67 The Alabama Lawyer 273 (2006). Is the Alabama Supreme Court Obliged to Follow Precedental Case Law of The United States Supreme Court.

• Author: BY JAMES F. VICKREY

The Alabama Lawyer

2006.

67 The Alabama Lawyer 273 (2006).

Is the Alabama Supreme Court Obliged to Follow Precedental Case Law of The United States Supreme Court

Is the Alabama Supreme Court Obliged to Follow Precedental Case Law of The United States Supreme Court?BY JAMES F. VICKREY "Accepting the risk of obscuring the obvious by discussing it," United States Reading Co., 253 U.S. 26, 61 (1920), is one of the challenges of essaying the issue constituting the title of this article. To the vast majority of members of the Alabama State Bar as well as legal analysts, the answer to the query may now be self-evidently obvious; to a small minority, however, it appears that that is not the case.(fn1) Regardless, perhaps too many readers of this journal may have difficulty answering completely the "why?" of it when confronted with the issue directly by another lawyer or layperson, or by a judge. So, let us consider the matter here, being mindful of Sir Edward Coke's observation: "Reason is the life of the law; nay, the common law itself is nothing else by reason." Edwards et al. (eds.), The New Dictionary of Thought 345 (1969).

The answer to the question - Is the Alabama Supreme Court obliged to follow precedental case law of the United States Supreme Court? - implicates the answers to three separate but related queries. First, does Alabama law,(fn2) expressly or impliedly, require the state supreme court to do so? Second, does federal law, expressly or impliedly, require the state supreme court to do so? Third, do any considerations of public policy require the Alabama Supreme Court to follow U.S. Supreme Court precedent?

One citation will be enough, if it is in point.

- Mr. Justice Oliver Wendell Holmes, quoted in Novick, Honorable Justice 194 (1989).

A. Does Alabama law, expressly or impliedly, require the state supreme court to follow precedent of the U.S. Supreme Court? There is no state statute requiring it. There is, however, ample authority otherwise for the requirement in decisions of Alabama's court of last resort. At least since 1866, members of the state supreme court have recognized and applied rulings of the U.S. Supreme Court as precedent - for example, in cases purportedly involving the impairment of contracts by the state under Article I, section 10, clause 1, of the U.S. Constitution. Ex parte Pollard, 40 Ala. 77 (1866), and the prior case cited therein.(fn3) See also Nelson v. McCrary, 60 Ala. 301 (1877)("obedience is due from all state tribunals, on this [impairment of contracts] and kindred questions" to "decisions of the Supreme Court of the United States," id. at 311). A more recent case to the same effect, involving the separation of powers doctrine and the Fourteenth Amendment to the U.S. Constitution in the context of a legislative redistricting dispute, is Rice v. English, 835 So. 2d 157 (Ala. 2002). It is admitted that, in light of the answer to the second question, infra, such cases are also "federal" authority; indeed, they are arguably the basis of the Alabama decisional law! But, such is not necessarily so, because of the following.

There is one Alabama constitutional provision that impliedly suggests an affirmative answer to the question: Article XVI, section 279 of the 1901 Constitution. It provides, in pertinent part, that "[a]ll members of the legislature, and all officers, executive and judicial " must affirm or swear to "support the Constitution of the State of Alabama and [to] faithfully and honestly discharge the duties of the office to the best of [their] ability." A similar provision may be found in the Alabama constitutions of 1875 (Art. VII, sec. 6), 1865 (Art. XV, sec. 1), and 1819 (Art. VI, sec. 1). The related provision (Art. VI, sec. 1) in the constitution of 1861 makes no reference to the federal Constitution for reasons too sad to recall. (The unadopted constitution of 1868 includes a provision (Art. XV, sec. 1) similar to that in the current state constitution.) The relevance of the oath, which has been a part of Alabama organic law from the beginning of statehood 187 years ago, is that all legislators and all of the denominated state officers, including justices of the state's highest court, are obligated to support both the federal and state constitutions. (There is no such thing in Alabama as an oath ONLY to the state constitution.) And, since it is the justices who say and apply what the constitutions mean as applied in a given factual situation,(fn4) they must follow the dictates of such reasoning. As today, so throughout the history of the state, most state supreme court majorities have accepted this and gone about the business of appellate adjudication. See, e.g., Ex parte Selma & Gulf Railroad Co., 45 Ala. 696 (1871), 1871 WL 986 ("No power of this nature is expressly given. Considering its importance, it is a little strange that it has been wholly omitted. But grant that it exists" (emphasis supplied), id. at *22). The U.S. Supreme Court, of course, is the final arbiter of what federal law is to be applied and how, beginning with its declaration to that effect in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 2 L.Ed. 60 (1803),(fn5) the single most famous and important case in American constitutional history. CHEMERINKSY, Constitutional Law: Principles and Practices, sec. 2.2.1, 36-37 (1997).

So, if one is an Alabama Supreme Court justice with the "inherited," common law authority and duty to exercise review of the constitutionality of acts of other branches of government and has taken an oath to "support" the state and federal constitutions, is one not thereby bound to exercise it in a proper case? See Walden v. State, 426 So. 2d 515 (Ala. Crim. App. 1962), on the solemnity (in a search warrant context) of the oath in section 279 of the Alabama constitution. Since states' highest courts are still the final expositors of the meaning and application of state law, Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1875), honoring the oath in regard to state constitutional issues is just as important as it is in regard to following precedent of the U.S. Supreme Court on matters within its purview. Neither the oath nor any other requirement mandates that the Alabama Supreme Court follow precedent of any federal court other than the nation's court of last resort. As the state court puts it in Weems v. Jefferson-Pilot Life Ins. Co., Inc., 663 So. 2d 905 (Ala. 1995), rehearing denied, cert. denied, 516 U.S. 971 133 L. Ed. 2d 348, 116 S. Ct. 434, the court may rely on a decision of any federal court, if it chooses to do so, but it is bound only by decisions of the Supreme Court of the United States.

One other aspect of state judicial activities is relevant: the requirement that the Alabama Court of Civil Appeals and the Court of Criminal Appeals follow precedent of the state supreme court. Irwin v. State, 23 Ala. App. 284, 124 So. 408 (1929), cert. denied, 220 Ala. 160, 124 So. 410 (Ala. 1929); Smith v. State, 838 So. 2d 413 (Ala. Crim. App., 2002), cert. denied, 537 U.S. 1090, 154 L. Ed. 2d 635, 123 S. Ct. 695 (2002); State Farm Mut. Auto Ins. Co. v. Carlton, 867 So. 2d 320, rehearing denied, affirmed Ex parte Carlton, 867 So. 2d 332 (Ala. 2003), rehearing denied. See also 21 C.J.S., Courts, sec. 151. That has been the case since the establishment of the state's intermediate appellate courts. There is even a state statute on the matter. Section 12-3-16, Code of Alabama (1975), states: "The decisions of the Supreme Court [of Alabama] shall govern the holding and decisions of the courts of appeals, and [, moreover,] the decisions and proceedings of such courts of appeals shall be subject to the general superintendence and control of the Supreme Court as provided by Constitutional Amendment No. 328." L.J.K. v. State, ___ So. 2d ___, WL 3506374 (Ala. Crim. App. 2005), noting both the case law and the statutory requirement to follow precedent of the state's highest court. It has been said that "the 'decisions of the supreme court' referred to in said Code Section [12-3-16] can only mean the 'decisions of the majority' of the Supreme Court." Willis v. Buchman, 30 Ala. App. 33, 199 So. 886 (1941), opinion after remand and dismissal. The case of majorities in U.S. Supreme Court decisions is noted in Section B. infra. Q: If Alabama courts of appeal are required to follow the precedent of the Alabama Supreme Court, to which they are subordinate, why should not the state supreme court be obliged to follow the U.S. Supreme Court, to which it is subordinate...