Restitution, medical negligence, and a capital case
RELIST WATCH
Once more this week, the Supreme Court was busy sifting the relists. The Supreme Court granted review to one of the new relists from last week that raised a double-jeopardy issue about a federal sentence enhancement for using a gun during a violent criminal act. Grants are being filled for the 2025-26 school year, which begins in October. The court also denied review of a challenge to the university bias-response team based on First Amendment rights. Clarence Thomas dissented in this case from the denial. He argued that there was a split among the courts of appellations over whether the speech of students was being stifled, and that the Supreme Court ultimately would need to resolve it. Justice Samuel Alito voted in favor of granting review in this case, but he did not join any dissent. This Friday’s conference will include 126 petitions or applications. Four of these cases were relisted this week for the first.
Two relisted cases this week raise an issue which may be familiar to some of our regular readers. Last week, the court denied review to three cases that asked if the constitutional right to jury trial in criminal cases requires the jury to find the facts necessary to impose restitution orders. This was due to the dissenting opinion by Justice Neil Gorsuch. The justices are examining a similar issue this week: Whether restitution orders as part of criminal sentences constitute punishment for the purposes of the Constitution’s ex post facto provision. In 1993, William Neilly was sentenced to life without parole in Michigan state court for a homicide he committed as a juvenile. However, subsequent Supreme Court rulings prohibited the imposition of such sentences. He was resentenced with a lesser punishment. But because during the interim the state legislature had enacted a new mandatory restitution scheme, a new sentence of restitution was tacked on to his shorter prison stay.
Similarly, Holsey Ellingburg, Jr., committed his offense of conviction in 1995, when federal law required payment of restitution for 20 years after entry of judgment. Ellingburg’s 20-year period has passed. But based on intervening statutory enactments that make the 20-year period run from release from prison rather than entry of judgment, the government continues to seek restitution payments from Ellingburg.
Both Neilly and Ellingburg challenged their restitution orders and lost below on the ground that restitution is “civil” and remedial. They are now seeking review. Both Michigan and the United States admit that courts disagree on whether restitution should be civil or criminal. Michigan opposes the review, claiming that the state’s restitution procedure shows that the remedy is civil. The United States opposes the review, stating that the extension of Ellingburg’s repayment period did not increase his punishment. I rate the chances of a grant being made in either one or both cases as high.
Delaware has, like many other states, enacted a “affidavit-of-merit” law which requires that medical malpractice plaintiffs submit, along with a complaint, an affidavit that is signed by either an expert or plaintiff’s lawyer attesting that they believe the case to be meritorious. In such cases, federal courts apply state substantive law and federal procedural law. In such cases, federal courts will apply both state substantive law and federal procedure law. The U.S. Courts of Appeals of the 3rd & 10th Circuits hold that these “affidavit of Merit” requirements do not conflict with any Federal Rules. Berk’s claim was dismissed by the district court for failing to file an affidavit proving merit. In an unpublished decision, the 3rd Circuit upheld the long-standing precedent that held the Delaware law requirement is not in conflict with federal rules. But Judge Peter Phipps concurred “in only the judgment,” writing that while 3rd Circuit precedent required him to vote to affirm, if he were “writing on a clean slate” he might not have arrived “at that same conclusion.” In Berk v. Choy, Berk now asks the Supreme Court to intervene.
Our last new relist this week is Shockley v. Vandergriff, a capital case out of the U.S. Court of Appeals for the 8th Circuit. State prisoners may ask federal courts to reverse their conviction or sentence. If the federal trial court rejects that claim, they need permission to appeal. They can only appeal if either the federal court of appeals or the trial judge issues a certificate of appelability. This is only granted if “reasonable jurists” could debate whether the petition should have been resolved in a different manner. If the federal trial court rejects this claim, they will need to appeal. They can only appeal if the trial court or federal court of appeals issue a certificate of appelability. This must be issued when “reasonable jurists” could debate whether the petition should have resolved in a differently manner. Lance Shockley of Van Buren in Missouri crashed a borrowed pickup truck into a ditch. He left the truck in order to help the passenger who was severely injured. Shockley fell into a house nearby, where the owners dialed 911. When the police arrived, they found that the passenger was dead and that empty beer cans, a tequila glass, and other items were scattered inside the truck. Shockley was nowhere in sight, and he denied any involvement in the accident. During the investigation officers falsely told one of the homeowners that Shockley confessed as the driver. She claimed that Shockley said the same thing. Shockley denied any involvement and claimed to have an alibi. The lead investigator was fatally shot outside his home. Shockley was arrested shortly afterward, not because he killed the investigator but rather for fleeing from the scene of an accident. Shockley was prosecuted and sentenced to death for the murder. Shockley was found guilty and sentenced to die. Shockley’s lawyer learned the night after the jury verdict that the jury foreman wrote and published a “fictionalized memoir” in which a drunk driver killed his wife, but received a light punishment. Shockley’s lawyers did not ask the foreman about his self-published book during jury selection. Shockley’s lawyers asked for a retrial, arguing that he might have been prejudiced by the foreman. The judge invited Shockley’s attorneys to ask the foreman about the book and any potential bias. However, they declined. The request for a new trial was denied.
Shockley then hired new lawyers, who learned that the foreman had shared his book with other jurors. Shockley filed for post-conviction relief, arguing that his attorneys’ failure to question jurors after learning about the foreman’s book represented ineffective assistance of counsel so egregious it violated the Constitution.
At the end of the appeal process, the Missouri Supreme Court denied Shockley relief, with one judge dissenting. Shockley took his case to federal district court and asked a federal judge to order a retrial. A panel of the U.S. Court of Appeals, 8th Circuit, refused to grant Shockley a certification of appealability. One judge dissented. The full 8th Circuit did the same, with a second judge joining the first in dissent.
Shockley now asks the justices to let his appeal move forward. He argues that he is has satisfied the standard to appeal because “reasonable jurists” in his case actually did “debate” the merits of his case, and two would have let his appeal move forward.
Stay tuned; we should be learning more on Monday.
New Relists
Neilly v. Michigan, 24-395
[Disclosure: This case was brought by a lawyer at my firm; I am not involved in the case.]
Issue
: Whether restitution ordered as part of a criminal sentence is punishment for purposes of the Constitution’s ex post facto clause.
(Relisted after the Feb. 28 conference. )
Berk v. Choy, 24-440
Issue: Whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court.
(Relisted after the Feb. 28 conference. )
Ellingburg v. United States, 24-482
Issue
: Whether criminal restitution under the Mandatory Victim Restitution Act is penal for purposes of the Constitution’s ex post facto clause.
(Relisted after the February 28 conference. )
Shockley v. Vandergriff, 24-517
Issue
: Whether the U.S. Court of Appeals for the 8th Circuit erred in denying petitioner’s application, over dissent, to appeal the denial of his Sixth Amendment ineffective assistance of counsel claims.(Relisted after the Feb. 28 conference. )
Returning Relists
Apache Stronghold v. United States, 24-291
Issue
: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13, Jan. 10, Jan. 17, Jan. 24, Feb. 21 and Feb. 28 conferences. )
Ocean State Tactical, LLC v. Rhode Island, 24-131Issues:
(1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21 and Feb. 28 conferences. )
Snope v. Brown, 24-203Issue:
Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21 and Feb. 28 conferences. )
Franklin v. New York, 24-330
Issues: (1) Whether the Sixth Amendment’s confrontation clause applies to out-of-court statements admitted as evidence against criminal defendants if, and only if, the statements were created for the primary purpose of serving as trial testimony; and (2) whether a post-arrest report prepared about a criminal defendant by an agent of the state for use in a criminal proceeding can be admitted as evidence against the defendant at trial, without providing a right to cross-examine the report’s author.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21 and Feb. 28 conferences. )
Alabama v. California, 22O158
Issue: Whether the Supreme Court should enjoin states from seeking to impose liability or obtain equitable relief premised on either emissions by or in other states, or the promotion, use and/or sale of traditional energy products in or to those other states. CVSG: 12/10/2024
(Relisted after the Jan. 17, Jan. 24, Feb. 21 and Feb. 28 conferences. )
Crownholm v. Moore, 24-276
Issues: (1) What standard applies to determine whether an occupational-licensing law’s restriction on a person’s use, creation, and dissemination of information in drawings is a regulation of his speech or of his conduct that incidentally involves his speech; and (2) what level of constitutional scrutiny applies to speech regulated by an occupational-licensing law.
(Relisted after the Feb. 21 and Feb. 28 conferences. )
360 Virtual Drone Services LLC v. Ritter, 24-279
Issue: Whether, in an as-applied First Amendment challenge to an occupational-licensing law, the standard for determining whether the law regulates speech or regulates conduct is this court’s traditional conduct-versus-speech dichotomy.
(Relisted after the Feb. 21 and Feb. 28 conferences.)
L.M. v. Town of Middleborough, Massachusetts, 24-410
Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21 and Feb. 28 conferences. )
Hittle v. City of Stockton, California, 24-427
Issues: (1) Whether this court should overrule McDonnell Douglas Corp. v. Green; and (2) whether step three of the McDonnell Douglas burden-shifting framework requires a plaintiff to disprove the employer’s proffered reason for the adverse employment action, when the text of Title VII of the Civil Rights Act of 1964 and Bostock v. Clayton County provide that an action may have more than one but-for cause or motivating factor.
(Relisted after the Feb. 21 and Feb. 28 conferences. )
Chiles v. Salazar, 24-539
Issue: Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause of the First Amendment.
(Relisted after the Feb. 21 and Feb. 28 conferences. )
