FEDERAL COURTS OUTLINE Prof.

Charles Alan Wright Fall 1997

This outline is e-mailware ! While there is no cost for using the outline, you must drop me a line at dfalgoust@mail.utexas.edu to tell me what you think, if it helped you, etc; itd also be nice if you dropped by my web page at http://www.geocities.com/NapaValley/3578/ and signed my guest book. Feel free to redistribute this outline unmodified to anyone who may find it useful. This outline is provided as is and I make no promises as to its accuracy (it worked for me, your mileage may vary). Good Luck on exams! Damien Falgoust University of Texas School of Law

I.

Introduction A. Theres not much to say; CAW pretty much jumps in head-first into the material. It was a great honor to have taken this, CAWs last Fed Courts class before retirement. B. Abbreviations used: 1. 2. 3. 4. CAW = Charles Alan Wright SMJ = Subject Matter Jurisdiction; FQ = Federal Question; DJ = Declaratory Judgment; AIC = Amount in Controversy FDJA = Federal Declaratory Judgment Act; FRCP = Federal Rules of Civil Procedure Also note: All statutes are from Title 28; Rules are from the FRCP

II. Judicial Power over Cases and Controversies A. Two Keys Necessary for Federal Jurisdiction 1. CAW: Federal jurisdiction is like a safe-deposit box: you need two keys to open the courthouse door. a) Key #1: Constitutional (1) A case can only go to a federal court if the constitution permits a federal court to hear it. (2) Hodgson v. Bowerbank the constitution does not permit a suit between aliens only between a citizen and an alien (parties had to allege citizenship to get jurisdiction). The parties had a congressional key (the Judiciary Act), but not the constitutional key. b) Key #2: Congressional (1) Congress may limit the jurisdiction of the federal courts by statute, but may not expand it beyond constitutional scope. In other words, the Constitution draws an outer limit beyond which Congress cannot go, but Congress may make the limit more restrictive
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(2) Sheldon v. Sill federal statute prevents assignee of note from suing if assignor cannot also sue; Court says this is acceptable even if assignee would constitutionally be able to sue absent the statute. 2. Limits on Congress ability to restrict jurisdiction a) Various academics have proposed theories limiting Congressional control; note however that none have ever been approved by a court. They include: (1) Theory that Congress cannot do anything that would obstruct judicial review; (2) Two-tier theory all cases Congress must give full constitutional jurisdiction; controversies (no all) Congress may restrict b) CAW: the only likely genuine limit is that Congress cant make jurisdiction one-sided, e.g., Congress cant say there is only jurisdiction in an abortion case if the plaintiff is pro-life. B. Subject Matter Jurisdiction (SMJ) Not Waivable 1. SMJ is always open it cannot be waived by either party, and lack of SMJ can be invoked by any party or by the court at any time even on appeal to dismiss the suit (Knee v. Chemical Leaman Tank Lines) a) Why is this so? In a nutshell, federalism the federal courts are trying to avoid stepping on the state courts toes

b) Also note Firestone, holding that jurisdictional decisions cannot be made prospective only it must result in dismissal (1) CAW: Why should this be? The courts make other decisions prospective (as in Miranda, to prevent flood of prisoners appeals) 2. ALI proposals to alter the non-waivability rule a) Proposal #1: Require jurisdiction to be objected to before trial (1) Problem: could extend jurisdiction beyond constitutional scope (easier case to make if jurisdiction limit that fails to be objected to is statutory rather than constitutional) b) Proposal #2: Force the states to hold their statute of limitations open for 60 days if dismissed at federal level for want of SMJ (1) Is this constitutional? Who knows!?! (Texas statute already does this) C. Case or Controversy Required 1. Justiciability a) Justiciability basically involves determining if the case presents the right kind of issue for the court to hear
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(1) Distinguished from jurisdiction: Jurisdiction asks if the court can hear the case; justiciability asks if there is a judicial remedy b) Lack of justiciability is typically found if the case presents a political question for another branch of the federal government (1) Baker v. Carr Tennessee apportionment challenged under equal protection; Court asserts justiciability because political question is only an issue if the question is one for a co-equal branch of the federal government (2) The Baker tests for justiciability (if answer is yes to any, then there is a political question): (a) Textually demonstrable constitutional commitment of the issue to a coordinate branch of government (b) Lack of judicially discoverable and manageable standards for resolving it (c) Impossibility of deciding the issue without making a policy decision of a kind clearly for nonjudicial discretion (d) Impossibility of the court undertaking independent resolution without expressing a lack of respect due to coordinate branches (e) Unusual need for unquestioning adherence to a political decision already made (f) Potential for embarrassment from multifarious pronouncements on the same question by various departments (3) CAW advises always going through each of the six tests in your briefs c) The political question doctrine is a self-imposed limit on the Courts power they cant hear a political question no matter how appealing (see Marbury v. Madison, explicitly disclaiming the ability to hear political questions)

d) The mere presence of a political element does not make the issue a political question; see Powell v. McCormack (deciding if House improperly refused to seat a member is not a political question); US v. Munoz-Florez (deciding if law was a revenue measure that should begin in the House is not a political question), and Dept. of Commerce v. Montana (deciding apportionment methods constitutional validity is not a political question) 2. Standing a) Standing basically involves determining if the right kind of party is present (1) Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which

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sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? (Baker v. Carr, also cited in Simon, Craig, Arlington Heights, and Valley Forge) (2) This is a kind of misleading quote its not what the actual rule is, but it is quoted quite often (3) Also note that standing is an issue of federal, not state, law; state law does not control who has standing (Arlington Heights, fn 17) b) Standing acts as a limit on judicial review if there is no party with standing to challenge a given act, the other branches can pretty much do what they want. (Only recourse is the ballot box) c) Definition of Standing (1) Rehnquist: Cant reduce standing to a single definition (2) Two types: Constitutional and Prudential (a) Constitutional standing sets an irreducible minimum based on Art. III if this type of standing is not met, the court cannot hear the question (b) Prudential standing a standing rule made by the court as a matter of prudence; its exercise is discretionary (3) Constitutional Standing 3 elements (Injury, Traceability, Redressability) (a) Injury In Fact/Particularized Injury (i) Must be an injury to this plaintiff (a) Organizations can only sue if one of their members are injured (Warth v. Seldin); mere abstract concern with the subject is not sufficient (Simon v. E. Kentucky Welfare Rights Org.) (b) Standing for organizations requires (Hunt v. Washington State Apple Advertising Comn): (i) Members would have standing (ii) Interest to be protected is germane to organizations purpose (iii) Doesnt require individual participation (ii) Actual or Threatened Injury (a) Must be concrete injury and not theoretical or speculative injury (i) Thus, plaintiffs in Valley Forge Christian College v. Americans United for Separation of

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Church & State (government gives hospital to religious college) do not have standing right to a religion-free government does not lead to injury in this case (ii) Note that a non-economic injury is sufficient for standing, but on Valley Forges facts, there is no injury whatsoever (iii) Mere interest in subject is does not equal injury (Lujan v. Defenders of Wildlife possible later study of land made impossible by mining does not confer standing) (b) Traceable to Defendant (Causation) (i) The damage must be traceable to alleged conduct of defendant (a) Cannot be speculative for example, theory that indigents inability to get care results from IRS ruling is a purely speculative connection (Simon) (ii) Test: is plaintiff better off if a favorable judgment is given? (c) Redressable to Defendant (i) The injury must be likely to be redressed by a favorable decision (CAW: really part of the traceability requirement) (ii) Ostensibly, the distinction is that traceability focuses on the defendants conduct, while redressability focuses on the relief sought (4) Prudential Standing (a) Plaintiffs must assert their own rights (i) There is a general prohibition against 3rd party standing (jus tertii) (ii) Exceptions (remember, prudential rules are discretionary, so exceptions can be made!): (a) Rule is liberalized (but not ignored) for associations and public interest groups (b) If statute unconstitutionally interferes with a relationship, either party may bring suit even if only ones rights are violated (i) Thus, in Craig v. Boren, the proprietor of a liquor-selling establishment can assert the claims of a customer regarding minimum drinking ages where the customers claim has been made moot by his turning 21
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(c) If parties with economic and constitutional injuries, parties can rely on each others claims (i) Village of Arlington Heights v. MHDC developer has economic injury, black person has constitutional injury, so each may assert the others claims (b) No generalized grievances/abstract questions of wide public significance (typically taxpayer standing) (i) Flast test for taxpayer standing: (a) Must be a challenge of an tax or appropriation statute (not executive action) (i) Valley Forge hospital donation standing; see above) (b) Must rely on a specific violation of a constitutional provision not broad provisions like the 10th amendment or due process clause (i) Thus in Frothingham (taxpayer challenges spending to reduce infant mortality on 10th amendment grounds) taxpayer has no standing (ii) Contrast Flast (challenging spending on parochial education) standing is valid because basis is the establishment clause of the 1st amendment (c) Claim must fall within zone of interest of statute/constitutional provision in question (i) Must be the kind of injury Congress intended to address 3. Mootness a) Normally, the controversy must continue to be a live controversy for the court to hear it (see Craig above, where one plaintiff was dismissed in challenge of minimum drinking age because he turned 21)

b) There is a narrow exception for cases where the controversy is live for only a short period of time and is likely to recur frequently (1) Thus, the plaintiff in Roe v. Wade was able to continue her appeal 9 months isnt a sufficient amount of time for a case to reach the Supreme Court, and the issue was likely to continue to arise (2) Apparently 3 years (the time in Craig age 18 to 21) is sufficient, though this is probably unrealistic

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4.

Adverse Interests a) Interests must be genuinely adverse cant have two corporations under control of same majority stockholders (Gold Mining Cos.)

b) But you can have a test case have to sit in the front of the bus and see what happens D. Declaratory Judgments & Case or Controversy 1. Federal Declaratory Judgment Act (2201) (FDJA) In an actual controversy (except taxes), a federal court may declare the rights and legal relations of any interested party seeking such declaration whether or not further relief is or could be sought a) 2. 3. Also 2202 further (coercive) relief can be had based on DJ Unlike regular judgments, DJ doesnt result in any enforcement just a declaration as to what each parties rights are The problem: The Constitution requires a genuine case or controversy when will DJ satisfy this requirement? a) A real dispute is required must have adverse litigants, and the declaration cannot be the equivalent of an advisory opinion. It is ultimately a question of degree. (1) Ex.: CAW develops product; A claims to hold patent on product. Is DJ proper? YES b/c A could sue for damages (2) Ex.: A assigns patent to B; same facts otherwise. Is DJ proper? YES same reason (parties dont matter; issue does here, the validity of the patent) (3) Ex.: CAW seeks loan to build factory; loan is denied b/c of possible patent issue; CAW sues for DJ. Proper? (a) NO it is an advisory opinion because it is purely hypothetical (b) What if instead of CAW, GE sought the loan? YES, because it is less hypothetical; GE is less hypothetical than law professor with no manufacturing experience b) Aetna Life Ins. Co. v. Haworth test if DJ is proper: (1) Not a hypothetical nature or abstract character (see above) (2) Not an academic or moot question (see also Golden v. Zwickler Congressmans leaving office moots question about flyer distribution) (3) Suit seeks specific relief of a conclusive character (and not just an advisory opinion) c) Additional Notes (1) Cant be a declaration of federal immunity to a state right (only a declaration of rights under state law)

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(2) No DJ if federal element only comes in as a defense in the absence of the FDJA (Skelly) (3) The courts are generally reluctant to grant DJ for constitutional issues; they are particularly careful about there being a genuine controversy in those cases E. Judicial Power 1. Historical note: the Constitution clearly anticipates the possibility of no lower courts; a provision for lower courts was stricken from an original draft, the idea being that the state courts could hear all disputes with federal appeals going to the Supreme Court. There are two types of courts Congress can create: Art. I courts (no life tenure, etc.) and Art. III (life tenure, etc.) a) The basic idea is that Art. III courts are more independent from Congress than Art. I courts since they have tenure and cant have their salaries reduced (but also can only exercise judicial power) Not for decisions on federal crimes/claims (Palmore v. US DC hybrid court may constitutionally hear these issues)

2.

3.

When is an Article III court required? a)

b) Appeal to Art. III court is not of right habeas to Supreme Court is deemed sufficient (Swain v. Pressley) c) Suits between bankrupts and others must be heard by Art. III courts (Northern Pipeline Construction v. Marathon Pipe Line)

d) Parties must consent to magistrate court (Peretz v. US) III. Cases Arising Under the Constitution & Laws of the US (Federal Questions) A. Limits on FQ Jurisdiction 1. Again we return to the idea of twin keys, constitutional and statutory a) Art. III, Sec. 2, clause 2 The judicial Power shall extend to all Cases [] arising under this Constitution, the Laws of the United States, and treaties made [] under their authority []

b) 1331 The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. (Note this was not passed until 1875) 2. FQ Constitutional Key a) The Constitution only requires that federal law be an ingredient in the cause of action (1) Osborn v. Bank of US pre-1331, court looks to the fact that federal legislative charter created bank and gives it ability to sue or be sued, so the charter is a federal ingredient of the banks case

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(a) Note this means that even on a contract suit with the bank, there is potential FQ jurisdiction from a constitutional point of view since a law of the US created the bank and gives it the ability to sue, and that law may be an issue in the case (see US v. Planters Bank of Georgia FQ jurisdiction available in suit over a note held by the US bank) (2) American National Red Cross v. S.G. Red Cross charter by Congress gives it the ability to sue or be sued and so created FQ jurisdiction; thus Congress can give any organizations it creates FQ jurisdiction (3) Congress can also give FQ jurisdiction by statute to any case with some federal ingredient (Verlinden see below, holding Congress may constitutionally give FQ jurisdiction to cases involving foreign governments) (4) Think of it as cooking adding even a pinch of a FQ confers constitutional FQ jurisdiction 3. FQ Statutory Key a) It has been held that 1331 is much narrower than the constitutional key b) Specifically, to sue under 1331 there must be a substantial, disputed FQ (otherwise, you must find independent statutory FQ jurisdiction, e.g., look to the charter, etc.) (1) A contract for patent royalties does not create such a FQ; the patent issue is incidental to the contract for royalties (Albright v. Teas) (a) CAW all kinds of forum-shopping fun-n-games because of this plead infringement for federal court, nonpayment of royalties for state court (applies to copyrights as well as patents) (b) Also note Feibelman v. Packard federal statute permits suit on federal marshals bond from bankruptcy; can also sue for state-law trespass choice of claim dictates the forum (c) Thus, in this way it can be said that one can choose the forum by choosing a certain cause of action (2) See also Merrill Dow (below, federal law violation as part of duty element of negligence suit does not create a substantial FQ); Joy v. St. Louis (also below, ejectment suit does not have FQ just because land in question came from US title grant) c) Note then that there is nothing to keep congress from preventing a federal court from hearing (for instance) abortion cases (so long as its not one-way) by simply removing it from the ambit of 1331

B. The Well-Pleaded Complaint Rule

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1.

The basic rule: in determining FQ, look only to allegations in a well-pleaded complaint a) The allegations must not be tacked on for FQ jurisdiction (Joy v. St. Louis assertion that title came from US government does not create FQ) (1) If federal law creates doubt as to title, there is a FQ to remove cloud (Hopkins v. Walker), but not to quiet title (Stulthis v. McDougal) because reason for cloud is necessary to the first suit, but not for the second (a) Exception: Indian title always creates a FQ (Oneida Indian Nation of NY State v. County of Oneida)

2.

You cannot create a FQ by anticipating a defense (Louisville & Nashville R.R. v. Mottley anticipation of a defense to breach of settlement agreement based on impossibility caused by new federal law does not confer FQ jurisdiction) Bottom line is there is no clear-cut answer as to what a FQ is a) CAW: the ALI (and CAW) were pressured into drafting a bright-line rule on FQs definition; they resisted because it isnt necessary precedent handles specific cases, and borderline cases are rare and difficult

C. What is a FQ? 1.

b) CAW: because of this, there are always difficult FQ questions on Federal Courts exams! 2. Federal permission does not translate to a FQ (Gully v. 1st Bank of Meridian plaintiffs response of federal statutory exception to the defendants answers stated defense does not create FQ) the federal nature of the right to be established controls a) CAW: Cardozo is wrong in Gully when he says only look at the complaint and not the responsive pleadings logically, youd have to look at all of them to really understand what the controversy is about

3.

FQ does not depend on if the meaning of a federal statute is in question, but rather if the facts involve a FQ (Thurston Motor Lines v. Jordan K. Rand, Inc. right to payment is in issue; there is no dispute over the meaning of the ICC tariff in question, only if there is a right to payment on these facts thus, a FQ is at issue) Merrell Dow v. Thompson statement of the rule: FQ means: (1) Federal law creates a federal cause of action, or (2) Plaintiffs right to relief reasonably depends on resolution of substantial question of federal law

4.

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(a) CAW: this appears to say FQ depends on if you have a federal cause of action (express or implied) courts used to be much more generous than this! 5. Classes of Cases a) Indian lands always a FQ (Oneida Indian Nation, see above) b) Direct constitutional claims always arise under even if recovery is impossible (may be dismissed for failure to state a claim, but not for lack of SMJ) (1) Bell v. Hood suit against FBI for 4th and 5th amendment violations; court says decide SMJ issue first (here, there is a FQ), then decide if a claim has been stated (claim must be substantial, e.g., non-frivolous) (2) CAW: Why is this important? Because if you want to expand the law, the court still must have SMJ c) Preemption cases arent FQs except Taft-Hartley and ERISA (Lincoln Mills)

d) Jurisdictional statute can involve federal law enough to create a FQ (Verlinden B.V. v. Central Bank of Nigeria Foreign Sovereignties Immunity Act authorizing suits between foreign nationals on state law claims creates a FQ) 6. Supplemental Jurisdiction a) Pendent Claims Jurisdiction & The Gibbs Test (1) Note it is pendEnt, not pendAnt (pet peeve of CAW) (2) Basic Rule: Court can exercise jurisdiction over state law claims where there is a federal law case or controversy at issue (e.g., a FQ) (UMW v. Gibbs suit against union for both federal-law and state law claims; court establishes the Gibbs test for hearing federal law and state law claims together) (3) The Gibbs Test: A federal court can hear a state claim if: (a) The federal claim is substantial (see the Hood test nonfrivolousness) (b) The claims are the type that would ordinarily be expected to be heard in one action; this means the case involves: (i) A common nucleus of operative fact, and (ii) Is the type of suit that would be expected to be brought in one action (res judicata standard) (4) Pendent claim jurisdiction is discretionary (see below for factors involved) b) Pendent Parties

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(1) Finley v. US held no pendant party jurisdiction unless expressly created by statute (2) Finley is expressly overruled by the supplemental jurisdiction statute (1367, see below) c) The Supplemental Jurisdiction Statute (1367) (1) The statute gives the courts supplemental jurisdiction over all claims and parties so relatedto be part of the same case or controversy (a) Essentially gives a statutory key that expands supplemental jurisdiction to the limits of the constitutional key (b) Same case pretty much means the Gibbs test (2) Diversity Exceptions (1367(b)) (a) No supplemental jurisdiction over claims by plaintiff against parties added under Rules 14 [3d party practice]; 19 [Necessary Parties]; 20 [Permissive Parties]; 24 [Intervention] if it destroys diversity (b) No supplemental jurisdiction over claims by persons proposed to be joined under 19 or intervening as plaintiffs under 24 if it destroys diversity (3) Factors in exercising discretion (1367(c)) Court should decline supplemental jurisdiction if: (a) Novel or complex issue of state law (b) State claim predominates (c) The court has dismissed all claims it has independent jurisdiction over (d) Other compelling reasons to decline (4) Additional notes: State statute of limitations is held open for 30 days after dismissal; state here includes DC, Puerto Rico, and territories 7. Additional Notes on Getting FQ Jurisdiction a) Protective Jurisdiction (1) Basically means giving a federal forum because Congress could regulate, but hasnt yet (2) CAW and the ALI dont think this is valid; other academics disagree b) FQs and DJs (1) E. Edelmann & Co. v. Triple-A Specialty DJ suit over patent validity presents a FQ

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(2) Skelly Oil v. Phillips Petroleum cant anticipate defenses to get FQ when seeking DJ (a) Basic point: same rules apply for DJ as for coercive suits if the suit could be brought as a coercive action, it may be brought as a DJ action; if it couldnt, then it cant (b) Thus, the FDJA has not broadened SMJ 8. Removal & Dismissal a) If state court has jurisdiction, remand after dismissing case removed to federal court; otherwise, dismiss the case (American Well Works v. Layne & Bowler Co.)

IV. Diversity Cases A. Basically, a federal court can hear a case even if there is no FQ so long as the parties are from different states (diversity) and the amount in controversy satisfies the statutory amount (1332) B. Diversity of Citizenship 1. Why permit diversity? Basic rationale is to prevent the plaintiff from having a home court advantage a) Many would like to abolish diversity; reasons cited include clearing the federal docket for FQ cases and recognizing that only state courts can speak authoritatively on state law; they say the home-court advantage isnt as great as it once was The constitution only requires minimal diversity; this means that only one opposing party must be from a different state (State Farm v. Tashire)

2.

Constitutional vs. Statutory Diversity Requirements a)

b) 1332, on the other hand, requires complete diversity; this means that all opposing parties must be from different states (plaintiffs must be from different states than defendants) (Strawbridge v. Curtiss) (1) You cannot use supplemental jurisdiction to work around the diversity requirement. (Seyler v. Steuben Motors) 3. Suits between citizens of different states a) An in-state plaintiff may sue in federal court b) An in-state defendant cannot remove to federal court even if the plaintiff is out-of-state (rationale: what are you complaining about? Youve got the home-court advantage!) c) Does DC count as a state? Court is heavily divided. (National Mutual Ins. of DC v. Tidewater Transfer Co. 5-4 split in favor of treating DC as a state; 3-judge majority says treat it as such because Congress has power over DC; 2 concurring judges say that DC is a state)

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4.

Determining State Citizenship a) Individuals (1) Test is for the persons domicile; this involves two elements: (a) The person must actually take up residence in the new domicile, and (i) Thus, if a person is moving to MI from MD; his family has moved, hes bought a new house, and is just waiting for closing on the sale of his old home. Diversity? NO. He fails the first test (b) Must intend to remain in the state (i) What level of intent? Depends on the court. There are two approaches: (a) No Animo Revertendi (no intent to return to prior state) (CAW favors this approach) (b) Animo Manendi (intent to stay not permanently, but indefinitely) (this is the more likely rule) (i) See Mas v. Perry Student is not a resident of college, but rather her original home state even if she does not intend to return to her home state upon graduation (ii) However, a student can change domicile to school locale if he has the requisite intent (Bair v. Peck) (iii) It is even permissible to move just to get diversity, so long as you intend to stay indefinitely (Williamson v. Osenton) (c) Hypo: CAW goes to MI; while in MI, he takes position at Yale. Is he domiciled in MI? Test #1 is met, so we turn to Test #2 and the outcome depends on the court (i) if (a) above, then Yes; if (b) above, then No. (2) Domicile is determined as of the date of suits filing; subsequent moves are irrelevant (3) If residing in an foreign jurisdiction with no intent to return, no citizenship in any state and no alienage jurisdiction b) Partnerships, Trusts & Unincorporated Associations (1) A partnership is a citizen of every state in which it has a member (this includes the limited partners) (Carden v. Akoma Associates)

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(2) A trust is a citizen of every state where a trustee (not beneficiaries) resides (Navarro Wavings Assn v. Lee) (3) An unincorporated association (as in a union) is treated in the same manner as a partnership (Bouligny) c) Corporations (1) A corporation is a citizen of both: (a) All states of incorporation, and (i) The ALI (and CAW) says the wording of the statute should be precisely construed to mean every state of incorporation counts for diversity purposes (majority rule) (ii) Forum Theory says that corporation is only a citizen of the forum state (minority rule) (iii) Ex.: RR incorporated in NY and NJ; sued in NJ by NY resident; no diversity under ALI approach, but diversity under forum theory approach (b) Its principle place of business (one state) (i) Tests for principle place of business: (a) Nerve Center place where basic policy decisions are made; place where there is direction and control (Scot Typewriter) (b) Operating Assets place where there is the center of production or service activities (Kelly v. US Steel) (c) Total Activity a hybrid of the above two; if corporation has widespread activities, focus on test #1; if one state clearly predominates, focus on test #2 (North Star Hotels v. Mid-City Hotel) (ii) ALI would prevent a corporation from invoking diversity in any state where it has a local establishment (iii) If principal place of business is abroad, only consider state of incorporation for diversity purposes (Torres v. Southern Peru Copper) (a) Unsettled question: does a foreign corporation with worldwide principle place of business in a state have dual citizenship for diversity purposes (and thus cannot be sued by another alien corporation because of a lack of complete diversity)? (It is, however, well-settled that it is a state citizen in such a case) d) Special Statutory Cases
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(1) Aliens green card resident deemed citizen of state where he resides (disagreement on if this would permit two aliens to sue each other, or if it only operates where it destroys diversity) (2) Representatives Representative of deceased/incompetent person has residence for diversity purposes determined by the residence of the deceased/incompetent (1332(c)(2)) (3) Insurance companies deemed citizen of same state as insured (corporate rules nonwithstanding) (1332(c)(1)) e) Rule Against Collusive Jurisdiction (1359) (1) You cannot assign a claim solely for the purpose of getting jurisdiction (Gentle v. Lamb-Weston, denying jurisdiction where plaintiff had a 1% assignment) (2) A genuine assignment is permissible, though 5. Realignment a) Statute requires diversity between those on opposite sides; the court can realign parties if they arent genuinely opposed to see if diversity still exists (1) Primary and controlling matter in dispute here (Employers of Wasau v. Crown Cork & Seal) (e.g., the real issue in dispute) (2) 7th Circuit differs any substantial controversy is enough of a real dispute to leave the parties aligned as they are C. Jurisdictional Amount (Amount in Controversy - AIC) 1. In a case based solely on diversity, there must be more than $75,000 (i.e., at least $75,000.01) in controversy for a federal court to exercise jurisdiction In determining the AIC, look to plaintiffs good faith complaint unless it appears to a legal certainty to be too high a) Why is this so? We dont want either extreme: (1) If AIC was based solely on plaintiffs complaint, every case would meet AIC since everyone would claim high damages (subject only to Rule 11 sanctions) (2) If AIC was based on plaintiffs actual recovery, it would be a tremendous waste of judicial resources should dismiss before trial so we dont waste time or resources b) Plaintiffs Good Faith Claim (1) Can dismiss if claim is clearly not in good faith (Burns v. Anderson basic inquiry showed claim was worth less than requisite amount)

b) Tests for realignment:

2.

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(2) Rule is that plaintiffs claim is in good faith unless it appears to a legal certainty that it is not 2 tests are really 1 c) Legal Certainty (1) Although a federal issue, the AIC is generally controlled by state law. (a) For example, Vance v. W.A. Vandercook Co. look to state contract law to see if consequential damages are permitted (b) Look at the facts carefully! In Beaman v. Pacific Mutual Life Ins., issue was whether plaintiff was disabled for purposes of policy payment; since insurance company wasnt repudiating policy (it was just claiming he wasnt actually disabled) only the denied payments are at issue (not payments for rest of plaintiffs lifetime) thus not meeting AIC (c) It remains a federal issue, though state regulatory boards determination of what a case is worth does not dictate AIC (Horton v. Liberty Mutual) (i) Note, however, that if state law makes a boards determination binding in state courts (e.g., no state court review of the boards determination), it is more likely to be determinative as to AIC (2) If the state court hasnt spoken on the issue in question, then AIC is generally met by the plaintiffs good faith complaint theres no legal certainty that the AIC is less than the claimed amount (a) CAW: This shows good faith doesnt really add anything to legal certainty again, the 2-part test is really 1 d) Non-Monetary Claims (1) Majority Rule Either viewpoint may look to either value of relief to plaintiff or cost to defendant (McCarty v. Amoco Pipeline cost of easement to defendant may be used to satisfy AIC) (2) Minority Rule look to value of relief to plaintiff only (5th circuit ?) 3. Aggregation and AIC a) Compulsory Counterclaims (1) Majority Rule: can only look to plaintiffs complaint even compulsory counterclaims dont count (Barnes v. Parker) (a) This creates a race to the courthouse a small-claim plaintiff can file in state court and prevent removal because AIC isnt satisfied

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(2) Minority Rule: Look to state law to see if claim is compulsory; if so, it may be counted towards AIC b) Collateral Effects (1) Possibility of judgment stopping further suits (via collateral estoppel) does not make those future suits count for AIC purposes (Elgin v. Marshall) c) Claim Aggregation (1) Can aggregate an individual plaintiffs claims for AIC (e.g., CAW in accident, he can aggregate auto damage and bodily harm) (2) Cannot aggregated multiple plaintiffs claims (e.g., CAW cant add his passengers claims to his own for AIC purposes) (a) Also remember there is no supplemental party jurisdiction for wholly diversity cases cant join a party with insufficient AIC just because another parties claims are sufficient (CDS Diversified v. Franklin Finance Corp.) d) Class Actions see below 4. Amounts excluded from AIC a) Interest and costs of the litigation (e.g., pre-judgment or post-judgment interest) does not count for AIC purposes (Brainin v. Melikian)

b) However, if interest is part of the contract the suit is over (including loan contracts i.e., rent for the use of money), or if state statute provides for attorneys fees, then they are part of AIC V. Removal A. Actions Removable Generally (1441) 1. An action can be removed in any case where the federal court could exercise original jurisdiction (1441(a)) a) The same rules apply as in original jurisdiction: the well-pleaded complaint rule for FQs, no removal on basis of a federal defense

b) Exception: Preemption there are some areas where federal law is deemed to have pre-empted state law (even if there isnt a federal remedy) (1) Basic question: did Congress intend to pre-empt? (2) Preemption typically applies to ERISA (benefits Metropolitan Life v. Taylor), NLRA/LMRA (labor relations) c) Last sentence permits use of John Doe as a placeholder for unknown parties; John Does citizenship doesnt count for removal purposes

d) Majority rule: 3rd party defendants cannot remove; counterclaim cannot be basis for removal (Tennesee v. Union Planters Bank)

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2. 3.

A defendant cannot remove if sued in his home state in a diversity action (can still remove if FQ) (1441(b)) Separate and Independent FQs (1441(c)) a) If there is a separate and independent FQ, can remove other claims as well; the court may remand if state claims predominate

b) A single wrong arising from the same set of transactions isnt separate and independent (American Fire & Casualty Co. v. Finn & DiBiase) c) In the abstract, can be used for pendent state claim with minimal (not complete) diversity

d) CAW: Constitutionality of 1441(c) is doubtful; if state claim and FQ are closely enough related (under Gibbs), remove under supplemental jurisdiction 4. Miscellaneous Removal Statutes a) 1441(d) Suit against a foreign country can always be removed b) 1441(e) Patches hole Removal not precluded if state court did not have jurisdiction over claim c) 1442 Federal Officers and Agencies can always remove when sued or prosecuted for official (or colorably official) acts

d) 1443 Civil Rights Cases can remove if cant enforce right in state courts 5. Fraudulent Joinder a) The court can pierce the pleadings if they are a sham designed just to get removal (1) Ex.: Dodd v. Fawcett Publications OU football player sue magazine (non-OK) and distributor (OK) for libel; distributor had already been found not liable in previous suit by another player; Court permits removal joining distributor was fraudulent & only designed to avoid federal jurisdiction b) 1359 prohibits collusive joinder to create jurisdiction; by analogy, cant permit same to defeat jurisdiction (Gentle v. Lamb-Weston see also above) c) You can collude not to join to create jurisdiction (Western Md. Ry. Co.)

B. Removal Procedure 1. 2. In diversity Cases, must be within one year (can manipulate by dismissing instate defendant after a year) Motion to remand after removal due to procedural defect must be within 30 days (applies to all but SMJ issues)

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3.

Any proceedings in state court after removal petition is filed (and notice is given to state court) are void even if the removal is frivolous a) Federal jurisdiction attaches at time of filing (but some, including ALI, say removal isnt effective unless all steps are completed)

4. 5. VI. Venue

1447(e) within judges discretion to join non-diverse parties and remand or deny joinder and retain the case Can only remand to court from which case was removed (Bloom v. Barry)

A. Venue is the place an action can be brought, e.g., the physical location of the court B. Venue is completely waivable; if not challenged at the first available opportunity, then the chance to challenge is lost 1. This means the first piece of paper filed needs to have a venue objection in it! 1391(a) deals with diversity cases; 1391(b) with FQ cases; both are nearly identical, with a minor twist in the third provision. a) Venue is proper: (1) Where any defendant resides, if all reside in same state; (2) The district in which a substantial part of the events or omissions giving rise to the claim occurred (3) The district where (any defendant is subject to personal jurisdiction/any defendant may be found) if there is no district in which suit may be brought [(a)/(b)] (a) Slight difference in wording between (a)(3) and (b)(3) is really immaterial (Prior to 1995 revision, language in (a) was plural [defendants] since the revision, no real difference between (a) and (b)) 2. 1391(c) corporation can be sued in any district where they are subject to personal jurisdiction; 1391(d) aliens can be sued in any district; 1391(e) venue rules for suing federal officers 1404(a) Permits transfer to any district where suit may have been brought for the convenience of the parties/witnesses in the interests of justice a) CAW: This rule is prime for game-playing b) Change of venue change in law must apply law of the original court (Van Dusen v. Barrack)

C. The venue statute (1391) 1.

D. Change of Venue 1.

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2. 3.

1406 If venue is objected to, court can either dismiss or transfer the case to the desired district Can change venue for forum non conveniens as a practical matter, today this only happens if the convenient forum is in a foreign country

VII. Jurisdiction to Determine Jurisdiction A. Generally, federal courts have jurisdiction to determine their own jurisdiction, and while they are deciding that issue they may continue hearing the suit until a final determination is made 1. 2. Thus, for example, a contempt order issued by a court while that court is in the process of determining if it has jurisdiction is valid (US v. UMW) Also note that sanctions can be handed down even after a court has found it lacks jurisdiction (Willy v. Coastal Corp.); this is true even if the plaintiff is the one moving (Ferens v. John Deere); see also Stewart (forum selection clauses) a) Sanctions distinguished from contempt: sanctions = punishment for violating a rule; contempt = method of preventing rule violation

b) Rationale for permitting sanctions: a court has the right to conduct itself in sane fashion; contempt requires jurisdiction (or to be in the process of determining jurisdiction) because of its coercive nature 3. Summary: orders to preserve status quo (i.e., to preserve jurisdiction if it exists) while determining jurisdiction are valid; other orders are invalid If jurisdiction is decided via a special appearance, that jurisdictional ruling is res judicata for the rest of the action (Baldwin v. Iowa St. Traveling Mens Assn.) Res judicata rules apply jurisdiction must be actually litigated and decided; thus, if you dont put in special appearance (& have default judgment entered against you), you can still challenge enforcement of the judgment based on jurisdiction Once appeals are exhausted, there is res judicata as to SMJ (note again that any party or the court can claim lack of SMJ); thus, even if later case indicates there would be a lack of SMJ, a case where SMJ has been decided and has reached final judgment is barred from again having SMJ raised (Chicot Co. Drainage Dist. v. Baxter St. Bank) Legislation which clearly manifests an intent to make a certain forum have jurisdiction can override a final judgment on jurisdiction that places jurisdiction in another, incorrect forum a) Examples include bankruptcy (Kalb v. Feuerstein the Frazier-Lemke Act)
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B. Personal Jurisdiction cant collaterally attack if already tried previously 1.

2.

C. SMJ can be raised at any time until final judgment 1.

D. Exceptions to the final judgment rule 1.

b) See also Restatement of Judgments 10, Restatement 2d Judgments 12 VIII.Conflicts Between State & National Judicial Systems A. State Enforcement of Federal Law 1. The Supremacy Clause requires state courts to hear FQs brought before it unless it has a valid excuse (Howlett by Howlett v. Rose) a) Valid excuses: (1) Neither plaintiff nor defendant are residents (2) Cause of action is not within courts jurisdiction (3) Forum non conveniens b) Invalid excuses: (1) Federal law governing FQ inconsistent with state policy (Mondou) (a) Also see Allendorf stating that since IL must enforce other states death acts (full faith & credit), it must also enforce the federal death act (FELA) to prevent discrimination against state law 2. A state cant create defenses to a federal action, nor can it interfere with a federal right The Anti-injunction act was passed in 1793 and has been around in essentially the same form since then; it was not cited in a case until 1872 The act reads (2283): a) A court of the United States may not grant an injunction to stay proceedings in a state court except: (1) As expressly authorized by Congress, or (2) Where necessary in aid of its jurisdiction, or (3) To protect or effectuate its judgments b) The meaning of each above-underlined phrase is uncertain (1) Court of US defined in 451 (ex.: includes Supreme Court, does not include district court of VI) (2) May not grant an injunction to stay proceedings (a) Does DJ count? Not if DJ has same effect as a stay (TELA v. Jackson) (b) Can a federal court enjoin filing a suit? YES there is not a proceeding yet, so there is no friction (Ex Parte Young, Dombrowski v. Pfister, ALI); this is particularly true for repetitive, sham litigation (Noerr)

B. Federal Injunctions On State Proceedings (The Anti-Injunction Act) 1. 2.

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(c) What if injunction is issued after state court filing? Authorities are split: (i) 7th, 8th Circuits: federal courts still have power (ii) 6th Circuit, CAW: Filing removes power to issue injunction (d) What of injunctions prohibiting enforcement of judgments? (i) Courts are split if judgment was obtained by fraud (but probably cant state courts should decide their own jurisdiction) (ii) Cant do so just because it would wipe out competitors before antitrust suit (Vendo) (iii) Can do it if a stranger to the original suit (Cty. Of Imperial v. Munoz) (3) In a state court (a) Only applies to acts of a judicial nature (not legislative or administrative proceedings) (Prentis v. Atlantic Coastline) c) Exceptions are less than clear as well (1) Except as expressly authorized by act of Congress (a) The act doesnt expressly have to refer to 2283 the only issue is if the act could be given its intended scope only by staying the state court proceeding (i) Ex: Bankrupcy Act, Frazier-Lemke, interpleader (further proceedings shall cease), federal Habeas Corpus Act, 1983 Civil Rights (based on legislative history), removal (b) However, the intent must be clear (otherwise, all statutes would permit injunctions) (Vendo, stating antitrust laws dont give such authority) (2) Necessary in aid of its [own] jurisdiction (a) In Rem proceedings (in personam proceedings can continue concurrently, the first to reach judgment winning) (b) Maybe for suits similar to in rem e.g., school desegregation (3) To protect or effectuate its judgments (a) This is essentially the power to enforce res judicata and collateral estoppel on a state court (b) May Must just because federal court can ignore the anti-injunction act doesnt mean it must (Chick Kam Choo) C. State Injunctions on Federal Proceedings/Officers

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1.

A state court cannot stay a proceeding in a federal court (without Congressional permission) (Donovan v. City of Dallas) a) c) Exception: a state court may stay a federal court in in rem proceedings Rationale: state and federal governments are both sovereigns; courts of one sovereign cannot bind another unless agreed to b) Possible exception may also exist for harassing and vexatious litigation

2. 1.

State also cannot stay future federal court proceedings (General Atomic) Historical Note: CAW says the 3 most important Supreme Court cases are: a) c) Marbury v. Madison judicial review of acts of Congress; Ex Parte Young judicial review of state legislative/administrative action b) Martin v. Hunters Lessee judicial review of state courts

D. Federal Action Against State Officers (The Ex Parte Young Doctrine)

2.

11th amendment individual cant sue a state (even if individual is a citizen of the state being sued another state = any state) (Hans v. Louisiana, reconfirmed in Seminole Tribe of Florida v. Florida [1996]) a) Note a foreign government can sue a state (Prinicpality of Monaco v. Michigan); a state can also sue a state

b) Also note that the 11th amendment does not prevent the Supreme Court from hearing an appeal of an individuals suit against a state from the states highest court 3. Ex Parte Young MN citizens who own railroad stock think MN railroad law is unconstitutional; however, no railroad will break it because the penalties are so severe. Thus, they sue the MN A.G. Young to prevent enforcement in federal court. Young then violates the injunction (by enforcing the law); this case is an appeal of the ensuing contempt order a) CAW: Isnt a suit against the A.G. essentially a suit against MN? Isnt this just an end run around the 11th amendment? (1) Court says NO if A.G. is acting unconstitutionally, he is acting outside of his representative capacity (e.g., for the purposes of the suit hes not the A.G.) (2) This is an offshoot of the Ayers test it asks if the state officers actions would be tortious if done by a private citizen, or if it is something only a state officer could do; if the former, the 11th amendment does not apply (Ex Parte Ayers) (3) CAW: this is illogical: the 14th amendment requires state action; if the state officer isnt acting in his official capacity, there can be no suit based on the 14th amendment

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b) CAW: Despite the opinions shortcomings, Ex Parte Young is a good thing because it permits enforcement of the Constitution against the states without stripping them of all sovereign immunity (1) Put another way, how absent suing the A.G. could the shareholders have challenged the laws constitutionality? (2) Caveat: if a state claims immunity on a constitutional issue, the issue of immunity is a reviewable FQ (General Oil v. Train) 4. Limitations on Ex Parte Young a) Must Exhaust State Administrative Remedies First (1) Must exhaust state administrative remedies before seeking federal injunction (Prentis v. Atlantic Coast Line Co., holding legislation-mandated review of administrative act by state courts must be exhausted before brining federal suit) (a) However, judicial remedies need not be exhausted (Bacon v. Rutland R. Co., holding Vermont review was purely judicial) (b) Waiver by court of bar admission rule is judicial (DC Court of Appeals v. Feldman, a.k.a. the Rooker-Feldman doctrine) (2) Exception for 1983 Civil Rights cases there, state administrative remedies do not have to be exhausted to bring federal suit b) Prospective Relief Only (1) Cannot sue state officer for redress of past constitutional grievances only to compel future compliance with the constitution (Edelman v. Jordan) [prospetive relief OK; retrospective relief isnt] (2) Exception: Fitzpatrick v. Bitzer holds Congressional legislation enacted under the 14th amendment revokes 11th amendment state immunity, permitting retroactive payments (a) Note this isnt really an Ex Parte Young exception, but rather an rule that makes Ex Parte Young-type suits against federal officers unnecessary by permitting suits directly against the states (b) This rule is very limited it is expressly confined to post-11th amendment amendments generally and to the 14th amendment specifically in Seminole Tribe of Florida v. Florida [1996] (holding in part that the Fitzpatrick rule doesnt apply to commerce clause legislation) c) Congressionally-Limited Remedies (1) If Congress provides a remedy that is less than the full remedial powers of the federal courts, Ex Parte Young injunctions are

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not permitted (Seminole Tribe of Florida v. Florida [1996], holding in part that remedies in the Indian Gaming Regulatory Act would deny an Ex Parte Young injunction) (2) Rationale: courts will not supplement Congress remedial scheme with one created by the judiciary d) The 3-Judge Court Statutes (2284) (1) A three judge district court is required when: (a) Challenging apportionment of Congressional districts or those of any statewide elected body (b) When required by act of Congress (i) Acts requiring 3-judge court: Civil Rights Act, Voting Rights Act (in both cases only in limited circumstances) (ii) CAW: utterly insignificant today (2) There is direct appeal to the Supreme Court from a 3-judge court e) Statutory Restrictions on Enjoining State Officers (1) 1342 Federal court cannot enjoin state rate-making body from setting of public utility rates if jurisdiction based solely on diversity or constitutional repugnance (unless it interferes with interstate commerce, lacks adequate notice, or state remedy isnt plain, speedy, and efficient) (2) 1341 Federal court cant enjoin state tax collection so long as state provides a plain, speedy, and efficient remedy (note it doesnt take much to meet the remedy standard) (3) Civil Rights cases are not an exception to these (contrast to antiinjunction act above) (4) These rules apply to DJ as well E. The Abstention Doctrines 1. Abstention Generally a) Abstention basically means that the court has jurisdiction and could exercise it, but abstains from doing so. In addition to the three following types of abstention, Younger-type abstention might also be added to the list; it is covered in our federalism below.

b) General rule is that court must exercise its jurisdiction if it has it; abstention doctrines act as exceptions to this general rule c) 2. Note also that abstention does not strip away the federal forum; it just requires letting the state court run its course first

Pullman Abstention (unsettled state question + federal constitutional issue)

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a)

Based on R.R. Comn of Texas v. Pullman Co. Commission rule stating that sleeping cars cannot be operated by porters (e.g., blacks) was challenged; the court declined to hear because the commissions authority was not well developed enough to make a ruling (1) An unsettled question of state law, and (a) This means a definitive state ruling would decide the issue (b) No abstention is permitted if the constitutional issue is uncomplicated by the unresolved state law issue (Wisconsin v. Constantineau) (c) State law may be considered clear either because of a definitive state judicial opinion or a very clear statute (City of Houston v. Hill); abstain if there is a unique (and consequently unclear) state constitutional provision at issue (Reeetz v. Bozanich) (2) A serious question of constitutional law might be avoided by abstaining (a) No reason to abstain if the question isnt serious, i.e., the answer is obvious (b) Mirror image constitutional provisions dont permit such avoidance (Examining Board of Puerto Rico mirror equal protection clause to federal constitution abstention in one case would mean abstaining in all cases)

b) Thus, Pullman abstention means abstaining where there is:

c)

The effect of Pullman abstention is to stay the proceeding and retain the bill (i.e., retain jurisdiction without prejudice) (1) Litigate the issue in state court (to decide state law issue) (a) The entire controversy must be presented because a state court may decide the issue differently if theres a constitutional issue (b) England doctrine to avoid collateral estoppel problems, federal courts can make reservation on the record regarding federal constitutional issues; state court should stay away from such issues (and if it doesnt, they can be ignored) (c) Advisory issue problems (certification) (i) If state courts will give advisory opinion, then no problem just certify the question to the state court (FL, LA reluctantly)

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(ii) If state courts will not give advisory opinion, dismiss (rather than certify question) so they think its a real case (TX Harris Cty. Comr v. Moore) (2) Return to federal court if there is still an issue 3. Burford Abstention (coherent state policy) a) Based on Burford v. Sun Oil Co. challenging Texas R.R. Comn order to stop oil drilling; court abstains on basis that Texas oil & gas rules are quite complex and thus Texas courts are the best to resolve these issues to prevent confusion and conflicts

b) Thus, Burford abstention means abstaining where federal intervention would: (1) Be disruptive of state efforts (2) To fashion a coherent policy (3) On matters of significant public concern c) The effect of Burford abstention is to dismiss the complaint d) Note that mere difficulty in ascertaining state law is not grounds for abstention (but may be appropriate for certification of the issue Lehman Bros. v. Schein) 4. Colorado River Abstention (exceptional circumstances) a) Based on Colorado River Water Conservation Dist. v. US permitting abstention in Government suit over water rights because of exceptional circumstances (i.e., desire to avoid piecemeal litigation, etc.) (1) Concurrent state and federal suits proceeding (2) Exceptional Circumstances, defined as an mix of the following: (a) One court having assumed jurisdiction over the property to the exclusion of others; (b) Inconvenience of federal forum; (c) Desirability of avoiding piecemeal litigation; (most important!) (d) Priority in which actions were commenced (i.e., federal action is well behind the state action) (e) Also, Moses H. Cone adds: presence of federal law issues and/or inadequacy of state proceedings weigh against abstention c) The effect of Colorado River abstention is that there is no occasion to decide between a stay and dismissal

b) Thus, Colorado River abstention requires:

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d) Note there is nothing inherently wrong with two suits continuing in both court systems (though it is wasteful) must meet exceptional circumstances test to use Colorado River abstention e) f) Cant use Colorado River abstention just because there is a state suit pending and defendant institutes federal suit instead of removing Colorado River does not govern DJ they are discretionary anyway and so the standard for abstaining from a DJ is much broader (Wilton v. Seven Falls)

F.

Our Federalism (a.k.a. Younger abstention) 1. General Notes a) Only applicable if federal civil rights/constitutional question is at issue (otherwise Anti-Injunction Act would apply unless theres an exception, e.g. 1983, that makes the Act inapplicable) (1) Therefore, must have state action; Ex Parte Young is required for jurisdiction b) Rationale: equity, comity, federalism c) Our federalism idea that the American systems works best when states do state business, feds do federal business, and both leave each other alone as much as possible Younger v. Harris Harris seeks to stop his prosecution by D.A. Younger on basis of constitutional rights violations (based on precedent decided after the prosecution had begun); Court says our federalism dictates that a federal court cannot stop an already-begun state prosecution except in narrow circumstances (1) A federal court cannot enjoin an already-commenced state court criminal prosecution except for: (a) Bad faith (b) Harassment (c) Other special circumstances (e.g., facial unconstitutionality) c) Extensions to Younger (1) Cannot issue DJ regarding state statutes validity (e.g., the statute is constitutional) on an already-begun prosecution (Samuels v. Mackell) (a) Why not? Because to declare it constitutional implies you could declare it unconstitutional, which would almost certainly interfere with the state prosecution

2.

Pending Proceedings a)

b) The Younger Rule:

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(2) Cannot issue injunction suppressing evidence in pending prosecution (Perez v. Ledesma) d) When is a prosecution pending enough to invoke Younger? (1) If prosecution begins prior to federal proceedings of substance on the merits, Younger applies (Hicks v. Miranda) (2) If a federal preliminary injunction has been denied, Younger applies (Doran below) (3) Granted federal preliminary injunction is past the embryonic stage and so Younger does not apply (Hawaii Housing Authority) (4) Ultimately, its a race to the courthouse that the prosecutors always win because they dont have to get there first just not too late! 3. Threatened Proceedings a) DJ is permissible if prosecution has been threatened but not commenced (1) Steffel v. Thompson, where prosecution was threatened and friend was actually arrested for handbilling (2) Is this an actual case or controversy? Court says yes because the threat hampers free speech; also, we dont want people to actually have to break laws to raise test cases far better that they come to the court in the first place b) Federal court can enjoin future prosecutions (e.g., those not yet initiated) if it can be shown that such an injunction is necessary to protect constitutional rights (1) Wooley v. Maynard, permitting federal suit to enjoin NH law against covering state motto on license plates (2) Note Maynard had been previously prosecuted under the law; however, here he is suing to enjoin future use of the law (i.e., not for something that happened in the past, as in Huffman below) c) An application for a federal preliminary injunction does not make Younger abstention apply (1) Doran v. Salem Inn, where three topless bars sue for preliminary injunction and have it denied; they all appeal; federal court only must abstain from enjoining the prosecution initiated against the one bar that resumed topless dancing after the initial denial of the injunction 4. Younger & Civil Cases a) If a civil case is close enough to a criminal prosecution, Younger abstention principles will apply

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(1) Huffman v. Pursue, Ltd. Prosecutor tries to use civil nuisance law to shut down adult bookstore; the court says this is close enough to a criminal violation that Younger should apply (2) Juidicie v. Vail Civil contempt proceeding is sufficiently like a criminal proceeding to invoke Younger b) If a case is a purely private action, Younger only applies if there is an important state interest at stake (1) Pennzoil v. Texaco -- $13 million bond requirement is an important state issue and Younger abstention is proper (a) CAW represented Texaco in this one and lost; the decision is 9-0, but only 5-4 regarding the Younger issue (b) This case could be construed very broadly so broadly that Younger could conceivably apply to all civil cases. However, this has not been the case c) Civil proceedings are stayed until criminal prosecution is finished (Allen v. McCurry) or while abstaining from equitable relief on Younger grounds (Deakins v. Monaghan)

5. 6. 7.

How long does Younger apply? Until state proceedings are exhausted (Huffman, above) If not charged and no concrete threat of prosecution, then there is no standing to sue (much less deal with Younger) (Boyle v. Landry) Post-conviction: can seek wholly prospective relief, but must have challenged proceedings in state court to challenge them in federal court Historical Note: means literally to produce the body; in original use, if the king threw you in jail, a friend could request a writ to the prison directing the warden to explain the basis for your imprisonment a) In many ways, its use today is reflective of this history: it is still directed toward the person having custody of the prisoner

G. Habeas Corpus (2241, 2244, 2254, 2255) 1.

b) Does not have to be a criminal defendant mental patients, juvenile detention, etc., also counts 2. Prisoner must be in custody What is custody? a) Parole counts as custody (1) Collateral effects means custody for example, loss of voting rights c) 3. a) A mere fine does not mean custody Constitutional defect in proceedings leading to conviction (Whaley v. Johnson)
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b) If sentence is served and no collateral effects, then he is not in custody

Claims which can be raised via habeas corpus

(1) If claiming a 4th amendment evidentiary violation, cant get federal habeas corpus if you had full and fair opportunity to raise before the state court (even if your argument was erroneously rejected) (Stone v. Powell) b) You cannot get the benefit of a new (post-conviction) constitutional rule on habeas corpus (Teague v. Lane) 4. Must have exhausted state remedies a) The prisoner must first exhaust all state remedies before seeking habeas corpus in federal court (1) Exhaust means attempt one time (e.g., no federal bar if you can endlessly request state habeas corpus only have to request it once) (2) The same claim must be presented to the federal court that was presented to the state court (3) If multiple claims presented and all are not exhausted, then all are dismissed (4) If raising a claim not raised at trial (e.g., ineffective counsel) where state direct appeal isnt available, must seek state habeas corpus and any other state remedy available before coming to the federal court b) When federal constitutional claim is raised in state court, following may happen: (1) State agrees and releases prisoner (a) No federal habeas relief (because its moot) (2) State court disagrees (a) Prisoner entitled to de novo review of federal issues (Brown v. Allen) (b) Note that res judicata does not bar the federal court from hearing because res judicata does not apply to habeas corpus (3) State court refuses to hear federal constitutional claim (usually because of some procedural bar, e.g., failure to raise at trial, or the federal issue is a novel one) (a) Plain statement rule state court must clearly state its judgment rested on state procedural bar (Harris v. Reed); Prisoner must show cause for failure to follow procedure or actual prejudice from constitutional violation 5. Trends in Habeas Corpus a) Most courts dont like habeas corpus and are cutting back on its usage

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b) 1996 Anti-Terrorism Act 1 year statute of limitations for habeas relief; drastic limits on successive petitions (need permission for 2nd); writ only granted if state violated clearly settled principle of federal law or misapplied federal law (and only Supreme Court decisions not the circuits count for this) c) In short, today the states can make constitutional errors and habeas relief will be unavailable unless the error is grossly erroneous

H. Effect of Prior State Judgment 1. Collateral estoppel can bar a 1983 action (regardless of habeas availability) if plaintiff had full and fair opportunity to litigate (Allen v. McCurry) a) Mutuality of parties not required so long as full and fair opportunity to litigate (Parklane Hosiery v. Shore) strangers to suit gets the benefits, but not the burdens

2.

Full Faith & Credit federal courts must respect state court judgments by giving them the same effect as other courts of the state would a) What is a judgment? Settlement normally a contract between parties is a judgment when a class action is involved because of the courts involvement in its approval so long as the class certification was valid (Matsushita Electric v. Epstein)

b) Just because federal courts have exclusive jurisdiction over one area does not prevent collateral estoppel from previous state court rulings on related issues IX. Law Applied in Federal Courts A. The Erie Doctrine 1. In a nutshell: Federal courts must apply state substantive law for state law claims (Erie R.R. v. Tompkins) a) Procedural vs. Substantive Law (is it outcome determinative? York led to this, the Hanna test) (1) FRCP on point, then presumed procedural (Hanna) (a) Necessary & Proper clause permits Congress to make FRCP; rule must be within Rules Enabling Act and the constitution (b) Rule should be given its plain meaning (Walker v. Armco Steel, holding FRCPs use of commenced does not affect tolling of state statute of limitations); but Rule controls in the face of the state rule (Burlington, FRCP making penalties discretionary overrides state rule mandating penalties) (2) Otherwise, look to twin aims of Erie: (a) Prevention of forum shopping, and

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(b) Avoidance of inequitable administration of laws (e.g., important state policy at stake) 2. CAWs 5 questions on law applied: a) Is Erie a constitutional or statutory issue? (1) Erie constitutional opinion ostensibly rests on 14th amendment equal protection of laws, but more likely basis is enumerated powers (2) Today still a constitutional issue (Guaranty Trust, Hanna) b) Which states laws do you look at to determine the law to apply? (1) Erie Brandeis just says to look at PA law (2) Today Use the choice of law rules in the state where the federal court sits (e.g., in Erie, ask would NY court apply NY or NJ law? certify the question if necessary) (Day & Zimmerman v. Challoner) (a) Does this mean court should apply what NY thinks NJ law is? (b) Note Congress could prescribe federal choice of law rules if it wanted to; also note that federal appellate courts review district court determinations of state law de novo (Salve Regina College v. Russell) c) Which state courts do you look to? (no clear answer) (1) Only high court is binding, but lower state courts are given significant weight (Comr v. Estate of Bosch) (a) But high court isnt binding if there is reason to believe the state law has changed (Berhard v. Polygraphic Co.) (2) All state courts are binding (Fidelity Trust) (compare King, saying unreported lower state court opinions arent binding) (3) CAW thinks courts, in absence of state precedent, should look to see if the state tends to follow its neighbors, and if so look to those decisions d) In what cases/issues do we have to look at state court decisions? (1) Cases Not limited to diversity cases also supplemental jurisdiction and counterclaims based on state law (2) Issues See explanation of Hanna test above (under Erie in a nutshell) e) Is there any federal common law? (1) Erie NO (2) Today YES (see below) B. Federal Common Law

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1.

Federal Common Law may exist anywhere where the federal government is a heavily involved participant a) Ex.: Clearfield Trust v. US issuance of federal negotiable instruments is governed by federal common law, not state law

b) But this has been rolled back in recent years (US v. California); the current court is very conservative regarding expanding federal common law 2. Where federal common law exists, it controls in state courts as well as federal courts (the supremacy clause makes this so its no toothless kitten!)

X. Procedure in District Courts A. Note that there is quite a bit of detail missing this isnt a civil procedure course! B. Joinder 1. Joinder Generally a) CAW: best to do this part by rote memory the names sound similar and its awfully easy to get them mixed up

b) CAW: Always ask two questions: is it procedurally proper, and is it jurisdictionally proper? 2. Permissive Joinder (R. 20) and Joinder of Claims (R. 18) a) Permissive Joinder can join any parties if their presence springs from the same transaction or occurrence and there is a common question of law or fact; it is entirely up to the plaintiff who to join (beware of destroying diversity, however)

b) Joinder of Claims can join as many claims against an opposing party as you want 3. Compulsory Joinder (R. 19) a) Compulsory joinder involves parties that must be joined b) The old rules classified parties as indispensable (suit cannot continue if party not present), necessary (suit can still proceed without party), and proper (no need to even inquire about joinder); the new scheme keeps the concepts but dispenses with the labels c) Ask the following questions in order (a no ends the need to continue) (1) Is the absentee partys presence needed for just adjudication? (i.e., is the party necessary?) (a) i.e., is his presence needed for complete relief, does his absence impair his ability to protect his interest as a practical matter, or leaves the parties subject to a substantial risk of multiple or inconsistent obligations?

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(b) It is long-settled that joint tortfeasors are not necessary parties (Temple v. Synthes Corp.) (c) A party is not necessary where co-plaintiffs choose to litigate separately (Western Md. Railway Co. v. Harbor Ins.) (2) Is joinder feasible? (a) i.e., is jurisdiction satisfied, can service be given, etc. (3) Is the party indispensable? (Should the suit continue despite absence?) (a) Balancing test look at the extent relief can be given to present parties and prejudice to absentee party 4. Interpleader (R. 22 and 1335) a) Interpleader is used whenever a stakeholder wants to determine the rights and obligations of parties to the stake (1) This traditionally involved a limited fund i.e., I find a briefcase full of cash, and to prevent many parties from suing me separately (possibly subjecting me to multiple liability), I file an interpleader action to determine who owns what once and for all (2) A limited fund isnt necessarily needed i.e., an insurance company can bring interpleader if multiple claims to policy even if it also claims it doesnt owe under the policy (a) Ex.: CAW dies; his wife and his girlfriend (yeah, right!) both make claims on the policy. Even if insurance company wants to deny claim, it will bring interpleader suit b) Statutory vs. Rule Interpleader (1) Rule Interpleader (R. 22) (a) Venue: 1391 only in district where all claimants reside or where claim arose (b) Service: According to FRCP 4 (i.e., limited) (c) SMJ: Complete diversity (d) AIC: > $75,000 (2) Statutory Interpleader (1335) (a) Venue: Any district where any claimant lives (b) Service: Nationwide (c) SMJ: Minimal diversity (d) AIC: > $500 (3) Statutory interpleader is easier in every respect why use rule interpleader at all?
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(a) Because if all claimants are from the same state, you cant use statutory interpleader; thus, rule interpleader fills a gap c) CAW would eliminate diversity jurisdiction BUT would keep it for interpleader cases because otherwise the stakeholder could be left without a forum

d) Note that where interpleader action is a small part of larger litigation, the court will not stay the other proceedings for the interpleader action (State Farm v. Tashire interpleader tail wont wag litigation dog) 5. Counterclaims (R. 13a/13b) & Cross-claims (R. 13g) a) A counterclaim is a claim against an opposing party (who has already asserted their claim) typically, plaintiff sues defendant, defendant counterclaims against plaintiff (1) Compulsory counterclaims (R. 13a) (a) If a claim arises from the same transaction or occurrence, it is compulsory and must be brought or it may not be brought ever again (i) This is, in effect, estoppel by rule (b) Transaction has flexible meaning generally, are these claims logically related? (CAW: if in doubt, plead it! Its better to err on the side of safety) (c) Note supplemental jurisdiction is virtually automatic (2) Permissive counterclaims (R. 13b) (a) Can assert any claim a party has against an opposing party (b) You need an independent jurisdictional base for these, however b) A cross-claim is a claim asserted against a similarly-aligned party, e.g., a co-party; for example, defendant 1 vs. defendant 2; claim is generally for contribution or indemnity (R. 13g) (1) All cross-claims are permissive (though res judicata may bar you instead of the FRCP) (2) However, there is no need for an independent jurisdictional basis, however (Scott v. Fancher) (a) Why? Because by definition a cross-claim must arise from the same transaction or occurrence (3) Look to the pleadings to see if parties are aligned properly 6. Intervention (R. 24) a) Basically, intervention is where a stranger to a suit joins by his own motion

b) Intervention of Right (R. 24a)

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(1) Party must show: (a) An interest in the subject matter (only takes a minimal interest) (b) That interest is impeded as a practical matter (c) The party is not adequately represented by the existing parties (i) Party only has to show slight inadequacy (ii) CAW doesnt like this rule; he says the parties can best judge who adequately represents them (2) No independent grounds for jurisdiction needed (a) But if principle suit is diversity-based, beware destroying diversity (e.g., plaintiff cant sue non-diverse intervenor) c) Permissive Intervention (R. 24b) (1) Requires independent ground for jurisdiction (Wodecki v. Nationwide Insurance, holding intervening hospitals claim though depedent on outcome of plaintiffs suit does not establish a sufficient nexus to support jurisdiction) d) There is no compulsory intervention, but beware res judicata and collateral estoppel (law is unsettled here) e) 7. a) Standing rules are the same as for original plaintiff Basically a suit by one (or a small few) named plaintiffs on behalf of a larger class Class Actions (R. 23)

b) An individual can appeal denial of class certification even if his own claim has been settled (Deposit Guar. Nat. Bank v. Roper named plaintiff deemed to have a continuing individual interest in the resolution of the certification) c) Jurisdiction (1) FQ case, there is no jurisdiction problem (2) Diversity cases (a) Only the named plaintiffs must satisfy AIC (In Re Abbot Laboratories overturning Zahn v. IPCO rule that all class members must satisfy AIC) (i) This means each named plaintiff must satisfy the AIC requirement independently (ii) This is the 5th circuit rule (followed by the 7th circuit); other circuits are divided, so its unclear if Abbot or Zahn is the rule for AIC in those circuits (iii) Possibly an incorrect decision X-Citement Video says look to intent; 1367 only refers to rule numbers for

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diversity exception to supplemental jurisdiction; how would congress person know that class actions are excluded when he was voting? (b) Only the citizenship of the named plaintiffs count (Tribe of Ben Hur v. Cauble) 8. Impleader (R. 14) (3rd Party Practice) a) Typically, defendant joins another party who may be liable to him for all or part of plaintiffs claim (e.g., contribution or indemnity) (1) Key element: plaintiffs claim must succeed for original defendants suit against 3rd party to succeed (a) Thus, defendant cannot use impleader to say 3rd party, and not I, am liable (2) Thus, the 3rd party can mount defenses to the plaintiffs claim as well as the impleader claim (3) No independent jurisdictional grounds needed for defendants complaint against 3rd party defendant (supplemental jurisdiction) b) If a plaintiff in a diversity case asserts a claim against a impleaded 3rd party defendant, there must be complete diversity between the plaintiff and the 3rd party defendant (Owen Equipment v. Kroger) c) 3rd party defendants claims (1) Unclear if he asserts claim against plaintiff in diversity case if diversity must be met he may be able to assert it is a counterclaim (reverse Owen) (2) 3rd party defendants claims against defendant are treated as a separate suit i.e., must assert compulsory counterclaims and may assert permissive counterclaims C. Trial (Right to a Jury) 1. 7th Amendment requires a jury trial in civil matters if in 1791 the same suit would have required a jury (it preserves the jury right) a) This basically boils down to suits for damages confers the jury right; while suits for injunctive relief confer no such right (legal vs. equitable remedies)

b) In cases which are unclear, analogize to old actions, e.g., in eviction case, analogize to suit for ejectment (Purnell v. Suttle Realty) c) If there are multiple claims of mixed type, the legal (e.g., jury) claims are to be heard first (Beacon Theatres) (1) It does not depend on the wording of the pleadings nor the defenses raised (Dairy Queen v. Wood) d) Complexity Exception
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(1) Old rule: some legal matters are too complex for jurors (e.g., complex accounting), so jury right doesnt exist (a) Rationale: equity only available if legal remedy inadequate; complexity makes legal remedy inadequate, so its equitable (2) Today: rarely a problem. Special masters are appointed to aid the jury on complex issues. (Dairy Queen v. Wood) e) Collateral Estoppel Exception (1) If issue has already been resolved, jury right is gone (even if the suit resolving it had no jury right (Parklane Hosiery v. Shore prior SEC suit before a judge precludes relitigating issues in civil suit) (2) Note that if Parklane Hosiery had won against the SEC, it could not use that result against Shore 2. The right to a jury trial is governed by federal (not state) law even in diversity cases (Simler v. Conner) a) Federal practice governs relation between judge and jury (Southern Pacific v. Herron federal, not state, law determines when directed verdict is appropriate)

3.

A party must make a timely demand for a jury or the right is waived

XI. Appellate Jurisdiction and Procedure A. The Courts of Appeals 1. Final Judgments of District Courts a) The courts of appeal have jurisdiction over appeals from final judgment from all district courts, except where the Supreme Court has direct review (1291) (1) Judicial Improvement Act of 1990 Supreme Court may set rule for determining what is final judgment b) Why require final judgment? (1) Historically, finality was always required (a) This is probably a bad idea for things like preliminary injunctions, if the injunction isnt granted the damage is done an interlocutory appeal is needed (2) So why not permit interlocutory appeal of everything? (a) Several reasons: often things seem more important at the start of litigation than they actually are; such a rule would let defendants out-delay plaintiffs until they run out of funds; the trial court is usually right anyway c) What is final judgment?

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(1) Traditional Rule: A decision that ends the litigation on the merits and leaves nothing for the court to do but to execute the judgment (Catlin v. US) (2) Exception: The Collateral Orders Rule (Gulfstream Aerospace v. Mayacomas Corp) (a) The Rule: final judgment isnt required if a courts order: (i) Conclusively determines a question, (a) Thus the refusal to grant a stay in Gulfstream, the exception did not apply because the court could always reconsider and grant the stay (b) A grant of a stay is conclusive (ii) That question resolves an important issue separate from the merits of the action, and (iii) Is effectively unreviewable on appeal from final judgment (b) Collateral orders rule also applies to security for cause (Cohen), orders regarding qualified immunity (c) Note that collateral orders rule is entirely judge-made, and it properly comes under 1291 it is considered final judgment appealable as of right (3) Semi-Exception: Gillespie v. US Steel -- judge dismisses state law claims and refuses to certify issue to state court; plaintiff appeals (a) Court says final judgment the last possible action but rather final as a practical matter (b) Balance: inconvenience of piecemeal review vs. danger of denying justice by delay (c) CAW: if one takes this seriously, it is a major re-definition of final; however, it hasnt had any real impact the traditional definition remains the rule 2. Interlocutory Decisions (1292) a) Mandatory in the case of injunctions (where refusal carries irreparable consequences), receiverships, and admiralty (1) Note that an injunction a stay! b) Discretionary if district judge states in written order: (1) There is an controlling question of law (2) To which there is a substantial ground for difference of opinion (3) Immediate appeal may materially advance the ultimate termination of the litigation

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c) 3. 4. 5. 6.

1992 Supreme Court given power to make rules for when interlocutory orders are appealable

No reversal for matters in abatement not involving jurisdiction (2105) Appellate court can affirm, reverse, remand, modify, vacate, or set aside any appeal properly brought (2106) No regard is given to harmless error (2111) Mandamus an order to a lower court to do something (from the Latin we command) a) Mandamus is not available today for discretionary district court rulings (including abstention) (compare to 1950s-70s court took broader view of mandamus)

b) Today only available for judicial usurpation of power (for example, if a stay would deprive right to jury) B. The Supreme Court 1. Appeals From Federal Appellate Courts (1254) a) Certiorari can be granted to review courts of appeals at any time, before or after judgment, for any case

b) Appellate courts can certify questions to Supreme Court but this is now obsolete; certification only granted in the most exceptional of circumstances (Barnett) 2. Appeals From State Courts (1257) a) Final Judgment Required (1) Rationale: dont want to reach constitutional issue if unnecessary; give the states a chance to get it right first (federalism) (2) Cox Broadcasting Exceptions to Finality final totally final when (2 broad categories, with 2 types each: (a) Nothing Important Left to Do (i) Federal issue is conclusive (further proceedings outcome is preordained) (a) In other words, there are still things left to be done on remand, but the ultimate result cannot change (b) Ex.: Mills v. Alabama once 1st amendment claim is rejected by state court, nothing left to do but assess sentence defendants sole defense was federal (ii) Federal issue will require a decision regardless of outcome on remand of secondary state issue (a) Ex.: Radio Station WOW accounting remained to be done on remand, but FQ of if state law could
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control station transfer in face of FCC rules was already decided by state court, requiring Supreme Court review regardless of outcome of the accounting (accounting could not possibly give rise to FQ) (b) Important Stuff Left To Do, But No FQ Impact (i) Waiting for end of further proceedings would make review of the FQ impossible (a) In other words, the case has been remanded with no federal ground available (b) Ex.: California v. Stewart (decided with Miranda) California court anticipated Miranda, remands for new trial without un-Mirandized confession. Supreme Court takes appeal because: (i) If he is acquitted, state cant appeal (ii) If convicted, no appeal on FQ because confession was excluded on remand (c) Ex.: North Dakota Bd. of Pharmacy License denied because of ND statute requiring majority of stockholders be pharmacists; similar statute had been struck down in the 20s; ND Supreme Court struck statute down and remanded; Board appealed and Supreme Court heard because: (i) If license denied on state law grounds, stockholders couldnt request review (ii) If license is granted, then the Bd. cannot appeal its own decision to grant (ii) Decision on FQ would preclude (rather than just control) the later proceedings and party seeking review might prevail on non-federal grounds at the state level (seriously eroding federal policy) (a) Cox state statute prohibits publishing rape victims name; if victims father (who is suing TV station) fails on remand under state tort law, there will never be a chance to pass on the constitutionality of the statute (b) Thus, federal policy will be eroded by leaving the statute on the books unreviewed (i) Have to decide what is an important federal policy

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(c) CAW: this one is very controversial, while the previous three finality exceptions are fairly wellsettled b) Highest State Court Possible Required (1) Have to try to go as high as you can in the state system; i.e., if at mid-level court of appeals, have to apply to state supreme court (a) If appeal granted, state supreme court is highest court possible (b) If denied, state court of appeals is highest court possible (2) If a trial level courts decision cannot be reviewed, then that is the highest court possible (Stanford v. Texas JPs decision not to quash warrant is unreviewable, so JP is highest court possible) c) Must Have Timely Raised Claim (1) Generally, you have to have preserved the issue at trial and at each stage of appeal (a) State procedure governs, however if they permit you to raise issue not preserved at trial, thats permissible (2) Exception: Unanticipated Rulings (a) If there is an unanticipated change in the law, there is no need to preserve it (b) However, it must be totally unanticipated a ruling changing the law shortly before your last petition will not save your claim (Herndon v. Georgia) (3) Exception: State Court Rules on FQ (a) If state court decides FQ, the Supreme Court can review it even if it is not properly preserved (4) CAWs Rule of Safety raise FQs at every possible opportunity d) Must Involve a FQ (1) Straightforward State courts are best at determining what their law is, Federal courts are best at determining federal law e) No Review if Adequate & Independent State Grounds (1) Supreme Court cannot review a case that was decided on Adequate and Independent State Grounds (2) Independent (a) If state court grounds would be controlling regardless of what Supreme Court says on FQ, the grounds are independent

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(i) See also chart below (b) If state constitution is the same as federal constitution, grounds are not independent, especially if federal decisions are used to construe state provisions (c) The Plain Statement Rule (Michigan v. Long) (i) If state and federal grounds are commingled in a state opinion and it is unclear what the state ground is, it is presumed to be federal and the Supreme Court may hear the case (ii) Basically, the state courts have to make a plain statement of what their grounds for decision are (a) Mere citing of state precedent isnt enough (b) May have to say indisputably that the state decision is independent of the federal issue (Meyers v. Florida) (3) Adequate (a) State grounds must be adequate to dispense with case without hearing the FQ (b) NAACP v. Alabama ex. rel. Flowers mere pleadings form rule isnt adequate to avoid constitutional issue (especially since it was substantially complied with) 3. Miscellaneous Supreme Court Jurisdiction Issues a) Direct appeal from 3-judge courts (including orders/injunctions, whether final or interlocutory) (1253)

b) Rule 39 of Rules of Supreme Court authorizes in forma pauperis petitions for certiorari upon simple affidavit of indigency; R. 39.8 permits denial of such status if petition is frivolous or malicious

State Court Review - Differences Between: Federal Appellate Court No Finality Requirement Any Case Can certify to state court Supreme Court Finality Required (with narrow exceptions) FQ Only No certification

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Summary of Independent State Grounds Federal Constitution Valid Invalid Invalid Valid Invalid No Decision State Constitutio n Valid Invalid Valid Invalid No Decision Invalid Supreme Court Review? Yes No Yes No Yes No Yes Yes

Case 1 2 3 4 5 6 7 8

Rationale
Result will be different if it violates federal constitution Cant change result would be an advisory opinion (moot) Result will be different if it violates federal constitution Cant change result would be an advisory opinion (moot) Might change result Remand for state constitutional determination after hearing Cant change result would be an advisory opinion (moot) No Plain Statement presumed federal No Plain Statement presumed federal

Summary Affirmance Summary Reversal

Note the pattern: whenever an act is invalid under the state constitution, there is no review because the independent state ground renders the FQ moot.

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