John Elwood reviews Monday’s relisted cases.

After a customary mid-March break to allow all sentient life on Earth time to research and complete its brackets (history may view picking Villanova for the championship game as more Millard Fillmore than Abraham Lincoln), the Court is back in session, and so is the Watch.  Let’s take a look at how the unstoppable favorites and plucky underdogs did this week.

We start, as usual, with victors.   DIRECTV v. Imburgia, 14-462, pulled off an upset in double overtime.  After years of talking trash about whether an arbitration agreement requiring application of state law means state law before federal law has preempted provisions inconsistent with the Federal Arbitration Act, or after preemption, the Court will have to put its money where its mouth is.

Meanwhile, the scramble over the ball dropped by Toca v. Louisiana, 14-6381, has finally ended.  Congratulations to those who picked Montgomery v. Louisiana, 14-280, in their pools.  The Court granted cert. in the four-time relist, adding an additional question that may explain the Court’s delay in granting cert.  In addition to the original Toca question — whether Miller v. Alabama applies retroactively on collateral review to juveniles sentenced to life in prison — the Court directed the parties to brief whether it has jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give Miller retroactive effect.  The other Toca contenders met varying fates.  DeMola v. Johnson, 13-10288, was denied outright while the Court appears to be holding runners-up Tolliver v. Louisiana, 14-6673, and the indefinitely rescheduled Davis v. Michigan, 14-8106, for Montgomery.

Three cases will be joining Iowa State and Baylor on early flights home.  Returning relist champion Bower v. Texas, 14-292, was sent packing after six relists.  That case asked (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 (3) whether “executing a defendant who has already served more than 30 years on death row” amounts to cruel and unusual punishment.  Proving our Court predictions to be slightly better than our March Madness predictions (we really thought this was Hampton’s year), Bower got a parting gift from Justices Breyer, Ginsburg, and Sotomayor, who filed a dissent from the denial of cert. that will be studied every bit as carefully as the Belmont team roster.  No such luck for Duran v. United States, 14-6820, which was sent packing in the second round, ending its hopes of a three-peat.  Fans aching for an answer to whether robbing drug dealers satisfies the Hobbs Act’s interstate commerce requirement will just have to wait until next year.  Finally, rescheduled cases continue to perform as well as Texas schools in the NCAA tournament.  Kent Recycling Services, LLC v. United States Army Corps of Engineers, 14-493, becomes the latest rescheduled case to underperform.  Kent’s petition asked questions suggested by Justice Alito’s concurring opinion in Sackett v. EPA: (1) whether a Clean Water Act jurisdictional determination is subject to judicial review under the Administrative Procedure Act; and (2) whether a due process claim against an agency action is subject to the APA’s finality requirement.

The rest of our relists successfully advanced to the next round.  Kansas v. Gleason, 14-452, is our new top seed after picking up its fifth relist.  Like any top team, it has picked up its share of bandwagon-jumpers.  It now finds itself trailed by Kansas v. Carr, 14-449, and Kansas v. [a different] Carr, 14-450, which had been rescheduled but is now newly relisted.  In all three cases, Kansas asks whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances need not be proven beyond a reasonable doubt.  (Both the Carr cases also present Confrontation Clause issues and questions about whether the Carr brothers were entitled to have their sentencing trials severed.)  In an apparent effort to prevail through sheer caption confusion, both Carr brothers filed cross-petitions, which are both newly relisted.  Carr v. Kansas, 14-7327, asks (1) whether the retroactive elimination of felony murder as a lesser-included offense of capital murder violates the Ex Post Facto Clause and the Eighth Amendment, (2) whether the Kansas Supreme Court applied the wrong standard of review in denying his claim regarding a failed motion for change of venue, and (3) whether the Kansas Supreme Court violated this Carr’s due process rights by affirming his convictions even after identifying eight trial errors.  The other Carr also has a cross-petition (and picked up new counsel since our last installment).  Twice-rescheduled (and now relisted) Carr v. Kansas, 14-6810, asks (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; and (2) whether a trial court’s errors can be declared harmless in cases whether they result in the complete exclusion of the accused’s defense.  Whatever happens in this knot of cases, rest assured that Governor Brownback has the t-shirt ready to claim he supported it all along.

Four other relists continue to seek their one shining moment.  Bronx Household of Faith v. Board of Education of the City of New York, 14-354, picked up its fourth relist this week.  New York’s Board of Education has got to be hoping the Court doesn’t do social promotion, because four repeats is usually enough for most people just to give in.  The petition mounts a First Amendment challenge to the Board’s policy excluding groups engaging in religious worship services from using public school buildings after hours.  Woods v. Donald, 14-618, a state-on-top habeas case, picks up its third relist; the Justices will have an opportunity to consider the record materials they requested.  A divided Sixth Circuit affirmed habeas relief for Donald because his attorney was absent for ten minutes while the trial court received evidence about his co-defendants.  The state asks (1) whether the Michigan courts’ decision not to extend United States v. Cronic to cover counsel’s brief absence from trial was an “extreme malfunction” entitling the petitioner to habeas relief; and (2) whether the Michigan courts reasonably determined that Donald had not shown Strickland v. Washington prejudice flowing from his counsel’s brief absence during the taking of evidence that did not inculpate his client.  We’ve saved the two returning sex-offender cases for last.  Nelson v. Wisconsin, 14-555, was required to register for relist number two.  The trial court refused defendant Angelica Nelson’s request to testify at her trial for statutory sexual assault of a child under sixteen because she did not intend to challenge any elements of the offense, and just “want[ed] my side to be heard.”  Nelson’s petition asks whether such a denial is amenable to harmless error analysis.  Grady v. North Carolina, 14-593, also picks up a second relist since the state’s response arrived.  Grady asks whether it was an unconstitutional search for a North Carolina court to order that he be required to wear a GPS monitoring bracelet for the rest of his life based on his status as a recidivist sex offender without a finding that he is a threat to society.

Since we covered most of the new relists in our earlier trek through Kansas, this will be short.  Our last remaining relist is Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 14-723.  Mr. Montanile was injured in a car accident involving a drunk driver (Relist Watch PSA: don’t drink and drive).  His health benefit plan paid his medical expenses.  Montanile then settled with the drunk driver and the plan’s board of trustees demanded that the settlement be used to pay the plan back.  Montanile said the funds had already been dissipated.  Settlement discussions between the parties yielded no result, and the board later sued.  The petition concerns ERISA Section 502(a)(3), 29 U.S.C. § 1132(a)(3), which permits plan fiduciaries to obtain equitable relief.  In reviewing Montanile’s case, the Eleventh Circuit sided with five other circuits in holding that plan fiduciaries seek equitable relief even when the funds they seek are no longer in the defendant’s possession and control.  Two other circuits have held that once there is no longer an identifiable fund, the relief sought is no longer equitable and therefore the fiduciary cannot recover.  If all this sounds familiar, you are an ERISA lawyer, need a new hobby, or simply recall that this was the same issue raised last Term in Thurber v. Aetna Life Insurance Company, 13-130.  In that case, the Court called for the views of the Solicitor General, who sided with the two circuits in the minority but recommended denial due to vehicle issues.  The Court followed the SG’s advice last year but Montanile asserts that his petition does not have the same problems.  This is the rare case in which respondent joins the petitioner arguing cert. is warranted; tune in Monday to see if they get their wish.  This seems like a dull issue whose time has come.

With the Court’s Top Ten squared away, we return you to the Sweet Sixteen.  Enjoy another fun weekend of college basketball (and don’t forget about hockey!).  We’ll be back next week to talk winners and losers.

Thanks to our own champions, Conor McEvily and Dmitry Slavin, for compiling and drafting this update.

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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, February 20, February 27, March 6, and March 20 Conferences)

 

(relisted after the March 20 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.

(relisted after the March 20 Conference)

 

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.

(relisted after the March 20 Conference)

 

14-7327

Issue(s): (1) Whether the retroactive elimination of felony murder as a lesser included offense of capital murder violates the Ex Post Facto Clause and the Eighth Amendment; (2) whether the Kansas Supreme Court applied the wrong standard of review in denying petitioner's claim that the trial court erred by denying his motion for change of venue; and (3) whether the Kansas Supreme Court violated the petitioner's right to due process under the Fifth and Fourteenth Amendments by identifying eight separate and distinct trial errors yet still affirming his convictions.

(relisted after the March 20 Conference)

 

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, February 27, March 6, and March 20 Conferences)

 

14-618

Issue(s): (1) Whether the Michigan courts' decision not to extend United States v. Cronic to cover counsel's brief absence from trial was an “extreme malfunction” entitling the petitioner to habeas relief; and (2) whether the Michigan courts reasonably determined that Donald had not shown Strickland v. Washington prejudice flowing from his counsel's brief absence in a multi-defendant case during the taking of evidence that did not inculpate his client.

(relisted after the February 27, March 6, and March 20 Conferences)

 

14-555

Issue(s): Whether a trial court's complete denial of a criminal defendant's constitutional right to testify is amenable to harmless-error analysis.

(relisted after the March 6 and March 20 Conferences)

 

14-593

Issue(s): Whether the state of North Carolina performs an unconstitutional search when it requires a citizen to wear a GPS monitoring ankle bracelet for the rest of his life based only on the citizen's status as a recidivist sex offender and where there is no finding that he is a threat to society.

(relisted after the March 6 and March 20 Conferences)

 

14-723

Issue(s): Whether, under the Employee Retirement and Income Security Act of 1974 (ERISA), a lawsuit by an ERISA fiduciary against a participant to recover an alleged overpayment by the plan seeks “equitable relief” within the meaning of ERISA Section 502(a)(3), 29 U.S.C. § 1132(a)(3), if the fiduciary has not identified a particular fund that is in the participant's possession and control at the time the fiduciary asserts its claim.

(relisted after the March 20 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 27, 2015, 12:55 PM), http://www.scotusblog.com/2015/03/relist-watch-57/