The Cockle Blog’s focus in recent weeks on a particular line on U.S. Supreme Court petition covers was not intended as an ongoing, multipart series, but there appear to be more nuances involved than initially apparent. A question raised when composing every petition (and subsequent brief) cover is which is the correct lower court to name as the one to which the petitioner wants the Supreme Court to send its writ of certiorari, if it grants the petition. Put simply: With whom do you have a gripe?
We began with the Justices themselves raising the issue in Foster v. Chatman, No. 14-8349, and grilling attorneys at oral argument about whether to issue the writ to the state’s highest court, which had said only that it declined review, or to a county court that had addressed the merits.
Later we reported that in the particular circumstances of Georgia’s appellate statutes and court rules, the Court settled in its May 23 decision on the state’s highest court, because the Georgia Supreme Court was deemed to have addressed the merits of the habeas case under a state court rule saying that the state’s supreme court would review a habeas appeal if it has “arguable merit.”
Along the way to that resolution in Foster, the petition had named the Georgia Supreme Court on its cover but the clerk’s office had changed that designation on the docket to the county court, which would make sense if the high court had denied discretionary review. (Habeas challenges in Georgia do not involve an intermediate appellate court, just a request for review made directly to the top.)
Our report on the relevant footnote in the Foster decision agreed that the Court’s choice of courts makes sense under a general principle that certiorari jumps over a court merely denying discretionary review and settles on the top court actually deciding the merits. Because the Court had dug into state court rules to make its pick, we suggested that petitioners may need to look harder than before at the statutes and rules defining whether a state high court’s denial of review was a matter of discretion or was the result (tacit or express) of review of the merits.
In the wake of all of the above, Cockle has to point out another twist, though without being able to do much more than suggest that some other factor might be involved as well.
Earlier this year Cockle printed a petition which named the Michigan Supreme Court on the cover. But when the clerk’s office docketed the petition, it listed the lower court as the Michigan Court of Appeals. The docketing occurred after the court-identity question was argued in Foster but before the Court issued its decision. When the petitioner’s attorneys recently put together a reply brief (after the Foster decision), they followed the clerk’s lead without necessarily agreeing with that choice. Attorneys generally try to match the docket in such details unless they see a reason to dig in heels.
There is no sign yet of whether the Supreme Court will pay any heed to the clerk’s selection of the intermediate Michigan court in the wake of Foster, but the context is different enough that it raises a question for current and future petitioners about what other factors might be relevant.
The Michigan trial court had imposed a criminal sentence that the Michigan Court of Appeals then affirmed, expressly addressing the merits. But the Michigan Supreme Court had found in another case that a key part of the state sentencing scheme violates the U.S. Sixth Amendment. The state high court then (1) declined review of the conviction, but (2) reversed the sentence and remanded for the trial court to address whether the sentence would be different under the intervening constitutional ruling. The state supreme court said the trial court should reimpose the sentence if it finds no effect but should set a new sentence if it would make a difference, and closed by saying the high court did not retain jurisdiction.
In that posture, the state’s brief petitioning for certiorari specifically challenged the Michigan Supreme Court’s decision to remand the sentence on the basis of its view of the U.S. Constitution. The prosecutor had no complaint about anything the trial court or court of appeals had done. The remand would skip past the court of appeals and would not involve it until a subsequent appeal from judgment after remand.
Why is the Michigan Court of Appeals, then, named as the challenged court on the U.S. Supreme Court docket? We have no way to know, as that was a decision within the clerk’s office before receiving whatever guidance Foster provides.
Will the Justices raise a question about the docket’s “lower court” designation, as they did in Foster? And will the choice make any more difference in the result than it did in Foster? Again, only the robed ones can know, if they think about it at all. If they do, the range of possible thoughts might include wondering why the docket names a court about which the petitioner has no gripe and maybe wondering what the court in the middle might have the power to do if it were to receive a writ that doesn’t really involve it.
As said before in this Foster-related series, Cockle’s document analysts are happy to discuss with our customers why some thought should be given to the choice of court on a petition cover, but we can’t delve into the legal issues that seem to swirl murkily about that choice.