THOUGHTS ON IN RE COMMONWEALTH[Posted June 12, 2009] I am overdue in composing some further musings on last week’s important ruling in the Darryl Atkins case. My readers will recall that a divided Supreme Court ruled that neither mandamus nor prohibition could be used to compel the trial court to conduct a mental retardation hearing that had previously been ordered by the Supreme Court. This case presents some very interesting and difficult issues.
By way of preface, I invite you to recall that the Commonwealth doesn’t generally have a right of appeal in criminal cases. The foundation for that is in the Double Jeopardy Clause (“nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb”) of the Fifth Amendment. If such a right of appeal had existed, it would have been a simple matter for the Commonwealth to have appealed the trial court’s decision to impose a life sentence instead of conducting the mandated hearing. In that hypothetical appeal, I think it would have been significantly more difficult for Atkins’s lawyers to find four votes on the Supreme Court.
That’s enough speculating in the world of fantasy; back to reality, and what the majority has wrought here. I perceive two primary kinds of rulings in this decision. The first relates to the availability of these extraordinary writs; the second deals with a trial court’s powers upon remand.
In the abstract, I would have thought before reading this decision that either mandamus or prohibition would lie to compel the convening of the mental retardation hearing. Mandamus is a writ that compels the performance of a ministerial duty (and the act of convening a hearing has been held to be ministerial, as contrasted with the thoroughly discretionary question of how, ultimately, to rule). Accordingly, the issuance of the mandate to the trial court, telling it to conduct the hearing, certainly seemed to me to require a ministerial act.
Similarly, prohibition seemed to be an appropriate vehicle with which to prevent the trial court from exceeding its jurisdiction (that’s what such writs are for). The Commonwealth argued that, since this was a limited remand, the only thing the trial court had the authority to do was what was specified in the remand. (A general remand, in contrast, gives the whole case back to the trial court.) Indeed, the emergency statute, passed by the General Assembly in response to the US Supreme Court’s 2002 ruling in this case, provides for a limited remand:
“If the claim is before the Supreme Court on direct appeal and is remanded to the circuit court and the case wherein the sentence of death was imposed was tried by a jury, the circuit court shall empanel a new jury for the sole purpose of making a determination of mental retardation.” (Emphasis supplied.)
In light of this language, the Attorney General’s Office has to be scratching its figurative head right now, asking, “How could we possibly have lost this?”
It lost based on the premise that neither mandamus nor prohibition operates retroactively. That much, at least, is fairly well-established in Virginia law. The majority rules that the trial judge had already made its ruling, and the requested writs would only have served to undo that order. Thus, the Commonwealth was trying to use these writs to pursue an indirect appeal (see above) of a ruling that had already been made.
This, on its face, is a plausible basis on which to refuse the writs. But once you look below the surface of this reasoning, you start to see problems. For example, the dissent cites (starting on page 69 of the slip opinion) several cases in which the court has previously issued writs of prohibition that would undo acts already done. In one of those, a Victorian Era justice of the peace awarded a judgment, and then four months later, at the request of the plaintiff, entered an order granting a new trial (presumably the plaintiff wanted to pad his recovery a bit). The Supreme Court approved the granting of a writ of prohibition, since due to the passage of time, the justice of the peace had lost jurisdiction. The undeniable effect of that writ was to vacate the order granting a new trial. Viewed in this light, the majority’s holding (that prohibition wasn’t available because the challenged order had already been entered) looks a bit less plausible.
There’s more. As noted above, the function of a writ of prohibition is to prevent a lower tribunal from exceeding its jurisdiction. If the majority is right, then all the lower tribunal has to do in order to insulate itself from this writ is to hurry up and enter an order, thereby divesting the higher court of the power to issue the writ. Very seldom do courts announce in advance their intention to exceed their jurisdiction on a future date certain; far more often, the aggrieved party has to come to the appellate court after the order has been entered, asking it to correct things. (This, of course, is how we appellate lawyers earn a living.) The act of exceeding jurisdiction is often only revealed after the order has been entered.
The dissent sees this as a suitable place to draw a line, without opening up prohibition to the undoing of faits accomplis. Justice Kinser suggests that when the only thing that is to be “undone” is the entry of the order itself, then prohibition is still available. In contrast, when the order has been carried out and actual events have unfolded, it’s appropriate to back off; one example cited in both opinions is that of an allegedly void order directing the release of three inmates from prison. The two sides agree that it would be inappropriate to issue a writ of prohibition that would essentially cause the three men to be taken back into custody, since that would undo something already done.
The dissent’s suggested dichotomy makes sense to me – I think there’s a qualitative difference between just entering an order and the extrinsic effects of that order – but as of June 4, that difference doesn’t matter anymore. In re Commonwealth now provides that, henceforth, the Supreme Court won’t issue a writ to undo the entry of an order, even if the lower court exceeded its jurisdiction in entering it. Keep in mind that this ruling applies in lower courts, too, as circuit courts can enter extraordinary writs directed to the district court level.
There’s a similar dispute in the mandamus discussion. The dissent cites several prior decisions in which “the issuance of a writ of mandamus had the incidental effect of undoing an act already done although the writ itself did not directly compel such action.” The majority’s only response to those citations is that they weren’t final adjudications in criminal proceedings. Perhaps there is a new-found distinction here for mandamus cases, where criminal petitions are viewed differently from civil ones, but I doubt it. I’ll admit to feeling somewhat skeptical of this ground of distinction; why should a final order in a criminal case be viewed any differently from a civil one? And why should non-final orders, by which the lower court flatly refuses to perform a ministerial act, be immune from this kind of review and compulsion?
The second major ruling in this case deals with what a trial court may do on remand. As I mentioned above, this was a limited remand, in which the trial court was given a specific directive to conduct a hearing. When the trial judge got a motion from Atkins’s lawyers, raising the specter of prosecutorial misconduct, he foresaw this very dispute, and even went to the trouble of asking the Supreme Court for guidance on whether he could entertain any issues other than those in the limited remand. The Supreme Court didn’t give him that guidance, ruling instead that interlocutory appeals weren’t available in criminal cases.
That was obviously a correct ruling, based on the wording of the interlocutory appeal statute. But it left the trial judge to guess as to whether he had the right to do something other than what the Supreme Court had specifically and unambiguously directed him to do. He guessed that he could, and the Supreme Court has now backed him in this decision.
But what does this say for the future of limited remands? The majority seems to suggest that their day has passed: “We hold that a circuit court presiding during remand of a capital murder proceeding retains authority and discretion to resolve legal issues that the litigants raise.” While it’s true that this holding is limited by its terms to capital murder proceedings, there is no reason why a similar remand in a non-capital case, or even a civil case, should be viewed any differently. Indeed, the scope of capital remands is, by statute, even more limited than in other types of cases, based on the statute I quoted above (empowering remand “for the sole purpose of making a determination of mental retardation”). I’m not aware of any other type of remand that is constrained in this way. If these remands are now to be regarded as general, I cannot envision the survival of limited remands in any context.
At a visceral level, there is something inherently troubling about the concept that a lower court can, in effect, disobey a mandate from an appellate court. I speak here not of the outcome for Atkins; I would not venture to offer an opinion on whether the ultimate outcome (life in prison without parole) is appropriate or not, since I didn’t hear the evidence in the case. But my sense is that the concept of a mandate is supposed to be stronger than this (and the dissent agrees, forcefully, starting on page 29 of the slip opinion). The root words of mandate and mandatory are the same; they reflect the Roman custom of placing a directive or other order into the hand (from manus, “hand,” and datum, “given”) of the recipient, so there can be no mistake about his duty to obey. Command and even mandamus reflect this origin; the lower court has to obey.
Clearly, this lower court didn’t obey; it was directed by the last mandate to “proceed with this criminal case.” Even more telling, that mandate went on to constrain the scope of the proceedings, consistent with what the statute requires: “Such proceeding is confined to the terms of the mandate issued by the Court . . . remanding this case to the circuit court for a jury determination on whether Atkins is mentally retarded.” Can it get any clearer than that? This seems to be a strong hint to the trial court, even though the Supreme Court couldn’t give him a direct interlocutory answer, that he had to do exactly as he was told. (At least, that’s the way I would have read these tea leaves – incorrectly, as it turns out.)
This ruling isn’t the death of the extraordinary writ, but it is quite likely to make the issuance of such writs far more extraordinary.