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Inadequate SCOTUS Grounds

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As a general rule, if you want to assert a federal claim in state-court litigation and fail to follow the state's rules for doing so, you cannot make the same claim in federal court.  This rule applies on writ of certiorari in the U.S. Supreme Court in all kinds of cases and on habeas corpus in any federal court when a state criminal conviction results in incarceration.

An exception to this rule is when the state ground is deemed "inadequate."  This area of jurisprudence was the subject of many Supreme Court decisions during the civil rights struggle of the 1950s and 1960s, when southern state courts tried to evade civil rights precedents with creative interpretations of their procedural rules to declare federal claims defaulted.  Unfortunately, the Warren Court completely botched the task of formulating a coherent rule.  The incoherence of this jurisprudence has been denounced by numerous commentators.  Many are cited in our Philip Morris v. Williams brief.  See also this article by Tom Gede and yours truly in the September issue of Engage. The Ninth Circuit has exploited this incoherence to run roughshod over state procedural rules on a regular basis, a practice the Supreme Court has finally decided to review in Walker v. Martin, to be argued next week.

Today we have a perfectly sensible order from the Supreme Court regarding the late filing of an amicus brief in the prisoner release case, Schwarzenegger v. Plata.  What this otherwise unremarkable order illustrates is that the Supreme Court's own rules would be declared "inadequate" if subjected to the same kind of review that the Ninth Circuit applies to state court rules.
As explained in our briefs in Philip Morris and Martin, the Court has been all over the map in describing what makes a state procedural ground "inadequate."  Fallon, Meltzer, and Shapiro refer to the Court's "varying rubrics," which is an apt description.

The most pernicious of the varying rubrics was Justice Douglas's opinion for the Court in Sullivan v. Little Hunting Park, stating the Court could brush aside a state default ruling merely because the rule was discretionary.  That statement was denounced by Justice Harlan in his dissent and the late Charles Alan Wright in his treatise (ยง4026).  Fortunately, this holding was effectively overruled sub silento in Beard v. Kindler last term.

A more persistently troublesome rubric is the statement in Barr v. City of Columbia that the state rule must be "strictly or regularly followed" to be "adequate."  In the Ninth Circuit, that means that even if the rule is crystal clear, the Ninth can declare it inadequate if the exceptions to the rule are not cast in concrete but rather handled in a flexible manner.

Now back to SCOTUS.  According to Supreme Court Rule 37.3, amicus curiae ("friend of the court") briefs on the merits are due 7 days after the brief of the party supported or 7 days after the brief of the certiorari petitioner (or appellant in an appeal case) if in support of neither party.  New this year is this sentence: "Motions to extend the time for filing an amicus curiae brief will not be entertained."

This rule seems very clear.  No exceptions.  Period.  Since its effective date in February, very few would-be amici have made such motions.  One did in the Plata case.

The court-appointed receiver for California's prison healthcare system, Clark Kelso, wanted to file a brief supporting neither party.  The reason for the brief was that the brief for appellants quoted certain statements by Kelso, and he wanted to put them into "proper context."

Before the filing of these briefs, amicus had no knowledge that the State and the Intervenors intended to rely on his statements. Accordingly, amicus did not have sufficient time in which to prepare and file a brief in support of neither party, pursuant to Supreme Court Rule 37.3(a), within 7 days of the filing of Appellants' brief.

Okay, that would be good cause under a rule with a "good cause" exception, but this rule doesn't have one.  Today, the Supreme Court granted the motion anyway.

Would Rule 37.3(a) pass muster as an "adequate" rule under the scrutiny the Ninth Circuit applies to state court rules?  Clearly not.  An apparent exception to a facially absolute rule has appeared out of nowhere.  There is no explanation of a standard by which the Ninth could peer over the Supreme Court's shoulder and make sure it is applying its rule evenhandedly.  We don't know that it has been applied in the vast majority of cases, and given how few amici have made such motions since February, even one exception might be a large portion of the sample.  At the very least, we would need a new round of litigation under Bennett v. Mueller to resolve this question.

So, let's get out the big rubber stamp and stamp "INADEQUATE" over Supreme Court Rule 37.3(a).

Or, alternatively, the high court can clean up this "untidy area of the law" and say that a rule is adequate if it gives the litigant fair notice of the correct procedure, as Charles Alan Wright has been telling them for many years.

Occasional flexibility in granting exceptions is a good thing to be encouraged, not a transgression to be punished.  It is only a problem if applied discriminatorily on some forbidden basis such as race.  In applying its own rules, the high court recognizes that flexibility is necessary and not all contingencies can be spelled out in advance.  It should allow the states to do the same.

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