What To Expect From The Virginia Supreme Court Regarding Certified Questions Of Law


*This article was authored with the assistance of Summer Associate, Alexa Kathol Macumber.

Alexa is pursuing her JD at the Regent University School of Law.

While the vast majority of cases heard by the Supreme Court of Virginia are to review rulings from lower Virginia courts, occasionally the Supreme Court will be called upon to answer "certified questions" on a point of Virginia law for federal courts or a court in another state to aid it in rendering a decision.

The Court's powers to do so comes from the Constitution of Virginia, art. VI, §€‰1. The Constitution of Virginia gives the Supreme Court "original jurisdiction . . . to answer questions of state law certified by a court of the United States or the highest appellate court of any other state."

Virginia Supreme Court Rule 5:40 provides further guidance regarding this unique power. The Rule states that a federal district or appellate court or the highest court of another state, the District of Columbia, or a territory may request that the Supreme Court of Virginia answer a certified question. Courts may seek such assistance when Virginia law is determinative in a proceeding and there is no controlling precedent on the issue in the Supreme Court or the Court of Appeals of Virginia.

Notably, the power to ask a certified question is vested only in the referring court itself—parties cannot petition the Supreme Court of Virginia on their own. And the Supreme Court of Virginia is not required to answer—it has discretion as to whether it will answer the question posed to it.

The certification order from the other court must state the nature of the controversy in which the question arises, the question of law to be answered, a statement of all relevant facts, the names of the parties involved, the name (and Virginia Bar number) and other contact information of counsel for parties involved, a brief statement explaining how the certified question of law is determinative of the proceeding in the certifying court, and a brief statement setting forth any relevant decisions of the Supreme Court of Virginia and the Court of Appeals of Virginia explaining why such decisions are not controlling. The Supreme Court of Virginia may restate any certified questions of law and/or request additional information from the certifying court.

The Supreme Court will provide notice to the certifying court and parties as to whether it accepts or rejects the question. If it accepts the question, it will set a briefing and, if the Court permits it, oral argument schedule.

After the parties present their arguments, unless the Supreme Court of Virginia decides not to answer the questions, it will then issue an opinion or order to the certifying court.

For example, in Dominion Res., Inc. v. Alstom Power, Inc., 297 Va. 262 (2019), the United States District Court for the District of Connecticut inquired whether Virginia law applies the collateral source rule to a breach of contract action where the plaintiff has been reimbursed by an insurer for the full amount it seeks in damages from the defendant. The contract at issue was governed by Virginia law.  Because the Supreme Court of Virginia has long recognized the collateral source rule in tort cases, the Court decided that it would also be appropriate to apply the collateral source rule in certain breach of contract cases. The Court noted, however, that the adoption of the rule's use in that circumstance does not mean that the rule will apply in every breach of contract case, or even most cases.

As another example, in VanBuren v. Grubb, 284 Va. 584, 586 (2012), the United States Court of Appeals for the Fourth Circuit asked the Virginia Supreme Court to decide whether Virginia law recognizes "wrongful discharge" as a common law tort against an individual who was not the plaintiff's actual employer but who participated in the wrongful firing. The Court found that Virginia's established case law regarding agency relationships permitted suits against individuals as well as the plaintiff's actual employer for wrongful termination when that individual's personal actions violated the relevant public policy and he or she was part of the wrongful firing of the plaintiff.

While the typical case before the Supreme Court of Virginia is not a certified question from another court, the Supreme Court does regularly address such cases. Thus, litigants should be aware of this possibility and be prepared to navigate the Court's procedure in this area.


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