Procedural defects can be raised in state court

SB8 critics highlight the procedural problems in the private cause of action--statewide venue, limitless plaintiffs, limits on affirmative defenses, no non-mutual preclusion. They argue that these render state court an insufficient forum, because the deck is stacked in favor of the plaintiff, requiring a federal offensive litigation.

One problem with the argument is that it constitutionalizes sub-constitutional issues such as venue and preclusion. A second problem is that this is not unusual. Many state-court cases involve constitutional challenges to state-court procedures, which are litigated in state court and can provide a basis for eventual SCOTUS review. The defect in state procedure does not provide a basis for a constitutional claim or federal district-court jurisdiction in the underlying action.

Recent case in point: Third Circuit in DeGennaro v. Grabelle. This is a med-mal action in which plaintiff failed to comply with the state's pre-suit affidavit requirement, which plaintiff argues (erroneously) violates due process. Plaintiff tried to use this to get his claim into federal court by including a claim challenging the validity of the affidavit requirement. The court (properly) rejected this under the Well Pleaded Complaint Rule--this case is no different than Mottley (state claim, defense, constitutional challenge to defense). The plaintiff can challenge the affidavit requirement in state court, then appeal the requirement through the New Jersey courts and to SCOTUS.

No one would let DeGennaro bring a § 1983 action against the clerk of the state court, since he would accept the lawsuit requiring an affidavit, or against the  state judge for demanding the affidavit. But the logic of the (anticipated) decision in the SB8 cases is that constitutional defects in state procedure--those that stack the deck in favor of one private civil litigant against another private civil litigant--provide a basis to sue a state clerk or state judge to prohibit state litigation. Other than which party the deck is stacked against--it is against the defense in SB8, the plaintiff in this (and most) cases--the basic issues and arguments are the same.

I am repeating myself on this. But the point bears repeating--most of what people dislike about SB8 is not unique.