November 28, 2021

Volume XI, Number 332

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Supreme Court Update: Jones v. Mississippi (No. 18-1259, Niz-Chavez v. Garland (No. 19-863), Edwards v. Vannoy (No. 19-5807), Caniglia v. Strom (No. 20-157), B.P. v. Mayor and City Council of Baltimore (No. 19-1189), CIC Services v. IRS (No. 19-930)

Yesterday was a busy day at the Court, as the Nine dropped a quartet of new decisions and granted cert in three new cases, including a potential abortion blockbuster. We’ll address the grants first, followed by the headlines of today’s decisions, before turning to a bit of catch-up: summaries of the Court’s decisions last month in Jones v. Mississippi (No. 18-1259) and Niz-Chavez v. Garland (No. 19-863), two cases that regretfully slipped through the cracks over the last several weeks.

In Dobbs v. Jackson Women’s Health Organization (No. 19-1392), the Court will decide whether all pre-viability prohibitions on elective abortions are unconstitutional. The case arises out of a challenge to a Mississippi law that (with narrow exceptions) prohibits abortions after the 15th week of pregnancy (a cut-off point almost ten weeks before the generally accepted point at which a fetus becomes viable outside the womb). A federal district court struck down the statute under Planned Parenthood v. Casey (1992), which effectively forbids bans on pre-viability abortions. Now, less than a year after the ACB-less Court struck down Louisiana’s admitting-privileges law under Casey, the RBG-less Court will decide whether Casey’s viability line will survive going forward.

The Court also granted cert in two other cases yesterday: Shinn v. Ramirez (20-1009), which concerns whether a federal habeas court may conduct an evidentiary hearing where a prisoner’s post-conviction counsel negligently failed to develop the record in state court, and Badgerow v. Walters (No. 20-1143), asking whether federal courts have subject-matter jurisdiction to confirm or vacate arbitration awards under Sections 9 and 10 of the Federal Arbitration Act when the only basis for jurisdiction is that the underlying dispute involved a federal question.

Moving on to Monday’s decisions, in Edwards v. Vannoy (No. 19-5807), the Court held (6-3) that its holding last term in Ramos v. Louisiana (2020) that state jury verdicts must be unanimous in criminal cases is not retroactive (and adding in that the entire Teague v. Lane retroactivity rule for “watershed rules of criminal procedure” no longer exists). In Caniglia v. Strom (No. 20-157), the Court unanimously held that the “community care-taking” exception to the Fourth Amendment’s warrant requirement—previously recognized in the context of police patrol of public highways—is not a standalone exception permitting warrantless searches and seizures in the home. In B.P. v. Mayor and City Council of Baltimore (No. 19-1189), the Court (7-1, with Justice Alito recused) held that a court of appeals can review any issue in a district court order remanding a case to state court when the defendant premised removal at least in part on the federal-officer removal statute or the civil-rights removal statute. And, on a rare Tax Day in May, the Court in CIC Services v. IRS (No. 19-930) unanimously held that the Anti-Injunction Act, which generally requires those contesting a tax’s validity to pay the tax before filing a legal challenge, does not preclude a suit to enjoin IRS Notice 2016-66, which requires taxpayers to report information about certain insurance agreements known as micro-captive transactions. We’ll have full summaries of these decisions later in the week.

Finally, some catch-up. Read on for summaries of Jones v. Mississippi (No. 18-1259), which held—notwithstanding the Court’s decisions in Miller v. Alabama (2012) and Montgomery v. Louisiana (2016)—that a sentencer need not make a separate finding of incorrigibility before sentencing a juvenile homicide defendant to life without parole; and Niz-Chavez v. Garland (No. 19-863), which held that all of the statutorily required information for a “notice to appear” under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) must appear in a single document in order to trigger IIRIRA’s stop-time rule, under which a nonpermanent resident alien’s period of continuous presence in the United States is deemed to end upon service of a notice to appear.

First up, in Jones, the new conservative majority on the Court put the brakes on a decade of reform in the area of juvenile sentencing. As longtime Court Fans know, in a line of decisions dating back at least 15 years, the Supreme Court has held: that the Eighth Amendment prohibits imposition of capital punishment on offenders younger than 18 at the time of their crimes (Roper v. Simmons (2005)); that the Eighth Amendment prohibits sentences of life without parole for juvenile offenders convicted of non-homicide offenses (Graham v. Florida (2010)); that the Eighth Amendment prohibits mandatory sentences of life without parole for juvenile offenders convicted of any offense, including murder (Miller v. Alabama (2012)); and that the rule in Miller is retroactive to cases on collateral review (Montgomery v. Louisiana (2015)). Among these cases, Miller is somewhat unique, as it did not categorically prohibit sentences of life without parole (LWOP); it held only that the Eighth Amendment requires a sentencer to take account of a juvenile offender’s youth and that LWOP sentences should be reserved for those “rare” offenders who are permanently incorrigible. But then the Montgomery Court held that Miller announced a substantive rule that applies retroactively, suggesting that there may be a categorical prohibition on LWOP sentences for all but the most incorrigible juvenile offenders.  

Petitioner Brett Jones was 15 years old when he killed his grandfather in 2004. At that time (pre-Miller), under Mississippi law, murder carried a mandatory sentence of life without parole. Thus, after Jones was convicted he was automatically sentenced to life without consideration of his youth at the time of the offense. While Jones’s case was still winding through the state courts on collateral review, the Supreme Court decided Miller, prohibiting mandatory LWOP sentences. The Mississippi Supreme Court (presaging the U.S. Supreme Court’s later holding in Montgomery) concluded that Miller applied retroactively to cases on state collateral review and therefore ordered a new sentencing hearing. During that sentencing hearing, the judge acknowledged that he had discretion under Miller to impose a sentence other than life without parole, but decided to reinstate the LWOP sentences anyway. In so doing, however, the sentencing judge did not make a factual finding that Jones was permanently incorrigible. Jones appealed, arguing that Miller (and, by now, Montgomery) require a sentencer to make a finding of permanent incorrigibility before imposing an LWOP sentence on a juvenile offender. The Mississippi Supreme Court disagreed, and the Supreme Court granted certiorari to resolve disagreement on this question among state and federal courts.

The Supreme Court affirmed, 6-3, holding that Miller and Montgomery do not require a sentencer to make a separate factual finding of permanent incorrigibility before sentencing a juvenile offender to life without parole. Instead, in such cases, a discretionary sentencing system is “both constitutionally necessary and constitutionally sufficient.” Justice Kavanaugh wrote for the majority, pointing out that Miller mandated “only that a sentencer follow a certain process” before imposing an LWOP sentence, and that Montgomery explicitly stated that “a finding of fact regarding a child’s incorrigibility . . . is not required.” Therefore, while these cases require consideration of an offender’s youth, they do not require any particular factual finding. Justice Kavanaugh also rejected the argument that, even if an explicit fact finding is not required, some kind of on-the-record explanation implicitly finding incorrigibility is. An on-the-record explanation is not necessary to ensure that a sentencer considers a defendant’s youth, Kavanaugh contended. “[I]f the sentencer has discretion to consider the defendant’s youth, the sentencer necessarily will consider the defendant’s youth, especially if defense counsel advances an argument based on the defendant’s youth.” This is consistent with the Court’s holdings in the capital-sentencing context, where sentencers must consider mitigating circumstances but are not required to make on-the-record explanations demonstrating that they have done so.

Although the majority read Miller and Montgomery narrowly, Justice Kavanaugh rejected the dissent’s argument that the Court was implicitly overruling those decisions. “Miller held that a State may not impose a mandatory life-without-parole sentence on a murderer under 18. Today’s decision does not disturb that holding. Montgomery later held that Miller applies retroactively on collateral review. Today’s decision likewise does not disturb that holding.” Kavanaugh also stressed that the Court’s “ruling on the legal issue presented here should not be construed as agreement or disagreement with the sentence imposed against Jones.” In particular, he emphasized that the ruling did not address any potential as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence and did not preclude Jones from seeking further relief from Mississippi’s courts, legislature, or governor.

Justice Sotomayor led the charge for the dissenters, joined by Justices Breyer and Kagan. In a forcefully worded opinion, she accused the majority of “gut[ting]” Miller and Montgomery, rejecting their essential holding that “a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’” Sotomayor firmly rejected the majority’s suggestion that its decision carefully followed precedent: “The Court is fooling no one.” Because Miller and Montgomery make clear that only those juveniles who are incapable of rehabilitation can be sentenced to life without parole, it necessarily follows that sentencers must make some sort of on-the-record finding that a juvenile in fact warrants an LWOP sentence in order for it to pass constitutional muster.

Justice Thomas filed a concurrence more-or-less agreeing with the dissent’s characterization of how the majority treated precedent. In his view, while Miller itself only created a procedural rule requiring discretion in the implementation of juvenile LWOP sentences, the Court made a mash of things in Montgomery by characterizing it Miller as a substantive rule that applies retroactively. Montgomery therefore created a “categorical exemption for certain offenders,” which would, if faithfully followed, require some kind of formal finding of incorrigibility like that advanced by Jones. Unlike the dissenters, though, Thomas would have “acknowledge[d] that Montgomery had no basis in law or the Constitution” and overrule it outright. He criticized the majority for instead “[o]verrul[ing] Montgomery in substance but not in name.”

Next, in Niz-Chavez v. Garland (No. 19-863), an “unusual coalition” of justices banded together to adopt a strict reading of a provision of the Illegal Immigration Reform Act (IIRIRA) that requires noncitizens to be served with “a notice to appear” in a certain form before their time of continuous residence in the United States can be deemed to end. We’ll explain what that means in a moment, but first an explanation for the scare quotes. As regular readers know, these days an “unusual alliance” or “unusual coalition” generally means “the liberals and the strict formalist conservatives” and so is not really all that unusual at all. In this instance, however, the moniker may be appropriate as it’s the first such coalition to include the Court’s newest formalist, Justice Barrett.

Here’s the background: Under the IIRIRA, a nonpermanent resident alien who has continuously resided in the U.S. for at least 10 years may be eligible for discretionary relief from removal. However, the statute’s so-called “time-stop rule” provides that the period of continuous presence “shall be deemed to end . . . when the alien is served a notice to appear” in a removal proceeding. The term “notice to appear” is itself defined in the statute as “written notice . . . specifying” certain information, including the charges against the alien and the time and place at which the removal proceedings will be held. In Pereira v. Sessions (2018), the Court held that, if a notice omits any of the statutorily required information, then it’s not a “notice to appear” as defined in the statute, and does not trigger the stop-time rule.

Here, the Government ordered the removal of Niz-Chavez and sent him one document containing the charges against him and, two months later, a second document providing him with the time and place of his hearing. The government argued that the two documents together contained all the statutorily required information for a “notice to appear” and, therefore, the stop-time rule was triggered when Niz-Chavez was served with the second document. But the Supreme Court disagreed, holding that a notice to appear sufficient to trigger IIRIRA’s stop-time rule must be a single document containing all the statutorily required information about an individual’s removal hearing.

Justice Gorsuch took the lead for the majority, joined (for the first, but likely not the last, time) by the “unusual coalition” of Justices Thomas, Breyer, Sotomayor, Kagan, and Barrett. By their lights, Congress’s use of the indefinite article when referring to “notice” signified that it envisioned “a” single notice provided at a discrete time, rather than a series of notices collectively providing the required information. This is consistent with the general understanding of the indefinite article as used in other case-initiating pleadings, e.g. “an indictment,” “an information,” or “a civil complaint.” While the text alone likely sufficed, Justice Gorsuch added that IIRIRA’s structure and history supported requiring the government to issue a single notice containing all the required information. Gorsuch also rejected the Government’s practical argument, that it doesn’t always know the availability of hearing officers when it initiates removal proceedings and it is therefore difficult to provide notices containing all required information, including the date and time of hearings and that, in any event, it makes little sense to require all the information in one notice when the date and time may well change before the hearing takes place. Such pleas of administrative inconvenience cannot “justify departing from the statute’s clear text.” And if practicalities are to be considered, better to place the burden on the Government to provide clear notice in a single document than to permit it (conceivably) to spread out information over seriatim notices that might be difficult for a noncitizen with limited grasp of English to pieces together. The Government should have learned its lesson in Pereira, Gorsuch suggested, and followed the letter of the law.

Justice Kavanaugh dissented, joined by the Chief Justice and Justice Alito. In his view, the majority put far more weight on the indefinite article “a” than that single letter can hold. After all, he noted, the phrase “notice to appear” is specifically defined in the IIRIRA to mean “written notice,” and there is no definition or suggestion that “written notice” necessarily denotes a single document. The majority’s reading, Kavanaugh argued, needlessly creates administrative hurdles for the Government and may lead to further clogging of an already overburdened immigration system.

That, at long last, is all for today. We’ll be back as soon as we can with summaries of yesterday’s decisions. Thanks for reading!

© 1998-2021 Wiggin and Dana LLPNational Law Review, Volume XI, Number 141
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Tadhg Dooley Appelate Attorney Wiggin Dana New Haven, CT
Partner

Tadhg is a Partner in the firm’s Litigation Department, where his practice focuses on appellate and complex civil litigation. He has extensive experience handling appeals in state and federal courts throughout the country and has obtained favorable results for a diverse range of clients, from federal prisoners to foreign presidents, big companies to small towns. Among other recent successes, Tadhg helped a municipality overturn a $6.8 million verdict in the Connecticut Appellate Court, and helped a dental practice overturn a $3.7 million verdict in the Georgia Supreme Court. Tadhg has also...

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David Roth Litigation lawyer Wiggin Dana
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David is Counsel in Wiggin and Dana’s Litigation Department and a member of the firm’s Appellate, Art and Museum Law, and Intellectual Property Litigation practice groups. He has assisted insurers, universities, large companies, cultural institutions, and sovereign nations in a variety of complex civil litigation and appeals. Representative matters include trademark, copyright, and patent cases; insurance class-actions; art-ownership disputes; and high-stakes business litigation. David has also represented private individuals and companies in several criminal matters and...

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