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Scotus may clarify rules for interpreting plurality decisions

Hughes v. United States, USSC No. 17-155, certiorari granted 12/8/12

Questions presented:

1. Whether this Court’s decision in Marks v. United States, 430 U.S. 188 (1977), means that the concurring opinion in a 4-1-4 decision represents the holding of the Court where neither the plurality’s reasoning nor the concurrence’s reasoning is a logical subset of the other.

2.Whether, under Marks, the lower courts are bound by the four-Justice plurality opinion in Freeman v. United States, 564 U.S. 522 (2011), or, instead, by Justice Sotomayor’s separate concurring opinion with which all eight other Justices disagreed.

3. Whether, as the four-Justice plurality in Freeman concluded, a defendant who enters into a Fed. R. Crim. P. 11(c)(1)(C) plea agreement is generally eligible for a sentence reduction if there is a later, retroactive amendment to the relevant Sentencing Guidelines range.

Decision below: United States v. Hughes, 849 F.3d 1008 (11th Cir. 2017)

USSC Docket

Scotusblog page (including links to petition for certiorari and response; briefs; and commentary)

UPDATE–The Court resolved the case without addressing the Marks issue, so we’ll have to wait for clarification.

Whether so-called “C-type” plea agreements may be reduced in light of a retroactive amendment to the relevant sentencing guideline matters to lawyers representing federal criminal defendants. The Seventh Circuit, like most other circuits, has concluded that Sotomayor’s concurrence in Freeman controls, and that allows sentence reduction only if the plea agreement was expressly based on the subsequently reduced sentencing range, rather than a number negotiated by the parties. U.S. v. Dixon, 687 F.3d 356 (7th Cir. 2012). The decision in this case will either validate or undo the approach adopted in Dixon. (Practitioners interested in federal sentencing law should note the Court has also granted certiorari in Koons v. United States, USSC No. 17-5716, which will address whether a defendant is eligible for sentence reduction based on a subsequently reduced sentencing range when he was originally sentenced below the statutory mandatory minimum because he provided assistance to the government.)

If the substantive question matters only to federal criminal defense lawyers, the question about the meaning of Marks will matter to everyone who has ever had to figure out how to find a “holding” in cases where there’s no majority opinion of the Court. Marks says that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”‘ 430 U.S. at 193 (quoted source omitted). Easy to say, but not easy to apply; sometimes a fool’s errand, as we said here, regarding the split decision in Williams v. Illinois, 132 S. Ct. 2221 (2012). As a recent commentator explains:

…[Marks’s] cryptic directive leaves many questions regarding the precedential force of Supreme Court plurality decisions unanswered. For example, does Marks require lower courts to search for a single “narrowest” opinion issued in the precedent-setting case and accord that opinion full stare decisis effect? Many lower court judges believe that it does—even where the putatively “narrowest” opinion reflects the reasoning of only one of the Court’s nine members. But others disagree, finding it inappropriate to accord binding effect to portions of a putatively “narrowest” opinion in which a majority of Justices did not explicitly or implicitly acquiesce. Even if lower court judges could agree on an answer to this first question, there would remain a further unanswered question regarding what criteria of “narrowness” they should use to identify the “narrowest grounds” of decision in the precedent case. Yet another unanswered question involves what role, if any, dissenting opinions should play in the Marks analysis. These and other questions regarding the proper application of the Marks framework have long bedeviled lower courts’ efforts to identify the controlling portions of Supreme Court plurality decisions.

Ryan C. Williams, Questioning Marks: Plurality Decisions and Precedential Constraint, 69 Stanford L. Rev. 795, 798-99 (2017) (footnotes omitted). This confusion creates “an important practical challenge for lower courts,” id., so resolving the questions or otherwise clarifying or changing Marks‘s approach will be a big deal. Assuming, that is, the Court addresses Marks instead of dodging the question by deciding only the substantive question, and assuming there’s a majority holding on how to read a plurality decision.

Wisconsin courts have, of course, used Marks when interpreting U.S. Supreme Court plurality decisions. See, e.g., State v. Deadwiller, 2013 WI 75, ¶30, 350 Wis. 2d 138, 834 N.W.2d 362; Lounge Management v. Town of Trenton, 219 Wis. 2d 13, 22, 580 N.W.2d 156 (1998). But what about trying to extract a rule from a divided opinion of the Wisconsin Supreme Court?

We haven’t adopted Marks’s approach in that situation. Instead, when faced with divided state supreme court decisions, the lower court must look for a majority on any one of the various conclusions the justices reach. A lack of a majority on a particular conclusion means that conclusion has no precedential value, because “a majority of the participating judges must have agreed on a particular point for it to be considered the opinion of the court.” State v. Elam, 195 Wis. 2d 683, 685, 538 N.W.2d 249 (1995), citing State v. Dowe, 120 Wis. 2d 192, 194, 352 N.W.2d 660 (1984) (where court split 3-3 on whether to overrule an earlier case, the case was not overruled and remained precedential). Cf. State v. Grady, 2007 WI 81, ¶¶19-28, 302 Wis. 2d 80, 734 N.W.2d 364 (concluding prior cases did not create binding precedent on an issue because no majority opinion adopted a holding on that issue). For instance, in Estate of Makos v. Wisconsin Masons Health Care Fund, 211 Wis. 2d 41, 564 N.W.2d 662 (1997), a case dealing with statutes of limitation and repose in civil actions, the court itself later said that “the only ‘majority’ holding in that case is the mandate. Of the four ‘majority’ justices, three separate opinions give three distinct reasons for the result. Therefore, none of the opinions in that case has any precedential value.” Doe v. Archdiocese of Milwaukee, 211 Wis. 2d 312, 334 n.11, 565 N.W.2d 94 (1997). See also Ives v. Coopertools, 208 Wis. 2d 55, 58, 559 N.W.2d 571 (1997) (per curiam); Tomczak v. Bailey, 218 Wis. 2d 245, 280, 578 N.W.2d 166 (1998) (Geske, J., concurring); Aicher v. WI Patients Compensation Fund, 2000 WI 98, ¶40, 237 Wis. 2d 99, 613 N.W.2d 849 (concluding Makos has no precedential weight, and overruling it).

While there have been calls for Wisconsin to adopt Markssee Tomczak, 218 Wis. 2d at 283 (Crooks, J., concurring), it hasn’t happened yet. If the Supreme Court uses this case to clarify or overhaul its approach to plurality opinions, perhaps our supreme court will revisit its treatment of plurality opinions, too.

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