John Elwood reviews Monday’s relisted cases.

April is National Poetry Month, and so in honor of this annual effort to put schoolchildren off a basic literary form, we have commissioned “Ode to a Relist”:

A case of importance unique,

A clear split, the Court’s interest was piqued

But just to be sure,

They would ponder some more,

So they said, “Let’s decide it next week.”

We realize that limericks bear the same relationship to poetry that puns do to jokes – both are crimes against humanity – but we have a reputation for tastelessness to keep up.  And hey – you could do worse.

April is the cruelest month for two of last week’s relists.  The Court denied cert. in twice-relisted Elane Photography, LLC v. Willock, 13-585, the New Mexico case asking whether the First Amendment protects a photographer’s religiously motivated refusal to photograph same-sex weddings.  The enlarged pool of available photographers in New Mexico thus increases the potential for irony.  And consistent with our speculation last week that the Justices just needed more time to absorb the petitioner’s last-minute supplemental brief, the Court denied without comment the petition in once-relisted Sepulvado v. Jindal, 13-892, asking whether a condemned Louisiana inmate is entitled to know the method by which he will be executed.  But before the drumbeat of bad news gets you so down that you go looking for a (synthetic) pick-me-up, a bit of good news about last week’s cohort of relists: the Court granted cert. in first-time relist Dart Cherokee Basin Operating Co. LLC. v. Owens, 13-719, a Class Action Fairness Act case that asks whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement on the grounds for removal.”

Moving on to returning relists, we begin, as we have since November, with Ryan v. Hurles, 12-1472, a case that has been hanging around so long it is now draft-eligible.  As you will recall from the eighteen times we’ve drummed it into your head, Hurles asks whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim.  The scores of trees that have been felled to print the Justices’ writings on this case are like so many leaves of grass.  Also beginning to outstay their welcome this week are Tolan v. Cotton, 13-551, a qualified immunity claim arising in the case of a man shot because of a license-plate typo (sixth relist); Martinez v. Illinois, 13-5967, a case asking whether jeopardy (we’ve just about exhausted the possible hyperlinks for that joke) attaches if a jury is sworn but the prosecution refuses to participate in the case (also sixth); and Hussain v. Obama, 13-638, a case addressing the proper standard for a Guantanamo detainee’s habeas petition (fifth relist).  Zivotofsky v. Kerry, 13-628 (second relist this time around) is back on the relist rolls this week as well; it addresses the constitutionality of a federal law directing the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as “Israel” on passports.  And finally, though it wasn’t technically relisted this week (but last week for this week), the Court is set to consider Thomas v. Nugent, 13-862 (first relist).  As we noted last week, Thomas was relisted after the March 28 Conference but skipped the April 4 Conference (perhaps so the Court could consider it with another, unrelated qualified immunity case scheduled for the April 18 Conference).  Thomas asks, among other things, whether it was clearly established that a police officer violates the Fourth Amendment when he tases a handcuffed but non-cooperative detainee eight times.

We’ve got a pair of new relists to add to this week’s miscellany.  The petitioner in Heien v. North Carolina, 13-604, was traveling with a companion when they were pulled over by a police officer who observed that one of their car’s two rear brake lights failed to illuminate.  The relevant state statute quaintly requires vehicles to have “a stop lamp,” and no North Carolina court has ever held that the law requires two working brake lights, but the officer stopped the men because of the nonfunctioning light.  (The officer was already rightly suspicious because the driver was “gripping the steering wheel at [the] 10 and 2 position[s], looking straight ahead”—a dead giveaway that crime is afoot.)  The officer questioned the men, searched the car, and ultimately found a “plastic sandwich baggie” that, needless to say, did not contain a plastic sandwich.  During the petitioner’s criminal trial and appeal, he unsuccessfully argued that the traffic stop violated the Fourth Amendment because the arresting officer did not have reasonable suspicion that criminal activity had been committed.  The Heien cert. petition asks whether an officer’s mistake of law about the taillight law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.

The Court also relisted Johnson v. United States, 13-7120.  In 2012, petitioner Samuel Johnson (no, not that chump) pleaded guilty to one count of being a felon in possession of a firearm.  Because Johnson’s rap sheet included two simple robbery convictions and a conviction for possession of a short-barreled shotgun, his 2012 plea implicated the Armed Career Criminal Act (“ACCA”).  Johnson preserved the right to challenge the ACCA’s application, but lost both at trial and in the Eighth Circuit.  Dr. Johnson’s petition asks whether the mere possession of a short-barreled shotgun should be treated as a violent felony under the ACCA.  If cert. is granted, it will bring to 31,681 the number of ACCA cases the Court has addressed, slightly surpassing the number of armed career criminals.

And on that lyric note, we’re done for the week.  We’ll be back the week after next to fill your hungry hearts with more Supreme Court poesy, and to fulfill our modest goal here at Relist Watch: “to strive, to seek, to find, and not to screw up.

Thanks to 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, March 21, March 28, and April 4 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, March 21, March 28, and April 4 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, March 21, March 28, and April 4 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, March 21, March 28, and April 4 Conferences)

13-628

Issue: Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

(relisted after the March 28 and April 4 Conference)

13-862

Issue: (1) Whether it was clearly established in 2008 that a police officer violates the Fourth Amendment when he uses a Taser to electroshock a person eight times, where that person is already handcuffed and poses no threat to anyone’s safety and no risk of flight but does not comply with the officer’s orders to stand up; (2) whether, on a motion for summary judgment, the non-moving party bears the burden of disproving the moving party’s affirmative defense of qualified immunity; and (3) whether a court of appeals has subject-matter jurisdiction to hear an interlocutory appeal of a district court’s decision that there is a genuine dispute over factual issues, where the district court does not decide any legal issue.

(relisted after the March 28 Conference)

13-604
Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case at the cert. stage through the Stanford Law School Supreme Court Litigation Clinic, but he is not participating in the case at the merits stage.

Issue: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.

(relisted after the April 4 Conference)

 [Disclosure: Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case through the Stanford Law School Supreme Court Litigation Clinic.]

13-7120

Issue: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

(relisted after the April 4 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Apr. 10, 2014, 5:20 PM), http://www.scotusblog.com/2014/04/relist-watch-36/