The Supreme Court issued orders from the November 9th conference on Monday morning.  The justices added three new cases to their docket and denied certiorari in a death penalty case from Alabama.

All three of the cases that were added to the docket are First Amendment cases. The first, National Institute of Family and Life Advocates v. Becerra, is a case brought by crisis pregnancy centers against the State of California.  The issue to be decided is whether the California Reproductive FACT Act’s required disclosures violate free speech protections in the First and 14th Amendments.  Crisis pregnancy centers (“CPCs”) are centers which provide some services for pregnant women and attempt to persuade women not to end their pregnancies.  As the Washington Post reports, some state legislatures have claimed that CPCs use deceptive and confusing advertising and may intimidate women who are unaware of the type of facility they are entering. The Reproductive FACT Act requires CPCs to disclose whether they have licensed medical personnel on staff and to inform women that California offers free and low-cost contraceptives and abortions to women who qualify for those services.

The CPCs who brought suit claimed that being forced to provide the disclosures required by the Reproductive FACT Act violates their First Amendment rights to free speech and free exercise of religion.  The Ninth Circuit upheld the law, holding that the state can regulate professional speech and that the sign did not encourage abortion but merely informed patients of available services.  In addition, the Ninth Circuit held that the state has a valid interest in safeguarding public health. The Supreme Court granted cert only as to the free speech issue and declined to take up the free exercise of religion argument.  This case will be watched closely by both sides of the abortion debate, and may have far-reaching effects.  As Dahlia Lithwick and Mark Joseph Stern at Slate argue, if California is legally unable to require that CPCs post truthful disclosures regarding medical licensure and state abortion services, then other states may not be able to force abortion providers to convey anti-abortion information.

The second case granted review, Lozman v. City of Riviera Beach, Florida, presents the question of whether a First Amendment retaliatory-arrest claim is defeated by the existence of probable cause. Fane Lozman, who will be presenting his second case on the merits to the Supreme Court, will be represented by the Stanford Law School Supreme Court clinic.  His arrest occurred after he refused to stop talking about local government corruption during a city council meeting, in spite of being directed by a councilmember to stop. Lozman claims that the arrest was retaliatory and violated his First Amendment right to free speech. The Eleventh Circuit ruled that because the jury found that the police had probable cause to arrest Lozman, his retaliatory-arrest claim could not survive.  As USA Today reports, Lozman’s counsel and others who have filed briefs in support of him, argue that retaliatory arrests against political activists, protesters, and the media are designed to stifle criticism of the government and violate the free speech rights of those who are arrested.

The third case added to the docket is Minnesota Voters Alliance v. Mansky.  The issue in this case is whether a Minnesota law which broadly bans all political apparel at polling places violates voters’ right to freedom of expression. According to the Duluth News Tribune, the law “prohibits anyone within 100 feet of polling places on election day from wearing ‘a political badge, political button or other insignia.’”  The lawsuit was brought by Andrew Cilek, an official of the Minnesota Voters Alliance, who was temporarily prevented from voting in 2010 after he arrived at a polling place wearing a “Don’t Tread on Me” t-shirt and a badge that stated, “Please ID me” with Election Integrity Watch’s website and telephone number printed on it.

According to CNN, counsel for Mr. Cilek and the Minnesota Voter Alliance argued in court papers that “Although this Court has permitted campaign-free zones that prohibit campaign materials and active solicitation, it has never endorsed a ban on all political speech.”  The Eighth Circuit upheld the law, stating that the polling place is a nonpublic forum and that speech restrictions in such forums are constitutionally valid if they are viewpoint neutral and reasonable in light of the purpose of the forum.

Finally, the Court declined to grant review of the Alabama death penalty case Reeves v. Alabama.  The issue was whether a defendant may establish ineffective assistance of counsel using evidence other than testimony from trial counsel about his or her own strategic decisions under Strickland v. Washington; or whether the absence of such testimony makes the presumption of sound strategy categorically irrebuttable, as the Alabama Court of Criminal Appeals held.  In Strickland, the Court set out a standard for courts to use to determine whether counsel was constitutionally ineffective: (1) counsel’s performance must be deficient; and (2) the deficient performance must have prejudiced the defense in such a way that the defendant was deprived of a fair trial.

In 1997, Matthew Reeves was convicted of capital murder for the death of Willie Johnson in a robbery.  Reeves contends that although the trial court had granted his trial attorneys’ request for funds to pay for an expert to evaluate his intellectual disability, his attorneys never hired a mental health professional to do so.  In addition, Reeves contends that the expert that did offer testimony in his case was a court-appointed expert who only conducted limited examination of Reeves and did not speak with his attorneys until shortly before taking the stand.  The Alabama Circuit Court held an evidentiary hearing on Reeves’ post-conviction claims, but held that in spite of the substantial evidence presented regarding his intellectual disability and his counsel’s performance, the lack of testimony from his trial and appellate counsel was fatal to his claims of ineffective assistance of counsel. The Alabama Court of Criminal Appeals affirmed. The Alabama Supreme Court denied review.

Justice Sonia Sotomayor dissented from the Court’s decision not to grant review of this case, in which she argues that the court has never required that a defendant present testimony from counsel as evidence of his counsel’s actions in order to establish an ineffectiveness of counsel claim.  In fact, Justice Sotomayor argues, such testimony is not sufficient to find adequate performance if the full record “rebuts the reasonableness of the proffered justification.”  Justice Sotomayor concludes that Reeves provided ample evidence that met the Strickland standard and should have been granted review.  Justice Sotomayor was joined in her dissent by Justices Ruth Bader Ginsburg and Elena Kagan.  The dissent can be read here.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.

As part of its Order List from its November 3 Conference, the Supreme Court on Monday issued two summary decisions reversing lower court rulings in favor of habeas petitioners. It did not otherwise grant review in any new cases.

The first case, Dunn v. Madison, involves the execution of an Alabama inmate who cannot remember his crime due to neurological health issues stemming from a series of strokes. According to the ABA Journal, Madison was sentenced to death for murdering a police office in 1985. His execution is now approaching, and he sought habeas relief due to his memory loss, alleging that because he cannot remember the crime, he is not competent to be executed. The state trial court concluded he failed to show that he is unable to rationally understand that he is being executed as punishment for murder. He sought habeas relief, and the federal judge held the state trial court made a reasonable decision and correctly applied precedent — all that is required under the governing statute, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Eleventh Circuit reversed, holding that because Madison does not recall the offense, he cannot possibly understand the connection between the crime and his execution.

In a unanimous per curiam opinion, the Supreme Court reversed and stated precedent has not established that “a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment.” Justice Ginsburg, joined by Justices Sotomayor and Breyer, concurred, explaining that the issue presented is substantial and important and would be worthy of the Court’s attention if brought on direct appeal. Because the case came to the Court on habeas, however, AEDPA, it could not address the issue directly and was limited to determining if the state court’s holding was not an unreasonable application of “clearly established Federal law as determined by the Supreme Court.”

In addition to joining Justice Ginsburg’s concurrence, Justice Breyer wrote a concurrence solely on his own behalf. Justice Breyer pointed to constitutional questions due to the aging class of inmates on death row. He wrote that the “lengthy periods of imprisonment between death sentence and execution can deepen the cruelty of the death penalty while at the same time undermining its penological rational.” As Robert Barnes of The Washington Post noted, “no conservative justice rebutted him, [although i]n the past, they have alleged that it is the numerous appeals and creativity of defense lawyers that have postponed the imposition of the death penalty.” Breyer also raised the issue of the constitutionality of the death penalty itself, something that he suggested the Court should consider in his opinion in Glossip v. Gross.

In the second case, Kernan v. Cuero, Michael Cuero pleaded guilty to two charges after he caused a car accident while under the influence of methamphetamines and left another man injured. Cuero was on parole from previous drug related offenses and was unlawfully carrying a firearm with him at the time of the accident. As explained by Court House News, his original plea bargain carried a maximum sentence of 14 years in prison, but prosecutors sought to amend the original criminal complaint after the plea deal and before the sentencing date. They argued that due to his other previous offenses, Cuero fell under California’s “three strikes” law, meaning that he was eligible for a much longer sentence. Although the trial court allowed him to withdraw his guilty plea, he ultimately pleaded guilty again and was sentenced to 25 years to life.

On habeas review, Cuero argued that the state courts should have enforced the original plea deal. The Ninth Circuit held that the trial court wrongly refused to do so. The Supreme Court however, applying AEDPA, held that, “to the contrary, no ‘holding of this court’ requires the remedy of specific performance under the circumstances present here,” and thus reversed the lower court decision, thus upholding Cuero’s conviction and sentence. The opinion in Kernan was an unsigned per curiam opinion and there were no separate opinions.

This post was drafted by Matthew Webber and edited by Elisabeth Hieber, both ISCOTUS Fellows and members of Chicago-Kent Class of 2019.

On Monday, the Court released its Order List from the October 27 Conference. It didn’t add any new merits cases to the docket, but there were still a few noteworthy orders. In one closely watched case, the Court denied certiorari in 616 Croft Ave., LLC et al. v. West Hollywood, CA. The builders of a proposed condominium unit were required, by a City of West Hollywood ordinance, to pay an “affordable housing fee” of $540,393.28 to subsidize the construction of low-cost housing in the city. This requirement kicked in automatically upon approval of the building permit, without any need of the City to show that the project in question created a need for low-cost housing. The issue in 616 Croft Ave is whether a permit condition that is legislatively mandated is subject to scrutiny under the doctrine of unconstitutional-conditions. In the petition for writ of certiorari filed for this case, reasons for granting the writ centered around the Takings Clause of the Fifth Amendment, and the limitations it might place on a government’s authority to require private property owners to dedicate private property to public use via the permit process. The Court had considered this case at the previous four conferences prior to October 27, and now that they have decided not to take up the property rights issue presented in 616 Croft Ave, the previous ruling in favor of the City of West Hollywood will stand. In response to the Court’s decision not to consider this case, West Hollywood’s attorney Mike Jenkins said “[t]he city is pleased that its efforts to create housing for people at all economic levels in our community remains intact.” On the other side of the coin, the Cato Institute argued in its amicus brief that this case demonstrates how “municipalities and counties have devised schemes to evade the prohibition on uncompensated takings.” In Lexology, David L. Preiss explains what denial of certiorari means for housing in California, noting the state’s cities “are now relatively unrestricted in their adoption of inclusionary housing ordinances as they apply to ‘ownership’ projects, both as to ‘set aside’ and ‘in lieu fee’ provisions, and they probably do not need to conduct any formal ‘nexus’ studies to support them.”

The joint motion to defer consideration of the petition for writ of certiorari was granted in Pacific Gas & Electric Co. v. United States. The issues in Pacific Gas & Electric Co. stem from the restructuring of the energy markets in the State of California during the late 1990s, designed to make wholesale electricity go through two main market exchanges, facilitating sales between buyers (such as the Petitioners) and sellers. There are two questions presented in this case: (1) whether selling energy through centralized market exchanges forms a contractual relationship between buyers and federal agencies selling the energy, thus giving the Court of Federal Claims jurisdiction over lawsuits filed by buyers to recover for overcharges; and (2) whether Pacific Gas and Electric Co. was in such a relationship with the federal agencies for those sales.

The motions for leave to proceed in forma pauperis in both Modrall, Robert G. v. Deutsch, Kimberley, et al. and In Re Raymond L. Rogers were denied. Motions for leave to proceed in forma pauperis are filed when a petitioner is seeking to proceed without paying the normal costs associated with the cost of being in court. If leave to proceed in forma pauperis was granted in a lower court (i.e., counsel was appointed for an indigent party), then no additional affidavit stating proof of the need for waiving fees is required and the petitioner need only cite the relevant law or attach the order of appointment.  The motions for leave to proceed in forma pauperis here were denied because of Rule 39.8, which states that if the Court finds that a petition for writ of certiorari or a related petition is either frivolous or malicious, the Court can deny leave to proceed in forma pauperis. Robert M. Yablon of the Yale Law Journal dives into the certiorari process with a particular focus on current Supreme Court Justice Sotomayor. In his interesting piece, Yablon notes “in forma pauperis petitions account for the vast majority of the petitions the Court receives–some seventy-five to eighty percent. Yet, in most years, they account for less than twenty percent of the Court’s grants of certiorari.” The petitions for writ of certiorari and writ of habeas corpus, respectively, were dismissed in Modrall and In Re Raymond.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018.