Suing State-Court Judges: An Anti-Primer
By Joseph Dudek
Because suing judges is often ill-advised, the doctrines governing those lawsuits are often ill-considered. In resolving a lawsuit against a prosecutor, the Supreme Court largely missed that the lawsuit was really against judges. However, Justice Thomas didn’t miss it and state-court practitioners should take lessons from what Justice Thomas’s dissent says about federal jurisdiction and procedure.
On April 19, the Supreme Court of the United States handed down its opinion in Reed v. Goertz, holding that the statute of limitations to sue for denial of procedural due process in state court “begins to run when the state litigation ends.” The appeal arose from a lawsuit by a prisoner to get DNA tested, formally against a state prosecutor. “Formally,” because there was also a state court involved. The state trial court considered and rejected a motion by the prisoner to compel the prosecutor to test the DNA. The state appellate court affirmed and denied a motion for rehearing. The Supreme Court denied certiorari. And then the prisoner sued in federal district court.
When you’ve received full state-court procedure (trial, appeal of right, discretionary appeal), it is exceedingly difficult to argue that you have been deprived procedural due process. And even if the state-court procedure as applied to you fell short of federal constitutional guarantees, you had a presumptively adequate forum in which to complain: the state court itself. After all, state courts are presumptively capable of resolving federal questions. See generally Tafflin v. Levitt, 493 U.S. 455 (1990). If the state court set up a procedure that was fundamentally unfair, you should have said something! (The same is true, I have successfully argued, if you think the state court is violating some federal statute.)
For this reason, there remains life in the so-called Rooker–Feldman doctrine, named for D.C. Ct. of Appeals v. Feldman, 460 U. S. 462 (1983), and Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923). The thrust of this doctrine is that under 28 U. S. C. §1257(a), appeals from state courts may enter the federal system only through a petition to the Supreme Court seeking certiorari. In other words, you can’t appeal from a state court to a federal district court. Sometimes, lawyers are too creative with this doctrine, but in the mine run of cases, it helps avoid turning one full-bore litigation into two successive lawsuits.
All this appears to have animated Justices Thomas’s dissents in Reed and earlier in Skinner v. Switzer, 562 U.S. 521 (2011). Skinner held that one can bring a due process lawsuit in federal court challenging the statute under which the state-court proceeding was litigated, not the result in the litigation. And Skinner, just like Reed, challenged Articles 64.01–64.05 of the Texas Code of Criminal Procedure, so the Reed majority was loathe to carve a new path, silently applying stare decisis. But Justice Thomas’s basic point is that litigants should raise these constitutional claims earlier in the state-court process (“Either I am entitled to this DNA evidence under the statute, or the statute violates the federal constitution.”), because if they don’t, proving they were deprived procedural due process will be effectively impossible.
State-court practitioners should seriously consider litigating as if Skinner and Reed are not the law—as if there will not be a fresh federal forum in which to make new constitutional arguments under the due process clause. As Will Baude and Dan Epps noted on the Divided Argument podcast, the Court’s curt, 6-page opinion may suggest that the Court is uncomfortable with all this doctrinal tension but unwilling to confront it. For a similar reason, I expect that, at least outside the habeas/postconviction context, there will be little appetite to apply or expand these cases and open the federal courthouse doors. The upside of raising your federal constitutional concerns in a state-court proceeding is that you guarantee those concerns will be litigated and preserved for appellate (and perhaps Supreme Court) review. The downside is that you risk an unfavorable ruling that will likely have res judicata effect if you try to bring an equivalent § 1983 claim in federal court later.
Basically: If you believe that the state judiciary is depriving you of due process (or otherwise about to violate federal law) by applying a statute or regulation, I recommend you say something. If you don’t say something, it will be exceedingly difficult to say something later by suing the judges.