Supreme Court Preview: Access to Justice

September 27, 2011

*Mr. Rosdeitcher is Senior Policy Advisor at the Brennan Center and Of Counsel at Paul, Weiss, Rifkind, Wharton & Garrison LLP. Mr. Taylor is an associate at Paul, Weiss.

Next Monday, October 3, the Supreme Court will be opening its 2011 Term. Throughout the Term, the Brennan Center will be calling attention in advance to cases to be argued raising issues of access to justice, the intersection of national security and civil liberties, and voting rights, campaign finance and fair elections.

This week we call attention to four cases, to be argued on October 3, 4 and 11, raising important issues of access to justice.[1]

On October 3, the Court will hear argument in Douglas v. Independent Living Center of Southern California, Douglas v. California Pharmacist Association, and Douglas v. Santa Rosa Memorial Hospital (Nos. 09-958, 09-1158, 10-283) (consolidated), involving the issue of whether Medicaid recipients can seek injunctive relief based on the Supremacy Clause to prevent California from making cuts to benefits that allegedly violate federal law.[2] Their efforts are opposed not only by California, but by the Obama Administration and 31 other states. The Administration’s position has been strongly criticized by leading members of Congress and former senior officials in the Department of Health and Human Services, as opposing an important remedy for poor persons that is available to affluent corporations and others to challenge state regulations. In particular, several Democratic members of Congress, including House Minority Leader Nancy Pelosi and Senate Majority Leader Harry Reid, and a dozen former officials at HHS, including the health secretaries under both Presidents Clinton and Carter, as well as a large and diverse array of public interest organizations, from the AARP, ACLU, and NAACP Legal Defense and Education Fund to the U.S. Chamber of Commerce, have filed amicus briefs supporting the Medicaid recipients. The Court’s decision here will likely have implications far beyond the Medicaid context and, indeed, could affect access to the courts for civil-rights and civil-liberties plaintiffs in many other areas of the law.

On October 4, the Court will hear argument in Maples v. Thomas (No. 10-63), which raises the question as to whether a death-row inmate can be barred from access to federal habeas corpus because he missed a deadline for filing a state-court post-conviction remedy, through no fault of his own. The potential injustice here has drawn wide attention. Maples’s cause has been taken up by former Bush Administration Solicitor General Greg Garre, who will argue the case before the Supreme Court, and in amicus briefs from civil-liberties and criminal-defense organizations, and in a joint brief filed by somewhat strange bedfellows: the Constitution Project and the Cato Institute. Twenty states have filed a joint amicus brief on the other side.

Also to be argued on October 4 is Martinez v. Ryan (No. 10-1001), which raises important issues of right to counsel and the effective assistance of counsel in post-conviction proceedings, in this case initial post-conviction proceedings. This case deals expressly with initial post-conviction proceedings, where, under Arizona law, issues of effective assistance of counsel at trial could first be raised. Supporting petitioner and the right to post-conviction counsel are briefs from the ABA and a number of former state supreme court justices. The Obama Administration and 24 states have filed amicus briefs opposing such a right.

On October 11, the Court will hear argument in CompuCredit Corp. v. Greenwood (10-948). This case raises the issue of whether the Credit Repair Organizations Act (“CROA”), 15 U.S.C.§ 1679 et seq., guarantees consumers of services offered to fix problems in their credit status, a non-waivable right to sue the credit repair provider for violations of CROA in a judicial forum and thereby renders void and unenforceable an arbitration provision in the services contract. The case presents a clash between the policies of the Federal Arbitration Act (“FAA”) generally favoring arbitration and another federal law, CROA, intended to provide strong protections against deceptive practices to especially vulnerable consumers.

Here are some details:

Douglas v. Independent Living Center of Southern California, et al.

The issue before the Supreme Court in the consolidated Douglas cases is whether Medicaid recipients and providers can sue a state for failing to pay the rates mandated by the Medicaid Act. In five separate lawsuits filed in (or removed to) federal court, respondents—a diverse group of health-care providers and Medicaid beneficiaries—brought claims seeking to enjoin the State of California (specifically, the Director of California’s Department of Health Care Services (the “DHCS”)) from implementing state legislation drastically reducing payments to doctors, dentists, hospitals, pharmacies, nursing homes, and other providers under the state’s Medicaid program. Respondents alleged that these reductions violated—and were thus “preempted” by—the Medicaid Act’s “equal access” provision, 42 U.S.C. § 1396(a)(30)(A), which provides that a state that accepts federal Medicaid funds must set reimbursement rates that are “sufficient to enlist enough providers so that care and services are available under [Medicaid] at least to the extent that such care and services are available to the general population in the geographic area.”   

In all of these actions, the district courts entered orders preliminarily enjoining the DHCS from implementing the rate reductions as inconsistent with the Medicaid Act’s “equal access” mandate. In a series of appeals, the Ninth Circuit affirmed the preliminary injunction orders.

On the issue of whether respondents had asserted a valid cause of action, the Ninth Circuit held that their claims for injunctive relief were properly brought directly under the Supremacy Clause, without regard to whether they might also be brought under the provisions authorizing suits against state officials for violations of federal statutes, 42 U.S.C. § 1983, or as a private cause of action implied from the Medicaid Act. “For more than a century,” the Ninth Circuit noted, “federal courts have entertained suits seeking to enjoin state officials from implementing state legislation allegedly preempted by federal law, and we see no reason to depart from the general rule in this case, or in this category of cases.” It is this threshold determination that is to be considered by the Supreme Court.

The Obama Administration has also weighed in, siding rather forcefully with the State of California. In an amicus curiae brief submitted by the Acting Solicitor General, the Administration argues that there is no express cause of action to enforce the “equal access” provision; that the Supreme Court has never squarely held that the Supremacy Clause provides a cause of action for injunctive relief to enforce a federal statute against an allegedly preempted state law; and that such a cause of action in this case would “not be compatible with the nature of the statutory scheme.”

In sum, the Supreme Court’s decision in Douglas is likely to have very serious implications with respect to the access to justice for the most vulnerable. If the Court reverses, states will be able to sharply cut Medicaid assistance in violation of § 1396(a)(30)(A), and the poor, elderly, and disabled recipients of Medicaid will have lost their long-recognized right to sue for injunctive relief in order to enforce the statutory requirements of “equal access” under the federal Medicaid Act. Moreover, because equitable actions under the Supremacy Clause have also provided a critical—and sometimes the only—avenue for the vindication of federal law in many other important areas of law, including immigration, fair housing, and public assistance, any restriction of this right of action by the Supreme Court in Douglas may have much wider implications for access to justice as well.

Maples v. Thomas

This case raises an issue of simple justice.

In 1997, petitioner Cory Maples was convicted of murder and sentenced to death in Alabama. Maples now seeks federal habeas review of the merits of his claim that this conviction and sentence were in violation of the Sixth Amendment, arguing that his trial and sentencing were tainted by gross ineffectiveness on the part of his court-appointed counsel. The courts below, however, held that Maples lost the opportunity even to raise that claim to a federal court after a mix-up in the mailroom of the law firm of the attorneys who volunteered to represent him in state post-conviction proceedings led to a missed deadline for filing an appeal.

When the Alabama state trial court denied Maples’s initial post-conviction petition, it sent notice of the decision to the lawyers representing him by mailing a copy to the law firm at which they were employed. During the 18 months in which the petition had been pending, however, Maples’s attorneys of record had left their law firm without notifying the state court or substituting counsel. Thus, when the state court clerk mailed notice of the denial of Maples’s petition to those attorneys, the letters were returned to the clerk unopened and unclaimed, with “Return to Sender—Left Firm” written on an envelope. The notice was also mailed to local counsel, but he assumed that counsel of record was handling the matter, as they had done throughout. Meanwhile, the state court clerk simply put the returned letters in a drawer, and made no further efforts to contact Maples’s attorneys or to notify Maples directly. The deadline for Maples’s appeal soon passed before Maples learned of the trial court’s decision, and, although he acted promptly after finally learning that his petition had been denied, the courts below held that the state procedural default barred federal habeas review of Maples’s constitutional claims.

The Supreme Court will now consider whether any procedural default by Maples should be excused and his federal habeas action should be allowed to proceed. Maples argues that there is “cause” to excuse procedural default here for two reasons: (1) the default is fairly attributable to the state’s own actions because the state court clerk did nothing when the notices addressed to Maples’s pro bono attorneys of record were returned unopened and unclaimed; and (2) the default is fairly attributable to the actions of Maples’s attorneys because they abandoned him in his Alabama post-conviction proceeding and thus were not operating as his agents when the events at issue unfolded. In short, the Supreme Court will decide in Maples whether Alabama may execute a state inmate without any federal court review because of a missed filing deadline that was not his fault and was beyond his control.

In the past, the Court has refused to allow missteps by counsel as an excuse for overlooking filing deadlines. See Coleman v. Thompson, 501 U.S. 722, 752-54 (1991). But here, where, through no fault of his own, Cory Maples faces execution by the State of Alabama without any merits review of serious constitutional challenges to his conviction and sentence, the circumstances are particularly compelling.

Martinez v. Ryan

This case raises an issue long of great interest to many concerned with fairness in the criminal justice system: the need to expand the constitutional right to counsel to post-conviction proceedings.

Criminal defendants generally have a constitutional right to have a lawyer appointed to represent them at trial and on direct appeal, and to the effective assistance of such counsel, but this right has thus far not been extended to subsequent post-conviction proceedings. The Supreme Court has granted review in this case to determine whether there is such a constitutionally-recognized right to the effective assistance of first post-conviction counsel when the state allows defendants to argue that their trial counsel was ineffective only during post-conviction proceedings and not on direct appeal.  

Here, Luis Mariano Martinez, an Arizona prisoner, alleges that he received ineffective assistance of counsel at trial, but that his state-appointed appellate counsel failed to raise this claim as required in the first state post-conviction relief proceeding brought on his behalf, thereby denying Martinez the chance to challenge his trial lawyer’s poor performance on state or federal habeas. A decision by the Supreme Court recognizing a right to the effective assistance of first post-conviction counsel would allow Martinez to continue to pursue his ineffective-assistance-of-trial-counsel claim in federal habeas.  

The Obama Administration has filed an amicus brief in Martinez, arguing against such a decision by the Supreme Court. The Administration asserts that any recognition of the right to effective assistance of first post-conviction counsel, even where limited to claims that could not have been raised on direct appeal, would be inconsistent with the Court’s precedents and would create significant practical difficulties for both states and the federal government. Among other things, the Administration contends that, despite petitioner’s assurances that he is seeking only a limited right to post-conviction counsel, his rationale “extends far beyond claims that trial counsel was ineffective” and would attach the right to counsel “to a host of other claims”—including, for example, that appellate counsel was ineffective or that the prosecution has committed Brady violations—“that, for factual or procedural reasons, must be or typically are raised on collateral rather than direct review.”

The need for counsel in post-conviction proceedings has long been urged by the Brennan Center. It is especially warranted in a case like this one where the prisoner would have no other opportunity to challenge a conviction resulting from a trial in which he claims he was denied effective assistance of counsel.

CompuCredit Corp. v. Greenwood

This case will determine how far the Court is willing to go to enforce the strong presumption in favor of arbitration it has read into the FAA. For notwithstanding that presumption, a fair reading of CROA seems to support the decisions of both the district court and Ninth Circuit that consumers are guaranteed a non-waivable right to sue in a judicial forum to remedy violations of that Act.

CROA was enacted to protect consumers buying services from companies offering to fix these consumers’ credit standing from wide spread deceptive practices preying on the vulnerabilities of such consumers. Among other things, CROA requires credit repair companies to provide consumers with a notice of a list of their rights, including specifically a “right to sue credit repair organizations that violate the Credit Repair Organizations Act.” CROA also renders void any attempt to obtain a waiver of consumers’ rights under CROA.

 CompuCredit argues, among other things, that the “right to sue” can be read to include arbitration as well as judicial proceedings, that the provision making rights under CROA non-waivable and void only applies to substantive, not procedural rights, that the preclusion of arbitration requires a “clear statement” and that in other laws where Congress has precluded arbitration, unlike in CROA, it has done so very explicitly. CompuCredit also invokes the strong presumption favoring arbitration, as established by the Court in enforcing the FAA.

 But as respondents note the word “sue” is commonly defined and used to mean sue “in a court of law,” the non-waiver provision of the Act does not distinguish between procedural and substantive rights, and tellingly, the provisions creating civil liability, giving consumers a claim for compensatory and punitive damages, provide criteria for calculating punitives “in any action” and damages “in any class action,”[3] and provide attorneys fees in any “successful action.” The use of the word “action” is commonly understood to refer to a judicial action. Moreover, as a brief amici curiae submitted by AARP and the Senior Citizens Law Center shows, the consumers protected by CROA are likely to be unsophisticated and in dire economic circumstances and therefore especially vulnerable, a good reason to read CROA’s provisions as protecting their right to access to the courts and full judicial protection. 

*          *          *          *

Each of these four cases raises important and noteworthy issues of access to justice. We will follow them with great interest as the Term progresses.

 


[1]       The next preview in this series will examine the cases to watch that will be argued during the Supreme Court’s second session of the 2011 Term, beginning October 31, 2011, and during its third session, beginning November 28, 2011.

[2]     The Supremacy Clause, Article VI of the Constitution, makes federal laws the “supreme law of the land” and binding on the states. State laws in conflict with federal law are therefore “preempted” and invalid.

[3]       Notably, CompuCredit’s arbitration contract would forbid the consumer from participating in any class action.