Breaking News

A rare call for a rehearing response

Yesterday the Court, as it periodically does in the summer, released a list of miscellaneous orders.   Most of the orders were unremarkable:  the Court granted, for example, requests to forgo a joint appendix in Perez v. Mortgage Bankers Association and Nickols v. Mortgage Bankers Association, two cases that have been consolidated for oral argument on the merits in the fall.  It also denied rehearing in over thirty cases in which it had denied certiorari, virtually all of which were filed “in forma pauperis” – that is, without having to pay filing fees or for a professionally printed brief.

But there was one interesting development on yesterday’s list:  a rare order requesting a response to the state’s petition for rehearing in Martinez v. Illinois.  Based on that petition, it appears that the Justices may be focusing not on the merits of the state’s arguments, but instead on whether they should have decided the case at all. 

On May 27, the Court  summarily reversed – i.e., ruled without the submission of merits briefs or oral argument – a decision by the Illinois Supreme Court in the state’s favor.  In August 2006, Martinez had been indicted on charges of aggravated battery and mob action.  After several continuances, the state trial court set a trial date of May 17, 2010, but when that day arrived the state’s key witnesses had not shown up.  The state asked for another continuance, but the court rejected that request, and eventually it swore in a jury.  When it came time for the prosecutor to make his opening statement and later to call his first witness, he declined to do either, telling the trial judge that “the State is not participating in this case.”  Martinez’s lawyer moved for a directed verdict of “not guilty,” which the trial judge granted.

The state appealed that verdict, on the ground that the trial court should have granted its motion for a continuance.  Both the Illinois Appellate Court and the Illinois Supreme Court ruled for the state, and Martinez filed a petition for certiorari in August of last year.  In January of this year, the Court called for the record in the case – a sure sign that it was at least considering the case more closely.  And it was:  at the end of May, the Court issued a per curiam opinion in which it held that the Constitution’s Double Jeopardy Clause barred the state from retrying Martinez because he was acquitted of the offenses with which he was charged.

That was the end of the story – at least until June 23, when Illinois filed its petition for rehearing.  Petitions for rehearing are relatively uncommon among lawyers – like the Illinois Solicitor General – who practice regularly before the Court.  Unlike most briefs filed at the Court, they require the counsel of record to actually sign the brief, as well as a certification (also personally signed) that the rehearing petition “is presented in good faith and not for delay.”  The Court almost never grants rehearing in a case that it has decided on the merits.

In its brief, the state describes an unusual confluence of events that, in its view, rendered Martinez’s case moot before the Court issued its May 27 decision, and thus deprived the Court from actually deciding the case.  It explains that, although he would file his petition for certiorari in August 2013, Martinez did not seek a stay or recall of the Illinois Supreme Court’s mandate, which was filed in the trial court on July 5, 2013.  A stay of the mandate renders the decision temporarily ineffective.  Neither the Illinois Solicitor General  (then Michael Scodro, who was succeeded earlier this year by Carolyn Shapiro) nor the Illinois Attorney General’s Office was formally notified that the mandate had been filed in the trial court, where the state was represented by the local state’s attorney (although the mandate issues as a matter of course).

The trial court set a new trial of April 21, 2014.  But one week before that – and more than a month before the Supreme Court issued its decision – the local prosecutors voluntarily dismissed the aggravated battery and mob action charges that were issue in Martinez’s petition pursuant to a plea agreement.  However, the lawyers representing the state in the Supreme Court proceedings did not learn that the charges had been dismissed until May 30 of this year – three days after the Court’s summary reversal.   Martinez’s own counsel obviously knew, but they did not tell the Supreme Court either.  Because the case was moot before the summary reversal was issued, the state argues, the Supreme Court should not only vacate its own judgment but also those of the two Illinois courts.

Martinez’s response to the state’s petition for rehearing is due by August 20.

Recommended Citation: Amy Howe, A rare call for a rehearing response, SCOTUSblog (Jul. 22, 2014, 9:24 PM),