State Courts Have Their Own Shadow Dockets

Recently, scholars, practitioners, and the public have turned attention to the U.S. Supreme Court’s “shadow docket,” the justices’ relatively new practice of using abbreviated procedures to resolve important issues. Numerous scholars have decried the lack of transparency and other faults in the process.

But the Supreme Court is far from the only appellate court to use shortcuts. At the federal level, in addition to the Supreme Court’s shadow docket, the U.S. courts of appeals have their “unpublished” (i.e., nonprecedential) opinions. And state high courts have their own shortcuts, like the New York Court of Appeals’ sua sponte merits decisions, which are issued based on limited briefs and without oral argument. All of these procedures are sausage-making that has faced criticism from a variety of observers for packing more meat into the casing than it can carry. Wisconsin Supreme Court Justice Rebecca Frank Dallet and law clerk Matt Woleske, for example, published a powerful critique of state shadow dockets just last year.

Cases that are not complex or important enough to decide in a full proceeding on the merits yet too important to allow lower courts to have the last word are resolved through a wide variety of expedited procedures. Maybe a legal question only affects the parties to the case, but so much is at stake for them that the higher court judges don’t feel they can allow a mistake to stand. Maybe a well-established precedent has been misapplied so frequently that the judges need to visibly correct the lower courts without reopening the settled doctrine. Maybe an obscure agency needs clarification of its operating rules, but no greater effort by the court is required.

To dispose of housework cases like these, procedures that offer something less than a fully articulated consideration of the case but still provide a measure of finality to the litigants are popular. Stays and preliminary decrees, “unpublished” opinions, summary reversals, and similar devices are the judges’ brooms with which they sweep away the more mundane problems that come their way.

But what happens when housework becomes structural renovations? What is at stake when the housework procedures are used to address the complex and important questions that would normally receive the justices’ full attention through a conventional appeal on the merits?

In Michigan, where I am writing from, the state supreme court has adopted the practice of deciding some cases — including some important ones — while considering the application for leave to appeal, before formally putting the matter on the merits docket. In one case earlier this year, that court denied leave to appeal and yet still reached a state constitutional holding, in the same order no less, concluding that the defendant’s state and federal constitutional public-trial rights were violated when the trial judge refused to permit the defendant’s family members to remain in the courtroom during the victim’s testimony.

Issuing a merits decision (or addressing the merits directly in a concurring or dissenting opinion) before granting leave to appeal or even after denying leave to appeal has become a regular part of the Michigan Supreme Court’s practice, covering important statewide issues ranging from the role of video conferencing in confrontation rights to court-financing costs assessed against criminal defendants. When even constitutional questions are handled in this abbreviated format, it invites the question of whether a judicial retaining wall has been knocked out under the guise of a Sunday afternoon sweep-up.

Questions about the courts’ authority to adopt these abbreviated procedures, the precedential status of nonstandard decisions, and what efficiency gains are actually achieved with these methods vary from state to state. Any appellate litigator seeking state high court consideration should certainly double-check the possibility of shortened review, or else risk falling victim to a procedural trap for the unwary. But as advocates facing a hostile U.S. Supreme Court turn with more and more frequency to state courts as a bulwark of civil rights, what do these procedures say about how state high courts differ from their federal counterpart?

For one thing, scholastic concern for the niceties of jurisdiction may not matter as much in state courts. After all, 11 state high courts (including Michigan’s) formally offer advisory opinions, and many others have relatively relaxed approaches to questions of standing, mootness, and the like.

In this context, a court issuing a decision on the basis of something less than a complete hold of the controversy is unlikely to raise eyebrows, let alone a constitutional claim, as it might in the U.S. Supreme Court. What from a federal point of view looks like a slack attitude to jurisdiction is baked in to the ordinary work of many state high courts. State high courts also tend to have broad supervisory powers rendering even the basic concept of an “appeal” more fuzzy around the edges than we see at the federal level. Second, state court decisions in this vein might, paradoxically, be valuable for upholding the rule of law. With expedited briefing, abridged opinions, precedential ambiguity, and limited public transparency, the existence of “housekeeping” procedures might encourage justices to reach unpopular decisions that are nevertheless sound applications of the law.

The open-courts case in Michigan potentially illustrates this effect: an extremely unsympathetic defendant, convicted of child abuse, won a new trial on the seemingly technical ground of the trial court’s misapplication of the law regarding when the courtroom could be closed to the public. Perhaps the outcome would not have been the same if the court had been subject to the close scrutiny a fully briefed and argued case on the regular docket would have drawn.

If “housekeeping” procedures help give justices the room to decide cases on the law rather than on popularity, perhaps their other defects can be — well, not swept under the rug, but at least scrutinized with a more forgiving eye.

Justin R. Long is an associate professor of law at Wayne State University in Detroit, where he writes and teaches about state constitutionalism.