Second Circuit Review: Campus Sexual Misconduct Tribunals, Crimes of Moral Turpitude: Divergent Approaches to Certified Questions in the Second Circuit

Litigation of counsel Martin Flumenbaum and firm Chairman Brad Karp’s latest Second Circuit Review column, “Campus Sexual Misconduct Tribunals, Crimes of Moral Turpitude: Divergent Approaches to Certified Questions in the Second Circuit,” appeared in the New York Law Journal. The authors discuss two recent decisions that illustrate divergent approaches in the court’s use of certified questions, formal requests by the Second Circuit to the state court of last resort for an opinion on an open question of state law. In Khan v. Yale University, which concerned the scope of Connecticut’s quasi-judicial immunity doctrine, the Second Circuit took the traditional approach and certified questions to the Connecticut Supreme Court after concluding it could not predict how the state’s Supreme Court would rule on the state law issue. In Ferreiras Veloz v. Garland, which concerned the scope of New York’s petit larceny offense, the panel detailed what its decision would “likely” be should the New York Court of Appeals decline certification. After the New York Court of Appeals declined certification, the Second Circuit adopted the “likely” ruling it had previously articulated. This approach allows the Second Circuit panel to claim that the state court apparently agreed with the panel’s proposed solution, without the burden and delay caused by certification. On the other hand, if federal courts certify questions based on “tension” in state law rather than true uncertainty, and simultaneously propose answers to those questions, then state courts may be left in the untenable position to either accept an increasing number of certified questions or be construed to have acquiesced in the preemptive rationales offered by certifying courts. Litigation associate James Mandilk assisted in the preparation of this column.

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