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As a former justice on the Michigan Supreme Court and a judge of the United States Court of Appeals for the Sixth Circuit, since November 2017, the Honorable Joan L. Larsen has a first-hand view of the relationship between the country’s federal and state courts. That was the main subject of her keynote address at ÉðÊ¿Âþ»­ School of Law’s Centennial celebration on Oct. 23.

“I am often asked how I am enjoying my promotion to the federal bench,” Larsen related to the audience of law school alumni, administrators, students and supporters, including some fellow jurists. “And I respond by rejecting the characterization. I would describe it as a lateral move.”

“That of course is not to downplay the work of federal appellate courts,” she said. “What we do is incredibly important because we are the courts of last resort for most federal litigants … but I am less sure whether people appreciate the significance of state supreme courts and state courts in general.”

Three reasons

According to Larsen, the first reason why people should pay more attention to their state courts is that they directly affect people's lives to a far greater extent than federal courts. She cited a statistic from a recent book by the chief judge of her court, the Honorable Jeffrey Sutton, that 95% of disputes resolved by courts in this country are resolved in state courts, not the federal courts.

“The kind of disputes that most people have with one another [all tend to be] the province of the states,” she said. “And to the extent that these subjects remain common law subjects, the state courts are the law developers. And to the extent that legislators have a hand in these areas, it is state legislators, not Congress, that take the lead. And of course, it is state courts that have the final say on the interpretation of state legislative acts.”

Innovative courts

State courts also matter in that they can be innovators or dissenters from the federal regime, Larsen said. “State laws sometimes must conform to federal laws but don't need to follow in lockstep, even when they're confronting similar problems. Such dissents may provide useful experience to inform a larger discussion.”

One way the state courts have shown themselves to be innovators is in the creation of problem-solving courts, such as drug courts and mental health courts, that offer non-violent offenders who face addiction or mental health issues an opportunity to avoid prison time by committing to a treatment program.

“These courts have demonstrated success all around the country by lowering recidivism rates, helping offenders overcome their addictions, and substantially lowering costs,” Larsen said. “As a result, there is now growing support for exploring whether and how such court programs might work at the federal level.”

A second area where dissent may be valuable is on an important doctrinal issue: whether state courts should follow the Chevron model as established at the federal level.

“The underlying dispute is whether and how much it is appropriate for the judiciary to defer to an administrative agency’s interpretation of the law,” she said. “Some state courts, including Michigan’s, have gone the other way.”

State courts still retain the primary responsibility for interpreting state statutes according to their plain language, she explained. Michigan courts conduct de novo reviews of the statutory interpretation questions presented to them. A 2018 decision of the Ohio Supreme Court suggests that some of its justices are also interested in this question.

“My point is not to praise or condemn Chevron. Instead, my point is just to highlight that there are all sorts of ways in which state courts may accept, reject or tinker with the federal doctrine and those state judicial actions might provide data to inform a larger national discussion about an important legal topic.”

Constitutional interpretation

“A final way that state courts can be innovators or dissenters is through their interpretation of their own state constitutions,” she said. “But as Chief Judge Sutton has noted, litigants in state court rarely if ever raise claims that rest on an interpretation of state constitutional provisions that is different than or independent from their federal analogs.

“That was certainly my experience during my time on the Michigan Supreme Court,” she continued. “Arguments that the Michigan constitution protected different rights or protected the same rights differently than the federal constitution were few and far between. This was somewhat surprising to me, as Michigan courts have a history of showing willingness to rule solely under their own constitution.”

The most well-known example is the 1990 case Michigan Dept. of State Police v. Sitz, where the State Court of Appeals affirmed a lower court ruling that sobriety checkpoints violated the Fourth Amendment to the U.S. Constitution. The U.S. Supreme Court, in contrast, held 6-3 that these checkpoints met the Fourth Amendment standard of "reasonable search and seizure.”

“But on remand, the Michigan Court of Appeals did not budge,” Larsen said. “It held that while sobriety checkpoints were valid under the U.S. Constitution, they nevertheless violated the analogous search and seizure provisions of the state constitution, and the Michigan Supreme Court later affirmed that decision. So, in Michigan, citizens have a greater protection against searches and seizures than the federal constitution provides.”

Of course, state constitutions can only grant enforceable rights more generous than those protected by the U.S. Constitution, she explained. State constitutions can be used to expand individual rights, but they cannot be used to contract them.

A fair read of the law

Larsen, who was reportedly on President Trump's short list of potential nominees for the Supreme Court seat filled by Amy Coney Barrett, also talked about the differences between serving as a justice on a state high court and serving as a federal appellate court judge. In response to a question from the audience following her formal remarks, she noted that she was appointed to the Michigan Supreme Court but had to run in a statewide election the very next year.

“So, I had to fundraise, I had to go all over the state. And I am sure that if I had been running for the statehouse or for Congress, I would have absolutely failed fundraising 101. Because the very thing that I would say at each of my campaign events is, if you are looking for a particular result, in a particular case, I encourage you to grab a cocktail and then leave and take your check to the legislature, because that's not what you're buying here. All you are going to get from me is a fair read of the law.”

A distinguished professor of law

“Judge Larsen was a particularly appropriate person to deliver our Centennial Keynote,” said Akron Law Dean Christopher (C.J.) Peters. “We are often called the ‘Cradle of Judges’ in Northeast Ohio, and Judge Larsen has served with distinction on both the state and federal benches, as illustrated by her thoughtful remarks. She also has been a distinguished professor of law, which highlights Akron Law’s history of outstanding faculty teaching and scholarship.”

The former University of Michigan law professor concluded her remarks with some advice for the law students in the audience.

“There is a famous class at Michigan Law on Icelandic blood feuds. Dean Peters took the class. It's taught by a legendary professor. You learn a lot, but you don't learn all that much that is applicable in practice. It’s like the most exquisite dessert. Life is no fun if you don't eat dessert, but you can't only eat dessert and be a good law clerk or a good lawyer.

“Your faculty here has a wide range of expertise. Sometimes it seems hard and it seems scary to take these classes that are really doctrinally demanding. But do it. I used to give this talk to my law students. I called it the meat and potatoes talk. Today we know that meat and potatoes isn’t that good for you. But in the 1950s, we thought it was. So, eat your meat and potatoes, but also eat your dessert.”

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• Law Centennial
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