The supreme court or the court of appeals of this state, on the motion of a party to pending litigation or its own motion, may certify a question of law to the highest court of another state, a tribe, Canada, a Canadian province or territory, Mexico or a Mexican state if:

A. the pending litigation involves a question to be decided under the law of the other jurisdiction;

B. the answer to the question may be determinative of an issue in the pending litigation; and

C. the question is one for which an answer is not provided by a controlling appellate decision, constitutional provision or statute of the other jurisdiction.

History: Laws 1997, ch. 8, § 3.

Considerations in granting certification. — The degree of uncertainty in the law and prospects for judicial economy in the termination of litigation are considered in deciding whether to accept pretrial certification from federal court. These considerations, however, are appropriately weighed against the advantages of normal appellate review in determining whether to accept certification. Schlieter v. Carlos, 1989-NMSC-037, 108 N.M. 507, 775 P.2d 709.

Avoidance of advisory opinions. — The intent of the certification of facts and determinative answer requirements is that the supreme court avoid rendering advisory opinions. Schlieter v. Carlos, 1989-NMSC-037, 108 N.M. 507, 775 P.2d 709.

Requirements for certification. — It is sufficient if the certification of facts and the record contain the necessary factual predicates to the supreme court's resolution of the question certified, and it is clear that evidence admissible at trial may be resolved in a manner requiring application of the law in question. Schlieter v. Carlos, 1989-NMSC-037, 108 N.M. 507, 775 P.2d 709.

Certification is a discretionary function of the federal court, to be utilized, when available, to determine unsettled questions of state law. Ormsbee Dev. Co. v. Grace, 668 F.2d 1140 (10th Cir.), cert. denied, 459 U.S. 838, 103 S. Ct. 84, 74 L. Ed. 2d 79 (1982).

Court's answer must be determinative. — The supreme court's answer must be determinative in that it resolves the issue in the case out of which the question arose, and the resolution of this issue materially advances the ultimate termination of the litigation. Schlieter v. Carlos, 1989-NMSC-037, 108 N.M. 507, 775 P.2d 709.

Certification inappropriate where issue certified not determinative. — Certification to the supreme court of New Mexico is not appropriate when the issue certified would not be determinative of the issues before a federal court. Ormsbee Dev. Co. v. Grace, 668 F.2d 1140 (10th Cir.), cert. denied, 459 U.S. 838, 103 S. Ct. 84, 74 L. Ed. 2d 79 (1982).

Certification was declined, where certified questions regarding the constitutionality of the New Mexico Medical Malpractice Act, 41-5-1 NMSA 1978 et seq., were not accompanied by sufficient nonhypothetical evidentiary facts to allow the supreme court to adequately determine the constitutionality of the act, and even if the court were able to answer the questions certified, its answer would not be determinative of the issue out of which they arose. Schlieter v. Carlos, 1989-NMSC-037, 108 N.M. 507, 775 P.2d 709.

Party's request for abstention and certification comes too late, where the case has been tried and the district court has made its decision, and where dismissal, abstention or certification would promote, not prevent, fragmentation of water adjudication proceedings. N.M. ex rel. Reynolds v. Molybdenum Corp. of Am., 570 F.2d 1364 (10th Cir. 1978).