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Supreme Court Asked to Take Certified Question for Only Fifth Time in Six-Plus Decades
The National Law Journal
August 03, 2009
A federal appellate court recently focused attention on a rare method of obtaining review by the U.S. Supreme Court when it certified a question to the justices in the high-profile prosecution (pdf) of James Ford Seale for the 1964 kidnapping-murder of two black teenagers.
The question that troubled the 5th U.S. Circuit Court of Appeals: Although Seale committed the crime in 1964, he was not prosecuted until 2007. Did the law require the prosecution for kidnapping within five years of the crime, or is there no time limit? A three-judge panel of the 5th Circuit ruled last September that because of changes in the law in 1972, the clock ran out on the government's prosecution of Seale.
Voting en banc, the 5th Circuit divided evenly on the question, and then voted 12-6 to certify it to the Supreme Court. The "certificate of question" was filed Thursday.
Seale actually sought certification of the question versus going straight to the high court with a petition for review, noted professor Steve Vladeck of American University Washington College of Law.
"It's possible his lawyers thought his chances might be better if the 5th Circuit agreed," he suggested. "Although I'd like to think his case is pretty compelling whether the 5th Circuit agreed or not. There is no magic bullet that answers the question."
As the dissenting judges in the certification vote noted, the Supreme Court has accepted Rule 19 certifications only four times in the last 63 years -- even though it originally received jurisdiction to answer certified questions from equally divided circuit courts in 1802.
What were those four cases? History doesn't shed much light on whether the latest question will trigger a high court answer.
In 1946, the high court answered a question certified by the 10th Circuit in U.S. v. Rice. In a procedural conundrum, the circuit court asked whether a federal appellate court could review, by mandamus, a judgment of a district court in Oklahoma ordering remand to a state court of a proceeding that had been removed to the district court by the United States. The government relied on a 1926 federal law involving title to lands allotted to members of the Five Civilized Tribes in Oklahoma. The justices said no to the 10th Circuit.
In 1964, the 5th Circuit certified another civil rights era-related question, this one involving criminal contempt orders and the right to jury trial. The United States, acting on an order by the circuit court, had initiated criminal contempt proceedings against the governor and lieutenant governor of Mississippi because of the University of Mississippi's refusal to admit James Meredith as ordered. The two state officials demanded a jury trial. The 5th Circuit was evenly divided on whether they had a right to a jury. In U.S. v. Barnett, the Supreme Court said they did not.
The third certified question accepted by the Court came a decade later in Moody v. Albermarle Paper Co. In that case, the justices were asked whether a retired circuit court judge could vote on whether to hear a case en banc. The justices, in a per curiam opinion, told the 4th Circuit, "Although 28 U.S.C. 46(c) provides that a retired circuit judge may sit on an in banc court rehearing a case in which he participated at the original hearing, only regular active service circuit judges are vested with authority to vote whether to rehear a case in banc."
And the last certified question answered by the high court was in 1981 in Iran National Airlines Corp. v. Marschalk Corp. The 2nd Circuit certified three questions involving the statutory and constitutional authority of the president to suspend claims presented to the Iran-United States Claims Tribunal and to declare that they shall have no legal effect in the U.S. courts. The justices said the president acted within his authority and his actions did not constitute a taking of property for which compensation must be paid.
The Supreme Court has warned that certification is warranted only in "rare instances" because it's the job of appellate courts to decide the cases coming before them.
"It's a practice that has fallen out of favor partially because the Supreme Court has sort of implicitly suggested it is disfavored, and also because the court has more frequently issued these so-called GVR orders [grant, vacate and remand in light of a recent decision], which basically serve much the same purpose," explained Vladeck.
But that is why the Seale case is unique, he added -- there is no intervening Supreme Court decision on the issue. "It is strange and surprising that the 5th Circuit is incapable of solving this," said Vladeck. "I think the bottom line should be that, one way or the other, someone should answer the question besides the district court. If it's not going to be the 5th Circuit, it strikes me it may have to be the Supreme Court."
