When is the "next step" to take place?
After the application is filed, the federal judge will make a decision to certify or not. Timing depends on the Courts and judge's schedule, work demands, etc. Timing factors are the same for the State Supreme Court. Getting an exact time frame or an average one for this event requires correspondence with the DE and VA courts. What are the successive steps and time frame of certifying?
Basic Steps are:
1. Application to Presiding Judge/Court
2. Decision on Application by Federal Judge/Court
3. Filing Certification Application with DE and VA Supreme Courts According to their rules (See below)
4. Acceptance or Rejection by DE and VA Supreme Courts with Briefs and/or Oral Arguments
5. Decision and Notification by DE and VA Supreme Courts
The procedures for both the DE and VA Supreme Courts are below. Please note that one can access the Rules of the Court of each court of interest to learn court procedures (motions, briefs, protective orders, etc.)
______________________________________________________ Delaware Supreme Court Rules and Procedures Rule 41. Certification of questions of law. (a) Who may certify.
(i) Delaware courts. Other Delaware courts may, on motion or sua sponte, certify to this Court
for decision a question or questions of law arising in any case before it prior to the entry of final
judgment if there is an important and urgent reason for an immediate determination of such question or
questions by this Court and the certifying court has not decided the question or questions in the case.
(ii) Other entities. The Supreme Court of the United States, a Court of Appeals of the United
States, a United States District Court, the United States Securities and Exchange Commission, or the
Highest Appellate Court of any other State may, on motion or sua sponte , certify to this Court for
decision a question or questions of law arising in any matter before it prior to the entry of final judgment
or decision if there is an important and urgent reason for an immediate determination of such question
or questions by this Court and the certifying court or entity has not decided the question or questions in
(b) Requirements for accepting a certification.
Certification will be accepted in the exercise of the
discretion of the Court only where there exist important and urgent reasons for an immediate
determination by this Court of the questions certified. A certification will not be accepted if facts
material to the issue certified are in dispute. A certificate shall state with particularity the important and
urgent reasons for an immediate determination by this Court of the question certified. Without limiting
the Court's discretion to hear proceedings on certification, the following illustrate reasons for accepting
(i) Original question of law. The question of law is of first instance in this State;
(ii) Conflicting decisions. The decisions of the trial courts are conflicting upon the question of
(iii) Unsettled question. The question of law relates to the constitutionality, construction or
application of a statute of this State which has not been, but should be, settled by the Court. (c) Procedure for certification. The procedure for certification shall be as follows:
(i) Certification by trial court. A judge of the certifying court shall sign and file with the clerk
of that court a certification substantially in the form set forth in Official Form K;
(ii) Filing by trial court. The clerk of that court shall, within 5 days of the filing of such
certification, file with the Clerk of this Court 6 certified copies of the certification and 6 true and correct
copies of such of the following papers as may have been filed below:
(A) Petition. Any Petition for Certification;
(B) Response. Any response to the Petition for Certification; and
(C) Stipulation of facts. Any stipulation of facts with respect to the Certification;
(iii) Clerk of the Supreme Court. Upon the receipt of such copies, the Clerk of this Court shall
forthwith docket the proceeding on certification in the same manner as other cases are docketed, shall
deliver to each of the Justices 1 copy of the certification and any accompanying papers and shall send
written notice to the parties of the filing of such proceeding;
(iv) Action upon certification. After docketing and unless otherwise ordered, this Court shall
thereupon and without further argument determine whether to accept or refuse the certification. If
refused, a certified copy of the order shall be sent to the certifying court and a copy thereof sent to each
counsel. If accepted, the proceeding on certification shall be considered to have been duly instituted, and
the Clerk shall send written notice thereof to the parties. The certification as filed shall constitute the
(v) Procedure upon acceptance. From the date of acceptance of certification further
proceedings shall be governed by these Rules. Briefs shall be filed in the order recommended by the
certifying court in the certification, unless the Court, at the time of approving the certification, shall
designate a different order. In any event, insofar as time for filing is concerned, the party or parties
required to file the first brief shall be considered the appellant and the other party or parties shall be
considered appellee. The caption for papers filed in this Court after acceptance of certification by this
Court shall reflect such relationship among the parties. Taken From: http://courts.delaware.gov/forms/download.aspx?id=39368
______________________________________________________ Virginia Supreme Court Rules and Procedures
Rule 5:40. Certification Procedures. (a) Power to Answer.
This Court 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. Such answer may be furnished, when requested by
the certifying court, 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. (b) Method of Invoking.
This Rule may be invoked only by an order of one of the
courts referred to in paragraph (a) of this Rule. No party litigant in the foregoing courts
may file a petition or motion for certification in this Court. (c) Contents of Certification Order.
A certification order shall 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 facts relevant to the question certified;
(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 e-mail 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 controlling. (d) Preparation of Certification Order.
The certification order shall be prepared by the
certifying court, signed by the presiding justice or judge, and forwarded to this Court by
the clerk of the certifying court under its official seal. This Court may require the original
or copies of all or of any portion of the record before the certifying court to be filed, if, in
the opinion of this Court, the record or portion thereof may be necessary in answering the
certified question. This Court 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. (e) Notification of Acceptance or Rejection.
This Court, in its discretion, may decide
whether to answer any certified question of law. This Court will notify the certifying
court and counsel for the parties of its decision to accept or to reject any certified
question of law. 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. (f) Revocation of Acceptance.
This Court, in its discretion, may revoke its decision to
answer a certified question of law at any time. This Court will notify the certifying court
and counsel for the parties of any such action.
(g) Costs of Certification.
Fees and costs shall be the same as in civil appeals docketed
in this Court and shall be paid as ordered by the certifying court in its order of
certification. (h) Briefs.
The form, length, and time for submission of briefs shall comply with Rules
5:26 through 5:32 mutatis mutandis.
A written opinion or order of this Court stating the law governing each
question certified will be rendered as soon as practicable after the submission of briefs
and after any oral argument. The opinion or order will be sent by the clerk under the seal
of this Court to the certifying court and to counsel for the parties and shall, if this Court
so directs, be published in the Virginia Reports. Taken From: http://www.courts.state.va.us/courts/scv/rulesofcourt.pdf