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Bill Would Allow Federal Courts to Certify Questions to the North Carolina Supreme Court

There are some things you can do only in North Carolina.  Like cook on the world’s largest frying pan.

But there are some things you can do everywhere but North Carolina.  Like certify a question of state law to the state’s highest court.  North Carolina is the only state in the Union that does not accept certified questions from the federal courts.

If House Bill 157 is enacted, all that changes.  Not the frying pan.  The certification procedure.

HB 157 would add 7A-27A to our General Statutes, allowing a federal court to certify a question of law to the North Carolina Supreme Court if the question arises under state law, might decide the federal case, and has no clear answer under North Carolina law.

The North Carolina Supreme Court would then have the option of answering the question, or not.  If it chooses to answer the question, it would notify the federal court of its choice within 30 days, then answer the question within 60 days.  It is not clear whether the Supreme Court would entertain briefing or arguments on the question.

We’ve discussed certification before.  Several judges on the Fourth Circuit have pleaded for the creation of such a procedure.  At least two justices on the North Carolina Supreme Court have indicated that they would be interested in considering a certification mechanism.

There is a potential catch.  Some say that a certification procedure is inconsistent with the North Carolina Constitution.  If the legislation becomes law, we may find out if that is so.  In that event, at least we will still have the ability to fry simultaneously 365 chickens–one for every day of the year.

–Matt Leerberg

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