February 3, 2008

Will the Oregon Supreme Court Learn About Summary Reversals?

The blogosphere is filled with rather colorful metaphors and descriptions for what the Oregon Supreme Court was saying to the United States Supreme Court in its recent opinion in Philp Morris v. Williams. See here, here, and here. But, of course, the United States Supreme Court can still have the last word. The Oregon Supreme Court based its holding on the asserted ground of an adequate and independent state law ground to overcome the due process violation found by the United States Supreme Court. However, there are exceptions to that doctrine. The United States Supreme Court has explained that the right of state courts to assert independent state law grounds is not unlimited: "It therefore is within our province to inquire not only whether the right was denied in express terms, but also whether it was denied in substance and effect, as by putting forward nonfederal grounds of decision that were without any fair or substantial support . . . [for] if non-federal grounds, plainly untenable, may be thus put forward successfully, our power to review easily may be avoided." Thus, it is possible that the United States Supreme Court could reverse (even by summary reversal) the recent Oregon opinion on the basis that the independent state law ground regarding evaluating proposed jury instructions cannot be used as a shield to overcome a plainly unconstitutional trial. In the alternative, the court could grant certiorari and then consider the excessiveness of the award under the Due Process Clause.