John Elwood reviews Monday’s relisted cases.

The Court, like first-run television programming, is finally back from its Olympic break.  And so is Relist Watch, refreshed (though never truly relaxed) from our own stay in paradise.  Time to see which petitions achieved immortality and which suffered the agony of defeat.

The Justices awarded relist gold to the petitioner in Hinton v. Alabama, 13-6440, a one-time relist that leaves the Court with a unanimous summary reversal holding that Hinton’s counsel was constitutionally ineffective.  No such luck for other returning relists that did not even make it to the podium.  Handing class-action lawyers a break, the Court denied cert. without comment in the closely watched “smelly washing machine” cases BSH Home Appliances Corp. v. Cobb, 13-138; Sears, Roebuck and Company v. Butler, 13-430; and Whirlpool Corp. v. Glazer, 13-431, concerning the scope of Federal Rule of Civil Procedure 23(b)(3)’s requirement that classwide issues predominate over individual ones.  The news was likewise bad in the capital-case Batson challenge Williams v. California, 13-494.

But a couple other old friends advanced to the next round of competition.  Veteran contender Ryan v. Hurles, 12-1472, gets lucky relist number thirteen, and at this rate will still be going strong for the Pyeongchang Olympics; the petition asks whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim. Back for a second relist is The Falls Church v. The Protestant Episcopal Church in the United States of America, 13-449, a high-visibility dispute between the national Episcopal Church and a portion of a former congregation over who gets to open a Quizno’s in an especially prime location.  Robinson v. Drummond, 13-496, a state-on-top habeas petition involving when a rule is “clearly established” for purposes of the stringent review provisions of the Antiterrorism and Effective Death Penalty Act and which comes to us from the land of country music and non-union autoworkers, appears to be a hold after all – perhaps for White v. Woodall, 12-794, which raises a similar question.

Turning to first-time relists, we are simply awash in fresh talent vying for medals. First up is Integrity Staffing Solutions, Inc. v. Busk, 13-433, which asks whether warehouse workers must be compensated under the Fair Labor Standards Act for time spent in security screenings after the end of their work shifts. Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, 13-435, involves whether Section 11 of the Securities Act of 1933 applies to statements of opinion that are objectively wrong, or whether the statute instead requires a plaintiff to allege they were subjectively false (i.e., that the defendant did not believe them at the time).  Romeike v. Holder, 13-471, involves a couple who fled the land of beer and bratwurst (no, not that one) after being fined and threatened with prison for home-schooling their children. They sought asylum in a haven of religious tolerance right here in the USA. Their petition asks whether criminal prosecution abroad under a generally applicable law can constitute religious persecution for purposes of asylum, where the law in question (assertedly) violates a human rights treaty or is motivated by the desire to suppress a protected right.

But there’s moreCity of Farmers Branch, Texas v. Villas at Parkside Partners, 13-516, and City of Hazleton v. Lozano, 13-531, both involve whether a local ordinance prohibiting renting to undocumented immigrants constitutes a (preempted) regulation of immigration; both the Third and Fifth Circuits held such laws were preempted.  Warger v. Shauers, 13-517, asserts a circuit split about whether Federal Rule of Evidence 606(b) (as if you didn’t already know, the jury testimony rule) permits a party moving for a new trial based on juror misconduct to introduce juror testimony about statements made during deliberations.  (The foreperson in a jury trial about a motorcycle-truck collision told fellow jurors her daughter’s life would have been “ruined” if she had been sued for a fatal accident she caused.)  North Carolina Board of Dental Examiners v. Federal Trade Commission, 13-534, asks whether the Board is properly treated as a private actor (and thus not exempt from the antitrust laws as a state actor) because a majority of its members are market participants elected by other market participants; the Fourth Circuit held it was.  And Tolan v. Cotton, 13-551, involving a cop’s error checking a license number that allegedly ultimately led the officer to shoot Tolan and rough up his mother, asks whether courts addressing claims of qualified immunity in the Fourth Amendment context must consider the factual reasonableness of the search or seizure under the “clearly established” prong of the analysis.

But wait–there’s still more.  Fans of IFP petitions, do not despair: Martinez v. Illinois. 13-5967, from Chicagoland’s Supreme Court, asks whether jeopardy attaches when a jury is sworn but the prosecution refuses to give an opening statement or present any evidence. Here, when the state could not locate two witnesses and the judge refused to grant a continuance, the prosecution took its ball and went home: the prosecutor actually stated “the State is not participating in this case.”  What if they gave a prosecution and nobody came?  Martinez moved for a directed verdict, the prosecution refused to respond, and the court granted the motion. The state appellate and supreme courts, in a more forgiving mood, held that jeopardy had not attached and that the judge should have granted a continuance.

In Holt v. Hobbs, 13-6827, the petitioner, a Muslim, argues that the Arkansas Department of Corrections’ no-beard grooming policy violates the First Amendment and the Religious Land Use and Institutionalized Persons Act.  Holt asserts a circuit split over whether the act’s compelling-interest standard to prison regulations requires consideration of less restrictive measures before adopting no-beard policies and whether it must demonstrate that it cannot grant religious accommodations that other prison systems have granted or allow to all prisoners.  The Court faced  very similar question (hair length) recently in a case with a far cooler caption, Iron Thunderhorse v. Pierce, 09-1353; in response to the Court’s invitation in that case, the Acting Solicitor General recommended the unusual choice of denial or summary reversal because he believed the decision below was wrong but the split insufficiently developed.  It’s harder to say the same thing today.  Mr. Holt, acting pro se, succeeded in persuading the Court to grant an injunction preventing the prison from making him shave his beard pending disposition of his petition for certiorari, which is a pretty good indication the Justices think the case may be cert.-worthy.  (Disclaimer: John Elwood, who contributes to this feature by making it less funny and informative, was counsel to Mr. Thunderhorse and briefly to Mr. Holt.)

Finally, Trammell v. Williams, 13-587, is a state-on-top capital habeas petition out of the Ninth Sixth Tenth (?!?) Circuit. The great state of Oklahoma is not O.K. with the Tenth Circuit’s holding that the Oklahoma Court of Criminal Appeals clearly violated Beck v. Alabama by approving the trial court’s refusal to instruct the jury on second-degree murder. Oklahoma argues that the state court opinion was not contrary to clearly established Supreme Court precedent, even if “its analysis was not a model of clarity.”

And with that, this Olympic-sized Relist Watch is over. Keep training hard, reach for the starts, and we will see you back here next week for another handful of triumphs and scads of spectacular wipeouts. Please remember to take a dog as you file out.

Thanks to Conor McEvily, Dmitry “Slavin’ on Relist Watch,” and Jeremy Marwell for compiling and drafting this update:  It takes three people to achieve the same level of semi-humorous obfuscation as Eric White.


12-1472

Issue: Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

(relisted after the September 30, October 11, October 18, November 1, November 8, November 15, November 26, December 6, December 13, January 10, January 17, January 24 and February 21 Conferences)

13-449

Issue: (1) Whether the First Amendment permits civil courts to retroactively impose a “trust” on church property based on church canons that were never embodied in any secular instrument of property ownership and did not comply with state law at the time of their adoption; (2) whether the Contracts Clause permits civil courts resolving church property disputes to apply changes to state statutory law retroactively.

(relisted after the January 24 and February 21 Conferences)

13-433

Issue: Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.

(relisted after the February 21 Conference)

13-435

Issue: Whether, for purposes of a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false – requiring allegations that the speaker’s actual opinion was different from the one expressed – as the Second, Third, and Ninth Circuits have held.

(relisted after the February 21 Conference)

13-471

Issue: (1) Whether prosecution under a generally applicable law may constitute persecution when such a law violates human rights treaty obligations concerning a protected ground; and (2) whether prosecution under a generally applicable law may constitute persecution when there is direct evidence that one central reason for the government’s motive for prosecution is the desire to suppress the applicant on a protected ground.

(relisted after the February 21 Conference)

13-516

Issue: (1) Whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is a preempted "regulation of immigration"; (2) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly field preempted; and (3) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly conflict preempted.

(relisted after the February 21 Conference)

13-531

Issue: (1) Whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental house is a preempted "regulation of immigration"; (2) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly field preempted; (3) whether a local ordinance prohibiting the knowing harboring of illegal aliens in rental housing is impliedly conflict preempted; and (4) whether a local ordinance prohibiting the employment of unauthorized aliens is impliedly conflict preempted.

 (relisted after the February 21 Conference)

13-517

Issue: Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

(relisted after the February 21 Conference)

13-534

Issue: Whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

(relisted after the February 21 Conference)

13-551

Issue: Whether courts deciding qualified immunity in Fourth Amendment cases should consider the factual reasonableness of the search or seizure when applying the second, “clearly established” prong of the test.

(relisted after the February 21 Conference)

13-5967

Issue: Whether a defendant is acquitted for purposes of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, where a court grants a motion for directed verdict after the prosecution refuses to present any evidence at trial to the empaneled and sworn jury.

(relisted after the February 21 Conference)

13-6827

Issue: Whether the Arkansas Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. § 2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs.

(relisted after the February 21 Conference)

13-587

Issue: Whether the court of appeals exceeded its authority to grant a writ of habeas corpus when it completely disregarded and ignored this Court’s well-established precedent of Woodford v. Visciotti and its progeny, by finding a state court’s application of Beck v. Alabama contrary to United States Supreme Court precedent, although the state court expressly recognized, cited and applied the appropriate federal standard of review but its analysis was not a model of clarity; and (2) whether the decision of the court of appeals finding error under Beck based solely on speculative and non-existent evidence is so clearly erroneous, and in conflict with other lower federal courts, that this Court should, if not grant plenary review, at least grant certiorari, vacate the court of appeals’ decision, and remand with instructions to deny habeas corpus relief.

(relisted after the February 21 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Feb. 27, 2014, 4:42 PM), http://www.scotusblog.com/2014/02/relist-watch-33/