John Elwood reviews Monday’s relisted cases.

If the past week is any guide, 2015 is going to be a year of incredible efficiency for the Roberts Court. The Justices cleared out an enormous number of relists this week. Most of 2015’s first relists are already yesterday’s news – and we still have a full week of January yet to go.

We begin, as usual, with the old business. We at Relist Watch are predisposed never to lead with the lede, but sometimes it is best just to yield to the inevitable — as the Court itself seems to have done with our first group of former relists. We suspected the Justices relisted all four of the Sixth Circuit’s same-sex-marriage cases to keep a poker face about their preferred vehicle for addressing the issue. Instead, they simply granted all four cases after one relist: Obergefell v. Hodges, 14-556 (Ohio), Tanco v. Haslam, 14-562 (Tennessee), DeBoer v. Snyder, 14-571 (Michigan), and Bourke v. Beshear, 14-574 (Kentucky).

Four other first-time relists likewise made the cut: Mata v. Holder, 14-185, asks whether the Fifth Circuit erred, as the government belatedly concedes, in holding that it has no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel under 8 C.F.R. § 1003.2(c)(2). The great raisins case, Horne v. Department of Agriculture, 14-275, has also received the nod, and will require the Court to answer three questions about takings that will surely affect first-year Property students’ lives for years to come: (1) whether the Fifth Amendment applies to personal property, (2) whether reserving a contingent interest in a portion of the value of the property relieves the government of the its obligation to compensate for a taking, and (3) whether a requirement that a property holder relinquish property in exchange for permission to participate in commerce constitutes a taking. [Disclaimer: John Elwood, who allegedly contributes to this column in various capacities, filed an amicus brief in support of the petitioners in Horne.] “Bath salts” consumers who crave flesh more than that mineral also have a reason to cheer, because the Court granted cert. in McFadden v. United States, 14-378, asking whether knowledge that a substance was an analogue to a controlled substance was necessary for a conviction under the Analogue Act. [Disclaimer: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in McFadden.] And Kingsley v. Hendrickson, 14-6368, which asks whether a Section 1983 excessive force claim for “tasing” a prisoner requires proof of subjective intent to cause harm or simply proof of deliberate use of objectively unreasonable force, got the Court’s seal of approval.

There was very good news for the petitioner in our reigning relist champ, Christeson v. Roper, 14-6873. After six relists, the Court summarily reversed the Eighth Circuit’s decision denying the motion of a capital habeas petitioner for substitution of counsel, concluding that substitution was appropriate because the existing lawyers suffered from a conflict of interest because they blew Christeson’s deadline for filing a habeas petition. Justice Alito, joined by Justice Thomas, dissented, arguing that summary action was inappropriate and that because the record showed nothing “other than an error, albeit a serious one,” the claim that substitute counsel could advance would be unlikely to win Christeson relief. [Disclaimer: Tejinder Singh of Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, filed an amicus brief in support of the petitioner in Christeson.]

But four other relisted cases came up short. After two relists, the Court decided that the regulation of debit cards was about as exciting as it sounded (but hey, nothing is exciting compared to “bath salts”), and denied cert. in NACS v. Board of Governors of the Federal Reserve System, 14-200. [Disclaimer: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the petitioners in NACS.] Courts in the Fourth Circuit can continue presuming that trial judges acted “vindictively” in giving a defendant a higher sentence after resentencing (without an intervening appellate reversal) in light of the Court’s denial of first-time relist (and one-time rescheduled case) Plumley v. Austin, 14-271. The petitioner got a consolation prize, however: Justices Thomas and Scalia dissented from the denial of cert., arguing that review was warranted because “confusion reigns” about when courts should presume vindictiveness from a higher sentence and noting “the oddity of the presumption” in light of the ordinary presumption that adjudicators act fairly. Representative actions under California’s Private Attorneys General Act will be exempt from arbitration because the Court denied cert. in CLS Transportation Los Angeles, LLC v. Iskanian, 14-341. And bad news for gun-toting jaywalkers as the Court denied cert. in Carter v. California, 14-5273, which would have asked the Court whether there was reasonable suspicion for a pat down based on detention for jaywalking, among other things.

You have read all this way to learn that there is only one new relist this week, the teutonically captioned OBB Personenverkehr AG v. Sachs, 13-1067, a case already familiar to serial time-wasters from its earlier appearance in this column. After thinking about the matter a little bit during the first go-round, the Court called for the views of the Solicitor General, who recently recommended the Court deny cert. Now the Court either needs a little bit more time to chew on that recommendation, or perhaps clerks are busily vetting it for a grant. The case involves a lawsuit a California woman brought against a rail company owned by the Austrian government after losing her legs in an accident boarding a train in Prague. The petition asks whether agency under the Foreign Sovereign Immunities Act is determined according to the factors set forth in First National City Bank v. Banco Para el Comercio Exterior de Cuba or standard rules of agency, and whether a tort claim for personal injuries suffered in connection with travel outside of the United States is “based upon” the act occurring outside of the United States or the sale of the ticket in the United States for travel outside of the country.

Only two of last week’s relists have returned for a repeat performance. Irish v. Louisiana, 14-182 (once rescheduled, twice relisted), presents the question whether due process requires reversal of a conviction when the lead prosecutor withheld evidence that he considered a key post-trial witness to be a liar. Bower v. Texas, 14-292, based on a grisly quadruple homicide that took place in a Texas airplane hangar just after my seventeenth birthday (i.e., a long time ago), is hanging around a bit longer. Petitioner asks (1) “[w]hether the former Texas special issues for death penalty sentencing [provide] . . . an appropriate vehicle for the jury to consider and give full effect to mitigating evidence of good character [under Penry v. Lynaugh]”; (2) whether the state’s post-trial disclosure of evidence relating to ammunition used in the crime resulted in a violation of the Fifth and Fourteenth Amendments under Brady v. Maryland; and finally, the so-called Lackey claim: (3) whether “executing a defendant who has already served more than 30 years on death row” amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

Rescheduled cases continue to be star-crossed. The Court denied cert. in last week’s lone rescheduled case, Roman Catholic Church of the Diocese of Baton Rouge v. Mayeux, 14-220. Petitioner hoped to address the interesting question “whether a court can pivot liability for a priest’s failure to report certain communications to public authorities on the court’s own determination of whether those communications constitute ‘confession per se’ . . . or whether it must respect the church’s own view that such communications are confessional and absolutely protected from disclosure by the priest on penalty of automatic excommunication.” Last week’s other two rescheduled cases, Carr v. Kansas, 14-6810 (concerning whether a “jury view” of locations relevant to a criminal case is a critical stage of a criminal trial requiring the presence of a defendant and assistance of counsel), and Kansas v. Carr, 14-450 (raising a variety of Eighth Amendment and Confrontation Clause claims) are still waiting for a new Conference date.

This passes for brevity for us. Thanks to Ralph C. Mayrell who both compiled and drafted this update – because he is a superman, and not, as is rumored, to punish him for handing out in-flight refreshments incorrectly.

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13-1067

Issue(s): (1) Whether, for purposes of determining when an entity is an “agent” of a “foreign state” under the first clause of the commercial activity exception of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(2), the express definition of “agency” in the FSIA, the factors set forth in First National City Bank v. Banco Para el Comercio Exterior de Cuba, or common law principles of agency, control; and (2) whether, under the first clause of the commercial activity exception of the FSIA, 28 U.S.C. § 1605(a)(2), a tort claim for personal injuries suffered in connection with travel outside of the United States is “based upon” the allegedly tortious conduct occurring outside of the United States or the preceding sale of the ticket in the United States for the travel entirely outside the United States. CVSG: 12/15/2014.

 

(relisted after the January 16 Conference)

 

14-182

Issue(s): Whether, where a prosecutor voluntarily discloses during post-conviction proceedings that he withheld impeachment evidence from the defense during the course of a capital case, and that he believed from his personal interaction with the key witness in the case that he was a liar, due process requires that the conviction be vacated and a new trial ordered.

 

(relisted after the January 9 and January 16 Conferences)

 

14-292

Issue(s): (1) Whether the former Texas special issues for death penalty sentencing do provide – as the Texas Court of Criminal Appeals held – or do not provide – as the Fifth Circuit has held – an appropriate vehicle for the jury to consider and give full effect to mitigating evidence of good character, such that failure to provide a separate question violates the Eighth and Fourteenth Amendments under this Court’s jurisprudence in Penry v. Lynaugh and Penry v. Johnson; (2) whether a conviction aided by the prosecution's failure to produce evidence that contradicted its theory and showed that the evidence it did rely upon and the resulting jury arguments were false violates the Due Process Clauses of the Fifth and Fourteenth Amendments under this Court's Brady v. Maryland jurisprudence; and (3) whether executing a defendant who has already served more than thirty years on death row while exercising his legal rights in a non-abusive manner serves any penological purpose and amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

 

(relisted after the January 9 and January 16 Conferences)

  

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 22, 2015, 2:15 PM), http://www.scotusblog.com/2015/01/relist-watch-52/