s Refusal to Answer Certified Questions: Are Inferences Permitted?, 66 St. John’s L. Rev. 407 (1992). See also John B. Corr & Ira P. Robbins, Interjurisdictional Certification and Choice of Law, 41 Vand. L. Rev. 411, 418-30 (1988) (noting that in some instances, state supreme courts reformulate the asking court’s question rather than reject answering it).
[44] Vestal, The Certified Question of Law at 646-47 (footnotes omitted).
[45] See, e.g., Frank Chang, Note, You Have Not Because You Ask Not: Why Federal Courts Do Not Certify Questions of State Law to State Courts, 85 Geo. Wash. L. Rev. 251 (2017). See also Gregory L. Acquaviva, The Certification of Unsettled Questions of State Law to State High Courts: The Third Circuit’s Experience, 115 Penn St. L. Rev. 377 (2010) (reporting on the Third Circuit’s reluctance to use certification); Bailey D. Barnes, A Uniform Standard for Certifying Questions to State Courts, 61 U. Louisville L. Rev. 567, 571-78 (2023) (criticizing as too restrictive the various tests used by the different federal circuit courts of appeals to decide whether to certify a question); Jason A. Cantone & Carly Giffin, Certified Questions of State Law: An Empirical Examination of Use in Three U.S. Courts of Appeals, 53 U. Tol. L. Rev. 1 (2021) (study analyzing the limited use of certified questions by the Third, Sixth, and Ninth circuits). Just recently, the U.S. Supreme Court criticized the federal appellate courts for not asking certified questions in two different cases. In McKesson v. Doe, 592 U.S. 1 (2020), the court, in a per curiam opinion, wrote: “We think that the Fifth Circuit’s interpretation of state law is too uncertain a premise on which to address the question presented. The constitutional issue, though undeniably important, is implicated only if Louisiana law permits recovery under these circumstances in the first place. The dispute thus could be “greatly simplifie[d]” by guidance from the Louisiana Supreme Court on the meaning of Louisiana law. Bellotti v. Baird, 428 U.S. 132, 151, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976).” Id. at 4. During the same term, Justice Sonia M. Sotomayor, in her concurrence in Carney v. Adams, 592 U.S. 53, 68 (2020), wrote: “Certification may be especially warranted in a case such as this, where invalidating a state constitutional provision would affect the structure of one of the State’s three major branches of government.” The problem of too little resort to interjurisdictional certification where it is available is not new. Indeed, in Lehman Brothers v. Schein, 416 U.S. 386 (1974), the court vacated the judgement of the Second Circuit because it had not bothered to ask for advice from the Florida Supreme Court in a shareholders’ derivative lawsuit: “Here resort to [certification] would seem particularly appropriate in view of the novelty of the question and the great unsettlement of Florida law, Florida being a distant State. When federal judges in New York attempt to predict uncertain Florida law, they act, as we have referred to ourselves on this Court in matters of state law, as ‘outsiders’ lacking the common exposure to local law which comes from sitting in the jurisdiction. The judgment of the Court of Appeals is vacated and the cases are remanded so that that court may reconsider whether the controlling issue of Florida law should be certified to the Florida Supreme Court pursuant to Rule 4.61 of the Florida Appellate Rules.” Id. at 391-92.
[46] See Florida Supreme Court, Caseload Statistics for the Florida Supreme Court, https://supremecourt.flcourts.gov/News-Media/Publications-Statistics.
[47] In Clay, for example, Justice William O. Douglas, Sr., wrote: “Some litigants have long purses. Many, however, can hardly afford one lawsuit, let alone two. Shuttling the parties between state and federal tribunals is a sure way of defeating the ends of justice. The pursuit of justice is not an academic exercise. There are no foundations to finance the resolution of nice state law questions involved in federal court litigation. The parties are entitled — absent unique and rare situations — to adjudication of their rights in the tribunals which Congress has empowered to act.” Clay, 363 U.S. at 228 (Douglas, J., dissenting).
[48] Such guesses, for obvious reasons, are colloquially referred to as “Erie guesses.” For a further discussion, see, e.g., Connor Shaull, Note, An Erie Silence: Erie Guesses and Their Effects on State Courts, Common Law, and Jurisdictional Federalism, 104 Minn. L. Rev. 1133 (2019).
[49] See, e.g., Kenneth F. Ripple & Kari Anne Gallagher, Certification Comes of Age: Reflections on the Past, Present, and Future of Cooperative Judicial Federalism, 95 Notre Dame L. Rev. 1927 (2020); Joshua L. Sohn & Paul R. Gugliuzza, Certifying Questions in Patent Cases, 109 Iowa L. Rev. 791 (2024); Verity Winship, Cooperative Interbranch Federalism: Certification of State-Law Questions by Federal Agencies, 63 Vand. L. Rev. 179 (2010); John Macy, Note, Give and Take: State Courts Should Be Able to Certify Questions of Federal Law to Federal Courts, 71 Duke L. J. 907 (2022); Joshua Rothenberg, Note, Criminal Certification: Restoring Comity in the Categorical Approach, 51 U. Mich. J. L. Reform 241 (2017). See also Michael J. Wishnie & Oona A. Hathaway, Asking for Directions: The Case for Federal Courts to Use Certification Across [National] Borders, 125 Yale L. J. F. 156 (2015). For a dissenting view, see Justin R. Long, Against Certification, 78 Geo. Wash. L. Rev. 114 (2009). In his article, Long argues that federal judges are just as competent as state judges when it comes to interpreting state law: “By deciding state law questions directly, federal courts show the importance of state law to the development of law (including federal law) nationwide, without risking any intrusion into the lawmaking powers of the state courts. Federal judges should treat state law as part of their own legal enterprise, not a separate sphere, and the excuse that federal judges just ‘aren’t good’ at state law should be no more socially acceptable than if they were to announce they ‘aren’t good’ at due process. Federal judges confronted with an open and challenging question of state law should see the case as a reason for harder work and deeper thought, not quitting the field. The alternative is not comity, but disrespect for states; abandoning state law to the state courts treats it as insignificant and foreign to the fundamental values common to the entire nation.” Id. at 166. This same argument is made in Jonathan Remy Nash, The Uneasy Case for Transjurisdictional Adjudication, John M. Olin Program in Law and Economics, Working Paper No. 409 (2008), available at https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1581&context=law_and_economics.
Robert M. Jarvis is a professor of law at Nova Southeastern University in Ft. Lauderdale and the author of Florida Constitutional Law in a Nutshell (West Academic Publishing, 2020). He holds a B.A. from Northwestern University, a J.D. from the University of Pennsylvania, and an LL.M. from New York University.
