SCHIZOID FEDERALISM, SUPREME COURT
POWER AND INADEQUATE ADEQUATE
STATE GROUND THEORY:
MICHIGAN V LONG
RICHARD
I.
A. SEID*
INTRODUCTION .......................................
A. People v. Long: The Michigan Supreme Court
O pinion .............................................
B. Adequate and Independent State Grounds:
Sources of the Doctrine ............................
C. Michigan v. Long- The United States
Supreme Court Opinion ...........................
1. Presumptive Jurisdiction .......................
2. Renunciation of Federal Law ..................
D. The New Adequate and Independent State
Ground Doctrine: Policy and Precedent ..........
1. Power of the Court to Determine Its Own
Jurisdiction .....................................
2. Uniformity in Federal-State Relations .........
3. Told or Asked: Herb v. Pitcairn ...............
4. The Federal Interest? ...........................
5. The State Interest-Respected? ................
6. Review of State Law ............................
7. Clarification: A Burden on States? ............
II. THE DOCTRINE OF ADEQUATE AND
INDEPENDENT STATE GROUNDS ..................
A. Standard Explanation: Avoidance of Advisory
O pinions ............................................
B. Adequate and Independent State Grounds-A
Jurisdictional or Discretionary Doctrine? .........
1. Adequate and Independent State
Grounds-Viewed As Jurisdictional
Lim itation .......................................
a. Distortion of State Court Opinions .........
b. Ascertaining Feelings of State Courts......
2
3
5
8
9
11
13
13
15
16
18
20
20
23
25
25
30
30
32
39
* Professor of Law, University of Detroit School of Law. B.A. University of
Michigan, L.L.B. New York University. I wish to thank Professor William Downs,
Professor Alan Saltzman, my law clerk Linda Bloch, the law library staff, and my
secretary Michelle Grab. The assistance of Benjamin L. Seid, Esq., is
acknowledged.
CREIGHTON LAW REVIEW
2. A Discretionary Model .........................
a. Adequate and Independent State
Ground Theory Applied to Federal
District Courts ..............................
III. EXERCISING DISCRETION ..........................
A. Certiorari Jurisdiction .............................
B. Institutional Policy .................................
C. Federalism .........................................
1. Statutory Limitations ...........................
2. Pullman and Younger ..........................
3. Schizoid Federalism: Illinois v. Gates .........
D. The Unacknowledged Federalism Ancestry of
Long Henry and Fay .............................
IV. THE LONG PROGNOSIS: FLORIDA V, CASAL,
CALIFORNIA V. RAMOS, AND BEYOND ............
V. CONCLUSION ..........................................
A. Legislative Proposals for Limiting the
Jurisdiction of the Supreme Court in Cases
Where a Federal Right Has Been Upheld ........
1. Eliminating 28 U.S.C. 1257(3) Jurisdiction .....
2. Limited Review in Criminal Cases ............
3. Cases Involving Ambiguous Grounds For
D ecision .........................................
4. Cases Involving State Court Reliance Upon
Prior State Cases ...............................
5. Seeking Clarification From State Courts ......
EPILOGUE: THE LAST DAY ..............................
[Vol. 18
41
43
45
46
49
51
52
55
58
62
64
68
70
70
70
70
70
71
71
I. INTRODUCTION
Principles of federalism have frequently been advanced as important considerations in the Supreme Court's interpretation of
constitutional and statutory jurisdictional limitations and powers
of federal courts.' Whether federalism has really been a comprehensible concept in the judicial demarcation of the limits of federal
judicial power is problematic. It has been useful, however, for
wrapping the exercise or non-exercise of jurisdiction in an aura of
constitutional and historical respectability.
In recent years, the jurisdiction of the federal district courts
1. The most recent example of this approach to jurisdiction is Pennhurst
State School & Hospital v. Halderman, 104 S. Ct. 900 (1984); see generallymaterials
in P. BATOR, P. MISHKIN, D. SHAPmo & H. WECHSLER, HART AND WECHSLER's THE
FEDERAL COURTS AND THE FEDERAL SYSTEM §§ 440-1050 (2d ed. 1973 & Supp. 1981)
[hereinafter cited as
HART AND WECHSLER].
1984]
SCHIZOID FEDERALISM
has been eroded under the aegis of federalism. 2 Simultaneously
the Supreme Court has expanded its own jurisdiction to review
state court decisions. 3 This paradox is explicable in terms of substantive social policy affecting the rights of criminal defendants
4
and the power of the police.
Traditionally, the independent and adequate state ground limitation on Supreme Court appellate jurisdiction has served to insulate state court judgments from Supreme Court review.5 In the
recent case of Michigan v. Long,6 the Supreme Court explicitly reshaped this doctrine to expand its appellate jurisdiction. This
deviation denotes the absence of a persuasive explanation for adequate state ground theory, providing a fertile field for the activism
of the Court to flourish.
The supremacy of federal law and a proper balance between
federal and state interests and independence are primary, often
contradictory, functions of the Court.7 It is the purpose of this article to examine adequate state ground theory in order to facilitate a
more objective, understandable, and restrained exercise of power
in the context of this dual responsibility.
A.
PEOPLE V. LONG:
THE MICHIGAN SUPREME COURT OPINION
The facts of People v. Long 8 as found by the Michigan
Supreme Court are as follows: the defendant was observed by two
deputy sheriffs driving his car at excessive speed.9 After the car
was stopped and Long stepped outside, the deputies observed a
2. See 104 S. Ct. at 901; Fair Assessment In Real Estate v. McNary, 454 U.S. 100
(1981); Younger v. Harris, 401 U.S. 37 (1971). Many other cases illustrate the point.
See generally C. WRIGHT, LAw OF FEDERAL COURTS § 52A at 320 (4th ed. 1983) [hereinafter cited as WRIGHT].
3. See Michigan v. Long, 103 S. Ct. 3469 (1983); California v. Ramos, 103 S. Ct.
3446 (1983); Illinois v. Andreas, 103 S. Ct. 3319 (1983); Illinois v. Gates, 103 S. Ct. 2317
(1983); Texas v. Brown, 103 S. Ct. 1535 (1983); South Dakota v. Neville, 103 S. Ct. 916
(1983).
4. Justice Stevens makes and documents this point in his dissent to the summary reversal of the Florida Supreme Court in Florida v. Meyers, 104 S. Ct. 1852,
1854 (1984). The rights of criminal defendants were the subject of 39 full opinions
by the Supreme Court in 1983-1984. The right prevailed in 8 cases and lost in 31.
5. See Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875); HART AND
WECHSLER, supra note 1, at 478-83; WRIGHT, supra note 2, § 107 at 736; Greene, Hybrid State Law in the FederalCourts, 83 HARV. L REV. 289, 309-15 (1969); Hart, The
Relation Between State and Federal Law, 54 COLUM. L REV. 489, 502-04, 521-25
(1954); Hill, The Inadequate State Ground, 65 COLuM. L. REV. 943 (1965); Note, The
Untenable Nonfederal Ground in the Supreme Court, 74 HARv. L REV. 1375 (1961).
6. 103 S. Ct. 3469 (1983).
7. See Hart, supra note 5, at 499-508.
8. 413 Mich. 461, 320 N.W.2d 866 (1982).
9. Id. at -, 320 N.W.2d at 868.
CREIGHTON LAW REVIEW
[Vol. 18
closed four-inch Browning knife on the floorboard. 10 The defendant was neither arrested nor charged in connection with the
knife." Prior to arrest and without a warrant, while the defendant
was outside the car with his hands on its roof, a deputy looked
under an armrest and found a pouch of marijuana. 12 Immediately
after, the defendant was placed under arrest for possession of the
marijuana, the trunk of his car was opened by the deputies, and
13
additional marijuana was found.
Both the Michigan trial court and court of appeals denied
defendant's claim that the evidence should have been suppressed
because the search was unlawful;' 4 however, the Michigan
Supreme Court held the pre-arrest search of the automobile
15
unconstitutional.
In its opinion, the Michigan Supreme Court referred to state
and federal law.' 6 In assessing the reasonableness of the search,
the Michigan court considered Terry v. Ohio' 7 and applied the general principles of the fourth amendment to make the factual determination that the search was unreasonable and therefore
unlawful. 18 After discussing Terry, the court cited state law in the
following manner.
The state does not contend that the search can be justified
by reference to other exceptions to the warrant requirement. We hold, therefore, that the deputies' search of the
vehicle was proscribed by the Fourth Amendment to the
United States Constitution and art. 1, § 11 of the Michigan
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id. at -, 320 N.W.2d at 870. The court stated that "the deputies' search of
the vehicle was proscribed by the Fourth Amendment to the United States Constitution and art. 1, § 11 of the Michigan Constitution. The evidence obtained pursuant
to the unconstitutional search should have been suppressed."
16. Id. at -, 320 N.W.2d at 869-70.
17. 392 U.S. 1 (1968). The Michigan court interpreted Terry to permit a limited
warrantless search of the person under circumstances that would justify a reasonably prudent officer's belief that his safety or that of others was in danger. See 413
Mich. at -, 320 N.W.2d at 869.
18. 413 Mich. at -, 320 N.W.2d at 870. The Michigan court applied the general
protective rationale of Terry in making the factual determination that "[a] ny weapons which might have been hidden in the car would have been out of the reach of
the defendant and thus not a danger to the deputies." Id. at -, 320 N.W.2d at 869.
Although it limited a Terry search to the person, it is obvious that it actually considered and made a finding based upon dangerousness, in the context of the automobile as well as the person. Only one member of the Michigan Supreme Court
dissented, disagreeing with the majority on both the interpretation of Terry and the
finding that no danger existed. Id. at -, 320 N.W.2d at 870-73 (Coleman, C.J.,
dissenting).
1984]
SCHIZOID FEDERALISM
Constitution. The evidence obtained pursuant to the unconstitutional search should have been suppressed. 19
The court also relied upon the Michigan case of People v. Reed 20 as
support for the finding that the search was unreasonable. 2 1 Reed
was cited for the principle that:
A warrantless search and seizure is unreasonable per se
and violates the Fourth Amendment to the United States
Constitution and art 1, § 11 of the state constitution unless
shown to be within one of the exceptions to the rule. * * *
The burden22is always on the state to show such an exception exists.
Although the Michigan Supreme Court cited Terry and considered itself bound by Terry and the Constitution of the United
States, 23 there is no explicit connection in the opinion between the
limits of a lawful search imposed by the Michigan Constitution and
those of the fourth amendment.
The two sources of constraint were assumed to be congruent,
and the Michigan court applied what it considered the Terry test to
be for the warrantless search of an automobile. 24 There was slight
analytical development of Michigan law in the opinion. However,
if the Michigan Supreme Court thought federal law was broad
enough to protect both the federal and state rights claimed, further
25
discussion of state law was unnecessary.
B. ADEQUATE AND26INDEPENDENT STATE GROUNDS: SOURCES OF
THE DOCTRINE
By virtue of article III section 2 of the Constitution, the
Supreme Court of the United States has appellate power to review
cases arising under the Constitution and laws, treaties of the
19. Id. at -, 320 N.W.2d at 869-70 (citation omitted).
20. 393 Mich. 342, 224 N.W.2d 867 (1975).
21. 413 Mich. at -, 320 N.W.2d at 870 n.8.
22. Id. (quoting Reed, 393 Mich. at -, 224 N.W.2d at 876).
23. Id. at -, 320 N.W.2d at 869.
24. Id.
25. The Michigan court concluded that since the defendant's arrest was based
upon an illegal search, the evidence obtained from the search of the trunk which
followed should also have been suppressed as the "fruit" of the illegal arrest. 413
Mich. at -, 320 N.W.2d at 870 (citing Wong Sun v. United States, 371 U.S. 471 (1963)).
This analysis made it unnecessary to evaluate whether the search of the trunk was
reasonable as a post-arrest inventory under South Dakota v. Opperman, 428 U.S. 364
(1976).
26. See generally 16 C. WRIGHT,A. MILLER, E. COOPER & E. GRESSMAN, FEDERAL
PRACTICE AND PROCEDURE §§ 4019-4033 (1977). [hereinafter cited as WRIGHT,MILLER,
COOPER & GRESSMAN].
CREIGHTON LAW REVIEW
[Vol. 18
United States, subject to exceptions imposed by Congress. 27 This
appellate power includes appeals from state courts. 28 It is unclear
whether the Constitution permits review of both federal and state
law questions in a case on appeal from a state court;2 9 however, the
Court has never had to decide this issue because it has always inof purely
terpreted the Judiciary Act 30 to exclude the correction
31
cases.
such
in
jurisdiction
its
from
grounds
law
state
The adequate and independent state grounds doctrine which
Justice O'Connor applied and modified in Long32 has roots in early
decisions of the Supreme Court. In an 1810 opinion by Justice
Washington, the Court determined that state law grounds establishing title to property were not independent of the Treaty of
Peace. 33 The effect of the Treaty on the property right established
34
under state law could be examined.
Six years later, in Martin v. Hunter's Lessee, Justice Story examined the question of whether there was a separate state ground
for decision independent of the Treaty of 1783. He wrote:
If, therefore, that [state] court might have decided the
case upon the invalidity of the title ... independent of the
treaty,35there is an end of the appellate jurisdiction of this
court.
Continuing, he explained:
It is, therefore, the decision against the title set up with
reference to the treaty, and not the mere abstract conthe statute instruction of the treaty itself, upon which
36
tends to found the appellate jurisdiction.
Murdock v. City of Memphis 37 has often been cited as the
source of the adequate and independent state ground doctrine.
Primarily, the case held that the amendment to the Judiciary Act
continued to bar Supreme Court review of state law on appeals
38
from state court.
27. See U.S. CONST. art. IH § 2. See also Martin v. Hunter's Lessee, 14 U.S. (1
Wheat.) 304, 327-34 (1816).
28. 14 U.S. (1 Wheat.) at 327-62.
29. See Hart, supra note 5, at 502-04.
30. Judiciary Act of 1789, ch. 20 § 25, 1 Stat. 73, 85-87. (current version at 28
U.S.C. § 1257 (1976), reprintedin WRIGHT, MILLER, COOPER & GRESSMAN, supra note
26 at § 4006.
31. See, e.g., Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) at 327-82.
32. Michigan v. Long, 103 S. Ct. 3469, 3474-76 (1983).
33. Smith v. Maryland, 10 U.S. (6 Cranch) 286, 306 (1810).
34. Id. at 305.
35. 14 U.S. (1 Wheat) at 357.
36. Id. at 358.
37. 87 U.S. (20 Wall.) 590 (1875).
38. Id. at 630-31.
19841
SCHIZOID FEDERALISM
Beyond this narrow holding, the Court also set forth principles
for reviewing federal questions when state grounds are independently dispositive. 39 First, the Court is to decide the federal question. 40 If the state court is correct, affirm. 41 Second, if the state
court is incorrect on the federal question, determine if there is an
independent state ground. 42 If there is, affirm. 43 If not, the federal
question may be decided."
Subsequently, in Eustis v. Bolles, 45 the Court reverted to the
pre-Murdock notion that there was no jurisdiction to decide the
federal question at all if the federal question would not affect the
judgment. 46 This is the contemporary Supreme Court characterization of the doctrine.
In order for state grounds to preclude the jurisdiction, they
must be adequate, 47 not violate any provision of the Constitution
such as the fourteenth amendment, 48 not be insubstantial 49 or discriminatory against the federal right claimed. They must also not
be dependent upon federal law for validity or meaning5 but must
51
be independent.
Prior to Long, in cases where it was not clear whether a deci39.
Id. at 635-36. The Court provided:
5. If it finds that it was rightly decided, the judgment must be affirmed.
6. If it [federal law] was erroneously decided against plaintiff in error,
then this court must further inquire, whether there is any other matter or
issue adjudged by the State court, which is sufficiently broad to maintain
the judgment of that court, notwithstanding the error in deciding the issue
raised by the Federal question. If this is found to be the case, the judgment
must be affirmed without inquiring into the soundness of the decision on
such other matter or issue.
7. But if it be found that the issue raised by the question of Federal
law is of such controlling character that its correct decision is necessary to
any final judgment in the case, or that there has been no decision by the
State court of any other matter or issue which is sufficient to maintain the
judgment of that court without regard to the Federal question, then this
court will reverse the judgment of the State court, and will either render
such judgment here as the State court should have rendered, or remand
the case to that court, as the circumstances of the case may require.
Id.
40. Id. at 636.
41. Id.
42. Id.
43. Id.
44. Id.
45. 150 U.S. 361 (1893).
46. Id. at 366. See WRIGHT, MILLER, COOPER, & GRESSMAN, supra note 26, at
§§ 4025-4028.
47. See Hill, supra note 5, at 943, 944-48.
48. See generally Cox v. Louisiana, 379 U.S. 536, 551 (1965).
49. See WRIGHT, MILLER, COOPER, & GRESSMAN, supra note 26, at § 4027.
50. Standard Oil Co. v. Johnson, 316 U.S. 481, 483 (1942).
51. See WRIGHT, MILLER, COOPER, & GRESSMAN, supra note 26 at § 4029.
CREIGHTON LAW REVIEW
[Vol. 18
sion rested exclusively upon federal grounds or alternatively on
state grounds, the Supreme Court refused to address the merits of
the federal question. 52 The Court has frequently dismissed ambiguous cases.5 3 In others, the Court has sought clarification through
a variety of remedial dispositions such as certification, 54 vacation
and remand,5 5 or continuance and clarification.5 6 Sometimes the
Court has short-circuited clarification techniques by finding that
7
no ambiguity existed.5
C.
MICHIGAN V. LONG: THE UNITED STATES SUPREME COURT
OPINION
Notwithstanding the fact that the Michigan Supreme Court
cited Michigan law as well as the United States Constitution in upholding both the federal and state rights claimed, the Supreme
Court granted certiorari and reversed.5 8 Justice O'Connor, writing
for the majority, interpreted Terry to permit a warrantless search
for weapons to extend beyond the person as long as the police possess "an articulable and objectively reasonable belief that the suspect is potentially dangerous. ' 59 After reviewing the facts in Long,
the Supreme Court held that the search of the car did not violate
the fourth amendment because the deputies' apprehension of danger was reasonable. 60 The state constitution was held to lack independent status and was deemed subsumed by the federal
ground. 61
In order to reach the constitutional issue, Justice O'Connor
faced and skewered the adequate and independent state ground
bar to the Court's jurisdiction. She recognized that "'where the
judgment of a state court rests upon two grounds, one ... federal
and the other non-federal in character, our jurisdiction fails if the
non-federal ground is independent of the federal ground and ade52. See Note, Supreme Court Treatment of State Court Cases Exhibiting Ambiguous Grounds of Decision, 62 COLUM. L. REV. 822, 832-33 (1962).
53. See, e.g., Note, supra note 52, at 835-36; California v. Krivda, 409 U.S. 33, 35
(1972).
54. See, e.g., Whitney v. California, 274 U.S. 357, 361 (1927). See also HART AND
WECHSLER, supra note 1, at 479-80; supra note 52, at 833.
55. See, e.g., Musser v. Utah, 333 U.S. 95, 98 (1948); Patterson v. Alabama, 294
U.S. 600, 607 (1935); Note, supra note 52, at 837.
56. Herb v. Pitcairn, 324 U.S. 117, 128 (1945).
57. See, e.g., Konigsberg v. State Bar, 353 U.S. 252, 254-58 (1957). See generally
Note, supra note 5, at 1383-91; WRIGHT, MILLER, COOPER, & GRESSMAN, supranote 26,
at § 4032.
58. Michigan v. Long, 103 S. Ct. 3469 (1983).
59. Id. at 3481.
60. Id.
61. Id. at 3477.
19841
SCHIZOID FEDERALISM
quate to the support of the judgment.'"62 However, she announced that where the state court grounds for decisions were
unclear or ambiguous, the Court would no longer dismiss or seek
clarification from the state court. 63 A new approach is to be used
64
henceforth:
Accordingly, when, as in this case, a state court decision
fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy
and independence of any possible state law ground is not
clear from the face of the opinion, we will accept as the
most reasonable explanation that the state court decided
the case the way it did because it believed that federal law
required it to do so. If a state court chooses merely to rely
on federal precedents as it would on the precedents of all
other jurisdictions, then it need only make clear by a plain
statement in its judgment or opinion that the federal cases
are being used only for the purpose of guidance and do not
65
themselves compel the result that the court has reached.
Moreover, if in the Supreme Court's view a state court "'felt compelled by what is understood to be federal constitutional considerations to construe ... its own law in the manner that it did,' then
we will not treat a normally adequate state ground as independent,
and there will be no question about our jurisdiction. ' 66 This approach enabled the Court to reach and decide the federal question
in Long.
1.
Presumptive Jurisdiction
Eager to narrow the reach of fourth amendment limitations on
searches and seizures, the Supreme Court assumed jurisdiction in
Long notwithstanding an unmistakable and acknowledged ambi62. Id. at 3474 n.4 (quoting Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935)).
63. Id. at 3477-78. The Court rejected all precedents for dismissal, e.g., Minnesota v. National Tea Co., 309 U.S. 551, 557 (1940); Lynch v. New York, 293 U.S. 52, 58
(1934), or for continuing a case pending clarification, e.g., California v. Krivda, 409
U.S. 33, 35 (1972); Herb v. Pitcairn, 324 U.S. 117, 128 (1945).
64. This approach was also used in Long.
65. 103 S. Ct. at 3476.
66. Id. at 3477 n.8 (quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979)). Despite this broad presumption, Justice O'Connor reserved the right not to take such
action, recognizing that "[t] here may be certain circumstances in which clariflcation is necessary or desirable, and we will not be foreclosed from taking the appropriate action." Id. at 3476 n.6. Both Herb v. Pitcairn, 324 U.S. 117 (1945) and
Minnesota v. National Tea Co., 309 U.S. 551 (1940), in which the Court seems to have
had jurisdiction, were overruled by Long. See 103 S. Ct. 3476 n.n.6, 7. However, it
was only the technique of vacating and remanding that fell. See id, In the sense
that Herb and National Tea recognized the existence of jurisdiction, Long is not
inconsistent.
CREIGHTON LAW REVIEW
[Vol. 18
guity as to whether the state court decision was based upon dispositive state grounds in addition to federal grounds. 67 The issue
was whether there was Supreme Court jurisdiction to decide the
federal question despite the apparent reliance by the state court
on state law.68 The response of the majority was to presume that
the state court considered state law controlled by federal law-in
effect, to presume the existence of the jurisdiction:
[Iln determining, as we must, whether we have jurisdiction to review a case that is alleged to rest on adequate
and independent state grounds .... we merely assume
that there are no such grounds when it is not clear from
the opinion itself that the state court relied upon an adequate and independent state ground and when it fairly appears that the
state court rested its decision primarily on
69
federal law.
Prior to Long, the Supreme Court expressed two views of its
power to review state decisions upholding federal rights when the
grounds for decision, federal or state, were unclear: either the
Court had sufficient jurisdiction to request clarification of the basis
of the decision, but no more,70 or absent an affirmative showing of
71
jurisdiction, there was none, and only a dismissal could result.
Long rejected both options, thereby departing from the settled
72
rule that federal court jurisdiction must be affirmatively shown,
with a burden of establishing jurisdiction on the party claiming
it. 73
Nor does the statement by Justice O'Connor that "[ilt is not
unusual for us to employ certain presumptions in deciding jurisdictional issues" 74 withstand scrutiny of the sole precedent cited
by her, County of Los Angeles v. Davis.75 There, jurisdiction had
been properly established; while the case was pending, an allega67. 103 S. Ct. at 3479-80.
68. Id. at 3474.
69. Id. at 3476-77.
70. See, e.g., 309 U.S. at 555-56.
71. 293 U.S. at 54-55.
72. 103 S. Ct. at 3476-77.
[I]n determining, as we must, whether we have jurisdiction to review a
case, that is alleged to rest on adequate and independent state grounds,
we merely assume that there are no such grounds when it is not clear
from the opinion itself that the state court relied upon an adequate and
independent state ground and when it fairly appears that the state court
rested its decision primarily on federal law.
Id.
73.
74.
75.
See South Dakota v. Neville, 103 S. Ct. 916 (1983).
103 S. Ct. at 3477 n.8.
440 U.S. 625, 631 (1979).
1984]
SCHIZOID FEDERALISM
tion of mootness was made to defeat the jurisdiction.7 6 If jurisdiction is to fail because of subsequent events affecting the
jurisdiction, the burden should fall on the party seeking to defeat
the jurisdiction. Here, the jurisdiction can only be established in
the first place if no adequate and independent state ground exists.
The jurisdictional facts are in existence and available. Nevertheless, Justice O'Connor's statement that it is not "unusual" to "employ certain presumptions" to establish jurisdiction 7 7 is patently
incorrect.
Application of this new jurisdictional approach 78 enabled Justice O'Connor to conclude that the Michigan Supreme Court
rested its decision "primarily on federal law" 79 and "felt compelled
[by] constitutional considerations to construe . . . its own law in
the manner it did. '80 The analytical process leading to these conclusions not only turns the longstanding concept of a limited federal judiciary on its head, but the conclusions themselves are not
supportable by the state court record. If Justice O'Connor is indeed dealing with a jurisdictional question, her views are
apostasy.8 1
2. Renunciation of Federal Law
In order for a state court judgment resting ambiguously on
state and/or federal grounds to be considered as resting on independent state grounds, state courts must include a specific state82
ment indicating that the state grounds are independent.
Although Long does not spell out the language of such a statement, it would probably read as follows: "Our opinion rests upon
state law independently of federal law, notwithstanding reference
to federal law herein. If federal law were otherwise than we believe it to be, this judgment would remain unaffected."
There are several reasons why requiring such a statement
seems odd, the most peculiar being the application of the requirement to Long itself. Until Long, no such requirement existed. No
inference can therefore be drawn from its absence. To presume an
76. Id. at 632-34.
77. 103 S. Ct. at 3477 n.8.
78. Id. at 3476.
79. Id.
80. Id. at 3478 (citing Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S.
562, 568 (1977)).
81. See id. at 3475-76. Long appears to be the first and only case in which the
Supreme Court stated that it assumed jurisdiction as a matter of law! If anything,
the presumption has gone the other way. See New York ex rel. Bryant v. Timmerman, 278 U.S. 63, 67-68 (1928).
82. 103 S. Ct. at 3476.
CREIGHTON LAW REVIEW
[Vol. 18
intention by the Michigan Supreme Court to link Michigan to federal law on this basis is sheer fantasy. Nor is it consonant with the
respect due a state judiciary.
Furthermore, subject matter jurisdiction of federal courts has
never rested upon self-serving characterizations about the federal
nature of a case. 83 The federal courts have invariably scrutinized
the case itself to determine whether it fit within the jurisdiction.
Subject matter jurisdiction in the federal courts has been regarded
as so important to the proper division of judicial authority between
the states and national government that no waiver or default pre84
cludes the issue until the case, including appeals, is concluded.
Consequently, the absence of a disclaimer by a state court ought
not confer a jurisdiction which in fact does not exist. Nor should it
deprive the Supreme Court of jurisdiction properly placed.
The absence of the required statement by the Michigan
Supreme Court led the majority in Long to regard state law "interwoven" with federal constitutional law.85 There is authority for the
proposition that a state ground is not independent if "interwoven"
with federal law. 86 "Interwoven" as used in Long means that federal law and state law are discussed by a state court without a
clear jurisprudential distinction drawn between the two. 87 The
more traditional meaning of "interwoven" is set forth in Fox Film
v. Muller.88 There, independence of a state ground depended only
on whether the state ground impinged on a federal right, 89 that is,
the federal right was denied. This narrow definition of "interwoven" is critical for Supreme Court preservation of federal rights.
Another use of the term "interwoven" involves specific state
legislative incorporation by reference of federal law.90 Although
less compelling than situations when federal rights have been denied, a legislative policy requiring national uniformity warrants
Supreme Court review of the state court interpretation of federal
law.
When no federal right has been denied and there is no incorporation by reference of federal law in state law, to equate undifferentiated state and federal grounds with interwoven, non83. Swift & Co. v. Hocking Valley Ry., 243 U.S. 281, 289 (1916); California v. San
Pablo & T. R.R., 149 U.S. 308, 314 (1892).
84. 5 WRIGHT, MILLER, COOPER & GRESSMAN, supranote 26, at § 1350. Gotthilf v.
Sills, 375 U.S. 79, 80 (1963); Wilson v. Loew's, Inc., 355 U.S. 597, 599 (1958); Gorman v.
Washington Univ., 316 U.S. 98, 100 (1941).
85. 103 S. Ct. at 3476-77.
86. Fox Film Corp. v. Muller, 296 U.S. 207, 210-11 (1935).
87. See 103 S. Ct. at 3476.
88. 296 U.S. at 210-11.
89. See id. at 210-11.
90. See Standard Oil Co. v. Johnson, 316 U.S. 481, 483-85 (1942).
SCHIZOID FEDERALISM
1984]
independent, state grounds is to assume jurisdiction without apparant justification. In Long, the problem was not the adequacy of
the state ground to support the judgment but the mere technicality
of whether it was independent. 9'
Perhaps Justice O'Connor was taking aim at the propensity of
state courts to write opinions resting vaguely on state grounds,
while hinting at federal compulsion. This political or analytical
technique of state judiciaries is of no legitimate concern to the
Court.
State courts are under an express constitutional obligation to
apply federal law:
This Constitution and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made,
or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in
the Constitution 92or Laws of any State to the Contrary
notwithstanding.
Consequently, the review of federal law by the Michigan Supreme
Court in Long was unexceptional and appropriate. If the Michigan
Supreme Court had not reviewed Terry and related federal precedent, it would have risked Supreme Court reversal if Michigan law
failed to satisfy the federal standard. To ignore federal precedent
would be foolish. To cite it without adverse comment implies approval. Despite this, Justice O'Connor's imposition of an affirmative requirement on state courts to encapsulate state grounds from
federal considerations suggests a method
of legal analysis that is
93
unnecessarily and unwisely constricted.
D.
THE NEW ADEQUATE AND INDEPENDENT STATE GROUND
DOCTRINE: POLICY AND PRECEDENT
Understanding the rationale for the majority opinion is impeded by its conclusory nature. The obscurity is exacerbated by
distortions of precedent and unsupported assumptions of fact.
1. Power of the Court to Determine Its Own Jurisdiction
In Long, Justice O'Connor implied that jurisdiction to deter91.
103 S. Ct. 3477-78.
92. U.S. CONST. art. VI; see generally WRIGHT,
MILLER, COOPER, & GRESSMAN,
supra note 26, at § 4024.
93. See 103 S. Ct. at 1376. An extended analysis, including numerous citations
on this point is contained in Developments in the Law, The Interpretationof State
ConstitutionalRights,95 HARv. L. REV. 1324 (1982). See particularly the discussion
at 1394-98.
CREIGHTON LAW REVIEW
[Vol. 18
mine jurisdiction provided a license for the Supreme Court to
adopt rules of presumptive jurisdiction.9 4 Certainly the Supreme
Court has sufficient power to determine if it has jurisdiction.
Whether state grounds are adequate or independent is an appropriate subject for inquiry. However, Justice O'Connor ignored precedent emphasizing the continuing necessity for ascertaining the
actual factual basis for jurisdiction.9 5 Justice O'Connor relied
upon Abie State Bank v. Bryan,96 for the proposition that it was
"'incumbent upon this Court ... to ascertain for itself ...
whether the asserted non-federal ground adequately and independently supports the judgment.' "97 Examination of the complete
text of Abie reveals that Abie was concerned with the enforcement
of a federal right that had been denied by the state court. 98 The
complete text read:
But the federal ground being present, it is incumbent upon
this Court, when it is urged that the decision of the state
court rests upon a non-federal ground, to ascertain for itself, in order that constitutionalguaranteesmay be appropriately enforced, whether the asserted non-federal
ground independently and adequately supports the
judgment.99
Abie does not support a proposition that the Supreme Court
has jurisdiction to determine adequacy and independence of an
apparent state ground when vindication of a federal right is not at
stake, nor does it contain support for an expanded view of
Supreme Court appellate power.
It is reasonable to assume that the prerogative of the Supreme
Court to decline jurisdiction if adequate and independent state
grounds are present, particularly when no federal right has been
denied, would be untrammeled and final. If a federal right needs
vindication, a broad scope of review is warranted by supremacy of
federal law. To the contrary, if the Supreme Court accepts juris94. 103 S. Ct. at 3474-76.
95. See note 83 supra.
96. 282 U.S. 765 (1931).
97. 103 S. Ct. at 3474 (quoting Abie State Bank v. Bryan, 282 U.S. 765, 773)
(1931)).
98. 282 U.S. at 767-68. Abie involved a claim, by the banks of Nebraska, that a
state assessment violated the fourteenth amendment of the United States Constitution. Id. The state court found that the assessment did not violate the fourteenth
amendment and that the banks were estopped under state law from raising the
question. Id. The Supreme Court determined that the federal question could be
reached inasmuch as the issue of estoppel was not in this case an adequate and
independent ground under state law that warranted avoidance of the federal constitutional question. Id. at 773-75.
99. Id. at 773 (emphasis added).
19841
SCHIZOID FEDERALISM
diction and no federal right has been denied, the power of
Court ought to be limited. The federal interest is limited, and
Court's determination of a lack of independence under these
cumstances is dependent upon subsequent acquiescence by
state courts on remand.
2.
the
the
cirthe
Uniformity in Federal-StateRelations
The only articulated principle of federal-state relations in
Long was the need for "doctrinal consistency."' 0 0 Why doctrinal
consistency was necessary when the grounds for decision were
ambiguous was not addressed except for the cryptic statement
that an "ad hoc method (of resolving the ambiguity] . . . is antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved."''
Justice
O'Connor rejected the "panacea" of dismissals 10 2 but did not explain why dismissals in ambiguous state ground cases are not the
only appropriate remedy for a failure to establish jurisdiction in
particular.
It is the Long case itself which injects a discordant note into
an otherwise stable body of precedent. True, the methods of
resolving ambiguity varied.' 0 3 Until Long the Court was consistent
in its refusal to decide a federal issue if the state grounds for deci04
sion were found to be ambiguous.
Justice O'Connor erroneously equated steadfast jurisdictional
principle with a variegated process for determining the jurisdictional facts. The fact of "independent" state law could be clarified
most accurately and definitively by state courts. Given the discre10 6
tionary nature of certiorari jurisdiction, 10 5 institutional policy,
and federalism, 0 7 the process of fact finding had necessarily varied. Such matters are not amenable to the rigidity of the Long
prescription.
100.
101.
102.
103.
104.
105.
infra.
106.
wander
103 S. Ct. at 3475.
Id.
Id.
See notes 52-57 and accompanying text supra.
See id.
See 28 U.S.C. § 1257(3) (1982); see also notes 316-31 and accompanying text
See, e.g., Rescue Army v. Municipal Court, 331 U.S. 549, 568-69 (1947); Ashv. T.V.A., 297 U.S. 288, 346-48 (1936); see also notes 332-35 and accompanying
text infra.
107.
See notes 332-471 and accompanying text infra.
CREIGHTON LAW REVIEW
[Vol. 18
08
3. Told or Asked.- Herb v. Pitcairn'
09
was a case in which a claim under the FedHerb v. Pitcairn'
eral Employees Liability Act was denied by the Illinois State
Supreme Court on grounds which ambiguously rested on either
state procedural law or on the federal statute of limitations. 110 Justice Jackson, for the majority, decided to hold the case pending
clarification by the state court of the grounds underlying the judgment:1 11 "But we cannot perform our duty to refrain from interfering in state law questions and also to review federal ones without
making a determination whether the one or the other controls the
judgment. And in cases where the answer is not clear to us, it
seems consistent with the respect due the highest courts of states
of the Union that they be asked rather than told what they intended."" 2 The dissenters would have reached the federal issue
3
because the federal right had been denied."
Justice O'Connor refused to follow Justice Jackson's lead but
alluded to the recent cases of Delaware v. Prouse" 4 and Zacchini
v. Scripps-HowardBroadcastingCo.11 5 which she thought had implicitly departed from the Herb view that states should "be asked
rather than told what they have intended." 1 6 Without attribution,
117
she chose to follow Justice Black, who dissented in Herb.
In Prouse the state court initiated a discussion of the legality
of random searches of automobiles by considering the fourth
108. 324 U.S. 117 (1945).
109. Id.
110. Id. at 118.
111. Id. at 128.
112. Id. at 127-28. Justice Jackson's exposition in Herb v. Pitcairn provides an
excellent description of the price paid for short circuiting state clarification:
It is no criticism of a state court that we are unable to say in a case where
both state and federal questions are presented, discussed, and perhaps decided, that the judgment would have been the same had only one of the
grounds been present. Those courts may adjudicate both kinds of questions and because it is not necessary to their functions to make a sharp
separation of the two their discussion is often interlaced. But we cannot
perform our duty to refrain from interfering in state law questions and also
to review federal ones without making a determination whether the one or
the other controls the judgment. And in cases where the answer is not
clear to us, it seems consistent with respect due the highest courts of states
of the Union that they be asked rather than told what they have intended.
If this imposes an unwelcome burden it should be mitigated by the knowledge that it is to protect their jurisdiction from unwitting interference as
well as to protect our own from unwitting renunciation.
Id.
113.
114.
115.
116.
117.
Id. at 128-37.
440 U.S. 648 (1979).
433 U.S. 562 (1976).
103 S. Ct. at 3476 n.7.
103 S. Ct. at 3477-78. See also 324 U.S. at 128-35.
19841
SCHIZOID FEDERALISM
amendment to the United States Constitution and the relevant federal cases. 118 Although state cases and state law were referred to
in the opinion, the Delaware Supreme Court stated: "The Delaware Constitution Article I, § 6 is substantially similar to the
Fourth Amendment and a violation of the latter is necessarily a
violation of the former." 1 9 Perhaps the language of the Delaware
court indicates that Delaware law was controlled by the fourth
amendment, as the Supreme Court found. More likely, Prouse is
just contrary to the principle that "where the judgment of a state
court rests upon two grounds, one of which is federal and the other
non-federal in character, our jurisdiction fails if the non-federal
grounds is independent of the federal ground and adequate to support the judgment.' 20 It is significant, in terms of federal-state relations, that in affirming the state court's decision in Prouse, the
Supreme Court upheld the Delaware court's interpretation of fed12
eral law. '
Zacchini was a human cannonball who sued Scripps-Howard
Broadcasting Co. for televising his act. 122 The Ohio Supreme
Court held that the defendant had a "privilege" to report the
event. 123 The United States Supreme Court concluded that the
Ohio state court opinion relied primarily on the first amendment
rather than on the Ohio Constitution. 124 Justice White writing for
the majority conceded that if "the Ohio court rested its decision on
both state and federal grounds, either of which would have been
dispositive, we would have had no jurisdiction."' 25 But, because
the opinion did not mention the Ohio Constitution and cited only
federal first amendment cases as controlling, the Court concluded
that:
Even if the judgment in favor of respondent must nevertheless be understood as ultimately resting on Ohio law, it
appears that at the very least the Ohio court felt compelled by what it understood to be federal constitutional
considerations to construe and apply its own law in the
118. 440 U.S. at 650-51. The state court opinion cited United States v. Ramsey,
431 U.S. 606 (1977); Sibron v. New York, 392 U.S. 40 (1968); Terry v. Ohio, 392 U.S. 1
(1968); Ker v. California, 374 U.S. 23 (1963); Mapp v. Ohio, 367 U.S. 643 (1961); Johnson v. United States, 333 U.S. 10 (1948); Carroll v. United States, 267 U.S. 132 (1925).
See State v. Prouse, 382 A.2d 1359, 1362-63 (Del. Super. Ct. 1978).
119. 382 A.2d at 1362.
120. Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935) (quoted with approval in
103 S. Ct. at 3474 n.4).
121. 440 U.S. at 663.
122. 433 U.S. at 563-64.
123. 47 Ohio St. 2d 224, -, 351 N.E.2d 454, 461 (1976).
124. 433 U.S. at 568.
125. Id.
CREIGHTON LAW REVIEW
[Vol. 18
manner it did. 12 6
Neither Prouse nor Zacehini overtly departed from the principle that federal jurisdiction must be established by the appellant,
nor did they reject the viability of seeking clarification from state
courts.
The departure of Long from Herb is clear and severe both as to
the reality and the preciousness of Supreme Court jurisdiction
over appeals from state courts. 127 Long rejects the process of seeking clarification or dismissing in ambiguous state ground cases but
instead presumes the existence of jurisdiction. 128 To fit the jurisdictional model, Long departs from solid precedent that the burden is on the petitioner to demonstrate that Supreme Court
jurisdiction exists.' 29 There is no authority for the theoretical underpinning of Long. The deviant cases of Zacchini and Prouse,
cited in Long, at least espoused the correct doctrines. 130 What is at
stake is the preservation of state court independence and integrity,
a proper balance between state and federal interests, and a limited
federal judiciary. The oblique authority cited by the majority in
Long is weak justification for a departure from longstanding basic
principle.
It is true that the Supreme Court has power to decide if the
grounds for decision by a state court are ambiguous.' 3 ' Justice
O'Connor transmutes this limited jurisdiction to include power to
remove the ambiguity, exercising a jurisdiction which presumably
does not exist because not established; necessarily involving construction of state law; and predicating the resolution of the ambi132
guity on a fiction. Long purports to abandon the Herb v. Pitcairn
technique of permitting state courts to clarify opinions but does
not reject the jurisdictional principles of Herb. Necessarily, the
elimination of the technique of asking the state court to clarify its
judgment is inconsistent with the jurisdictional theory of Herb
which Justice O'Connor does not dispute.
4.
The Federal Interest?
There is a marked jurisprudential split in the jurisdictional ra-
126. Id. Justice Stevens dissented on the ground that the Ohio court's decision
rested on grounds which were sufficiently dubious to warrant a demand for clarification. Id. at 582 (Stevens, J., dissenting).
127. 103 S. Ct. at 3476 n.7.
128. See note 83 and accompanying text supra.
129. See Gorman v. Washington Univ., 316 U.S. 98, 101 (1942); Memphis Natural
Gas Co. v. Beeler, 315 U.S. 649, 650-51 (1942).
130. 433 U.S. at 566-68; 440 U.S. at 652-53.
131. Black v. Cutter Laboratories, 351 U.S. 292, 298 (1956).
132. 324 U.S. 117 (1924).
1984]
SCHIZOID FEDERALISM
tionale of Long. On the one hand, the Court considers the critical
question of the independence of the state ground. 33 On the other,
the Court evaluates the the assumption of jurisdiction within the
ambit of federalism. 3 4 If the power of the Supreme Court was as
clear-cut as Long indicates, there would be no need to ascertain
and balance federal and state substantive interests. Nevertheless,
Justice O'Connor engaged in this surrealist process without revealing why there was any necessity to do so.
The substantive federal interest was in federal search and
seizure law embodied in the fourth amendment. Terry had been
misinterpreted by the Michigan Supreme Court.135 Uniformity
among the various state courts in the application of Terry was important. The state courts handle the bulk of criminal matters creating a considerable body of federal law. Since federal standards
have expanded, the Supreme Court is justified in assuming jurisdiction to contract those standards in cases such as Long involving
search and seizure. 136 These are the federal interests identified in
Long.
However, the federal fourth amendment interest is a narrow
one-the protection of rights from state and federal incursion.
Since no federal right had been denied, a federal interest in the
fourth amendment and, therefore, uniformity was entirely lacking.
This was not a situation involving a federal scheme in which
proper federal objectives require uniformity for achievement. Obviously, the Michigan Supreme Court's view of Terry had no effect
upon the federal judiciary nor upon sister states. The Terry issue
was likely to be squarely presented without the jurisdictional
frailty present in Long.
The dubiousness of any federal concern in the fourth amendment issue of Long is more apparent by a closer look at the federal
right involved. Suppression of unlawfully obtained evidence is a
prophylactic judicial policy affecting future police conduct. 137 If so,
133. 103 S. Ct. at 3474.
134. Id. at 3475-76.
135. Id. at 3480-82.
136. Id. at 3477 n.8. Justice O'Connor was very clear about the reason the Court
was interested in deciding the Long case:
The state courts handle the vast bulk of all criminal litigation in this country .... [They] are required to apply federal constitutional standards, and
they necessarily create a considerable body of "federal law" in the process.
It is not surprising that this Court has become more interested in the application and development of federal law by state courts in the light of the
recent significant expansion of federally created standards that we have
imposed on the States.
Id.
137. In Stone v. Powell, 428 U.S. 485,486-88 (1976), Justice Powell mentioned two
CREIGHTON LAW REVIEW
[Vol. 18
the interest of the Supreme Court in imposing its policy to affect
future state police conduct, when no federal right has been denied,
seems unsupportable in a federal system. Long does not explain
the federal interest beyond the mere conclusion of its existence.
5.
The State Interest -
Respected?
To be sure, the majority in Long used the language of balancing federal and state interests and therefore addressed state interests as well as federal. Somehow, according to Long, to take
jurisdiction in ambiguous grounds cases and reverse the judgment
will promote "the independence of state courts" and show "respect
1 38
for state courts."'
The Michigan Supreme Court was told that it had interpreted
Terry incorrectly 139 and that Michigan law was insignificant to the
decision. 40 Michigan law of search and seizure was highly developed prior to Long although not expounded upon at great length in
the state court's opinion. 14 ' Justice Stevens analyzed the situtaion
with a telling analogy:
I am thoroughly baffled by the Court's suggestion that it
must stretch its jurisdiction and reverse the judgment of
the Michigan Supreme Court in order to show '[riespect
for the independence of state courts'. . . . Would we show
respect for the Republic of Finland by convening a special
sitting for the sole purpose of declaring that its decision to
release an American citizen was based upon a misunderstanding of American law?142
Presumably the Michigan Supreme Court cited the state constitution for a purpose. If the United States Constitution was
thought to control the decision, a citation to Michigan law on the
same point makes no sense.
6. Review of State Law
Supreme Court review of state court decisions, when jurisdiction rests on 28 U.S.C. 1257(3), does not include review of state law.
That has been clear since Murdock v. City of Memphis.143 The
objectives of the exclusionary rule: deterrence of future unlawful police conduct
and judicial integrity.
138. 103 S. Ct. at 3476-76. It is a mystery how complete disregard for state law
grounds of a decision shows respect for and promotes independence of state courts.
139. Id. at 3477.
140. Id. at 3477 & n.9.
141. See notes 8-25 and accompanying text supra.
142. 103 S. Ct. at 3492 (Stevens, J., dissenting) (citation omitted).
143. 87 U.S. (20 Wall.) 590 (1975); cf 2 W. CROSSKEY, PoLrrIcs AND THE CONSTrrUTION IN THE HISTORY OF THE UNITED STATES
23-26 (1953).
1984]
SCHIZOID FEDERALISM
scope of review of state law has been limited to whether or not the
state court relied on state law; 1' whether the state law violated
federal law; 145 and whether state law disposed of the case apart
from the control of federal law. 146 Ascertaining the content and
meaning of state law in the foregoing context is unexceptional &Lid
147
necessary to enable the Supreme Court to vindicate federal law.
At first blush, Justice O'Connor's rhetoric, eschewing any
Supreme Court role in ascertaining the meaning of state law in
ambiguous state ground cases, has the ring of legitimate restraint,
albeit the logical extension of this approach to federalism is denial
of certiorari, not reversal. By presuming the existence of jurisdiction, the Supreme Court implicitly, but unquestionably, determines that the state law relied on by the state court has no
independent meaning. The vitality of state law generated by an
independent sovereign is deemed moribund. This is indeed a
trenchant review of state law whether the Supreme Court chooses
to acknowledge it or not. Since no right under federal law was denied, the justification for review of state law of this magnitude has
slim policy support.
Despite the limitations of Murdock, 28 U.S.C. 1257(3), and Justice O'Connor's professed limited role for the Supreme Court,
Long reviewed state law beyond jurisdictional justification 148 and
concluded:
Even if we were to rest our decision on an evaluation of
the state law relevant to Long's claim, as we have sometimes done in the past, our understanding of Michigan law
would also result in our finding that we have jurisdiction
to decide this case. Under state search and seizure law, a
higher standard is imposed under art. I, § 11 of the 1963
Michigan Constitution. See People v. Secrest, 413 Mich.
521, 525, 321 N.W. 2d 368, 369 (1982). If however, the item
seized is, inter alia,a 'narcotic drug'. . . seized by a peace
officer outside the curtilage of any dwelling house in this
state, art. I, § 11 of the 1963 Michigan Constitution, then the
seizure is governed by a standard identical to that imposed by the Fourth Amendment. See People v. Moore,
391 Mich. 426, 435, 216 N.W. 2d 770, 775 (1974).149
144. Standard Oil Co. v. Johnson, 316 U.S. 481, 483-85 (1942).
145. Id.
146. Fox Film Corp. v. Muller, 296 U.S. 207, 210-11 (1935). Review of state law
which defines a right protected by federal law fits within the foregoing rubric. See,
e.g., Board of Regents v. Roth, 408 U.S. 564 (1972).
147. Indiana v. Brand, 303 U.S. 95, 98-99 (1938).
148. See 103 S. Ct. at 3478 n.10.
149. Id.
CREIGHTON LAW REVIEW
[Vol. 18
As a matter of state law, possession of marijuana may or may not
be subject to the higher standard of Michigan search and seizure
law. x5 0 After examining Michigan precedent, Justice O'Connor
concluded that it was not.' 5 ' Apparently she believed that the use
of a footnote to expound on state law eliminated the internal inconsistency of her approach. It also reveals an insecurity about
the jurisdictional principles espoused.
With similar inconsistency, the Supreme Court reviewed and
rejected a critical finding of fact by the Michigan Supreme
Court. 5 2 The search of the automobile prior to arrest was permissible only upon a reasonable belief of dangerousness. The Michigan court, reviewing all the circumstances, found no basis
justifying such a belief.' 53 Although the Supreme Court's version
of a proper Terry search differed from that of the Michigan Court in
terms of statements of principle, the actual analysis of the fact of
dangerousness by the Michigan Supreme Court comported with
Terry even as interpreted in Long.'5 A review of a state court find150. See People v. Nash, 418 Mich. 196, 341 N.W.2d 439 (1984), in which five separate opinions explored the meaning of Michigan's exclusionary rule. Michigan
courts have a rich tradition of reliance on Michigan law of search and seizure. The
supreme court of Michigan established an exclusionary rule in People v. Beavers,
393 Mich. 554, -,227 N.W.2d 511, 515-16, cert. denied,423 U.S. 878 (1975) and held that
the Michigan Constitution provided greater protection than the United States Constitution. Id. at -, 227 N.W.2d at 516. See also People v. Smith, 118 Mich. App. 366,
-, 325 N.W.2d 429, 433 (1982).
151. See 103 S. Ct. at 3478 n.10.
152. Id. at 3481. In New York v. Quarles, the Supreme Court reviewed the findings of fact by the highest court of New York. 104 S. Ct. 2626, 2631 (1984). The court
of appeals affirmed the decision of the trial court and the appeals court that a statement made by a defendant about the whereabouts of a gun could result in no admissible evidence without a prior Miranda warning. Id. at 2630. The court of
appeals specifically found no exigency under the circumstances justifying an exception to Miranda. Id. Reversing, the Supreme Court determined that the court
of appeals had incorrectly found no public safety threat at the time the defendant
was questioned by the police. Id. at 2634. Justice Marshall, dissenting, wrote:
Earlier this Term, the four members of the majority joined an opinion stating. "[Q Iuestions of historical fact ... must be determined, in the first instance, by state courts and deferred to, in the absence of convincing
evidence to the contrary, by the federal courts." Rushen v. Spain, - U.S. ,- (1983) (per curiam). In this case, there was convincing, indeed almost
overwhelming, evidence to support the New York court's conclusion that
Quarles' hidden weapon did not pose a risk either to the arresting officers
or to the public. The majority ignores this evidence and sets aside the factual findings of the New York Court of Appeals. Cynical observers might
well conclude that a state court's findings of fact "deserve a high measure
of deference," ibid. (quoting Sumner v. Mata, 455 U.S. 591, 598 (1982)), only
when deference works against the interests of a criminal defendant.
Id. at 2643.
153. 413 Mich. 461, 472, 320 N.W.2d 866, 869 (1982).
154. See id. at -, 320 N.W.2d at 869-70.
1984]
SCHIZOID FEDERALISM
ing of fact when a federal right has been denied is understandable
and necessary. Even so, the Court has generally expressed
15 5
restraint.
Moreover, the Bill of Rights was exclusively aimed at the federal government.15 6 The fourteenth amendment due process
57
clause made the fourth amendment applicable to the states.
Since the exclusionary rule is merely a judicial policy designed to
deter future unlawful searches, the supreme court of Michigan was
in effect told that it afforded too much protection against future
unlawful conduct by the police. Neither the fourth amendment
nor the fourteenth amendment was aimed at such a purpose.
Therefore, the scope of review by the Supreme Court ought to be
exceedingly narrow because the substantive objective of the constitutional provisions is contrary to the substantive objective of the
Court.
7.
Clarification: A Burden on States?
Justice O'Connor expressed concern that the Court's procedures affording state courts an opportunity for clarification formerly utilized in cases of ambiguous state grounds are too
burdensome on state courts. She offered no substantiation for her
assumption. 58 Although she cited Justice Rehnquist's dissent in
Philadelphia Newspapers v. Jerome'59 and Justice Douglas' dissent in Department of Motor Vehicles of Californiav. Rios 160 and
Dixon v. Duffy,16 1 these opinions do not support her conclusion.
The PhiladelphiaNewspapers case was based upon a claim of
denial of federal rights under the first amendment. 162 It was not
clear whether the state court decision was based upon a discretionary denial of mandamus under state law or upon the federal
claim. 163 The Supreme Court, in a per curiam opinion, vacated and
remanded for clarification. 64 Justice Rehnquist's dissent had
nothing to do with the burden on the state court; it rested exclu155. The scope of review of facts has varied from the narrowness of Herndon v.
Georgia, 295 U.S. 441, 443 (1935) to the breadth of Cox v. Louisiana, 379 U.S. 536, 558
(1965) or Evans v. Newton, 382 U.S. 296, 297-302 (1966). The principle of narrow review has been firm even when the federal right has been refused by the state court.
See, e.g., Fry Roofing Co. v. Wood, 344 U.S. 157, 160, (1952).
156. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250-51 (1833).
157. Wolf v. Colorado, 338 U.S. 25, 27-28 (1949).
158. See 103 S. Ct. at 3475.
159. 434 U.S. 241, 244 (1978) (Rehnquist, J., dissenting).
160. 410 U.S. 425, 427 (1973) (Douglas, J., dissenting).
161. 344 U.S. 143 (1952).
162. 434 U.S. at 241.
163. Id.
164. Id.
CREIGHTON LAW REVIEW
[Vol. 18
sively upon the argument that the Court does not have jurisdiction
even to vacate a state court judgment unless the party claiming
jurisdiction establishes it. 165 He stated: "A less intrusive alternative, and one supported by past precedents. . . is to postpone con-
sideration of jurisdiction until appellants have had an opportunity
to demonstrate that the judgment appealed from does not rest on
an independent and adequate state ground. ' 166 The unseemliness
of requiring any court to explain denial of extraordinary relief is
what bothered Justice Rehnquist.
The thrust of Justice Douglas' dissent in Rios was not that remanding to the state court for clarification created an undue burden on the state court but that the Supreme Court simply lacked
jurisdiction to deal with the state supreme court decision in any
manner whatsoever. 167 The only burden that Justice Douglas alluded to was the Supreme Court's own burden:
Ours is already large; and it hardly comports with the
messages of distress which have emanated from here for
us to seek to gather in more cases that from the beginning
have been sparsely and discretely selected from the state
domain ....
[where there is a] storm of protest against
federal intrusion
on state rights that has not yet
168
subsided.
Review of the Dixon opinion does not reveal that the procedure adopted by the Supreme Court imposed an undue burden on
the supreme court of California. The Supreme Court of the United
States requested the supreme court of California to clarify
whether the judgment was intended to rest on an adequate and
independent state ground or whether decision of the federal claim
was necessary to the judgment rendered. 6 9 Not only was the burden marginal, the Supreme Court of California, exercising its prerogative as an independent
and sovereign court, simply refused to
70
honor the request.
There is neither precedent nor empirical evidence to support
the conclusion that state clarification of ambiguous state grounds
issues have caused or will cause an undue burden on the state judiciaries. The Michigan Supreme Court on remand faced the issue
of the meaning of Michigan search and seizure law notwithstand165. Id. at 244-45.
166. Id. at 244.
167. See 410 U.S. at 427-30 (Douglas, J., dissenting). Justice Douglas actually
found no jurisdiction even to remand for clarification in this ambiguous state federal ground case. Id. at 427.
168. Id. at 429-30.
169. 344 U.S. at 145.
170.
See id. at 145-48.
1984]
SCHIZOID FEDERALISM
ing Justice 1O'Connor's attempt to alleviate burdens on the state
17
judiciary.
II.
THE DOCTRINE OF ADEQUATE AND INDEPENDENT
STATE GROUNDS
In Long, whether the Supreme Court could or should address
the federal issue involved the adequacy and independence of the
state law cited by the Michigan Supreme Court. 172 In the course of
applying adequate and independent state ground theory, the majority distorted settled jurisdictional principle. Federalism was
shorn of traditional meaning and applied unrealistically. There
were obvious and real state interests in Long, but these were
neither identified nor fairly evaluated by the majority. Long involved a state criminal prosecution for a petty crime of possession
of marijuana. State prosecutors derive authority to prosecute
under state law exclusively; it is the Michigan Supreme Court, an
elected judiciary, which has the ultimate authority to declare
Michigan law. 7 3 Whatever abstract concern the majority of the
Supreme Court had in shaping fourth amendment policy, the federal interest was insubstantial.
Adequate and independent state ground doctrine was impotent to forestall the exercise of jurisdiction despite strong policy
reasons for declining. To ascribe the jurisdiction merely to the
prosecutorial orientation of the Court is to abandon hope for a viable federalism, capitulating to the jurisdictional nihilism of the
Long majority.
A reappraisal of the adequate and independent state ground
tradition illuminates the faulty analysis of Long. More importantly, reappraisal may result in resurrection of the doctrine as a
more effective limit on Supreme Court power.
A.
STANDARD EXPLANATION:
AVOIDANCE OF ADVISORY OPINIONS
The adequate and independent state ground dogma has been
repeatedly explained as a jurisdictional limit prohibiting the
Supreme Court, or any federal court, from rendering an advisory
174
opinion.
171.
See note 158 and accompanying text supra.
172. See 103 S. Ct. at 3474-78.
173. See note 5 supra.
174. See Note, supra note 52, at 822.
Although commentators have differed as to the basis of the requirement
that a question, to be reviewable, must have been necessary to the decision, the Court has indicated that it derives from the general prohibition
CREIGHTON LAW REVIEW
[Vol. 18
In its purest and clearest sense, an advisory opinion is one
which does not emanate from a real case or controversy as required by article 1I.175 Justiciability and adversariness are lacking.17 6 The classic example of an advisory opinion was that
requested in 1793 by Thomas Jefferson on behalf of President
George Washington. The Court politely refused. 17 7 Mootness and
17 8
lack of standing have a similar advisory opinion connotation.
This is not the "advisory opinion" which explains adequate
and independent state ground theory. Indeed the theory is applied
only when there is a case. In this context, an advisory opinion is
an opinion on a federal law issue that cannot effect the judgment
because state law is dispositive and deemed so by a state court.
Rightly or wrongly decided, the state law question is beyond the
appellate power of the Supreme Court by virtue of the jurisdic7 9
If
tional statute and perhaps the Constitution by implication.
the state law is dispositive, even an erroneous interpretation of
federal law by a state court remains immune from Supreme Court
review. 180 However ineffective a ruling on federal law might be,
there is a case. The federal issue is invariably hotly contested, if a
state ground is potentially dispositive or not.
Consequently, there is doubt that the advisory opinion rationale for adequate and independent state ground theory rises to a
constitutional or even statutory dimension. Certainly the importance of avoiding an advisory opinion on a federal issue in a real
case is not evocative of fundamental policies.
The deficiency of a constitutional or a statutory basis for adequate state ground doctrine is quite apparent when one separates
substantive state grounds from procedural. A decision by the
Supreme Court on the federal question always eliminates the state
procedural ground as a dispositive factor in the case, permanently.
This is not so when the state ground is substantive, if it is independent and adequate; state substantive grounds may be adequate and dispositive even when the Supreme Court decides the
against the rendering of advisory opinions and has applied it as a rigid jurisdictional restriction.
175. 13 C. WRIGHT, A. MILLER & E. COOPER, FEDERAL PRACTICE AND PROCEDURE
§ 3529 (1977) [hereinafter cited has WRIGHT, MILLER, & COOPER].
176. See generally Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239 (1937).
177. See Letter from Thomas Jefferson, Secretary of State to Chief Justice Jay
and Associate Justices (July 18, 1793); Letter from Chief Justice Jay and Associate
Justices to President Washington (Aug. 8, 1793), reprinted in HART AND WECHSLER,
supra note 1, at 64-66.
178. See generally WRIGHT, MILLER & COOPER, Supra note 175, at §§ 3531-3533.
179. Musser v. Utah, 333 U.S. 95, 97 (1948); Murdock v. City of Memphis, 87 U.S.
(20 Wall.) 590, 625-35 (1874).
180. 87 U.S. (20 Wall.) at 634-35.
1984]
SCHIZOID FEDERALISM
federal question. Consequently, a determination of the federal
questions when there are dispositive substantive state grounds
may result in the rendering of an advisory opinion; but if the
grounds are procedural, a nondispositive, so-called advisory opinion cannot result. The explanation for the Supreme Court's refusal to entertain federal questions barred by a state procedure
rests not on the Constitution, statute, or avoidance of advisory
opinion, but on federalism, institutional policy, and discretion.
It is interesting to note that the leading case on the subject of
adequate and independent state grounds, Murdock v. City of Memphis,181 does not base the doctrine on the avoidance of an advisory
opinion as a jurisdictional imperative. The declination of jurisdiction was "to prevent a useless and profitless reversal, which can do
the plaintiff in error no good, and can only embarrass and delay the
,182
"...
defendant .
Justice O'Connor in Long provides only a cursory reference to
the advisory opinion issue:
The principle that we will not review judgments of state
courts that rest on adequate and independent state
grounds is based, in part, on the "limitations of our own
jurisdiction". . . . The jurisdictional
concern is that we not
"render an advisory opinion."' 8 3
Justice Jackson explained the doctrine more expansively alluding to the "partitioning of power between the state and federal
judicial systems and in the limitations of our jurisdiction.' 1 84 Justice Jackson's exposition in Herb v. Pitcairn'8 5 provides an excellent description of the price paid for short-circuiting state
clarification.
But we cannot perform our duty to refrain from interfering
in state law questions and also to review federal ones
without making a determination whether the one or the
other controls the judgment. And in cases where the answer is not clear to us, it seems consistent with respect
due the highest courts of state of the Union that they be
asked rather than told what they have intended. If this imposes an unwelcome burden it should be mitigated by the
knowledge that it is to protect their jurisdiction from unwitting interference as well as to protect our own from un181. 87 U.S. (20 Wall.) 590 (1874).
182. Id. at 635. See also Note, supra note 5, at 1377-80 wherein some doubt is
expressed about the basis of the doctrine. Cf. Hart, The Time Chart of the Justices,
73 HARv. L. REV. 84, 111 (1959).
183. 103 S. Ct. at 3476 (quoting Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945)).
184. 324 U.S. at 125.
185. 324 U.S. 117 (1945).
CREIGHTON LAW REVIEW
[Vol. 18
witting renunciation. 186
The absence of elaboration signifies the absence of a rationale.
In Long, Justice O'Connor not only avoided elaboration, she ignored the advisory opinion implications which were inherent in
the assumption of jurisdiction. In deciding the federal Terry issue,
the majority necessarily implied that in doing so an advisory opinion would not have been rendered. Of course, the Court did
render an advisory opinion since the issue of what the Michigan
Supreme Court intended was still open. As a matter of state con187
stitutional law, the Michigan Supreme Court had the last word.
If it reasserted the Michigan Constitution as set forth in State v.
Long, the determination of the Terry issue would have been ineffective except to force a clarification of the state law grounds. One
cannot infer that the Court intended to preclude reassertion of
state law given the limitation of its appellate jurisdiction over state
court judgments to federal issues. Whether state law applies and
takes its meaning from federal law is a state law question. 188 What
Justice O'Connor sought to avoid by presuming the meaning of
state law simply cannot be avoided when no federal right is
denied.
An earlier example of this process was evident in South Dakota v. Opperman. 89 The South Dakota Supreme Court had reversed a conviction on the ground that a search of a glove
compartment of an automobile after impoundment violated the
fourth amendment. 90 The state court seemed to rely on state law
as well as federal precedent.' 9' The Supreme Court in a five to
186.
Id.
187. Musser v. Utah, 333 U.S. at 98. "The right to speak this word is one which
State courts should jealously maintain and which we should scrupulously observe."
188. Evans v. Newton, 382 U.S. 296 (1966); cf.Indiana v. Brand, 303 U.S. 95, 97
(1938).
189. 428 U.S. 364 (1976).
190. Id. at 366-67.
191. See State v. Opperman, 89 S.D. 25, -,228 N.W.2d. 152, 153-54 (1975) rev'd,428
U.S. 364 (1976). The South Dakota Supreme Court, after citing the fourth amendment and related cases, had stated:
Cognizant that mere custody of a vehicle is not sufficient to cause a divestiture of Fourth Amendment protections we hold that "minimal interference" with a citizen's constitutional rights means that police inventory
searches must be restricted to safeguarding those articles which are within
plain view of the officer's vision. This limitation upon the scope of an inventory search of a vehicle has found implicit approval by this Court in State v.
Catlette, S.D., 1974, 221 N.W.2d 25 ... [which] states that an inventory
search limited to removing objects in plain view, if done without an investigative motive, is a reasonable search. We now explicitly approve this rule.
Id. at -, 228 N.W.2d at 158.
1984]
4 SCHIZOID FEDERALISM
four opinion reversed, but to no avail. 192 On remand, the South
Dakota Supreme Court reinstated its reversal of the trial court noting that a state could provide greater individual protection than
the federal constitution 193 and that the state court had the final authority on the state law question. 194 Thus, the Supreme Court of
the United States had rendered an advisory opinion.
The same potential was apparent in Long. In fact, on December 3, 1984, the Michigan Supreme Court remanded the case for a
new trial after holding the search of the trunk impermissible under
South Dakota v. Opperman.195 If the Michigan Supreme Court ultimately reasserts Michigan law and holds that Michigan law
means what was previously said, that will be conclusive as to the
independence and meaning of state law.
The failure of the Court to take cognizance of the advisory nature of its own opinion in Long illustrates the unimportance that
avoidance of advisory opinions has in the context of the adequate
and independent state ground criteria for jurisdiction. Thus the
jurisdictional deviations which Justice O'connor felt compelled to
promote were responsive to a quixotic jurisdictional impediment.
If so, eliminating that windmill might focus attention on real issues
which application of adequate and independent state grounds
96
raises.
192. 428 U.S. at 376. None of the Justices perceived a jurisdictional problem. See
id. at 364-96.
193. See State v. Opperman, 247 N.W.2d 673, 674 (S.D. 1976) (citing Oregon v.
Hass, 420 U.S. 714 (1975)).
194. Id. at -, 247 N.W.2d at 674-75.
195. 428 U.S. 364 (1976). See People v. Long, slip op., Dec. 3, 1984. (new trial to be
based on Michigan Constitution, Article I, section 11). The defendant-appellant
Long was convicted in 1978. After the remand to the supreme court of Michigan, the
defendant argued that the state constitutional question was still open, pointing out
that in a number of respects the Michigan Constitution provided higher standards
for proper search and seizure than the United States Constitution. Brief of Defendant-Appellant p. 19-20. Defendant-appellant disputed Justice O'Connor's conclusion that under Michigan law marijuana was a drug. Brief of Defendant-Appellant
p. 21-24. The prosecution, plaintiff-appellee, argued that the warrantless search issue as a state law issue was foreclosed by the Supreme Court. The Michigan
Supreme Court denied a motion to dismiss the defendant-appellant's point before
remanding on December 3, 1984.
196. See Colorado v. Nunez, 104 S. Ct. 1257 (1984). Testament to the unimportance of avoiding an advisory opinion is the gratuitous rendering of opinions on the
merits when the Supreme Court dismisses a writ of certiorari as improvidently
granted because the state court judgment rested on adequate and independent
state grounds. Justice White did just that in the 1983-84 Term, the Chief Justice and
Justice O'Connor concurring. Justice Stevens sharply criticized the rendering of
the advisory opinion. This is a long-standing practice even where the Court has
decided that it lacks or will not take jurisdiction. See Linzer, The Meaning of Certiorari Denials,79 COLUM. L. REV. 1227, 1267- 77 (1979).
CREIGHTON LAW REVIEW
B.
[Vol. 18
ADEQUATE AND INDEPENDENT STATE GROUNDS JURISDICTIONAL OR DISCRETIONARY DOCTRINE?
1. Adequate and Independent State Grounds JurisdictionalLimitation
A
Viewed as
The issue of adequate and independent state grounds has usually been viewed as a limitation on the Court's jurisdiction. 197 In
Jankovich v. Toll Road Comm'n,198 Justice White expressed the
traditional view that "[e] ven though a state court's opinion relies
on similar provisions in both State and Federal Constitutions, the
state constitutional provision has been held to provide an independent and adequate ground of decision depriving this court of
jurisdiction to review the state judgment."'199
Even when the grounds for decision have been ambiguous, the
Court has focused upon its jurisdiction. In the face of a decision of
the California Supreme Court denying claimed rights under the
equal protection and due process clauses of the fourteenth amendment and under the state constitution, a majority of the Supreme
Court dismissed a petition for certiorari for lack of jurisdiction
stating: "This Court, however reviews judgments not statements
and opinions ....
This means no more than that we should not
pass on federal questions discussed in the opinion where it ap'20 0
pears that the judgment rests on adequate state grounds.
In Lynch v. New York,20 1 the state court sustained an asserted
federal right under the fourteenth amendment. 20 2 It was unclear
whether the decision was based upon the Constitution or state
law. 20 3 The Supreme Court unanimously dismissed certiorari as
improvidently granted stating:
It is essential to the jurisdiction of this court in reviewing
the decision of a court of a State that it must appear affirmatively from the record, not only that a federal question
was presented for decision to the highest court of the state
having jurisdiction but that its decision of the federal
question was necessary to the determination of the cause,
and that it was actually decided or that the judgment of
the state court rests on two grounds, one involving a federal question and the other not, or if it does not appear on
which of two grounds the judgment was based, and the
197. See Note, supra note 5, at 1376-77.
198. 379 U.S. 487 (1965).
199. Id. at 491-92.
200. Black v. Cutter Laboratories, 351 U.S. 292, 297-98 (1956) (citations omitted).
201. 293 U.S. 52 (1934).
202. Id. at 53.
203. Id. at 54.
1984]
SCHIZOID FEDERALISM
ground independent of a federal question is sufficient in
204
itself to sustain it this court will not take jurisdiction.
Despite this language intimating it was declining jurisdiction
not that there was none, the opinion concludes by stating: "As the
record fails to show jurisdiction in this Court, the writ of certiorari
is dismissed ....
",205
The Court's analysis in Honeyman v. Hanan20 6 was also predicated upon concern for jurisdictional limitations:
Before we may undertake to review a decision of the court
of a State it must appear affirmatively from the record, not
only that the federal question was presented for decision
to the highest court of the State having jurisdiction but
that its decision of the federal question was necessary to
the determination of the cause. . . . As this Court must
decide whether it has jurisdiction in a particular case, this
Court must determine whether the federal question was
20 7
necessarily passed upon by the state court.
Because the record left some doubt as to what had actually been
determined by the state court, 208 the Supreme Court "afforded an
amendment of the record." 20 9
opportunity for appropriate ...
Chief Justice Hughes explained:
We think that a [n] . . . opportunity should be accorded
here in order that uncertainty may be removed and that
the precise nature of the federal question, how it was
raised and the grounds of its disposition, may be definitely
set forth, so that we may be able to decide whether a substantial question 2within
our jurisdiction has necessarily
10
been determined.
The jurisdiction must affirmatively appear, but the Court will provide an opportunity to clarify the record.
The Supreme Court has also considered the issue of its ability
to address the federal question in jurisdictional terms, where state
and federal grounds for a decision are "interwoven", and the independence of the state ground is not clear.21 ' If the federal grounds
and state grounds are "interwoven," there is jurisdiction and the
case will be heard by the Supreme Court.2 12 In Long, Justice
204. Id. at 54-55.
205. Id. at 55.
206. 300 U.S. 14 (1937).
207. Id. at 18.
208. Id. at 25-26. However, there really was no doubt but that the New York
Court of Appeals had decided the federal question. See id. at 18.
209. Id. at 26.
210. Id.
211. See note 212 and accompanying text infra.
212. See notes 85-93 and accompanying text supra.
CREIGHTON LAW REVIEW
[Vol. 18
O'Connor relied upon dicta in EnterpriseIrrigationDistrictv. Canal Co. 2 13 which stated that: "[Wihere the non-federal ground is
so interwoven with the other as not to be an independent matter,
or is not of sufficient breadth to sustain the judgment without any
decision of the other, our jurisdiction is plain. ' 214 Enterprise involved a federal and plainly non-federal claim, both of which had
been upheld by the state court. 215 However, in Enterprise, the
Court found the state ground distinct from the federal. 216 There is
no hint that ambiguous grounds provided a basis for jurisdiction.2 17 In discussing the question of jurisdiction, the Court recognized that:
In such situations our jurisdiction is tested .... Where
this is the case the judgment does not depend upon the
decision of any federal question and we have no power to
disturb
it.218
The aforementioned cases which treated the ambiguous
ground issue as jurisdictional and applied the traditional doctrine
that jurisdiction must be demonstrated are incompatible with
Long. The idea of presumptive jurisdiction is alien to the notion of
a limited federal judiciary.
a.
Distortionof State Court Opinions
In the name of jurisdiction, the Supreme Court has engaged in
rather convoluted opinion writing when dealing with ambiguous
adequate and independent state ground issues.
Justice
O'Connor's license with the Michigan Court opinion in Long is a
replication of what the Court had frequently done.
For example, in Minnesota v. National Tea Co.2 19 there was little doubt but that the state court of Minnesota 220 had relied upon
an adequate and an independent state ground. 221 After citation
and discussion of a state case 222 for the proposition that provisions
of the federal and state constitutions imposed identical restrictions
upon the legislative power of the state to classify for purposes of
213. 243 U.S. 157 (1917).
214. Id. at 164, quoted in 103 S. Ct. at 3474 n.4.
215. Id. at 158.
216. Id. at 166.
217. See id. 158-65.
218. Id. at 164.
219. 309 U.S. 551 (1940).
220. National Tea Co. v. State, 205 Minn. 443, 286 N.W. 360 (1939).
221. 309 U.S. at 552-53.
222. 205 Minn. at -, 286 N.W. at 362 (citing Reed v. Bjornson, 191 Minn. 254, 253
N.W. 102 (1934)).
19841
SCHIZOID FEDERALISM
taxation, 223 the Minnesota Supreme Court struck down the tax,
stating:
Our cases hold . ..that . .. the classification must be
based on differences which furnish a reasonable ground
for making a distinction between the several classes. The
differences must not be so wanting in substance that the
classification results in permitting one to escape a burden
imposed on another under substantially similar circumstances and conditions. The rule of uniformity, estabthat all
lished by the [state] Constitution requires
224
similarly situated shall be treated alike.
Significantly the Minnesota Supreme Court had stated: "If we err
in our construction of the latter, [the United States Constitution]
our views may be corrected by the Supreme Court, our interpretation of our own constitution is, of course, final. '' 225 Nevertheless,
the Supreme Court, instead of dismissing the appeal for lack of
when there was none, vacated and
jurisdiction, found an ambiguity
226
remanded to the state court.
The technique of circumventing adequate and independent
state grounds precedent by distorting the import of state court
opinions continues unabated. The substantive issue in South Dakota v. Neville2 27 concerned the admissibility into evidence of a refusal to take a sobriety test. The state trial court had granted a
motion for suppression which the Supreme Court of South Dakota
affirmed, holding that introduction of such evidence violated both
228
the federal and state privilege against self-incrimination.
Notwithstanding the adequate and independent state grounds the
United States Supreme Court in a seven to two decision reversed. 229 With Justice O'Connor writing the opinion, the
Supreme Court held that the introduction into evidence of the fact
that a defendant refused to take a chemical intoxication test did
not violate the privilege against self-incrimination guaranteed by
the fifth amendment. 230 The Court was very clear about the reason
for its substantive interest in the case:
The situation underlying this case - that of the drunk
223. Id. at -, 286 N.W. at 362.
224. Id. at 445, 286 N.W. at 362. The Supreme Court interpreted this language to
be a construction of the state constitution because the Minnesota Supreme Court
had cited three state cases for its support. 309 U.S. at 553 n.3.
225. 191 Minn. at -, 253 N.W.at 104.
226. 309 U.S. at 557.
227. 103 S. Ct. 916 (1983).
228. Id. at 919 & n.5.
229. Id. at 924.
230. Id. at 921-23.
CREIGHTON LAW REVIEW
[Vol. 18
driver - occurs with tragic frequency on our Nation's
highways. The carnage caused by drunk drivers is well
documented and needs no detailed recitation here. This
Court, although not having the daily contact with the problem that the State
Courts have, has repeatedly lamented
23 1
the tragedy.
Although Justice O'Connor recognized that the "program" involved in the Neville case was an attempt by South Dakota to deal
with its own local problem, she disposed of the jurisdictional issue
in the following mannerAs Justice Stevens emphasizes, post, the South Dakota
Supreme Court clearly held that the statute violated the
state as well as federal Constitution. Although this would
be an adequate state ground for decision, we do not read
the opinion as resting on an independent state ground.
Rather, we think the court determined that admission of
this evidence violated the Fifth Amendment privilege
against self-incrimination, and then concluded without
further analysis that the state privilege was violated as
well.
The analysis of the court below was remarkably similar to
that of the State Court opinion reviewed in Delaware v.
Prouse.... As we characterized their analysis, every police practice found to violate the Fourth Amendment
would, without further analysis, be held to be contrary to
the State Constitution as well. In such a situation, we concluded, this Court has jurisdiction to23 2review the Federal
Constitutional issues decided below.
In essence the Court seemed to say that whenever a state
court alludes to the federal Constitution for the purpose of ascertaining the meaning of the state constitution, there will be
Supreme Court appellate jurisdiction, even if no federal right is
violated by the interpretation and it is clear that the state court
relied on state grounds. The decision of the South Dakota
Supreme Court in Neville was not even a final decision; 233 nevertheless, the Supreme Court held that it had jurisdiction under 28
U.S.C. § 1257(3) "[t]o review the federal constitution issue which
has been finally determined, because if the state ultimately
prevails at a trial, the federal isue will be mooted; and if the state
231. Id. at 920.
232. Id. at 919 n.5.
233. See id. at 920 n.6. The case involved an interlocutory appeal based on the
state trial court's grant of a motion for suppression. Cf. Stefanelli v. Minard, 342
U.S. 117 (1951). There the Court held that federal courts should refuse to intervene
in state criminal proceedings to suppress the use of evidence even when claimed to
have been secured by unlawful search and seizure. Id. at 119.
SCHIZOID FEDERALISM
19841
loses at trial, governing state law . .
prevents it from again
presenting the federal claim for review." 234 So much for the applicability or importance of avoiding an advisory opinion.
Justice Stevens, dissenting, characterized the majority opinion
as advisory and beyond the power of the United States Supreme
Court to issue.235 He pointed out that the independence of the
state constitution, irrespective of similarity to the federal Constitution, had been asserted by the South Dakota Supreme Court and
that if the Supreme Court decided a federal question in a case disposed of by a state court decision resting on state grounds, independent of federal compulsion, the opinion would be
236
advisory.
Rather than quarrelling with this basic doctrine, Justice
O'Connor, joined in Neville by a majority of the members of the
Court, merely chose to take poetic license with the opinion of the
state court in order to address the federal issue.
The Court's analysis in Oregon v. Kennedy237 was similar to
that in Neville. The case involved a mistrial in a state prosecution
for theft.238 After retrial and conviction, the Oregon Court of Appeals held that the prosecutor's conduct in the first trial had been
overreaching and as a consequence the second prosecution was
barred as placing the defendant in double jeopardy. 239 The Oregon
240
Supreme Court affirmed the decision of the appellate court.
The United States Supreme Court reversed. 241 Justice Rehnquist, writing for the majority, dealt summarily with the adequate
and independent state grounds issue stating that "[a] fair reading
of the opinion below convinces us that the court of appeals rested
234. 103 S. Ct. at 920 n.6 (citations omitted).
235. See id. at 924-26 (Stevens, J., dissenting).
Unless we have explicit notice that a provision of a State Constitution is
intended to be a mere shadow of the comparable provision in the Federal
Constitution, it is presumptuous - if not paternalistic - for this Court to
make that assumption on its own. No matter how eloquent and persuasive
our anlaysis of the Federal Constitution may be, we cannot simply presume
that the highest court of a sovereign state will modify its interpretation of
its own law whenever we interpret comparable federal law differently.
Even when a state tribunal misconceives federal law, this Court cannot vacate its judgment merely to give it an unsolicited opportunity to re-analyze
its own law. If a State Court judgment is premised on an adequate state
ground, that ground must be presumed independent unless the State Court
suggests otherwise.
Id. at 925-26.
236. Id. at 925 & n.3.
237. 456 U.S. 667 (1982).
238. Id. at 669.
239. Id.
240. Id.
241.
Id. at 679.
CREIGHTON LAW REVIEW
[Vol. 18
its decision solely on federal law. '242 Rehnquist reasoned that because the Oregon Court of Appeals opinion had cited State v. Rath243
bun,
an earlier state court of appeals opinion that had relied on
federal law, the court of appeals in Kennedy must have relied exclusively upon federal law.24 Justice Rehnquist reached this conclusion notwithstanding that the Oregon Supreme Court opinion
in State v. Rathbun rested on state and federal law. 245 The state
court of appeals in Kennedy also cited the Oregon Supreme Court
opinion in Rathbun.246 That the supreme court of Oregon had affirmed in the Kennedy case itself was of no significance to Justice
Rehnquist. 2 47 Moreover, Justice Rehnquist concluded by stating:
"Even if the case admitted of more doubt as to whether federal and
state grounds for decision were intermixed, the fact that the state
court relied to the extent it did on federal grounds requires us to
'248
reach the merits.
Thus in Oregon v. Kennedy249 where a federal right had been
sustained by the state court, the Supreme Court majority found
that the state court's decision rested on federal law although the
state court had cited a state case which had ultimately been affirmed on the basis of both state and federal law.2 50 Once again,
the Court distorted the expressed basis of the state court decision,
making clear what was not clear, in order to satisfy its jurisdiction. 25 1 The federal interest which to Justice Rehnquist "requires"
the Court to reach the merits was unexplained and remains
obscure.
The finale of Oregon v. Kennedy is curious. On remand, the
Court of Appeals of Oregon affirmed the conviction by determining
that prosecutorial overreaching would not bar a subsequent prosecution under the double jeopardy provisions of the Oregon Consti242. Id. at 671.
243. 37 Or. App. 259, 586 P.2d 1136 (1978), rev'd, 287 Or. 421, 600 P.2d 392 (1979)).
244. 456 U.S. at 671.
245. See 287 Or. at -, 600 P.2d at 397. The Oregon Supreme Court stated: "We
shall dispose of this case under Oregon law although giving proper weight to the
statements of United States Supreme Court which we find to touch upon the matter." Id. (citations omitted).
246. 49 Or. App. 415, -, 619 P.2d 948, 949 (1980).
247. See 456 U.S. at 681 n.1 (Stevens, J., dissenting).
248. Id. at 671. With respect to the substantive issue in Kennedy the Court conceded that it was interpreting the double jeopardy standard differently than precedent suggested, recognizing that "language taken from our earlier opinions may
suggest a broader rule." Id. at 677-78 & n.8.
249. Id. at 667.
250. See id. at 674-78.
251. See id. Concurring with the majority, Justice Brennan noted that in the
event of a retrial, the Oregon Constitution could still be asserted as a double jeopardy defense. Id. at 680 (Brennan, J., concurring).
19841
SCHIZOID FEDERALISM
tution. 25 2 This holding overruled the earlier Oregon cases
recognizing such a bar and the earlier decision in the Kennedy
case itself.
Another case in the tradition of distortion and misinterpretation of state court opinions is Texas v. Brown.253 The defendant in
Brown was charged with possession of heroin. 254 The trial court
had denied a motion to suppress a chemical test of the substance
notwithstanding the defendant's claim of an unlawful search and
seizure. 255 The Texas Court of Criminal Appeals reversed, holding
that the plain-view doctrine did not justify the warrantless seizure
of evidence. 256 The state court relied upon Coolidge v. New Hampshire25 7 and several state cases 25 8 and concluded: "For the plainview doctrine to apply, not only must the officer be legitimately in
a position to view the object, but it must be immediately apparent
to the police that they have evidence before them. '259 Merely
sighting "opaque party balloons" was held insufficient to form the
2 60
basis of a belief that contraband was contained in the balloons.
The Supreme Court of the United States unanimously reversed and remanded.26 1 One test that the Supreme Court had
outlined for determining the propriety of the plain-view exception
to the requirement of a warrant was that "it must be immediately
apparent to the police that the items they observe may be evidence
of a crime, contraband, or otherwise subject to seizure. '262 In concluding that the Texas Court of Criminal Appeals had misinterpreted and misapplied this prong of the plain-view test, Justice
Rehnquist wrote:
To the Court of Appeals, this apparently meant that the
officer must be possessed of near certainty as to the seiza252. State v. Kennedy, 61 Or. App. 469, -, 657 P.2d 717, 719 (1983). The explanation for the shift in position by the Oregon court can be attributed to displacement
of two of the three judges by two new members of the court, by the felt pressure of
the Supreme Court opinion, or by the unlikely possibility that Justice Rehnquist
was correct.
253. 103 S. Ct. 1535 (1983).
254. Id. at 1538-39.
255. The defendant claimed violations of both the state and federal constitutions. Id.
256. See Brown v. State, 617 S.W.2d 196 (Tex. Crim. App. 1981).
257. 403 U.S. 443 (1971).
258. 617 S.W.2d at 200.
259. Id. quoted in 103 S. Ct. at 1539.
260. Id. (citing Duncan v. State, 549 S.W.2d 730 (Tex. Crim. App. 1977)). See also
Delao v. State, 550 S.W.2d 289 (Tex. Crim. App. 1977; Nicolas v. State, 502 S.W.2d 169
(Tex. Crim. App. 1973). The court noted that in Delao it had "held that a substance
inside a red balloon on a windowsill was not in plain view." 617 S.W.2d at 200.
261. 103 S. Ct. at 1544.
262. Id. at 1540.
CREIGHTON LAW REVIEW
[Vol. 18
ble nature of the items. Decisions by this Court since Coolidge indicate that the use of the phrase "immediately
apparent" was very likely an unhappy choice of words,
since is can be taken to imply that an unduly high degree
of certainty as to the incriminatory character of evidence
is necessary for an application of the "plain view"
263
doctrine.
This characterization of the court of appeals' interpretation of
the requirement that the incriminating nature of the items be "immediately apparent" as meaning "near certainty" is a distortion of
the Texas court opinion. There is no indication that the Texas
court applied an "unduly high degree of certainty" in reaching the
conclusion that it did. Rather the Texas Court of Criminal Appeals
interpreted the "immediately apparent" aspect of the plain view
doctrine as requiring "some showing that the officer saw what appeared to be a contraband substance" 264 and conversely, the plainview doctrine would not be satisfied if there was "no basis for believing that its contents were inherently suspicious or that they
were in fact contraband. ' 265 There was no indication of a more
stringent application of the immediately apparent prong of the
plain-view doctrine. The kindest thing one can say about Justice
Rehnquist's characterization of the state court opinion is that he
was nit-picking in the extreme.
The crux of the conflict between the Supreme Court and the
Texas Court of Criminal Appeals was primarily a difference over
the inferences to be drawn from the evidence. Whereas the
Supreme Court determined that the arresting officer "possessed
probable cause to believe that the balloon in Brown's hand contained an illicit substance, '266 the Texas Court of Criminal Appeals
determined that he did not.267 The suggestion by Justice Rehnquist that the Texas court somehow misinterpreted the plain-view
elements of federal law seems to derive from the Supreme Court's
conclusion that the Texas court's determination would necessarily
have to be based upon an erroneous interpretation of federal law
given the Supreme Court's version of the facts.
The defendant argued that the Brown decision rested on an
adequate and independent state ground which deprived the
263. Id. at 1542.
264. 617 S.W.2d at 200 (quoting Duncan v. State, 549 S.W.2d 730, 732 (Tex. Crim.
App. 1977)).
265. Id. at 200 (quoting Howard v. State, 599 S.W.2d 597, 600 (Tex. Crim. App.
1979)).
266. 103 S. Ct. at 1543.
267. 617 S.W.2d at 200.
19841
SCHIZOID FEDERALISM
Supreme Court of the United States of jurisdiction. 268 Although it
is true that the Texas Court of Criminal Appeals did not clearly
rest its holding on an interpretation of Texas law, it cited a number
of Texas cases to support its interpretation of both the law and the
facts. 269 The state court determination was plainly based in part
upon prior state court decisions. There was no indication in Brown
that the state court acted under compulsion of federal law; there
was at best an ambiguity. The Supreme Court found none.
b. Ascertaining Feelings of State Courts
Another aspect of the Supreme Court's attempt to fit adequate
and independent state grounds theory into a jurisdictional model
involves the notion that a state court that "feels" under compulsion of federal constitutional law provides a jurisdictional predicate for Supreme Court review of the federal law. Reliance on
state law by a state court is thus perceived not as independent of
federal law but subject to its command. Consequently the question of jurisdiction of the Supreme Court to review the constitutional question has rested upon a psychological assumption about
the state of mind of the state judiciary.
For example in State Tax Commission v. Van Cott270 the
Supreme Court of Utah held a Reconstruction Finance Corporation attorney exempt from state income tax.2 71 The Supreme
Court of the United States reversed with Justice Black concluding
that the state court "felt constrained to conclude as it did because
of the Federal Constitution" 272 and because the state and federal
grounds were "so interwoven that we are unable to conclude that
the judgment rests upon an independent interpretation of the state
274
law." 27 3 What the state court "thought" was critical.
Although the supreme court of Utah cited state law to support
its decision, federal law seemed to predominate. 275 The grounds
for decision by the Utah court were clear enough for the Supreme
268. 103 S. Ct. at 1537-38 n.1.
269. 617 S.W.2d at 200.
270. 306 U.S. 511 (1936).
271. Van Cott v. State Tax Comm'n, 95 Utah 43, -, 79 P.2d 6, 11-12 (1938).
272. 306 U.S. at 514.
273. Id.
274. See 95 Utah at -, 79 P.2d at 10, 14. The supreme court of Utah had stated:
The [Supreme Court] case of New York ex rel. Rogers v. Graves. . . is...
we think decisive as to the rule of law applicable here ....
We shall have to
be content to follow, as we think we must, the doctrine of the Graves case,
until such time as a different rule is laid down by the courts, the Congress,
or the people through amendment to the Constitution.
Id.
275.
Id.
CREIGHTON LAW REVIEW
[Vol. 18
Court to take jurisdiction, but Justice Black vacated the judgment
to provide the state court another opportunity to consider the state
law question. 276 On remand, the Utah Supreme Court held that
state law provided the immunity. Ascertaining the feelings of the
Utah judiciary was not a reliable method of avoiding an advisory
opinion.
Other cases have also depended upon a psychological probing
of the minds of state court judges.
Justice White wrote in the re277
cent case of Delaware v. Prouse:
Because the Delaware Supreme Court held that the stop
at issue not only violated the Federal Constitution but also
was impermissible under Art. I, § 6 of the Delaware Constitution, it is urged that the decision below was based on
an adequate and independent state ground and that we
therefore have no jurisdiction in this case ....
At least, it
is suggested, the matter is sufficiently uncertain that we
should remand for clarification as to the ground on which
the judgment rested ....
Based on our reading of the
opinion, however, we are satisfied that even if the state
Constitution would have provided an adequate basis for
the judgment, the Delaware Supreme Court did not intend
to rest its decision independently on the state
Constitution
278
and that we have jurisdiction of this case.
Justice White engaged in a similar inquiry in Zacchini v.
Scripps-Howard Broadcasting Co. 27 9 After conceding that the
case was based upon a right under state law 280 and that the source
of the right was not identified in the syllabus, he determined that
the Ohio court "decision rested solely on federal grounds" because
there had been "principal reliance" on two first amendment
cases. 281 The Court stated that "[e]ven if the judgment in favor of
respondent must nevertheless be understood as ultimately resting
on Ohio law, it appears at the very least the Ohio court felt compelled by what it understood to be federal considerations.... 282
In Long itself the majority concluded: "It appears to us that the
state court 'felt compelled by what it understood to be federal constitutional considerations .... ,-283
What has been described is a mode of analysis which is un276.
277.
278.
279.
280.
281.
282.
283.
306 U.S. at 516.
440 U.S. 648 (1979).
Id. at 651-52 (emphasis added).
433 U.S. 562 (1977).
Id. at 566.
Id. at 567.
Id. at 568.
103 S. Ct. at 3478.
19841
SCHIZOID FEDERALISM
seemly at best. State court opinions are given meaning without
justifiable support in the record. Psychological assumptions are
made about how the state judiciary felt when state law is cited.
The process containing no objectifying criteria has resulted in distortion. This jurisdictional inquiry involves so fine a distinction as
to be without implication for jurisdictional policy whatever the result. There is no connection between the process and serious jurisdictional concern for the avoidance of an advisory opinion.
2. A DiscretionaryModel
The doctrine of adequate and independent state ground as a
bar to Supreme Court review of a federal issue has often not received the scrupulous attention which jurisdictional limitations
normally command. This suggests that avoidance of an advisory
opinion in the adequate and independent state ground sense does
not rise to a jurisdictional concern. Rather those cases which discuss whether to review a federal question when a state law issue
might be dispositive seem to treat the question as one of discretion
rooted in policies of federalism and institutional policy. The expo284
sition of Justice Jackson in Herb v. Pitcairn
is illustrative:
[W] hat to do with cases in which the record is ambiguous
but presents reasonable grounds to believe that judgment
may rest on decision of a federal question has long vexed
the Court. In many cases the answer has been a strict adherence to the rule that it must affirmatively appear that
the federal question was decided and that its decision was
essential to disposition of the case; and that where it is not
clear whether the judgment rests on a Federal ground or
an adequate state one, this court will not review ....
In
other cases where justice seemed to require it, for example because of supervening events, the Court has said that
to set aside the state court for further consideration if not
to review, in any proper sense of the term, the decision of
285
the state court.
Uncertainty as to the ground of decision below led the Court in
28 6
Herb to continue the case and remand for further consideration.
Justice Jackson, eyeing the federal system, considered the state
interests predominant even though the federal right had been denied by the state court. Justice Black, dissenting in Herb, argued
284. 324 U.S. 117 (1945). The case involved a Federal Employees Liability Act
claimant whose case had been dismissed by the state court on the basis of what
appeared to have been a state issue of jurisdiction and federal issues of running of
the statute of limitations and timely commencement of the action. Id. at 124-25.
285. Id. at 126.
286. Id. at 135.
CREIGHTON LAW REVIEW
[Vol. 18
in favor of reaching the federal question in order to promote the
policies of the Federal Employees Liability Act.
Many ambiguous state ground opinions mentioning jurisdiction or not use the language of discretion, declining jurisdiction,
and federalism. Long is no exception. From a jurisdictional perspective the analysis of Long makes no sense, though the conclusion that jurisdiction existed seems correct. As an exercise of
discretion in the context of federalism, the analysis is faulty and
the result illogical.
Justice Stevens' dissent in Long took the position that the
Supreme Court lacked jurisdiction because it did not clearly appear that the state law grounds were not independent of the
United States Constitution.287 He correctly pointed out that a pre288
sumption against taking jurisdiction has always prevailed.
Having paid homage to jurisdiction, Justice Stevens evaluated
policies of federalism and institutional interests. He considered
the scarcity of judicial resources and recognized that "a policy of
judicial restraint - one that allows other decisional bodies to have
the last word in legal interpretation until it is truly necessary for
this Court to intervene - enables this Court to make its most effective contribution to our federal system of government. '289 Because there had been no deprivation of a federal right and the case
involved a matter that was exclusively state and local, Justice Stevens maintained that there was no policy reason for the Court to
presume the existence of jurisdiction. 290 He noted that the role of
the Supreme Court in determining whether or not a non-federal
ground independently and adequately supported a judgment was
to prevent a state from imposing an unconstitutional burden on a
2 91
citizen resulting in a violation of federal constitutional rights.
Finally, he sharply disagreed with the exercise of Supreme Court
jurisdiction merely to correct an erroneous state court view of the
United States Constitution. 292 Justice Stevens summed up the
context in which the majority of the Supreme Court announced a
new and expanded jurisdiction for itself:
In this case the State of Michigan has arrested one of its
citizens and the Michigan Supreme Court has decided to
287. 103 S. Ct. at 3489 (Stevens, J., dissenting).
288. Id. (citing Durley v. Mayo, 351 U.S. 277, 285 (1956); Stembridge v. Georgia,
343 U.S. 541, 547 (1952); Lynch v. New York, 293 U.S. 52 (1934)).
289. 103 S. Ct. at 3490.
290. Id.
291. Id. at 3490-91 (citing Abie State Bank v. Bryan, 282 U.S. 765 (1931); Union
Pac. R.R. v. Public Serv. Comm'n, 248 U.S. 67 (1918)).
292. Id. at 3492 n.4 (citing Minnesota v. National Tea Co., 309 U.S. 551 (1940)).
19841
SCHIZOID FEDERALISM
turn him loose. The respondent is a United States citizen
as well as a Michigan citizen, but since there is no claim
that he has been mistreated by the State of Michigan, the
final outcome of the state processes offended no federal interest whatever. Michigan simply provided greater protection to one of its citizens than some other State might
than this Court might require throughprovide or, indeed,
293
out the country.
Although Justice Stevens accepted the issue as one of jurisdiction, he evaluated the relative importance of both the federal and
state interests in a manner more indicative of an exercise of
discretion.
a.
Adequate and Independent State Ground Theory Applied to
FederalDistrict Courts
Although adequate and independent state grounds doctrine
normally applies to limit review of state court decisions by the
Supreme Court, the same doctrine has been employed to prevent
appeals to the United States Supreme Court from the federal
courts of appeals when a decision rests upon independent state
grounds. As with appeals to the United States Supreme Court
from state court decisions, 294 the statutory provisions governing
the appellate jurisdiction of the Supreme Court to review cases decided by lower federal courts excludes jurisdiction to decide ques29 5
tions of state law.
In City of Mesquite v. Aladdin's Castle, Inc. 296 a United States
court of appeals held that a city licensing ordinance directed to
297
coin-operated amusement establishments was unconstitutional.
The basis for the decision in the court of appeals was that the criteria for issuance of a license were unconstitutionally vague and that
children under seventeen years of age could not be barred from
patronizing such an establishment by reason of the fourteenth
amendment and the Texas Constitution. 298 The United States
Supreme Court reversed on the vagueness issue but remanded for
clarification of the question of the constitutionality of the restric299
tion on seventeen year olds.
Addressing only the matter of the constitutionality of the age
293.
294.
295.
296.
297.
298.
299.
Id. at 3490 (Stevens, J., dissenting).
See 28 U.S.C. § 1257(3) (1982).
See 28 U.S.C. § 1254(2) (1982).
630 F.2d 1029 (5th Cir. 1980).
Id. at 1038.
Id. at 1038-43.
455 U.S. 283, 291-95 (1982).
CREIGHTON LAW REVIEW
[Vol. 18
restriction, the Supreme Court majority sought clarification as to
whether the court of appeals had relied upon the Texas constitutional protections independent of federal provisions or whether
the Texas constitutional protections had been considered congruant to and dependent for meaning on the United States Constitution. 300 If the former, the Supreme Court said that lacking
"sufficient basis" to address the federal question it would "decline,
...to decide the federal constitutional question," and the appeal
would be dismissed. 30 1 If the latter, then the Supreme Court could
30 2
address the federal question.
Justice Stevens, writing for the majority, advanced three reasons for the remand. First, he noted the particular expertise of
court of appeals judges in interpreting state law. 30 3 Second, he
perceived a possibility that the Texas constitutional standard differed from the federal standard. 30 4 Third, he stated: "Finally, and
of greater importance, is this Court's policy of avoiding the unnecessary adjudication of federal constitutional questions. As we recently have noted ... this self-imposed limitation on the exercise
of this Court's jurisdiction has an importance to the institution
that transcends the significance of particular controversies. 3 5
Justice Stevens' opinion intimates not that the Supreme Court
could not review the federal question but that it should not in light
of the policy considerations he advances.
For the dissenters, Justices Powell and White, the question
was one of jurisdiction per se under 28 U.S.C. § 1254(2).306 Their
concern was only whether state law was independent of federal
law.307 They presumptuously concluded that only "three cursory
state law citations in a full discussion of federal law" does not constitute an independent state ground. 30 8 Isolating their inquiry to
the jurisdictional point and taking liberty with the lower court
opinion, the adequate and independent state ground principle was
reduced to a non sequitur.
The approach of Justice Stevens to adequate and independent
300.
See id.
301. Id. at 294-95.
302. Id. at 295.
303. Id. at 293-94.
304. Id. at 294.
305. Id.
306. Id. at 298-302 (Powell, J., dissenting).
307. Id. Neither Justice Stevens nor Justice Powell, dissenting, draws any distinction between adequate and independent doctrine when jurisdiction is based on
28 U.S.C. § 1257(2) or 28 U.S.C. § 1257(3).
308. 455 U.S. at 299. The court of appeals also cited the Texas Constitution. See
630 F.2d 1029, 1039 (5th Cir. 1980).
SCHIZOID FEDERALISM
19841
state ground theory implicitly addresses a different concern than
that of Justice Powell. Justice Stevens minimizes the jurisdiction
issue and weights institutional and federalism interests. 30 9 Justice
Powell's opinion, confined rigidly to a jurisdictional question of
whether the Court can hear the federal question, avoids Justice
310
Stevens' approach which concerns whether the Court should.
The philosophy of the dissenters about the role of the Supreme
Court is not arcane. Reaching the constitutional issue wrongly decided by the federal courts weighed more heavily than permitting
a lower federal court to clarify the meaning of a possibly dispositive state law. The institutional policy of reluctance to pass on a
constitutional question which tests a state law was ignored. Paradoxically, the activism of the federal jurisdiction served to contract
the federal right. There is an obvious logic eliminating the paradox, but it is not the logic of federalism.
The jurisdictional bugaboo must be eliminated so the competing federal and state interests and the institutional policies within
a federalism framework emerge with clarity.
III.
EXERCISING DISCRETION
If a state ground is clearly adequate and independent of federal law to support a state court judgment, whether a jurisdictional
or discretionary theory is applied, the result should be the same.
The federal question should not be heard. If there is ambiguity, as
when federal and state grounds address the same issue, neither
the Constitution nor the Judiciary Act precludes jurisdiction over
the federal question. 311 One can safely say there is one constitutional case, and the federal question arises under federal law.
With the distorting gloss removed, this is the position of Long.
Remaining is the discretionary question of whether to exercise
the jurisdiction, hinging upon the nature of certiorari jurisdiction,
institutional policies, and federalism. This process requires a recognition of state and federal interests and an assessment of the
propriety of exercising discretion to accept or decline jurisdiction
within the ambit of a sound balance between state and federal
sovereignty.
An analogous dilemma faced the Court with respect to pendent jurisdiction. 312 Rather than view narrowly the jurisdiction of
federal district courts to hear non-federal pendent claims, the
309.
310.
See 455 U.S. at 291-95.
See id. at 297-302.
311.
WRIGHT, MILLER, COOPER, & GRESSMAN, supra note 26, at §§ 4019-4033.
312.
See United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
CREIGHTON LAW REVIEW
[Vol. 18
Court chose to consider whether the "case" including federal and
state issues constituted a single case within the "arising under"
jurisdiction. 3 13 If it did, the district court would have jurisdiction
to exercise its discretion to hear the non-jurisdictional matter. Litigation convenience and federalism principles would guide the ex314
ercise of discretion.
A.
CERTIORARI JURISDICTION
3 15
The source of the Supreme Court's appellate power over state
court cases when a decision is in favor of a federal right is 28 U.S.C.
§ 1257(3), discretionary writ of certiorari. 3 16 This jurisdiction is of
recent vintage, having been conferred in 1914.317 Originally, review
of state court judgments was limited to denial of federal rights, 3 18
and the early cases upholding the power involved the denial of federal rights.3 19 Even this limited scope of jurisdiction was strongly
opposed.320 The 1914 revision was designed to enable the Court to
respond to the growing number of cases in which state courts were
striking down state social welfare legislation upon allegedly federal constitutional grounds.32 1 The Act provided the Supreme
Court with discretionary appellate jurisdiction to review any case
322
in which a federal claim had been upheld.
313. Id. at 725.
314. Id. at 726.
315. See R. STERN & E. GRESSMAN, SUPREME COURT PRACTICE 166-72, 254-64, 31417 (5th Ed. 1978).
316. See generally Linzer, The Meaning of CertiorariDenials,79 COLUM. L. REV.
1227 (1979).
317. Act of Dec. 23, 1914, ch. 2, 38 Stat. 790 (current version at 28 U.S.C. § 1257(3)
(1982)).
318. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 316, 422-23 (1821). Section 25 of
the Judiciary Act of 1789 provided for Supreme Court review of state court decisions only when a right claimed under the Constitution or federal law was denied.
Act of Sept. 24, 1789, ch. 20, 1 Stat. 73, 85-87.
319. See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 316 (1821); Martin v.
Hunter's Lessee, 14 U.S. (I Wheat.) 304 (1816).
320. See generally Warren, Legislative and Judicial Attacks on the Supreme
Court of the United States--A History of the Twenty-Fifth Section of the Judiciary
Act, 47 AM. U.L. REV. 1 (1913).
321. See, e.g., Ives v. South Buffalo R.R., 201 N.Y. 271, 94 N.E. 431 (1911). The
court held that the first American workmen's compensation act was in conflict with
the due process guarantees of both the federal and state constitutions. Id. at -, 94
N.E. at 439-40, 441-44. It is fair to attribute the Act of 1914 to general revulsion at
perpetuation by state courts of due process as economic theory, in the face of
Supreme Court repudiation of Lochner v. New York, 198 U.S. 45 (1905), Muller v.
Oregon, 208 U.S. 412 (1908) and Noble State Bank v. Haskell, 219 U.S. 104 (1911). See
also F. FRANKFURTER & J. LANDIS, THE BusiNEss OF THE SUPREME COURT 188-98
(1928).
322. Act of Dec. 23, 1914, ch. 2, 38 Stat. 790. Discretionary appellate jurisdiction
to review any case provided:
1984]
SCHIZOID FEDERALISM
Prior to the revision, Charles Warren had written about the
impending expansion of Supreme Court jurisdiction:
A striking change in the Federal Judiciary Act has been
recently advocated by various Bar Associations and in the
platform of the new political party-a change which might
radically modify the relations of the Federal and State governments. Since its adoption in 1789, the 25th Section of
that Act which granted the United States Supreme Court a
limited jurisdiction on appeal from decisions of State
courts, has never been materially changed. This jurisdiction is now practically confined to cases where a State
court has decided in favor of the constitutionality of a
State law or proceeding. The new proposal now made is to
extend the power of the Supreme Court so as to give it
jurisdiction over appeals from State courts which decide
against such constitutionality. The reason for such a
change in the power of the Supreme Court lies in the increasing tendency of certain State courts to hold State
laws unconstitutional, and the broader trend of the National Supreme Court decisions towards upholding the
constitutionality of statutes.
The grave predicament in which state legislation was
left by an adverse decision of a State court unappealable
to the Federal Supreme Court was a subject of much complaint early in our legal history ....
As this antagonism
[to Supreme Court review of state judgments] continued
for eighty years after the adoption of the Act of 1789, it is a
singular development of American public opinion that an
extension of3 the Federal jurisdiction should now meet
32
with favor.
Cases in which the grounds for a state court judgment are ambiguous seem to be particularly inappropriate for the exercise of
certiorari jurisdiction when no federal right has been denied. The
objective of the jurisdiction was to free state law, state courts, and
state sovereignty from erroneous constitutional strictures. Since
the Supreme Court review of a state supreme court judgment affecting a state criminal law case is a patent intrusion into state sovereignty, even a suggestion that state law was dispositive ought to
deter review. There is a sharp difference, in terms of federalism,
[A]lthough the decision of the state court may have been in favor of the
validity of the treaty or statute or authority exercised under the United
States or against the validity of the State statute or authority claimed to be
repugnant to the Constitution, treaties, or laws of the United States or in
favor of the title, right, privilege or immunity claimed under the Constitution, treaty, statute, commission, or authority of the United States.
323. Warren, supra note 320, at 1-2.
CREIGHTON LAW REVIEW
[Vol. 18
between reaching a federal issue so that a state social statutory
program can survive and interference in a state criminal case in
which police conduct is declared deficient. Of all the attributes of
sovereignty, none prevails over control of crime. It is the state
supreme court which speaks last for the state on this matter, not
the prosecutor. State prosecutors who are authorized to proceed,
if at all, in state court are anomalous beneficiaries of a jurisdiction
created to vindicate federal rights, entities, and interests.
Conversely, it is unfair to deprive a defendant involuntarily
subjected to state court jurisdiction of the benefit of the state system even if the state court is in error. Plaintiffs who select a federal forum or defendants who claim federal rights are the primary
324
beneficiaries of federal court jurisdiction.
Two additional factors bear on the inappropriateness of exercising jurisdiction in Long. While it is clear that Supreme Court
appellate review under Article III was conceived of for the purpose
of protecting federal rights, 325 it is doubtful that the Constitution's
framers ever contemplated Supreme Court review of state court
decisions providing more expansive interpretations of individual
rights than these enunciated by the Supreme Court. The fear of
federal impingement on the rights of the people gave impetus for
the adoption of the Bill of Rights. 326 It is no small support for the
conclusion that such review was not anticipated under article III,
327
that until 1914, no such jurisdiction existed.
Michigan law of search and seizure was highly developed prior
to Long328 although not expounded upon at great length in the
324. Martin v. Hunter's Lessee and a multitude of other authorities so imply:
There is an additional consideration, which is entitled to great weight. The
Constitution of the United States was designed for the common and equal
benefit of all the people of the United States. The judicial power was
granted for the same benign and salutary purposes. It was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and
would elect the national forum, but also for the protection of defendants
who might be entitled to try their rights, or assert their privileges, before
the same forum.
14 U.S. (1 Wheat.) at 348.
325. The justification for the existence of a federal judicial power over cases
arising under federal law invariably refers to enforcement of federal law or prohibitions against violation by the Senate. See generally THE FEDERALIST No. 81 (A.
Hamilton). See also Ableman v. Booth, 62 U.S. (21 How.) 506, 517-19 (1858); Cohens
v. Virginia, 19 U.S. (6 wheat.) 264, 421-23 (1821).
326. See E. DumBAuLD, THE BiuL OF RIGirs 356 (1979).
327. See notes 273-280 and accompanying text suprafor historical analysis of the
jurisdictional statute and its amendments.
328. See notes 52-57 and accompanying text supra. As early as 1919 in People v.
Marxhausen, 204 Mich. 559, -, 171 N.W. 557, 561-62 (1919) the Michigan Supreme
Court was construing the Michigan Constitution to create an exclusionary rule.
Prior to Mapp v. Ohio, 367 U.S. 643 (1961), evidence was excluded under the Michi-
1984]
SCHIZOID FEDERALISM
state court's opinion. 329 The Michigan Supreme Court's interpretation of the federal issue in Long was a nondiscriminatory and
330
reasonable application of federal precedent.
The Supreme Court in Long seemed to approach the adequate
and independent state ground question as if the discretion imparted by 28 U.S.C. § 1257(3) had been eliminated once the Court
agreed it had jurisdiction. However, the application of certiorari
discretion presumes the existence of jurisdiction. Evaluating a
proper exercise of discretion must be undertaken even if the jurisdiction is established. The process of the evaluation ought to take
account of the relative certainty or lack thereof of the jurisdiction.
Since the jurisdiction assumed to exist in ambiguous state ground
cases is at least suspect, the exercise of discretion ought to reflect
that infirmity.
B.
INSTITUTIONAL
POLICY
The Supreme Court has on many occasions followed an institutional, discretionary policy of avoiding constitutional questions,
unless no other alternative is presented. 3 31 That policy, applicable
to both certiorari jurisdiction and jurisdiction by appeal, reflects
case and controversy requirements, federalism, and an inherent
power of the Court to control its business. The Court's discussion
in Rescue Army v. Municipal Court of Los Angeles is particularly
germane:
[T]his Court has followed a policy of strict necessity in
disposing of constitutional issues. The earliest exemplifications ... arose in the Court's refusal to render advisory
opinions and in applications of the related jurisdictional
policy drawn from the case and controversy limitation ....
The same policy has been reflected continuously
not only in decisions but also in rules of court and in statgan Constitution in People v. Gonzales, 356 Mich. 247, -, 97 N.W.2d 16, 23-24 (1959).
An exception to the exclusionary rule affecting narcotics and armed crimes contained within the Michigan Constitution was held unconstitutional by the Michigan
Supreme Court. People v. Pennington, 383 Mich. 611, -, 178 N.W.2d 471, 474-76
(1970). Holding that the Michigan exclusionary rule is broader than that of the
fourth amendment, see People v. Beavers, 393 Mich. 554, -, 227 N.W.2d 511, 515-16,
cert. denied, 423 U.S. 878 (1975). See also People v. Nash, 418 Mich. 196, - N.W.2d
(1984).
329. See notes 19-22 and accompanying text suprafor discussion of the Michigan
Supreme Court's citation to state law.
330. See People v. Long, 413 Mich. 461, -, 320 N.W.2d 866, 868-70 (1982). In fact,
Terry had never been interpreted so expansively by the Supreme Court prior to the
Long case. Cf. Justice O'Connor's interpretation of Terry, 103 S. Ct. at 3478-83 to
that of Justice Brennan's. Id. at 3483-89.
331. See, e.g., Rescue Army v. Municipal Court, 331 U.S. 549, 574-85 (1947). Cf.
Minnick v. California Dep't of Corrections, 452 U.S. 105, 119-27 (1981).
CREIGHTON LAW REVIEW
[Vol. 18
utes made applicable to jurisdictional matters including
the necessity for reasonable clarity and definiteness, as
well as for timeliness, in raising and presenting constitutional questions. Indeed perhaps the most effective implement for making the policy effective has been the
certiorari jurisdiction conferred upon this Court by
Congress....
The policy however, has not been limited to jurisdictional determinations. For, in addition, the Court [has]
developed, for its own governance in the cases confessedly
within its jurisdiction, a series of rules under which it has
avoided passing upon a large part of all the constitutional
questions pressed upon it for decision. Thus,. . . constitu-
tional issues affecting legislation will not be determined in
friendly, nonadversary proceedings in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be
applied;....
Like the case and controversy limitation itself and the
policy against entertaining political questions, .
.
. [the
policy of strict necessity] is one of the rules basic to the
federal system332and this court's appropriate place within
that structure.
Most recently, this policy emerged in a case in which the New
York Court of Appeals held a state law prohibiting solicitation of
deviate sex unconstitutional. 333 Certiorari was granted by the
Supreme Court. After briefing and oral argument, the appeal was
dismissed. The reason given for the change of heart was that the
case was an "inappropriate" vehicle to review the federal question.
No state law had been cited by the New York court, only a prior
state case which had rested solely upon the federal Constitution.
The Attorney General of New York, as amicus, conceded unconstitutionality. The New York prosecutor did not. One can speculate
that Justice Powell, whose swing vote made the difference, felt
Supreme Court involvement in this domestic squabble unpalatable. Presumably, the dissenters in favor of deciding the federal
question 334 would have decided it adversely to the judgment of the
court of appeals and the position of the Attorney General of New
York.
332.
333.
334.
would
331 U.S. at 568-70 (citations omitted).
New York v. Uplinger & Butler, 104 S. Ct. 2332 (1984).
Id. at 2333. Predictably, Justices Burger, White, Rehnquist, and O'Connor
have decided the federal question.
SCHIZOID FEDERALISM
1984]
C.
FEDERALISM
335
The exercise of discretion in ambiguous state ground cases
rests most importantly upon principles of federalism. Even Long
dabbled with federalism analysis. Obviously the federalism of
Herb and those other ambiguous state ground cases in which the
Court refused to entertain the federal question are markedly dif336
ferent than the federalism of Long.
Federalism as an abstract limitation upon federal courts generally refers to a proper balance between state and federal judicial
power. It is a policy of jurisdictional limitation imposed by Congress and the Court itself to insulate state interests from federal
court scrutiny.
Justice Black wrote that federalism is:
[A] proper respect for state functions, a recognition of the
fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief
that the National Government will fare best if the States
and their institutions are left free to perform their separate functions ....
What the concept does represent is a
system in which there is sensitivity to the legitimate interests of both the State and National Government, and in
which the National Government, anxious though it may be
to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not un337
duly interfere with the legitimate activities of the State.
Supreme Court jurisdiction has been limited by policies of federalism; adequate and independent state grounds have roots in federalism. 338 Likewise, abstention and equitable restraint have a
similar jurisprudential heritage explained by principles of
339
federalism.
Whatever difference one may perceive in the role of the
Supreme Court as compared to the district courts in terms of federalism, the local nature of a matter or its importance to state sovereignty are unaffected by this distinction. The existence of a
national interest in the fourth amendment and search and seizure
does not vary because the particular federal forum is different.
335. For a discussion of federalism in the context of the restriction of federal
court power, see generally Friendly, Federalism86 YALE L.J. 1019 (1977). It should
be noted that the requirement of state court judgment finality also has federalism
roots. See Radio Station WOW, Inc. v. Johnson, 326 U.S. 120 (1945).
336. Compare the federalism of Illinois v. Andreas, 103 S. Ct. 3319, 3329-30 (1983)
(Stevens, J., dissenting) to that of Solem v. Helm, 103 S. Ct. 3001 (1983).
337. Younger v. Harris, 401 U.S. 37, 44 (1971).
338. See Herb v. Pitcairn, 324 U.S. 117, 128 (1945).
339. See Railroad Comm'n v. Pullman, 312 U.S. 496 (1941).
CREIGHTON LAW REVIEW
[Vol. 18
The Supreme Court is special as the final expositor of federal law.
Nevertheless the interest, impact on state independence, and the
proper balance between federal judicial intrusion and local judicial
control involve similar objectives and values whether it be the
Supreme Court or district court which exercises power.
It is therefore apt to compare the federalism of Long to the
federalism applied to district courts. The comparison emphasizes
the aberrational federalism of Long and the need to apply the full
range of federalism principles to adequate and independent state
ground theory.
1. Statutory Limitations
Congress has on a number of occasions limited federal district
court jurisdiction.3 4 These have included restrictions on federal
injunctive power against state court proceedings, 341 use of three
judge courts, 3
42
and restrictions on the issuance of injunctions af-
fecting state rate making 343 or taxing.3 " These congressional attempts to preserve state judicial hegemony over state interests
have been variously interpreted by the Supreme Court to further
346
curtail federal court jurisdiction 345 or to narrow the limitation.
In recent years the tendency has been to impose greater limita3 47
tions on district court jurisdiction.
A classic example of this trend involved the Tax Injunction
Act, 28 U.S.C. § 1341, which provides:
The district courts shall not enjoin, suspend or restrain the
assessment, levy or collection of any tax under State law
where a plain, speedy and
efficient remedy may be had in
348
the courts of such State.
Notwithstanding jurisdiction under 28 U.S.C. § 1341 and a federal cause of action under 42 U.S.C. § 1983, the Supreme Court held
that principles of "comity" barred suits in federal court for damages in cases involving state tax matters. 349 A regard for the inde340. HART AND WECHSLER, supra note 1, at 962-80 & Supp. 247-53.
341. 28 U.S.C. § 2283 (1982).
342. 28 U.S.C. § 2284 (1982).
343. 28 U.S.C. § 1342 (1982).
344. 28 U.S.C. § 1341 (1982).
345. See Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 299-302 (1943),
expanding the policy of the tax injunction act to include declaratory payment.
346. See Mitchum v. Foster, 407 U.S. 225, 242-43 (1972) which carved an "expressly authorized" exception to the anti-injunction statute by reason of 42 U.S.C.
§ 1983.
347. See Fair Assessment in Real Estate, Inc. v. McNary, 454 U.S. 100, 101-16
(1981).
348.
349.
28 U.S.C. § 1341 (1983).
454 U.S. at 100.
19841
SCHIZOID FEDERALISM
pendence of state governments was the articulated reason for the
350
result.
PennhurstState School & Hospitalv. Halderman35' is the most
recent expression of a policy curtailing federal district court jurisdiction. The district court 352 had found that the conditions at Pennhurst were "dangerous, with the residents often physically
abused," violating the eighth and fourteenth amendments and the
Rehabilitation Act of 1973. 353 The court of appeals affirmed 354 but
only on the basis of the Developmentally Disabled Assistance and
Bill of Rights Act. 355 After the Supreme Court reversed,3 56 finding
no substantive right under the Developmentally Disabled and Bill
of Rights Act, the court of appeals 357 sustained the violation of the
pendent state claim under the Pennsylvania Mental Health and
Mental Retardation Act of 1966,358 avoiding the constitutional and
other federal statutory grounds. Again the case went to the
Supreme Court. The same Justices constituting the majority in
Long joined to hold that the eleventh amendment barred federal
district courts with "arising under" federal question jurisdiction
from entertaining pendent state law claims against state officials.
In 1908, Ex parte Young created a fictionalized exception to the
eleventh amendment bar to suits against states in federal district
courts. 35 9 Suits against state officials alleged to be violating federal
rights were deemed not against states. This fiction, together with
the doctrine of pendent jurisdiction, 360 enabled federal courts to
conveniently assume jurisdiction over cases against state officials
for violation of federal rights. Pennhurstemasculates the jurisdic36 1
tion by removing the state law claim from the case.
Federal law suits frequently contain state law claims. Justice
350. Justice Rehnquist wrote: "We consider such interference to be contrary to
'[tIhe scrupulous regard for the rightful independence of state governments which
should at all times actuate the federal courts.' Matthews, 284 U.S. at 525.'" 454 U.S.
at 115-16.
351. 104 S. Ct. 900 (1984).
352. 446 F. Supp. 1295 (E.D. Penn. 1977).
353. 87 Stat. 394 (1973) (codified as amended at 29 U.S.C. § 794 (1976 & Supp. V
1981).
354. 612 F.2d 84 (3d Cir. 1979).
355. 42 U.S.C. § 6010 (1976 & Supp. V 1981).
356. 451 U.S. 1, 3 (1981).
357. 673 F.2d 647 (3d Cir. 1982).
358. PA. STAT. ANN. tit. 50, §§ 4101-4704 (Purdon 1969 & Supp. 1982).
359. 209 U.S. 123 (1908).
360. United Mine Workers v. Gibbs, 383 U.S. 715 (1966).
361. For an analysis of the potential impact of Pennhurst,see Note, Pendent Jurisdiction v. Sovereign Immunity: Dismissed For Failure to State a Claim Upon
Which Relief Can Be Granted - Pennhurst State School & Hospital v. Halderman,
18 CREIGHTON L. REV. 75 (1984).
CREIGHTON LAW REVIEW
[Vol. 18
Marshall recognized this in Osborn.3 62 To bifurcate federal cases
against state officials so that state law claims must be brought in
state court and federal claims brought in federal court, all claims
constituting one case, is to compound the already extraordinary
expense and delay of litigation. Pennhurstbegan in 1974, and it is
headed for a long future. The Court can bifurcate state and federal
issues, but parties interested in expedition and economy will
surely be reluctant to participate in such a process in the federal
courts. Unless litigants in future cases want to assert only a part of
their case in federal court, one can expect a rechannelling of federal "cases" against state officials to their more friendly environs,
the state courts. Review would then be available by one federal
forum, the Supreme Court. The effect of this jurisdictional reorganization on federal rights may be significant.
In one clear sense, Pennhurstis consistent with Long- the individual again lost a battle before the Supreme Court against state
officials. This may well be the only neutral concept reconciling the
two cases. It is not one that comports with usual jurisdictional
doctrine, nor is it, of course, acknowledged as such by the Court.
The cause of federalism seems to be served by Pennhurst "Our
reluctance to infer that a State's immunity from suit has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system." 363 The Court concluded
that "[t] he reasoning of our recent decisions on sovereign immunity thus leads to the conclusion that a federal suit against state
officials on the basis of state law contravenes the Eleventh Amendment when - as here - the relief sought and ordered has an im'364
pact directly on the State itself.
That state courts and not federal courts should decide state
law issues affecting the conduct of state officials and that federal
courts should decide the federal issue is a policy of federalism
facially compatible with that of Long. However, Pennhurst involved a federal right alleged to be denied, providing a strong federal judicial interest in the case.
Be that as it may, the instruction given by the Supreme Court
to the court of appeals to decide only the federal questions adversely affects the states' interest in having federal courts decide
cases on the basis of state law, if possible. It is antipathetic to the
policy of Erie Railroad Co. v. Tomkins. 365 If the court of appeals
362. 22 U.S. (9 Wheat.) 738 (1824). See generally Mishkin, The Federal "Question"In the District Courts, 53 COLUM. L. REV. 157 (1953).
363. 104 S. Ct. at 907.
364. Id. at 917.
365. 304 U.S. 64 (1938).
19841
SCHIZOID FEDERALISM
again sustains the plaintiffs' claims, this time on federal grounds,
most directly, and therefore unlikely, the Powell majority may find
the federal substantive claim lacking, as it did the first time the
case was before it. More likely is the application of a doctrine of
abstention, exhaustion, or equitable restraint to prevent federal
courts from addressing even a federal question until after the state
courts have dealt with the state law issue. This is the logical next
step in Pennhurst. Tucked away in footnote thirteen is a signal
366
that this is the future ploy of the activist-conservative majority.
If this scenario is correct, the federalism of Long and Pennhurst is not reconcilable. In Long, the authority and independence of state courts was subordinated to federal law and a federal
court. Pennhurst erects a barrier to the federal judiciary. Yet, in
Long, the federal judiciary was not needed to protect a federal
right while in Pennhurst,denial of a federal right was claimed.
2. Pullman and Younger
Railroad Commission of Texas v. Pullman Co. 367 involved a
claim in federal district court by the Pullman Company that a
Texas Commission order violated the equal protection, due process, and commerce clauses of the Constitution of the United
States, as well as Texas law.3 68 Intervening porters objected to the
order as racially discriminatory and therefore violative of the fourteenth amendment. 369 There was no question in Pullman of the
district court's jurisdiction.
Nor was the eleventh amendment technically germane since
the suit was against a commission and not the state per se. As with
Ex parte Young, 37 0 the proceeding had been instituted in federal
court against state officials and involved claims of denial of federal
rights.3 71 In order to circumscribe jurisdiction of federal courts
372
over state conduct created by the analysis in Ex parte Young,
the Supreme Court in Pullman enunciated a discretionary doctrine of abstention rooted in "our federal system whereby the fed366. "We do not decide whether the District Court would have jurisdiction
under this reasoning to grant prospective relief on the basis of federal law, but we
note that the scope of any such relief would be constrained by principles of comity
and federalism." 104 S. Ct. at 910 n.13.
367. 312 U.S. 496 (1941).
368. Id. at 498-99.
369. Id. at 498.
370. 209 U.S. 123 (1908).
371. 312 U.S. at 498-99. Cf.209 U.S. at 129.
372. See 209 U.S. at 123. The Court held that the eleventh amendment did not
present any limitations on federal court intervention against state officials for violation of federal rights unless the state was a direct party in the suit. Id. at 150-55.
CREIGHTON LAW REVIEW
[Vol. 18
eral courts, exercising a wise discretion, restrain their authority
because of scrupulous regard for the rightful independence of the
state governments and for the smooth working of the federal judiciary. ' 3 73 Consequently, the district court was instructed to refrain
from exercising its jurisdiction until the state law question was de3 74
cided by a state court.
Justice Frankfurter's language in Pullman is indicative of his
customary regard for the long-term institutional consequences of
jurisdictional decisions. He wrote:
The complaint of the Pullman porters undoubtedly tendered a substantial constitutional issue. It is more than
substantial. It touches a sensitive area of social policy
upon which the federal courts ought not to enter unless no
alternative to its adjudication is open. Such constitutional
adjudication plainly can be avoided if a definitive ruling on
the state issue would terminate the controversy. It is
therefore our duty to turn to a consideration of questions
under Texas law. . . . The lower court did deny that the
Texas statutes sustained the Commission's assertion of
power. And this represents the view of an able and experienced circuit judge of the circuit which included Texas
and of two capable district judges trained in Texas law.
Had we or they no choice in the matter but to decide what
is the law of the state, we should hesitate long before rejecting their forecast of Texas law. But no matter how seasoned the judgment of the district court may be, it cannot
375
escape being a forecast rather than a determination.
In Pullman, as in Long, a federal constitutional right was
claimed. In Pullman,as in Long, a state law violation was claimed.
Both cases involved sensitive areas of social policy. In Pullman a
constitutional adjudication could have been avoided by a definitive
ruling on the state issue 376 the same was true in Long. Federal
3 77
court determination of state law was a forecast in Pullman;
the
same was true of the Supreme Court in Long. The friction of a
premature constitutional adjudication was an issue in both cases.
The power of the court to abstain in Pullman was the result of ex373. 312 U.S. at 501. It would seem that Pennhurst would turn the Pullman abstention doctrine into one where the federal court could not determine the state
question because of the eleventh amendment.
374. Id.
375. Id. at 499. Of course the lower federal court had avoided the constitutional
question by deciding on state grounds that the regulation was illegal under state
law. A cynic might conclude that the Supreme Court used equity and federalism to
sidestep a political imbroglio.
376. See 312 U.S. at 501.
377. Id. at 499.
1984]
SCHIZOID FEDERALISM
ercise of its equitable discretion; the Supreme Court also had discretionary power to abstain in Long. Moreover, in Pullman, the
Court perceived the exercise of discretion serving the interest of
harmonious relations between state and federal authority; presumably the Supreme Court in Long had the same interest.
The argument for restraint in a case like Long is more powerful than any such argument that could be made in a Pullman-type
case. In Long, the federal judiciary, albeit the Supreme Court, interfered with the highest court of a state; no state court had even
dealt with the right claimed in Pullman. In Long, the state determination did not violate any federal right; in Pullman the federal
right had not been recognized or protected by the state commission. Finally, in Pullman the jurisdiction of the Supreme Court
was not marginal. Nor can it be maintained that the need for uniformity in the federal law of search and seizure was greater than
the desirability of uniformity with respect to the fourteenth
amendment bar of racial discrimination.
It is not surprising that the abstention doctrine announced in
Pullman failed to surface in Long. As if two constitutions were in
place, instead of one, Pullman abstention has been confined to federal district court intervention in state affairs, not Supreme Court
intervention in state affairs. The consanguinity of the federalism
of abstention and adequate and independent state grounds has not
been acknowledged. The accuracy of analysis will be enhanced if
it is.
Neither is it surprising that Younger v. Harris378 and principles
of equitable restraint were not cited in Long. In Younger the
Supreme Court held that notwithstanding the possibility that the
California Criminal Syndicalism Act violated the first and fourteenth amendments both as applied and on its face, 379 "the judgment of the district court enjoining appellant Younger from
prosecution under these California statutes must be reversed as a
violation of the national policy forbidding federal courts to stay or
enjoin pending state court proceedings except under special circumstances. ' '380 The Younger doctrine was developed and applied
to restrain federal district courts from interfering with ongoing
state court criminal proceedings. 381 It now applies to some civil
judicial proceedings 382 and has occasionally even been cited to
378. 401 U.S. 37 (1971).
379. Id. at 53.
380. Id. at 41.
381. Id.
382. See Moore v. Sims, 442 U.S. 415, 422-34 (1979); Trainor v. Hernandez, 431 U.S.
434, 440-48 (1977).
CREIGHTON LAW REVIEW
[Vol. 18
forestall interference with nonjudicial state activities. 383 The doctrine is discretionary, developed as a judicial policy out of principles of equity and federalism.
The principles of federalism applied by Justice Black in
Younger seem equally applicable to the jurisdictional problem of
Long.384 Both involve an institutional power to decline jurisdiction. Both affected state criminal procedure.
The preservation of state interests in a state law criminal prosecution were promoted in Younger. Federal judicial interest in a
federal issue was deemed subordinate to the idea that state courts
should have primary responsibility for enforcing state criminal law
under state procedures. Nevertheless, justification for the exercise
of jurisdiction in Younger was strong. There was no question
about the jurisdiction; the federal issue was dispositive; there were
no state law issues before the court; there was no state court opinion apparently resting on state law to circumvent; there was no
state judicial intention to divine. Most importantly, vindication of
a federal right was at stake; the sacrifice of state sovereignty to the
supremacy of federal law was implicit in the federal system established by the Constitution. 385 In Long, there was no state court
threat to the supremacy of federal law.
A major theme of this article is that the Supreme Court expresses diametrically opposed positions on the issue of federalism.
In a single case, without apparent discomfort, the Supreme Court
has gone so far as to profess allegiance to an expansive and a con386
tracted approach to its own appellate jurisdiction.
3.
Schizoid Federalism: Illinois v. Gates
Illinois v. Gates3 87 came to the Supreme Court via the Illinois
court system.388 In Gates, the Bloomingdale Police Department
had obtained a warrant to permit a search of an automobile and
residence, based upon an anonymous letter and an investigator's
affidavit stating that Gates had acted in conformity with the conduct described in the anonymous tipster's letter.389 Upon prosecution for possession of the contraband found in the search, the trial
court granted the defendant's motion to suppress the evidence on
383. O'Shay v. Littleton, 414 U.S. 488, 496 (1974).
384. See 401 U.S. at 45.
385. Materials about equitable restraint are contained in HART
supra note 1, at 1009-50.
386. See Illinois v. Gates, 103 S. Ct. 2317 (1983).
387.
Id.
388.
389.
People v. Gates, 85 M11.
2d 376, 423 N.E.2d 887 (1981).
Id. at -, 423 N.E.2d at 888-89.
AND WECHSLER,
19841
SCHIZOID FEDERALISM
fourth amendment grounds. 390 In affirming, the Supreme Court of
Illinois considered both the fourth amendment to the United
States Constitution and the Illinois Constitution, both of which re391
quired probable cause for the issuance of a warrant and search.
The Illinois Supreme Court concluded that there had been no
probable cause,392 applying the tests for anonymous tips as a basis
for finding probable cause, 393 and concluded that those tests had
394
not been satisfied.
The Supreme Court of the United States, in an opinion by Justice Rehnquist, apologized for requiring the parties to brief and argue the question whether the exclusionary rule should be modified
to include a good faith exception. 395 Several reasons were
presented for the Court's turnaround. Pointing first to the jurisdictional statute for Supreme Court review, 396 Justice Rehnquist concluded that the question of a good faith exception to the
exclusionary rule had not been "pressed or passed upon" by the
Illinois Supreme Court. 397 Therefore, the Supreme Court might
lack jurisdictionto deal with that issue.398 However, Justice Rehnquist expressed doubt that the "pressed and passed upon" rule
was jurisdictional; he regarded the "pressed or passed upon" rule
as a "prudential restriction" on the exercise of Supreme Court appellate jurisdiction. 399 He concluded this part of the opinion:
Likewise, due regard for the appropriate relationship of
this court to state courts, . . . demands that those courts
be given an opportunity to consider the constitutionality
of the actions of state officials, and, equally important, proposed changes in existing remedies for unconstitutional
actions. Finally, by requiring that the State first argue to
the state courts that the federal exclusionary rule should
be modified, we permit a state court, even if it agrees with
390. Id. at -, 423 N.E.2d at 889.
391. Id.
392. Id. at -, 423 N.E.2d at 893.
393. Id. at -, 423 N.E.2d at 889-92 (citing Aguilar v. Texas, 378 U.S. 108 (1964);
Spinelli v. United States, 393 U.S. 410 (1969)).
394. Id. at -, 423 N.E.2d at 893. The Aguilar-Spinellitest required first, the basis
of knowledge prong-that an anonymous tip include information that apprises the
magistrate of the informant's basis for concluding that the contraband is where it is
claimed to be; and, second, that the affiant inform the magistrate of his basis for
believing that the informant is credible. See 378 U.S. at 114; 393 U.S. at 415.
395. Illinois v. Gates, 103 S. Ct. 2317 (1983). Chief Justice Burger and Justices
Blackman and O'Connor joined Justice Rehnquist's opinion. Id&Justice White concurred to form the majority. Id. at 2336.
396. Id. at 2321 (citing 28 U.S.C. § 1257(3)).
397. Id. at 2322.
398. Id.
399. Id.
CREIGHTON LAW REVIEW
[Vol. 18
the state as a matter of federal law, to rest its decision on
. Illinois,
an adequate and independent state ground.
for example, adopted an exclusionary rule as early as 1923,
...and might adhere to its view even if it thought we
would conclude that the federal rule should be modified.
In short the reasons supporting our refusal to hear federal
claims not raised in state court apply with equal force to
the state's failure to challenge the availability of a wellsettled federal remedy. Whether the "not pressed or
.
passed upon below rule" is jurisdictional,
40 0
tial, . . . we need not decide.
or pruden-
Justice Rehnquist maintained that the mere fact that the fourth
amendment right was contested did not raise the issue of a good
faith exception and was not subsumed in the fourth amendment
issue.401
If the first part of the opinion was effusive in its obeisance to
the delicate relationship between the Supreme Court of the United
States and the Illinois court system, the second part came down
upon the state court like a sledge hammer. The Court addressed
the finding of the Illinois courts that there was an absence of probable cause to justify the issuance of the warrant. 402 While agreeing
with the Illinois Supreme Court that the anonymous tip standing
alone would not provide a basis for a finding of probable cause, the
majority disagreed with the conclusion that there was no probable
cause. 4° 3 It applied a test in the case of anonymous tips differing
from that announced previously.4°4 Justice Rehnquist announced
what he referred to as a "totality of the circumstances" approach to
determine the issue of probable cause in these situations 40 5 and
then did not see any contradiction inherent in his statement that
"we have repeatedly said that after the fact scrutiny by courts of
the sufficiency of an affidavit should not take the form of de novo
review."'4°6 As if the scope of jurisdiction of a state court was ap40 7
propriate business for the Supreme Court of the United States.
Instead of remanding for clarification, the Supreme Court re400. Id. at 2323.
401. Id. at 2323-24.
402. Id.
403. Id. at 2335-36.
404. See note 394 supra for a summary of the Aguilar-Spinelli test. The
Supreme Court of Illinois had applied the two-prong test of Aguilar-Spinelli. 103 S.
Ct. at 2327.
405. Id. at 2332.
406. Id. at 2331.
407. Apparently, state appellate courts must give deference to the decision of a
magistrate to issue a warrant as a matter of federal law. Massachusetts v. Upton,
104 S. Ct. 2085, 2086 (1984).
1984]
SCHIZOID FEDERALISM
versed the decision of the Illinois Supreme Court. 40 8 The Court
disregarded the statement of the Illinois court that "[b]oth the
Constitution of the United States and the Constitution of Illinois
provide assurance against unreasonable search and seizure of person and property."' 4 9 While it was true that Aguilar, Spinelli, and
other federal cases were extensively discussed in the state court
opinion, some state cases were cited. 4 10 Furthermore, failure to
develop a state law analysis was only natural in light of the Illinois
court's understanding of federal law. If the federal exclusionary
rule paralleled that of the state, no necessity or reason existed for
developing state law separately in the opinion. The Gates majority
reversed the Illinois court on a question of fact, i.e., probable
cause, without even pausing to consider whether under all of the
foregoing circumstances an adequate and independent state
ground existed.
Justice White concurred but acknowledged that the majority
did not follow its own prudential advice when it revised the Aguilar-Spinelli tests for probable cause with respect to anonymous
tips. 41
Three Justices joined Justice Stevens' dissent in Gates which
stated:
When the court discusses the merits, however, it attaches
no weight to the conclusions of the Circuit Judge of Du
Page County, Illinois, of the three judges of the second district of the Illinois Appellate Court, or of the five justices of
the Illinois Supreme Court, all of whom concluded that the
warrant was not based on probable cause. In a fact-bound
inquiry of this sort, the judgment of three levels of state
courts, all of whom are better able to evaluate the probable reliability of anonymous informants in Bloomingdale,
Illinois, a presumption of accuracy. I would simply vacate
the judgment of the Illinois Supreme Court and remand
the case for reconsideration in the light of our intervening
412
decision in United States v. Ross.
Unless one is satisfied with principles of federalism which vary
dependent upon the particular interest that some Justices have in
reforming state criminal procedure, Fair Assessment, Pennhurst,
408. 103 S. Ct. at 2336.
409. 85 111. 2d at -, 423 N.E.2d at 889. See also U.S. CONST. amend. iv; ILL. CONST.
art. I, § 6.
410. See id. at -, 423 N.E.2d at 891-93.
411. 103 S. Ct. at 2336. (White, J., concurring).
412. Id. at 2360 (Stevens, J., dissenting). Justice Steven's dissent was joined by
Justices Brennan and Marshall. Id.
CREIGHTON LAW REVIEW
[Vol. 18
Pullman, Younger, Gates, and Long portray a mock federalism devoid of content.
D.
THE UNACKNOWLEDGED FEDERALISM ANCESTRY OF LONG:
413
HENRY AND FAy
Two venerable cases that deviated expansively and exceptionally from the norms of federalism, Henry v. Mississippi4 14 and Fay
v. Noia,415 shed light on the federalism of Long. Henry v. Mississippi is the jurisprudential twin of Long. In Henry, the Supreme
Court deviated from precedent by applying a different test to the
adequacy of state grounds when those grounds are procedural
rather than substantive. The test adopted required a Supreme
Court determination whether the state procedural device served a
"legitimate state interest. '4 16 If it did, the Court would then determine whether that interest "may have been substantially
served."4 17 If substantially served and if there had been no intentional waiver of the opportunity to raise the federal point, the
4 18
Supreme Court could review the federal question.
Henry was a case that cried for Supreme Court intervention. A
civil rights leader appeared to have been a target of the police, the
prosecution, and the Mississipi court system. Coincidentally, as in
Long, the constitutional issue Henry sought to raise was an unlawful search.4 19 The state had denied the federal right Henry sought
to assert.420 Professor Sandalow observed the jurisdictional implications of what the Court had done in Henry.
That decision, if I read it correctly, strongly intimates that
at least five Justices are prepared to undertake - perhaps
have already undertaken - a major reassessment of the
Court's jurisdiction to review judgments of state courts,
the first such reassessment since the decision in Murdock
v. City of Memphis exactly 90 years earlier. 421
If Henry was the first reassessment of the Court's jurisdiction
since Murdock v. City of Memphis,422 Long must be the second.
413. See also Dombrowski v. Pfister, 380 U.S. 479 (1965).
414. 379 U.S. 443 (1965).
415. 372 U.S. 391 (1963).
416. Id. at 447-48.
417. Id. at 448.
418. See id. at 449-50.
419. Id. at 449.
420. Id. at 446.
421. Sandalow, Henry v. Mississippi and the Adequate State Ground: Proposals
For a Revised Doctrine, 1965 Sup. CT. REV. 187, 188 (footnote and citation omitted)
(1965).
422. 87 U.S. (20 Wall.) 590 (1875).
19841
SCHIZOID FEDERALISM
One might say of Long as Professor Sandalow said of Henry when
he noted that the significance of the case was "its intimation that
the majority of the Court apparently [is] prepared to redefine the
adequate state ground doctrine with a view toward substantial restriction of the situations in which a non-federal ground of decision
will be adequate to preclude review of the federal questions
'423
presented.
Despite predictions of significant impact, the influence of
Henry on the scope of Supreme Court review of state decisions has
been minimal. 424 The probability is that Long is destined for the
same precedential dust bin as Henry in terms of its deviation from
traditional jurisdictional doctrine. The theoretical underpinning of
both is flimsy, the applicability of the test announced too
impracticable.
Fay v. Noia425 is another kin of Long. There the defendant
was sentenced to death and was unable to raise a valid constitutional argument while a co-defendant in a joint killing prosecution
426
went free on the same federal ground.
Fay, like Henry, involved a state procedural default, but the
adequacy and independence of this state law ground failed to
block the remedial effectiveness of habeas corpus in federal
court. 427 In Fay, Justice Brennan noted the purposes of adequate
and independent state ground doctrine, that is, to avoid advisory
opinions and to respect the federal system. 428 He observed that
since the federal court could set the defendant free, an advisory
opinion obstacle to jurisdiction did not exist.429 Likewise, a balancing of state and federal interests weighed in favor of federal
430
court review of the federal issue.
In connection with Fay v. Noia Professor Sandalow wrote:
The distinctions between habeas corpus proceedings and
direct review are largely illusory. Even if I have overstated the similarities of the two situations, however, it
seems plain that the Court's decision in Fay v. Noia
severly undercuts its traditional deference to state procedural grounds that foreclose consideration of federal
claims. The subordination of federal rights to state procedure on direct review cannot be reconciled with the para423.
424.
425.
426.
427.
428.
429.
430.
Sandalow, supra note 421, at 189.
See HART AND WECHSLER, supra note 1, at 558.
372 U.S. 391 (1963).
Id. at 395-96.
See id. at 428-32.
Id. at 430 n.40.
Id. at 430-31.
Id. at 431.
CREIGHTON LAW REVIEW
[Vol. 18
given them in habeas corpus promount position
43 1
ceedings.
Although Professor Sandalow found that Fay v. Noia undermined
the limitation based upon adequacy of state grounds, when the
state grounds were procedural, thereby justifying the Henry decision which followed two years later, he also maintained that any
was
distinction between substance and procedure in this context
433
not justifiable.4 32 Fay too has become something of a relic.
It is ironic to regard Long, which is reflective of a law and order orientation, as being in the same activist conceptual framework as Henry and Fay, which tilted federalism towards protection
of defendants' constitutional rights. But these cases share a perception of the role of federal courts as responsible for correcting
incorrect state court interpretations of constitutionally protected
rights, even if such action subordinates important state interests to
interests that the Court perceives as federal. If in Henry and Fay
the Court was perhaps too fervent, at least it was so in its support
of federal rights denied; while in Long, the Court was too feverish
in its denigration of rights that had been granted by the state. It
requires no special insight to attribute the Court's activism to its
penchant for combating crime in America by narrowing the consti434
tutional rights of the accused.
IV.
THE LONG PROGNOSIS: FLORIDA V. CASAL,
CALIFORNIA V. RAMOS AND BEYOND
It is illuminating to assay the Court's treatment of adequate
and independent state grounds doctrine in one case decided just
before and two following Long. In combination with Long, they
leave a great deal of uncertainty as to the present contours of the
doctrine.
Less than three weeks prior to the decision in Long, in Florida
v. Casal,435 the Court, in a per curiam opinion, dismissed certiorari
as improvidently granted on the ground that the decision of the
Florida Supreme Court rested on adequate and independent state
grounds.436 In Casal the supreme court of Florida had held that a
431. Sandalow, supra note 421, at 234. See also Reitz, FederalHabeas Corpus,74
HARv. L. REv. 315 (1961).
432. Sandalow, supra note 421, at 234.
433. See Wainright v. Sykes, 433 U.S. 72 (1977); Stone v. Powell, 428 U.S. 465
(1976).
434. See generally Y. KAMISAR, THE BURGER CoURT 68-91 (1983).
435. 103 S. Ct. 3100 (1983).
436. Id. at 3100. In an institutional affront to the Florida Supreme Court, Chief
Justice Burger stated.
SCHIZOID FEDERALISM
19841
search of a boat without a warrant and without probable cause required the suppression of the evidence that was seized during the
search. 437 Although there was ambiguity as to whether the Florida
Supreme Court relied exclusively on state law, federal law, or a
combination thereof, federal law seemed to predominate. 438 Despite this intertwining of federal and state law, the Court found
439
that adequate and independent state grounds precluded review.
Californiav. Ramos4' 0 which came after and cited Long,441 is a
case in which the California Supreme Court held that an instruction in a murder case alluding to the power of the governor to commute a life sentence, the so-called Briggs Instruction, was
irrelevant and improper. 442 The state court opinion was replete
with policy and jurisdictional reasons for the United States
Supreme Court to deny certiorari. The problem of a jury instruction concerning commutation of sentence by the governor had
been dealt with extensively by the California Supreme Court in
People v. Morse," 3 where such comment had been held prejudicially erroneous as a matter of state law."" In Ramos the Califor-
nia court had relied heavily on People v. Morse." 5 The California
Supreme Court had also considered a substantial body of state
court jurisprudence condemning comments by a judge or prosecuI question that anything in the language of either the Fourth Amendment
of the United States Constitution or Art. I, § 12 of the Florida Constitution
required suppression of the drugs as evidence ....
[T] he people of Florida
have since shown an acute awareness of the means to prevent such inconsistent interpretations of the two constitutional provisions. . . . But when
state courts interpret state law to require more than the federal constitution requires, the citizens of the state must be aware that they have the
power to amend state law to insure rational law enforcement. The people
of Florida have now done so with respect to Art. I, § 12 of the State Constitution; they have it within their power to do so with respect to Florida statute § 327.56.
Id. at 3101. Such is the state of "our Federalism" in the mind of our Chief Justice.
437. State v. Casal, 410 So. 2d 152, 156 (Fla. 1982). The Florida court cited: U.S.
CONST. amend. IV; Delaware v. Prouse, 440 U.S. 648 (1979); United States v. Martinez-Fuerte, 428 U.S. 543 (1976); United States v. Biswell, 406 U.S. 911 (1972); Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970). State v. Smith, 233 So. 2d
396 (Fla. 1970), the key state case of the majority, relied on principles of federal law.
410 So. 2d at 154-56.
438. See 410 So. 2d at 154-56.
439. 103 S. Ct. at 3100.
440. 103 S. Ct. 3446 (1983).
441. Id. at 3451.
442. Id. at 3460. The California court held that the instruction diverted the jury's
attention to a speculative and irrelevant matter and misled the jury into believing
that the governor could not pardon anyone sentenced to death. People v. Ramos, 30
Cal. 3d 553, -, 639 P. 2d 908 933-36, 180 Cal. Rptr. 266, - (1982).
443. 60 Cal. 2d 631, 388 P.2d 33, 36 Cal. Rptr. 201 (1964).
444.
Id. at -,
388 P.2d at 40-49, 36 Cal. Rptr. at -.
445. See 30 Cal. 3d at
-,
639 P.2d at 930-33, 180 Cal. Rptr. at 288.
CREIGHTON LAW REVIEW
[Vol. 18
tor regarding the possibility of pardon or parole." 6 The California
Supreme Court had also ruled that the trial court erred in admitting testimony of the defendant's psychiatrist concerning the defendant's propensity to commit future crimes." 7 The state court
opinion had concluded:
Surely, if the state of California exacts the death penalty,
it has no license to take a human life based upon an improper and unconstitutional verdict of death. A human
life cannot be balanced against the costs to the state of
conducting a fair trial. If the state is to execute an individual, it must not do so on the basis of a verdict of death
tainted by a misleading, deceptive, unconstitutional instruction, but upon a proceeding that clearly complies
with due process of law." 8
Despite the additional factor that the supreme court of California had remanded for a new penalty hearing which raised issues of
finality, the Supreme Court of the United States granted certiorari
and reversed in a five to four decision, 449 holding that under federal law an instruction about possible commutation of a life sentence was permissible. 450 Although the Supreme Court saw the
state court's ruling on psychiatrist's testimony as a "possible" adequate and independent state ground, it relied on Michigan v. Long
for the principle that this possibility did 1not foreclose the proper
45
exercise of Supreme Court jurisdiction.
In Ramos, the California Supreme Court attempted to smooth
a wrinkle on the fabric of a pervasive, complicated, and developing
state criminal procedure. 452 The decision in the state court rested
upon an evidentiary and an instruction ruling based ambiguously
454
45 3
The federal right was upheld.
on state and federal grounds.
All of this did not stop Supreme Court intrusion. 455 Once again the
Supreme Court of the United States upheld the prosecutor at the
446. Id. at -, 639 P.2d at 930-32, 180 Cal. Rptr. at 289.
447. Id. at -, 639 P.2d at 934, 180 Cal. Rptr. at 284.
448. Id. at -, 639 P.2d at 936, 180 Cal. Rptr. at 294 (emphasis added).
449. 103 S. Ct. at 3460.
450. Id. at 3453-57. The Court cited Beck v. Alabama, 447 U.S. 625 (1980); Gardner v. Florida, 430 U.S. 349 (1977); and, Jurek v. Texas, 428 U.S. 262 (1976).
451. 103 S. Ct. at 3450 n.6.
452. See 30 Cal. 3d at -, 639 P.2d at 915-36, 180 Cal. Rptr. at 272-294.
453. Id. at -, 639 P.2d at 920-36, 180 Cal. Rptr. at 282-294.
454. Id. at -, 639 P.2d at 936, 180 Cal. Rptr. at 294.
455. See 103 S. Ct. at 3446. Justice Stevens summed up his difference with the
majority by asking: "Why... with all due respect, did not the Justices who voted
to grant certiorari in this case allow the wisdom of state judges to prevail in California, especially when they have taken a position consistent with those of state
judges in [other states] .. " Id. at 3468 (Stevens, J., dissenting) (citations
omitted).
19841
SCHIZOID FEDERALISM
expense of the authority of the state supreme court.456 The
supreme court of California was not given any opportunity to dis457
claim federal law reliance.
The most recent indication of the status of adequate and independent state ground theory and the effect of Long surfaced in a
per curiam opinion summarily reversing a Florida Supreme Court
judgment in the 1983-84 Term. 458 Justices Stevens, Brennan, and
45 9
Marshall dissented.
As in Long, the state court in Florida v. Meyers apparently
erred in relying upon the fourth amendment to reverse a conviction for sexual battery.460 An independent state ground urged by
the respondent was the Florida Court of Appeals' holding that the
respondent had been unduly restricted in cross examination in vi461
olation of state law.
Simultaneously granting certiorari and addressing the merits,
without briefs or argument the Court reversed the Florida Court of
4 62
Appeals judgment which had granted a new trial.
Not even mentioning the adequacy of the Florida Supreme
Court's discretionary denial of review, a footnote to the per curiam
opinion observes with prescience: "First it is highly questionable
whether the Court of Appeals would have reversed the conviction
had it not reversed the trial court's ruling (erroneously) on the
456. See id. at 3453-60.
457. See id. After the debacle of Gates in the 1982 Term, the Supreme Court
granted certiorari in Colorado v. Quintero, 103 S. Ct. 3535 (1983) with the obvious
intention of addressing the limits of the exclusionary rule. The decision of the Colorado Supreme Court in this case affirmed the suppression of evidence by the trial
judge, relying upon a spate of state cases defining probable cause. People v. Quintero -, Colo. -, -, 657 P.2d 948, 950-51 (1983). Although the Colorado court refused
to consider a good faith exception to the exclusionary rule in light of Supreme
Court refusals to recognize such exception, it did note that its own legislature had
created such an exception, but only as to mistakes of fact, not mistakes of law. Id.
at -, 657 P.2d at 950-51. After discussing the difference between the state statutory
evidentiary rule and the view Justice White took of good faith in Stone v. Powell,
the Colorado court found that the arresting officers in Quinterohad made a mistake
of law as to the legality of an arrest based upon a mere suspicion of commission of a
crime. Id. State law was controlling though federal law was also considered. Id.
The United States Supreme Court accepted certiorari notwithstanding the lack
of finality of the Quintero case, the reliance upon state law for decision, the ambiguousness of the ground for decisions, the usefulness of a state clarification, the pervasiveness of the Colorado scheme, and the very local nature of the criminal
process. See 103 S.Ct. at 3535. Surprisingly, the Supreme Court dismissed prior to
a decision on the merits; the defendant had died while the case was pending.
458. Florida v. Meyers, 104 S. Ct. 1852 (1984).
459. Id. at 1853.
460. Id.
461. Id. at n.*.
462. Id. at 1853.
CREIGHTON LAW REVIEW
[Vol. 18
suppression motion. '463
The Court went on to state: "Moreover, even if the cross-examination ruling did provide an independent state grounds for reversal, we would still be empowered to review the constitutional
'464
issue raised by the petitioner."
Exhibiting the same focus on the avoidance of advisory opinion rationale referred to in Long, and citing Long, the Court concluded that the suppression ruling will affect a new trial, even if
the court of appeals insists on its original reversal of the conviction.46 5 Additionally, the Court noted that the brief discussion of
the cross examination issue was hardly a clear indication that the
cross examination ruling provided an adequate and independent
466
basis for reversal of the conviction.
Justice Stevens, more vigorously than ever, challenged the per
curiam decision on several fronts. 467 There was no supervisory basis for the intrusion; second guessing of state judges when they
erroneously uphold fourth amendment claims is inconsistent with
the earlier Supreme Court view that state courts should determine
fourth amendment claims, when those claims were denied erroneously; the encouragement of prosecutorial appeals will enlarge the
already bloated Supreme Court docket; and finally, the recent
Court has arbitrarily shaped its discretionary jurisdiction in aid of
a war on crime. 468 Justice Stevens' point is emphasized by a statistical recount of summary reversal since the 1981 Term, all in favor
4 69
of the prosecutor and none in favor of a defendant.
V.
CONCLUSION
The analysis of the adequate and independent state ground issue by the majority in Long is so unpersuasive as to belie any intent at serious interpretation. Considered with Gates, Neville,
Brown, Ramos, and Meyers the only unifying characteristic of the
jurisdiction appears to be a pro prosecution obsession, particularly
with respect to search and seizure policy. Certainly federalism
does not fare well.
Adequate and independent state ground doctrine based upon
avoidance of an advisory opinion is an insubstantial jurisdictional
463.
Id. at n.*.
464.
Id.
465. Id. n.*.
466.
Id.
467. Id. at 1854 (Stevens, J., dissenting, and joined by Brennan, J., and Marshall,
J.).
468. Id.
469. Id.
19841
SCHIZOID FEDERALISM
principle especially when the grounds for decision are ambiguous.
The focus on "jurisdiction" enabled the Court in Long to address
federalism concerns in a fictive manner avoiding a realistic appraisal of federalism policies. Recognition that discretion and federalism are at the heart of adequate and independent state ground
doctrine ought to engender a more intensive, honest evaluation of
state and federal interests.
There is difficulty in assessing the permissible limits of
Supreme Court jurisdiction. Historically Congress has been willing to cryptically describe the appellate jurisdiction of the Court.
The federal district courts have sometimes intruded into state governmental functions; Congress has curtailed lower federal court jurisdiction in the interest of a proper balance between the federal
judiciary and state sovereignty. 470 This expression of a congressional philosophy of federalism should apply to Supreme Court review of state court decisions as well as to the lower federal courts.
One could infer from the absence of more explicit statutory guidelines for the exercise of Supreme Court appellate jurisdiction a
congressional reliance on traditional Supreme Court reluctance to
exercise jurisdiction in cases like Long.
The purpose of Supreme Court jurisdiction under 28 U.S.C.
§ 1257(3) was to free state legislatures to establish social programs
unbound by misguided state court notions of constitutional law,
not to enable the Supreme Court to prematurely address federal
questions. There is no congressional manifestation of an intent to
expand Supreme Court appellate jurisdiction for the purpose of
enabling the Supreme Court to achieve uniform state court interpretations of the Bill of Rights, under circumstances where state
law might well have controlled the determination of the case and
no federal law was violated.
Federalism requires the Supreme Court to decline jurisdiction
over a federal constitutional question when no constitutional right
has been denied and the state court apparently rests its opinion on
state law grounds. If warranted by an identified federal interest,
clarification is preferable to reversal in ambiguous cases. In recent
years the Supreme Court has been unable to restrain its enthusiasm for reform of state criminal procedure. Extremism in the defense of the police has prevailed over a restrained jurisdiction.
When federal courts have been too ardent in the pursuit of a federal cause, Congress has interjected its prerogative to restrict jurisdiction. Several approaches are offered for consideration.
470.
See notes 295-314 and accompanying text supra.
CREIGHTON LAW REVIEW
[Vol. 18
A.
Legislative Proposalsfor Limiting the Jurisdictionof the
Supreme Court in Cases Where a Federal Right Has
Been Upheld
1.
Eliminating28 U.S.C. § 1257(3) Jurisdiction
One suggestion is to legislatively remove appellate jurisdiction
of the Supreme Court whenever the claim of federal right is upheld by a state court-that is, repeal 28 U.S.C. § 1257(3). The difficulty with this approach is that it fails to take into account the
limited legitimate federal interest that resulted in the enactment
of the Judiciary Act of 1914. On the other hand, the social and
political focus which resulted in its passage is no longer extant.
2.
Limited Review in Criminal Cases
A less drastic approach would partially remove such jurisdiction in cases where the respondent was a defendant in a state
criminal proceeding. In terms of state sovereign interest, the
uniquely local nature of a criminal proceeding under state law puts
it in a similar category as state taxation, injunctions against state
judicial proceedings, rate regulation, and suits against state officials. Such a limitation would fit within the historical role of Congress in preventing federal courts from overreaching.
3.
Cases Involving Ambiguous Grounds For Decision
Congress might directly address the problem of the unclear
ground for decision. While admittedly difficult to define legislatively, a presumption that jurisdiction is lacking if not clearly evident whenever a claimed federal right has been upheld serves the
purpose of respecting state independence while in no way endangering federal rights or policies. It would fit within the traditional
restrained view of federal court jurisdiction. While one might have
thought until recently that precedent and judicial restraint made
such legislation unnecessary, the deviation from policy and precedent set forth in Justice O'Connor's opinion in Long counsels
otherwise.
4.
Cases Involving State Court Reliance Upon PriorState Cases
One additional variable may require congressional attention:
cases involving state court reliance on prior state decisions which
may in turn have relied upon federal law for guidance. Under such
circumstances the prior state decision has become a part of the
state jurisprudence. Notwithstanding its illegitimate federal ancestry, the subsequent decision resting thereon should be pre-
1984]
SCHIZOID FEDERALISM
sumed to be a manifestation of independent state law. If the state
interpretation was erroneous in providing greater rights than the
Constitution mandates, the people of the state can correct that.
The current approach of searching state precedent to see if it relied on federal law involves too much uncertainty as well as unseemly second guessing of the state courts.
5. Seeking ClarificationFrom State Courts
Justice O'Connor cast aspersion on the technique of seeking
state court clarification whenever the grounds of decision are un47
clear. Herb v. Pitcairn
and Minnesota v. National Tea 47 2 were
expressly overruled in this regard. Congress ought to hold hearings, inviting members of the state supreme courts to offer evidence of their preference. In that way Congress can rationally
determine whether legislation is needed to require the Supreme
Court to seek clarification in such cases.
EPILOGUE: THE LAST DAY
On the last day of its 1983-84 Term, the Supreme Court attacked the fourth amendment "voraciously. '473 Adequate and independent state ground theory was implicitly but not directly
affected. Nevertheless, two cases bear specific mention because
they intensely illumine the attitude of the Court's majority toward
federalism and institutional restraint.
The Supreme Court majority satisfied its urge to carve a good
faith exception to the exclusionary rule in Massachusettsv. Sheppard.474 No doubt the Supreme Court had jurisdiction to review
the exclusionary rule within the meaning of the fourth amendment
inasmuch as the Supreme Judicial Court of Massachusetts explicitly rested its decision on federal law and not the Massachusetts
47 5
Constitution.
Nevertheless, a devotee to federalism might ponder whether
federalism was well served by passing on the federal question at
this stage of the proceeding.
On remand, the supreme judicial court must face the issue of
the exclusionary rule under Massachusetts law. That court did de471. 324 U.S. 117 (1945).
472. 309 U.S. 551 (1940).
473. See New Jersey v. T.L.O., 104 S. Ct. 3583 (1984). Justice Stevens dissenting
said: "Of late, the Court has acquired a voracious appetite for judicial activism in
its Fourth Amendment jurisprudence, at least when it comes to restricting the constitutional rights of the citizen." Id. at 3584.
474. See 104 S. Ct. 3424, 3428 (1984).
475. Commonwealth v. Sheppard, 387 Mass. 488 -, 441 N.E.2d 725, 730-36 (1982).
CREIGHTON LAW REVIEW
[Vol. 18
cide that the warrant was defective under Massachusetts law by
failing to list the items to be seized. 476 Four justices of seven took
a dim view of the exclusionary rule. However, in Selectmen v. Municipal Court of the City of Boston,477 an exclusionary rule had
been applied derived clearly from article 14 of the Massachusetts
Constitution.478 This case involved an illegal search of the home of
a police officer and admissibility of evidence at an administrative
hearing. 479 A state exclusionary rule may yet free Sheppard.
Irrespective of whether the Massachusetts Supreme Judicial
Court extracts an exclusionary rule from the Massachusetts Constitution, some state courts will assert state constitutional protections more expansively than the United States Constitution
requires. One can expect a patchwork quilt of criminal procedure
whereby the rights of defendants in one state will be different than
rights of defendants in others. 480 The effect on society of a nonuniform pattern of rights of defendants is not clear.
In New Jersey v. T.L.O.481 the question presented to the
Supreme Court by the appellant, New Jersey, was whether the exclusionary rule barred the use at a juvenile delinquency hearing of
evidence illegally obtained by school officials. Rather than address
the question raised, the Supreme Court ordered the parties to
brief and argue a question not in dispute before the court: whether
482
the seizure of the evidence violated the fourth amendment.
This is not an adequate and independent state grounds case.
Since federalism and institutional policy are at the heart of adequate and independent state ground doctrine, the approach to
Supreme Court jurisdiction in New Jersey v. T.L.O. corroborates
and portends the slim restraining power of the doctrine. The New
Jersey Supreme Court had cited a number of state cases and several state statutes. 483 The New Jersey Supreme Court concluded:
"We are satisfied that the legislative, scheme for public education
in New Jersey contemplates a narrow band of administrative
searches to achieve educational purposes .... In the long run, respect for the law is the most cherished civic virtue that schools can
476. Id. at -, 441 N.E.2d at 732.
477. 373 Mass. 783, 369 N.E.2d 1145 (1977), cited in 387 Mass. at -, 441 N.E.2d at
736 n.22.
478. 373 Mass. at -, 369 N.E.2d at 1147.
479. Id. at -, 369 N.E.2d at 1146.
480. See Brannan, State Constitutions and the Protectionof Individual Rights,
90 HARv. L. REV. 489, 495-504 (1977).
481. 104 S. Ct. 3583 (1984).
482. Id. at 3583.
483. State v. Engerud, 94 N.J. 331, -, 463 A.2d 934, 940-44 (1983).
1984]
SCHIZOID FEDERALISM
impact. '484 The court concluded that the evidence should be
suppressed. 485
The State of New Jersey did not contest but accepted the illegality of the search. This is an adequate and independent state
ground because it rests on a state policy, if not law. New Jersey
can continue to regard the search as illegal notwithstanding any
determination by the Supreme Court that the search was not prohibited by the fourth amendment. In the absence of New Jersey
opposition to the illegality, the "nonadversarial context" of the federal issue is closer to being an advisory opinion than the ordinary
adequate and independent state grounds case wherein the parties
at least contest the federal issue.
Operation of schools, state criminal procedure, a state
supreme court opinion upholding a claim of federal right in reliance on a mixture of federal and state law, and a federal question
not presented to it by the parties constitute the gruel for this conservative Supreme Court. A schizophrenic federalism requires a
congressional remedy. If Congress acts to correct the expansion of
jurisdiction announced in Long there would not be a serious question as to its ability to do so. This would not be a case of Congress
contracting jurisdiction for an unconstitutional purpose, but
rather, as the ultimate preserver of federalism, an appropriate con6
gressional response to judicial activism.4
484. Id. at -, 463 A.2d at 940-42.
485. Id. 463 A.2d at 944.
486. The ultimate definition of the scope of the appellate jurisdiction of the
Supreme Court is determined by Congress. U.S. CONST. art. Il, § 2. See generally
HART AND WECHSLER, supra note 1, at 106-08. Even if there are limitations to Congress' power under the exceptions clause, this would not be one. See Van Alstyne,
A Critical Guide to Ex ParteMcCardle,15 ARIz. L. REv. 229 (1973); Brant, Appellate
Jurisdiction"CongressionalAbuses of the Exceptions Clause, 53 OR. L. REv. 3 (1973).