Relist Watch

Relist WatchJohn Elwood reviews Tuesday’s relists. If you’d told me back in January that the two most reviled figures of late 2017 would be a man who had been thanked more times than God and a furry creature that was created specifically to be lovable, I would have said: Yeah, that sounds about right. 2017 is […]

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Relist Watch

John Elwood reviews Tuesday’s relists.

If you’d told me back in January that the two most reviled figures of late 2017 would be a man who had been thanked more times than God and a furry creature that was created specifically to be lovable, I would have said: Yeah, that sounds about right. 2017 is weird – it is a time when you can no longer count on basic things you took for granted.

But at least (cue obvious segue) we can count on one thing: The Supreme Court will relist a mess of new cases just as you’re trying to prepare for oral argument. This week is no exception: By my count, we have a whopping 10 new relists (to say nothing – and I do intend to say nothing – of four returning relists). And these are not small cases. For example, a case with a caption like United States v. Microsoft Corporation, 17-2, just sounds epic. And an epic case it is, presenting the issue of whether Microsoft must comply with a probable-cause-based warrant for email records that the company maintains in Ireland. The U.S. Court of Appeals for the 2nd Circuit concluded that Microsoft was not required to comply with the warrant, and Uncle Sam seeks to challenge that conclusion. The petition is also the rare relist that involves a case for which there is not – at least so far as I have found – a square circuit split on the narrow question presented. The case thus is seeking a position on the docket with Carpenter v. United States16-402, as a case so important that the Supreme Court takes it even in the absence of a square split.

And then there is a group of three cases out of U.S. Court of Appeals for the 9th Circuit that challenge a California law that requires licensed pregnancy-related clinics to disseminate a notice about the availability of publicly funded family-planning services, including contraception and abortion, and requires unlicensed clinics to provide extensive disclaimers. In National Institute of Family and Life Advocates v. Becerra, 16-1140, A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146, and Livingwell Medical Clinic, Inc. v. Becerra, 16-1153, pro-life pregnancy centers challenge the law on compelled-speech and viewpoint-discrimination grounds, arguing that California enacted the law specifically to target such pro-life centers. These cases were originally conferenced back in June, and the Supreme Court has already called for and received the record in all three, so it’s clear the justices have been keeping a close eye on them.

The interesting free-speech issues do not end there: Minnesota Voters Alliance v. Mansky, 16-1435, presents another juicy one. Minnesota law forbids voters from wearing political badges, buttons and insignia at polling places. The U.S. Court of Appeals for the 8th Circuit upheld the law against a free-speech-clause challenge. The petitioners contend that the First Amendment doesn’t permit states to make even polling places “speech-free zones.”

And that is just the tip of the proverbial iceberg. The rest of the relists all concern criminal law. If I were not so busy, I’d tell you all about the fascinating double jeopardy case, the interesting wiretap case with the funny name, the state-on-top habeas cases and the court’s latest encounter with the much-litigated Armed Career Criminal Act. But I’ve gotta go now – those animal videos are not going to like themselves.

Thanks to Kent Piacenti for compiling the cases in this post.

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New Relists

National Institute of Family and Life Advocates v. Becerra, 16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

(relisted after the October 6 conference)

 

A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146 

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious nonprofits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

(relisted after the October 6 conference)

  

Livingwell Medical Clinic, Inc. v. Becerra, 16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

(relisted after the October 6 conference)

  

Currier v. Virginia, 16-1348

Issue: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

(relisted after the October 6 conference)

 

Minnesota Voters Alliance v. Mansky, 16-1435

Issue: Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

(relisted after the October 6 conference)

 

Kernan v. Cuero, 16-1468

Issue: Whether the U.S. Court of Appeals for the 9th Circuit exceeded the proper scope of federal habeas review by setting aside a state criminal sentence based on a putative federal due-process right to specific performance of a plea agreement that was superseded and withdrawn, in accordance with state law, before the entry of judgment.

(relisted after the October 6 conference)

 

Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6 conference)

 

United States v. Microsoft Corporation, 17-2

Issue: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider’s control, even if the provider has decided to store that material abroad.

(relisted after the October 6 conference)

 

Dahda v. United States, 17-43

Issue: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

(relisted after the October 6 conference)

 

Dunn v. Madison, 17-193

Issues: (1) Whether the Supreme Court’s precedents clearly establish that a prisoner is incompetent to be executed for a murder because he does not remember or acknowledge committing it; and (2) whether the state court was objectively unreasonably in concluding that Madison was competent to be executed.

(relisted after the October 6 conference)

 

Returning Relists

Scenic America, Inc. v. Department of Transportation, 16-739

Issues: (1) Whether treatment under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is owed to an interpretation of language prohibiting billboards that display “flashing,” “intermittent,” or “moving” lights, contained in agreements between the Federal Highway Administration and individual states, as announced in a guidance memorandum issued by the FHWA, or whether deference, if any, is owed under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); (2) whether the opinion of the U.S. Court of Appeals for the District of Columbia Circuit, which invoked Chevron and approved the FHWA’s interpretation, conflicts with Chevron itself.

(relisted after the September 25 and October 6 conferences)

 

616 Croft Ave., LLC v. City of West Hollywood, 16-1137

Issue: Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management DistrictDolan v. City of Tigard and Nollan v. California Coastal Commission.

(relisted after the September 25 and October 6 conferences)

 

Ohio v. American Express Co., 16-1454

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Issue: Whether, under the “rule of reason,” the government’s showing that American Express’s anti-steering provisions stifle price competition on the merchant side of the credit card platform suffices to prove anti-competitive effects and thereby shifts the burden of establishing any pro-competitive benefits from the provisions to American Express.

(relisted after the September 25 and October 6 conferences)

 

Truehill v. Florida, 16-9448

Issues: (1) Whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and (2) whether the death-sentencing procedures in this case complied with the Eighth Amendment, where the jury was repeatedly advised by the court that its advisory sentencing recommendation was nonbinding.

(relisted after the September 25 and October 6 conferences)

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Worst Monday in October

Worst Monday in OctoberJohn Elwood reviews what may or may not be the relists from the “long conference.” The new term that began on Monday marks the seventh year that we have regularly wasted the time of SCOTUSblog readers with our musings on the Supreme Court’s “shadow docket.” The new term dawns during dark days. The country is […]

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Worst Monday in October

John Elwood reviews what may or may not be the relists from the “long conference.”

The new term that began on Monday marks the seventh year that we have regularly wasted the time of SCOTUSblog readers with our musings on the Supreme Court’s “shadow docket.” The new term dawns during dark days. The country is so divided on basic issues that in a recent poll on the issue “Are puppies cute?,” the leading answers were “What the hell are you looking at?” and “Delete your account!” And the news only keeps getting worse. Even apart from the tragedies I avoid discussing to maintain Relist Watch’s characteristic tone of cheerful stupidity, there was lesser bad news close to the court: reporters met with salad-bar shortages and a broken fro-yo machine in the Supreme Court cafeteria (which — hat-tip — gives this post its title); a holdup in the new court reporter’s release of transcripts delayed the dissemination of important statistical information; and the revamped dockets tripped up the scraping software that pathological types (and the simply conscientious!) use to keep a close eye on the minutiae of the Supreme Court’s docket.

Speaking of which: This is the first Relist Watch we’ve compiled using data from the court’s new dockets, and the numbers of relists out of the “long conference” seem a smidge low compared to years past. So I can’t eliminate the possibility that I’ve overlooked a relist or three. Bottom line: Today’s post may not be very funny, but at least it’s not accurate.

Because of the press of business, we’re only going to flag a few new relists that may be of particular interest. First among them is Scenic America, Inc. v. Department of Transportation, 16-739, which garnered attention this summer when the court called for a reply – that’s right, called for a reply, not a response – for only the second time since 2001. The case involves a hot topic these days, Chevron deference – the doctrine under which courts are supposed to defer to federal agencies’ reasonable (and formal) interpretations of ambiguous statutory language. People of a certain age will recall that, to reduce billboard clutter along America’s highways, Congress gave the Federal Highway Administration authority to withhold funds from states that would not enter into “federal-state agreements” giving the federal government authority to regulate billboards within their jurisdiction. This case involves the FHWA’s interpretation of common language in such federal-state agreements prohibiting signs illuminated by “flashing,” “intermittent,” and “moving” lights. In Scenic America, the petitioner claims that the U.S. Court of Appeals for the District of Columbia Circuit deferred to the FHWA’s interpretation that the prohibition did not apply to digital billboards that periodically change advertisements. Scenic America, an advocacy group that seeks to “preserve and improve the visual character of America’s communities and countryside,” argues that deference was inappropriate because the agency was interpreting not federal statutes, but agreements between the FHWA and individual states. The government (and a private respondent representing outdoor advertising interests) contends that this question is not actually presented here. The rare request that the petitioner submit a reply brief – which is entirely optional under Supreme Court Rule 15.6 – suggests that someone at the court is very interested in whether the issue really is presented in this case.

616 Croft Ave., LLC v. City of West Hollywood, 16-1137, involves an “inclusionary zoning” ordinance enacted by the city of West Hollywood that seeks to address the area’s need for low- and moderate-income housing. Under the ordinance, developers must either dedicate a percentage of new homes they build as low-income housing or pay a fee in lieu of devoting the property to that use. That fee is set by a schedule based on the floor area of the units built. Here, West Hollywood required the builder of a proposed 11-unit condominium to pay a $540,393.28 “affordable housing fee” in lieu of setting aside some property. The developer, joined by a small army of amici, argues that such legislatively set permit conditions are subject to scrutiny under the “unconstitutional conditions” doctrine, but states that California case law limits the application of the doctrine to adjudicative decisions. The city, by contrast, contends that the decision below turned on an entirely different issue – who bore the burden of proving that the fees were reasonable.

Ohio v. American Express Co., 16-1454, involves application of antitrust law to American Express’ so-called anti-steering provisions — contractual provisions that bar merchant customers from steering cardholder customers to credit cards that charge merchants lower prices, by implying that they prefer another form of payment, or even truthfully disclosing the relative cost to the merchant of various cards. Applying the so-called “rule of reason” under Section 1 of the Sherman Act, which prohibits unreasonable restraints of trade, the district court held that AmEx’s anti-steering provisions were anticompetitive because they stifled competition among credit-card companies for the prices charged to merchants and AmEx failed to establish any procompetitive benefits. The U.S. Court of Appeals for the 2nd Circuit reversed, holding that to prove that the provisions were anticompetitive, the government bore the burden of showing not just that the provisions had anticompetitive pricing effects on the merchant side, but also that those anticompetitive effects outweighed any benefits on the cardholder side. Supported by an even larger army of amici than 616 Croft Avenue, Ohio and 10 other states seek to revisit that decision. Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Lastly, Glisson v. D.O., 17-17, involves whether potential beneficiaries of foster-care maintenance payments under the Social Security Act have an individual right to such payments that can be enforced through 42 U.S.C. § 1983. Glisson is this week’s sentimental favorite for entirely foreseeable reasonsDisclosure: Vinson & Elkins LLP, whose attorneys purportedly contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

And with that, I will detain you no longer. Be sure to check out the rest of Relist Watch SelectTM below, where you will also find the rest of this week’s relists. To supplement my review of past “long conference” distribution dates (and tweeted follow-ups), I’ve indicated the case’s initial distribution date in parentheses.

Thanks to Kent Piacenti for compiling the cases in this post.

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New Relists

Scenic America, Inc. v. Department of Transportation, 16-739

Issues: (1) Whether treatment under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), is owed to an interpretation of language prohibiting billboards that display “flashing,” “intermittent,” or “moving” lights, contained in agreements between the Federal Highway Administration and individual states, as announced in a guidance memorandum issued by the FHWA, or whether deference, if any, is owed under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); (2) Whether the opinion of the U.S. Court of Appeals for the District of Columbia Circuit, which invoked Chevron and approved the FHWA’s interpretation, conflicts with Chevron itself.

(distributed June 14, 2017; relisted after the September 25 conference)

 

616 Croft Ave., LLC v. City of West Hollywood, 16-1137

Issue: Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional-conditions doctrine as set out in Koontz v. St. Johns River Water Management DistrictDolan v. City of Tigard and Nollan v. California Coastal Commission.

(distributed July 12, 2017; relisted after the September 25 conference)

 

Ohio v. American Express Co., 16-1454

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case.

Issue: Whether, under the “rule of reason,” the government’s showing that American Express’s anti-steering provisions stifle price competition on the merchant side of the credit card platform suffices to prove anticompetitive effects and thereby shift  to American Express the burden of establishing any procompetitive benefits from the provisions.

(distributed September 6, 2017; relisted after the September 25 conference)

 

Truehill v. Florida, 16-9448

Issues: (1) Whether, when a Florida jury recommended a death sentence before the Supreme Court decided Hurst v. Florida and none of the findings required by Hurst were made, the error can be deemed harmless under Chapman v. California or whether the recommendation simply does not amount to the jury verdict the Sixth Amendment requires; and (2) whether the death-sentencing procedures in this case complied with the Eighth Amendment, where the jury was repeatedly advised by the court that its advisory sentencing recommendation was nonbinding.

(distributed July 20, 2017; relisted after the September 25 conference)

 

Glisson v. D.O., 17-17

Disclosure: Vinson & Elkins LLP, whose attorneys purportedly contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether Title IV-E of the Social Security Act, 42 U.S.C. § 670 et. seq., confers an individual right to foster-care maintenance payments that is enforceable by bringing suit under 42 U.S.C. § 1983.

(distributed September 6, 2017; relisted after the September 25 conference)

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Cert grants from the long conference: The September effect

The Supreme Court’s September 25 “long conference” is now behind us; if the past is any guide, the grants out of that conference should be released on Thursday, September 28. The initial grants out of the long conference are the single biggest exception to the ordinary rule that the Supreme Court will relist a case […]

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The Supreme Court’s September 25 “long conference” is now behind us; if the past is any guide, the grants out of that conference should be released on Thursday, September 28. The initial grants out of the long conference are the single biggest exception to the ordinary rule that the Supreme Court will relist a case at least once before granting certiorari to give the justices and clerks the time necessary to do a second round of checks for vehicle problems. Presumably, they use the extra time they have over the summer to do that second look, so they don’t need to relist the cases before granting.

Thinking through the issue made me wonder about the timing of the distribution to chambers of cert materials (petition, brief in opposition, reply brief) for the cases the Supreme Court grants out of the long conference. I was curious about whether the initial grants released the same week as the conference were distributed earlier in the summer and the cases granted in October (or later), after relists, were distributed later in the summer. To find out, we analyzed all the long conference grants from the last three terms – every long conference since the court began routinely relisting cases before granting cert.

The actual numbers mildly bear out the predicted pattern; the relisted cases were almost entirely from August and September. But there were plenty of cases granted the week of the long conference that were first distributed as late as the second September distribution.

Overall, the numbers look like this:

 

 

A few things stick out:

  • June distribution appears to be the kiss of death: Only one grant came from June distributions. Remember that the first week or two of June distributions are resolved at late June conferences before the Supreme Court leaves for the summer, so the full month of June cases isn’t under consideration at the long conference. But the number of grants is still unusually low. These distributions are made before new clerks arrive at the court beginning in July, so there’s no reason to believe that these cases would be affected by the arrival of new clerks who are thought to be wary of embarrassing themselves by recommending a grant in a case that is not truly cert-worthy or that has vehicle problems. Early July distributions likewise fare poorly: Only one grant came from the first two weeks of July distributions. Late June and early July thus represent a four-week Dead Zone that yielded only two grants over three terms.
  • Later July distributions did reasonably well for summer distributions. Some court-watchers have speculated that outgoing clerks feel freer to recommend grants, particularly when they’re leaving the court and won’t have to live with it if they recommend a grant in a case that is later dismissed as improvidently granted.
  • August is a light month. We are trying to determine whether fewer cases are distributed during this period; distributions are driven by the arrival of briefs in opposition, and it can be expected that lawyers might seek extensions for BIO deadlines to avoid having brief deadlines disrupt August vacations. Because most justices stagger the arrival of clerks during July, the low grant rate for August may also reflect the much-discussed “nervous clerk” effect.
  • September is surprisingly heavy. September is a mirror image of June in that only a couple of weeks’ worth of distributions go to the long conference. But those two weeks yield a disproportionate share of long conference grants – 42.5 percent during OT 2014-OT 2016. But note the variability: After two terms of heavy grants from September distributions (eight and eight, respectively, for OT 2014 and OT 2015), there was only one in OT 2016. (There was a reduction in grants from the long conference that year, because the eight-member court was being very picky about grants; perhaps the September downturn was just a part of that general reluctance to grant.)
  • There may be a self-fulfilling prophecy element to the timing. My colleague Jeremy Marwell suggested that, because it has long been understood that early summer is a dead zone, experienced Supreme Court counsel (and even some less experienced ones) may avoid filing cert-worthy petitions that would ordinarily be distributed in late June and early July, and instead seek extensions that push those cases to the latter half of the summer. Sure enough, the dockets for the granted cases in our sample reflect a number of extensions by petitioners’ counsel – mostly procured by specialist Supreme Court lawyers – that move case distributions from mid-June to mid-July, mid-July to mid-August, early August to early September, and – my favorite – mid-July to mid-September. It is impossible to tell, of course, whether those extensions were sought mainly to improve the timing or merely because specialist Supreme Court counsel are frequently brought in fairly late and need time to get up to speed. But it is a noteworthy coincidence in any event.

The long conference has a reputation for having a low grant rate. But on closer examination, not every week of the summer is equal; petitioners tend to do better in some than others. Late July and September distributions appear to be particularly promising, the second week in September especially so.

Thanks to Kent Piacenti for helping compile the data and drafting this post; thanks to Ralph Mayrell for composing the graphs.

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Relist Watch: Retirement Watch Edition

Relist Watch: Retirement Watch EditionJohn Elwood reviews Monday’s relists. We don’t have time to linger over the fact that the court set a new record by granting cert in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, after 14 relists, thus unseating the previous champ, District of Columbia v. Wesby, 15-1485 (granted after eight relists). Or the fact that […]

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Relist Watch: Retirement Watch Edition

John Elwood reviews Monday’s relists.

We don’t have time to linger over the fact that the court set a new record by granting cert in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, after 14 relists, thus unseating the previous champ, District of Columbia v. Wesby15-1485 (granted after eight relists). Or the fact that the court granted cert without a relist in the two “travel ban” cases, Trump v. International Refugee Assistance Project, 16-1436, and Trump v. Hawaii, 16-1540. Or that, with those grants, as we said last week, “October Term 2017 is shaping up nicely after two lackluster terms.” (We’re basically back in “every term a blockbuster” mode. See footnote 1 here.) Nor do we even have time to discuss in detail how the court resolved all of the pending relists, issuing separate opinions regarding some and summarily reversing another. No, we have to rush because the court did another one of its anticipated-but-impromptu conferences today, and it considered a lot of new relists that might turn into grants imminently. For times like this … it’s Relist Watch Select™.

The court’s business has ended for another term, which is the traditional time to announce personnel changes. Retirement speculation has been swirling for weeks, so we’re eager to put those rumors to rest: I will not be retiring from Relist Watch. In a closely related vein, you should always carefully read the terms and conditions before clicking “agree” — you have no idea the kind of onerous terms you could be subjecting yourself to. See you back here in October!

Thanks to Bryan U. Gividen and newcomer R. Kent Piacenti for compiling the cases in this post, and the voices in my head for drafting it.

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New Relists 

Cyan, Inc. v. Beaver County Employees Retirement Fund, 15-1439

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.

Issue: Whether state courts lack subject-matter jurisdiction over covered class actions that allege only Securities Act of 1933 claims.

(Relisted after the June 22 conference)

 

Meshal v. Higgenbotham, 15-1461

Issue: Whether a U.S. citizen may bring a Bivens claim in the absence of any other remedy when federal law-enforcement officers unlawfully detain and grossly mistreat him during a criminal counterterrorism investigation abroad.

(Relisted after the June 22 conference)

  

Bank Melli v. Bennett, 16-334

Issues: (1) Whether Section 1610(g) of the Foreign Sovereign Immunities Act establishes a freestanding exception to sovereign immunity, as the U.S. Court of Appeals for the 9th Circuit held below, or instead merely supersedes First National City Bank v. Banco Para El Comercio Exterior de Cuba’s presumption of separate status while still requiring a plaintiff to satisfy the criteria for overcoming immunity elsewhere in Section 1610, as the U.S. Court of Appeals for the 7th Circuit has held and the United States has repeatedly urged; and (2) whether a court should apply federal or state law to determine whether assets constitute “property of” or “assets of” the sovereign under the Terrorism Risk Insurance Act and Section 1610(g), and whether those provisions require that the sovereign own the property in question, as the U.S. Court of Appeals for the District of Columbia Circuit has held and the United States has repeatedly urged, contrary to the decision below.

(Relisted after the June 22 conference)

 

Christie v. National Collegiate Athletic Association, 16-476

Issue: Whether a federal statute that prohibits modification or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States.

(Relisted after the June 22 conference)

 

New Jersey Thoroughbred Horsemen’s Association, Inc. v. National Collegiate Athletic Association, 16-477

Issue: Whether a federal statute that prohibits adjustment or repeal of state-law prohibitions on private conduct impermissibly commandeers the regulatory power of states in contravention of New York v. United States and Printz v. United States.

(Relisted after the June 22 conference)

 

PEM Entities LLC v. Levin, 16-492

Issue: Whether bankruptcy courts should apply a federal rule of decision (as five circuits have held) or a state-law rule of decision (as two circuits have held, expressly acknowledging a split of authority) when deciding to recharacterize a debt claim in bankruptcy as a capital contribution.

(Relisted after the June 22 conference)

 

Rubin v. Islamic Republic of Iran, 16-534

Issues: (1) Whether 28 U.S.C. § 1610(g) provides a freestanding attachment-immunity exception that allows terror victim judgment creditors to attach and execute upon assets of foreign state sponsors of terrorism regardless of whether assets are otherwise subject to execution under Section 1610; and (2) whether the commercial-use exception to execution immunity, codified at 28 U.S.C. § 1610(a), applies to a foreign sovereign’s property located in the United States only when the property is used by the foreign state itself.

(Relisted after the June 22 conference)

 

Leslie v. Hancock Park Capital II, L.P., 16-1136

Issue: Whether a bankruptcy court’s authority to recharacterize putative debt as equity arises from the bankruptcy court’s general equitable powers under 11 U.S.C. § 105(a) as announced in Pepper v. Litton (as five circuits have held) or arises under 11 U.S.C. § 502(b), thus restricting the bankruptcy court’s equitable powers to applicable state law (as two circuits have held).

(Relisted after the June 22 conference)

 

Marinello v. United States, 16-1144

Issue: Whether a conviction under 26 U.S.C. 7212(a) for corruptly endeavoring to obstruct or impede the due administration of the tax laws requires proof that the defendant acted with knowledge of a pending Internal Revenue Service action.

(Relisted after the June 22 conference)

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The Return of Relist Watch SelectTM

The Return of Relist Watch Select<sup>TM</sup>John Elwood reviews Monday’s relists … barely. Because I am composing (some would say composting) this at 34,000 feet with minimal Internet, even less time, and only as much legroom as I can obtain by storing unused limbs in the overhead bin, this week we’ll once again be favoring our readership with the affordable luxury […]

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The Return of Relist Watch Select<sup>TM</sup>

John Elwood reviews Monday’s relists … barely.

Because I am composing (some would say composting) this at 34,000 feet with minimal Internet, even less time, and only as much legroom as I can obtain by storing unused limbs in the overhead bin, this week we’ll once again be favoring our readership with the affordable luxury of Relist Watch SelectTM. For times like this … it’s Relist Watch Select™.

Before proceeding to phone it in flagrantly, let me pause just long enough to note that with the Supreme Court putting partisan-gerrymander case Gill v. Whitford, 16-1161, on its merits docket for next fall as anticipated by last week’s post (and granting Wisconsin its requested stay), October Term 2017 is shaping up nicely after two lackluster terms. (Harris v. Cooper, 16-166, meanwhile, looks like it’s being held for Gill.)

So let’s see what new grants may be in the offing for next Monday. The biggest of this week’s four new relists, at least as a doctrinal matter, is probably the one involving a legislature’s ability to limit how just compensation for a taking of private property is calculated. But for day-to-day importance, the one involving the whistleblower provisions of Dodd-Frank is nothing to sneeze at. The one involving nonjudicial foreclosure of association liens seems unlikely to cause people to run afoul of the Supreme Court’s rule against paid line-standers. As someone who does more government contracts cases than intellectual property cases before the U.S. Court of Appeals for the Federal Circuit, I’m always interested when the Supreme Court takes a case from the Federal Circuit that doesn’t involve IP. But the last of this week’s new relists, which involves the Federal Circuit’s rule for which party to a disability dispute has to establish whether Veterans Affairs doctors who submit opinions are competent, taxes even my ability to feign interest.

That’s all for this week. We have only one more scheduled conference (and one unscheduled-but-foreseeable conference) before October Term 2016 effectively ends. Time for the court to unburden itself of all the serial relists that it has been carrying around since as far back as February 24. I, for one, can’t wait to see what they’ve been working on.

Thanks to Bryan U. Gividen and newcomer R. Kent Piacenti for compiling the cases in this post, and the voices in my head for drafting it.

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New Relists

Mathis v. Shulkin, 16-677

Issue: Whether the U.S. Court of Appeals for the Federal Circuit erred by creating a presumption of competency for all U.S. Department of Veterans Affairs medical evaluators, (including physician assistants, nurses and other non-physician health practitioners) to provide an expert opinion on any medical issue, thereby placing the burden on disabled veteran claimants, most of whom are pro se and many of whom suffer “from very significant psychiatric and physical disabilities,” to rebut the presumption by raising a competency objection, by ascertaining evidence of the evaluator’s lack of qualifications, and then by articulating specific reasons in support of the competency challenge.

(Relisted after the June 15 conference)

 

Bay Point Properties, Inc. v. Mississippi Transportation Commission, 16-1077

Issues: (1) Whether the just-compensation clause prohibits a legislature from limiting how just compensation for a taking is calculated; and (2) whether the just-compensation clause allows the jury to value the fee interest taken as if it were still encumbered by a discontinued highway easement.

(Relisted after the June 15 conference)

 

Bourne Valley Court Trust v. Wells Fargo Bank, NA, 16-1208

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in holding that Nevada’s statute authorizing nonjudicial foreclosure of association liens, Nev. Rev. Stat. §§ 1116.3116 et seq., was facially unconstitutional under the due-process clause for not requiring direct notice to junior lienholders, when the only state action involved was the enactment of the statute regulating the private sale.

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

(Relisted after the June 15 conference)

 

Digital Realty Trust, Inc. v. Somers, 16-1276

Issue: Whether the anti-retaliation provision for “whistleblowers” in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and thus fall outside the act’s definition of “whistleblower.”

(Relisted after the June 15 conference)

 

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28, May 11, May 18, May 25, June 1, June 8 and June 15 conferences)

 

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28, May 11, May 18, May 25, June 1, June 8 and June 15 conferences)

  

Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the April 28, May 11, May 18, May 25, June 1, June 8 and June 15 conferences)

 

Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11, May 18, May 25, June 1, June 8 and June 15 conferences)

 

Pavan v. Smith, 16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

(Relisted after the May 18, May 25, June 1, June 8 and June 15 conferences)

 

Hicks v. United States, 16-7806 

Issues: (1) Whether the petitioner should have been sentenced under the Fair Sentencing Act of 2010; and (2) Whether the court of appeals offered an insufficient explanation for denying the petitioner a certificate of appealability.

(relisted after the June 1, June 8 and June 15 conferences)

 

Coutts v. Watson, 16-1075

Issue: Whether a prisoner who claims that he was charged with misconduct in retaliation for activity protected by the First Amendment may prevail on his claim when he was found guilty of the misconduct in a constitutionally adequate proceeding.

(relisted after the June 8 and June 15 conferences)

 

Johnson v. Alabama, 16-7835

Issue: Whether a state court can enforce a rule that Brady v. Maryland does not apply to impeachment evidence when the Supreme Court has held that Brady does apply to impeachment evidence.

(relisted after the June 8 and June 15 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists After spending the better part of two terms in a holding pattern because they were down a justice and at risk of 4-4 splits, the court is back at full strength and next term is shaping up nicely. We’re not quite back in every-term-a-blockbuster mode, but October Term 2017 is […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists

After spending the better part of two terms in a holding pattern because they were down a justice and at risk of 4-4 splits, the court is back at full strength and next term is shaping up nicely. We’re not quite back in every-term-a-blockbuster mode, but October Term 2017 is looking not too shabby. Last week’s grant in the cell-site data case Carpenter v. United States, 16-402, got the ball rolling. Then there was Monday’s grant in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 16-712, which is, to use a legal term of art, a Big Hairy Deal for the patent bar. Oil States involves the constitutionality of the administrative mechanism congress created for revisiting the validity of issued patents, which has been hotly debated by bigger nerds than me for quite some time. With two cases involving the constitutional validity of partisan gerrymandering as serious prospects at tomorrow’s conference, next term is off to a decent start.

In addition to Monday’s Oil States grant, another relisted petition won big. The court summarily reversed in Virginia v. LeBlanc16-1177, concluding that Graham v. Florida, which held that the Eighth Amendment prohibits sentencing juvenile offenders to life in prison without parole for crimes other than murder, did not clearly prohibit Virginia’s program that allowed eventual “geriatric release.” Aside from Oil States and LeBlanc, all the other relists are back for another week, including, most prominently, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, now on its unlucky 13th relist.

This week we have five new relists, taxing even my prodigious ability to string transitions between questions presented. For people who have been watching the recent North Carolina election cases like Harris v. Cooper, 16-166, our first new relist is like déjà vu all over again. In Gill v. Whitford, 16-1161, the state of Wisconsin seeks review of the judgment of a three-judge district court, which by a divided vote (and in a total of 159 pages of opinions) invalidated the state legislative district map on the grounds that it represented unlawful partisan – yes, partisan, not racial – gerrymandering. In light of all the language in Vieth v. Jubelirer about the lack of judicially manageable standards for partisan-gerrymander claims, successful partisan-gerrymandering claims have been something of a unicorn, so this case undoubtedly has the court’s full attention. The case is part of the court’s tiny appellate (not certiorari) docket, which means they have to do something with it. Summary affirmance seems unlikely; summary reversal would be a heavy lift when dealing with a 119-page majority opinion. So perhaps the smart bet would be that the court will note probable jurisdiction, set the case for argument, and brace itself for the sea of green (briefs) that will be washing its way over the summer.

Northeast Ohio Coalition for the Homeless v. Husted, 16-1068, represents something of a classic candidate for cert: a clear split that even the respondent acknowledges (though disparaging it as “stale” and “shallow”) on a discrete legal issue: “Whether private parties can sue to enforce 52 U.S.C. § 10101.” But what is “10101”? I mean, other than the base-2 rendering of the age at which drinking Jäger Bombs stops being illegal and becomes merely a bad idea. Turns out Section 10101 is a provision of the Voting Rights Act that provides that no one acting under color of law may “deny the right of any individual to vote in any election because of an error or omission” on a registration, application or ballot if the error or omission “is not material” in determining whether the individual is qualified to vote. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.] Also, they invented Jäger Bombs.

Next up is Lenz v. Universal Music Corp., 16-217, the famous “dancing baby” case. As every sentient human knows only too well, Section 512(c) of the Digital Millennium Copyright Act creates a safe harbor from copyright-infringement liability for website operators and other online service providers that store or host material at the direction of users. We will pause briefly while you absorb that. To be eligible for that safe harbor, a service provider that receives a “notification of claimed infringement” from a copyright owner – commonly known as a “takedown notice” – must remove material that allegedly infringes a copyright. Section 512(f) allows a user to recover damages from a copyright owner that “knowingly misrepresents” in a takedown notice that material is infringing. Lenz presents the question whether a copyright owner can be liable for sending a takedown notice based on a sincere but unreasonable belief that the challenged material is infringing.

In 2007, Stephanie Lenz uploaded to YouTube a 29-second video of her children dancing to the song “Let’s Go Crazy” by Prince. The copyright holder sent a “takedown notice” to YouTube, when then removed the video. YouTube restored the video several weeks later when Lenz sent a counter-notification. At that point, many people would have just gone back to retweeting cat pictures. But Lenz did what any concerned mother would do, and brought suit in federal court against Prince’s record company. One thing led to another and yada yada yada a divided panel of the U.S. Court of Appeals for the 9th Circuit held in 2015 that YouTube couldn’t be held liable for sending the takedown notice if it had a good-faith belief that the video infringed the copyright, even if the copyright owner acted unreasonably in concluding that using a bit of the song as background music for the video did not constitute “fair use.” Correctly sensing that what this case really needed was more process, the court called for the views of the solicitor general, who recently weighed in. The acting solicitor general recommends that the court deny cert; in his view, the 9th Circuit correctly concluded that liability under the DMCA requires actual knowledge or willful blindness, the issue is splitless, and the decision is interlocutory (because the case is on an interlocutory appeal of the denial of Lenz’s motion for summary judgment). We’ll find out soon what the court thinks of the government’s recommendation.

Coutts v. Watson, 16-1075, involves another great American legal drama, sort of an “Inherit the Wind” for the 21st century. Joseph Watson is a prisoner in Pennsylvania, and Ronald Coutts is a corrections officer at his facility. Watson says that during a routine cell search, another corrections officer examined Watson’s radio, which had a loose antenna that was held on with tape; Watson alleges that, in examining the radio, the officer broke the antenna. Because broken radios are “considered contraband under [Pennsylvania] Department of Corrections’ rules,” the officer confiscated the radio. Watson accused the officer of breaking his radio and asked for a grievance form. Coutts then charged Watson with “destroying, altering, tampering with property” for altering the radio’s antenna. The hearing examiner credited the officer’s version of events (that is, that Watson and not the officer “alter[ed] the antenna on his radio”), found Watson guilty of misconduct, and sanctioned him by confiscating the radio. Watson filed suit, alleging that Coutts had violated his First Amendment rights by issuing a prison misconduct charge against him in retaliation for announcing his intention to file a grievance against the other officer. The district court held that because Watson had been found guilty of altering the radio’s antenna, Coutts could not be liable for retaliating because he “would have issued [Watson] the misconduct regardless” of his request for the grievance form. But the U.S. Court of Appeals for the 3rd Circuit reversed, holding that “a plaintiff can make out a retaliation claim even though the charge against him may have been factually supported.” Supreme Court short-lister Judge Thomas Hardiman dissented.

And that brings us to our last relist: Johnson v. Alabama, 16-7835. Petitioner Toforest Johnson was convicted of capital murder and sentenced to death based principally on the testimony of Violet Ellison, who said she overheard Johnson confessing to the crime in a telephone call. Years later, Johnson learned that Ellison had come forward because of a cash reward offer and was paid $5,000 for her testimony. Because the state of Alabama failed to disclose Ellison’s reward at the time of his trial, Johnson raised a claim in post-conviction proceedings under Brady v. Maryland, which, for people who have been living under a rock since 1963, prohibits the suppression of material evidence during criminal trials. The Alabama Court of Criminal Appeals dismissed Johnson’s claim because of a state procedural rule that “allows relief on Brady claims only where ‘[t]he facts do not merely amount to impeachment evidence’” (quoting Ala. R. Crim. P. 32.1(e)(3)). Now, that is a great rule with much to recommend it, but it has one minor drawback: The Supreme Court has squarely held that “ the right to receive from prosecutors exculpatory impeachment material [is] a right that the Constitution provides as part of its basic ‘fair trial’ guarantee.” United States v. Ruiz. The state of Alabama filed in the Supreme Court a pleading captioned “Brief in Opposition” that nevertheless recommends that the court grant the petition, vacate the judgment below, and remand (GVR), stating that the state court “arguably misapplied Alabama law,” and noting that the Supreme Court of Alabama had rejected that reading of state rules in a 2013 decision. But the state argues that the Alabama Court of Criminal Appeals should be allowed to apply harmless-error analysis on remand. The Supreme Court’s GVR practice has definitely drawn controversy over the years (see Lawrence v. Chater), but it’s always hard to tell when such controversy will rear its head again.

That’s all for this week. We have only two more scheduled conferences (and one unscheduled-but-foreseeable conference) before October Term 2016 effectively ends and we will all have to confront the fundamental emptiness of our lives.

Thanks to Bryan U. Gividen and newcomer R. Kent Piacenti for compiling the cases in this post, and the voices in my head for drafting it.

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New Relists

Lenz v. Universal Music Corp., 16-217

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in concluding that the affirmation of good-faith belief that a given use of material use is not authorized “by the copyright owner, its agent, or the law,” required under Section 512(c) of the Digital Millennium Copyright Act, may be purely subjective and, therefore, that an unreasonable belief — such as a belief formed without consideration of the statutory fair-use factors — will not subject the sender of a takedown notice to liability under Section 512(f) of the DMCA. CVSG: 5/4/2017.

(relisted after the June 8 conference)

 

Northeast Ohio Coalition for the Homeless v. Husted, 16-1068

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.

Issue: Whether private parties can sue to enforce 52 U.S.C. § 10101.

(relisted after the June 8 conference)

 

Coutts v. Watson, 16-1075

Issue: Whether a prisoner who claims that he was charged with misconduct in retaliation for activity protected by the First Amendment may prevail on his claim when he was found guilty of the misconduct in a constitutionally adequate proceeding.

(relisted after the June 8 conference)

 

Gill v. Whitford, 16-1161

Issues: (1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

(relisted after the June 8 conference)

 

Johnson v. Alabama, 16-7835

Issue: Whether a state court can enforce a rule that Brady v. Maryland does not apply to impeachment evidence when the Supreme Court has held that Brady does apply to impeachment evidence.

(relisted after the June 8 conference)

 

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28, May 11, May 18, May 25, June 1 and June 8 conferences)

 

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28, May 11, May 18, May 25, June 1 and June 8 conferences)

  

Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the April 28, May 11, May 18, May 25, June 1 and June 8 conferences)

 

Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11, May 18, May 25, June 1 and June 8 conferences)

 

Pavan v. Smith, 16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

(Relisted after the May 18, May 25, June 1 and June 8 conferences)

 

Harris v. Cooper, 16-166 

Issues: (1) Whether the district court erred in holding that a lack of discernible standards prevented it from striking down as a partisan gerrymander a districting plan when the plan’s architect freely admitted it was a partisan gerrymander designed to elect as many Republicans as mathematically possible; (2) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the Fourteenth Amendment when the plan was designed to secure “partisan advantage” for Republicans; and (3) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the First Amendment when the plan was designed to impose burdens on Democratic voters because of their political beliefs. In addition, on May 26, the Supreme Court ordered the parties to brief the following issues: (1) Do the appellants have standing to challenge the remedial map as a partisan gerrymander? (2) Is the district court’s order denying the appellants’ objections to the remedial map appealable under 28 U. S. C. § 1253?

(relisted after the May 25, June 1 and June 8 conferences)

 

Jenkins v. Hutton, 16-1116

Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit properly held, on its own initiative, that the respondent could overcome his procedural default under Sawyer v. Whitleys actual-innocence exception; and (2) whether the 6th Circuit properly held that judicial reweighing cannot cure errors at the weighing stage of a capital trial by extending Ring v. Arizona‘s standards from the eligibility phase into that weighing phase.

(relisted after the June 1 and June 8 conferences)

 

Hicks v. United States, 16-7806

Issues: (1) Whether petitioner should have been sentenced under the Fair Sentencing Act of 2010; and (2) Whether the court of appeals offered an insufficient explanation for denying petitioner a certificate of appealability.

(relisted after the June 1 and June 8 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. For a brief time on Monday, the news from 1 First Street was so big, it was as if the court still had the power to dominate national news – or so it seemed to a certain type of person (cough cough #AppellateTwitter). That was because the justices granted certiorari […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

For a brief time on Monday, the news from 1 First Street was so big, it was as if the court still had the power to dominate national news – or so it seemed to a certain type of person (cough cough #AppellateTwitter). That was because the justices granted certiorari on one of a group of cases asking whether the government’s warrantless seizure of historical cell-site records violated the Fourth Amendment. Six-time relist Carpenter v. United States, 16-402, gives the court its first real opportunity to revisit whether government demands for data held by third parties implicates the Fourth Amendment since any of the current justices arrived on First Street. The case thus wins an automatic bid to be on every list of the most important cases of October Term 2017. But excitement over the grant was short-lived, because, at least for a certain type of person, the case posed a clear and present danger to decent society. Anyone could see that no matter how the court decided the case, there was an unacceptable risk that the case name would be exploited to inflict colon-laden pun titles on the innocent public.

With the grant in Carpenter, the rest of the cell-site cases have undoubtedly gone into suspended animation as holds. The Covington twins out of North Carolina met very different fates, as rival siblings often do. The court summarily affirmed North Carolina v. Covington, 16-649, which sought review of a three-judge district court’s decision invalidating the state’s legislative map as the product of unconstitutional racial gerrymandering. That has required the state of North Carolina act quickly on remand. The petition in North Carolina v. Covington, 16-1023, fared better – the court granted certiorari, vacated and remanded. That case asked whether the same district court exceeded its jurisdiction by then partially invalidating the results of the 2016 election held using the old districts, ordering off-year special elections in substantial parts of the state, and doing all of that after North Carolina had already filed its notice of appeal. Harris v. Cooper, 16-166, meanwhile, was relisted yet again. That case involves allegations of unconstitutional partisan gerrymandering. As we noted last week, the court has requested briefing on standing issues, so it’s a sure thing that the Supremes are taking a close look at this. The issue is splitless, of course, but I don’t think it is lost on anyone that so were Carpenter and Husted v. A. Philip Randoph Institute, 16-980, and Patchak v. Zinke, 16-498, and (part credit; it’s a patent case) SAS Institute Inc. v. Lee, 16-969.

All of last week’s other relists are back again. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, is now on its 12th relist, making it the second-most relisted case that I am aware of. The first-place case was relisted something like 26 times, so Masterpiece has a way to go before it’s in Hall of Fame territory.

On to new relists. The biggest news of the week is Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 16-712. Like SAS Institute, it involves so-called “inter partes review.” People looked at me like I was some kind of freak – even more than usual – when I started spouting this unfamiliar Latin phrase in discussing SAS Institute, but even if you aren’t a patent practitioner, you should get to know this. Inter partes review is an administrative mechanism the America Invents Act created in 2011 to allow people to challenge issued patents. It authorizes the Patent Trial and Appeal Board to reconsider a patent and invalidate it on the ground that it was either obvious or anticipated by prior art. But while SAS Institute asks a fairly narrow question about whether the board has to issue an opinion addressing all of a challenger’s grounds for invalidating the patent, Oil States is playing for all the marbles. The petition’s central claim is that inter partes review is a big fat violation of Article III and the Seventh Amendment because it provides for a nonjury, nonjudicial forum for resolving disputes about the validity of the patent. The case also raises two other issues about aspects of inter partes review and their consistency with Supreme Court precedent.

In Jenkins v. Hutton, 16-1116, the state of Ohio seeks review of a decision by the U.S. Court of Appeals for the 6th Circuit granting a prisoner habeas relief. I guess there’s a first time for everything. Percy Hutton was convicted and sentenced to death for killing a man back in the 1980s over the theft of a device so primitive its functions are not included on any cellphone. On habeas review, Hutton raised an issue he hadn’t raised on direct appeal before the Ohio courts involving an error that occurred at the “sentencing stage,” after the jury had convicted him of murder but before it decided whether to impose the death penalty. Hutton’s failure to raise the issue on direct appeal would ordinarily result in a procedural bar that would prevent federal courts from reviewing the claim. But after the district court denied habeas relief, a divided panel of the 6th Circuit reversed. The court excused Hutton’s procedural default not based on any exception to the procedural default rule that Hutton himself had advanced, but on one the court invoked on its own — the “fundamental miscarriage of justice” exception. The majority concluded sua sponte that Hutton was “innocent of the death penalty” — a strange phrase meaning that “but for the constitutional error, no reasonable juror would have found [him] eligible for the death penalty.” The court also held that a court cannot cure sentencing-stage error by reweighing the aggravating factors itself. In doing so, the 6th Circuit applied Ring v. Arizona – which held that a jury must find the aggravating factors that make a defendant death-penalty eligible – to the stage in which aggravating factors are weighed against mitigating factors.

(As an aside, the Ohio solicitor general routinely names the 6th Circuit in his petitions’ questions presented, as though the identity of the decision-maker is itself a basis for reversal.)

Our last new relist is Hicks v. United States, 16-7806. Marcus Deshaw Hicks pleaded guilty to selling 50 grams or more of crack cocaine and, because of a prior conviction, was sentenced to 20 years (!) of imprisonment. Hicks was sentenced after Congress enacted the Fair Sentencing Act reducing crack sentences, but before the Supreme Court held in Dorsey v. United States that the law applies to people who, like Hicks, had committed an offense but not yet been sentenced at the time of the statute’s enactment. Hicks’ appellate lawyer failed to raise the issue, and then compounded the error by not advising Hicks of his right to seek certiorari. Now on collateral review and with a new lawyer, Hicks argues that Dorsey applies and that the court should grant the petition, vacate the judgment and remand for further consideration in light of Dorsey. The acting U.S. solicitor general agrees with Hicks that a GVR is warranted, but argues that the court of appeals should apply plain-error analysis on remand; Hicks, on the other hand, wants the court of appeals to vacate and send the case back to the district court. The justices may be working out the scope of any remand.

That’s all for this week. Tune in next week for more fake news and to see whether the “Call for Reply” becomes a thing. Now if you’ll excuse me, I have to be going; there’s a bar in D.C. that’s giving free drinks anytime anyone uses the #AppellateTwitter hashtag.

Thanks to Bryan U. Gividen for compiling the cases in this post, and the voices in my head for drafting it.

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New Relists 

Jenkins v. Hutton, 16-1116

Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit properly held, on its own initiative, that the respondent could overcome his procedural default under Sawyer v. Whitleys actual-innocence exception; and (2) whether the 6th Circuit properly held that judicial reweighing cannot cure errors at the weighing stage of a capital trial by extending Ring v. Arizona‘s standards from the eligibility phase into that weighing phase.

(relisted after the June 1 conference)

 

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 16-712

Issues: (1) Whether inter partes review, an adversarial process used by the Patent and Trademark Office to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury; (2) whether the amendment process implemented by the PTO in inter partes review conflicts with Cuozzo Speed Technologies, LLC v. Lee and congressional direction; and (3) whether the “broadest reasonable interpretation” of patent claims, upheld in Cuozzo for use in inter partes review, requires the application of traditional claim construction principles, including disclaimer by disparagement of prior art and reading claims in light of the patent’s specification.

(relisted after the June 1 conference)

 

Hicks v. United States, 16-7806

Issues: (1) Whether petitioner should have been sentenced under the Fair Sentencing Act of 2010; and (2) Whether the court of appeals offered an insufficient explanation for denying petitioner a certificate of appealability.

(relisted after the June 1 conference)

 

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28, May 11, May 18, May 25 and June 1 conferences)

 

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28, May 11, May 18, May 25 and June 1 conferences)

 

Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the April 28, May 11, May 18, May 25 and June 1 conferences)

 

Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11, May 18, May 25 and June 1 conferences)

 

Pavan v. Smith, 16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

(Relisted after the May 18, May 25 and June 1 conferences)

 

Harris v. Cooper, 16-166

Issues: (1) Whether the district court erred in holding that a lack of discernible standards prevented it from striking down as a partisan gerrymander a districting plan when the plan’s architect freely admitted it was a partisan gerrymander designed to elect as many Republicans as mathematically possible; (2) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the 14th Amendment when the plan was designed to secure “partisan advantage” for Republicans; and (3) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the First Amendment when the plan was designed to impose burdens on Democratic voters because of their political beliefs. In addition, on May 26, the Supreme Court ordered the parties to brief the following issues: (1) Do the appellants have standing to challenge the remedial map as a partisan gerrymander? (2) Is the district court’s order denying the appellants’ objections to the remedial map appealable under 28 U. S. C. § 1253?

(relisted after the May 25 and June 1 conferences)

 

Virginia v. LeBlanc, 16-1177

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred under the Antiterrorism and Effective Death Penalty Act in holding that the Virginia Supreme Court’s decision in Angel v. Commonwealth was an objectively unreasonable application of Graham v. Florida, thereby creating a split with Virginia courts over the validity of Virginia’s parole regulations, and a split with other jurisdictions over whether parole eligibility at age 60 constitutes a life-without-parole sentence.

(relisted after the May 25 and June 1 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. It’s finally June – the court’s home stretch. The justices will get together only a few more times to decide which cases to grant before they part ways for the summer. But so much time has been wasted obsessing over a famous guy using a fake word that it has […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

It’s finally June – the court’s home stretch. The justices will get together only a few more times to decide which cases to grant before they part ways for the summer. But so much time has been wasted obsessing over a famous guy using a fake word that it has distracted attention from another story in the news, involving an important decision made for dubious reasons that many will second-guess.

Now on to the things that really matter. First, the old business: The court granted the relist involving Ohio’s effort to prune old voter rolls. But it denied the relist involving Ohio’s effort to obtain summary reversal in a habeas case involving a faulty jury instruction in a murder trial. All of the other cases are back again this week, but there is at least some movement among the serial relists. In the knot of cell-site information cases, the court called for a response (“CFRd”) in Rios v. United States, 16-7314, the only case among the group in which the respondent had not yet filed a brief. Rios is the lone case that involves “real-time” cellular-phone location data rather than historical data. The response isn’t due until June 26. Even without an extension, such a late due date would ordinarily mean that the case won’t be discussed until the Long Conference on September 25. So this CFR means the court will either have to split off Rios separately or hang on to all the cell-site data cases for the whole summer. It’s unclear to me what the court will do; prediction is very difficult, especially about the future. But one thing I can predict about the serial relists is that when the court is finally done with Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, now on its 11th relist, There Will Be Ink.

That brings us to this week’s new relists. If you like voting cases (if, say, your name is Rick), well, you’re in luck. The court has relisted Harris v. Cooper, 16-166, North Carolina v. Covington, 16-649, and – wait, we already did this one – North Carolina v. Covington, 16-1023. All three are appeals (not certiorari-jurisdiction cases), meaning the court can’t just deny them – it has mandatory jurisdiction and can either summarily affirm, summarily reverse or note probable jurisdiction. The court has been holding all three for last week’s big decision in Cooper v. Harris. In Cooper v. Harris, the court upheld a three-judge district court’s decision invalidating a couple North Carolina’s congressional districts on the ground that they were the product of unconstitutional racial gerrymandering.

Harris v. Cooper, 16-166, involves what happened after the district court invalidated those districts. To guide the drawing of the remedial map, legislative leaders adopted rules that required the resulting map to preserve the state’s existing partisan balance of 10 Republican and three Democratic seats. Challengers argued that the new map was an unconstitutional partisan (not racial) gerrymander. Such claims face an uphill battle under Vieth v. Jubelirer, in which a four-justice plurality concluded that no justiciable standard exists to determine whether a districting plan constitutes an illegal partisan gerrymander, and Justice Anthony Kennedy concurred in the judgment, saying that“[t]hat no such standard has emerged in this case should not be taken to prove that none will emerge in the future.” The district court in Harris denied relief, saying its “hands appear to be tied” because existing Supreme Court law does not permit partisan gerrymandering claims. In the Supreme Court, appellants David Harris and Christine Bowser argue that the district court erred in holding that the lack of discernible standards prevented it from striking down the plan, because the plan’s architect admitted it was designed to elect as many Republicans as mathematically possible. The court has ordered the parties to submit supplemental briefs addressing the appellants’ standing and the court’s appellate jurisdiction.

North Carolina v. Covington, 16-649, seeks review of a three-judge district court’s decision invalidating North Carolina’s state legislative map as the product of unconstitutional racial gerrymandering. And North Carolina v. Covington, 16-1023, asks whether the same district court exceeded its jurisdiction by then partially invalidating the results of the 2016 election held using the old districts, ordering off-year special elections in substantial parts of the state, and doing all of that after North Carolina had already filed its notice of appeal.

Our last new relist, Virginia v. LeBlanc, 16-1177, may sound like a voting case, what with a state name in the caption and all. But it’s the other kind of state-on-top Supreme Court case: the kind seeking summary reversal of an adverse habeas decision. Recall that Graham v. Florida held that sentencing a juvenile to life in prison without parole for crimes other than murder violates the Eighth Amendment’s ban on cruel and unusual punishment. As all even mildly well-read lawyers know, the Virginia Supreme Court held in Angel v. Commonwealth that Virginia’s sentencing laws comply with Graham because juvenile nonhomicide offenders are generally eligible for conditional release at age 60. LeBlanc asks whether the U.S. Court of Appeals for the 4th Circuit erred under the Antiterrorism and Effective Death Penalty Act by granting relief based on its conclusion that Angel was an objectively unreasonable application of Graham v. Florida. The state asserts that there is a circuit split over whether a sentence qualifies as a “life sentence” under Graham if offenders are eligible for parole at age 60.

That’s all for this week. Tune in next week for more creepy hyperlinks, clunky pop-culture references and random references to distant relatives.

Thanks to Bryan U. Gividen for compiling the cases in this post, and the voices in my head for drafting it.

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New Relists

Harris v. Cooper, 16-166

Issues: (1) Whether the district court erred in holding that a lack of discernible standards prevented it from striking down as a partisan gerrymander a districting plan when the plan’s architect freely admitted it was a partisan gerrymander designed to elect as many Republicans as mathematically possible; (2) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the Fourteenth Amendment when the plan was designed to secure “partisan advantage” for Republicans; and (3) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the First Amendment when the plan was designed to impose burdens on Democratic voters because of their political beliefs. In addition, on May 26, the Supreme Court ordered the parties to brief the following issues: (1) Do the appellants have standing to challenge the remedial map as a partisan gerrymander? (2) Is the district court’s order denying the appellants’ objections to the remedial map appealable under 28 U. S. C. § 1253?

(relisted after the May 25 conference)

 

North Carolina v. Covington, 16-649

Issues: (1) Whether any of the district court’s extensive findings of fact regarding the 28 racially gerrymandered legislative districts at issue here are clearly erroneous, and (2) whether the district court correctly applied Alabama Legislative Black Caucus v. Alabama in holding that race predominated in the drawing of 28 legislative districts in North Carolina, and correctly applied the Supreme Court’s rulings in Johnson v. De Grandy and Bartlett v. Strickland in holding that those districts were not narrowly tailored to the compelling governmental interest of compliance with the Voting Rights Act.

(relisted after the May 25 conference)

 

North Carolina v. Covington, 16-1023

Issues: (1) Whether the district court had jurisdiction to expand upon its previously ordered remedy after the state filed its notice of appeal; and (2) whether the district court exceeded the bounds of its equitable discretion by partially invalidating election results, abrogating several provisions of the state constitution and ordering a special election – all without any discussion of the competing equities.

(relisted after the May 25 conference)

 

Virginia v. LeBlank, 16-1177

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred under the Antiterrorism and Effective Death Penalty Act in holding that the Virginia Supreme Court’s decision in Angel v. Commonwealth was an objectively unreasonable application of Graham v. Florida, thereby creating a split with Virginia courts over the validity of Virginia’s parole regulations, and a split with other jurisdictions over whether parole eligibility at age 60 constitutes a life-without-parole sentence.

(relisted after the May 25 conference)

 

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment. 

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Jordan v. United States, 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

(relisted after the April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13, April 21, April 28, May 11, May 18 and May 25 conferences)

 

Rios v. United States, 16-7314

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

(relisted after the April 21, April 28, May 11, May 18 and May 25 conferences)

 

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28, May 11, May 18 and May 25 conferences)

  

Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the April 28, May 11, May 18 and May 25 conferences)

 

Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11, May 18 and May 25 conferences)

 

Pavan v. Smith, 16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

(Relisted after the May 18 and May 25 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. The Supreme Court conducted an overdue spring cleaning this week, trimming half the relists from its rolls. But in the process, losers outnumbered winners bigly. Sure, it was a good day for patent nerds as the court granted in one-time relist SAS Institute Inc. v. Lee, 16-969, presenting the question […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

The Supreme Court conducted an overdue spring cleaning this week, trimming half the relists from its rolls. But in the process, losers outnumbered winners bigly. Sure, it was a good day for patent nerds as the court granted in one-time relist SAS Institute Inc. v. Lee, 16-969, presenting the question whether Patent Trial and Appeal Board opinions must address all the claims of patent challengers in inter partes review, or just the ones the Board feels like addressing. But it was bad news for one-time capital-case relist Neal v. Kubsch, 16-1021, regarding the admissibility of hearsay evidence. And worst of all, the court denied the big knot of seven state tax retroactivity cases that was on its fourth relist. I have it on good authority that those cases were exquisitely exciting, too. Aside from those nine relists, all the cases from last week are back again, although their chances aren’t getting any better.

That brings us to this week’s three-ish new relists. Our first entry, Husted v. A. Philip Randoph Institute, 16-980, is another in a string of recent high-profile voting cases. Husted involves what steps states may take to maintain accurate voter-registration lists under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002. Those laws prohibit states from removing “the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote,” but provide that a state must remove a voter if the voter (1) does not respond to a confirmation notice the state sends them and (2) then does not vote in the next two general federal elections. Since 1994, Ohio has sent voters who do not vote over a two-year period a confirmation notice; if they do not respond to that notice and do not vote over the next four years (including two more federal elections), Ohio removes them from the list of registered voters and requires them to reregister.

A divided panel of the U.S. Court of Appeals for the 6th Circuit held that the state’s process violates the NVRA because Ohio uses the failure to vote as the “trigger” for sending voters a confirmation notice. The question presented is: Does the NVRA permit Ohio to use a voter’s inactivity as a reason to send a confirmation notice to that voter under the NVRA and HAVA? The issue appears to be splitless, but the petition is supported by four amicus briefs, including one filed by 15 states.

The second case likewise comes to us from Ohio, and likewise involves review of a decision of a divided panel of the 6th Circuit. Hooks v. Langford, 16-886, involves a Detroit gang member who was convicted of murder, apparently on an aiding-and-abetting theory, because of a mistake in the jury instruction that may have eliminated the required mens rea showing for the defendant. The state courts affirmed the conviction, but a federal district judge granted habeas relief, finding that the jury was never told that it must find that the defendant acted with a purpose to kill, and the error was not harmless. A divided panel of the 6th Circuit, over Judge Danny Boggs’ dissent, affirmed. The Supreme Court then granted Ohio’s petition, vacated the judgment, and remanded for further consideration in light of Davis v. Ayala, which held that under the Antiterrorism and Effective Death Penalty Act, a federal court must not only conclude that the state courts’ application of the law regarding the underlying error was unreasonable; it must also conclude that the state courts’ application of harmless error was unreasonable. On remand, the same divided panel of the 6th Circuit again affirmed the district court’s grant of habeas relief, concluding that “there was no state court review of harmless error.” The court ordered the defendant, Mark Langford, retried or released within 180 days.

In its petition, Ohio makes no bones that it is only requesting summary reversal; it doesn’t allege any split on the trial court’s error or on the 6th Circuit’s conclusion that the state courts hadn’t conducted harmless-error review. So now we — and more to the point, Mark Langford—must wait to see whether some justice is preparing a summary reversal or a dissent from denial of cert (or perhaps just is taking a little longer to make up his or her mind). The court called for the record back on April 19, so obviously, someone is looking at the case pretty closely. The state has filed an application to stay the 6th Circuit’s mandate, because the 180-day period ends June 13. By my calculation, the court has three more relists to finish up with whatever it’s doing before either it will need to grant the stay or its failure to do so would show its hand.

That brings us to the third-ish relist, which isn’t really a relist for this week. Pavan v. Smith, 16-992, was relisted on Monday for yesterday’s conference. But later the same day, the court requested the record in the case. The record arrived the very next day (it’s electronic), but there’s no way that the law clerk(s) have had time to review it and write up a supplemental memo. So it’s almost certain the case will be hanging around until at least next week. The issue is a juicy one. Under Arkansas law, when a married woman gives birth, her husband must be listed as the second parent on the child’s birth certificate, including when he is not the child’s genetic parent because the child was conceived by target=”_blank”artificial insemination. The Supreme Court of Arkansas held below that, notwithstanding Obergefell v. Hodges, Arkansas may treat married same-sex couples differently. The question presented is: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate. Because some poor clerk is now poring over the record, don’t freak out when the name and docket number aren’t on Monday’s orders list; we’ll have to wait for the next conference to find out what is up with this one.

That’s all for this week. Tune in next week to find out what fresh hell awaits us in June.

Thanks to Bryan U. Gividen for compiling the cases in this post.

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New Relists

Husted v. A. Philip Randoph Institute, 16-980

Issue: Whether 52 U.S.C. § 20507 permits Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002.

(Relisted after the May 18 conference)

 

Hooks v. Langford, 16-886

Issues: (1) Whether a state court unreasonably applied this court’s cases under Section 2254(d)(1) when it held that a misplaced adverb in one jury instruction on state law did not violate federal due process; and (2) whether the U.S. Court of Appeals for the 6th Circuit properly held that the alleged instructional error was harmful and that Davis v. Ayala was irrelevant to the harmless-error inquiry.

(Relisted after the May 18 conference)

 

Pavan v. Smith, 16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

(Relisted after the May 18 conference)

 

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28, May 11 and May 18 conferences)

 

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)

 

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)

 

Jordan v. United States, 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)

 

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)

 

Rios v. United States, 16-7314 

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

(relisted after the April 21, April 28, May 11 and May 18 conferences)

 

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28, May 11 and May 18 conferences)

  

Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the April 28, May 11 and May 18 conferences)

 

Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11 and May 18 conferences)

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Relist Watch

Relist WatchJohn Elwood reviews Monday’s relists. With all the crazy things happening now, it seems a little frivolous, even irresponsible, to be obsessing about the minutiae of the Supreme Court’s docket. So let’s get started. The ranks of the court’s relists are swelling. With the exception of the petition in the North Carolina voting case, North […]

The post Relist Watch appeared first on SCOTUSblog.

Relist Watch

John Elwood reviews Monday’s relists.

With all the crazy things happening now, it seems a little frivolous, even irresponsible, to be obsessing about the minutiae of the Supreme Court’s docket. So let’s get started.

The ranks of the court’s relists are swelling. With the exception of the petition in the North Carolina voting case, North Carolina v. North Carolina State Conference of the NAACP, 16-833, which the court denied, and Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317, which has gone into the “hold” status (for Merit Management Group, LP v. FTI Consulting, Inc., 16-784) that we expected it to assume a week ago, all of last week’s relists are back for another spin. As a statistical matter, we’re getting to the point that it’s time to start expecting dissents from denial in some of these cases. That is especially true for the closely watched First Amendment/same-sex marriage case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, which has been relisted nine times. To my knowledge, the most-relisted case the court has ever granted is eight-time relist District of Columbia v. Wesby15-1485. Given the lack of a clear circuit split, we may also be getting a dissent from denial in the group of cases involving cell-site records, which are on their fourth relist. The tangle of retroactive tax cases, also on four relists, may likewise be approaching their sell-by date, but there are so dang many of them that it’s conceivable the court needs more time to sort through all the vehicles.

On top of that already heapin’ helpin’ of hospitality, we have four new relists. In the past, we’ve noted the court’s general wariness about granting in Second Amendment cases. (Note that the Second Amendment challenge to San Diego’s concealed-carry licensing, Peruta v. California, 16-894, has been relisted a second time this week.) This week’s first new relist puts the court on the horns of dilemma because it is a Second Amendment case that comes from one of the all-time most successful petitioners, Uncle Sam. Sessions v. Binderup, 16-847, involves two people, Daniel Binderup and co-respondent Julio Suarez, who were separately convicted of strangely classified crimes: misdemeanors punishable by up to a two-year sentence in prison (sex with an underage person and drunken driving, respectively). Hey, I’m used to crimes punishable by more than a year in prison being felonies, but whatever. Binderup and Suarez had their rights to own firearms restored under state law, but they were still subject to the prohibition of 18 U.S.C. § 922(g)(1), which, among other things, prohibits a person “convicted of[] a crime punishable by imprisonment for a term exceeding one year” to possess “in or affecting commerce[] any firearm or ammunition.” Binderup and Suarez separately filed, and won, lawsuits arguing that Section 922(g)(1) violated the Second Amendment as applied to them. The U.S. Court of Appeals for the 3rd Circuit sua sponte consolidated the appeals en banc and affirmed by a one-vote margin, with no opinion garnering a majority of the judges on the Second Amendment issue. In the waning days of the Obama administration, the government sought certiorari, arguing that Binderup and Suarez were not entitled to relief. The respondents, represented by Alan Gura, the counsel who won the court’s two Second Amendment blockbusters McDonald v. Chicago and District of Columbia v. Heller, acknowledge a “circuit split,” but argue that the court shouldn’t take this case, involving misdemeanors in which the individuals’ Second Amendment rights are particularly strong, but should instead take a recently decided case in which the U.S. Court of Appeals for the 4th Circuit denied a similar claim brought by another Gura client (a convicted felon whose rights were restored). Maybe the court will compromise and take both. I don’t yet see a petition in the 4th Circuit case, however.

Sessions v. Binderup is accompanied by its doppelganger Binderup v. Sessions, 16-983, a conditional cross-petition. The latter case presents the question whether the phrase “punishable by a term of imprisonment of two years or less,” as used in 18 U.S.C. § 921(a)(20)(B), means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.” The petitioners’ basic argument appears to be that under the principle of constitutional avoidance, the prohibition on possessing firearms should be read to include only offenses with mandatory sentences of over a year – not offenses for which that is the maximum punishment.

SAS Institute Inc. v. Lee, 16-969, involves “inter partes” review of patents before the Patent Trial and Appeals Board. SAS Institute commenced inter partes proceedings to challenge the validity of claims in a patent issued to ComplementSoft LLC. SAS sought review of claims 1-16 of that patent, but the board agreed to institute review only as to claims 1 and 3-10 on certain grounds, declined to institute review as to those claims on other grounds, and declined review altogether on claims 2 and 11-16. The PTAB invalidated certain claims of the patent as obvious under prior art, but the board’s final decision did not address the merits of SAS Institute’s remaining claims. The U.S. Court of Appeals for the Federal Circuit held that the board didn’t need to address every claim. In its petition, SAS Institute asks whether 35 U.S.C. § 318(a), which provides that the PTAB in an inter partes review “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner,” requires the board to issue a final written decision as to every claim challenged by the petitioner, or whether it allows the board to issue a final written decision with respect to the patentability of only some of the patent claims challenged by the petitioner. The government argues that, because of the reticulated rules governing appellate jurisdiction over PTAB decisions, the court of appeals lacked jurisdiction to address “a key predicate of petitioner’s argument,” that the Patent and Trademark Office “was required to institute review of every claim challenged in the petition for inter partes review.” If the court decides to take this case, it sounds like it will be a pretty important one for the patent bar.

Our last new relist is Neal v. Kubsch, 16-1021, a gruesome capital case out of Indiana. Wayne Kubsch was convicted of killing his wife, her ex-husband and his stepson for insurance money. The trial court declined to admit as substantive evidence the videotaped testimony of a nine-year-old neighbor who, days later, recalled seeing the stepson alive at a time after Kubsch had left the area; the court said that Kubsch had failed to establish the reliability of the evidence. By the time of trial, the girl no longer remembered events, and several relatives said the girl had gotten the day mixed up (that is, she was remembering events from the day before the murders). Kubsch challenged his conviction on habeas, arguing that the trial court’s exclusion of the testimony violated Chambers v. Mississippi, in which the Supreme Court held that a trial court had violated a criminal defendant’s due process rights by excluding hearsay statements that were critical to his defense and that bore “substantial assurances of trustworthiness.” The district court ruled that the exclusion was consistent with Chambers because the hearsay testimony of the girl was not trustworthy and that in any event, the error was harmless beyond a reasonable doubt. A divided panel of the U.S. Court of Appeals for the 7th Circuit affirmed, with Chief Judge Diane Wood dissenting. But the court of appeals reheard the case en banc and granted Kubsch habeas relief. Wood, writing for the majority, held that excluding the videotaped statement as substantive evidence constituted an unreasonable application of Chambers. Three judges dissented, noting pointedly that “the [Supreme] Court has summarily reversed a grant of habeas relief where the court of appeals, like the majority here, read Chambers too broadly.” The petitioner, Indiana, is doubtless hoping that happens again here.

That’s all for this week. Tune in next week as we blind ourselves to the latest outrage and blithely plow ahead.

Thanks to Bryan U. Gividen for compiling the cases in this post.

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New Relists

Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the May 11 conference)

 

SAS Institute Inc. v. Lee, 16-969

Issue: Whether 35 U.S.C. § 318(a), which provides that the Patent Trial and Appeal Board in an inter partes review “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner,” requires that Board to issue a final written decision as to every claim challenged by the petitioner, or whether it allows that Board to issue a final written decision with respect to the patentability of only some of the patent claims challenged by the petitioner, as the U.S. Court of Appeals for the Federal Circuit held.

(relisted after the May 11 conference)

 

Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11 conference)

 

Neal v. Kubsch, 16-1021

Issue: Whether a state court reasonably applies Chambers v. Mississippi when it requires a defendant to meet traditional tests of reliability under rules of evidence for using hearsay as substantive evidence.

(relisted after the May 11 conference)

 

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28 and May 11 conferences)

 

Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308

Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment. 

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

Sonoco Products Co. v. Michigan Department of Treasury, 16-687

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states and requires them to allow taxpayers to elect to use the compact’s equally weighted apportionment formula until the state prospectively withdraws from the compact; (2) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the contracts clause; (3) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the due process clause; and (4) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the commerce clause.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury, 16-688

Issues: (1) Whether a state statute that retroactively imposes over $1 billion in increased tax liability on out-of-state businesses for the benefit of in-state businesses violates the dormant commerce clause; (2) whether a state tax law that has a 6 1/2-year period of retroactivity and targets out-of-state businesses for increased tax liability of over $1 billion violates the due process clause; and (3) whether a state’s retroactive repeal of a central provision of the decades-old Multistate Tax Compact violates the contracts clause by imposing over $1 billion in retroactive tax liability on out-of-state taxpayers.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

Gillette Commercial Operations North America & Subsidiaries v. Michigan Department of Treasury, 16-697

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

International Business Machines Corp. v. Michigan Department of Treasury, 16-698

Issues: (1) Whether a state, without violating the constitutional bar against the impairment of contracts, can retroactively withdraw from the Multistate Tax Compact so as to divest taxpayers of benefits under that compact for a period of 6 1/2 years before that withdrawal; and (2) whether, consistent with due process, a state can, by statute, change its tax laws retroactively for a period of more than six years, when the change was not promptly instituted and when the change was designed to increase state tax revenues by overriding a Michigan Supreme Court decision determining taxpayer obligations under prior law.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

Goodyear Tire & Rubber Co. v. Michigan Department of Treasury, 16-699

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

DIRECTV Group Holdings, LLC v. Michigan Department of Treasury, 16-736

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

Jordan v. United States, 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

 

Rios v. United States, 16-7314

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

(relisted after the April 21, April 28 and May 11 conferences)

 

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28 and May 11 conferences)

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