Western Helicopter Services, Inc. v. Rogerson Aircraft Corp.

Decision Date14 May 1991
Citation811 P.2d 627,311 Or. 361
PartiesWESTERN HELICOPTER SERVICES, INC., an Oregon corporation; and Edwina Marie Cruse, as Personal Representative of the Estate of Russell Leroy Cruse, Deceased, Plaintiffs, v. ROGERSON AIRCRAFT CORPORATION, a California corporation; Rogerson-Hiller Corporation, a Washington corporation; Omneco, Inc., a Nevada corporation; Embee EP Plating, a California corporation; Arden Engineering, a California corporation; Burbank Steel Treating, Inc., a California corporation, Defendants. USDC Civil 87-1435-FR; SC S37702.
CourtOregon Supreme Court

Lloyd B. Ericsson, Portland, for plaintiffs.

James L. Hiller, Portland, for defendants Rogerson Aircraft Corp. and Rogerson-Hiller Corp.

Jonathan David Allred, Portland, for Omneco, Inc.

John Ashworth, Portland, for defendant Embee EP Plating.

Thomas M. Christ, Portland, for Arden Engineering.

Richard M. Layne, Portland, for Burbank Steel Treating, Inc.


GILLETTE, Justice.

We are asked in this civil action to accept certification of two questions of law propounded by the United States District Court for the District of Oregon pursuant to ORS 28.200, which provides:

"The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceedings before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court and the intermediate appellate courts of this state."

For the reasons set out in Part II of this opinion, we decline to accept certification in this case.


Although we have accepted and decided several cases involving certified questions since the enactment of Oregon's certification law, ORS 28.200 to 28.255, in 1983, we have not heretofore discussed the considerations that we use in deciding whether to accept certification. 1 Our statute is taken from the Uniform Certified Questions of Law Act, which by 1990 had been adopted by statute or court rule (with some variations) in 29 jurisdictions. 12 Uniform Laws Annotated 49 (1975) and 18 (1990 supplement) (hereafter cited as "ULA"). ORS 28.250 directs that Oregon's certification law "shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it." 2

In this case, we decline, for the first time, to accept a question certified to us under the Act. We shall explain, first in general terms and then in terms applicable to the present case, the considerations that lead us to this denial. Our starting point is the statutory text.

A. Criteria for Certified Questions Under the Statute

ORS 28.200 provides that the decision whether to accept certification is committed to our discretion: "The Supreme Court may answer questions of law certified to it * * *." (Emphasis supplied.) See also 12 ULA 52, Commissioners' Comment to § 1 ("[T]he highest court of the state has the right to answer questions certified to it; [answering the questions certified] is not mandatory"). Before our discretion is called into play, however, the certified question must meet five criteria created by the statute: (1) The certification must come from a designated court; (2) the question must be one of law; (3) the applicable law must be Oregon law; (4) the question must be one that "may be determinative of the cause;" and (5) it must appear to the certifying court that there is no controlling precedent in the decisions of this court or the Oregon Court of Appeals. We address each of these criteria in turn.

1. Designating court

The first requirement is self-explanatory. The certifying court must be one of those listed in the statute. We note, by way of illustration, that the list does not include United States Magistrates or Referees in Bankruptcy. It follows that any certification from a federal court must be from a court described in Article III of the United States Constitution.

2. Question must be one of law

The second requirement, viz., that the question certified be one of law, requires that the question be framed in a way that is susceptible of adjudication by way of a pronouncement as to what the law is. If particular facts are pertinent to resolution of the question, those facts must be discernible from the materials provided by the certifying court. ORS 28.210. 3 Certification, therefore, is not appropriate if disputed facts make questions of law unclear. 17A Wright, Miller & Cooper, Federal Practice and Procedure § 4248 at 174 and n. 52 (1988 & 1990 Supp) (hereafter "Wright & Miller").

3. Law at issue must be Oregon law

The third requirement, closely related to the second, is that the legal question propounded concern Oregon law, rather than the law of some other jurisdiction. See Equitable Life Assurance v. McKay, 306 Or. 493, 760 P.2d 871 (1988) (answering a certified question concerning whether, under Oregon law, a particular legal rule from another jurisdiction would be treated as "procedural" or "substantive").

4. Question may "be determinative of the cause"

The fourth requirement, viz., that the question must be one whose answer may determine the cause, means that our decision must, in one or more of the forms it could take, have the potential to determine at least one claim in the case. That interpretation accords both with the text of the statute and with the majority rule. See, e.g., Wright & Miller § 4248 at 169-71 and nn. 42, 43; White v. Edgar, 320 A.2d 668, 677 (Maine 1974) (illustrating majority view). 4

5. No controlling Oregon precedent

The fifth requirement is that it must appear to the certifying court that there is no controlling precedent from either this court or the Oregon Court of Appeals. Controlling precedent from either court is sufficient. A certifying court is not to distinguish between decisions of this court, on the one hand, and those of the Court of Appeals, on the other, so long as the latter are not called into question by other decisions of this court. Certification is not a vehicle in Oregon for obtaining a Supreme Court decision on a question of law that already has been decided by the Court of Appeals.

The first four requirements can be determined objectively by the certifying court prior to certification. The fifth question, on the other hand, is subjective. It directs the certifying court to satisfy itself that it is not certifying questions of law already controlled by existing Oregon appellate precedent. Presumably, no court would certify a question unless it were so satisfied. Thus, as to this fifth criterion, there really is nothing for us to review--the act of certification itself establishes that the certifying court had the requisite state of mind. (We shall later discuss what we would do were we to disagree with the certifying court, but that is a question of how we shall exercise our discretion, not of whether the statutory criteria have been met.)

Where one or more of the five statutory criteria is absent, our inquiry will be at an end. We shall deny certification in such cases.

Assuming, however, that the five statutory prerequisites to accepting certification are present, the question then becomes: Should this court, in the exercise of its discretion, accept certification? We turn to an examination of the factors that we will consider in making that decision.

B. Criteria for Exercising Discretion to Accept Certification
1. There is controlling Oregon precedent

As our discussion of the fifth statutory criterion suggested, one of the most important factors--perhaps the most important one--in deciding whether we will accept certification will be our independent assessment of whether, in spite of the contrary opinion of the certifying court, there already is controlling Oregon precedent for the question certified. If we determine that there is such precedent, that factor will argue heavily against accepting certification. The existence of controlling precedent will not be dispositive, however. Instead, we shall apply the following additional criteria in making our determination:

(a) Where the controlling precedent is an opinion of this court, that normally will end our inquiry. Although we always shall be willing to reconsider settled precedent of this court if circumstances warrant, we ordinarily shall not reconsider such precedent in a certified case. See Heino v. Harper, 306 Or. 347, 368-74, 759 P.2d 253 (1988) (discussing criteria for changing prior common law decisions of this court).

(b) Where the controlling precedent is an opinion of the Court of Appeals, we shall review the request for certification in much the same way we would review a petition for review of the Court of Appeals decision. In those cases in which this court probably would allow review of the Court of Appeals decision, we likewise will accept certification. We previously have explained, both in our appellate rules, ORAP 9.05, 5 and in our decisional law, 1000 Friends of Oregon v. Bd. of Co. Comm. 284 Or. 41, 44-45, 584 P.2d 1371 (1978), that certain considerations will guide our decision to allow a petition for review from a decision of the Court of Appeals. In those cases in which we ordinarily would not allow review, however, we probably will not accept certification.

2. Pullman cases

A principal reason for state certification statutes was the difficulty associated with so-called "Pullman " abstention cases in the federal courts. Wright & Miller, § 4248 at 157-65. In Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed....

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