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Mark R. Kravitz is a fellow of the American Academy of Appellate Lawyers and, until recently, headed the appellate practice group at Wiggin & Dana in New Haven, Conn. Every lawyer learned early in law school that federal courts are bound by the decisions of a state’s highest court interpreting state law. That is what Erie teaches. And in the absence of state supreme court precedent, Erie‘s progeny instructs federal courts to give “proper regard” to relevant rulings of lower courts of the state. Commissioner v. Estate of Bosch, 387 U.S. 456, 465 (1967). But what of the converse? Are state appellate courts bound by decisions of federal courts interpreting federal law? If so, which federal court-the U.S. Supreme Court, federal courts generally or only the federal circuit in which the state court sits? And does it matter whether the federal issue involves the U.S. Constitution or only a statute? Lesson No. 1: No ‘Erie’ equivalent in state courts Appellate lawyers who find themselves arguing issues of federal law in state appellate courts quickly discover that there is no equivalent to Erie governing such issues. For no decision sets forth uniform rules to guide state courts in determining what federal law is, especially if the U.S. Supreme Court has not directly addressed the issue. To the contrary, state supreme courts have adopted a multitude of often-conflicting approaches to deciding whether they will defer to federal court interpretations of federal law. There is one rule on which all state supreme courts agree-they are bound by the decisions of the U.S. Supreme Court interpreting federal law. State courts disagree on the reason for the rule, however. Some invoke the supremacy clause of the U.S. Constitution. People v. Barber, 799 P.2d 936 (Colo. 1990). That clause makes the Constitution and the laws of the United States the “supreme Law of the Land” and binds the “Judges of every State” to them. But the provision says nothing about the Supreme Court or whether courts of a sovereign state must yield to the Supreme Court’s constructions of federal law. Others rightly cite Article III as justification for adhering to U.S. Supreme Court interpretations of federal law. Article III vests the judicial power of the United States in “one supreme Court,” and gives the Supreme Court authority to review state court decisions arising under federal law. “As applied in a hierarchical system of courts, the duty of a subordinate court to follow the laws as announced by superior courts is theoretically absolute.” Moore’s Federal Practice § 0.401, at I.2. In short, a court is always bound to follow the decisions of a court “superior” to it. While state supreme courts may agree on the binding effect of U.S. Supreme Court decisions, one finds profound disagreement when state appellate courts consider the proper weight to accord the decisions of the other federal courts mentioned in Article III-that is, “such inferior courts as the Congress may from time to time ordain and establish.” U.S. Const., art. III, § 1. As Professor Donald H. Zeigler observes in his comprehensive article on this important issue, state supreme courts “take an extraordinary number of different positions on the ‘elusive’ question of the effect of lower federal court decisions. The positions fall on a spectrum ranging from ‘slavishly follow’ to ‘totally disregard’ and include just about every position imaginable in between.” Gazing Into The Crystal Ball: Reflections On The Standards State Judges Should Use To Ascertain Federal Law, 40 Wm. & Mary L. Rev. 1143, 1152-53 (1999). Despite the width of the spectrum identified by Zeigler, state appellate courts appear to fall into several discrete categories. Some broadly pronounce that “state courts are bound by federal court determinations of federal law questions,” Mobil Oil Corp. v. Shevin, 354 So. 2d 372, 375 n.9 (Fla. 1977), without differentiating among federal courts or even explaining the rationale for such a rule. Fox v. McDonnell Douglas Corp., 890 S.W.2d 408 (Mo. Ct. App. 1995) is typical. There, the court stated without elaboration that “[b]ecause this court is construing a federal statute, the decisions of the United States Supreme Court and of the federal courts interpreting that statute are binding.” Id. at 410; see Anderson v. Wagner, 296 N.W.2d 455 (Neb. 1980). Other state supreme courts, by contrast, proclaim just as broadly that they are not bound by lower federal court decisions on federal law. These courts emphasize that they have an independent duty under the supremacy clause to interpret and apply federal law. The New Jersey Supreme Court put it this way: when passing on federal questions, “the state courts and the lower federal courts have the same responsibility and occupy the same position; there is parallelism but not paramountcy for both sets of courts are governed by the same reviewing authority of the Supreme Court.” State v. Coleman, 214 A.2d 393, 403 (N.J. 1965). The Colorado Supreme Court made the same point: “Lower federal courts do not have appellate jurisdiction over state courts and their decisions are not conclusive on state courts, even on questions of federal law.” Barber, 799 P.2d at 940. However, even jurisdictions adhering to this fiercely independent approach will typically concede that that they should at least give “respectful consideration” ( Coleman, 214 A.2d at 404) or “significant weight” ( State v. Sebastian, 701 A.2d 13, 27 (Conn. 1997)) to decisions of the federal courts of appeals (not district courts) on federal law. As if to underscore their independence, when state courts falling into this category decide to follow a federal court decision on federal law, they often declare that they have done so solely because they found the court’s rationale “persuasive.” In re Lincoln Elec. Sys., 655 N.W.2d 363 (Neb. 2003). Many state supreme courts articulate a more nuanced approach to the weight they will give lower federal court decisions. For example, appellate courts in Alabama, Connecticut, Maine and Pennsylvania, to name a few, consider themselves bound by federal law as interpreted by the federal circuit in which they sit. As the Maine Supreme Court has explained, “in the interests of existing harmonious federal-state relationships, it is a wise policy that a court of last resort accept, so far as reasonably possible, a decision of its federal circuit court on . . . a federal question.” Littlefield v. State, 480 A.2d 731 (Maine 1984). The Connecticut and Pennsylvania supreme courts are more blunt. “It would be a bizarre result if this court [adopted one construction of a federal statute] when in another courthouse, a few blocks away, the federal [district] court, being bound by the 2d Circuit rule, required [a different result].” Red Maple Prop. v. Zoning Comm’n, 610 A.2d 1238, 1242 n.7 (Conn. 1992). “If the Pennsylvania courts refuse to abide by [the federal court's] conclusions, then the individual to whom we deny relief need only ‘walk across the street’ to gain a different result.” Commonwealth v. Negri, 213 A.2d 670, 672 (Pa. 1965). Other state appellate courts apply a variant of this principle-they will follow rulings of federal circuit courts on federal law when the rulings are uniform, regardless of whether there are any relevant decisions from the circuit in which the state court sits. Thus, “Michigan adheres to the rule that a state court is bound by the authoritative holdings of federal courts regarding federal questions when there is no conflict.” People v. Riggs, 568 N.W.2d 101, 106 (Mich. Ct. App. 1997). There are sound reasons for this approach. It promotes the uniform application of federal law and reduces forum shopping. The rule also acknowledges, albeit implicitly, that federal courts of appeals have greater familiarity (if not expertise) than state courts in applying and construing federal law and the decisions of the U.S. Supreme Court. To be sure, the Supreme Court from time to time rejects even uniformly held views of the federal circuits. But many state appellate courts sensibly recognize that as more and more federal courts adopt a particular approach to, or interpretation of, a federal law, the more strongly state courts should consider themselves bound by it. When deference to federal uniformity reaches a zenith In some states, deference to federal uniformity is at its zenith when the issue is one of statutory, rather than constitutional, law. Courts articulating this view emphasize the important role that uniformity plays in implementing a consistent and predictable national statutory policy. Sprietsma v. Mercury Marine, 757 N.E.2d 75 (Ill. 2001). While the same observation might well be made of constitutional law, the reality is that state appellate courts are less willing to cede their independence in the name of uniformity and judicial comity when it is the U.S. Constitution that is at stake. There is little federal guidance on whether state courts are bound by federal court interpretations of federal law. The U.S. Supreme Court has not squarely faced the issue, though two members of the current court have expressed their personal views that state courts are coequal with lower federal courts when it comes to issues of federal law. A.L. Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring); Steffel v. Thompson, 415 U.S. 452, 482 n.3 (1974) (Rehnquist, J., concurring). Only two circuit courts have considered the issue, and they adopted opposite views. Compare Lawrence v. Woods, 432 F.2d 1072, 1075 (7th Cir. 1970) (“state courts are not precluded from exercising their own judgment upon questions of federal law”) with Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991) (“federal courts ought to have the final word on questions of federal law”). Therefore, until the Supreme Court renders an Erie-like pronouncement on how state courts must ascertain federal law, lawyers litigating federal issues in state appellate courts will need to pay close heed to the approach selected by their state supreme court. Author’s note: This is the author’s last regular column for The National Law Journal. Other duties call. I want to thank the editors for giving me the privilege of writing these columns. My only hope is that readers have enjoyed the columns as much as I have enjoyed writing them.

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