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February 25, 2008

Notable commentary on Danforth

Michael Dorf has this new FrindLaw essay titled "Did Justice Stevens Pull a Fast One?  The Hidden Logic of a Recent Retroactivity Case in the Supreme Court."  Here is how it starts:

Last week, in Danforth v. Minnesota, the U.S. Supreme Court ruled that a state court was free to give greater protection to defendants' rights than the Supreme Court itself requires. Stated that way, the decision is hardly news.  In our system of federalism, federal constitutional law is not a ceiling, but a floor. It sets out the minimum protections to which people are entitled.  If states — through their constitutions or otherwise — choose to add protection, that is their prerogative.

Yet Danforth was no ordinary application of the floor-but-not-a-ceiling principle, because the question in the case was not whether Minnesota could interpret its own state law more broadly than federal law. Everyone accepts that it (like every other state) can.  The question in Danforth was whether Minnesota could over-protect federal law.  Perhaps surprisingly, the Supreme Court said yes.

Although the Danforth case involved highly technical and somewhat convoluted doctrine, it nonetheless warrants unpacking, for it may reveal an unexpected and important shift in the Justices' thinking about the relationship of state law to federal law.

Some recent posts on Danforth and criminal justice federalism:

February 25, 2008 at 09:17 AM | Permalink


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Didn't Dorf miss the point? When federal habeas is involved, there's a state court criminal judgment that will either be ripped open or left undisturbed. The parameters of when federal courts do so is a federal law issue governing federal habeas courts. This has absolutely nothing to do with how state courts treat state court criminal judgments.

In other words, I think Dorf is misframing the issue. The issue is not the defendant and what his remedies are. The issue is whether limitations on when federal courts sitting in habeas can rip open state court judgments are applicable to state post-conviction courts looking at those same judgments. Framed that way, the resolution of the issue is pretty obvious.

Posted by: federalist | Feb 25, 2008 1:20:30 PM

I agree. If a state wants to undermine the finality of its own judgments based on newly-created federal constitutional right, so be it.

That said, if a court decides to be more generous than Teague requires, the "People" can always enact legislation restricting the extent to which state courts grant remedies in such circumstances.

Posted by: Da Man | Feb 25, 2008 2:06:28 PM

As Roberts points out, though, the result is a mess. Conceivably, Danforth could get relief under a Crawford claim, whereas another defendant in Wisconsin under the identical facts could be denied relief. I have no problem if this relief is premised on state law, but allowing states to apply federal law differently undermines the premise that SCOTUS is the "final arbiter" of what federal law is.

Posted by: JustClerk | Feb 25, 2008 2:29:01 PM

The extent to which a jurisdiction will permit use of habeas corpus in its courts to reopen a final judgment is a matter of its own law, regardless of whether the underlying claim is state or federal.

It is well established that a state court's refusal to hear a federal claim on the grounds that it is untimely, that it could have been raised on appeal but wasn't, or that it has previously been rejected on the appeal or a prior habeas petition is a matter of state law. Similarly, a state rule that the state will or won't allow use of habeas to reopen old cases based on a subsequent change in case law is a matter of state law.

Posted by: Kent Scheidegger | Feb 25, 2008 2:50:05 PM

Why is the result a "mess"? Different states have different standards for overturning criminal judgments based on changes in the law. So what? I think, JustClerk, that youre getting wrapped around the axle about what the law is. No one disputes that the convictions in your hypo in a sense violate federal law. The issue is whether the state courts, as a matter of federal law, is required to ignore the violation simply because, as a matter of federal non-constitutional law, federal courts are unable to overturn state judgments.

All Teague and AEDPA are doing is saying, as a matter of federal law, is that federal habeas courts have limits. Those limits are not binding on the states.

Also, I think that to enshrine Roberts' view is tantamount to giving states as litigants the right to give state court judgments more effect than state law gives them. While states as litigants have the right to challenge erroneous state court views of federal law, see Kansas v. Marsh, I don't see where the Constitution gives the Supreme Court the right to impose finality on the state court system in these cases.

Maybe I am missing something. But it seems to me that Roberts and Kennedy really missed the boat.

Posted by: federalist | Feb 25, 2008 3:33:52 PM

I recommend that anyone interested in this issue review the procedural history of Forbes v. New Mexico. In that case a defendant had a valid "Crawford" claim 20 years ago and had his conviction vacated by the New Mexico Supreme Court. The SCOTUS vacated for reconsideration due to an intervening pro-prosecution change in the law. On remand, the NM Supreme Court affirmed.

When Crawford came down 20 years later, the NM Supreme Court held that the defendant was entitled to the retroactive benefit of the decision because he had raised this precise 6th Amendment claim on direct appeal. In other words, the NM Supreme Court was willing to reopen a final judgment because Crawford proved that the NM Supreme Court had properly interpreted the Sixth Amendment the first time around.

I know Kent will despise the result as a matter of criminal justice policy (espeically because it's a murder case), but I know he agrees that the NM Supreme Court had the authority under the U.S. Constitution to do what it did.

Posted by: Da Man | Feb 25, 2008 3:39:24 PM

I'll add only that SCOTUS denied the state's cert petition in Forbes about 6 months before granting Danforth's.

Posted by: Anon | Feb 25, 2008 6:52:31 PM

I don't get Dorf's point. That wasn't the "fast one" Justice Stevens pulled. The majority opinion not too subtly suggests that if a state court adopts the position of the more lenient Teague analysis than for 2254(d) analysis the Teague / deference date might not be the conclusion of direct appeal but the conclusion of postconviction review. Put another way, Danforth wasn't the last time you'll be hearing about Teague & state postconviction.

Posted by: karl | Feb 25, 2008 7:09:14 PM

I read the Dorf article. One distinction I am not seeing in the comments here in the blog is that between federal "law" and federal constitutional provisions. There is a distinction between "laws" such as statutes and common law and constitutional provisions or "Commands". We are not talking about the regulation of medical devices (FDA statutes) and allowing California to be tougher on heart stints than say Arkansas. There, some uniformity in federal law (FDA approval of devices) gives some grace and comfort to the manufacturers. But allowing a state to afford an avenue of seeking a hearing to a convicted person on a federal constitutional Command such as the Sixth Amendment is different. Did the Sixth Amendment get "amended" thus springing a retroactivity problem? No. As Justice Scalia has pointed out, the Command of the Sixth Amendment has been there from the date of adoption of the Bill of Rights.
Danforth was wrongfully convicted. Why cannot his state give him a hearing? How does this affect the guy in Arkansas who does not get a state court hearing?
Floor vs. ceiling also seems to be an odd way of framing what the Framers had in mind. Sky is the limit Franklin might say. As long as a state court does not violate a federal constitutional right, a state may do all it can to protect that right. Otherwise we will have "nanny federalism".

Another aspect of Danforth's problem can be seen in various states that have broader protection in their state constitutions for Confrontation. In Missouri Art. I, Section 18(a) states the words "face to face" confrontation. How can a state court allow hearsay testimony (child victims out of court statements to social worker about daddy abusing her) into evidence in the face of this stricter Confrontation right? Missouri courts though, have said on occasion, that the Missouri clause is the same as the Sixth Amendment--really saying that they are ceding our rights to the U.S. Supreme Court. The citizens of Missouri are entitled to all the protections of this more vibrant Confrontation Clause right.

We should all re-examine what "federalism" is really about.

Posted by: mpb | Feb 29, 2008 5:18:09 AM

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