For those litigating cases outside of Delaware involving novel issues of Delaware law, one option not always apparent is that of requesting that court to certify the question to the Delaware Supreme Court. Justice Henry duPont Ridgely of the Delaware Supreme Court recently published an essay in the SMU Law Review that discusses this option, noting that it can save other courts from having to guess how the Delaware Supreme Court would rule. It has been posted on the Delaware Corporate and Commerical Litigation Blog here.
The Delaware Constitution permits the Delaware Supreme Court to hear questions certified to it from other Delaware (e.g. trial) courts; the United States Supreme Court, Court of Appeals, or District Court; another state’s highest appeals court; and the SEC. Del. Const. Art. IV, § 11(8). According to Justice Ridgely, it is also “likely” that a federal bankruptcy court could certify a question based upon the general grant of power to receive questions from a US District Court.
Supreme Court Rule 41(b) provides that certification is to be accepted at the Court’s discretion “only where there exist important and urgent reasons for an immediate determination by this Court”. Material facts cannot be in dispute. Rule 41(b) lists “illustrate[d] reasons” for accepting a certified question, including that a novel Delaware question of law is involved, trial court decisions are in conflict, and there is an unsettled question involving a Delaware statute or constitutional provision.
Justice Ridgely sets forth statistics regarding accepted certified questions, including from the US Court of Appeals, a number from the US District Court of Delaware, four from other states’ US District Courts, and one from the SEC. Interestingly, none are from the highest courts of other states. According to Justice Ridgely, the Supreme Court is more likely to accept certified questions from foreign fora than from Delaware trial courts.
Filed under: Certified Questions, Delaware Supreme Court
Delaware Corporate Law Update 