One of the consequences of gross favoritism to government litigants is that it winds up wasting judicial time and resources.
Case in point: why is this case receiving any serious attention in the SCOTUS? The main reason is that the Commonwealth of Pennsylvania is the Petitioner. And what is the case about?
Apparently a group of lawyers opposed to the death penalty (“defenders”) receive some federal funding in PA and represent some death sentenced prisoners in state court post-conviction proceedings. The Commonwealth doesn’t like that, and moved to disqualify them in the state courts, then the defenders “removed” the motions to federal court.
The Commonwealth’s argument seems to be that the federal funding the defenders get can’t be used to represent capital defendants in state (as opposed to federal) court, but they couch it differently:
Issue: Whether Congress has created a right to federally funded counsel in state capital post-conviction proceedings, in state court, prior to completing federal habeas litigation, notwithstanding this Court’s contrary decision in Harbison v. Bell.
This is such a stretch. To properly present this issue you’d need a case where a capital defendant asserted such a right. That’s not what is going on here. Here, the Commonwealth is trying to disqualify these death penalty lawyers. There’s no “right” involved, and no issue about any “right” to present to any court.
But the defenders have to spend time and resources opposing this stupid argument, first by properly framing the real question:
The question presented is whether the court of appeals correctly ruled that these cases were properly removed to federal court and that the AO has exclusive authority to enforce the terms of respondent’s federal grants.
And the SCOTUS has to wade through all that before it determines that the cert petition is denied.
Not to mention, part of wading through all that is dealing with dishonest “quote mining” by the Commonwealth. This is from their reply brief, where they are trying to suggest that they have stated the issue correctly and the defenders are dishonestly trying to avoid the issue:
The Circuit Court observed that whether 18 U.S.C. § 3599 allows the federal government to provide counsel in State habeas “is the question squarely presented by the merits of this case.” 790 F.3d at 474.
Thus, absent an authorization order from a federal district court requiring exhaustion of state remedies, federally funded counsel would not be required in such situations. Id. at 190 n. 7, 129 S.Ct. 1481. The Court never stated, however, that Federal Community Defender counsel would be prohibited from representing clients in state habeas proceedings in preparation for federal habeas corpus representation. See id. Indeed, that is the question squarely presented by the merits of this case. Because we must accept the Federal Community Defender’s theory of the case at this juncture, see Acker, 527 U.S. at 432, 119 S.Ct. 2069, we find this defense to be colorable.
Personally, we think the Commonwealth’s attorneys should be sanctioned – or at least cautioned or something – for bringing a frivolous cert petition and for dishonest argument.