John Elwood reviews Monday’s relisted cases.

It has been a rough month since our last installment. Much of the country, from the Dakotas to Dallas, has seen record low temperatures, causing pipes to burst, and creating icy roads and massive pile-ups. Boston has endured more snowfall than at any time since wooly mammoths roamed the area. On several occasions, the D.C. area received as much as three-quarters of a centimeter of snow, causing even less to get done than usual. But on the other hand, we made it almost all the way through February without Relist Watch, so things have been pretty good overall.

We begin, as always, with old business, which will be pretty fast work this week. Shao v. Wang, 14-7244, the once-rescheduled child-custody case from California’s intermediate court of appeals, seemed like it might have a shao-cause order in its future, but the Court simply denied the petition outright this week. While the Court is done with the case, that won’t stop us from receiving emails from petitioner’s counsel for some time yet.

Next is the current relist king, the four-time relisted Bower v. Texas, 14-292, involving a quadruple homicide from so long ago that people still thought I had promise. The petitioner in Bower 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. In early February, the Court granted Bower a stay of execution, so something is going on here. We depart from our usual practice of hermetically sealing new and old relists to note that Bowers’ Lackey claim got some new company this week: the newly relisted Davis v. Ohio, 14-7426. This is the biggest bunch of Lackeys the Court has seen since, well, the bar section at the last business case.

Our last returning relist is Kansas v. Gleason, 14-452, in which the Sunflower State seeks to revisit the Kansas Supreme Court’s decision that it violates the Eighth Amendment for a trial court to fail “to affirmatively inform the [capital-sentencing] jury that mitigating circumstances need not be proved beyond a reasonable doubt.” Shadowing Gleason are two returning rescheduled cases that raise the same issue involving Wichita brothers Reginald Jr. and Jonathan D. Carr, Kansas v. Carr, 14-450, and Kansas v. Carr, 14-449, which the Court has now rescheduled for the March 20 Conference. Joining the state’s petitions for that Conference is Reginald’s own petition in Carr v. Kansas, 14-6810, which asks 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.

Even the new business this week isn’t all that new. The big news in the relist world this week (acknowledging that everything is the relist business is by definition “Small Ball”) is that the Court is auditioning potential replacements for Toca v. Louisiana, 14-6381, which was dismissed after the state released the petitioner. That case involved the retroactivity of the Supreme Court’s decision in Miller v. Alabama, holding that a sentencing minors to life imprisonment without the possibility of parole violates the Eighth Amendment. The Court has relisted a bevy of potential replacements for this Friday’s conference, including Montgomery v. Louisiana, 14-280 (second relist since the Court received the state’s brief in opposition); Tolliver v. Louisiana, 14-6673 (second relist since the Court received the state’s brief supporting the petition), and DeMola v. Johnson, 13-10288 (second relist). Which vehicle the Court will take depends on vehicle issues that I’m way too lazy busy to sort out, but Louisiana acquiesced in Tolliver and California is ably represented by former Assistant to the Solicitor General (and former Federal Circuit nominee) Ed DuMont in DeMola. If you’re wondering how those cases are racking up their second relist when you’ve never heard of them before, that’s because on February 9, the Court took each of them out of stasis they’ve been lingering in since their original Conferences and relisted them for the February 20 Conference. In addition, the Court has rescheduled Davis v. Michigan, 14-8106, which raises the same issue, to an as-yet-to-be-determined Conference. There are still others in the pipeline, but they are further behind in briefing.

Elsewhere in old new business: Inveterate time-wasters will be familiar with Bronx Household of Faith v. Board of Education of the City of New York, 14-354, from its first time on the relist rolls. The petition challenges the New York Board of Education’s policy excluding groups engaging in “religious worship services” from the types of community welfare groups that can use public school buildings after hours as a violation of the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses. But there are worse things than not having someplace for your after-school program to meet.

On to the new new business. There is a fair amount of it this week. Hawkins v. Community Bank of Raymore, 14-520, concerns development of a residential subdivision in (I’m not making this up) Peculiar, Missouri (town motto, also not made up: “Where the odds are with you.”). When an LLC that owned the development borrowed money from the bank, it required the wives of the owners to sign the loan agreement, agreeing to be “primarily and unconditionally liable” for the debt, so the bank could pursue them first, before pursuing the LLC’s owners. The petition asks whether (1) such spousal guarantors are categorically excluded under the Equal Credit Opportunity Act from being “applicants” for credit and (2) whether the Federal Reserve Board has authority by regulation to classify such guarantors as “applicants” to eliminate discrimination against married women. Maybe the Court will call for the views of the Solicitor General if that one sticks around.

On to the criminal side of the docket. Ocasio v. United States, 14-361, involves a bribery ring in Baltimore under which the owners of a car-repair shop paid police officers to refer to them business resulting from the car collisions to which they responded. Officers were charged with (among other things) conspiring with the shop owners to extort money from … the shop owners. The case presents the question whether a Hobbs Act conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.

Towles v. Pennsylvania, 14-7656, which comes from a place better known for mildly embarrassing place names than aggravated murder, asks whether the Due Process Clause requires that state procedural laws designed to ensure jurors properly weigh aggravating and mitigating circumstances be followed in capital cases. There, jurors did not check a box on a verdict form indicating that the aggravating factors the jury found outweighed the mitigating factors (one of which was the incongruous-sounding, “the emotionally charged atmosphere at the Mighty Dog contributed to [the defendant’s] poor decision making”). Nor did the trial judge, when polling the jury, ask the jury the reason for their verdict of death. Meanwhile, Hurst v. Florida, 14-7505, a capital case involving the murder of the manager of a Florida Popeyes restaurant, asks two questions: (1) whether a penalty-phase jury has a constitutional obligation to render a verdict on whether the defendant is intellectually disabled when evidence has been presented to support such a conclusion; and (2) whether Ring v. Arizona applies to Florida’s capital sentencing scheme, which requires a judge to impose a sentence after considering the jury’s (potentially non-unanimous) recommendation.

But wait—there’s more! Rescheduled cases, that is. Petitioners in ProtectMarriage.com-Yes on 8 v. Padilla, 14-434, who are opponents of same-sex marriage, argued unsuccessfully for a First Amendment-based exemption from California’s campaign-finance disclosure requirements, because of past incidents of harassment. Their petition raises two questions: (1) whether their First Amendment challenge seeking exemption from California law’s disclosure requirements is moot regarding expungement of past records and further release of those records; and (2) whether the case comes within the mootness exception for cases capable of repetition yet evading review. The case was rescheduled on January 22 for this Friday’s Conference.

University of Notre Dame v. Burwell, 14-392, was rescheduled on February 18 for this Friday’s Conference. The University of Notre Dame claims a religious exemption from regulatory requirements under the Affordable Care Act regarding “abortion-inducing products, contraception, and sterilization,” but have been unsuccessful in the lower courts. Their petition asks whether the judgment below should be vacated and the case remanded for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., and Wheaton College v. Burwell.

Finally, Carpenter Co. v. Ace Foam, Inc., 14-577, also was rescheduled on February 18 for this Friday’s Conference. The petition, which is the latest twist in a huge antitrust class action involving allegations of price fixing in the polyurethane foam industry, presents two questions: (1) Whether the standing requirements of article III apply to all members of a class certified under Federal Rule of Civil Procedure 23; and (2) whether certifying a class under Rule 23(b)(3) is improper where individualized damages issues predominate, and where plaintiffs rely exclusively on aggregate damages models that calculate damages purportedly incurred by the class as a whole, rather than by individual class members.

As if the unremitting dismal weather weren’t depressing enough, we’ll be back next week to discuss the fall-out from the February 27 Conference. Until then, keep warm!

Thanks to Ralph C. Mayrell for compiling this update.

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13-10288

Issue(s): (1) Whether the Ninth Circuit erroneously failed to enforce Miller v. Alabama's requirement of individualized sentencing by substituting its own reading of California's juvenile sentencing statute for that of California state courts, which at the time of DeMola's sentencing had interpreted the statute as establishing a presumption of life-without-parole for juveniles convicted of special circumstances murder; and (2) whether Miller v. Alabama is retroactive on federal habeas review.

(relisted after the November 25, 2014 and February 20, 2015 Conferences)

14-280

Issue(s): (1) Whether Miller v. Alabama adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison; and (2) whether the Supreme Court has jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to this Court’s decision in Miller v. Alabama.

(relisted after the January 9 and February 20 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, January 16, and January 23, and February 20 Conferences)

14-354

Issue(s): (1) Whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Exercise Clause and Establishment Clause; and (2) whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Speech Clause.

(relisted after the February 20 Conference)

14-361

Issue(s): Whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.

(relisted after the February 20 Conference)

14-392

Issue(s): Whether the judgment below should be vacated and the case remanded for further consideration in light of Burwell v. Hobby Lobby Stores, Inc. and Wheaton Coll. v. Burwell.

(rescheduled for the February 27 Conference)

14-434

Issue(s): (1) Whether petitioners’ First Amendment challenge seeking an exemption from California's campaign-finance disclosure requirements is moot regarding (a) expunging past records, or (b) preventing further release of those records where the “court can fashion some form of meaningful relief” by (a) “ordering the Government to destroy or return any and all copies it may have in its possession,” Church of Scientology of California v. United States, or (b) “preventing further [government] disclosure,” United States v. Sells Engineering; (2) whether, if moot, the exemption challenge is “within the . . . exception for cases capable of repetition, yet evading review,” Federal Election Commission v. Wisconsin Right to Life; (3) whether the exemption challenge is ripe regarding future disclosure; and (4) whether petitioners are entitled to an exemption from challenged disclosure provisions.

(rescheduled for the February 27 Conference)

14-450

Issue(s): Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances; and whether the trial court's decision not to sever the sentencing phase of the co-defendant brothers’ trial here – a decision that comports with the traditional approach preferring joinder in circumstances like this – violated an Eighth Amendment right to an “individualized sentencing” determination and was not harmless in any event.

and

(rescheduled for the March 20 Conference)

14-452

Issue(s): Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances.

(relisted after the January 23 and February 20 Conferences)

14-520

Issue(s): (1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.

(relisted after the February 20 Conference)

14-577

Issue(s): (1) Whether the standing requirements of Article III apply to all members of a class certified under Federal Rule of Civil Procedure 23; and (2) whether certifying a class under Rule 23(b)(3) is improper where individualized damages issues predominate, and where plaintiffs rely exclusively on aggregate damages models that calculate damages purportedly incurred by the class as a whole, rather than by individual class members.

(rescheduled for the February 27 Conference)

(relisted after the January 23 and February 20 Conferences)

14-6810

Issue(s): (1) Whether a jury view is evidentiary, and thus a critical stage of a criminal prosecution, requiring the presence of the defendant, and the assistance of counsel, under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, a question as to which state courts of last resort, as well as the federal circuits, are in conflict; and (2) whether, when a trial court’s erroneous evidentiary rulings result in the complete exclusion of the accused’s defense, the error can ever be declared harmless; or, in the alternative, whether the error in this case required reversal, alone or in combination with the trial court’s erroneous refusal to sever the petitioner’s trial from that of his co-defendant.

(rescheduled for the March 20 Conference)

14-7426

Issue(s): Whether evolving standards of decency under the Eighth and Fourteenth Amendments are implicated by confining an individual under the threat of death for over three decades.

(relisted after the February 20 Conference)

(relisted after the February 20 Conference)

14-7656

Issue(s): Whether Due Process requires that state procedural law, which is designed to ensure that jurors properly weigh aggravating and mitigating circumstances, be followed in capital cases.

(relisted after the February 20 Conference)

(rescheduled for still-unspecified Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Feb. 27, 2015, 9:15 AM), http://www.scotusblog.com/2015/02/relist-watch-54/