The Supreme Court in Raines distinguished Coleman v. Miller, which had
upheld state legislative standing:
"It is obvious, then, that our holding in Coleman stands (at most, see n.
8, infra ) for the proposition that legislators whose votes would have been
sufficient to defeat (or enact) a specific legislative Act have standing to
sue if that legislative action goes into effect (or does not go into
effect), on the ground that their votes have been completely nullified."
Footnote 8 suggested, but did not decide, that Coleman might not apply to
federal legislatures, and might not apply to "a similar suit brought in
federal court, since that decision depended on the fact that the Kansas
Supreme Court 'treated' the senators' interest in their votes 'as a basis
for entertaining and deciding the federal questions.'"
I should add that Coleman itself was a state court mandamus proceeding
against officers of the state legislature, although it does not appear to
have been against the legislature itself.
With regard to seeking Supreme Court review, there is nothing in the
opinion that suggests that the defendants in state court raised and
preserved any federal issue -- although it they did and the state Supreme
Court ignored it, that could raise hackles, as I suspect may have happened
in the early rounds of Bush v. Gore. They may, however, be able to argue
that since the state Supreme Court decision granted relief not sought by
any party, they could not have been expected to raise the federal issues
any earlier. I don't know anything about Nevada Supreme Court procedure --
does anyone on the list? -- but I wonder if a petition for rehearing
raising the federal issues might be in order.
With regard to the judicial exclusivity point: Perhaps I should have cited
Larry Kramer's Foreward in my earlier post; I was alluding to the same
basic idea, that Marbury (which properly read does not even stand for
judicial supremacy), is now viewed by some to stand for judicial
exclusivity in constitutional interpretation. Such a view of judicial
power may not be "bizarre" anymore, but the Nevada Supreme Court states it
more bluntly than others, and the view is worth criticizing at every turn.
Ed Hartnett
Seton Hall
Ann Althouse
<[EMAIL PROTECTED] To: [EMAIL PROTECTED], Edward A
Hartnett
u> <[EMAIL PROTECTED]>, "Discussion list
for con law
Sent by: professors <[EMAIL PROTECTED]>"
[EMAIL PROTECTED] cc:
aw.wisc.edu Subject: Re: [fedcourts] Nevada
Supreme Court & federal
action
07/15/03 02:04 PM
Please respond to
fedcourts
Wouldn't Raines v. Byrd suggest that the legislators are not the best
plaintiffs?
Given Rooker-Feldman (something I usually try not to talk about), and given
Bush v. Gore (because why not bring that up whenever possible?), shouldn't
they seek Supreme Court review of the state court case?
Ann
"Edward A Hartnett" <[EMAIL PROTECTED]> wrote:
>.... Perhaps
> those who were not parties to the state proceeding are not bound by it,
but
> aren't the best plaintiffs in the federal case the legislators, and
weren't
> they defendants in the state proceeding? ...
