Greetings, Court Fans!
Here are the rest of the cases from Thursday. The longest opinion of the day came down in the consolidated cases of Exxon Mobil Corp. v. Allapatah Services (04-70) and del Rosario Ortega v. Star-Kist Foods, Inc. (04-79), where the Court held 5-4 that where at least one plaintiff in a diversity case satisfies the $75,000 amount-in-controversy requirement, 28 U.S.C. 1367 allows a federal court to exercise supplemental jurisdiction over other plaintiffs in the same case, even if their claims do not meet the requirement. If you’ve been hankering for a refresher course in federal jurisdiction, this is the case for you; we’ll do only an abridged version.
The case represents the death throes of three Court cases that predated section 1367. In Clark v. Paul Gray, Inc. (1939), the Court held that where jurisdiction depends on an amount in controversy, each plaintiff must independently meet the requirement. In Zahn v. International Paper Co. (1973), the Court similarly held that in Rule 23(b)(3) class actions, each class member must satisfy the jurisdictional amount. Finally, in Finley v. United States (1989), the Court held that in a federal-question case (where there is no longer an amount-in-controversy requirement), federal courts lack jurisdiction over “pendent-party” defendants against whom only state claims are brought. In 1990, Congress enacted section 1367, which provides that “in any civil action of which the district courts have original jurisdiction,” federal courts shall have “supplemental jurisdiction over all other claims that are so related . . . that they form part of the same case or controversy.” Everyone agreed that section 1367 overturned Finley; the question here was whether it also overturned Clark and Zahn. The Kennedy-led majority said yes — if a district court has original jurisdiction over any claim in a complaint, it has original jurisdiction over the “civil action” under section 1367. Having original jurisdiction, it can then exercise supplemental jurisdiction over related claims in the complaint involving other parties regardless of the amount in controversy. The Court rejected the “indivisibility theory,” requiring all claims in a complaint to stand or fall together for purposes of “original jurisdiction,” as fundamentally inconsistent with the notion of supplemental jurisdiction. Unlike the diversity requirement, where indivisibility is appropriate because a single nondiverse party eliminates the fear of state-court bias justifying federal jurisdiction, the presence of claims falling short of $75,000 does not reduce the importance of larger claims. Because “no other reading of section 1367 is plausible,” the Court declined to rely on its legislative history, which it denigrated as a “murky” effort by non-legislators to circumvent the text. Finally, the Court noted that the new Class Action Fairness Act, which abrogates the rule against aggregating claims, did not affect its analysis.
The primary dissent from Justice Ginsburg, joined by Stevens, O’Connor and Breyer, conceded that the majority’s position was plausible, but the more plausible interpretation was that Congress knowingly enacted section 1367 in view of the longstanding rules in Clark and Zahn (by contrast, Finley had been around for only one year and expressly invited Congress to change the law for federal-question jurisdiction). So as a “precedent-preservative reading,” Ginsburg would read the amount in controversy into section 1367’s “original jurisdiction” requirement. Also, because the statute’s “enigmatic text defies flawless interpretation,” she would rely on its history, which makes clear that Congress was only undoing Finley. Justice Stevens (joined by Breyer) dissented separately to register their complaints with the plain language approach; because “ambiguity is apparently in the eye of the beholder,” these dissenters would not make it a prerequisite for looking to legislative history. In any event, it took the majority “nearly 20 pages of complicated analysis, which explores subtle doctrinal nuances and coins various neologisms,” to find section 1367 unambiguous, a conclusion Stevens found “difficult to accept.”
Turning to the criminal cases, you might feel a little déjà vu. Halbert v. Michigan (No. 03-10198) again raised the issue of whether individuals convicted by plea of guilty, nolo contendere, or guilty but mentally ill in Michigan State court are entitled to state-funded counsel in applying for leave to appeal to the intermediate state appellate court. This issue came up earlier in Kowalski v. Tesmer, where the Court declined to address the merits, finding that petitioners (attorneys of indigent defendants) lacked standing to bring the case. Now reaching the merits, a 6-3 Court found that while nothing requires Michigan to provide appellate review, once that review is made available, the Due Process and Equal Protection Clauses require Michigan to provide state-funded counsel to indigent individuals filing applications for leave to appeal. A bit of background is helpful. Until recently, appeal to the Michigan Court of Appeals was as-of-right in all cases and appellate counsel was provided to indigent criminal defendants for this first tier of review. In 1994, however, Michigan voters amended their constitution to require leave to appeal from convictions arising from pleas — resulting in discretionary first-tier review. Counsel is not generally provided to assist plea-convicted defendants in filing applications for leave to appeal, but is provided if leave is granted. Halbert pled guilty, but sought to withdraw his plea the following day. The court refused and Halbert sought appointment of counsel to assist him in applying for leave to appeal, which both the trial and appellate courts denied.
The majority and dissent agreed that the outcome of this case turns on whether it is governed by Douglas v. California, which required appointment of counsel for first-tier, as-of-right, appellate review of a criminal conviction, or Ross v. Moffitt, which found no right to counsel for a discretionary appeal to the State Supreme Court or the US Supreme Court. The Ginsburg-led majority found that Douglas governed for several reasons: First, even though review by the appellate court is discretionary under Michigan’s framework, the filing of an application for leave to appeal is as-of-right. Having provided this right to all guilty plea defendants, the state should not effectively “fenc[e] out would-be appellants based solely on their inability to pay.” Second, the appellate court sits in an error-correction capacity and its determination as to whether to grant leave is based on the merits of that appeal — unlike Ross, which dealt with discretionary appeal to the state or federal court of last resort, where the decision to grant review is often based on factors outside the case, such as the general importance of the issues presented. Third, Michigan defendants seeking leave to appeal lack the benefit of a prior review by appellate counsel, whereas defendants seeking discretionary later-stage review have already had that benefit. These factors compel appointment of counsel to plea-convicted defendants seeking leave to appeal. Justice Thomas, joined by Scalia and the Chief (as to all but one part), dissented. In their view, Ross governs because Michigan’s voters have decided that intermediate appellate review is discretionary, not as-of-right. Moreover, the Court’s decision will harm rather than help Michigan’s justice system (including defendants on the whole) because it will merely shift resources from case more likely to be meritorious to those less likely to be so.
Finally, in Mayle v. Felix (No. 04-563), the Court held that an amended habeas petition does not relate back (for purposes of AEDPA’s 1-year time limit) when it asserts claims supported by different facts than those raised in the initial petition. Jacoby Lee Felix filed a timely habeas petition asserting that his confrontation clause rights were violated when the trial court permitted the prosecution to play videotaped testimony, which was not subject to cross examination. Some months later (and after AEDPA’s limitation period had run), Felix sought to amend the petition to add a claim that the trial court improperly admitted damaging statements he made during a coercive police interrogation. The district court found against Felix on the merits as to the confrontation clause claim and found the coerced statements claim time-barred. The Ninth Circuit disagreed as to the latter determination, holding that the amended petition “related back” to the initial petition since it resulted out of the same “conduct, transaction, or occurrence” — Felix’s criminal conviction. The Court reversed, finding the Ninth Circuit’s interpretation far too broad: “Under that comprehensive [approach], virtually any new claim introduced in an amended petition will relate back, for federal habeas claims, by their very nature, challenge the constitutionality of a conviction or sentence . . . .” Instead, courts should look at the facts underpinning the new legal claim. If they differ from those supporting the initial claim, the petition does not relate back. This is particularly true given Congress’s desire, as expressed in AEDPA, to expedite habeas proceedings. Felix’s claims arose from two different sets of facts (a pretrial police interview and an in-court presentation of videotaped evidence) and, therefore, relation-back does not apply.
Justice Souter, joined by Stevens, dissented. Congress subjected habeas petitions to the same relation-back rules applicable to civil cases. Yet the majority’s decision will preclude a habeas petitioner from amending in the vast majority of instances — “unless a single trial ruling amounts to distinct errors or an underlying fact is the subject of distinct rulings.” And there is evidence that Congress intended the term “transaction” to encompass an entire criminal trial since that same term is used to preclude the filing of second or successive habeas petitions arising from the same “transaction.” Moreover, the majority’s concern about unconstrained petition amendment is not well-founded. Petitioners may amend as-of-right only once, and then only before the government has answered. After that, amendment requires leave of the court, which presumably will be denied in case of unjustified delay. Finally, the Court’s rule disparately affects those unable to afford counsel, since pro se petitioners may fail to recognize potentially meritorious arguments unless and until the trial court exercises its discretion to appoint counsel – which generally occurs after the time limit has run.
Until Monday (when we hear the Court intends to release ALL of the remaining opinions), thanks for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer,

or Jeff Babbin at 203-498-4400