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Wednesday, March 05, 2008

Learning from Our Students

In my upper-level elective courses (Federal Courts and Civil Rights), 15 % of the final grade is based on an appellate argument. Each student argues a recent court of appeals decision to the "Supreme Court" (a panel of myself and 2-3 classmates). I have done this three times and the students tend to get into the project. Many students (especially the public-law geeks who tend to take Fed Courts) like the chance to play judge and appellate advocate and I think they (or at least some of them) see it as a nice change-of-pace from the typical end-of-semester issue-spotting hypothetical essay exam.

On two occasions, I have used Smelt v. Orange County, a 2006 decision where the Ninth Circuit abstained under Pullman from a constitutional challenge to California's ban on same-sex marriage. The court abstained in deference to a state constitutional challenge to the ban that at the point was working its way through the state courts. The California Supreme Court actually heard oral arguments on the state case yesterday, which is what reminded me of this. Dale Carpenter offers thoughts on the argument at the VC.

My initial reaction to the case was that the Ninth Circuit was correct in abstaining. But this year, the student arguing for reversal nailed the key issue that undermines the Ninth Circuit's decision, although without fully fleshing it out. Pullman abstention is proper when a challenged state law is ambiguous and a state-court interpretation and construction might eliminate the constitutional defect in the law. Pullman is grounded in policies of avoiding unnecessary constitutional rulings and seeking sub-constitutional grounds for resolving cases. But the state law must be ambiguous and must be reasonably capable of some construction that would avoid the constitutional problem; if the law is clear and unambiguous, abstention is improper and the federal court should go ahead and resolve the constitutional challenge.

But, the student pointed out in the argument, California's marriage laws are not ambiguous--they are perfectly clear in prohibiting two men or two women from marrying each other. And this caused me to re-examine the decision in Smelt and to conclude that the Ninth Circuit was wrong. The court's three-part test asked only whether a state-law issue could resolve the litigation; it did not say anything about the nature of the state-law issue or the need for ambiguity. The pending state-court litigation to which the court deferred was not going to construe the state laws or interpret around the possible constitutional defects; it was going to decide the constitutionality of these unambiguous laws, but under the state constitution. But the court said that was enough for abstention. In other words, the Ninth Circuit used Pullman to privilege state constitutional litigation over federal constitutional litigation. That flies in the face of the view that abstention should be the exception to the Court's "unflagging obligation" to take jurisdiction.

Ultimately, Smelt passes into history without notice. The time for seeking cert is long passed. And, since the state-court case was pending when the federal case was filed, there may have been other bases for the court to abstain. And the California Supreme Court will resolve the issue on state constitutional grounds, one way or another.

But it is great when students can call out the courts for sloppy doctrinal work. And it is even better when they can help us to identify that sloppiness. That is a teaching moment.

Posted by Howard Wasserman on March 5, 2008 at 08:15 AM | Permalink


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Fair point about it being more than ambiguity. B Pullman still involved a possible sub-constitutional, state-law defect that would have obviated the need for constitutional analysis. So, Smelt makes sense if the issue was whether the state had the power to enact regulations defining marriage (the issue in Pullman).

Posted by: Howard Wasserman | Apr 2, 2008 6:31:08 PM

Ironically, under Professor Wasserman's analysis, Pullman itself is not a good example of Pullman abstention. The regulation in question -- requiring a Pullman conductor on any train with a Pullman car -- was clear and unambiguous. The "state law issue" was whether state agency had authority under Texas law to issue the regulation.

That said, I agree that Pullman has, at some point, become focused on ambiguity in the state law.

Posted by: Steve Wolfe | Apr 2, 2008 5:54:02 PM

Prof. Wasserman,

For further confirmation that Smelt was wrongly decided, you may want to take a look at BT Investment Managers, Inc. v. Lewis, 559 F.2d 950 (5th Cir. 1977) (holding district court's decision to abstain under Pullman inappropriate because the Florida law at issue was clear and correctly citing Wisconsin v. Constantineau, 400 U.S. 433 (1971) for the proposition that "where a state statute can be challenged under essentially identical state and federal constitutional provisions, abstention is improper").

Posted by: Stephen Aslett | Mar 5, 2008 6:00:24 PM

But the idea of Pullman was not to favor state constitutional adjudication over federal constitutional adjudication. Otherwise, Pullman would essentially become an exhaustion requirement--forcing plaintiffs to bring state constitutional challenges first as a condition to bringing federal constitutional challenges. The idea was to avoid the constitutional (Equal Protection or Due Process) issue by the possibility of state-court construction of the state law being challenged as unconstitutional. So the ambiguity we look to is the ambiguity of the challenged state law, regardless of what the state constitution (ambiguous or otherwise) has to say about it.

A reader e-mailed to point out one case in which the Supreme Court did abstain under Pullman in deference to a state constitutional issue. But two things about that case: 1) the state constitutional provision dealt specifically with the subject at hand (regulation of Alaska fisheries) that was uniquely local and 2) the state constitutional issues had been raised in the federal litigation. Later, however, the Court insisted that Pullman abstention is inappropriate in deference to parallel state constitutional provisions--which is what was going on in *Smelt*. At the very least, we could have expected the Ninth Circuit to talk about this.

Posted by: Howard Wasserman | Mar 5, 2008 3:10:21 PM

I have no expertise in this area. Nonetheless, doesn't this come down to a definition of what constitutes "state law" in this respect? The California statute is absolutely clear. But California "law", as to be determined by its Supreme Court, may be completely different, because the statute may be held unconstitutional under the California constitution.

To say that "California law" is unambiguous in this context is kind of like saying that "United States law" is unambiguous on this issue in light of the Defense of Marriage Act. A foreign court that needed to apply U.S. law on this issue would surely defer to the judgment of the U.S. Supreme Court on this issue (including relevant consideration of the U.S. Constitution), rather than simply follow the statute.

Posted by: anon | Mar 5, 2008 2:31:45 PM

Nice story, Howard. Sounds like a great class. And we definitely need to do more to break up 100% reliance on final exam.

Posted by: Jason Solomon | Mar 5, 2008 8:56:13 AM

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