John Elwood reviews Monday’s relisted cases.
It’s the Friday before Memorial Day, which means if you’re reading skimming this post, you’re probably experiencing an interminable wait in an airport security line, wearing a neck pillow, and actively loathing the family of four ahead of you. If you’re looking for another outlet for your misanthropy, you’ve come to the right place. The Elite Eight added a fab five new relists to this week’s tally, meaning you’ve got a lot of absent-minded scrolling ahead of you as you inch your way to the body scanners. Take solace in the fact that you’ll get to your destination . . . eventually. (I say having reached my Final Destination for the weekend.)
The Court did a bit of spring cleaning on Monday, granting, vacating, and remanding a bevy of ten-time relists in light of Montgomery v. Louisiana — the case which declared that Miller v. Alabama (prohibiting mandatory life-without-the-possibility-of-parole sentences for juveniles) applied retroactively. There were eight petitions (two by the same guy), but Adams v. Alabama, 15-6289, won the honor of being the vehicle for the Justices’ long-anticipated opinions on this gaggle of cases. Justices Thomas, Alito, and Sotomayor each wrote separately, concurring in the decision to GVR the cases, but making different points about the implications of the Court’s action. Justice Thomas (joined by Justice Alito) emphasized that the Court’s disposition of the petitions did not “reflect any view regarding petitioner[s’] entitlement to relief.” Justice Alito (joined by Justice Thomas) observed that several of the defendants were originally sentenced to death, and suggested that the death-sentencing juries may have already engaged in the “individualized sentencing procedure that considers [the defendants’] youth and immaturity” required by Miller. And Justice Sotomayor (joined by Justice Ginsburg) challenged Justice Alito’s suggestion, remarking that “[t]here is no indication that, when the factfinders in these cases considered petitioners’ youth, they even asked the question Miller required them.” That’s a lot of disagreement for people who agree on the disposition of a case.
The rest of last week’s fare is back on the menu – but don’t worry, I hear they’re better as leftovers. Johnson v. Lee, 15-789, fourth relist, is a state-on-top habeas case hailing from the Ninth Circuit. It asks whether a California rule, precluding review of claims omitted on direct appeal, is an adequate and independent state-law ground that precludes habeas review. Also on its fourth go ‘round is Moore v. Texas, 15-797, a state-on-bottom capital case with roots in Houston. Seeking to overturn a Texas Court of Criminal Appeals decision, which itself overturned a determination that Moore was intellectually disabled (and thus could not be executed), Moore’s petition argues that (1) the Texas court’s decision violates the Eighth Amendment because it’s based on an outdated intellectual-disability standard, and (2) executing him after more than three decades on death row would be cruel and unusual. Sounds familiar.
Staying with the topic of capital cases, let’s briefly discuss Lynch v. Arizona, 15-8366, on its third relist, and Johnson v. Carpenter, 15-1193, on its second. In Lynch, in which the petitioner was sentenced to death in Arizona, the petition asks (1) whether, after the prosecution struck two minority jurors, the trial court adequately investigated racial discrimination under Batson v. Kentucky; (2) whether the trial court violated Simmons v. South Carolina by refusing to instruct the jury that the only alternative to the death penalty is life without parole; and (3) whether Lynch’s due process right to a fair trial was violated by allowing a prosecutor with a history of misconduct to make a number of improper comments at trial. In Johnson, in which the petitioner was sentenced to death in Tennessee, the petition asks whether a court must categorically deny a Rule 60(b)(6) motion based on Martinez v. Ryan, which allowed certain petitioners who claimed ineffective assistance to excuse procedural defaults. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]
Let’s lower the temperature by moving on to a subject that’s a little less controversial: abortion. Stormans, Inc. v. Wiesman, 15-862, notched its second relist this week. That case involves a Washington state regulation that requires pharmacies to dispense lawfully prescribed drugs or devices to patients, but makes certain non-religious exceptions (for example, where filling a prescription would threaten patient safety or where a patient is unable to pay). The petitioners, who operate pharmacies, hold religious beliefs that forbid them from dispensing abortifacients. On cert., they argue that the lack of a religious-belief exception violates the Free Exercise Clause.
Rounding out this week’s old business is Hawkins v. Community Bank of Raymore, 14-520. Hawkins, as you may recall, was granted last Term, briefed, argued, and then went on to fulfill its destiny as the first case affirmed by an equally divided Court after Justice Scalia’s death. The petitioners sought rehearing, and their petition has now been relisted twice. Hawkins is remarkably divisive given the dullness of its subject matter, which involves gripping questions about whether spousal guarantors are categorically excluded under the Equal Credit Opportunity Act from being “applicants” for credit and whether the Federal Reserve Board has authority by regulation to classify such guarantors as “applicants” to eliminate discrimination against married women. Friedrichs v. California Teachers Association, 14-915, was just as divisive, but way less dull. Friedrichs, the blockbuster First Amendment union-dues case, was also affirmed by an equally divided Court. The petition for rehearing in this case has now been rescheduled a fourth time. Rescheduled cases have a far worse grant rate than relists, but this rehearing petition clearly has the Justices’ attention. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in Friedrichs.]
Let’s move on to the new stuff, shall we?
Our first new relist is a big hairy deal to the False Claims Act (“FCA”) bar. State Farm Fire and Casualty Co. v. United States ex rel Rigsby, 15-513, has its origins in Hurricane Katrina. The respondents, former independent claim adjusters, brought a qui tam suit under the FCA alleging that, in the wake of the hurricane (we slay ourselves with our meteorological puns), State Farm misadjusted federal flood claims by attributing wind damage (which State Farm would cover) to flood damage (which would be covered by flood policies issued under the federal government’s National Flood Insurance Program). Although FCA claims must be filed “in camera” and remain under seal for sixty days, State Farm alleges that the claim adjusters’ attorneys violated the seal to “fuel a media campaign designed to demonize and put pressure on State Farm to settle.” State Farm moved to dismiss because of the alleged sealing violation and because the claims adjusters’ allegations that State Farm satisfied the requisite scienter standard (“actual knowledge”/”deliberate ignorance”/”reckless disregard” of the truth or falsity of information) relied on a “collective knowledge” theory. The district court denied relief, and the Fifth Circuit affirmed. On cert., State Farm presents two questions that have divided the circuits: (1) “[w]hat standard governs the decision whether to dismiss a relator’s claim for violation of the FCA’s seal requirement”; and (2) “[w]hether and under what standard a corporation” “may be deemed to have ‘knowingly’ presented a false claim” in violation of the FCA “based on the purported collective or imputed ill intent of employees other than the employee who made the decision to present the [false claim].” In an amicus brief filed at the Court’s invitation, the Solicitor General recommended that cert. be denied. We’ll find out soon what the Court thinks of that recommendation.
After the petitioner in Buck v. Stephens, 15-8049, was charged with capital murder in connection with two shooting deaths in Texas, his trial counsel retained a “defense expert” to assess the likelihood that Buck would commit criminal acts in the future—one of the issues that a Texas jury must consider before imposing a death sentence. The “expert” testified that Buck was more likely to be dangerous in the future because he was Black. Buck was convicted and sentenced to death. Four years later, after the denial of Buck’s state habeas petition, the Texas attorney general conceded that race-based testimony by the same the same defense “expert” in another case was unconstitutional, and declared that Texas would not object if certain defendants in cases in which this expert testified (including Buck) sought to overturn their death sentences. After a second state habeas application proved unsuccessful, Buck filed for federal habeas relief, only to discover that Texas had had a change of heart and now opposed overturning his death penalty. The federal district court denied relief, the Fifth Circuit affirmed, and, after another unsuccessful state habeas application, Buck again sought federal relief, now seeking to reopen the final judgment under Rule 60(b)(6) on the basis of “extraordinary circumstances.” The district court denied relief, and the Fifth Circuit refused to issue a certificate of appealability (“COA”). On cert., Buck asks whether the Fifth Circuit imposed an “improper and unduly burdensome [COA] standard . . . when it denied [him] a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for presenting [the] ‘expert’” who offered race-based testimony. Earlier iterations of this case have already drawn opinions respecting the denial of cert. that were joined by five Justices; more opinions may be in the offing.
Tucker v. Louisiana, 15-946, is another capital case, albeit one with a simpler posture than Buck. In September 2008, petitioner Tucker was arrested and charged with the murder of Tavia Sills, a pregnant eighteen-year-old with whom he had a brief relationship. Although the population of the Louisiana parish where Tucker was tried was half African American, his jurors (and alternates) consisted of twelve whites and two African-Americans. His trial counsel called no witnesses, put on no evidence, and presented a five-sentence closing argument. Tucker presents two questions, the first of which is about as fundamental a question as one can ask in a capital case: (1) “whether at this point in our national history the imposition of the death penalty for a homicide offense [is] excessive and unnecessary,” so that imposing the death penalty for a homicide is “cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments”; and (2) whether Louisiana’s failure to require the jury to find beyond a reasonable doubt that death is the appropriate punishment violates the Sixth, Eighth, and Fourteenth Amendments.
Walker v. United States, 15-1027, seeks to shed light on a question left open by the Court in 1994’s Beecham v. United States: whether and how a felon can have his civil rights restored under federal law. Petitioner Walker, who in 1987 was convicted of non-violent offenses, thereby lost a number of rights and privileges granted under state and federal law. Over twenty years later, a Tennessee state court entered an order restoring full civil rights to Walker under state law, including his right to bear firearms. Walker then filed a federal suit seeking a declaration that his federal civil rights had been restored by operation of law. The district court denied him relief and the Sixth Circuit affirmed. On cert., Walker contends that, by operation of federal law, the state court proceeding had the effect of restoring his federal rights.
Our fifth and final new relist, Endrew F. v. Douglas County School District, 15-827, involves the Individuals with Disabilities Education Act (felicitously acronymed “IDEA”), which requires public schools to provide disabled children a “free appropriate public education” (infelicitously acronymed “FAPE”). The key mechanism by which schools meet this requirement is the individualized education program (IEP). Under IDEA, parents and school educators collaborate to create annual IEPs that are “tailored to the unique needs” of a child with a disability. When parents place their child in a private school at their own expense, IDEA entitles them to tuition reimbursement if the school district has failed to provide a FAPE and the private school provides the child with an education commensurate with IDEA’s standards. The petitioner, an autistic child, attended public school in Colorado. But after he began experiencing behavioral problems and failed to make academic progress, his parents withdrew him from the school, placed him in a private institution, and sought tuition reimbursement, arguing that the child’s IEP denied him a FAPE. An administrator denied the parents’ tuition request, and a subsequent suit in federal court proved unsuccessful. On appeal, the Tenth Circuit affirmed the district court’s judgment and held that an IEP must be reasonably calculated to guarantee just “some” educational benefit, i.e., “more than de minimis.” Emphasizing that courts of appeal are in disarray on the topic, the petitioners ask “[w]hat is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by [IDEA]?”
We ordinarily use this penultimate paragraph to say a word or two about rescheduled cases, but since we took care of that with our discussion of Friedrichs above, that means this is actually the last paragraph of this interminable blog post. It also means that, once again, we’ve failed to use the word “penultimate” correctly.
Thanks to Bryan U. Gividen and Conor McEvily for compiling and drafting this update.
Issue(s): (1) Whether, for federal habeas purposes, California’s procedural rule generally barring review of claims that were available but not raised on direct appeal is an “adequate” state-law ground for rejection of a claim; and (2) whether, when a federal habeas petitioner argues that a state procedural default is not an “adequate” state-law ground for rejection of a claim, the burden of persuasion as to adequacy rests on the habeas petitioner (as in the Fifth Circuit) or on the state (as in the Ninth and Tenth Circuits).
Issue(s): Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
Issue(s): (1) What is the proper appellate procedure to address a trial court's failure to conduct the third Batson v. Kentucky step; (2) whether the Arizona Supreme Court, where it has continuously refused Simmons v. South Carolina instructions by relying upon the availability of commutation, has decided this question in a manner that conflicts with Simmons; and (3) whether a defendant's Due Process right to a fair trial is secure when a prosecutor with a history of misconduct commits misconduct on several occasions through the defendant's trial.
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.
Issue(s): Whether a law prohibiting religiously motivated conduct violates the Free Exercise Clause when it exempts the same conduct when done for a host of secular reasons, has been enforced only against religious conduct, and has a history showing an intent to target religion.
Issue(s): (1) Whether a court must categorically deny a Federal Rule of Civil Procedure 60(b)(6) motion premised on the change in decisional law produced by Martinez v. Ryan; and (2) whether the Sixth Circuit's decision to deny even a certificate of appealability in this case should be summarily reversed.
Issue(s): What standard governs the decision whether to dismiss a relator's claim for violation of the False Claims Act's seal requirement.
Issue(s): What is the level of educational benefit that school districts must confer on children with disabilities to provide them with the free appropriate public education guaranteed by the Individuals with Disabilities Education Act. CVSG: 08/18/2016.
Issue(s): (1) Whether imposition of the death penalty upon a person convicted of murder constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments; and (2) whether Louisiana's failure to require the jury to find beyond a reasonable doubt that death is the appropriate punishment violates the Sixth, Eighth, and Fourteenth Amendments.
Issue(s): Whether one who regains his or her federal civil rights by operation of federal law has had his civil rights “restored” within the meaning of 18 U.S.C. § 921(a)(20), which bars anyone who has been convicted of a felony from possessing a firearm, but further provides that “[a]ny conviction . . . for which a person . . . has had civil rights restored shall not be considered a conviction,” and therefore may exercise the fundamental constitutional right guaranteed by the Second Amendment.
Issue(s): Whether the Fifth Circuit imposed an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied petitioner a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that petitioner was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing.