In April 2022, the Ohio Supreme Court will hear oral arguments in City of Maple Heights v. Netflix, Inc. & Hulu, LLC, a certified question case. Such cases are governed by Section 9 of the Ohio Supreme Court’s Rules of Practice and only come up a few times a year. In certified-question cases, any federal district court or federal circuit court in the country can ask the Ohio Supreme Court to answer a question of Ohio law that may be determinative of the federal case, “and for which there is no controlling precedent” in the decisions of the Ohio Supreme Court.

As my longtime professional mentor Kathleen Trafford noted in her Ohio Lawyer article “The less traveled road to the Supreme Court of Ohio:”

…Trial lawyers on both the plaintiff side and the defense side should be mindful of the certification process in preparing their case strategy because it offers a unique opportunity to get an issue before the Supreme Court of Ohio early, and it possibly helps to avoid lengthy or duplicative litigation.

But it is not without risks and potential pitfalls.

District Judge Gwin asks Ohio Supreme Court questions about standing and enforcement under an Ohio statute

The certified-question case to be argued in April involves a lawsuit filed by the City of Maple Heights, Ohio, against Netflix Inc. and Hulu,

LLC. The gist of the lawsuit can be gleaned by this excerpt from the Preliminary Memorandum that Hulu filed in the Ohio Supreme Court:

On August 21, 2020, [Maple Heights] filed the underlying suit in the U.S. District Court for the Northern District of Ohio, asserting that [Hulu and Netflix] are “video service providers” under the Fair Competition in Cable Operations Act, R.C. 1332.21, et seq. (the “Act”) and seeking to collect provider fees from each. It also sought to certify a class action of municipalities across the state. While considering pending motions to dismiss and for class certification, the district court issued an order on July 2, 2021, certifying two questions to this Court: (1) whether Netflix and Hulu are video service providers under Ohio law; and (2) whether Maple Heights can sue to enforce Ohio’s video service provider provisions.

These questions present a matter of first impression and require interpretation of Ohio law. Before this case, no Ohio governmental entity has ever applied the Act to internet streaming companies like Hulu and Netflix. There is no existing precedent deciding whether the Act applies to providers who do not construct or operate video service networks of their own but instead rely upon the customer’s internet provider and its preexisting infrastructure to stream video content. There is also no precedent deciding whether municipalities have a private right of action or if enforcement is the exclusive responsibility of the State of Ohio under the Act.

Stay tuned to our blog for updates on whether (and how) the Supreme Court answers the two questions certified by Judge Gwin after the oral arguments in April. As noted below, however, not everyone who invokes Ohio’s certified-question process actually gets an answer.

Professor Cochran’s empirical study of certified-question cases identifies some concerns

I was grateful for the opportunity to support University of Dayton School of Law Professor Emeritus Rebecca Cochran as she researched and drafted the first comprehensive, empirical study of Ohio’s certified-question process. Her article, “Federal court certification of questions of state law to state courts: A theoretical and empirical study,” was published in 2003 in the Journal of Legislation. Professor Cochran analyzed the procedural history, substance and resolution of the first 55 certified-question cases addressed by the Ohio Supreme Court. She cautioned that the certified-question process in Ohio had at times resulted in advisory opinions, forum shopping, avoidance of the routine and record-intensive appellate process, and opinions that can be lacking the depth and analysis required to be truly helpful to the bench and bar.

In 2017, I updated Professor Cochran’s research in the white paper, “Are you in federal court, considering the certification of state-law questions to the Ohio Supreme Court? Some past and present points to ponder.” There I noted, among other things, that the Ohio Supreme Court continued to dismiss several certified-question cases without answering the questions, and I examined the (lengthy) time-to-decision statistics and other aspects of the 53 certified-question cases decided between 2001 and early 2017.

Procedural quirks of certified-question cases

Those considering pursuing a certified-question case in the Ohio Supreme Court will confront the specific procedural rules set forth in Section 9 of the Rules of Practice, and some procedural quirks.

For example, when a federal court certifies a question of Ohio law to the Ohio Supreme Court, the parties will get a chance to brief the threshold question of whether or not the Ohio Supreme Court should, in fact, answer the question certified. This preliminary briefing differs from the certified-conflict cases that come before the Ohio Supreme Court under Section 8 of the Rules of Practice.  When an Ohio court of appeals issues an order to the Ohio Supreme Court certifying a conflict between its decision and that of another Ohio district court of appeals, the parties before the certifying court get no preliminary briefing on whether or not a conflict actually exists. They only submit briefs after the Supreme Court decides that a conflict exists.

Another quirk to be aware of in the context of certified-question cases relates to the record the parties developed before the federal (certifying) court. Although the Rules of Practice instruct the certifying court to include a statement of facts “showing the nature of the case, the circumstances from which the question of law arises, the question of law to be answered, and any other information the certifying court considers relevant to the question of law to be answered,” the Ohio Supreme Court does not receive a copy of the complete record developed in the certifying federal court, as the Supreme Court would in a jurisdictional appeal coming up from an Ohio court of appeals.

The absence of a complete record in the context of a certified-question case can cause issues as the Supreme Court considers the merits of the question. For example, in Mendenhall v. Akron, 2008-Ohio-270, the court answered a certified question concerning municipal home-rule authority with a “qualified yes” in light of limitations in the record transmitted by the certifying court. Professor Cochran, noting this concern, suggested that in certain circumstances, the Ohio Supreme Court should “consider those cases already within the state appellate system that will bring the same issues to the Ohio Supreme Court on a complete and developed record” in lieu of exercising its certified-question authority.

Certified-question process offers plenty of room for further examination

For those interested in studying the relationship between federal and state courts in the United States over the years, the certified-question process is an intriguing gold mine. For attorneys simply trying to litigate a perplexing issue of Ohio law in federal court, though, some practical issues can arise in connection with the certified-question process that are worth careful consideration. Porter Wright’s Appellate Practice Group stands ready to advise clients about whether — and how — to navigate the Ohio Supreme Court’s certified-question rules and processes.