Supreme Court of the United States · 2020 · Civil Procedure
Civil ProcedureCertification of State Law QuestionsConstitutional AvoidanceFirst Amendmentcertificationstate law uncertaintyconstitutional avoidanceFirst Amendment
Facts
McKesson organized a demonstration in Baton Rouge to protest a police shooting. According to the allegations, protesters occupied the highway in front of police headquarters at McKesson's direction, and as police moved to clear the highway and make arrests, an unknown person threw a rock-like object that struck Officer Doe in the face. Doe suffered serious injuries and sued McKesson, alleging McKesson negligently staged the protest in a manner that caused the assault. The assailant was never identified.
Issue
Should a federal appellate court decide the First Amendment validity of a negligence-based personal liability theory against a protest organizer when the underlying state-law duty and scope-of-risk questions are novel and unsettled? More specifically, should the Fifth Circuit have sought guidance from the Louisiana Supreme Court before reaching the constitutional question?
Rule
Certification of unsettled state-law questions is not obligatory and rests in the sound discretion of the federal court. But in exceptional cases, when novel and potentially dispositive questions of state law may determine whether a constitutional issue exists at all, the federal court should obtain guidance from the state supreme court before addressing the constitutional question.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In a federal appeal from Oregon, Elena Park is sued for negligence after organizing a downtown march in Portland where an unidentified attendee later vandalized a storefront. The plaintiff's theory depends on whether Oregon tort law recognizes a novel duty on event organizers to avoid creating conditions that foreseeably trigger intentional third-party crimes, an issue the Oregon Supreme Court has never addressed.
Before deciding Elena's First Amendment defense, what is the best course for the federal court of appeals?
Explanation. The majority explained that certification is discretionary, not mandatory, but is especially appropriate in exceptional cases where novel and potentially dispositive state-law issues may determine whether a constitutional question arises at all. Here, the existence of the underlying state-law duty is unsettled and could eliminate or materially change the First Amendment issue, so the court should consider certification first. (Derived from McKesson v. Doe (n.d.).)