Relist Watch

By John Elwood
on Nov 6, 2013 at 9:31 am

John Elwood reviews Monday’s relisted cases.

As enlightened citizens flock to the polls to express their views, we remain hard at work so we can bring you that best of bellwethers, your constant companion in times of constant change, Relist Watch: Election Edition™.

First up are the winners and losers among our last installment of relists. After three relists, the Court summarily reversed in Stanton v. Sims, 12-1217, concluding in eight brisk pages that the Ninth Circuit erred in denying a police officer qualified immunity for a warrantless entry in hot pursuit of a misdemeanant, which went slightly awry when the officer’s entry (achieved by kicking in the garden gate) apparently resulted in a rapidly moving gate striking the (innocent) homeowner in the forehead. The Court denied cert. in Marek v. Lane, 13-136, the Facebook case concerning the propriety of cy pres class-action remedies, but not before the Chief Justice filed an opinion concurring in the denial which suggested that the Court may need to take up the issue in an appropriate case.

And now for the hanging chads from last time. Martin v. Blessing, 13-169, involving the racially conscious class-certification order, has been relisted again as the Court awaits the record it requested. Confirming the highly quantitative predictive methodology in our last column, the trio of state-on-top habeas cases are all back for a fourth relist: Ryan v. Hurles, 12-1472 (whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim), Rapelje v. McClellan, 12-1480 (whether dismissal “for lack of merit in the grounds presented” is adjudication on the merits), and Unger v. Young, 13-95 (whether a state can forfeit application of the Stone v. Powell rule that Fourth Amendment claims aren’t cognizable on habeas). The Court also relisted for a second time since calling for the record in Plumhoff v. Rickard, 12-1117, involving the Sixth Circuit’s denial of qualified immunity to an officer in vehicular hot pursuit of a suspect. And the Court relisted for a second time in Woodward v. Alabama, 13-5380, involving an “evolving standards of decency” Eighth Amendment challenge to a judge “imposing the death penalty through [jury] override.”

This week’s freshman class is a lonely group, but one of them will be getting a close look. Pruitt v. Nova Health Systems, 12-1170, concerns the constitutionality of the Oklahoma Ultrasound Act, which requires the performance and display of an ultrasound before an abortion is performed; the Oklahoma Supreme Court found the Act facially unconstitutional on the same day it struck down the RU-486 provision at issue in the just-DIG’ged Cline v. Oklahoma Coalition for Reproductive Justice, 12-1094. Pruitt was relisted in June and then held over the summer for Cline. Now that the Court has dismissed Cline, the question becomes what to do with Pruitt.

Howell v. Tennessee, 13-5086, is a capital case from Tennessee state court raising a number of challenges implicating issues already on the Court’s docket. Howell asserts that the Hog and Hominy State’s approach to identifying mental retardation violates Atkins, suggesting in his reply that the case be held for Hall v. Florida, 12-10882. Howell also raises a Ring v. Arizona claim, arguing that a jury was required to find, beyond a reasonable doubt, that he is not intellectually disabled before a death sentence could be imposed, seeking among other things vacatur and remand in light of Alleyne v. United States, and perhaps implicating the twice-relisted Woodward v. Alabama, 13-5380.

With uncharacteristic brevity but typical lack of wit, we have fulfilled our civic duty. We’ll be back next week with another scintillating wrap-up.

Thanks to Jeremy Marwell and Conor McEvily for compiling and drafting this update.

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