Parties may desire, for reasons of efficiency or other purposes, to have interlocutory rulings reviewed by an appellate court before proceeding further with the trial. Two potential avenues for obtaining such review are by seeking to certify a question or questions of law to the Supreme Court and by filing a motion for certification of an interlocutory appeal to the Supreme Court.
Certification of Questions of Law. Delaware’s Constitution grants to the Supreme Court jurisdiction to “hear and determine questions of law certified to it by other Delaware Courts, the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, the United States Securities and Exchange Commission, or the highest appellate court of any other state, where it appears to the Supreme Court that there are important and urgent reasons for an immediate determination of such questions by it.84
The party seeking to certify a question to the Supreme Court must file a petition in the court where the action is being litigated, setting forth the facts and issues at such length and with sufficient clarity to enable that court to determine whether certification is warranted.85 The decision to grant or deny a request for certification lies within the discretion of the certifying court.86
The Supreme Court has the discretion to accept or reject a certification – the test is whether there are important and urgent reasons for an immediate determination by the court of the questions certified. A certification will not be accepted if the facts material to the issue certified are in dispute. The certificate must state with particularity the important and urgent reasons for an immediate determination of the question certified. In deciding the issue, a court will consider, among other possible justifications for certification, whether (i) the question of law is one of first impression in Delaware; (ii) the decisions of the trial courts are conflicting upon the question of law; or (iii) the question of law relates to the constitutionality, construction or application of a Delaware statute which has not been, but should be, settled by the Delaware Supreme Court.87 However, the mere fact that a novel issue of law is presented will not necessarily be sufficient to cause the Supreme Court to accept a certification, at least from the courts of this State.88
If the petition is granted, the judge of the certifying court must sign and file with the clerk of that court a certification in the form approved by the Supreme Court.89 The clerk of that court, within five days of filing of such certification, must file with the Clerk of the Supreme Court six certified copies of the certification and six true and correct copies of the petition for certification, any response thereto and any stipulation of facts with respect to the petition.90 After the certification has been docketed, the Supreme Court determines, without further argument by the parties, whether to accept or refuse the certification.91 If the certification is refused, a certified copy of the order, is sent to the certifying court, and a copy is sent to each counsel. If the certification is accepted, the proceeding on certification is deemed to have been instituted, and the clerk sends written notice to that effect to the parties. The certification as filed constitutes the record.92
As a general matter, the Supreme Court will answer certified questions only when the answer may determine the outcome of the underlying litigation in the certifying court and there is no controlling precedent of the Supreme Court.93
Interlocutory Appeals. Delaware’s Constitution grants to the Supreme Court authority to hear appeals of interlocutory decisions from the Court and Chancery and the Superior Court in civil cases.94 Since no similar authority is granted for criminal cases, the Supreme Court may not hear interlocutory appeals in such cases.95
A party seeking an interlocutory appeal must file a motion for certification of an interlocutory appeal in the trial court and serve the motion on all other parties within ten days of the entry of the order from which the appeal is sought, or such longer time as the trial court, in its discretion, may order for good cause shown. An opposing party has ten days (or such shorter time as the trial court, in its discretion, may order, either upon notice for good cause shown or upon the trial court’s own motion) after service of the motion to serve and file a response or, if the trial court directs, to present an oral response in lieu of a written response. Within ten days after a response is filed or, if none, within twenty days after the motion is filed, the trial court must enter an order certifying or refusing to certify the interlocutory appeal. The order must set forth the basis for the grant or denial of certification and, if certification is granted, must indicate the criteria adopted.96
To obtain certification of an interlocutory appeal, the movant must demonstrate to the trial court’s satisfaction that the interlocutory order that is the subject of the motion determined a substantial issue and established a legal right. In addition, the interlocutory order must meet at least one of the following criteria: (i) the order satisfies any of the criteria for obtaining certification of an issue of law to the Supreme Court; (ii) the order has sustained the controverted jurisdiction of the trial court; (iii) the order has reversed or set aside a prior decision of the court, a jury or an administrative agency from which an appeal was taken to the trial court which had determined a substantial issue and established a legal right, and a review of the order may terminate the litigation, substantially reduce further litigation or otherwise serve considerations of justice; (iv) the order has vacated or opened the judgment of the trial court; or (v) a review of the order may terminate the litigation or may otherwise serve considerations of justice.97
The order of the trial court granting or denying the motion for certification of an interlocutory order is subject to independent review by the Supreme Court. The notice of appeal may be filed at any time after filing the motion for certification of an interlocutory order, but in any event the party seeking review must file a notice of appeal within thirty days after the entry of the order from which the appeal is sought to be taken, whether or not the trial court has yet ruled on the motion. The notice of appeal must include the application for certification, the interlocutory order, any written response to the application or, if the response was oral, a transcript of such response, and the order, if any, of the trial court certifying or refusing to certify the interlocutory appeal. If no order has been entered on the application for certification by the trial court within thirty days of entry of the interlocutory order, the appellant must also include a separate certification from his or her counsel to that effect.98
Unless otherwise ordered by the Supreme Court, the decision whether or not to accept the interlocutory appeal is decided without further argument by the parties or their counsel. The decision whether or not to accept the interlocutory appeal is discretionary with the Supreme Court. In exercising that discretion, the Supreme Court may consider all relevant factors, including the decision of the trial court granting or denying the request for certification of the interlocutory appeal.99
The acceptance of an interlocutory appeal does not automatically stay proceedings in the court below. An application for a stay must be filed in the first instance in the trial court.100
84. Del. Const. art. IV, § 11(8).
85. Ch. Ct. R. 72(b). Presumably, other courts lacking a similar rule would nonetheless follow a similar procedure.
86. In re Atamian, No. 492, 2005 (Del. Dec. 7, 2005) (ORDER), disposition reported at 881 A.2d 231 (Del. 2005) (TABLE); In re Petition of Marvel, No. 29, 2003, Walsh, J. (Del. Mar. 19, 2003) (TABLE), disposition reported at 829 A.2d 141 (Del.) (TABLE), cert. denied, 123 U.S. 2515 (2003).
87. Supr. Ct. R. 41(b).
88. State Farm Mut. Auto. Ins. Co. v. Dann, 963 A.2d 127, 128 (Del. 2001) (“[i]t is preferable as a matter of the orderly administration of justice for the trial courts of this State to decide in the first instance all questions of law, including new and challenging legal questions, so that this Court will have the benefit of the reasoning and analysis of the trial court. There may be compelling instances where there are important and urgent reasons requiring an exception to this principle when exigencies of time or a strong showing of judicial economy so dictate. In such instances this Court may exercise its discretion to accept a certified question from a Delaware trial court”).
89. Supr. R. 41(c)(i); Supr. Ct. Official Form K.
90. Supr. Ct. R. 41(c)(ii).
91. Supr. Ct. R. 41(c)(iv).
92. Supr. Ct. R. 41(c)(iv).
93. United States v. Anderson, 669 A.2d 73, 79 (Del. 1995).
94. Del. Const. art. IV, § 11(1), (4).
95. Gottlieb v. State, 697 A.2d 400, 401 (Del. 1997); Goldstein v. Wilmington, 598 A.2d 149, 152 (Del. 1991); Steigler v. Superior Court of New Castle County, 252 A.2d 300, 302-03 (Del. 1969), cert. denied, 396 U.S. 880 (1969).
96. Supr. Cr. R. 42(c).
97. Supr. Ct. R. 42(b).
98. Supr. Ct. R. 42(d).
99. Supr. Ct. R. 42(d)(v).
100. Supr. Ct. R. 42(e).
© 2010 David L. Finger