Whenever the learned jurists of the Third Circuit certify a question of state law to the New Jersey Supreme Court, they show a great deal of humility. In certifying a question, the federal judges admit to being unclear on a point of state law in a case before them and formally request that the state’s highest court provide an answer. So they must feel at least a twinge of shame when, after conceding their bafflement and need for clarification, the state court tells the federal judges, however so politely, that their question is not worth considering.
Such an awkward moment between the federal and state courts occurred this past year in Nuveen Municipal Trust v. WithumSmith+Brown, where the United States Court of Appeals for the Third Circuit certified two questions concerning the application of New Jersey’s Affidavit of Merit Statute (AOMS), only to have the New Jersey Supreme Court rebuff its plea.??In addition to revealing a remarkable feature of the relationship between the state and federal judiciaries, Nuveen is instructive for litigants, as it shows that failing to comply with the AOMS is a terrible risk that squanders client resources and potentially leads to the ultimate sanction of dismissal with prejudice.
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