John Elwood reviews Monday’s relisted cases

Who doesn’t love March Madness?  Every year it’s the same – running around the yard in a pink bathrobe, assaulting squirrels with a broken plunger.  I understand that there also is a sporting event of some sort going on this time of year.

I kid, I kid.  Those of us who still have a perfect bracket and are on a glide path to winning Buffett’s Billion can still find the humor in a tournament that seems calculated to make even the strong weep openly.

(Cue flimsy segue.)  At least one of last week’s relists experienced a little March gladness this week.  Jennings v. Stephens, 13-7211, was a first-round upset as the Court granted cert. in a case brought by a Texas death-row inmate convicted of killing a police officer while robbing an adult bookstore in 1988.  Jennings was winning ugly, though:  the Court granted cert. on only one of his four questions presented, involving whether a habeas petitioner who prevails in district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealablity to raise another allegation of deficient performance if the state appeals.

The rest of last week’s top seeds have all advanced another round.  Patent-infringement case Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 13-854, made it into the second round; the case raises the question whether a district court’s fact findings made in the course of patent interpretation should be reviewed de novo or for clear error.  Also hanging on this week is Hussain v. Obama, 13-638, a grudge match between the president’s middle and last names.  (If you are already outraged because the Chief Magistrate’s middle name actually contains an “e,” fasten your seat belt: we have more name-vowel weirdness coming before we’re through.)  This three-time relist is, like Teva, a standard-of-review issue, involving the proper standard of review to be applied to the habeas petition of a Guantanamo detainee.  Notching a fourth relist (since the record arrived) are both Tolan v. Cotton, 13-551, involving a qualified immunity claim arising from a police officer’s error entering a license plate number, and Martinez v. Illinois, 13-5967, involving whether jeopardy attaches if the jury is sworn after the prosecution refuses to participate in a case because its witnesses didn’t show up.

Of course, all of those are pikers compared to Ryan v. Hurles, 12-1472.  If relists were Final Four appearances – pause for a moment to let the implausibility of that sink in – Hurles with its sweet sixteenth relist would surpass Duke, Kentucky, Kansas, Louisville, Indiana, and even mighty BaylorHurles has been relisted more than all the other cases this week combined.  To give you some perspective on how long the Court has sat on Ryan, when the petition was first filed, Paula Deen was still the conductor of America’s gravy train, the Royal Baby was still in utero, most people thought “twerking” was a typographical error, Edward Snowden still was holed up in Hong Kong, and Ukraine’s old government was still Ukraine’s government and not Ukraine’s next government.

Are you still here?  The issue in Ryan is whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim.

As for new relists this week, we have but one. The petitioner in Elane Photography, LLC v. Willock, 13-585 is a small New Mexico photography studio whose owners refuse to “create images that … convey messages contrary to their religious beliefs.”  This includes “nude maternity pictures,” “photographs portraying violence,” and—here’s the rub—“a wedding-like ceremony between two women.” (A wedding-like ceremony involving Swedish pop music, though contrary to everything that is good and decent, does not offend anyone’s religious beliefs – just their taste.)  Respondent, a woman who wanted to retain Elaine (with an “I”) Huguenin for her own wedding-like ceremony, successfully argued that refusal violated the state’s public-accommodations statute.  Now Elane (no “I”) Photography argues that requiring the photographer to photograph the ceremony violates the First Amendment’s ban on compelled speech.  She had me at “nude mater-nity pictures.”

And with that, we’re done!  But before we go, we must briefly pay our respects to someone who put the “human” in “intergalactic humanoid barbarian,” who went to his reward this week at the age of 43 billion.

Goodnight, Oderus.

Thanks to Dmitry Slavin and Conor McEvily for compiling and drafting this update.


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, February 21, February 28, March 7, and March 21 Conferences)

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, February 28, March 7, and March 21 Conferences)

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, February 28, March 7, and March 21 Conferences)

13-638

Issue: (1) Whether the court of appeals failed to apply the governing preponderance of the evidence standard in affirming the denial of petitioner's habeas corpus petition, thus denying him the meaningful review mandated by Boumediene v. Bush; and (2) whether the court of appeals improperly shifted the burden of proof to petitioner to disprove affiliation with al Qaeda or the Taliban at the time of his capture.

(relisted after the February 28, March 7, and March 21 Conferences)

13-854

Issue: Whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Federal Rule of Civil Procedure 52(a) requires.

(relisted after the March 7 and March 21 Conference)

13-585

Issue: Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

(relisted after the March 21 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 27, 2014, 9:07 AM), http://www.scotusblog.com/2014/03/relist-watch-35/