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High Court Puts Off Reviewing California Prison Case

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At the top of today's orders list is this order in the appeal of Schwarzenegger v. Plata and a companion case:

The appeals are dismissed for want of jurisdiction. The Court takes note that a further order has been entered in this case, but that order is not the subject of these appeals. It is also noted that the district court has stayed its further order pending review by this Court.

Understanding what the Court did and did not decide (mostly the latter) takes a bit of background.

When the federal courts were first set up in the Judiciary Act of 1789, important cases were heard by a multi-judge "circuit court" consisting of the Supreme Court justice for the circuit and two district judges. If appeals were allowed, the appeal went to the Supreme Court. (In federal criminal cases, there was no appeal.)  Appeals were mandatory. The Court had no discretion to turn them away undecided if it had appellate jurisdiction.

The system changed in a series of steps. By the early twentieth century, a single-judge district court was the trial court for most cases. Appeals went to the Court of Appeals, and then there was either a mandatory appeal or a discretionary writ of certiorari to the Supreme Court. By 1988, Congress had repealed most of the mandatory appeals and made nearly all cases reviewable by the discretionary writ of certiorari.

Nearly all. For a very few cases, we still have the vestiges of the old system. Congress requires some cases to be heard by a three-judge trial court. For those cases, 28 U.S.C. §1253 provides:

Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.
No choice on the Court's part. Any party may appeal. Why is Congress so concerned with review of injunctions in these cases, interlocutory as well as permanent? Look at what cases they are.

Would it be cynical to assume that Congress has provided the most expeditious review for the cases that concern congressmen most personally? Yes. It would also be correct. The biggy is 28 U.S.C. §2284, reapportionment cases. There are also some provisions of the Voting Rights Act of 1965 that still have a three-judge court requirement. Congress also sometimes provides for three-judge district courts, and therefore a direct, mandatory appeal to SCOTUS, when it passes a high-profile law it knows will be promptly assailed as unconstitutional, such as the Flag Protection Act of 1989. See United States v. Eichman, 496 U.S. 310 (1990). There are a few others, described in §2.10 of the Gressman et al. treatise.

The Prison Litigation Reform Act of 1995 (enacted in 1996), provided that prisoner release orders can only be issued by a three-judge district court. See 18 U.S.C. §3626(a)(3)(B).

There is no question that a three-judge district court has been convened under this statute and that it has issued orders. In their opposition to the appeal, the prisoners spent only two pages on the argument that the appeal was premature. Most of their argument was geared to the merits of the controversy. Even so, the Court today dismissed for lack of jurisdiction. While turning down the case for now, the Court also effectively turned down the prisoners' request that it affirm. The Court has decided, apparently, that the order to prepare a prisoner release plan is not an injunction within the meaning of the appeal statute.

Is the Court correct? Not in my opinion. The statute does not require that the order appealed from be the prisoner release order that required the three-judge court in the first place. The only requirements for appellate jurisdiction are (1) that the case be one required to be heard by a three-judge court and (2) that court issued an interlocutory or permanent injunction. These requirements appear to be met.

But if the decision is erroneous, where can the aggrieved parties appeal? Nowhere. "We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 433, 540 (1953) (Jackson, J., concurring in the judgment).

Even so, the order makes very clear that the State of California will not actually be ordered to release prisoners until the high court takes a good hard look at the case. Indeed, the Court signaled that it may have jurisdiction to hear another order entered in the interim between the appeal and its denial. So this case will go on.

Don Thompson has this story for AP. An early version of the story said, "The Supreme Court has rejected California's challenge to a court order to reduce its prison population by more than 40,000 inmates over two years." Nope. The corrected story says,

The Supreme Court on Tuesday rejected California's challenge to a preliminary court order forcing the state to reduce its prison population, setting up the state's appeal of a final order issued last week.

The administration will file its next appeal Tuesday, said Andrea Hoch, Gov. Arnold Schwarzenegger's legal affairs secretary.

In a short ruling, the justices said they will not consider a tentative ruling issued by a special judicial panel in August. The three-judge federal panel had ruled that reducing the state's prison population by about 40,000 inmates over two years is necessary to improve medical and health care throughout the state's 33 adult prisons.

The nation's high court said in a one-paragraph decision that it will await the state's appeal of the final order. The lower court put its inmate-release order on hold awaiting the Supreme Court's final decision.

Better, but still not quite right. The preliminary order did not, of its own force, force the state to reduce the prison population. If it had, the appellate jurisdiction would have been indisputably clear.

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Would typical things like ripeness and requirement of "final" order be superimposed on the two requirements for appellate jurisdiction?

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