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Friday, March 08, 2019

Even more on Judge Sutton

This seemed too long for a comment to Gerard's post, so I will lay it out separately.

The rights-violation prong in a qualified-immunity case is not treated as dicta. In Camreta v. Greene, the Court held that it would hear "winner's appeals" from officers in cases in which the lower court held that the right was violated but granted immunity because the right was not clearly established. In justifying the decision, the Court stated the "constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or "statements in opinions. They are rulings that have a significant future effect on the conduct of public officials" The Court quoted a Scalia dissent from denial of cert in a similar case in which he argued that winner's appeals were proper because "[t]hat constitutional determination is not mere dictum in the ordinary sense, since the whole reason we require it to be set forth (despite the availability of qualified immunity) is to clarify the law and thus make unavailable repeated claims of qualified immunity in future cases."

So I wonder if the same could be said about the state constitutional decision in the cases Sutton has in mind. Both are grounded in concerns for clarifying the law. Both also have concerns and effects on appealability. Camreta ensures that unfavorable merits determinations are not rendered unappealable by the favorable judgment on the separate prong of the analysis. Sutton's proposal would better position state courts to immunize decisions from SCOTUS review under the independent-and-adequate doctrine.

One further, unrelated Sutton point: Justice Kavanaugh name-dropped Judge Sutton in argument in American Legion v. American Humanist Association, asking respondent whether the Court should avoid deciding the Establishment Clause issues here because the Maryland courts could handle this under the Maryland Constitution. Counsel missed the question, prompting  Justice Sotomayor to jump in three pages later to bail her out. Kavanaugh seemed to use Sutton's book to bolster Justice Rehnquist's Chief Justice Burger's dissent in Wisconsin v. Constantineau, in which he argued that a federal court should abstain under Pullman when the state courts have not addressed the issue under the state constitution.

And since we are on the subject, I will highlight Jim Pfander's JOTWELL review of Sutton's book from January.

Posted by Howard Wasserman on March 8, 2019 at 07:45 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink


He seemed to be more interested in legislative action, broadly speaking, but I think it's fair to say that that's a wrinkle he probably didn't consider. Of course, claim preclusion is a somewhat flexible doctrine, especially in the Court's eyes, see Hellerstedt; as I recall, there's a section of the Second Restatement of Judgments that says a court may limit the preclusive effects of its own judgment by reserving the plaintiff's right to bring a second action on certain claims, and some courts follow that section (check out, if I'm recalling correctly, In re Vitamin C Antitrust Litigation). If the very reason the Court gave for denying a federal claim was the possible availability of state constitutional relief, the Court might explicitly state that its judgment doesn't preclude state-law claims, or might be understood to have implicitly premised its decision on such a reservation.

Posted by: Asher Steinberg | Mar 9, 2019 4:58:53 PM

Deciding against the plaintiffs on the merits probably would be claim preclusive of a state constitutional claim in state court.

Posted by: Howard Wasserman | Mar 9, 2019 1:08:16 PM

No, I didn't take him to be suggesting a DIG or abstention at all. I thought the suggestion was that the Court should decide against plaintiffs on the merits and set a relatively low floor on this kind of Establishment Clause problem, leaving it to states and state courts to decide whether they want to take monuments down.

Posted by: Asher Steinberg | Mar 9, 2019 1:02:39 PM

Just to add: I don’t know whether Kavanaugh was thinking or referring specifically to Pullman and Constantineau. But the logic of his question would require the Court to DIG the case and the district court to find someway to avoid deciding the federal constitutional question in deference to state law. Pullman (or certification) is the only way to get there.

Posted by: Howard Wasserman | Mar 9, 2019 10:36:32 AM

Oops; confused my chiefs.

I don't believe Sutton argues for the Burger position. I think Kavanaugh knew that Sutton is drawing a lot of positive attention for highlighting state constitutionalism, so thought it would be smart to link that positive attention to the bigger "federalism" point he wanted to make about judicial review. Kavanaugh's question was not limited to the state constitution, but also alluded to state and local political processes.

Posted by: Howard Wasserman | Mar 9, 2019 8:46:08 AM

I assume you mean the Burger opinion in Constantineau, Howard (Rehnquist wasn't yet on the Court).

Is that what people think Kavanaugh was referring to? (Does Sutton express support for the Burger view?) Like counsel, I was very confused by his question. Indeed, even if there were something to be said (I doubt there is) for Burger's notion that the federal courts should abstain when there's any outside possibility that the case could be resolved on state constitutional grounds, the Peace Cross case would appear to be the worst sort of candidate for abstention: The Maryland Constitution doesn't even have a clause prohibiting religious establishments. To the contrary, in 1970 it was amended to add this strange provision (apparently designed as a futile rebuke to Engel and Schempp: "Nothing shall prohibit or require the making reference to belief in, reliance upon, or invoking the aid of God or a Supreme Being in any governmental or public document, proceeding, activity, ceremony, school, institution, or place.”

Posted by: Marty Lederman | Mar 9, 2019 5:46:34 AM

I assumed Magliocca was aware of Camreta and the practice of treating non-necessary statements about non-clearly-established rights as holdings, but was implying that Camreta and that practice make no sense.

Posted by: Asher Steinberg | Mar 8, 2019 6:26:13 PM

Just worth to note, in Camreta v. Greene the court held, that it may review a case, not only because of constitutional ground or issue ( review the winner's ) but it is justified, even merely on policy ground(quoting from the Syllabus):

" The court has recognized exceptions to this prudential rule when there has been a " policy reason.....of sufficient importance to allow an appeal "

And from the opinion I quote:

" They are rulings that have a significant future effect on the conduct of public officials — both the prevailing parties and their co workers — and the policies of the government units to which they belong."

End of quotation :

So, typically may present constitutional issue,but,this is not the sole necessity it seems indeed.

In the case of Wisconsin, one should notice that the main factor of abstention, doesn't stand on Federal V. state in fact, but rather, the lack of ambiguity in the state act or legislation rather. Once it is unambiguous and well defined, federal court should intervene.Here I quote :

" In the present case the Wisconsin Act does not contain any provision whatsoever for notice and hearing. There is no ambiguity in the state statute "

As such:

Where there is no ambiguity in the state statute, the federal court should not abstain but should proceed to decide the federal constitutional claim.


Posted by: El roam | Mar 8, 2019 12:04:29 PM

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