How to review state court determinations of state law antecedent to federal rights.

AuthorWebb, E. Brantley

NOTE CONTENTS INTRODUCTION I. SUPREME COURT REVIEW OF STATE LAW JUDGMENTS A. Inadequate State Grounds B. The Fair Support Rule II. THE FAIR SUPPORT RULE'S EVASION INQUIRY A. The Court's Historical Approach 1. The Commerce Cases 2. The Civil Rights Cases 3. The Contracts Clause Cases B. The Advantages of the Historical Approach III. STOP THE BEACH RENOURISHMENT A. Background B. The Judicial Takings Claim C. The Plurality's Opinion D. Problems with the Plurality's Approach 1. Reversion to General Common Law 2. New Factual Questions 3. Problems for State Courts IV. AN ALTERNATIVE TO JUDICIAL TAKINGS DOCTRINE A. Procedural Due Process Alternative B. Due Process for Stop the Beach Renourishment CONCLUSION INTRODUCTION

State courts have not fared well at the Supreme Court in the last decade. While the Court has been unusually sensitive to issues of state sovereignty generally--fashioning a robust doctrine of state sovereign immunity in a succession of decisions (1) underscoring the "autonomy, the decisionmaking ability," and the dignity of stated (2)--the Court has simultaneously tightened its scrutiny of state court decisionmaking. Although it has been "unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States," (3) the Court has demonstrated an increasing willingness to independently review state court determinations of state law antecedent to federal claims.

Bush v. Gore marked the beginning of the trend in this direction. (4) Chief Justice Rehnquist's concurrence in that opinion brought a relatively underanalyzed federal courts issue into the limelight: the proper standard for Supreme Court review of state law antecedent to a federal right. (5) He proposed a sweeping standard of review on this front, urging the Court to independently review antecedent state law where nationally important interests--such as presidential elections--are at stake. (6) His opinion also helped lay the groundwork for independent review in other areas where federal rights depend upon state court adjudication of state law issues. (7)

The Court's most recent plurality decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection (8) takes up where Chief Justice Rehnquist left off and adopts a standard of independent review for state property law decisions antecedent to federal takings claims. (9) Property rights groups and legal scholars have been encouraging the Court to make this shift for some time now under a theory of "judicial takings." (10) Under a judicial takings doctrine, when a state court alters state property law in some appreciably erroneous way, it commits a "judicial" taking of property in violation of the Takings Clause of the Federal Constitution.

While the concept of a judicial taking may be relatively new at the Supreme Court, (11) the question underlying judicial takings--one brushed over by the plurality in Stop the Beach Renourishrnent (12)--is not new. Almost from its inception, the Court has encountered state law antecedent to federal claims, and for as long, it has endeavored to structure its review of these claims around a paramount concern for state court autonomy.

Historically, the Court has applied a highly deferential predicate standard of review known as the fair support rule to antecedent state law grounds. This rule precludes the Court from disallowing state law grounds absent evidence that a state court has attempted to evade federal law. (13) The full extent of the Court's deference under this approach is clear from the relatively few instances of evasion it has found in over a century of fair support review. (14) In its deference, the Court has granted state courts wide latitude to create and shape distinctive bodies of state law; this, in turn, has encouraged variation and experimentation among the states, and has cultivated a relationship of respect and cooperation between state and federal courts.

Despite this historical record, the plurality opinion in Stop the Beach Renourishment omits the fair support rule's predicate standard of deference and proceeds directly to a federal takings inquiry. (15) This Note will consider the plurality's rejection of the fair support rule--its rejection, indeed, of any standard of deference for antecedent state law--and argue that the damaging consequences of this approach outweigh any perceived benefits.

Part I provides an overview of the fair support rule and its historic role in Supreme Court review of antecedent state law. It demonstrates that, contrary to prevailing notions, in practice, the Court uses the fair support rule to screen state court decisions resting on state law grounds ("state law judgments") for evasion of federal law. Only where it suspects state courts of evading federal law will the Court disallow state law grounds and proceed to adjudicate any secondary federal questions. This high threshold helps to preserve the dignity and autonomy of state courts, but backs the Supreme Court into an uncomfortable corner from which it is forced to substantiate actual or suspected evasion. This may require attention to state law questions not clearly addressed below or engage the Court in ad hoc factfinding and speculation about unspoken factors motivating state court decisionmaking.

Part II presents evidence that the Court's historical response to these difficulties has been to rely on the social-political context in which cases arise. In social-political contexts ripe for evasion--where the level of tension between state and federal courts has provoked near systematic state court evasion of federal law--the Court has made affirmative evasion findings. Short of this systematic evasion, the Court has been generally unwilling to accuse state courts of evading federal law. Part II argues that this highly deferential standard places an important check on the Court's scrutiny of state courts and state law.

Although the fair support rule's evasion inquiry has served the Supreme Court well in this capacity for over a century, the plurality's opinion in Stop the Beach Renourishment calls into question its continued place in the Court's canon. Part III argues that the plurality should have applied the fair support rule or some other predicate standard of deference to antecedent state law before proceeding to a federal takings inquiry, and suggests that had it done so, it would have found no reason to doubt the state court or its decision.

Part IV acknowledges that there may be some cases in which the fair support rule's evasion inquiry nonetheless provides insufficient protection for property rights. It suggests an additional check in the form of procedural due process for particularly egregious state property law decisions that may slip through the Court's evasion review. Procedural due process provides a clear, practicable alternative for policing truly erratic state property law decisions without exercising independent review over state property law more generally.

Together, the fair support rule and procedural due process provide sufficient protection for property rights. The approach adopted by the plurality in Stop the Beach Renourishment defies a century of deference and poses a serious threat to the development of state property law. The Court should reaffirm its respect for state courts and its commitment to the fair support rule's deferential standard of review of antecedent state law.


    Historically, the Supreme Court has been a reluctant arbiter of state law questions. (16) The practical difficulties of judging an unfamiliar legal system contribute to a policy of self-restraint here. For example, the Court has held that the Due Process Clause does not guarantee--at least not through recourse to the federal judiciary--error-free state court decisionmaking. (17) The federal courts are not meant to serve as merely a last stop for the adjudication of state law questions. (18) In a similar vein, state court constructions of state law sources are typically authoritative in federal courts.

    Very early on, the Court devised a rule for avoiding review of state law judgments entirely whenever they rested on competent state law grounds. (19) This rule evolved into the Court's modern independent-and-adequate-state-grounds doctrine. Under the Court's current approach, where a state court decision relies on or is sufficiently intertwined with federal law, the Court takes jurisdiction of the federal issue. Michigan v. Long (20) provides the primary sorting mechanism. Where a state court decision appears to be based primarily on or interwoven with federal law, absent a statement to the contrary the Court will presume that "the state court decided the case the way it did because it believed that federal law required it to do so." (21) Where, on the other hand, a state court decision rests on independent and adequate grounds--in short, where a different decision on the federal issue would not change the outcome--the Court will forgo further review. (22)

    The independent-and-adequate-state-grounds doctrine is a jurisdictional bar to Supreme Court review of state court determinations of state law sufficiently independent of federal law and adequate to support the state court judgment. (23) The Court has explained that resolution of any federal question effectively ancillary to the state court's judgment "could not affect the judgment and would therefore be advisory." (24) Thus, even where a state court has decided a case on both state and federal grounds, where the judgment can rest on the state grounds alone, the Court will not take jurisdiction of the case.

    Yet with the knowledge that the Supreme Court may review and overturn decisions sufficiently entangled with federal law, state courts may artificially eschew federal claims or invent new state law grounds to maintain their judgments. (25) On federal appeal, these may...

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