dissenting.
[¶ 21] On the state of the record before this Court, I would respectfully decline to answer the question certified.
[¶ 22] Rule 47, N.D.R.App.P., provides for certification of questions of law from federal district courts and provides, in part:
(a)Power to Answer. The supreme court may answer questions of law certified to it by the United States Supreme Court, a court of appeals of the United States, a United States district court, or the highest appellate or intermediate appellate court of any other state, when requested by the certifying court and the following conditions are met:
(1) questions of law of this state are involved in any proceeding before the certifying court which may be determinative of the proceeding;
(2) it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
(b) Method of Invoking. This rule may be invoked by an order of any of the courts referred to in subdivision (a) upon the court’s own motion or upon the motion of any party to the proceeding.
(c) Contents of Certification Order. A certification order must contain:
(1) a question of law formulated in a manner allowing the question to be answered by a “yes” or “no”;
(2) a statement of all facts relevant to the question certified, showing fully the nature of the controversy in which the question arose;
(3) a statement demonstrating there is no controlling precedent in the decisions of the supreme court.
(Emphasis added.)
[¶ 23] The explanatory note for N.D.R.App.P. 47 says the rule is “substantially the same as the 1967 Uniform Certification of Questions of Law Act as drafted by the National Conference of Commissioners on Uniform State Laws.” N.D.RApp.P. 47, Explanatory Note. The explanatory note includes the following statements from the official comments to the Uniform Certification of Questions of Law Act:
This rule provides that the supreme court has the right to answer questions certified to it; it is not mandatory that the court answer certified questions. *63See, for example, Atlas Life Insurance Co. v. W.I. Southern, Inc., 306 U.S. 563, 59 S.Ct. 657, 83 L.Ed. 987 (1939), and National Labor Relations Board v. White Swan Co., 313 U.S. 23, 61 S.Ct. 75 [751], 85 L.Ed. 1165 (1941) (in both cases the Supreme Court of the United States refused to answer certified questions).
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The statement of facts in a certification order should present all of the relevant facts. The purpose is to give the answering court a complete picture of the controversy so that the answer will not be given in a vacuum. The certifying court could include exhibits, excerpts from the record, a summary of the facts found by the court, and any other document which will be of assistance to the answering court.
N.D.R.App.P. 47, Explanatory Note.
[¶ 24] In Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 566, 59 S.Ct. 657, 83 L.Ed. 987 (1939) and National Labor Relations Bd. v. White Swan Co., 313 U.S. 23, 24, 61 S.Ct. 751, 85 L.Ed. 1165 (1941), the United States Supreme Court refused to answer questions certified to it by a circuit court of appeals. In White Swan, at 27, 61 S.Ct. 751, the Supreme Court stated the certified questions required the “necessity of making [a] supposition [which] reveal[ed] the hypothetical and abstract quality of the questions.” In Atlas Life, at 573, 59 S.Ct. 657, the Supreme Court explained “[t]he certificate fails to disclose whether all the facts and circumstances pertinent to this issue have been certified” and said it “should not answer, questions which may be affected by unstated matter lurking in the record, or questions which admit of one answer under one set of circumstances and a different answer under another, neither of which is inconsistent with the certificate.”
[¶ 25] The plain language of N.D.R.App.P. 47(a) says this Court “may answer questions of law certified” by a federal district court. We have said the word “may” is ordinarily understood as “ ‘permissive rather than mandatory and operates to confer discretion.’ ” Midthun v. N.D. Workforce Safety and Ins., 2009 ND 22, ¶ 12, 761 N.W.2d 572 (quoting Matter of Adoption of K.S.H., 442 N.W.2d 417, 420 (N.D.1989)).
[¶ 26] The majority opinion has recited the entire certified question from the federal district court and concludes, in paragraph 8, that the certifying court made findings exceeding the requirements of N.D.R.App.P. 47. I disagree. It is true that the district court has told us the answer to the certified question “will be determinative to the proceedings” in federal court, whereas our rule only requires that they “may” be determinative. That, however, is exactly what gives me concern. If the facts have been advanced to the point where the answer to the question “will be determinative,” this Court should not be asked to answer the question without the benefit of knowing those facts. Doing so “exposes the judiciary to the danger of improvidently deciding issues and of not sufficiently contemplating ramifications of the opinion,” which Justice Crothers has cautioned against in another context. Sandberg v. Am. Family Ins. Co., 2006 ND 198, ¶ 20, 722 N.W.2d 359 (Crothers, J., concurring specially). While we must appreciate the deference shown to the development of state law by the certification of state law questions, an undeveloped record creates risks of unintended consequences. Under facts which are totally unknown to this Court, the opinion and the subsequent development of this case in the federal courts may b§ taken for an application of North Dakota law which strains our statute.
*64[¶ 27] Here, although N.D.C.C. § 28-01.3-04 authorizes dismissal of actions against nonmanufaeturing sellers at an early stage in litigation, the underlying facts in this case have not been adequately developed regarding whether Cabela’s satisfies the definition of a “manufacturer” or the possible application of N.D.C.C. § 28-01.3-04 to the facts. Cabela’s name was prominently engraved on the meat grinder and displayed on the informational brochures and packaging for the meat grinder, but this record does not reflect who prepared those documents or caused the name to be engraved on the grinder. The record also does not establish the relationship between Pragotrade and Cabela’s. The resolution of those factual issues may have a bearing on whether Cabela’s is a “manufacturer” under N.D.C.C. § 28-01.3-01(1), or whether the exceptions in N.D.C.C. § 28-01.3-04 are applicable to Cabela’s. Although the statute does not use the phrase “apparent manufacturer,” some of the concepts imbedded in that phrase are statutorily captured in the definition of “manufacturer” in N.D.C.C. §§ 28-01.3-01 and 28-01.3-04. I think it is unwise, without a clear “statement of all facts relevant to the question certified showing fully the nature of the controversy in which the question arose[,]” to answer what amounts to a hypothetical question. The majority is willing to assume that the district court has found Cabela’s not to be a “manufacturer” under the law of North Dakota. I am unwilling to sign an opinion that will carry the suggestion that this finding, under the state of the record sent to this Court, carries the imprimatur of our Court. It is unknown to this Court what control Cabela’s exercised over the product causing the injury. On this record, the certified question requires the “necessity of making [a] supposition [which] reveals the hypothetical and abstract quality of the question! ].” See White Swan, 313 U.S. at 27, 61 S.Ct. 751. There are unknown factual issues in this case which render the answer to the certified question purely hypothetical.
[¶ 28] On the factual record certified in this case, I would respectfully decline to answer the certified question.
[¶ 29] MARY MUEHLEN MARING, J., concur.