In Reversing Kulbicki v. State, How Did the U.S. Supreme Court Review the Record?

By Michael Wein

Last week, as noted by Blog Editor-in-Chief Steve Klepper, the U.S. Supreme Court issued a short four-page summary reversal of the Maryland Court of Appeals’ decision in Kulbicki v. State. The reversal followed three relists for the case at the end of the last term, a circumstance I covered in a post in June. Both posts noted a likelihood of some written decision being issued, either a summary reversal or an opinion regarding denial of certiorari.

However, just from review of the online Supreme Court public docket entries, one may notice something that doesn’t quite fit with a typical summary reversal opinion. As Steve noted, although he had long predicted per curium reversal, he also “expected the Supreme Court at least to order up the state record.”

As Kulbicki was a state post-conviction case with a complex and convoluted procedural history, I didn’t think the Supreme Court would summarily reverse it (which, after the certiorari petition was left undecided, I thought was likely) without first reviewing the record. Nevertheless, in the three months during the Court’s summer recess, no “call for record” was ever issued, and I therefore entertained other possibilities for the three relists.

So why (and quite probably how) was this done? Was the record even checked? Although the Maryland appellate courts do not have online docket entries, based on the Baltimore County dockets, the Kulbicki case file has remained in Annapolis.

As can be seen in a standard SCOTUSBLOG relist watch by John Elwood last year, a call for record is a regular occurrence in multiple-relist situations, particularly in “state on top” habeas cases when the state is seeking certiorari. So does the lack of a “call for record” in Kulbicki mean that the record was not reviewed? Not necessarily, though I think an easy conceptual solution arose in the case.

In federal cases, there is an electronic record, and when it is requested by the Supreme Court transmittal takes a few days at most. However, state cases that don’t have electronic records may take a few weeks or even months to transmit – particularly for post-conviction matters that may have filings going back decades. Here, a different circumstance may have played a role in why a “call for record” was not issued. The simplest explanation (and I don’t have any insider information that this was actually done) would be that one morning at about 10 a.m. when traffic died down, a Supreme Court law clerk was tasked with driving the 30 to 40 minutes from Washington (along an almost straight shot on Route 50) to the Courts of Appeal Building in Annapolis and reviewed the record. That would be far less time-consuming for everyone concerned than the typical procedure for reviewing records from states that are more distant than Maryland.