Supreme Court Update: Arizona Christian School Tuition Organization v. Winn (09-987), Cullen v. Pinholster (09-1088) and Order List

April 8, 2011 Supreme Court Update

Greetings, Court fans!

The Court issued two significant decisions this week: Arizona Christian School Tuition Organization v. Winn (09-987), limiting taxpayer standing to bring Establishment Clause challenges, and Cullen v. Pinholster (09-1088), holding that, on habeas review, a district court is limited to the record created in the state court when determining whether a state court's decision constitutes an unreasonable application of clearly established state law. The Court also granted cert in two cases.

By finding that the taxpayer plaintiffs lacked standing to sue because the case involved a challenge to targeted tax credits rather than direct governmental expenditures, Arizona Christian School Tuition Organization v. Winn (09-987) may make it impossible for courts to review many government tax expenditures (via targeted deductions and credits) that arguably fund religion. While fairly brief for such a controversial case, the 5-4 decision broke along traditional conservative/liberal lines, with Justice Kennedy authoring the majority opinion.

Arizona law gives tax credits to individuals who contribute to school tuition organizations ("STOs"), which in turn provide scholarships to students attending private schools, including religious schools (some of which discriminate against applicants based on their religion). Respondents, Arizona taxpayers, filed suit arguing that the law violated the Establishment Clause in that it amounted to the use of state tax revenues to fund religious education. The district court originally dismissed the case based on the Tax Injunction Act, but the Ninth Circuit reversed and the Court affirmed. On remand, the district court once again dismissed, this time for failure to state a claim. The Ninth Circuit reversed again, finding that the taxpayers had standing and had stated a claim for violation of the Establishment Clause.

The Court reversed, finding that the taxpayers had no standing to sue and therefore, the Court lacked jurisdiction to hear the case (even though it had already heard the case once!). Article III restricts the Federal Judiciary to resolving "'Cases' or ‘Controversies,'" "not questions and issues." Justice Kennedy emphasized that this limitation was essential to maintaining the public's respect for "an unelected but restrained Federal Judiciary." Standing requires an injury in fact that is causally connected to the conduct complained of, and the injury must be redressable by a favorable decision. In general, individuals do not have standing to sue merely based on their status as taxpayers. (Indeed, the majority's decision suggests that taxpayer standing will very rarely be recognized: "[R]ecent decisions have explained that claims of taxpayer standing rest on unjustifiable economic and political speculation.") However, the Court recognized a narrow exception in Flast v. Cohen (1968), in which the Court founding standing where federal taxpayers objected, on Establishment Clause grounds, to a congressional statute allowing expenditures to support education in religious schools. The taxpayers in Flast could meet the high standing bar because they challenged tax legislation that took their tax revenues and used the funds directly to support religious institutions, with whose beliefs the taxpayers may have disagreed. While "tax credits and governmental expenditures can have similar economic consequences," tax credits do not "implicate individual tax payers in sectarian activities." The majority found this distinction dispositive. When the government provides a targeted tax credit (such as here, for the STOs, some of which were sectarian and some of which were not), the dissenting taxpayer is not required to directly fund religion. "And awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences." Therefore, any taxpayer standing argument would not be based on the notion that the taxpayer was harmed by being forced to fund religion, but instead based on the more generic claim that the tax credit reduces overall tax revenues and might ultimately lead to higher taxes. But this argument is simply too speculative to afford standing. Justice Scalia, joined by Thomas, issued a separate concurrence. Although they agreed with the majority's analysis, they would jettison the notion of taxpayer standing altogether as an "anomaly in our jurisprudence, irreconcilable with the Article III restrictions on federal judicial power. . . ."

Justice Kagan authored an impassioned dissent – her first. Tax credits and direct governmental expenditures are functionally equivalent and both can achieve the same goal, so to treat them differently for standing purposes makes no sense. (The STOs recognize this, with advertising slogans such as "'With Arizona's scholarship tax credit, you can send children to our community's [religious] day schools and it won't cost you a dime!'") Indeed, no court had ever drawn such a distinction in the past, including this Court in at least five other cases. (The majority found these cases unpersuasive since the standing issue simply hadn't been discussed by the Court.) In Flast, the Court articulated a rule under which taxpayer standing exists any time a legislature used its taxing-and-spending power to channel tax dollars to religious activities. The STO tax credit clearly satisfies that standard and standing should be found in this case. The distinction drawn by the majority may well curtail the ability to challenge government funding of religion altogether: since tax credits and direct expenditures can have just the same impact, legislatures can now immunize their laws simply by framing them as tax credits.

In Cullen v. Pinholster (09-1088), Scott Pinholster filed a habeas petition based on ineffective assistance of counsel after he was sentenced to death for two murders. Pinholster claimed that his lawyers failed to do an adequate mitigation investigation, which resulted in their putting on only one witness in the sentencing phase – Pinholster's mother. Indeed, it appears that Pinholster's counsel's strategy was to rely on the fact that they had not received proper legal notice of the state's witnesses to try to preclude those witnesses. As a result, they told the trial court that they had not prepared any mitigation case. But when the court offered a continuance so they could prepare one, counsel declined, saying the only mitigation witness they could think of was Pinholster's mother. The state's witnesses were not precluded and presented damning evidence about Pinholster's past violent actions. For the defense, Pinholster's mother testified that Pinholster had been run over by a car as a child, was thrown through the windshield during a car accident, had trouble in school, had been abused or nearly so by his step-father (though she suggested that Pinholster may have deserved it), had been placed in a school for educationally handicapped children, spent six months in a mental institution, lived in boys homes or juvenile facilities from the age of 10 or 11 and was beaten badly in jail at the age of 18, which caused him to develop epilepsy. Defense counsel did not seek to admit any evidence, such as medical or educational records, to corroborate this testimony and presented no psychiatric evidence.

Pinholster filed for habeas relief in state court, where he presented significant additional mitigating evidence, including school and medical records, affidavits of other family members (that the family's life was chaotic and extremely violent and that Pinhoster was hit with fists, belts and even wooden boards on a regular basis), and testimony of medical experts linking his past injuries to his current mental problems. The state courts summarily denied Pinholster's claim on the merits. In the district court, Pinholster raised the same claim as in state court, but adduced slightly different evidence (particularly different medical experts) in an evidentiary hearing. The district court granted habeas relief and the Ninth Circuit affirmed en banc. The Court reversed in a divided decision that requires a bit of a tally chart.

The Court considered two issues: (1) whether a district court is limited to the factual record developed in state court when hearing a habeas petition claiming that the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law" under 28 U.S.C. § 2254(d)(1); and (2) whether, even limited to the state court record, Pinholster met that standard. With respect to the first question, seven Justices found that the district court is limited to the state court record when hearing a (d)(1) habeas claim. Led by Justice Thomas, the Court's reasoning was simple: the language of the statute is backward looking and requires federal courts to evaluate state court decisions deferentially and in light of the facts and governing law as it existed at the time of the decision. It would be odd indeed to say that a state court unreasonably applied the law to facts it had never even seen. Justices Sotomayor and Alito disagreed (though wrote separate opinions, Alito concurring in part and concurring in the judgment, and Sotomayor dissenting). In their view, § 2254(e)(2) provides specific limitations on the right to an evidentiary hearing in a habeas case. If federal courts are not permitted to hold hearings even outside those circumstances, then section (e)(2) would be given "an implausibly narrow scope." Sotomayor would have found the evidentiary hearing appropriate in this case since Pinholster had previously diligently pursued this claim in state court; Alito would not since, in his view, the additional evidence could have been available for the state court proceedings.

The second issue divided the Court even further, resulting in a 5-4 split along ideological lines. The majority found that the Ninth Circuit did not give proper "double deference" to the state court's decision. Doubly deferential review was required because (1) there is a strong presumption that counsel provided adequate representation and that his decisions were in the exercise of judgment; and (2) a state court's decision must stand unless no reasonable state court could have concluded that counsel's performance met that standard. Here, the state court reasonably could have found that Pinholster's counsel did some investigation into mitigation evidence and opted to take a two pronged strategy, first to try to exclude the prosecution's evidence, and if that was not successful, to put on a family sympathy defense through Pinholster's mother. It is often reasonable for an attorney to elect to put on a narrow mitigation defense when, in his view, the other evidence would not be persuasive. Thus, the state courts did not act unreasonably by finding that counsel's strategy did not constitute ineffective assistance of counsel. Further, in the majority's view, Pinholster could not show any prejudice because much of the mitigation evidence he claimed should have been used was duplicative of the testimony already provided by Pinholster's mother or would have been a double-edged sword.

Justice Sotomayor led the dissenters, who would have affirmed the grant of habeas relief. In their view, Pinholster's counsel (one of whom had since been disbarred), did a woefully inadequate mitigation investigation. While choosing to call just one witness may well be an appropriate judgment call in some cases, it can't be considered a judgment call when virtually no investigation was done and therefore judgment didn't really come into play. One of Pinholster's lawyer's backed up this conclusion with affidavits stating that he didn't recall doing any mitigation investigation beyond contacting Pinholster's mother and having one brief psychiatric evaluation done of Pinholster. Moreover, the notion that Pinholster's mother's testimony was an adequate substitute for the objective evidence that could easily have been admitted was a non-starter.

The Court's two cert grants came in:

Greene v. Fisher (10-637), which asks: "For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as ‘clearly established Federal law' under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?"

Florence v. Board of Chosen Freeholders (10-945), where the Court will determine "[w]hether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances."

With that, we sign off for the week! As always, thanks for reading.

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400