October 31, 2007

Can state courts choose to apply new rules of federal constitutional law retroactively?

The Supreme Court hears oral argument today in Danforth v. Minnesota, which is a fascinating federalism case. Under Teague v. Lane, federal courts cannot grant state prisoners a writ of habeas corpus when the attack on the work of the state court is based on a rule of constitutional law that was announced after the conviction became final. (There are 2 exceptions to that doctrine that don't matter here.) The question in Danforth is whether state courts can grant prisoners relief based on the new rules that the federal court can't apply.

The Minnesota Supreme Court said no, in reasoning that I think is wrong. From the opinion (which I don't have a link for). [CORRECTION: This passage is not from the opinion but from the brief for the state of Minnesota (PDF). Here's the state court's opinion (PDF).]
If the Griffith-Teague retroactivity doctrine did not apply in state courts, supremacy and uniformity problems would be magnified because federal review of state post-conviction proceedings – in both habeas proceedings and direct review by this Court – would be unavailable for decisions that do not follow Teague. The lack of federal review deprives the state decision of constitutional legitimacy. Even if not Teague barred, this Court’s review would ratify state created federal constitutional disparity into its decisions by reviewing the claims of similarly situated collateral review defendants according to different constitutional standards.

The Griffith-Teague doctrine also vindicates federal constitutional values of finality and federalism. Finality interests identified in Teague are not unique to federal habeas review. They are present and protected by Teague in the context of federal collateral review of federal convictions as well as in review by this Court of federal issues arising in state collateral proceedings. Teague also serves the comity interest of validating the reasonable interpretation of existing federal constitutional rules made by state courts – an interest not limited to the federal habeas context. Whether a federal or state judge asserts a new federal constitutional rule to invalidate a reasonable state court interpretation of a federal constitutional rule the state finality interest is subverted.

Against strong supremacy, judicial integrity, finality, and federalism values, Petitioner asserts a state interest in selectively creating enhanced or preferred federal constitutional rights that apply only to citizens of that state. This is not a legitimate state interest. If a state wishes to create preferred rights for its citizens, respect for the political rights of the citizens of the state require a state do so under its own state law subject to the state legal and political constraints attendant to state law decisions. Anything less simply cloaks state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens.
These may be reasons why a state court might want to adopt nonretroactivity as a matter of state law, but that doesn't explain why federal law requires state courts to avoid applying the current rules of federal constitutional law.

What the federal courts can do is governed by the federal habeas statutes, which the U.S. Supreme Court interpreted in Teague. Everything the Court said about comity and finality in Teague related to the way federal court should treat state courts (which conducted the original trial before the new rule was announced). Why should this limit on federal habeas jurisdiction carry over to the state courts if the state, under its own law, chooses to revisit cases that have become final but were decided under the old rule of constitutional law?

Danforth was tried for sexual abuse of a child whose testimony was presented on videotape, something the Supreme Court, in Crawford v. Washington, said violates the Sixth Amendment right to confront the witnesses against you. But since Crawford was decided after Danforth's conviction became final, he can't ask a federal court, on habeas, to give him a new trial in which he has the opportunity to confront the witness. Should the state therefore be prevented from offering him that relief? I think not.

The Minnesota Supreme Court's opinion The brief for the state is a bit of a jumble of ideas, and it is poorly written. (How do you ratify disparity into something?) But there is some sense to the concern that a state court will "cloak[] state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens."

The idea is that state judges who have a broader conception of rights than the citizens of the state will decide cases the way they like and make it seem that federal law requires it. But federal law does require live testimony in the situation that Danforth encountered. It is simply the case that under federal jurisdiction law, the federal courts won't force the state courts to redo the trial. If the state courts were to apply the federal right anyway, they would be applying a real federal right and following state law jurisdiction rules. If the citizens of the state don't like that, they can change that jurisdiction law.

There are some more complicated angles to this, and I will write more after the oral argument becomes available.

ADDED: Scotusblog reports on the oral argument:
The Court... debated whether Teague was a decision about “rights” or only about “remedies,” whether it was both because a remedy is part of the “substance” of the right, whether it was a constitutionally grounded ruling or merely an interpretation of federal habeas statutes, whether it involved no more than a gesture of respect and “comity” toward state courts or was a directive that the states had no choice but to follow. At the end of the one-hour hearing, there was no visible consensus on what Teague now means, or on the legal authority that the Court had to make the ruling.
I'll have more when I've read the transcript of the argument. This case concerns something I've been writing about since the mid-80s, and, though the Minnesota Supreme Court says things very similar to what I've been teaching in my Federal Courts class for more than 20 years, I disagree adamantly with its conclusion. I realize many of my readers may think this is obscure and overcomplicated, but to me, it is perhaps the most interesting case I've seen in 20 years.


halojones-fan said...

How can a state have laws that are less restrictive than those applied by the Federal Government? It seems to me that no matter what the state wants, if the Federal law disallows video testimony then I don't see how state law can override that.

Indeed, wouldn't that lead people to jurisdiction-shop until they got a favorable venue?

Richard Dolan said...

What an odd case for the S Ct to have taken. I think you're right that federal law didn't require the Minn state court to dismiss the state habeas petition. The opinion (at least the part of it you highlight) suggests that the Minn S Ct decided to import the Teague limitations into the state's substantive habeas rules, but seems a bit ambiguous about the reasons why it reached that result. The Minn court's apparently main rationale -- i.e, federal procedural rules should be uniform nationally and thus state courts applying federal substantive principles in state habeas proceedings should follow the federal procedural limitations in doing so -- isn't particularly persuasive. (I say "apparently" because it's more mush than rationale.) But the passage you highlight can also be read as the Minn ct's own little vortex, where the ct was doing, in a backhanded way, exactly what it was ostensibly criticizing: "cloak[ing] state law decisions under an illegitimately claimed federal authority for the purpose of avoiding accountability to state citizens."

In all events, what is the important federal interest in straightening out the Minn court's confusion here? Assuming that the S Ct vacates and remands, the Minn ct can just say that it adopts as a matter of state procedural law the federal Teague rule, and does so for the same strange reason that it originally thought that federal procedural limitations were directly applicable in state habeas cases. No doubt, the Minn ct could reach the opposite (procedural) result, and say that, if federal law doesn't preclude the state habeas court from hearing the petition, state law allows the state habeas court to consider the 6th Amend/confrontation issue on the merits. But even if the Minn ct takes that route on remand, that's got to be a rare kind of case.

Having granted cert, I suppose the only sensible result is for the S Ct to reject the Minn ct's analysis about what federal law supposedly requires here. But the larger puzzle is why they granted cert in the first place. The Court has been reducing the number of grants of cert. Since they're taking fewer cases, one would hope that they are picking only important cases with potential national impact. This one strikes me as presenting an oddball issue that, once resolved, won't have much practical effect even in Minn. Even stranger is that they took it on the petition of the defendant. In every significant sense, it seems to be a minor case, even if it holds great promise for law school profs.

Brian Doyle said...

Keeping up "lawblogger" appearances for the Stanford appearance, I see.

Swifty Quick said...

If the MN supreme court had found some MN law to underpin its ruling, like with MN state constitutional law, then they'd be fine. But if they are telling MN courts to intepret and apply purely federal law and rights in a way that's at variance with what SCOTUS says about those laws and rights, then I'd say it gets dicey.

LRalston said...

Excellent discussion at Scotus blog

PeterP said...

There are 2 exceptions to that doctrine that don't matter here.

Yes they do. My seven year old has to do them for her homework, so please elucidate.

Kids these days eh. What are they like?

former law student said...

God forbid the condemned should forum-shop. In fact, this entire appeals process violates the goal of judicial efficiency. Let our new mantra be:

One trial
One appeal
One execution.

Smilin' Jack said...

I'm an amateur at reading Constitutional tea leaves, but it's my understanding that such a "new" constitutional rule doesn't represent a "new" Sixth Amendment right, but rather a right that had been there all along, but just hadn't been noticed before--maybe it was hiding in a penumbra somewhere. So Danforth was actually convicted in an unconstitutional trial. However, the State's interest in "finality" means he will be left to rot in prison anyway, because it's more convenient for the lawyers that way. Do I have this right?

Simon said...

Jack - that takes a kind of declaratory view of Constitutional law, and it's one I've toyed with from time-to-time around the idea that originalism is, after a fashion, quasi-declaratory: the originalist argues that what a text meant when it was enacted, it means today, so the urge to symmetry is irresistible - if it means today what it meant when it was adopted, then what it means today, properly construed, it meant when it was adopted. If that's so, as you point out, there can't be any new rules. Brown v. Board, for example, wasn't a new rule, it simply announced what the rule had always been.

One answer is that collateral review is different - this is the basis for Teague v. Lane (which basically embraces Justice Harlan's standard from Mackey) because you're then talking about cases that are already final on direct review, and habeas isn't designed as a way to relitigate a case. Still, if you do adopt the declaratory view, I confess that I'm not entirely persuaded by this; Haralan (and the Teague majority) seem to assume a certain level of realism, that is, that what's really changing are judicial glosses. They assume a new rule really is a new rule, but I still think that if the "originalism as quasi-declaratory" concept is right -- if it's right -- at very least most "new" rules wouldn't be new rules (although some might still be).

A complex thicket, to be sure, even before you get to the specific issues in Danforth.

Simon said...

BTW, my first impression -- I admit I've not read the briefs -- would be to agree with Ann and Richard - as I understand it, Danforth applied for habeas pursuant to a state habeas law in state court, so I don't see the federal question here. Except under highly unusual circumstances (Bush v. Gore, for example) under what circumstances is the state supreme court not the authoritative expositor of state law? I don't remember anything in Teague to the contrary. It seems to me that if a state provides a habeas remedy, it can direct its courts to decide whether to grant the writ based on conducting a ritual sacrifice, or consult a ouija board, and it can certainly say that the Supreme Court's present interpretation of the Constitution of the United States is a valid criterion. So where's the federal question here?

Smilin' Jack said...

So where's the federal question here?

Seems to be a game of "pass the blame." That is, the state court is too lazy to correct a miscarriage of justice, so they say "We'd really like to, but those federal meanies won't let us." Since the Supremes are the chief federal meanies, this amounts to putting the blame on them. They can't stand for that--they have to take the case so they can say, "the federal rules don't apply to you, so you're the real meanies, nyah, nyah, nyah!"

J. Cricket said...

Good idea -- a law-related post, amidst the sea of doctorerd photos, anything breast related, and reality TV. You wouldn't want those Stanford people to fly you across the country and find out that your blog has nothing to do with law. But gee, I wonder why Lessig isn't involved. And I wonder if you were ever invited to a place like Stanford when you had to stand on your, uh, actual academic writings. I can't remember a single invited lecture that you ever gave at a name law school. No wonder your site meter is so important to you -- it has given new life to a tired, undistinguished career.

Simon said...

Bruce, the flotsam of that characterization of Ann's career washes ashore on the beaches of a distinguished and highly-regarded corpus of scholarship that I doubt you have even read.

Simon said...

...And in any event, the opinion of a loan anonymous coward is worth less than nothing.

Eric Muller said...

Ann, I agree with your take on this case. But there's one little piece of it that I struggle with: what is the source of the retroactivity doctrine itself (that is, of Teague)? If the retroactivity of a federal constitutional rule is a question of federal law (either outright constitutional law or a form of "constitutional common law"), then wouldn't it be mandatory on the states as a matter of federal supremacy? If the retroactivity of federal constitutional rules is simply a gloss on the federal habeas statute, and has no constitutional status itself, then I can see how a state court, in a case that comes before it under a state habeas statute, would not be obliged to define retroactivity coextensively with the federal retroactivity rule. But if the Court's retroactivity cases themselves have a constitutional anchor, then I can't figure out how a state court could be at liberty to expand the retroactive application of a federal constitutional rule.

(It could reach that end by interpreting its own constitution, of course, but that's not what the Danforth case is about.)

Revenant said...

the opinion of a loan anonymous coward is worth less than nothing

Before I realized that was a typo, my immediate thought was "good grief, where's he on loan FROM?". It has been a long day.

Anonymous said...
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Simon said...

Wurly - I think Teague's perfectly rational unless you adopt the quasi-declaratory view I referred to earlier. What everyone will agree with, surely, is that you're entitled to the law as it stands at the time your conviction becomes final on direct review, and you shouldn't be able to relitigate in collateral procedings issues that you could have (and perhaps did) litigate on direct review. Both those premises being granted, Teague follows pretty inexorably. It seems to me that the only escape hatch from Teague is to adopt the declaratory idea that the new rule is actually an old rule, but it couldn't have been litigated the first time around because the rule simply wasn't recognized when the conviction was finalized.

Mortimer Brezny said...

Ann should have written an amicus.

Simon said...

Mort - for a few moments of madness, I considered writing one for Carhart raising the commerce clause issue, but sanity prevailed.

Paco Wové said...

'Before I realized that was a typo, my immediate thought was "good grief, where's he on loan FROM?".'

'Bruce A.' is part of a team effort, also commenting here as 'Billy G.', 'Matlock', and 'Sigmund'.

southern son said...


The federal question is the Minnesota Supreme Court's legal conclusion that federal law required that it apply the Teague rule to preclude granting relief. What federal law does or does not require a state court to do is always a federal question.

If the Minnesota court had said only that it was adopting Teague rather than that federal law required it to apply Teague, no federal question would have presented itself.