Tuesday, May 10, 2016

Learn from the Past or Repeat it

In February, an Emory Law School professor named Jonathan Nash wrote an interesting blog post titled Supreme Court reaffirms supremacy over state courts, and why that matters now. He noted the decision in James v. City of Boise, in which the United States Supreme Court "unanimously and summarily reversed a decision by the Idaho Supreme Court." Unanimous decisions of the Court are not unheard of, but are perhaps noteworthy even if only for this characteristic. 

Professor Nash concedes that "at first blush, the U.S. Supreme Court's opinion might seem of little interest and practical importance." He proceeds "the Idaho Supreme Court was plainly wrong, and the point at issue seems narrow." His logic is simple, the Supremacy Clause of the U.S. Constitution says that federal law prevails over state law, and that is, essentially, all that matters. 

The Idaho Supreme Court had concluded in James that it and other state courts had something called "judicial discretion." In professor Nash's opinion, the state court was "urging a particular limitation on the U.S. Supreme Court's power to limit the state" court discretion. 

In James a citizen sued a police department under "a federal civil rights statute." The case was brought in state court, and the plaintiff lost. Attorney fees were awarded against plaintiff and the plaintiff appealed. as Professor Nash noted, the U.S. Supreme Court has previously interpreted that federal law as allowing prevailing party fees under this civil rights statute "only where the plaintiff's case was 'frivolous, unreasonable, or without foundation.'" The Idaho Supreme Court concluded however that as a state court it had discretion to decide when to award or not to award fees, that it was not bound by the prior interpretations (precedent) and requirement of frivolity. 

Without a finding of "frivolous, unreasonable or without foundation," the Idaho trial court awarded fees against the Plaintiff, and the Idaho Supreme Court affirmed. In doing so, the Idaho Supreme Court "expressly disclaimed the notion that the U.S. Supreme Court's (previous) interpretation of Section 1988 was binding on . . . the Idaho state courts." 

The Idaho Court's analysis focused on the distinction between cases that are prosecuted in federal court, and appealed through that system to the U.S. Supreme Court compared with the cases that are prosecuted in state court and appealed through a state appellate system. Its logic was that the federal precedent, particularly the Supreme Court conclusion requiring a finding of "frivolous" should be binding only in the federal system, and should not limit the state court system's discretion. 

The Idaho court concluded that "although the Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute." Though clearly discounted out-of-hand ("plainly wrong") by professor Nash, this analysis bears some introspection and thought. 

The Idaho Supreme Court concluded the U.S. Supreme Court could not limit its discretion. It concluded that its authority, its "discretion," is inherent, meaning it exists because the court itself exists. It cited "a 1975 Supreme Court case - Alyeska Pipeline Service Co. v. Wilderness Society - holding that the federal courts lacked inherent authority to shift attorney's fees." From this judicial conclusion of a lack of inherent judicial authority came enactment of the statutory foundation, section 1988, that was at issue in James.

This progression from interpretation to legislation is not uncommon in the evolution of the law. A remedy is denied or provided by the courts. A legislature acts to change the law in reaction to such an interpretation. The courts then interpret again. In process, this is little different than the recent Florida path of Fla. Stat. 440.34, the 2003 amendments, the Supreme Court analysis in Murray v. Mariner, the 2009 amendment, and the Supreme Court analysis in Castellanos v. Next Door Company. The law can seem cyclical sometimes. 

So Congress enacted section 1988, in part reacting to Alyeska Pipeline. It did so enabling a plaintiff to pursue damages in either state or federal court. The Idaho Supreme Court did not take issue with Plaintiff' use of this federal statute in state court. The Court agreed with the applicability of the substance of Section 1988 (qualified immunity) to the state court case. It applied the statute and precedent (prior interpretations), to the substantive issues in the case, but eschewed that precedent in other issues, the fees.  

Professor Nash notes that The Supreme Court in James relied upon "the sage point offered by famed Justice Joseph Story 200 years ago: If state courts were permitted to disregard the Court's rulings on federal law, "'the laws, the treaties, and the Constitution, of the United States would be different in different states; and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states.'" Because of this need for consistency, "the rule of law expects lower courts" to follow precedent, "whether the lower court agrees with . . . the reasoning or not."  

Professor Nash's analysis focuses somewhat on this internal contradiction in JamesThe reliance on statute and precedent in some aspects, and the total disregard of precedent in others. In reversing the Idaho Court, the U.S. Supreme Court clarified that its decisions are controlling authority, and all courts are compelled to comply therewith. All courts, state and federal; the Supreme Court need not decide the same issue again and again with respect to each lower court. That would be inefficient and redundant. Precedent, says the U.S. Supreme Court has value. 

That is the real point of James: that precedent has value. Precedent, that is past decisions of the courts, provide parties predictability about how present disputes will be decided. Unfortunately, there are a number of courts that do not value precedent. By electing not to "publish" a particular decision, these courts effectively say that their present decision applies only to the present case. As an unpublished case, it cannot be applied to control the outcome of future cases. 

Predictability is an absolute necessity for parties to resolve their own disputes. When they can predict the likely outcome of litigation, they can assess their respective chances and likely resolve issues or the entire case without actually proceeding to trial. Paraphrasing from Justice Story, the outcome of this "unpublished" distinction is that "the laws, the treaties, and the Constitution, of the United States" and the states themselves could "be different" even in the same state in two different cases; "and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two" cases. Denial of precedent denies predictability. 

As yet, no one has ever provided me a convincing explanation as to why Americans should not be able to rely upon the decisions issued by our courts. The U.S. Supreme Court sees value in state courts following precedent. Why do state courts that create this distinction between "published" and "unpublished" not similarly see value in following their own prior decisions, see value in transparency and predictability? 

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