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.

UPDATE:

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.

Comments

[fredsmith]

On remand the Arizona court will need to address the federal question because its interpretation of the procedural rule was inadequate grounds to evade it.

The court concluded it “does not need to reach Cruz’s additional arguments that the decision below reflects an attitude of hostility toward Simmons v. South Carolina, 512 U. S. 154 (1994) (plurality opinion), and Lynch v. Arizona, 578 U. S. 613 (2016) (per curiam), and impermissibly discriminates against federal law by nullifying Cruz’s rights under Simmons.”

[rrdavis]

But I think the point here is that nothing actually requires the AZ court to address the federal question. The AISG doctrine doesn't require state courts do something. It just allows the federal courts to do something they usually wouldn't.

Unfortunately, I don't think we'll get answers in this case because the application of the federal rule is so clear. I expect the AZ court will do what it should, to avoid being reversed again and this time with more of a tongue lashing. It would be interesting if the underlying federal question was really challenging and the state court wanted to avoid the work.

[John F. Carr]

The court behaves differently in capital cases. In particular, you will have two or three votes to find any excuse to rule for the defendant. You only need three or two more votes that look past the death sentence to get to the legal question presented for review.

[Sarcastr0]

This is well removed from the death penalty aspect.

[Devin Watkins]

I think the Supreme Court is trying to say the state supreme court is using their authority to interpret state procedural processes to in effect nullify a federal right, and the Supreme Court is just saying stop it. If you want to have that procedure, fine, but you can't apply it retroactively to people like Cruz when that in effect invalidates his federal rights. So on remand they had better not apply it to Cruz, even if they want to apply that procedural right for future cases.

[Purple Martin]

In his concentration on a relatively obscure threshold issue ("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"), using an interpretation that seems not to have made it into either parties' arguments, not sure why Prof. Baude didn't observe the this marks the third time the AZ Supremes apparently ignored the same 1994 Supreme Court of the United States decision (Simmons v. South Carolina) while deciding against Cruz and, for the third time, SCOTUS slapped down SCOTAZ on that basis.

Ruth Marcus wrote a Feb. 24 WaPo column on it, titled The justices halt an execution — and reveal themselves in the process (likely motivated by her opposition to the death penalty). I'm not qualified to judge the legal arguments, but excerpting Marcus (what seems her her primary point is bolded:

...good for John Montenegro Cruz, an Arizona man convicted in 2005 of murdering a Tucson police officer, and good for Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh, who joined with the court’s three liberals to grant Cruz a new sentencing hearing....

... Four other conservatives, in a decision written by Justice Amy Coney Barrett, would have stuck with a cramped rules-are-rules mentality to let an obviously unconstitutional death sentence stand.

How unconstitutional? Eleven years before Cruz’s trial, in Simmons v. South Carolina, the Supreme Court had ruled that when prosecutors arguing for the death penalty cite the risk of future “dangerousness,” defendants have the right to let the jury know that the alternative to a death sentence would be life without the possibility of parole.

That’s what Cruz asked for at his trial. The judge not only refused — he incorrectly instructed the jury that Cruz could be eligible for parole after 25 years. And that seemed to make a difference to the jurors in deciding whether to impose a death sentence.
...
So Cruz sought a new trial. He lost, and lost again before the Arizona Supreme Court, which, again incorrectly, asserted that Simmonsdidn’t apply to Arizona’s death penalty sentencing scheme because parole was available. In 2009, the U.S. Supreme Court declined to hear the case.

But in 2016, the high court, seemingly exasperated by the Arizona courts’ repeated recalcitrance, summarily reversed the Arizona Supreme Court. Yes, the high court said in Lynch v. Arizona, Simmons did apply in Arizona.

Cruz, armed with the new ruling, went back to the Arizona state courts, [relying] on a provision of Arizona law that allows new challenges when “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.”

Having found in 2008 that Simmons didn’t cover Cruz’s case, the Arizona Supreme Court now switched gears and asserted exactly the opposite: that Simmons had applied all along. That meant the high court’s 2016 ruling in Lynch “was not a significant change in the law,” only “a significant change in the application of the law.”

It seems likely that last is what Baude relied on for his piece, but he probably should also have addressed the court's reasoning:

In our federal system, the Supreme Court has the authority to review state supreme court decisions for violations of the U.S. Constitution. But in the interests of federalism, the high court has said it will not disturb rulings that rest on “adequate and independent” state grounds.

Writing for the majority, Justice Sonia Sotomayor said Arizona’s application of its rule was simply wrong — so wrong, in fact, that the Supreme Court was justified in taking the unusual step of intervening to reverse the state court.

“Before Lynch, Arizona courts held that capital defendants were not entitled to inform the jury of their parole ineligibility. After Lynch, Arizona courts recognize that capital defendants have a due process right to provide the jury with that information when future dangerousness is at issue,” she wrote. “It is hard to imagine a clearer break from the past.”

The Marcus column goes into quite a bit more detail on reasoning in both the decision and dissent. Well worth reading.

[rrdavis]

Well, because none of that is relevant to the interesting wrinkle he's noting here, which has nothing to do with the merits of Cruz's arguments (on either the application of the AISG doctrine or on his underlying claim). Whatever the arguments and who should or shouldn't win, it's interesting as a procedural matter for the Supreme Court to decide a state rule wasn't adequate and then fail to decide the federal question.

[Randal]

Maybe it's 4:

The Supreme Court is informing the Arizona Court that its Rule 32.1 (g) interpretation is an insufficient ground, thereby allowing them to buttress their holding with potentially adequate additional grounds.

[Mark Leen]

Wasn't there a series of SCT decisions regarding Georgia and criminal law (death penalty?), where the court appeared to be overturning the decisions because they were wrong (and probably racist applications of the law) but there was not a clear link to a federal issue.

[The Turtle Dove]

It's been many moons since I've thought about AISG (both in Federal Practice and the elder Baude's classroom), but looking at NAACP v. Alabama, the holding seems a bit different than the rule of the case attached to it here. The question was whether petitioner should have sought mandamus as opposed to cert relief. Highest state court holding on merits held that cert wasn't appropriate, and the Court reversed, saying that the state high court's construction of cert was too novel. Critically, it then immediately went to a (sort of) cause and prejudice analysis asking whether the petitioner's apparent waiver of the ostensibly appropriate remedy of mandamus was in justified reliance on the earlier holdings about whether cert ran (or availed) in these cases.

So, perhaps the rule changed in the interval, and again, I haven't thought about this in a while, but the novelty of the highest state court holding on the merits is really only relevant here where it prompted the inadvertent waiver of claim below. Citing "novelty" as an adequate criterion of adequacy seems a bridge too far.

Or perhaps not. It's all one. Cheers.

Mr. D.