Two weeks ago, Dan Epps and I released our latest podcast episode (Mr Jurisdiction) where, among other things, we talked about the recent decision of the Supreme Court in Cruz vs. Arizona. Cruz is a landmark case involving a dispute over whether the sentencing jury was properly briefed on the consequences of a death sentence. In state court, in a post-conviction proceeding, the Arizona Supreme Court ruled that Cruz’s arguments failed to meet the requirement of Arizona Criminal Procedure Rule 32.1 (g) that there would be “a significant change in the law” to file using the state procedure that Cruz used. The United States Supreme Court reviewed this state decision and reversed it, finding that the state’s interpretation of its own procedural requirement was not an “adequate and independent state reason” (AISG) for judgment. It was later canceled and sent back for a new procedure. Cruz is a strange case. But the more I think about Cruz, the more I have to admit that I didn’t fully realize how weird that was.
Most of the time, when a state supreme court decides a matter of state law, that’s the end of the story. The Supreme Court cannot/will not review whether the state court “got it wrong” on this law. But there are two important exceptions to this.
An exception is when the construction of state law by the state Supreme Court itself creates federal constitutional problems: for example, if it expands the criminal law in a way that creates a fair notice problemif it contracts property rights in a way that results in a catchif he incurs contractual rights in a way that violates the obligation of contractsor (to determine this term) if it interprets the electoral law in a way that usurps power from the state legislature under the election clause. That’s not what happened to Cruz.
Another exception occurs when a federal court declares that the state court’s decision is not an “adequate and independent state ground” for the state court’s judgment. What this means is that the state court decision is not necessarily wrong or unconstitutional, but the federal courts can break through that state law decision to examine an underlying federal law issue. in the case. For example, it may be that the question of state law is related to the question of federal law (i.e., it is not “independent”) as in Michigan vs. Long. Or it could be that the state law is so new and unexpected that it shouldn’t be allowed to block federal review (i.e., it’s not “adequate”) as In NAACP vs. Alabama ex rel. patterson. That’s what the Supreme Court said in Cruz.
But here’s the really weird part. To say that a state court’s decision is not adequate and independent does not mean that the state court erred. It simply means that the Federal Court must now consider the federal question. So normally a federal decision like Cruz that finds something not to be an adequate and independent state ground should then go to . . . examine the federal question. (Or if the case stems from federal habeas, it could be sent to a lower federal court to consider the federal issue.)
But in Cruz, none of those things happened. (Indeed, the Court had chosen to limit the granting of the certificate to the sole question of the adequate and independent cause of the State.) Thus, the Court simply found that the decision of the State was not adequate and independent, then quashed and remanded, for the state court at. . . do what?
If I understand the law correctly, on remand, the Arizona Supreme Court would be perfectly entitled to say “we have already decided the scope of Rule 32.1(g) as a matter of state law and dismissed Mr. Cruz’s request because of this It is true that the Supreme Court of the United States has declared that our decision is not an adequate and independent state reason, which means that a federal court can examine the well- basis of Mr. Cruz’s claim, but that means We must or even should do it. Our previous ruling is now reinstated.”
It’s the equivalent of a Supreme Court case whose Part I is “we have appellate jurisdiction”, but which returns rather than actually exercising that appellate jurisdiction in a Part II. I am not aware of any previous ISGF Supreme Court case like this. So I don’t know how to think about what happened here. Here are three possibilities:
1 is just a blunder. The Supreme Court has forgotten how the ISGF doctrine works and will be very surprised to learn that the Arizona Supreme Court can report on the remand that nothing has changed.
2, The Supreme Court is just giving the Arizona Supreme Court a non-binding hint that it would like it to change its mind. Maybe the Court knows its participation in ISGF didn’t really change anything Arizona is supposed to do, but thinks a series of reversals and dismissals could lead to a different outcome. .
3, The Supreme Court has subtly changed (or plans to change) the nature of adequacy and independence of a rule on federal examination in a kind of Constitution constraint in state courts. This is closer to how the parties told the case and could build on the Supreme Court’s earlier decision in Montgomery v. Louisiana. But I suspect the majority have moved away from this kind of holding quite deliberately – perhaps at the cost of a knuckle or two. If I’m right about that suspicion, however, I still can’t tell if he backed into Option 1 or Option 2.
I know the Supreme Court doesn’t take rehearing motions seriously, and in any event, the deadline to file one in Cruz expires today, I think, so I don’t know when or how we’ll get some further clarifications from the Court. But it seems like something pretty weird happened here, and I’m still not sure what it is.