Restitution, medical malpractice, and a capital appeal

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

Once again this week, the Supreme Court has been busy sifting through the relists. The court granted review of one of last week’s new relists raising a double jeopardy question about a federal sentencing enhancement for using a firearm during a violent crime. (Grants are now filling in the 2025-26 term, which will start in October.) And the court denied review of a petition raising a First Amendment challenge to university bias-response teams. Justice Clarence Thomas dissented from the denial of review in that case, arguing that there is a divide among the courts of appeals on whether students’ speech was being chilled that the Supreme Court would ultimately need to resolve. Justice Samuel Alito also voted to grant review in that case, but did not join the dissent. The rest of the relisted cases are back for another week.

There are 126 petitions and applications scheduled for this Friday’s conference. Four of them were relisted for the first time this week.

Two of this week’s relists raise an issue that may give some of our regular readers déjà vu. Just last week the court denied review of a trio of cases that asked whether the constitutional right to a jury trial in criminal cases required the jury to find all facts necessary to impose orders of restitution, over the dissenting opinion of Justice Neil Gorsuch. This week, the justices are considering a related issue: Whether restitution ordered as part of a criminal sentence constitutes punishment for purposes of the Constitution’s ex post facto clause.

In 1993, William Neilly was sentenced in Michigan state court to life without the possibility of parole for a homicide he committed as a juvenile. Because of intervening Supreme Court decisions prohibiting the imposition of no-parole life sentences for juvenile offenders, he was resentenced to a lesser sentence. 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. That period has long since passed for Ellingburg. 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 now seek review. Both Michigan and the United States concede that courts disagree about whether restitution is civil or criminal. Michigan opposes review by saying that that state’s restitution procedures show the remedy is civil, and the United States opposes review by saying that extending Ellingburg’s payment period did not actually increase his punishment. I rate the odds of a grant in one or both cases high. 

Delaware, like many states, has enacted an “affidavit of merit” law that requires medical-malpractice plaintiffs, in conjunction with filing a complaint, to file an affidavit signed by an expert or the plaintiff’s attorney attesting to their belief that the case is meritorious. The question is how such laws should be considered when state-law disputes are brought in federal court under “diversity of citizenship” jurisdiction because the dispute involves citizens of different states. In such cases, the rule is that federal courts apply state substantive law and federal procedural law.

Most federal courts of appeals have held that “affidavit of merit” provisions and comparable statutes do not govern actions in federal court because they conflict with several different federal rules of civil rocedure – for example, by requiring more than a “short and plain statement of the claim showing that the pleader is entitled to relief,” as required by Federal Rule of Civil Procedure 8; by requiring special pleading beyond the few instances required by Federal Rule of Civil Procedure 9; or by governing attorney conduct in a way that is inconsistent with Federal Rule of Civil Procedure 11. The U.S. Courts of Appeals for the 3rd and 10th Circuits, in contrast, hold that such “affidavit of merit” requirements present “no conflict” with any Federal Rules.

Harold Berk filed a medical malpractice claim in a federal district court in Delaware Federal District Court against the doctors who treated his ankle injury. The district court dismissed Berk’s claim for failure to file an affidavit of merit. The 3rd Circuit affirmed in an unpublished decision based on longstanding circuit precedent holding that the Delaware law requirement and similar provisions are not inconsistent with the 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.

[Disclosure: This case was brought by a lawyer at my firm; I am not involved in the case.]

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 can ask federal courts to overturn their conviction or sentence. But the test is a difficult one: They have to show the federal trial court judge that their state conviction or sentence was an “unreasonable” application of “clearly established” federal law or was based on an “unreasonable” determination of the facts. And if the federal trial court rejects that claim, they need permission to appeal, and they are only entitled to appeal if either the trial court or the federal court of appeals issues a certificate of appealability, which must be issued if “reasonable jurists could debate whether … the petition should have been resolved in a different manner.”

The facts of this case seem like a late-night movie. Lance Shockley, a resident of Van Buren, Mo., crashed a borrowed pick-up truck into a ditch. He left the truck to seek help for the passenger, who was badly injured. Shockley stumbled to a nearby house, where the owners called 911. When law enforcement officers arrived, they found the passenger dead, with empty beer cans and a tequila bottle strewn inside the truck. Shockley was nowhere to be found, and he later denied involvement in the crash. During the investigation, officers questioned one of the homeowners, falsely telling her that Shockley had confessed to being the driver. She said that Shockley had said the same thing. The officers then questioned Shockley, who denied involvement and claimed he had an alibi.

This is when things start to get weird. The lead investigator was shot to death outside his home. Soon afterwards, police arrested Shockley, not for killing the investigator, but for fleeing the scene of the crash. But Shockley was then prosecuted for the murder. Shockley was convicted and sentenced to death.

This is when things get implausible enough that you start to consider changing the channel. The night after the jury’s verdict, Shockley’s attorney learned that the jury foreman had written and published a “fictionalized autobiography” in which the protagonist murdered a drunk driver who had killed his wife but received a light sentence. During jury selection, the prospective juror who went on to be the foreman said he was a self-published author, but Shockley’s lawyers didn’t ask him about it.

The foreman was removed from the jury after determining Shockley’s guilt, but before deliberating about Shockley’s death sentence. Shockley’s attorneys asked for a new trial, arguing that the foreman might have been biased against him. The judge invited Shockley’s attorneys to question the foreman and other jurors about the book and potential bias, but 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 then took his case to federal court, asking a federal district court judge to order a new trial. The judge denied both Shockley’s request and permission to appeal.

A panel of the U.S. Court of Appeals for the 8th Circuit then refused to grant Shockley a certificate of appealability, with one judge dissenting. 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
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 Feb. 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, 24-131
Issues: (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, 24-203
Issue: 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.)

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