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Sullivan Going Down

Some precedents are so obnoxious that seeing them overruled becomes something of a mission in itself. Among my career targets have been Fay v. Noia, 372 U.S. 391 (1963), overruled in Coleman v. Thompson, 501 U.S. 722 (1991) and Brown v. Allen, 344 U.S. 443 (1953), abrogated by Congress in AEDPA as recognized in Williams v. Taylor, 529 U.S. 362 (2000).

In Sullivan v. Little Hunting Park, 396 U.S. 229, 234 (1969), Justice William O. Douglas wrote for the Court that the U.S. Supreme Court had jurisdiction to review a federal question despite a state court ruling that the plaintiff had defaulted the claim under state law, for no reason other than that the rule "was more properly deemed discretionary than jurisdictional...." This is quintessential Douglas. If he researched the precedents on this question at all, the opinion shows no sign of it. His Imperial Majesty just issued his decree, and that was that. The odd thing was that four of his colleagues, some of whom usually had more sense than that, went along with it.

There actually was a good reason for holding the state ground inadequate, and Justice Harlan explained it in five pages of the dissent (242-247).  But "the majority's loose use of the word 'discretionary'" would cause problems for many years to come. See also 16B Wright, Miller, & Cooper, Federal Practice and Procedure, ยง 4026, pp. 385-386 (2d ed. 1996). One recent instance was Kindler v. Horn, 542 F.3d 70, 80 (CA3 2008), where the Third Circuit said,

When Kindler escaped in 1984, Galloway [a state court precedent on the fugitive dismissal rule] had not been overruled. Accordingly, the state trial court still had discretion to reinstate his post-verdict motions. Accordingly, we conclude that, under Doctor [a Third Circuit precedent on the "adequacy" of Pennsylvania's rule], Pennsylvania's fugitive waiver law did not preclude the district court from reviewing the merits of the claims raised in Kindler's habeas petition.

Ouch. The state court having discretion is enough to brush aside the state rule, and no more needs to be said?  The case was argued today in the Supreme Court as Beard v. Kindler. I feel confident in saying that Sullivan is down for the count. Justice Breyer says on page 38, "everybody agrees that the simple existence of discretion does not make a State ground inadequate...."

But just saying that and sending the case back, as some seemed to want to do, would provide insufficient guidance, Justice Breyer goes on. Discretionary rules will always have some degree of inconsistency in application. Doesn't the Court need to explain how to answer the inevitable follow-up question of how much is too much?

In CJLF's brief, we urge the Court (not for the first time) to adopt the late Charles Alan Wright's approach of reasonable notice and opportunity to make the claim. The state agrees. I don't know if the Court will go that far, but the law after Kindler should be in better shape than it was before. And Sullivan will finally be dead and buried.

Update: Erin Miller at SCOTUSblog has a different take on the argument.


I think there's a strong possibility of a narrow ruling here, i.e., treating fugitive disentitlement as an obvious bar and not saying much more. That may get unanimity or 8-1 (Stevens may do the "death is different thing). Then they can see if the Courts of Appeals get the message.

Shouldn't a ruling or holding of state law entirely bar federal consideration unless the application of the state-law bar violates the 14th Amendment? It seems to me that there must be some constitutional hook for a United States court to impinge on state sovereignty, and the 14A seems like the only viable candidate.

A lack of notice or opportunity to be heard would seem to qualify as a violation of 14A procedural due process. I agree that this rule should take care of most of the egregious examples in which the state's rule would work an injustice (like the civil-rights sit-in case of Bouie v. City of Columbia).

I suspect, however, there may be other cases where even notice and opportunity may not be enough to protect a criminal defendant (maybe if the state's rule singled out a minority group or a particular class of offender?). A broader rule based on 14A equal protection --- or even the older "shocks the conscious" test --- might do the trick.

I don't think giving state court judgments res judicata effect in federal court is a constitutional command.

The SCOTUS blog's take seemed a little unfair. First of all, the language in the 3d Circuit's opinion certainly could lead to the conclusion that discretion equalled inadequacy. Second of all, Breyer's exclamation that no one thinks discretion equals inadequacy is certainly not empirically true.

I doubt, as a practical matter, that many Justices are going to want to affirm a decision that allows a fugitive to have his day in court.

Neilalice, at one time the Supreme Court saw the issue in terms nearly that strict, but that was a long time ago. We are not asking for a severe rule, just a coherent and sensible one. The 1960s cases, of which Sullivan is one, had to deal with some pretty shameless manipulations of rules by courts trying to evade civil rights, but it is unfortunate they did not do so in a more coherent manner.

Federalist, Erin certainly read the argument differently from my read, but we will have to wait for the opinion to see whose was correct.

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