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Thursday, March 07, 2019

More on Judge Sutton

To follow on Rick's post, today I attended a lecture that Judge Sutton gave in Indianapolis about his book on state constitutional law. There were lots of interesting ideas discussed that I would like to post about over the next few days.

One of those ideas is that state courts should give state constitutional claims priority over federal constitutional claims. In other words, suppose someone brings a free speech claim under state and federal law. Instead of starting with the federal claim (as most state courts do) and only addressing the state claim if necessary, Judge Sutton suggests doing the opposite. This would allow for greater development of state doctrine, which would have a self-reinforcing effect in future cases.

Here's a thought about that. A problem would be the same one often presented in qualified immunity cases. If a state claim is discussed and rejected, then a federal claim is accepted, the state discussion is dicta. (Just as a statement that something is a right but is not "clearly established" leaves the right as dicta). How then can that develop the law? Perhaps state supreme courts could tacitly agree that their state law dicta is binding in their future cases, but lower state courts would face a dilemma. 

Posted by Gerard Magliocca on March 7, 2019 at 08:28 PM | Permalink


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Posted by: celine dion | Mar 22, 2019 9:00:56 AM

I totally agree with you that, in the real world, when a court, unnecessarily to its judgment, purports to bind itself and lower courts on the future precedential effects of things it's said in explaining that judgment, lower courts generally say, "oh, that isn't a dictum because the court said in making that statement that it was a holding. Guess we're bound by it; what could be more dispositive of the holding-dictum question than the rendering court's own view of what its holding was?" But of course that is the purest dictum; nothing could be more unnecessary to a judgment than making claims about the precedential effect the explanation of that judgment will have in future cases. And such dicta are not only, on any sane definition of dicta, dicta; they should also be looked at with great suspicion because they will very often be attempts to evade the holding-dictum distinction by self-servingly claiming that some dictum the author has just written is a holding. Similarly, authors of plurality opinions will occasionally apply the narrowest-grounds rule to their own opinion, in that very opinion, and advise lower courts that their opinion is the case's holding. For example, see page 40 of this Third Circuit en banc:


Posted by: Asher Steinberg | Mar 8, 2019 5:59:09 PM

Asher, I guess my experience in state courts is different from yours.

If a state Supreme Court said what I suggested, then every lower court and intermediate appellate court would say "ok" and would not treat such holdings as dicta. Sitting in later cases, state Supreme Court itself would be free to overrule itself on a particular question just as it always is.

Are you familiar with practice in a state in which the lower courts would do other than I just suggested?

Posted by: Sam | Mar 8, 2019 5:12:25 PM

And just to quote from Timbs mentioned( P.3 to the opinion):

A Bill of rights protection is incorporated,we have explained if it is " fundamental to our scheme of ordered Liberty " or " deeply rooted in this Nation's history and tradition ".

As such:

" Thus , if a Bill of rights protection is incorporated,there is no daylight between the federal and state conduct it prohibits or requires ".


Posted by: El roam | Mar 8, 2019 6:43:02 AM

It is hard to accept such ideas. For, constitutional principles are equal typically. It wouldn't matter state or federal. What matters, is not the fundamental principal, but rather the implication. The latter can vary in accordance with circumstances or legal constitutional perception. We can illustrate it in many ways, but let's take very common and simple one, as free speech :

The right for free speech, is constitutional and general. Yet, implication can vary :

Some would consider the validity or implication, also in private legal fields, not only in the level of state v. individuals. Some would consider also the effective dimensions of free speech (the right of gathering information for example ) some other less, yet :

The abstract general principal, would always reign supreme, and equally so. In accordance, it is hard to accept that terminology of state as "dicta", and federal as more substantive or vice versa.

One needs to read simply, the latest ruling of the Supreme court in Timbs v. Indiana, and clearly observe it, here :



Posted by: El roam | Mar 8, 2019 6:31:17 AM

I would say that Sam's idea is trivially wrong; a opinion's own statement of whether a statement in that selfsame opinion is a holding or a dictum is always a dictum (though judges often behave as if this weren't the case). They would have to adopt that rule in case two when dealing with the sorts of statements that were arguably dicta in case one, and do so in an outcome-determinative way, i.e., say that they're bound by the non-necessary discussion of state law in case one and therefore some result is entailed.

Now, here is a thought that is possibly just as wrong. State X's Supreme Court, as you say, rejects a state claim and accepts a federal claim. Obviously there is no alternate and independent state-law ground for the decision, so the decision is reviewable. Were the Supreme Court to reverse the federal holding, what would become of the state-law holding? I would think 99 lawyers out of 100 would say it can't be revisited on remand as some sort of advisory academic musing that's something less than law of the case; at that point, the case is over and the plaintiff has lost out on his two bases for relief. This suggests to me that, when a state claim is rejected, and a federal claim is accepted that provides precisely the same relief that the state claim would have if accepted, something has actually been done; it isn't just unnecessary talk. If it were really just dicta, there wouldn't be a final decision on the state claim. I feel more confident about this than I do about any argument that statements about the first step of qualified immunity in decisions where the defendants win are somehow not dicta.

Now, we could, I guess, posit a similar (though much more fanciful) thought experiment that might seem to show that something of legal moment beyond mere talk happens when a court says that x violates the law, even though it proceeds to find that the violation wasn't clearly established and rules for the defendant. Suppose that a decision of that kind is issued by a court of appeals, and the plaintiff petitions for cert on whether the doctrine of qualified immunity should be overruled. If he wins, on remand the court of appeals' holding on the first step of qualified immunity would probably snap into a reason for judgment for the plaintiff, and couldn't be revisited on remand. But I wonder if even that is right. One could argue that a court of appeals that had believed the defendant would be immunized should get to revisit its "holding" on legality once it knows that that holding will have immediate consequence. The same could be said of the state supreme court in my first scenario, I suppose, but the possibility of Supreme Court review of their decisions on federal constitutional questions is always a dim possibility to some degree, much more so than the lightning bolt of overruling qualified immunity in any single 1983 case.

Posted by: Asher Steinberg | Mar 7, 2019 11:47:21 PM

Easy. State Supreme Court drops a footnote in first such case in its jurisdiction, saying "For purposes of stare decisis and binding lower courts, our discussion of the state constitution counts as holding not dicta."

Posted by: Sam | Mar 7, 2019 8:31:31 PM

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