SCOTUS News, 6/30/17: Davila, CalPERS, and Trinity Lutheran

SCOTUS released three more dense opinions this past Monday.

Davila v. Davis

As we wrote about before, the jury in Davila’s original trial received erroneous instruction. Davila sought habeas relief after his conviction. His habeas counsel also did not raise the instructional error issue from his original trial. Then, Davila brought his case to Federal District Court for habeas relief. He did this because his appellate counsel did not raise the instructional error at his state habeas trial.

This 5-4 split on the Court hinges on the rules of procedural default. The majority agrees that Davila likely has a solid case of ineffective assistance from his original trial lawyer. They do not, however, allow his current claim. Davila did not exhaust his state-level options for appealing the original trial before going federal. He should have asserted ineffective trial assistance on first appeal before appealing his state habeas decision to the federal level. If he had, he may never have needed to file in federal court in the first place. Seeking ineffective assistance of appellate counsel is substantially different for one other reason, Thomas writes for the majority. The constitution guarantees only a right to trial counsel, not appellate counsel. This means that a claim of ineffective assistance is harder to stake out for an appeals case than for an original trial.

The majority (Thomas, with Roberts, Kennedy, Alito, and Gorsuch) affirms the Federal District Court’s denial of relief. In addition to the above rule on ineffective assistance of counsel, they bring up the exhaustion doctrine. Exhaustion is the legal principle that a petitioner must exhaust state-level relief options (in this case, his state habeas petition) before ascending to the federal level. They address one other open question about the case. Appellate counsel can decline to bring up a trial error, if that error is unlikely to prevail on appeal. Doing so does not meet the threshold for ineffective assistance, though.

Breyer dissents, joined by Ginsburg, Sotomayor, and Kagan. They agree that a federal habeas court cannot hear a prisoner’s trial lawyer claim due to a procedural default like the one above. They affirm several exceptions to this rule, though. Moreover, they disagree with the majority’s assertion that there is no guarantee of relief from ineffective assistance of appellate counsel. They would extend this right, and extend the several exceptions to the procedural default rules, to cover ineffective assistance of both trial and appellate counsel. In doing so, the case law and the right to counsel would become less prone to cases like these falling through the cracks.

California Public Employees’ Retirement System v. ANZ Securities

The California Public Employees’ Retirement System (CalPERS) filed a class action suit against multiple respondents. CalPERS then later decided to opt out of the class designation and file separately. The class action was filed within the time limit set by a statute of repose. CalPERS’ solo filing, however, fell outside the time limit of the statute of repose.

A statute of repose is like a statute of limitations. In this case, the time limit for filing was three years from the date of action. Part of the dispute here arises from what constitutes an “action” for the purposes of starting that clock. CalPERS claims that the class action filing (that it later opted out of) constitutes an “action” that resets the statute of repose. The Second Circuit disagreed, and dismissed CalPERS’ individual claim for being untimely.

SCOTUS affirms the Second Circuit. While there are several exceptions to time-barring in the case law, this case does not quite fit into any of those structures. Kennedy writes for the majority, stating that a statute of repose starts running from the last “action” of a defendant, not of a plaintiff or group of plaintiffs. This is to protect defendants from unreasonable and deleterious lawsuits long after the events. Because of this distinction, the later filing of the class action does not reset the clock, and does not give CalPERS a fresh three-year period in which to respond. Just because a plaintiff opts out of a class action, that doesn’t mean they get a new statute of repose.

Ginsburg dissents, joined by Breyer, Sotomayor, and Kagan. They argue that respondents knew of their specific liability to CalPERS within the statute of repose. In other words, because respondents were liable to all putative class members, any filing – even an individual filing – would be timely as part of the same “action” as the original class action filing. None of the information in the suit changed. CalPERS was part of the original lawsuit. Thus, CalPERS deserves the freedom to file separately when the suit and the facts therein have not changed. The dissent also points out that a district court is supposed to assess whether class members should be given notice that opting out will affect their chance for recovery. If this step of the process had occurred naturally, CalPERS could have foreseen the time-bar issue and acted differently.

Trinity Lutheran v. Comer

Click here to read our brief synopsis of the case (formerly Trinity Lutheran v. Pauley). SCOTUS’ decision to allow Missouri’s public Scrap Tire Program funds to go to Trinity Lutheran’s playground adds a small exception to the Religion Clauses of the Constitution, with the possibility of other exceptions in the future.

Nearly every Justice had something to say about this case. The majority consists of Roberts, Kennedy, Thomas, Breyer, Alito, Kagan, and Gorsuch. Breyer concurs separately. Gorsuch and Thomas each wrote a concurrence, and joined each other’s. Sotomayor dissents, joined by Ginsburg.

First, the majority opinion. They reverse and remand the Eighth Circuit’s decision to bar Trinity Lutheran from the Scrap Tire Program. The majority explains that the Free Exercise Clause does not bar a religious organization from competing with secular organizations for public funds not otherwise barred from religious use. This grant of public money to a religious organization falls into a sort of gap between the Free Exercise Clause and the Establishment Clause. Trinity Lutheran did not receive preferential treatment, and it met the program’s criteria as set by Missouri. The money itself is not for any overtly religious purpose. The money is for playground resurfacing. On this point, the majority clarifies that all sorts of children, not just children of church members, use the playground. In this way, the playground is like a public service akin to police or fire departments. Funded by the public, but not denied to anything religious (i.e., fire departments don’t let churches burn down).

Thomas and Gorsuch, in their separate but similar concurrences, take issue with some aspects of the ruling. They target Footnote 3, which lays out in clear terms that this ruling is only narrow. The ruling allowing religious organizations to use public funds only applies to playground resurfacing. Footnote 3 is destined to become famous: it effects a compromise, expressly limiting the exceptions to the Religion Clauses. Thomas dislikes the continued discrimination against religion that the Religion clauses allow. Gorsuch raises concern over the difference between status and use. The funds here are being used by the church, but for secular purposes. The status of the church as a church, however, is the primary reason Missouri originally barred the funds. Gorsuch is skeptical about the ability to divorce status from use, and whether status matters all that much. Both Thomas and Gorsuch take issue with Footnote 3 for restricting the ruling’s reach.

Breyer writes a separate concurrence that addresses the issue of the playground as a public good. He approves of the majority’s characterization of the playground as a “public benefit” in the vein of police and fire departments. He approves of the narrowness laid out in Footnote 3.

Sotomayor writes a lengthy and detailed dissent, joined by Ginsburg. She recounts the comprehensive history of each individual State’s separation of church from state. Each State arrived at the same idea, some more than two hundred years ago: giving public funds to churches is not a good idea, both politically and philosophically. She discusses these potential dangers of church intertwining with government. Furthermore, she argues that providing government funds to a church facility inherently contributes to the spread of that church’s religious views. A church’s job is to seek out people who will spread its message. Everything it does services that goal. To give public funds to a church for any reason is thus incompatible with the Religion Clauses. In addition, she points out that participants in the Scrap Tire Program are encouraged to advertise their government subsidy. This, too, is incompatible with the Establishment Clause. A government cannot subsidize a religion.

While Breyer and others discuss the fact that children of church members and non-church members play at the playground, thus making it a public issue, Sotomayor presents the underlying problem: anyone who uses the playground will be exposed to the church’s teachings and programs, and will have been so exposed due to the usage of public funds. Sotomayor also dislikes Footnote 3, but for different reasons than her conservative colleagues. Footnote 3 erodes and trivializes the Religion Clauses, rather than letting them do their job.

The Crowd and the Algorithm

The Crowd and the Algorithm both got reasonably close to the Trinity Lutheran ruling, though both expected unanimity. Knowing Roberts’ penchant for consensus building – and after reading Footnote 3 – they can’t be the only ones. Meanwhile, the Crowd nailed Davila, and the Algorithm’s Justice predictions nearly leaned it perfectly to the 5-4 split as well.

The Crowd missed in the CalPERS case, though. {Marshall}+ predicted that one correctly, though it kept Roberts firmly on the fence and didn’t anticipate the 5-4 split.


California Public Employees’ Retirement Fund v. ANZ Securities (et al.)


The Algorithm picked one up on the Crowd this week in the CalPERS ruling, but I think it’s safe to say the humans win this year!

Crowd: 53/65 cases; Accuracy Rate: 81.54%
{Marshall}+: 39/65 cases; Accuracy Rate: 60.00%

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