The Volokh Conspiracy

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Law & Government

Cruz v. Arizona's Very Odd Jurisdictional Holding

Did the Court misunderstand its "adequate and independent state ground" doctrine?


Two weeks ago, Dan Epps and I released our latest podcast episode (Mr. Jurisdiction) where among other things we talked about the Supreme Court's recent decision in Cruz v. Arizona. Cruz is a capital case featuring a dispute about whether the sentencing jury was adequately informed of the consequences of a non-death sentence. In state court, under state post-conviction proceedings, the Arizona Supreme Court held that Cruz's arguments did not satisfy Arizona Rule of Criminal Procedure 32.1(g) requirement that there be "a significant change in the law" to file using the state procedure that Cruz used. The United States Supreme Court reviewed that state decision and reversed, holding that the state's interpretation of its own procedural requirement was not an "adequate and independent state ground" (AISG) for the judgment. It then vacated and remanded for further proceedings. Cruz is an odd case. But the more I think about Cruz, the more I must confess that I had not fully recognized how odd it is.

Most of the time, when a state supreme court decides a question of state law, that is the end of the story. The Supreme Court can't/won't review whether the state court got that law "wrong." But there are two important exceptions to this.

One exception is when the state supreme court's construction of state law itself creates federal constitutional problems: for instance, if it broadens criminal law in a way that creates a fair notice problem, if it contracts property rights in a way that results in a taking, if it contracts contract rights in a way that impairs the obligation of contracts, or (tbd this term) if it interprets election law in a way that usurps the state legislature's power under the elections clause. That is not what happened in Cruz.

Another exception occurs when a federal court says that the state court decision is not an "adequate and independent state ground" for the state court's judgment. What this holding means is that the state court decision is not necessarily wrong or unconstitutional, but federal courts can pierce through that state law decision to review some underlying federal law issue in the case. For instance, it might be that the state law issue is intertwined with the federal law issue (i.e. it is not "independent") as in Michigan v. Long. Or it might be that the state law holding is so novel and unexpected that it shouldn't be allowed to block federal review (i.e., it is not "adequate") as in NAACP v. Alabama ex rel. Patterson. This is what the Supreme Court said in Cruz.

But here is the really odd part. Saying that a state court holding is not adequate and independent does not mean that the state court erred. It just means that the federal court now gets to review the federal issue. So normally, a federal decision like Cruz that holds something is not an adequate and independent state ground should then go on to  . . . review the federal issue. (Or if the case arises on federal habeas, it could remand for a lower federal court to review the federal issue.)

But in Cruz, neither of those things happened. (Indeed, the Court had chosen to limit the cert grant to just the adequate-and-independent-state-ground issue.) So the Court just held that the state's decision was not adequate and independent, and then vacated and remanded, for the state court to  . . . do what?

As I understand the law, on remand, the Arizona Supreme Court would be perfectly within its rights to say "we have already decided the scope of Rule 32.1(g) as a matter of state law, and rejected Mr. Cruz's claim because of it. It is true that the U.S. Supreme Court has said that our ruling is not an adequate-and-independent-state-ground, meaning that a federal court can review the merits of Mr. Cruz's claim, but that does not mean we must or even should do it. Our previous decision is now reinstated."

It's the equivalent of a Supreme Court case whose Part I is "we have appellate jurisdiction" but that then remands rather than actually exercising that appellate jurisdiction in a Part II. I am not aware of any previous Supreme Court AISG case like this. So I am not sure how to think about what happened here. Here are three possibilities:

1, This is just a goof. The Supreme Court forgot how the AISG doctrine works, and will be quite surprised to learn that the Arizona Supreme Court can report back on remand that nothing has changed.

2, The Supreme Court is just giving a non-binding hint to the Arizona Supreme Court that it would like it to change its mind. Perhaps the Court knows that its AISG holding has not really changed anything Arizona is supposed to do, but figures a round of vacate and remand might lead to a different result.

3, The Supreme Court has subtly shifted (or plans to shift) the nature of the adequate-and-independent from a rule about federal review into some kind of constitutional constraint on state courts. This is closer to how the parties briefed the case, and could draw some support from the Supreme Court's earlier decision in Montgomery v. Louisiana. But I suspect that the majority backed away from this kind of holding quite deliberately—perhaps as the price of a join or two. If I'm right about that suspicion, though, I still cannot tell if it backed away into option 1 or option 2.

I know that the Supreme Court doesn't take petitions for rehearing seriously, and in any event the deadline for filing one in Cruz expires today, I think, so I am not sure when and how we will get further clarification from the Court. But it seems to me that something quite odd has happened here, and I'm still not sure what it is.


Footnote 11 of the amicus brief by Jonathan Mitchell and Adam Mortara warned against this approach:

It is worth asking whether, having limited the question presented to this jurisdictional issue, the Court has inadvertently laid the groundwork for an unconstitutional advisory opinion. If this Court can do nothing further after determining that it has jurisdiction over Cruz's claim, then how can that possibly alter or rule upon the state-court judgment? And what instructions from this Court would have to be obeyed on remand? A ruling from this Court on the adequacy of Arizona's procedural bar for § 1257 purposes does not and cannot change the state-law ruling below. Perhaps this is why Cruz ignores the limitation of the question presented and recasts all of his merits arguments underneath it.