Last fall, the Supreme Court heard argument in Moore v. Harper, the North Carolina case of the “doctrine of the independent state legislature,” about which I wrote here. On February 3, however, the North Carolina Supreme Court made the unusual decision to granting a motion for a rehearing that may cause the state court to reconsider the substantive decision the US Supreme Court is currently reviewing. And yesterday (March 2), the Supreme Court of the United States asked additional briefing if this rehearing order renders the decision below non-final, depriving the United States Supreme Court of jurisdiction.
Derek Muller has many more helpful discussions and analysis.
I don’t have a strong opinion on the question of finality that the Court posed, but I was intrigued by a prior related question of jurisdiction. Have the courts in the state of North Carolina have jurisdiction to grant a new hearing on the merits?
It is a general maxim of federal jurisdiction that a lower court loses jurisdiction over a case while an appeal is pending. As far as I know, this rule is not entirely mandated by federal law, it is simply understood as a consequence of the way appeals work. Likewise, at common law “a writ of certiorari removes the record from the custody of the lower court, leaving nothing there to prosecute or execute by execution, and functions as a stay of execution.” 2 p.m.JUR.2D Certiorari 74 (2nd ed. 2006).
If this principle applied in Moore v. Harper, then the question would not be whether the Supreme Court has lost jurisdiction over the case, but rather than the state court may lack the competence to take such action. Is there any reason why this principle would not apply in Moore v. Harper?
One possibility is that the principle of certiorari/appeal does not apply to state courts for some reason. But I don’t know what that reason would be. The principle does not appear to be based on the “supervisory power” of federal courts or anything like that, but rather on the nature of certiorari or appellate review.
Another possibility is that the principle has changed, at least as far as certiorari is concerned. As Ben Johnson recounted (including last year on this blog), the Supreme Court now uses certiorari to consider only particular issues in a case, not to take responsibility for the whole case itself. This is not how certiorari worked at common law, and perhaps with this change the principle of certiorari jurisdiction has also changed. I’ve never heard anyone say that, but it’s possible.
A third possibility, and I guess it’s the most likely, is that it has something to do with what Muller calls “the ‘two-way’ approach in this case”:
This case proceeded on two separate tracks after the North Carolina Supreme Court’s initial ruling finding partisan gerrymandering, the “Election Clause” track and the “remedy” track.
The “Election Clause” track was this petition for certification to the Supreme Court. The ‘cure’ route sent it back to a three-judge panel with instructions for the legislature to propose a new map, for the trial court to review that map to determine if it was a gerrymander and to implement its own provisional map if the legislature has failed to draw a suitable map.
The petitioners argued here that the “Election Clause” track could be separated from the “remedy” track because whatever happened with the remedy, the election clause argument would stand – the legislature was not allowed to draw the map she wanted, and any remedy, however, was not going to allow the legislator to draw the map he wanted. . . .
The Court therefore took the case on this basis.
The two-track approach already suggests that an exception to the jurisdictional principle of certiorari is underway. Presumably the Court’s theory was that the “Election Clause” part of the case was final and could be reconsidered, even if the “appeal” part of the case was not – which is also related to the point above regarding the Court’s consideration of specific issues. rather than the whole thing.
But, if that’s true, wouldn’t that also imply that the North Carolina Supreme Court’s continued jurisdiction over the “appeal” portion of the case did not give it continued jurisdiction over the “Election Clause” portion? ” of the case, who was now on certiorari? That is, if the two tracks were separated enough for part of the case to be dismissed, shouldn’t they also be separated enough for the state court to lose jurisdiction over that part?
The question marks above are not rhetorical. I’ve been pondering these questions for almost a month, and I’m still not sure I understand what’s going on here. But with the news that the Supreme Court is going to look at jurisdictional issues here, I thought I’d voice my bewilderment publicly in hopes someone understood that.