Opinion analysis: Appellate constitutional attacks on the offense of conviction are not waived absent explicit waiver (Corrected)
on Feb 23, 2018 at 3:10 pm
In a brief opinion filed on Wednesday, the Supreme Court decided that Rodney Class’ guilty plea did not automatically preclude his challenge to the constitutionality of the statute under which he was convicted. Justice Stephen Breyer’s 10-page discussion concludes that “this holding flows directly from this Court’s prior decisions.” Justice Samuel Alito’s dissent, joined by Justices Anthony Kennedy and Clarence Thomas, variously describes Breyer’s opinion as “incoheren[t]” and “a muddle,” and indeed the opinion provides no definitive answer regarding what appellate claims, precisely, a guilty plea that lacks explicit waivers of appeal will allow. Nevertheless, the opinion makes clear that in “these circumstances, Class … neither expressly nor implicitly waived his right to appeal,” and that absent any such waiver, challenges to “the constitutionality of the statute of conviction” will be allowed.
Brief factual background
Before Class pled guilty to possessing a firearm on the U.S. Capitol grounds, he filed pro se motions to dismiss the case, alleging that the governing criminal statute violated the Second Amendment. He also claimed that the signage at the parking lot where he had parked his car with guns inside denied him “fair notice” under the due process clause. Further factual details can be found in my argument preview and analysis, as well as the parties’ briefs.
The motions to dismiss were denied and Class pled guilty several months later. The written plea agreement drafted by the government contained no express waiver of Class’ right to appeal his conviction, and the district judge’s colloquy left the waiver question unclear. Certainly, a guilty plea always waives appellate claims regarding various constitutional rights, such as the right to jury trial or defects in pre-plea proceedings, but the scope of permitted appeal when an express waiver is absent is debatable. Here, when Class did appeal (now with appointed counsel), the U.S. Court of Appeals for the District of Columbia Circuit ruled that Class’ guilty plea had implicitly waived his constitutional attacks.
A brief opinion that leaves some questions open
By a 6-3 vote, the Supreme Court reversed that judgment, describing the question as “whether a guilty plea by itself bars a federal criminal defendant from challenging the constitutionality of the [offense] statute.” This description appears to leave at least three issues not dispositively answered.
First, does this ruling apply only to “federal” defendants? The opinion cites both state and federal cases, referring to the “view of the nature of a guilty plea” expressed by “federal and state courts throughout the 19th and 20th centuries.” The opinion also relies on the relevant Federal Rule of Criminal Procedure (Rule 11) and its explanatory notes. It seems that the majority does not intend its ruling to be restricted to federal cases; but whether its decision is required by the Constitution rather than simply by good supervisory judgment, so that it must bind the states, is unclear.
Second, the opinion focuses almost exclusively on Class’ constitutional attack on the statute. At times, the opinion refers to Class’ “constitutional claim” in the singular, but at other points, it references “Class’ constitutional claims,” plural. Thus, although the opinion contains no discussion of Class’ “fair notice” claim – indeed, the opinion does not discuss the merits of any claim — it seems that he may now pursue both his due process and Second Amendment attacks. This is interesting, because the due process claim appears to be an “as applied” challenge rather than an absolute attack on the constitutional validity of the statute. Still, the final paragraph of the opinion seems to encompass both claims: “[W]e hold that Rodney Class may pursue his constitutional claims on direct appeal.”
Finally, the opinion appears to say nothing about the validity of appeal waivers generally. Disputes regarding such waivers have split some lower courts, and the issue was briefly raised at oral argument here. Yet the opinion does not note or even reserve the issue in a footnote. (Consistent with Breyer’s practice, the opinion contains no footnotes at all.) Questions about the scope and effect of “universal” plea waivers will have to wait until another day for resolution.
The ruling is clear, but the dissent has a point
Given the fact-specific nature of this opinion, its brevity, and its avoidance of sweeping statements, the real question is why it took the court over four months to issue its opinion. Perhaps the opinion is short and general because Breyer had to revise a longer first draft in order to keep his six-justice majority happy. (Justice Neil Gorsuch silently joins the majority opinion here, as his questions at oral argument indicated he would. It has been suggested to me that this is the first instance of Gorsuch and Thomas being on opposite sides of a merits decision.)
Breyer quotes at length an 1869 guilty plea decision from his home state of Massachusetts, which was not cited by any party. Alito merely dismisses that decision as “old,” and criticizes the majority for not saying whether it agrees with it or not. Presumably, including a long block quote from the case suggests that it does.
At argument, the question of what exactly is the standard for separating appellate claims that are waived by a general guilty plea from those that are not seemed to bother all the justices. Alito’s 18-page dissent, almost twice as long as the court’s opinion, takes the majority to task repeatedly for “provid[ing] no clear answer.”
Alito has a point. Although the majority undoubtedly preserves the “no waiver of constitutional claims” holdings of two prior cases, Blackledge and Menna, there is no doubt that Class’ claims are not precisely the same as the claims appealed in those two precedents. Thus, the holding of this case must sweep more broadly. It appears to reach, as Menna put it, all claims “that the State may not convict [a] petitioner no matter how validly his factual guilt is established.” There is undoubtedly some lack of precision here. Yet it is often the very flexibility of the common law that allows it to address new and unexpected claims of injustice (my words, not Breyer’s). And it certainly is arguable that constitutional claims in general are better resolved on the merits than by an unsatisfying doctrine of implicit waiver. But Breyer does not offer any such explanations; indeed, his opinion contains little in direct response to the dissent.
Alito recognizes the breadth as well as the imprecision of Wednesday’s ruling, and objects to both at length. Indeed, much of his fire is directed at explaining his view that the “Blackledge-Menna doctrine … has no sound foundation and produces nothing but confusion.” He concludes by predicting that “today’s decision will bedevil the lower courts.”
One might respond by asking, “But what Supreme Court ruling does not?” In all likelihood, though, the Class opinion will simply lead to prosecutors writing more, and more specific, appellate waivers, and judges taking more care with the parties at plea hearings to clarify what exactly is intended to be waived for appeal. The effect of Class on various state court statutes, rules and procedures will also have to be worked out; there is great variety across the country. Meanwhile, the controlling “rule” will now have to be labelled the “Blackledge–Menna–Class” doctrine, continuing to lack precision but perhaps preserving fairness.
[Update, February 25, 6:46 a.m.: A reader reminded the author that someone in Gorsuch’s chambers, not Breyer’s, found the 1869 case. As Gorsuch explained at oral argument, “I look to history to start with. And Justice Harlan … cited a Second Circuit case, and we traced it … all the way back to 1869 and Justice Ames in Massachusetts, indicating quite clearly almost exactly what Justice Breyer just — he might have channeled his inner Justice Ames there.” This also helps to explain Gorsuch’s join in Breyer’s opinion, as Breyer’s opinion relies on both the Massachusetts decision and the 2nd Circuit case that Gorsuch referenced.]