Virginia Attorney General Ken Cuccinelli announced this morning that he will file a Petition for Certiorari Before Judgment today requesting that the U.S. Supreme Court review the Commonwealth v. Sebelius decision without waiting for a ruling from the United States Court of Appeals for the Fourth Circuit.

The Supreme Court allows for such an expedited review but rarely grants it. Here is the rule:

Rule 11. Certiorari to a United States Court of Appeals before Judgment

A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.

In a press release, Cuccinellis insists that this is one such circumstance:

Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act, we feel that it is necessary to seek resolution of this issue as quickly as possible,” said Cuccinelli in the release. “Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional. Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone’s best interest.

He clearly waited for the decision in Florida this week to establish a division of opinion with two district courts upholding the law and two district courts finding it unconstitutional. Frankly, there may be less of a division once the cases go to the appellate court. The appellate courts could easily go the other way on standing or the merits. There are strong cases on both sides of this issue, though (as I have stated before) I believe Congress has an advantage in the lower courts. This was always a case that would have to be resolved by the Supreme Court.

The advantage to bypassing the circuit court is obvious. While the other two opinions upholding the law are likely to be affirmed, there is a real chance that one or both of the Virginia and Florida opinions could be reversed in whole or in part. That makes opponents to the health care law more vulnerable at the appellate level. The biggest problem for Virginia is that the individual mandate is not schedule to kick in until 2014 — giving ample time for review under “normal appellate practice.” Indeed, with argument schedule in Virginia for May, the case could be before the Court and resolved next year.

The Court has always disfavored such petitions on the same grounds as interlocutory appeals generally. See Virginia Military Inst. v. United States, 508 U.S. 946 (1993) (Scalia, J., concurring in denial of certiorari) (“We generally await final judgment in the lower courts before exercising our certiorari jurisdiction.”).

In the rare occasions it is granted, it tends to be in cases involving multiple appeals where some are already through the appellate stage. For example, this happens in the Grutter/Gratz affirmative action rulings. In Gratz v. Bollinger, 539 U.S. 244 (2003), the petitioners succeeded in their writ of certiorari before judgment, because its sister case, Grutter v. Bollinger, had already been ruled upon by the Sixth Circuit. In that case, however, the appellate court had already been heard on the issue.

In Roe v. Wade, there was an expedited review in that the Court found a way to reviewing such the injunctive and declaratory decisions. The Court explained the rather convoluted path of that case:

The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to [***160] 28 U. S. C. § 1253, have appealed to this Court from that part of the District Court’s judgment denying the injunction. The defendant District Attorney has purported to cross-appeal, pursuant to the same statute, from the court’s grant of declaratory relief to Roe and Hallford. Both sides also have taken protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision here. We postponed decision on jurisdiction to the hearing on the merits. 402 U.S. 941 (1971).

It might have been preferable if the defendant, pursuant to our Rule 20, had presented to us a petition for certiorari before judgment in the Court of Appeals with respect to the granting of the plaintiffs’ prayer for declaratory relief. Our decisions in Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v. University Committee, 399 U.S. 383 (1970), are to the effect that HN1§ 1253 does not authorize an appeal to this Court from the grant or denial of declaratory relief alone. We conclude, nevertheless, that those decisions do not foreclose our review of both the injunctive and the declaratory aspects of a case of this kind when it is properly here, as this one is, on appeal under § 1253 from specific denial of injunctive relief, and the arguments as to both aspects are necessarily identical. See Carter v. Jury Comm’n, 396 U.S. 320 (1970); Florida Lime Growers v. Jacobsen, 362 U.S. 73, 80-81 (1960). It would be destructive of time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, post, p. 179.

It was also allowed in United States v. Nixon, 418 U.S. 683 (1974), where the Court held:

The District Court’s order was appealable as a “final” order under 28 U. S. C. § 1291, was therefore properly “in” the Court of Appeals, 28 U. S. C. § 1254, when the petition for certiorari before judgment was filed in this Court, and is now properly before this Court for review. Although such an order is normally not final and subject to appeal, an exception is made in a “limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims,” United States v. Ryan, 402 U.S. 530, 533. Such an exception is proper in the unique circumstances of this case where it would be inappropriate to subject the President to the procedure of securing review by resisting the order and inappropriate to require that the District Court proceed by a traditional contempt citation in order to provide appellate review. Pp. 690-692.

Of course, it is even more rare for the winning party to seek expedited appellate review. It is usually the losing party that is eager to have appellate review. Yet, this can cut in favor of Virginia since it is motivated not by overturning the ruling but the costs of the delay and uncertainty.

Having said that, there are credible arguments for expedition. First, there is no question of the importance of the issue to the nation. Few cases come before the Court with this level of immediate and considerable importance to the nation. Both sides have stated no less in arguments before the district courts. There are now 28 states out of 50 opposing the law.

Second, there is confusion as to the status of the law. Judge Vinson declined to grant an injunction — stating (as noted earlier) that a declaratory judgment is the equivalent to an injunction. I disagree in this case and I have received a number of calls for lawyers in the field who asked whether the law was still enforceable. They are not ideologues. They are lawyers who are unsure of what law to follow. Ironically, it is the Florida ruling striking down the entire law that most contributes to that confusion.

Third, this matter will not be fully resolved until the Court renders a decision. All of the opinions below struggle with conflicting and confusing precedent left by the Supreme Court.

Notably, Cuccinelli’s request is supported on some level by Sen. Bill Nelson (D-FL), who has asked Congress to pass a resolution calling for expedited review.

I will post the petition once it is available.

Source: Washington Post

Jonathan Turley