Malvo, Mootness, and Munsingwear

As noted in my post earlier today, the Virginia Legislature has enacted a law that eliminates, for that state, the dispute underlying the U.S. Supreme Court case of Mathena v. Malvo, No. 18-217. There is no doubt that the case should now be removed from the Supreme Court’s docket, leaving the issue to be decided in another case. It does matter how this is done, however.

Virginia had successfully asked the Court to take up the case to decide this question:

Did the Fourth Circuit err in concluding that a decision of this Court (Montgomery) addressing whether a new constitutional rule announced in an earlier decision (Miller) applies retroactively on collateral review is properly interpreted as modifying and substantially expanding the very rule whose retroactivity was in question?

Virginia then proceeded to argue that the answer is “no.” That is correct, in my opinion, and it remains correct despite the legislative change mooting the underlying question. Why should this erroneous precedent stand until the Supreme Court is able to decide the issue in another case?

Under HB 35, Malvo is eligible for parole after serving 20 years of his sentence, notwithstanding the fact that he was sentenced to life without parole. The essence of habeas corpus jurisdiction is a claim that the prisoner is illegally imprisoned at present or that his imprisonment will become illegal in the future. Malvo’s claim was that the preclusion of parole rendered his custody illegal, or would in the future, under the Miller/Montgomery rule. After enactment of HB 35 that is not true. The statute gives him all that he could have asked from the court under Miller/Montgomery. There is nothing to decide. In legalese, the case is moot.

Under Supreme Court Rule 46.1, the parties can agree at any stage of the proceedings that a case should be dismissed, and the rule directs the Clerk to enter an order to that effect “without further reference to the Court.” That is what the parties have done in this case, but a simple dismissal of the certiorari petition with nothing more collides with another principle. The leading treatise on Supreme Court practice describes it this way:

The Supreme Court has long held that when a civil case coming from a federal court “has become entirely moot, it is the duty of the appellate court” not merely to dismiss the appeal but “to set aside [that is, vacate] the decree below and to remand the cause with directions to dismiss.” Great W. Sugar Co. v. Nelson, 442 U.S. 92, 93-94 (1979).

E. Gressman, et al., Supreme Court Practice ch. 19.5 (9th ed. 2007). See also CJLF’s Brief in Trump v. International Refugee Assistance Project, U.S. No. 16-1436, vacated and remanded with directions to dismiss as moot Oct. 10, 2017.

This is called the Munsingwear rule. The lead case arose out of World War II price controls on men’s underwear. A funny thing happened on the way to 1 First Street, NE — VJ Day.

As applied to this case, the Clerk’s duty under the rule to dismiss without further reference to the Court conflicts with the Court’s duty under the Munsingwear rule.

Despite the “further reference” language of the rule, I believe the Clerk should refer this question to the Justices.