State Con Law Case of the Week: What Kind of “Judicial Power” Is Vested?

Anthony Sanders · April 30, 2021

Any law student knows (well, they ought to at least) that Article III of the U.S. Constitution says “The judicial power of the United States, shall be vested in one Supreme Court” and whatever other courts Congress makes. And, that “judicial power” “shall extend to all cases” of certain kinds and also “to controversies” of a few other kinds. Together, the Supreme Court has taken this to mean that its power only extends to “cases or controversies.” And, to cut a long story short, this essentially means live disputes where someone has skin in the game.

Fine, that’s the “judicial power” of federal courts. What about state courts? An unremarkable case issued this week reminded me that there’s many different answers to that question. State constitutions authorize their respective states’ own judiciaries. But they’re not all written like Article III. And they may have different views than the federal courts on what “judicial power” means. And that sometimes gets overlooked.

In Heringer v. Barnegat Development Group, the Montana Supreme Court reviewed whether a dispute between a few condo owners and their development company was moot. “Mootness” in Montana courts is governed by Article VII of the Montana Constitution. Familiarly, Section 1 of Article VII states that “The judicial power of the state is vested in one supreme court, district courts” and a few others. So what does “judicial power” mean here? Well, as for the supreme court, Section 2 tells us it has “appellate jurisdiction” and some administrative tasks. And as for district courts, the main trial courts in the state, Section 4 tells us they have jurisdiction “in all criminal cases amounting to felony and all civil matters and cases at law and in equity.” From this a good argument can be made that “the judicial power” is, at a minimum, the power to try “cases” and appellate review of those cases. (Are the administrative tasks of the Supreme Court, by the way, part of the “judicial power?” Or some special, distinct, constitutional “legislative power?” I’ll let others argue about that.)

This was all relevant to the condo owners because the Montana courts have (mostly) interpreted Article VII like Article III of the U.S. Constitution: they only have jurisdiction over a case if, well, it’s a “case.” (No “controversy” mentioned in Montana’s higher law.) A “case” is only worthy of that name if the people bringing it have something to get out of it. In this particular condo dispute the court concluded that wasn’t true. The development company had rescinded the document the owners didn’t like, and the legal question of whether it had a right to issue the document (a modification of condo organization papers) wasn’t likely to arise again, thus making the whole case moot.

So what’s the fuss? This sounds basically the same as the federal courts. (To be truthful, Montana hasn’t been entirely like the federal courts, but we’ll leave that aside for today.) Well, not all constitutions are the same as Montana’s, or even are interpreted the same. For example, Minnesota’s constitution is very similar (it has “judicial power” and “cases”) but its Supreme Court has allowed it to decide cases that federal courts would find moot. For example, they can decide a case if it is “functionally justiciable,” meaning have parties on either sides aggressively litigating and the resulting answer would address an important question. And the state supreme court has allowed for cases with issues that are “capable of repetition yet evading review.” You might say, but federal courts allow for the same thing. Yes, they do, if the plaintiff in the case is likely to see the issue at hand again herself. But in Minnesota the issue just needs to be one that will be repeated in the future by the plaintiff or others. Further, the court has even said that the legislature can give the court jurisdiction that it otherwise wouldn’t have. No surprise that not everyone agrees with this. Eighth Circuit Judge Stras, then Justice Stras, criticized these expansions of “judicial power” in a series of dissents, but to no avail.

And then there’s Oregon. Its constitution (Article VII (Amended)) mentions “judicial power” but doesn’t tie it to “cases.” We don’t need to get into the text, but it’s even less like Article III than Montana and Minnesota. The Oregon Supreme Court examined what “judicial power” therefore means in 2015 in a fascinating case that I highly recommend to anyone interested in jurisdiction, or judicial review and judicial engagement generally, Couey v. Atkins, 355 P.3d 866 (2015). And what did the court find? As the author of the opinion, Justice Landau, later put it, “In a nutshell, the court concluded that its examination of the historical context of the state constitution [first adopted in 1857] supplied no support for a constitutionally-based justiciability requirement.”  Instead of a concern over “cases or controversies,” historically the common law “recognized the right of ‘strangers’ with no personal interest in the outcome to enforce public rights by prerogative writs, and early American case law followed suit.” Further, “the court acknowledged, courts long exercised the authority to dismiss cases for want of standing, mootness, or ripeness. But they did so as a matter of policy, not of constitutional command.” The opinion even went as far as suggesting that Article III’s “cases or controversies” requirement was not a jurisdictional limitation and that the federal courts had misinterpreted all of this history.

Justice Landau has also argued that other states, namely Florida and Michigan, have independently followed the same path. And, just earlier this year, in another fascinating opinion, the North Carolina Supreme Court explicitly relied on Couey and its historical analysis, and ruled there is no jurisdictional “injury-in-fact” requirement to get into North Carolina court. (There is a prudential one, but no constitutional bar.)

What’s the upshot of all this? Just because you might not have a lawsuit in federal court because it’s not a “case or controversy” doesn’t mean you don’t in state court. Judges can engage more there (in some states, at least), whether it’s an important issue of public concern, or an important issue that might come up again but just perhaps not for you yourself. A lot depends on what the drafters of the state’s constitution actually did (and not what James Madison and his colleagues did in a different document in 1787), and what the history actually is—a history that the United States Supreme Court may have (it’s hard to believe, I know) been wrong about.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.