March 31, 2009

Cert. Dismissed in Williams III

The U.S. Supreme Court has issued an order dismissing certiorari as improvidently granted in Philip Morris v. Williams (Williams III), which was argued last December (click here to view the transcript). As readers of this blog will recall, the issue before the court was:

Whether, after this Court has adjudicated the merits of a party’s federal claim
and remanded the case to state court with instructions to "apply" the correct constitutional standard, the state court may interpose--for the first time in the litigation--a state-law procedural bar that is neither firmly established nor regularly followed.
I certainly didn't see this dismissal coming. It was apparent from the oral argument transcript that the court was sharply divided, but I guessed that the result would be a 5-4 reversal. Looking back at the transcript, I suppose this comment by Justice Breyer might have been a hint that dismissal was possible: "When I read that petition for cert, I thought this is a run-around, and I'm not sure that I think that now."

No one really knows why the court dismissed review (and we may never know), but one of my colleagues, John Querio, has offered this assessment, which makes sense to me:

It means they realized this issue was tangled up with state law issues that they
didn’t anticipate (but could have), meaning there was a very good argument that the Oregon S.Ct.’s rationale represented an adequate and independent state ground for the decision, which deprives the USSCT of jurisdiction. I’m guessing the liberals and at least some of the conservatives agreed on this – the liberals because they wanted to preserve the award, and the conservatives because they favor the AISG doctrine in the criminal context and didn’t want to make new and harmful precedent cutting back on that ground to get to the merits of the punitive damages issue here. Such an opinion could have been cited by criminal defense lawyers in the future.

You can read more about the dismissal at:

WSJ Law Blog

Reuters

Bloomberg

SCOTUSblog (Observing that, with interest, Philip Morris will now owe over $150 million, but noting that Philip Morris plans to keep the Williams litigation going by challenging the state of Oregon's claim to 60 percent of the punitive damages award)