Cert practice

[Douglas Laycock]

  Eugene accurately states the Court's unwritten rule.  They will not
grant the petition, or do anything else with it except deny it,
without calling for a response.  But they do not say this in the
rules.  I think Mr. Shepp's lawyer can confirm it by calling the
Clerk's office and asking. 

  It takes only one Justice to call for a response; it takes 4 to
grant the petition; it takes a majority to affirm or reverse the
judgment below.

  It is sometimes viewed as irresponsible not to respond to an
obviously serious petition, but vast numbers of petitions are not
serious, and the sensible thing to do is not respond. 

  You can also notify the Court that you are waiving any response.  I
once advised a clinic at Texas to do that late in the Term, so the
cert denial would come in June instead of October, and they
could more effectively enforce their judgment.

  Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         If the Court just got the certiorari petition, it will
consider
> whether it might be worth granting.  If it looks like it's not
worth
> granting -- and I expect that this happens with 90+% of all
petitions
> that are filed without responses being filed -- then it will just
deny
> certiorari, without the opponent's having had to file anything or
pay
> anything.
>
>         If the Court thinks the case might be worth granting, it
will
> then issue an order specifically calling for the opponent to
respond.
> At that point it would indeed be wise for the opponent to file a
> response.  But chances are that no such order will be issued.  The
Court
> will almost never grant a petition without asking for a response
(unless
> the response was already filed even without asking).  So again
there's
> generally little reason for an opponent to file anything unless the
> Court asks for such a filing.
>
>         What do others on this list think?  Am I missing something?
>
>         Eugene
>
>> -----Original Message-----
>> From: religionlaw-bounces at lists.ucla.edu
>> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
>> Stanley M. Shepp
>> Sent: Monday, January 08, 2007 11:58 AM
>> To: 'Law & Religion issues for Law Academics'
>> Subject: RE: Shepp freedom of speech (Polygamy) Case to go to
SCotUS?
>>
>> My attorney advises me with the following:
>>
>>         the Supreme Court has the following rule which could
>> apply if Certiorari is granted:
>>
>>         In addition to presenting other arguments for denying
>> the petition,
>> the brief in         opposition should address any perceived
misstatement of
>> fact or law in the petition         that bears on what issues
>> properly would be
>> before the Court if certiorari were         granted.  Counsel are
admonished
>> that they have an obligation to the Court to point         out in
>> the brief in
>> opposition, and not later, any perceived misstatement made in
>> the petition. Any objection to consideration of a question
>> presented based on
>> what         occurred in the proceedings below, if the objection
>> does not go to
>> jurisdiction, may be         deemed waived unless called to the
Court's
>> attention in
>>         the brief in opposition.
>>
>> And:
>>
>>         Another possible problem is that the Supreme Court can
grant
>> "summary disposition"         on the petition for
>> Certiorari-meaning that they
>> can grant mother what she wants,         grant the opposite, or
>> remand the
>> case to the PA Supreme Court without doing         anything more
>> than reading
>> briefs on Certiorari.
>>
>>
>> I suppose he believes that I am better off to file a brief in
>> opposition - just in case.  Only about $4,000 with (40) copies.
>>
>> Any idea what the odds are that I am screwing myself by not
>> responding right now?  Will the SCotUS request a response if
>> they want one?  Will I then have the opportunity to reply to
>> "misstatements of fact" made in their brief?  The paragraph
>> above states "may be deemed waived".  Is it safe to assume
>> that they also "May NOT be deemed waived"?
>>
>> Thanks!
>>
>> Stan Shepp
>> Somewhere in the West
>> Center of the Universe
>> stanshepp at yahoo.com
>>
>>
>> > -----Original Message-----
>> > From: religionlaw-bounces at lists.ucla.edu
>> [mailto:religionlaw-bounces at lists.ucla.edu]
>> > On Behalf Of Volokh, Eugene
>> > Sent: Tuesday, January 02, 2007 5:18 PM
>> > To: Law & Religion issues for Law Academics
>> > Subject: RE: Shepp freedom of speech (Polygamy) Case to go
>> to SCotUS?
>> >
>> >     My sense is that the Supreme Court is highly unlikely
>> to agree to
>> > hear this case; it will probably just deny Ms. Shepp's petition
for
>> > certiorari, without requesting a response from Mr. Shepp.
>> So "not ...
>> > fight[ing]" the case -- in the sense of not filing a brief in
>> > opposition
>> > -- seems like the right move, and would be even if Mr. Shepp
were a
>> > multimillionaire:  No sense wasting the $20,000 when the Court
will
>> > deny the petition without any intervention on Mr. Shepp's part.
>> >
>> >     If the Court calls for a response, which suggests that at
least
>> > someone saw something potentially certworthy in Ms. Shepp's
>> petition,
>> > then Mr. Shepp might want to think about filing a brief in
>> opposition.
>> > But there seems to me to be little reason to spend any money on
a
>> > brief right now, at least until the Court calls for one
>> (which strikes
>> > me as quite unlikely).  Or am I missing something?
>> >
>> >     Eugene
>> >
>> > ________________________________
>> >
>> > From: religionlaw-bounces at lists.ucla.edu
>> > [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Stanley
M
>> > Shepp
>> > Sent: Tuesday, January 02, 2007 3:58 PM
>> > To: 'Law & Religion issues for Law Academics'
>> > Subject: Shepp freedom of speech (Polygamy) Case to go to
SCotUS?
>> >
>> >
>> >
>> >         I thought I would let you guys know that my ex-wife has
>> appealed my
>> > case to the SCotUS and I have decided not to fight it.
>> $20,000 that I
>> > don't have to defend a right that I have never exercised in
>> the first
>> > place seems ludicrous to me.  My attorney argued the
>> reasons I should
>> > defend the case, (if I fail to defend, the petitioners
>> arguments are
>> > accepted as fact) but it just would not be good for me.  If
>> I lose, I
>> > only lose my rights for a little while - until my daughter
>> is 18.  If
>> > I win, I still lose.  $20,000 in additional legal fees
>> would severely
>> > strap my finances - and I would not be able to travel to PA
>> to see her
>> > anyway.
>> >
>> >
>> >
>> >         Does anyone have a good reason that I should lose money
(or
>> > sleep) over this case?  What are the odds that the SCotUS
>> would even
>> > hear this case?  I think it is highly unlikely, but I am
>> interested in
>> > the thoughts of the members of this list.
>> >
>> >
>> >
>> >         Thanks!
>> >
>> >
>> >
>> >         For those who are not familiar with the case:
>> >
>> >         Majority Opinion:
>> >
>> >
>> >
http://www.courts.state.pa.us/opposting/supreme/out/j-97-2004mo.pdf[1]
>> >
>> >         Concurring Opinion:
>> >
>> >
>> >
http://www.courts.state.pa.us/opposting/supreme/out/j-97-2004co.pdf[2]
>> >
>> >         Dissenting Opinion:
>> >
>> >
>> >
http://www.courts.state.pa.us/opposting/supreme/out/j-97-2004do.pdf[3]
>> >
>> >
>> >
>> >         Stan Shepp
>> >
>> >         Somewhere in the West
>> >
>> >         Center of the Universe
>> >
>> >         stanshepp at yahoo.com
>> >
>> >
>> >
>> > _______________________________________________
>> > To post, send message to Religionlaw at lists.ucla.edu To
subscribe,
>> > unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi[4]-
>> > bin/mailman/listinfo/religionlaw
>> >
>> > Please note that messages sent to this large list cannot be
>> viewed as
>> private.  Anyone can
>> > subscribe to the list and read messages that are posted; people
can
>> > read
>> the Web archives;
>> > and list members can (rightly or wrongly) forward the
>> messages to others.
>>
>>
>> _______________________________________________
>> To post, send message to Religionlaw at lists.ucla.edu To
>> subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[5]
>>
>> Please note that messages sent to this large list cannot be
>> viewed as private.  Anyone can subscribe to the list and read
>> messages that are posted; people can read the Web archives;
>> and list members can (rightly or wrongly) forward the
>> messages to others.
>>
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[6]
>
> Please note that messages sent to this large list cannot be viewed
as
> private.  Anyone can subscribe to the list and read messages that
are
> posted; people can read the Web archives; and list members can 
> (rightly or wrongly) forward the messages to others.
>
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] 
/horde/services/go.php?url=http%3A%2F%2Fwww.courts.state.pa.us%2Fopposting%2Fsupreme%2Fout%2Fj-97-2004mo.pdf
[2] 
/horde/services/go.php?url=http%3A%2F%2Fwww.courts.state.pa.us%2Fopposting%2Fsupreme%2Fout%2Fj-97-2004co.pdf
[3] 
/horde/services/go.php?url=http%3A%2F%2Fwww.courts.state.pa.us%2Fopposting%2Fsupreme%2Fout%2Fj-97-2004do.pdf
[4] /horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi
[5] 
/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw
[6] 
/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20070108/9609601d/attachment.html