Shepp freedom of speech (Polygamy) Case to go to SCotUS?
Douglas Laycock
laycockd at umich.edu
Mon Jan 8 17:09:18 PST 2007
The Court says over and over that a denial of cert has no weight as
precedent. People cite them anyway, but there are 5000 or so denials
of cert every year, and most of them didn't get much attention from
the Court. So if cert is denied, the precedent will be from the
Supreme Court of Pennsylvania, not from the Supreme Court of the
United States.
Having once urged the Court to take a case I had won -- for reasons
that seemed strong and sensible at the time -- and then seeing my win
reversed, I am inclined to an absolute rule that when you won below,
then if the Court asks for a response, you tell it to deny cert.
Quoting "Stanley M. Shepp" <stanshepp at yahoo.com>:
> Eugene and Doug,
>
> I appreciate your responses to my questions.
>
> If the court denies the petition, is that the same as if they
listened to
> it and upheld it? Will other fathers in similar predicaments, say,
in
> Utah, be able to use my case to defend their rights? I know it
would be
> more valuable if the SCotUS listened to all arguments and passed
their own
> decision - but denying to hear the case should carry some weight.
I would
> think.
>
> 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: Monday, January 08, 2007 1:14 PM
>> To: Law & Religion issues for Law Academics
>> Subject: RE: Shepp freedom of speech (Polygamy) Case to go to
SCotUS?
>>
>> 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
>> > >
>> > >
>> > >
>> > > _______________________________________________
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>
> _______________________________________________
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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:
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