I. Opinions. This Report summarizes opinions issued on November 6 and 8, 2017 (Part I); and cases granted review on November 13, 2017 (Part II).

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1 VOLUME 25, ISSUE 3 NOVEMBER 16, 2017 This Report summarizes opinions issued on November 6 and 8, 2017 (Part I); and cases granted review on November 13, 2017 (Part II). I. Opinions Kernan v. Cuero, The Court unanimously and summarily vacated a Ninth Circuit decision that had granted habeas relief by requiring specific performance of a withdrawn California plea agreement. In 2005, the State of California charged Michael Cuero with two felonies and a misdemeanor after he seriously injured someone with his car. At the time of the incident, Cuero was on parole, driving without a license and under the influence of drugs, and possessed a loaded pistol. The state and Cuero reached a plea agreement under which Cuero pled guilty to causing bodily injury while driving under the influence and unlawful possession of a firearm. In admitting his guilt, Cuero also agreed that he had a prior conviction that qualified as a strike under California s three strikes law. After the court accepted the plea, but before sentencing, California determined that another of Cuero s priors qualified as a strike, which raised Cuero s potential sentence from a maximum of 14 years to a minimum of 25 years. California moved to amend the complaint accordingly. The trial court granted the motion, finding that state law guided its conclusion that an amendment to include all of Cuero s priors was proper. The court also allowed Cuero to withdraw his plea. After California amended the complaint, Cuero withdrew his initial plea, pled guilty to the new complaint, and was sentenced to 25 years to life. His convictions were affirmed on direct appeal. Cuero then sought federal habeas relief, which the district court denied. The Ninth Circuit reversed, holding that the original guilty plea was an enforceable contract, and that the only appropriate remedy for the breach of that contract was specific performance of the original plea agreement. That remedy, the court held, was necessary to maintain the integrity and fairness of the criminal justice system. Through a per curiam opinion, the Court reversed. The Court first ruled that the case was not moot, even though the Ninth Circuit issued its mandate and the state trial court had resentenced Cuero. The two parties still disagree about the proper length of Cuero s sentence, and reversal would permit the state trial court to impose the longer sentence. Turning to the merits, the Court concluded that even assuming for argument s sake that California violated the Constitution by moving to amend the complaint, it is unable to find in Supreme Court precedent that clearly established federal law demanding specific performance as a remedy. AEDPA therefore foreclosed a grant of habeas relief. The Ninth Circuit had relied on a concurring opinion in Santobello v. New York, 404 U.S. 257 (1971), and on circuit precedent, a state court decision, a legal treatise, and a law review article. But, explained the Court, fairminded jurists could disagree with the Ninth Circuit s reading of Santobello. (Internal quotation marks omitted.) Indeed, the Court stated in Mabry v. Johnson, 467 U.S. 504 (1984), that Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea. The Court then reiterated that circuit precedent does not constitute clearly established law under AEDPA, and that, of course, neither do state-court decisions, treatises, or law review articles. 2017, NAAG, 2030 M Street, NW 8 th Floor Washington, DC (202)

2 Dunn v. Madison, Through a unanimous opinion, the Court summarily reversed an Eleventh Circuit decision that had granted habeas relief to an inmate on the ground that he was incompetent to be executed because he could not recall his commission of the murder. Vernon Madison was sentenced to death for murdering a police officer more than 30 years ago. In 2016, as his execution neared, he asked the trial court to suspend his death sentence on the ground the he was incompetent to be executed. The court held a hearing at which two psychologists testified. One of them testified that Madison understands that Alabama is seeking retribution against him for his criminal act. The other agreed, but added that that Madison cannot recall the murder, arrest, and trial. The trial court denied Madison s petition, holding that under Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007), a person is incompetent to be executed if he suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as punishment for a crime. The court found that Madison could not make that showing. Madison sought federal habeas relief, but a district court denied his petition on the same ground as the state trial court. The Eleventh Circuit reversed, holding that a person who has no memory of his capital offense necessarily does not rationally understand the connection between his crime and the execution. Further, held the court, habeas relief is permitted under AEDPA because any conclusion to the contrary is an unreasonable application of Panetti. Through a per curiam opinion, the Court reversed. The Court explained that Ford and Panetti established that the Eighth Amendment forbids execution of a prisoner who lacks the mental capacity to understand that [he] is being executed as punishment for a crime. Those decisions questioned the retributive value of executing a person who has no comprehension of why he has been singled out. By contrast, stated the Court, [n]either Panetti nor Ford clearly established that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied to his case. Nor was it unreasonable to conclude (as the state court did) that Madison is competent to be executed because notwithstanding his memory loss he recognizes that he will be put to death as punishment for the murder he was found to have committed. The Court therefore concluded, again, that AEDPA foreclosed the grant of habeas relief. Hamer v. Neighborhood Housing Services of Chicago, The Court unanimously held that Federal Rule of Appellate Procedure 4(a)(5)(C) s 30-day limit on extensions of time to file a notice of appeal is a non-jurisdictional, claim-processing rule subject to forfeiture if not properly raised by the appellee. Petitioner Charlotte Hamer filed suit against respondents alleging employment discrimination and age discrimination in violation of federal law. The district court granted respondents motion for summary judgment and entered final judgment on September 14, Any notice of appeal would have been due, under Federal Rule of Appellate Procedure 4(a)(1)(A), on October 14. On October 8, Hamer s attorneys requested a two-month extension for filing the notice of appeal, to December 14. The district court granted the motion. Hamer eventually filed her notice of appeal on December 11, without any objection from respondents, who twice told the Seventh Circuit that the notice was timely filed. The Seventh Circuit nonetheless asked for briefing on whether the appeal was timely filed. Only then did respondents argue that, under Rule 4(a)(5)(C), 2

3 the appeal was untimely. The Seventh Circuit concluded that the rule confines extensions to 30 days, that Hamer s appeal was taken after that period expired, and that the court therefore lacked jurisdiction to reach the merits. In an opinion by Justice Ginsburg, the Court vacated and remanded. The Court reaffirmed that a time limit prescribed only in a court-made rule... is not jurisdictional. It explained that [o]nly Congress may determine a lower federal court s subject-matter jurisdiction, and that a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time.... A time limit not prescribed by Congress ranks as a mandatory claim-processing rule.... The Court then explained the difference between a jurisdictional rule and a mandatory claim-processing rule. Failure to comply with a jurisdictional time prescription... deprives a court of adjudicatory authority over the case, necessitating dismissal ; [t]he jurisdictional defect is not subject to waiver or forfeiture. By contrast, mandatory claimprocessing rules must be enforced when properly invoked, but they may be waived or forfeited. With that background, the Court turned to the 30-day extension limit at issue here. Congress spoke to extensions for notices of appeal in 28 U.S.C. 2107(c). That provision specifies the length of an extension for cases in which the appellant lacked notice of the entry of judgment. For other cases, such as this one, the statute does not say how long an extension may run. Rule 4(a)(5)(C) fills that void by imposing a 30-day limit on extensions in all circumstances, not just in cases in which the prospective appellant lacked notice of the entry of judgment. In short, only the federal rule not the federal statute limited the permissible length of the extension. The 30-day limit is therefore a claim-processing rule, not a jurisdictional rule. The Court found that the Seventh Circuit misconstrued Bowles v. Russell, 551 U.S. 205 (2007), which held that the 30-day time limit on filing a notice of appeal set forth in 28 U.S.C. 2107(a), and the district court s authority to reopen the time for filing an appeal for 14 additional days set forth in 2107(c), are jurisdictional. Unlike here, both of those limits derived from statutes, i.e., from Congress. And that is so even though the 14-day limit in 2107(c) also appears in Rule 4(a)(6). II. Cases Granted Review National Institute of Family & Life Advocates v. Becerra, The Court will consider whether two provisions in a California law that require clinics providing pregnancyrelated services to make certain public disclosures violate the Free Speech Clause. The first provision requires licensed clinics those that provide medical services and are directed by a physician to notify clients that California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number]. The notice may either be posted in the waiting room or issued directly to clients. Licensed clinics that are operated by the federal government or enrolled in California s Family PACT Program are exempt from this requirement. The second provision requires unlicensed clinics those that do not have a licensed medical provider on staff or under contract to provide clients with a notice stating that [t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or 3

4 directly supervises the provision of services. This notice must also be included in all print and digital advertising materials. Both notices must be provided in English and in the primary threshold languages for Family PACT Program beneficiaries in the relevant county. Petitioners are self-described religiously-motivated nonprofit centers that work to help women make choices other than abortion, one licensed and one unlicensed, as well as a nonprofit organization to which both clinics belong. They filed suit challenging the law in federal district court, alleging that the notice requirements violated, inter alia, the Free Speech Clause of the First Amendment. The district court denied their motion for a preliminary injunction, finding that petitioners did not demonstrate a likelihood of success on the merits of their claims. The Ninth Circuit affirmed. 839 F.3d 823. As relevant here, the court held that the requirement applicable to licensed clinics is subject to intermediate scrutiny and satisfies that standard. Although the court found that the law is a content-based regulation of speech, it decided that strict scrutiny is inappropriate because not all content-based regulations are subject to strict scrutiny and this provision does not discriminate on the basis of viewpoint. Rather, intermediate scrutiny applies because the law regulates professional speech and does not affect a clinic s ability to engage in public dialogue or administer a particular treatment. The court concluded that the requirement satisfies intermediate scrutiny because California has a substantial interest in ensuring that its citizens are informed of available pregnancy-related services. The court also held that the requirement for unlicensed clinics survives any level of scrutiny because California has a compelling interest in informing pregnant women that an unlicensed facility has not satisfied the state s licensing standards, which is all the notice does. Petitioners argue that the Ninth Circuit erred by applying intermediate scrutiny to the requirement for licensed clinics because Reed v. Town of Gilbert, 135 S. Ct (2015), held that all content-based regulations of speech are subject to strict scrutiny. Moreover, petitioners maintain, the requirement is viewpoint-based because it purposefully targets clinics that discourage women from seeking abortions. That intent is illustrated, they say, by the exception for clinics that are enrolled in the Family PACT Program. Because a clinic can enroll in that program only if it agrees to provide contraceptive methods and supplies that include abortifacients, clinics that oppose abortion are unable to enroll. Petitioners further argue that strict scrutiny is appropriate because regulations on professional speech are subject to strict scrutiny when that speech is offered for free, as is the case here. As to unlicensed clinics, petitioners assert that the law does not satisfy strict scrutiny because (1) the state does not have a compelling interest in informing patients that those clinics do not provide medical services, and (2) the notice requirement is unduly burdensome. Minnesota Voters Alliance v. Mansky, Minnesota law prohibits individuals at a polling place on a primary or general election day from wearing a political badge, political button, or other political insignia. Minnesota has defined political materials as [i]ssue oriented material designed to influence or impact voting and [m]aterial promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on). At issue here is whether that law is overbroad in violation of the First Amendment. Petitioners, a group that advocates electoral reform 4

5 and two voters who were directed to remove or cover political material at a polling place during the 2010 election, challenged the law on its face and as applied. The district court dismissed their complaint. As relevant here, in 2013 the Eighth Circuit affirmed the denial of petitioners facial claims. 708 F.3d (The court later affirmed denial of their as-applied claims as well.) The Eighth Circuit held that a polling place is a nonpublic forum and that viewpoint-neutral restrictions on speech within that forum are permissible so long as they are reasonable in light of the purposes polling places serve. The court relied in part on Burson v. Freeman, 504 U.S. 191 (1992), which held that a law prohibiting the distribution or display of campaign materials within 100 feet of a polling place survived strict scrutiny. The Minnesota law is therefore plainly constitutional to the extent it restricts speech about a political campaign inside a polling place. The Eighth Circuit recognized that the law goes beyond that and bans political material unrelated to any issue on the ballot. But it concluded that, [e]ven if Minnesota acted unreasonably in applying its statute to some material, the complaint does not allege that there were a substantial number of such unreasonable applications in relation to the statute s reasonable applications as required under the overbreadth doctrine. Petitioners maintain that the decision effectively chills the free speech rights of millions of voters across the country by threatening criminal prosecution or civil penalties for voters who wear logoed t-shirts, caps, jackets, buttons, and other apparel in state-declared speech-free zones. More specifically, they argue that neither of the governmental interests identified in Burson prevent[ing] voter intimidation and election fraud is furthered by a law that bans speech concerning issues not on the ballot or simply referencing... the existence of a group that engages in advocacy. Lozman v. City of Riviera Beach, Florida, In Hartman v. Moore, 547 U.S. 250 (2006), the Court held that a plaintiff alleging a retaliatory-prosecution claim under the First Amendment must plead and prove that the charges were not supported by probable cause. At issue here is whether a finding of probable cause defeats a First Amendment retaliatory-arrest claim as well. Fane Lozman lived in a floating home in Riviera Beach, Florida, and was an outspoken critic of a city redevelopment plan to revitalize the waterfront through the use of eminent domain. Lozman was speaking about local government corruption charges during the public comments portion of a city council meeting when a councilperson ordered him to stop speaking and directed a police officer to arrest him after he refused. Lozman was arrested and charged with disorderly conduct and resisting arrest. The state s attorney found that there was probable cause for the arrest, but decided to dismiss the charges because there was no reasonable likelihood of a successful prosecution. Lozman filed a 1983 action against the city, alleging that it violated the First Amendment by directing his arrest in retaliation for speaking at a public meeting. At trial the district court directed the jury that it could find in favor of Lozman only if the arresting officer lacked probable cause to believe he had or was committing a crime. The jury returned a verdict in favor of the city. The Eleventh Circuit affirmed, holding that [t]he jury s determination that the arrest was supported by probable cause defeats Lozman s First Amendment retaliatory arrest claim as a matter of law. 681 Fed. Appx

6 Lozman asserts that a circuit split has developed over whether a plaintiff can prevail on a First Amendment retaliatory-arrest claim if the underlying arrest was supported by probable cause. Although the Second, Fourth, Fifth, Eighth, and Eleventh Circuits have held that a finding of probable cause defeats a retaliatory-arrest claim, the Ninth and Tenth Circuits have held that it does not. Lozman argues that although the existence of probable cause may be probative, the absence of probable cause should not be a required element of a retaliatory-arrest claim because that rule will have a chilling effect on the exercise of First Amendment rights. He also contends that such a rule would be inconsistent with appellate decisions holding that discriminatory-arrest claims under the Equal Protection Clause may survive a finding of probable cause. Attempting to distinguish Hartman, Lozman maintains that the reason the Court gave there for the no-probable-cause requirement mainly, the complex causal connection inherent in retaliatory-prosecution claims does not apply to retaliatory-arrest claims. The Supreme Court Report is published biweekly during the U.S. Supreme Court Term by the NAAG Center for Supreme Court Advocacy. SUPREME COURT CENTER STAFF Dan Schweitzer Director and Chief Counsel NAAG Center for Supreme Court Advocacy (202) Frank Biesczczat Supreme Court Fellow (202) Natalie Chalmers Supreme Court Fellow (202) The views and opinions of authors expressed in this newsletter do not necessarily state or reflect those of the National Association of Attorneys General (NAAG). This newsletter does not provide any legal advice and is not a substitute for the procurement of such services from a legal professional. NAAG does not endorse or recommend any commercial products, processes, or services. Any use and/or copies of the publication in whole or part must include the customary bibliographic citation. NAAG retains copyright and all other intellectual property rights in the material presented in the publications. 6