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July 13, 2004

A means for Supreme Court (re)consideration

I knew I saved my old edition of Hart and Wechsler's The Federal Courts and The Federal System for a good reason. It makes for a great little read on the certification procedure employed yesterday by the Second Circuit. In my yellowed Third Edition at pp. 1836-40, the section concludes with this choice quote from Wright et al.: "The sooner [abolition of certification] is accomplished by statutory amendment, the better."

Meanwhile, I now have word of another development that calls for pulling out the history books. Today Professor Rory Little, new counsel for the State of Washington, has told me about the filing of an "Application for Extension of Time to File a Petition for Rehearing on Behalf of the Respondent State of Washington." In other words, the State of Washington has plans to seek Rehearing of the original Blakely decision, even though the US Supreme Court apparently has not substantively granted a merits rehearing petition in nearly 50 years.

I have attached at the bottom of this post a pdf version of the petition, and here's the key part of the substantive argument:

Washington candidly recognizes that rehearing in this matter is legitimately viewed by many as unlikely. However, we believe the case merits the fullest possible attention at this juncture. This Court seems certain to soon grant merits hearings to other jurisdictions on the validity of their own sentencing regimes under Apprendi and the reasoning in Blakely.... We do not believe that the State of Washington fairly should be compelled to suffer the first blow as other jurisdictions continue to argue the implications of this Court’s closely-decided cases in this area. Rather, Washington should be permitted to participate in what will apparently be the definitive re-argument of the issues.

In dialogue with me about this effort, Rory thinks the Court should ultimately grant rehearing of Blakely itself as a matter of "fair Federalism." The idea is based on the sensible notion that, perhaps quite soon, the High Court is going to have a major "Apprendi day" in which the first principles of Apprendi will be re-examined. Says Rory: "If they are going to allow every other jurisidiction to argue that their regimes are distinguishible, why should Washington State have been made to walk the plank (so to speak) alone? Perhaps no one will change their mind. But if one did, Washington will have suffered a very unfair blow. The next arguments will NOT be simply about 'are the guidelines constitutional under Blakely.' They will inevitably and ineluctably go quickly to 'what is the bedrock constitutional theory that is operating here?' Rehearing of the case that stimulated that path is not just appropriate, but fair."
Download extension_rehearing_petition.pdf

July 13, 2004 at 04:41 PM | Permalink


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As a criminal law practitioner and observer of the Supreme Court for several decades, I predict this rehearing petition will meet the fate of all others. And I am surprised that a respected law professor, the proprietor of this blog, would donate space to a losing litigant's sour grapes.

The tone of the Senate's hearing today, emphasizing as it did the means of according the right to a jury trial announced by the Supreme Court within a sentencing system retaining the virtures, and eliminating some vices, of the federal guidelines, was entirely grown-up, and quite admirable. This tantrum of the State of Washington's is nothing more than that.

Posted by: David in NY | Jul 13, 2004 5:16:27 PM

I am surprised that a sharp fellow like Rory would put his name on such nonsense. Even if the Supreme Court were, hypothetically, to moderate some of what it said in Blakely in the course of, hypothetically, ruling in the fall that the federal Sentencing Reform Act and Guidelines were not unconstitutional, in whole or in part, that would have no bearing on the fact that the Washington State statutory sentencing guidelines, as applied to Mr. Blakely, plainly violated his Sixth Amendment rights as defined in Apprendi and clarified in Ring.

Posted by: Peter G | Jul 13, 2004 11:11:32 PM

And I am surprised that a respected law professor, the proprietor of this blog, would donate space to a losing litigant's sour grapes.

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 3:08:50 AM

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