John Elwood reviews Tuesday’s relisted cases.

Six years we have written Relist Watch. And six years we have awoken early on an appointed October morn, brewed a pot of coffee, and waited by the phone for a pre-dawn call that always rings elsewhere. This year some fool from Minnesota got it instead. What’s he ever done? Someone must have been telling lies about John E., because after all these years of toil crafting work of singular originality, still I am an invisible man. No matter: We at Relist Watch are nothing if not magnanimous in overlooking the Swedish Academy’s annual mistake. Wait and hope.

This Tuesday saw the court grant cert in five cases (yielding three arguments after consolidation). Only one of them was a former relist – a reversal of fortune which we admit (in keeping with our aforementioned magnanimity) does detract a bit from the power and the glory of our relist-before-grant theory. However, the government, an influential and trusted litigant, asked for the grant in Ashcroft v. Turkmen, 15-1359, and its fellow travelers, Ziglar v. Turkmen, 15-1358, and Hasty v. Turkmen, 15-1363; and in Midland Funding, LLC v. Johnson, 16-348, the respondent, Aleida Johnson, agreed that the court should review the case. As for the third grant, Hernández v. Mesa, 15-118 (which we may or may not have predicted), that case has been relisted and rescheduled more times than we care to count. And it’s worth noting that this week’s cert grants were issued on Tuesday afternoon, in an order list separate from the morning’s denials. While it’s possible the court waited to protect the winners from being defiled by proximity to losers (who, at best, will be later to win), a more likely explanation for the delay is that the court needed time to do a modest amount of due diligence regarding vehicle issues and other lurking dangers.

Resolved relists

It is a truth universally acknowledged, that a single lawyer in possession of a good fortune must be in want of a life. Since we last checked in with the culture of minutiae-devouring prokaryotes (hereinafter “our readership”), the court has shed much of its relist weight. This is the saddest story I have ever heard. Of last week’s 16 relists, the court dumped nearly half, including United States Forest Service v. Cottonwod Environmental Law Center, 15-1387, in which the plucky Cottonwood Environmental Law Center (official motto: Hosin’ ‘em in Bozeman) and its formidable friends deep-sixed Uncle Sam’s attempt to seek cert on (among other things) whether Cottonwood had standing to challenge the Forest Service’s actions in designating an endangered lynx’s critical habitat. Among the other relists dragging down the grant averages this week were Rosillo v. Holten, 15-1530 (concerning deficient notices of appeal); The Gillette Co. v. California Franchise Tax Board, 15-1442 (addressing the Multistate Tax Compact); Haugen v. United States, 15-1294 (concerning jury instructions for conspiracy to distribute controlled substance analogues); West Virginia Dep’t of Heath and Human Resources v. E.H., 15-1142 (challenging a West Virginia state law requiring the disclosure of patient records without patient authorization); and MCM Portfolio LLC v. Hewlett-Packard Co., 15-1130, and Cooper v. Lee, 15-955 (involving patent owners who questioned the constitutionality of administrative inter partes patent review). [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the petitioner in MCM.] If this has all been too negative, look at a cat GIF.

As for the lone bit of good news: However long you may live, I never can wish you a greater happiness than this. One-time relist Bosse v. Oklahoma, 15-9173, won a per curiam reversal, in which the court held that the Oklahoma Supreme Court was wrong to declare that Payne v. Tennessee — concerning the constitutionality of victim impact statements — implicitly overruled Booth v. Maryland. “It is this Court’s prerogative alone to overrule one of its precedents,” the court intoned. Justices Clarence Thomas and Samuel Alito wrote separately to note their understanding that in “vacating the decision below, the Court says nothing about whether Booth was correctly decided or whether Payne swept away its analytical foundations.”

New relists

Tuesday’s short order list made for a refreshingly light workweek for your Relist Watch minions. Gilliam v. Nebraska, 15-1384, was the lone new relist; and at a compact seven and one-half pages, the Gilliam petition doesn’t waste words. After receiving an early morning report that a Dodge Ram was parked partially in the street and partially on the curb, the Lincoln police, in an effort to protect the public from this clear and present danger, dispatched an officer from its elite rude-noteleaving unit. After scouring both of Lincoln’s streets, the officer eventually found the offending Ram parked legally on positively 4th Street, with the driver inside talking on his cell phone. The officer, seeking to avoid needless confrontation, then “activate[d] [his] cruiser’s emergency lights while positioned directly behind the parked vehicle, approache[d] the vehicle, knock[ed] on the window of the vehicle, and direct[ed] the occupant to roll down the window.” Readers of casebooks know that if we’re reading about it, there are only two ways a situation like this can end: a furtive movement or a suspicious smell, and here the officer “detected an odor of alcohol.” The petitioner, Jeffrey Gilliam, was booked for driving under the influence (his third such offense). And although he moved to suppress all evidence on the ground that the interaction was a police seizure unsupported by reasonable suspicion, the Nebraska trial and appellate courts concluded that he had not been seized. Alleging that the issue has divided courts nationwide, the question presented in this case (as slightly reformulated in the 11-and-a-half page reply brief) asks whether, for purposes of the Fourth Amendment, “a reasonable person behind the wheel of a parked car [would] feel free to drive away when a police offer pulls up behind him, illuminates the cruiser’s flashing overhead lights, and approaches the driver (with uniform, badge, and all).”

Returning relists

For the week’s returning relists, we proudly offer Relist Watch Select (now with grudging legroom!):

15-7848

Issue(s): (1) Whether capital defense counsel may decide to present evidence of a single mitigating factor without having first conducted a thorough investigation of other potential mitigating factors and whether counsel's post-hoc concern about possible rebuttal evidence justifies the failure to investigate; and (2) whether, where a state court provides a reasoned decision denying relief, 18 U.S.C. Section 2254(d) permits a federal court to ignore the reasoning of the state court and substitute its own reasons for denying relief and whether the violent nature of the crime lessens the prejudice from unconstitutional shackling.

(relisted after the May 26, June 2, June 9, June 16, June 23, June 27, September 26, and October 7 conferences). Can I get an opinion?

 

15-1194
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner at the cert stage in this case.

Issue(s): Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

(relisted after the September 26 and October 7 conferences)

 

16-5247

Issue(s): Whether a state court violates a petitioner's federal due process rights when it denies a new trial and DNA testing in an actual innocence case in which newly discovered evidence demonstrates that the only physical evidence linking the petitioner to the crime scene was based upon inaccurate forensic science and false expert testimony.

(relisted after the September 26 and October 7 conferences)

 

15-8842

Issue(s): (1) Whether a sentencing judge's exercise of discretion not to impose a death sentence is the functional equivalent of the findings required under Montgomery v. Louisiana to impose a sentence of life without parole on a juvenile offender; and (2) if not, whether the court should vacate the decision of the Arizona Court of Appeals and remand for further consideration in light of Montgomery.

Together with related cases Tatum v. Arizona, 15-8850; Najar v. Arizona, 15-8878; Arias v. Arizona, 15-9044; and DeShaw v. Arizona, 15-9057 (relisted after the September 26 and October 7 conferences)

 

Per usual, we’ve got a couple of rescheduled cases; and per usual, we’ll wait until those cases either wither on the vine or blossom into full blown relists before we waste any of your precious time. The clocks are striking thirteen. Time to wrap this up.

Thanks to Bryan U. Gividen and Conor McEvily for compiling and drafting this update.

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Oct. 14, 2016, 10:43 AM), http://www.scotusblog.com/2016/10/relist-watch-89/