documents in the NJ election case are online

Blumstein, James james.blumstein at LAW.VANDERBILT.EDU
Thu Oct 3 18:45:38 PDT 2002

There is an old case that may present a way around this doctrine where the
reasonable litigant could not have foreseen that the appellate court
decision itself would raise a constitutional issue for the first time. See
Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673. The case was cited
in Bouie v. Columbia, 378 U.S. 347 (applying due process in criminal context
to an unforeseeable interpretation of state law), which in turn was cited in
and in part relied on in the concurrence of Chief Justice Rehnquist in Bush
v. Gore...
Jim Blumstein

-----Original Message-----
From: Edward Hartnett [mailto:hartneed at SHU.EDU]
Sent: Thursday, October 03, 2002 5:17 PM
Subject: Re: documents in the NJ election case are online

Stern and Gressman are blunt:
"It is essential to the jurisdiction of the Supreme Court under section
1257(a) that a substantial federal question has been properly raised in the
state court proceedings. . . .  The Supreme Court has never deviated from
that interpretation, except to establish a conclusive presumption that a
federal question was properly raised if the highest state court actually
resolves the issue." 8th edition at 168-69.

Hart & Wechsler, while agreeing that the Supreme Court will not hear a
federal issue that was not raised in state court, assert that it is
unsettled whether this rule is merely prudential or is a strict
jurisdictional requirement. H&W at 567.

Supreme Court  Rule 14.1(g)(i) requires a cert. petition in a state court
case to specify, with references to the record, when and how the federal
questions sought to be reviewed were raised, "so as to show that the
federal question was timely and properly raised and that this Court has

The application filed by Forrester nowhere even claims that he presented
the Article I issue in state court, much less provide references to the

In fact, the jurisdictional section of the application reads in full:

"The judgment of the New Jersey Supreme Court was entered on October 3,
2002. See
Attachment A. Justice Souter has jurisdiction to receive this Emergency
Application pursuant to
28 U.S.C. § 42 and Supreme Court Rule 22.4. Justice Souter has the power to
refer this
Application in its entirety to the full Court under Rule 22.6."

While Supreme Court Rule 24.1(a) provides that the Court "may consider a
plain error not among the question presented but evident from the record
and otherwise within its jurisdiction to decide," H&W note that this
"appears to authorize the Court to hear only an issue properly raised in
state court but not presented in the petition for certiorari, rather than
an issue not raised at all in state court." H&W at 567 n.1.  Stern &
Gressman suggest a slightly broader view: that once the Court grants cert.
on the basis of a properly presented federal question and has the full
record before it, it can "determine if a plain error of federal dimensions
has occurred, making it inappropriate to decide the federal constitutional
questions upon the basis of which the Court granted certiorari," and decide
the case based on that plain error.  Stern & Gressman at 193.

Ed Hartnett
Seton Hall

                      Kim Lane Scheppele
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 . . . and can be found at

Forrester's petition includes an Article I,  Sec. IV, cl. 1 claim and a Due
Process claim even though (as Eddie Hartnett said  in an earlier post) the
Republicans may not have preserved the constitutional  arguments for

Kim Lane Scheppele
Professor of Law and  Sociology
University of Pennsylvania
3400 Chestnut Street, Philadelphia PA  19104
Phone:  215-898-7674   Fax 215-573-2025
Email:   kimlane at

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