Skipping the Intermediate Appellate Court
Some states permit direct appellate review by the state’s highest court in cases where a matter presents a serious opportunity to develop, change, or clarify the law. Where an issue is unresolved, a state or federal statute was declared unconstitutional, or the applicable law is obsolete or unclear, the procedure permits a high court the discretion to take the case, bypassing the intermediate appellate court, and address the question presented. The same may be true for matters of great public significance or where the precedent that will be set will likely govern other cases percolating through the system.
Despite the many bases for direct appeals, they remain rare and should be used by practitioners sparingly. Direct appeals often have different time requirements and different procedures. Counsel considering a direct appeal needs to pay close attention to the grounds and process when undertaking such an appeal. Counsel must also consider whether seeking review in the intermediate appellate court might provide a good opinion that might enhance the chances for success in the higher court.
It also helps to have a good sense of the higher court. Unlike other courts that sit in panels, a state’s highest court will usually sit en banc, rather than in a random panel, particularly when the issue qualifies for direct appeal. Knowing who will consider the case allows counsel to review past relevant decisions by those very justices. Knowledge of the justices’ expressed views on the issue’s importance, preferences for what qualifies for direct appeal based on prior rulings, and their familiarity with the underlying issue can help determine when to undertake such a “Hail Mary” by aiming straight to the end zone.
Also rare, but possible, are direct appeals from a district court to the U.S. Supreme Court. In a recent grant of certiorari in Students for Fair Admissions v. University of North Carolina, No. 21-707, the Court took that case directly from a district court decision, likely because it raised the same issues as the Court chose to hear in a similar action involving Harvard University. The grant of certiorari relied on 28 U.S.C. 1254(1), which allows the Court to grant a petition for a writ of certiorari to review any case that is in the court of appeals, even if that court has not entered a final judgment. See, e.g., United States v. Nixon, 418 U.S. 683, 692 (1974). Under the Supreme Court Rule 11, a petition seeking direct review of a district court decision “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
Despite that warning that certiorari before judgment is available only sparingly, Professor Steven Vladeck found that the UNC case marked the fourteenth time since February 2019 that the Court has granted a “before judgment” petition. Before that date, it had been fourteen years since the Court last used the procedure. Does this mean that cert before judgment will become more commonplace? There is no reason to assume that that will be the case. Although the Court has shown a greater interest in taking hot-button issues quite recently, we have also had a slew of justices expressing a concern that they are being view as too political. The upshot of those observations, especially once some of these controversial decisions come down, is that the Court is likely to return to take a more low-profile approach to choosing its docket, even if decisions tend to encourage new doctrinal overlays on familiar controversies. On the other hand, the Court could offset its growing use of the “shadow docket” by relying more heavily on cert before judgment to obtain a fuller review of cases.
If cert before judgment does become a more prominent approach to review in the Court, it may well spawn similar approaches in the states. Although skipping the intermediate court is a more normal procedure in many states, and it would go against the grain of West Virginia newly adopting an intermediate appellate court, it is likely that state supreme court will find the expanded use of the procedure worth a further look.