Federal Courts Enforcing State Law Against State Governments

An interesting procedural question raised by the Sixth Circuit's decision on worship services closures and the Kentucky Religious Freedom Restoration Act.

|The Volokh Conspiracy |

I noted Saturday that the Sixth Circuit had temporarily blocked the Kentucky Governor's limit on drive-in church services, based partly on the conclusion that the Governor's order violate the Kentucky state Religious Freedom Restoration Act. The court also concluded that the order violated the federal Free Exercise Clause, but the Kentucky RFRA claim was an independent basis for the panel's opinion (and in my view the stronger basis).

But this raises an important procedural question, which commenter Jeff Walden aptly identified: "[H]ow is a federal court judging the applicability of a state statute? Why isn't it up to a Kentucky court to determine if their RFRA applies here?" And fortunately, I have the answer:

1. The federal court had "'pendent' claim jurisdiction—that is, jurisdiction over nonfederal claims between parties litigating other matters properly before the court." The plaintiffs brought both a federal Free Exercise Clause claim and a state RFRA claim, so the court had jurisdiction to decide both.

2. Now a state can raise a sovereign immunity defense to block an injunction issued against the state ordering it to follow state law. But in this case, the Sixth Circuit wrote,

It bears noting that neither the Governor nor the Attorney General has raised sovereign immunity as a defense to this claim. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984). That is within their rights, see Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 389 (1998), and perhaps springs from a commendable recognition that, with or without a pandemic, no one wants to ignore state law in creating or enforcing these orders.

And remember: Lawyers' true superpower is the power to turn every question into a question about procedure.

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  1. “Lawyers’ true superpower is the power to turn every question into a question about procedure.”

    Is this the Power of Attorney?

  2. Religious leaders’ true superpower is the power to turn every question into a question about procedure.

    HEY – that works too.

  3. Or I suspect just bad lawyering by the State is some hurried litigation.

    1. Or some very shrewd — imagine if they’d raised the immunity and still lost on the Federal free exercise clause. The Governor would have come out looking like an even bigger A-hole than he already does.

      1. Liberals don’t care about “appearances” to the outside. The political class is supposed to execute using power. It is for their media enablers to spin it however that needs to happen. I’m sure “looking good” never went into the equation here and never does when liberals make power moves.

    2. As a lawyer in a state AG’s office, I cannot believe that failure to raise immunity was an oversight. It’s simply too basic. Any state AAG who has been around the block once or twice can write that brief point in his or her sleep. I suspect that some higher-up interposed a policy objection, though I have trouble imagining one other than deep attachment to the state RFRA law, which seems unlikely.

  4. The federal court does have pendent jurisdiction to determine issues of state law.
    However, that is discretionary; federal courts do not HAVE to take issues of state law, and can dismiss them without prejudice to refiling those claims in state court.
    When the issues of state law are novel, I believe the Supreme Court has said that the federal courts should defer to state courts. So arguably that is what should have happened here. The application of KY’s RFRA to these unique circumstances is something that I doubt is well settled in KY law.

    1. So arguably that is what should have happened here.

      It would be rather uncommon for a federal court to do that sua sponte, though it has the power to do so.

  5. “So great is the ascendancy of the law of action in the infancy of courts of justice that substantive law has at first the look of being gradually secreted in the interstices of procedure.” (Maine)

    Mr. D.

  6. 1) Does the Supreme Court of Kentucky have the power to take such a question by referral? A quick glance at the state constitution, Revised Statutes, and court rules suggests otherwise.

    2) Even if SCKY had such jurisdiction, shouldn’t the immediacy of the issue inform the federal court’s discretion to exercise pendent jurisdiction?

    1. 1. Yes, it does. See Ky. R. Civ. P. 76.37.

  7. I think there’s a good argument to be made that federal courts should abstain and defer to state courts in deciding novel or controversial interpretations of state law against state officials, even when sovereign immunity is waived.

    1. What sort of abstention are you discussing — Pullman, Burford, or something else?

      1. None of the above. The supplemental jurisdiction statute (28 USC 1367) expressly states that “The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if— (1)the claim raises a novel or complex issue of State law”
        28 USC 1367(c).

      2. I know this isn’t the exact style of this blog, but given current events, an explainer on different abstention doctrines and their potential applications to cases about the shut-down order might have some utility.

        (Of course, the fact that I loved the subject in law school and wouldn’t mind a refresher might have something to do with this)

        1. I can never keep the names straight, though I know the substance of all the abstention doctrines. The only one I can reliably match up to its name is Younger abstention, and only because it was the decisive issue in a case I had where my adversary’s name was Younger. Much amusement all around. Even the judge thought it was funny.

  8. This is particularly true here because in this case the court should have followed the traditional rule of constitutional avoidance and not reached the constitutional claim. The state-law claim decided the entire case, mooting any need to reach a constitutional decision.

    1. ReaderY: I’m puzzled by the combination of your two posts. If the court abstained on the state law issue, then wouldn’t it have clearly had to reach the federal law issue?

  9. “The federal court had ‘pendent’ claim jurisdiction—that is, jurisdiction over nonfederal claims between parties litigating other matters properly before the court.” The plaintiffs brought both a federal Free Exercise Clause claim and a state RFRA claim, so the court had jurisdiction to decide both.”

    There’s a good argument they should have certified the KRFRA claim to the KY supreme court. If there wasn’t a justification under the US Constitution, it’s not clear that federal power extends to ordering the state to execute its own constitutional rules even if it does claim jurisdiction to determine what those rules are.

    1. Pennhurst makes absolutely clear that a federal court cannot enjoin a state official to comply with state law, even where the requirements of state and federal law are identical (in such a case the issue is likely academic). If you work on the defensive side of a state AG’s office, you know this the way you know how to breathe. That’s why I think there must have been some policy reason for not raising the issue.

      1. But with the AG as adverse party, wouldn’t the Governor have to have outside counsel? Paul LePage had to when AG Janet Mills sued him…

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