Hybrids: When Colorado and Federal Appeals Cross-pollinate
| Publication year | 2017 |
| Pages | 24 |
ATPITPLEELLATE LAW
By MARCY G. GLENN.
This article discusses “hybrid” appeals: Colorado state court appeals that become federal appeals, and Colorado Supreme Court rulings on unresolved issues of state law in federal cases.
Most Colorado and federal appeals stay on their respective state and federal tracks for their duration. A Colorado appeal typically commences in a state trial court and is initially appealed to the Colorado Court of Appeals. If the Colorado Supreme Court exercises its discretionary certiorari jurisdiction, the case may be reviewed again in that Court—but once the Supreme Court either declines to review the case on certiorari or, instead, accepts the appeal and then issues a decision on the merits, that’s usually the end of the line. Similarly, a federal appeal typically begins in a federal district court and is appealed to the appropriate federal court of appeals, and those federal courts alone decide the issues in the case.
Sometimes, however, those distinct Colorado and federal appeal processes become intertwined. This article discusses two such circumstances:
1.Colorado appeals that become federal appeals on the limited occasions when the U.S. Supreme Court elects to review a decision of the Colorado Supreme Court or, even less often, a Colorado Court of Appeals decision after the Colorado Supreme Court has denied certiorari review; and
2. requests by Colorado federal district courts and the Tenth Circuit Court of Appeals for the Colorado Supreme Court to provide authoritative rulings on unresolved issues of state law that are central to pending federal cases.
These hybrid appeals, while infrequent, require the state appellate practitioner to become expert in federal appellate practice and procedure, and vice versa, or to associate with co-counsel possessing that expertise. They also present unique appellate opportunities that lawyers should not overlook.
Appeals from the Colorado Supreme Court to the U.S. Supreme Court
Since 1789, when Congress enacted the First Judiciary Act, the U.S. Supreme Court has had jurisdiction to review certain final judgments of state appellate courts,[1] with the nature and scope of that jurisdiction evolving over the next 200 years. In 1988, in 28 USC § 1257(a), Congress established the U.S. Supreme Court’s current jurisdiction, vesting the Court with discretionary authority to review final judgments of a state’s highest court where the state court decision invalidates a federal treaty or statute, invalidates a state statute under federal law, or decides other claims under federal law.
Procedural Requirements
The U.S. Supreme Court’s normal certiorari procedures apply to petitions asking the Court to review federal questions decided by a state’s highest court.[2] The U.S. Supreme Court has unfettered discretion to grant or deny petitions from state court judgments. The Court grants, on average, only a very small percentage of the certiorari petitions fled each year, the vast majority of which seek review of federal court of appeals decisions, not decisions rendered by state high courts.[3]
Substantive Standards
There are three basic prerequisites to the Supreme Court’s jurisdiction to review state court judgments. The judgment must be (1) a final judgment or decree (2) “rendered by the highest court of a State in which a decision could be had” (3) on a federal question as described in § 1257(a).[4]
Final judgment. Consistent with notions of finality under Colorado law, the U.S. Supreme Court has defend a final state court judgment as one that “terminates the litigation between the parties on the merits of the case, so that, if there should be an affirmance [by the Supreme Court], the court below would have nothing to do but to execute the judgment it had already rendered.”[5] Under this traditional doctrine of finality, a judgment directing final dismissal of a case is final, but interlocutory injunction rulings and other pretrial rulings are not.[6] An order that determines liability but not damages, or that remands for a new trial or other proceedings, is not final.[7] A timely fled petition for rehearing renders the judgment non-final until the petition is decided; however, the mere availability of a rehearing procedure does not affect finality.[8]
In 1975, in Cox v. Broadcasting Corp. v. Cohn,[9] the U.S. Supreme Court provided an expansive discussion of four categories of state court judgments that would be deemed final for purposes of potential Supreme Court review, despite the prospect of further state proceedings:
1.“those cases in which there are further proceedings—even entire trials—yet to occur in the state courts, but where, for one reason or another, the federal issue is conclusive or the outcome of further proceedings preordained”;[10]
2. cases “in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings”;[11]
3. “situations where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case”;[12] and
4. “situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action[.]”[13]
A discussion of these categories would warrant a separate article; suffice it to say here that lawyers should review Cox and its progeny when considering whether a seemingly non-final Colorado Supreme Court or Court of Appeals judgment might be sufficiently final to establish U.S. Supreme Court jurisdiction under § 1257(a).
Highest state court. Generally speaking, the U.S. Supreme Court’s jurisdiction to review a state court judgment is confined to judgments of the highest state court that could issue a decision (i.e., in Colorado, the Colorado Supreme Court).[14] However, jurisdiction under § 1257(a) also extends to intermediate state appellate court decisions when the highest state court has declined to accept those decisions for review.[15] For example, as discussed below, the U.S. Supreme Court’s docket for the current term includes a Colorado Court of Appeals decision that the Colorado Supreme Court declined to review.
Federal question. Section 1257(a) defines a federal question as one “where the validity of a treaty or statute of the United States is drawn in question or where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the United States,” as well as “where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes of . . . the United States.” Stated more plainly, a state court judgment must present “a not insubstantial claim that any variety of federal law applies to require a result different from that reached by the state courts.”[16]
The federal question must be significant to warrant U.S. Supreme Court review. The Court is highly unlikely to review a federal question decided by a state high court unless the state court (1) “has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;”[17] (2) “has decided an important question of federal law that has not been, but should be, settled by [the U.S. Supreme] Court[;]”[18] or (3) “has decided an important federal question in a way that conflicts with relevant decisions of [the U.S. Supreme] Court.”[19]
Recent Cases
Given the limited number of certiorari petitions that the U.S. Supreme Court grants, coupled with the vast number of petitions seeking review (primarily of federal court of appeals decisions), it should come as no surprise that the U.S. Supreme Court has agreed to hear very few Colorado state court decisions over the years.
Since 2000, the U.S. Supreme Court has granted certiorari petitions and issued decisions reviewing on the merits Colorado Supreme Court decisions on only four occasions:[20]
■ In 2000, in Hill v. Colorado, “[b]ecause of the importance of the case,” the U.S. Supreme Court granted certiorari, and affirmed the...
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