Pursuant to the federal jurisdictional statute final judgments or decrees rendered by the highest court of a state in which a decision could be had may be reviewed by the Supreme Court[i]:

• where the validity of a treaty or statute of the U.S. is drawn in question, or
• where the validity of a statute of any State is drawn in question on the ground of its being repugnant to the Constitution, treaties, or laws of the U.S., or
• where any title, right, privilege, or immunity is specially set up or claimed under the Constitution or the treaties or statutes or any commission held or authority exercised under the U.S.

Thus the federal statute requires that the validity of a treaty or statute be drawn in question to review final judgments or decrees rendered by the highest court of a state[ii].

Courts consider various ways in which the validity of a state statute may be drawn in question on the ground that it is repugnant to the Constitution of the United States[iii].  The federal statute gives the court appellate jurisdiction over final judgments by the highest court of a state where the validity of a state statute is drawn in question on the ground of its being repugnant to the Constitution and the decision is in favor of its validity[iv].

No particular form of words or phrases is essential in which the validity of a state statute may be drawn in question[v].  The claim of invalidity and the ground thereof is brought to the attention of the state court with fair precision and in due time.  It is essential to the court’s jurisdiction on appeal that there is an explicit and timely insistence in the state courts that a state statute is invalid[vi].  If the record as a whole shows either expressly or by clear intendment that the attention of the state court is brought in due time, the claim is to be regarded as having been adequately presented[vii].

If it appears to the court that a Federal question is directly involved so that a state court may not give judgment without deciding it, it is sufficient for removal and holding the validity of legislation to have been drawn in question[viii].  The Supreme Court will review a contention that a statute is invalid in spite of a failure to raise the issue, if the highest court of a state has actually passed on the issue[ix].

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (U.S. 1975), the court held that for the purpose of federal jurisdictional statute, the constitutional validity of a state statute making it a misdemeanor to publish the name or identity of a rape victim is drawn in question, and a decision in favor of its constitutional validity by the highest court of a state invokes the U.S. Supreme Court’s appellate jurisdiction.  The court further held that the statute should be drawn in question in a manner directly bearing upon the merits of the action.

Where the question of validity of a state statute is drawn into question, review by the state’s highest court assures that the challenged statute is authoritatively construed in light of the federal questions presented[x].  In St. Louis S. R. Co. v. Arkansas, 235 U.S. 350 (U.S. 1914), the court held that upon the mere question of construction a federal court is concluded by the decision of the state court of last resort.  But when the validity of a statute is drawn in question, the federal court should regard the substance, rather than the form, and the controlling test is to be found in the operation and effect of the law as applied and enforced by the State.

[i] 28 USCS § 1257

[ii] Saud Ben Abdul Aziz Ibn Saud v. Chi. Police Dep’t, 1986 U.S. Dist. LEXIS 20446 (N.D. Ill. Sept. 12, 1986)

[iii] New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (U.S. 1928)

[iv] Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (U.S. 1988)

[v] New York ex rel. Bryant v. Zimmerman, 278 U.S. 63 (U.S. 1928)

[vi] RALEY v. OHIO, 360 U.S. 423 (U.S. 1959)

[vii] Street v. New York, 394 U.S. 576 (U.S. 1969)

[viii] Mountain View Mining & Milling Co. v. McFadden, 180 U.S. 533 (U.S. 1901)

[ix] RALEY v. OHIO, 360 U.S. 423 (U.S. 1959)

[x] Wilson v. Cook, 327 U.S. 474 (U.S. 1946)