What’s certifiable?

Practice area:

It may be the height of summer vacation time, but the Law Court and First Circuit continue to issue decisions, some of note.  Here’s one of interest, in which Judge Lynch parted ways with the reasoning of the majority (Judge Lipez, joined by CJ Howard):  Ms. S. v. Regional School Unit 72, No. 15-1487 (1st Cir. July 15, 2016).

The underlying subject matter is the Individuals with Disabilities Education Act (IDEA) and its interface with a Maine regulation regarding the timing for seeking a due process hearing under IDEA.  But the discussion is all about Maine procedural requirements for rulemaking under the Maine Administrative Procedure Act.

I will spare you the majority’s long discussion of its interpretation (the ruling is a remand for the district court to try again to figure out the answer to the ultimate question whether the rule passed muster or is invalid.)  I also won’t go into the labrynthian and confusing nature of the APA on these issues, the interface between emergency and major substantive rule procedures (particularly when they do both at once).

The headscratcher to me – and apparently to concurring Judge Lynch – is why the majority felt it needed to wade into this swamp instead of certifying the question of state law to the Law Court.  As Judge Lynch notes, the District Court (Judge Levy) can still do that.

These are tricky open, state law questions and the Law Court nearly always answers certified questions.  Why wouldn’t the court want to certify in this situation?