LITIGATING IMPERFECT SOLUTIONS: STATE CONSTITUTIONAL CLAIMS IN FEDERAL COURT.

• Author: Morley, Michael T.
• Position: Book review

51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN CONSTITUTIONAL LAW.

Jeffrey S. Sutton. (*) New York, N.Y.: Oxford University Press. 2018. Pp. xi + 278. $29.95 (Hardcover).

INTRODUCTION

It is somewhat ironic that a sitting federal judge, Jeffrey S. Sutton, would write a book challenging the standard model of American constitutional law, which presents life-tenured federal judges enforcing the U.S. Constitution as the primary defenders of individual liberty against racist states, craven elected officials, overzealous police, and heartless bureaucrats. (2) In 51 Imperfect Solutions: States and the Making of American Constitutional Law, Sutton contends that state courts, constitutions, and even legislatures have played--and should continue to play--critical roles in promoting individual liberty (p. 2). In particular, Sutton joins the chorus of federal (3) and state judges, (4) as well as scholars, (5) who argue that state constitutions, interpreted and enforced by state judges, are an important source of potentially greater protection for many rights than the U.S. Constitution (pp. 1-2).

Sutton contends that we "see American lawyers regularly taking just one shot rather than two to invalidate state or local laws," by failing to raise or sufficiently brief arguments under state constitutions (p. 7). He reiterates this point throughout the book (pp. 8, 10, 15). It is difficult to gauge the empirical validity of Sutton's claim that state constitutional rights are presently neglected by litigants and underenforced by courts. Although this was certainly the case in decades past, it is unclear whether state constitutions remain unnoticed and ignored; by the 1990s, commentators were acknowledging the depth of attention state constitutions had received. (6)

Sutton specifically points out the lack of state constitutional claims in federal court. He explains that, throughout his fifteen-year tenure as a Sixth Circuit judge, he saw "many constitutional challenges to state or local laws," yet can "recall just one instance in which the claimant meaningfully challenged the validity of a law on federal and state constitutional grounds" (p. 8). Attorneys' ignorance of state constitutions or overreliance on federal protections may not be the main cause of Sutton's experience, however. Rather, federal jurisdictional and procedural restrictions pose substantial obstacles--obstacles that Sutton largely does not acknowledge--to the adjudication of state constitutional claims in federal court. Since 51 Imperfect Solutions is aimed at least partly at a general audience, one would not expect it to offer a detailed discussion of the nuances of federal jurisdiction and procedure. This Review explores the major doctrines that hinder plaintiffs from pursuing state constitutional claims in federal court and suggests some initial reforms. (7)

Part I begins by summarizing Sutton's analysis of the role of state constitutions, courts, and legislatures in protecting individual liberty. This Part discusses the various ways in which Sutton contends that state constitutional law and federal constitutional law may interact with each other, briefly sketching the case studies he uses to illustrate each possible type of relationship.

Part II explains how abstention doctrine under Railroad Commission of Texas v. Pullman often precludes federal courts from adjudicating state constitutional claims, (8) but in inconsistent ways that fail to fully respect the independence of federal and state constitutional provisions. Challenging current doctrine, this Part recommends that federal courts should apply a single uniform standard when deciding whether to apply Pullman abstention due to a state constitutional provision, rather than basing abstention decisions on whether that provision has an analogue in the U.S. Constitution, or is worded broadly or narrowly. It further suggests that a federal court should not consider Pullman abstention in a federal constitutional challenge to a state or local legal provision based on potential state constitutional infirmities unless the federal suit actually includes a claim under the state constitution. This Part also contends that federal courts should ensure that their judgments concerning state constitutional issues do not prevent other rightholders from relitigating them in state court. Thus, federal courts should neither certify statewide classes nor grant statewide defendant-oriented injunctions in cases involving state constitutional claims.

Part III demonstrates that Eleventh Amendment sovereign immunity is another obstacle to federal adjudication of state constitutional claims. The Pennhurst Doctrine protects states, state agencies, and state officials from being sued in federal court for alleged violations of state law, including the state constitution. (9) This Part argues that the Supreme Court should mitigate the effects of the Pennhurst Doctrine by creating an exception to res judicata principles. When the doctrine forces litigants to split their federal and state constitutional claims between federal and state courts, the state court judgment should not give rise to a res judicata effect in federal court. (10)

Part IV explains that, even when district courts are permitted to adjudicate state constitutional claims, they frequently decline to do so by exercising their discretion under the supplemental jurisdiction statute." Rather than establishing a purely discretionary or completely independent standard for refusing to hear state law claims, the supplemental jurisdiction statute should be read consistently with Pullman. A federal court should apply the same standard to decide whether to exercise supplemental jurisdiction over pendent state law claims as it would to decide whether to abstain from adjudicating a state law issue in a case involving a federal constitutional claim. Part V concludes.

1. THE RELATIONSHIP BETWEEN FEDERAL AND STATE CONSTITUTIONAL LAW

   51 Imperfect Solutions consists primarily of case studies illustrating the various ways in which federal and state constitutional law interact with each other. Sutton argues that state constitutions--as well as state courts, legislatures, and executive officials--have often provided greater protection for individual rights than the U.S. Constitution. This most obviously occurs when a state constitution contains provisions that either lack analogues in the U.S. Constitution or are phrased more broadly than their federal counterparts (pp. 33, 35). Many state constitutions, for example, expressly protect the right to privacy (12) and contain requirements or guarantees relating to public education. (13) In contrast, Sutton explains that, in San Antonio Independent School District v. Rodriguez, the U.S. Supreme Court declined to recognize education as a fundamental right under the U.S. Constitution. (14) Rejecting wealth as a suspect classification for Equal Protection purposes, the Rodriguez Court also upheld the constitutionality of disparities in per-pupil spending among states' public school districts. (15) In the years following that ruling, however, numerous state supreme courts construed provisions of their respective state constitutions that require states to establish public school systems (16) to mandate some degree of equalized spending among school districts (pp. 30-32, 35). (17)

   A state supreme court also may provide additional protections for individual liberty by interpreting and applying a state constitution's language differently than federal courts have construed similar or identical provisions in the federal charter (p. 16). (18) Sutton describes how, in Wolf v. Colorado, the U.S. Supreme Court held that the Fourth Amendment's prohibition on unreasonable searches--but not the exclusionary rule--was incorporated against state governments. (19) This ruling allowed state law enforcement officials to use evidence seized in violation of the Fourth Amendment in state prosecutions. Nearly half the states went on to reject Wolf by adopting their own state-specific exclusionary rules, either through the legislature's enactment of statutory restrictions or the state supreme court's interpretation of the state constitution's analogue to the Fourth Amendment (pp. 58-59).

   Likewise, a few decades later, when the U.S. Supreme Court recognized the "good faith" exception to the Fourth Amendment's exclusionary rule in United States v. Leon, (20) many state supreme courts declined to follow suit, refusing to create such an exception under their state constitutions (p. 67). Sutton also points out that, in the three years between the Supreme Court's ruling in Gobitis v. Minersville School District that public school students may be compelled to salute the American flag (21) and the Court's repudiation of that conclusion in West Virginia Board of Education v. Barnette, (22) a few state supreme courts construed their state constitutions differently, protecting students from such coerced expression (pp. 160, 170).

   Sutton explains that state constitutional rulings also affect federal constitutional law, both by providing a model that may influence the U.S. Supreme Court's construction of comparable language in the U.S. Constitution, as well as by demonstrating the benefits and drawbacks of various possible constructions (pp. 20, 82, 212). He declares, for example, "[t]he development of the exclusionary rule followed (and continues to follow) a Hegelian path, as the state and federal courts respond to strengths and weaknesses of their own decisions and to those of other sovereigns" (p. 67). As mentioned above, the Supreme Court had initially declined in Wolf v. Colorado to apply the exclusionary rule to searches by state and local officials that violated the Fourth Amendment. (23) One of the main factors that ultimately led the Court to overturn Wolf in Mapp v. Ohio (24) was the fact that many state supreme courts had adopted the exclusionary...