In order to assure that the state’s highest court has considered the federal issue and has authoritatively construed state law in light of the federal question presented, a state court case raising a federal question must be appealed to the highest court of the state in which relief could be had before review may be had in the Supreme Court.  Several presumptions are used to determine whether a state’s highest court has actually determined a federal question.[i]

When the highest state court is silent on a federal question before an appellate court, the Supreme Court of the United States assumes that the issue was not properly presented, and the aggrieved party bears the burden of defeating this assumption by demonstrating that the state court had a fair opportunity to address the federal question that is sought to be presented.[ii]

However, despite the lack of a definitive ruling on the issue by the state’s highest court, the federal question can then be considered by the Supreme Court if the record clearly shows that the federal issue has been raised before the trial court by appropriate motions and arguments, and has been argued in briefs before both the state’s intermediate and highest appellate courts.[iii]  Where the federal issue has been raised by the appellant and the majority opinion is wrong on Federal Constitutional grounds, the Supreme Court can conclude that a state supreme court has determined a federal question.[iv]

Moreover, after a trial court has entered a judgment on remand, a state’s highest court may exercise the power to reconsider a federal issue on a second appeal.[v]  The United States Supreme Court can review the determination of federal law made by a state’s highest court in deciding the first appeal, if the state’s highest court does not review the federal issue on the second appeal, finding that its determination on the first appeal constitutes the law of the case.[vi]  When the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in the Supreme Court can affirmatively show the contrary.[vii]

[i] Chambers v. Miss., 410 U.S. 284 (U.S. 1973)

[ii] Adams v. Robertson, 520 U.S. 83 (U.S. 1997)

[iii] Street v. New York, 394 U.S. 576, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969).

[iv] Hendersonville Light & Power Co. v. Blue Ridge Interurban Ry. Co., 243 U.S. 563, 37 S. Ct. 440, 61 L. Ed. 900 (1917).

[v] Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S. Ct. 625, 59 L. Ed. 1027 (1915).

[vi] Southern Ry. Co. v. Clift, 260 U.S. 316, 43 S. Ct. 126, 67 L. Ed. 283 (1922).

[vii] Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 (U.S. 1987)