Pending at the U.S. Supreme Court is a “never-before-raised procedural issue,” raised at the Court’s own prompting in “a truly rare move,” that relates to a requirement that everyone filing a petition for certiorari must address every time on the cover.

Every petition cover must insert a lower court’s name in the blank in the line, “On Petition for Writ of Certiorari to the ______.”

The Court’s rare move was to notify counsel the Friday before a Monday argument last November in a case challenging racially discriminatory jury selection in a state death-penalty trial that they should come prepared to discuss “whether certiorari in this case should be directed” to the state supreme court or to the superior court“ which had heard the postconviction case, and to discuss “what significance, if any, that determination may have on the Court’s resolution of the case.”  Foster v. Chatman (No. 14-8349).

The pre-argument notice in Foster probably was so rare because it involved an interaction between particular state review statutes and rules, a particular procedural posture of particular issues in the state proceedings, and the Supreme Court’s own jurisdictional statute and court rules.  But a phrase repeated throughout the Foster argument both shows the focus of the Court’s concern in that case and gives future petitioners a way to research and think through the question of how to fill in the blank on the cover.

The key phrase at the Foster argument, “discretionary review,” is not a statutory element of the Court’s certiorari jurisdiction over cases from either the federal or state systems.  28 U.S.C. §§ 1254(1), 1257(a).  It comes from a Supreme Court rule that seems to be restricted to determining the deadline for filing a certiorari petition: “A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.”  Rule 13.1.

But if the Court agrees to take on that review, S. Ct. Rule 16 tells the clerk to notify “the court whose judgment is to be reviewed,” and the clerk uses the “discretionary review” factor from its first processing of a petition to anticipate where to send a writ.

Foster is a good example.  The petition (filed by attorneys) named the Georgia Supreme Court on the cover, which followed the pattern of a very similar post-conviction relief case from the same state a few years earlier, Sears v. Upton, 561 U.S. 945 (2010), in which the Court had issued the writ to the Georgia Supreme Court (which also had summarily denied review) and vacated the decision after addressing the merits decided by the local court.

But when the Supreme Court clerk processed the Foster petition, the resulting docket showed the county superior court instead of the supreme court as the target for the requested writ.  When Cockle Legal Briefs printed the petitioner’s brief on the merits, his attorneys agreed we should follow the clerk’s lead and put the superior court on that cover.  But then the Court raised its question of where to send the writ and what effect that might have on the Court’s own review.

Normally, filling in the blank is a no-brainer.  Most appeals to the circuit courts of appeals are taken as a matter of right, not discretion, under the statute giving them “jurisdiction of appeals” from final decisions of district courts.  28 U.S.C. § 1291.   (Direct appeals from three-judge district courts are their own breed of cat.)

However, while many state court systems have similar laws making appeals to the top court a matter of right, others specifically make review a matter of the higher court’s discretion.

An example was DIRECTV, Inc. v. Imburgia, 577 U.S. __ (2014), where the docket (No. 14-462) and the Court’s eventual decision showed a particular intermediary California court of appeals as the writ recipient, the Court’s decision focused on the merits as decided at that level, and the only mention of the California Supreme Court was that it had “denied discretionary review.”  This was under a California statute making review of the type of case involved in DIRECTV a matter of discretion at the state supreme court level.

How the Court might decide Foster does not appear to affect that more clear-cut situation.  The Foster oral argument indicates that the Court’s concern is a narrow one regarding whether denial of review termed “discretionary” by the relevant state statute actually was a decision on the merits in the limited context of a state court rule that says the state supreme court will grant review if there is arguable merit to the habeas claim.

Still, that difference from the normal case involving truly discretionary review at the top of the state heap takes some digging into the rules and the issues of the particular case.

When prospective Supreme Court petitioners send us court decisions for the appendix, we often will raise a question about which state court should be named on the cover.  Our document analysts look at how the highest state court to touch the case described its review and may ask about where the different decisions should be arranged in the appendix or why the highest court or a lower state court is featured on the brief draft’s cover.

But that is as far as we can go, working as printers rather than co-counsel.  So we necessarily leave it to our customer drafting the certiorari petition to look at the legal and factual context and decide how to fill in the blank.