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Last week’s request by the 2nd U.S. Circuit Court of Appeals that the U.S. Supreme Court immediately resolve the confusion created by its Blakely decision was an extraordinary measure to address an extraordinary problem. The 2nd Circuit invoked the certification process to fast-track to the Court the question of whether Blakely‘s prohibition on judges’ making findings of fact that increase a defendant’s sentence above the range set in a state sentencing scheme applies to the federal sentencing guidelines. U.S. v. Penaranda, 03-1055. The Supreme Court has accepted certified questions from federal appeals courts only four times since 1946. The most recent questions taken by the Court also involved a 2nd Circuit case — a controversy over the power of the president to execute an international settlement agreement. That case was Iran National Airlines Corp. v. Marschalk Co., 453 U.S. 919 (1981). Gary Stein, special counsel at Schulte Roth & Zabel, who served as chief appellate attorney for the Southern District U.S. Attorney from 2002 to 2004, said the 2nd Circuit’s request “has sent a loud and clear message to the Supreme Court — that the intelligent functioning of our criminal justice system” depends on a rapid statement on the implications of Blakely. Stein said the certification process is analogous to another form of expedited relief, called certiorari before judgment. Under the Supreme Court’s Rule 11, a party who loses in a district court can skip the appeals level and move to the high court if the justices agree the case presents an issue of “imperative public importance.” The rule has been invoked in cases of national significance, such as those over the Nixon White House tapes and the World War II-era Ex parte Quirin, on the president’s authority to detain and try by military commission Nazi saboteurs captured on American soil. The rule was also used to expedite Supreme Court consideration of a challenge to the sentencing guidelines shortly after their passage, in Mistretta v. U.S., 488 U.S. 361 (1989). In Mistretta, the Supreme Court granted certiorari before judgment, before any court of appeals had passed judgment on the constitutionality of the guidelines. The Court rejected a challenge to the guidelines, finding that Congress did not delegate excessive power to the U.S. Sentencing Commission and did not violate the separation of powers principle by placing the commission in the Judicial Branch, by requiring federal judges to serve on the commission and by allowing the president to appoint and remove commission members. Certification is “a different vehicle but it’s the same idea,” Stein said. “The constitutionality of the guidelines is of such importance and everyone is in such disarray that the Supreme Court needs to step in and settle it right away.” He called the 2nd Circuit’s certification request in Penaranda and a companion case a “bold and creative act of judicial statesmanship.” Scholars on U.S. Supreme Court practice have noted that, without being explicit, the Court seems to accept certified questions only in those circumstances that would warrant certiorari before judgment. The practice of certification, attempted in a slew of cases in the 1930s, is infrequently used today by the courts of appeals, particularly in light of the Supreme Court’s admonition that questions should be certified only in “rare instances.” Most recently, the Court rejected certified questions in 1989 and 1992, including one case in which the issue had already reached it through the traditional route of certiorari. Stein said one reason the Court is reluctant to take certified questions is that “it wants to know the views of the courts of appeals before it plunges into the issue.” “The Supreme Court tends to grant certiorari to hear cases only after there has been what is called percolation in the courts of appeals and they can step in to resolve a conflict,” he said. “There is also the notion that the Supreme Court doesn’t like the idea of the courts of appeals telling them what cases they should be hearing — that the Supreme Court should be the exclusive arbiter of what cases come before them.” SYSTEM IN DISTRESS In addition to the problem of district court judges wrangling with the language in Blakely, which the 2nd Circuit said has caused profound distress in the criminal justice system, circuit courts are already split over the ruling’s impact. The split has been created because the Blakely opinion stated that the justices were not passing judgment on the federal sentencing guidelines but the language left little doubt in the minds of many judges that the federal guidelines are sure to be found unconstitutional. The split makes it more likely that certiorari will be granted in at least one of those cases, and the 2nd Circuit’s certification underlines the urgency of the issue. In addition to the Iranian asset case, the other cases accepted by the Supreme Court through the certification process since 1946 have concerned the power of the courts of appeals to review the remand of district court cases to state courts, the right to a jury trial in a criminal contempt proceeding and the right of senior judges to vote to rehear cases en banc. Chief Judge John M. Walker Jr., writing for his 2nd Circuit’s 13 active judges urging the Supreme Court to take the Penaranda case, warned that “thousands of cases” will be affected unless the Supreme Court moves quickly. He quoted the Supreme Court’s decision in Wisniewski v. U.S., 353 U.S. 901 (1957), in which the Court said it would consider certification only in the rare instances when it “may be advisable in the proper administration and expedition of judicial business.” “We have heeded that admonition and used the procedure sparingly,” he said.

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