John Elwood (finally) reviews Monday’s relists.

Since the Supreme Court’s last conference, we’ve crossed an important inflection point in American civic life. It began of course with Thanksgiving, the only major holiday not yet spoiled by commercialism, when we come together to commemorate an important event in early American history – the time when Native Americans taught the pilgrims how to make jello molds with little marshmallows. That sacrosanct gathering yields almost immediately to Thanksgetting – when U.S. residents are legally required to line up bleary-eyed at strip malls in a frenzied quest for discounts so deep they nearly equal the value of the unused gift-cards from last Christmas sitting in their sock drawers.

But enough about America’s second most gluttonous holiday – we know our distinguished readership is concerned about more elevated subjects. The court has heard our lamentations about the lack of new relists last time around, and in the spirit of Thanksgetting, it has added nine new cases to the ranks of relists. (Before you get excited, three of them raise the same question presented.) We’re not able to discuss them all, but we have a few minutes in our busy schedules to survey some of the contenders. And fear not, we cover everything in Relist Watch Select™, aka “the Trash Below the Hash.”

Our first featured relist involves the U.S. Court of Appeals for the 9th Circuit’s so-called “provocation doctrine.” County of Los Angeles v. Mendez, 16-369, involves that court’s exception to the “excessive force standard” the Supreme Court articulated for law-enforcement officers in Graham v. Con[n]or. Under provocation doctrine, “[w]here an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.” The petitioners in Mendez, two Los Angeles County deputies, were pursuing an armed-and-dangerous parolee-at-large when, without knocking and announcing their presence, they opened the door to respondents’ shack, saw the silhouette of a man holding what appeared to be a rifle (but which was actually a BB gun), and (as the petition put it, in a masterwork of syntactic absolution) “fired their guns in the direction of [respondents],” after which “[g]unshots injured [them].” Both the district court and the 9th Circuit concluded that the deputies could be held liable under the provocation doctrine. On cert, the deputies ask (among other things): “whether the Ninth Circuit’s ‘provocation’ rule should be barred as it conflicts with Graham v. Connor regarding the manner in which a claim should be determined in an action brought under 42 U.S.C. §1983 for violation of a plaintiff’s Fourth Amendment rights.”

Our next featured relist wins this term’s Schmuck v. United States silly-case-name award. The petitioner in Water Splash, Inc. v. Menon, 16-254, makes “splash pads” – not what it sounds like, but then again, probably not that far off. After a former employee allegedly used the petitioning company’s designs to submit splash-pad bids for two city parks, the company filed suit in Texas court, alleging unfair competition and tortious interference. Because the former employee was Canadian, the trial court authorized several methods for serving process, including certified mail, which the company ultimately accomplished. After a default judgment was entered, the former employee successfully moved for a new trial, arguing that service of process had been inconsistent with the Hague Service Convention. That treaty (to which both the U.S. and Canada are signatories) enables service of process from one member state to another without the use of consular or diplomatic channels. However, as both the company and the former employee admit, state and federal courts have split on the issue raised in Water Splash’s cert petition: “[whether] the Hague Service Convention authorize[s] service of process by mail.” Although service of process is an issue that is close to my heart, this seems like a good juncture at which to remind you that you’re reading this post voluntarily.

The next two cases involve depressing facts – dividing military disability pay in a divorce – but at least the legal issue is tedious. In many cases, disabled veterans are eligible for disability pay or retirement pay, but not both; thus, when a veteran elects to take disability pay, he must waive a portion of his retirement pay. As construed by the Supreme Court in Mansell v. Mansell, the Uniformed Service Former Spouses’ Protection Act permits retirement pay, but not disability pay, to be divided in a veteran’s divorce proceedings. However, in relists Merrill v. Merrill, 15-1139, and Howell v. Howell, 15-1031, the Arizona Supreme Court held that a veteran may be required to indemnify his/her former spouse for any decrease in that spouse’s portion of retirement pay if, after the divorce, the veteran elects to waive retirement pay in favor of disability benefits. As phrased by the veteran in Merrill, these cases ask whether “the Arizona Supreme Court err[ed] in circumventing Mansell under the guise that post-divorce waivers of retired pay are different than pre-divorce waivers.” Of encouragement to the veterans in both cases: The court asked for the solicitor general’s views in Howell. And, noting a split among state courts of last resort, Uncle Sam has recommended that John Howell’s cert petition be granted.

We’ve got five more new relists this week — including one, Impression Products, Inc. v. Lexmark International, Inc., 15-1189, which also was the lucky recipient of a grant recommendation from the SG. Impression Products is an important case that concerns the “patent exhaustion” doctrine and seeks review of a 99-page decision by the en banc U.S. Court of Appeals for the Federal Circuit that apparently involved every patent lawyer in the western hemisphere. But since it’s already been discussed by way smarter people, it’s a perfect candidate for (prescription strength) Relist Watch SelectTM, which begins right now.

============================================================

Returning Relists

16-5247

Issue: 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, October 7, October 14, October 28, November 4, November 10 and November 22 conferences; as we said two weeks ago and the week before that, it seems like we should be getting an opinion in this case soon)

 

15-1485

Issues: (1) Whether police officers who found late-night partiers inside a vacant home belonging to someone else had probable cause to arrest the partiers for trespassing under the Fourth Amendment, and in particular whether, when the owner of a vacant home informs police that he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ questionable claims of an innocent mental state; and (2) whether, even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity because the law was not clearly established in this regard.

(relisted after the October 28, November 4, November 10 and November 22 conferences)

 

15-9329

Issues: (1) Whether it is a violation of the Sixth Amendment guarantee of conflict-free counsel for a lawyer who previously prosecuted a defendant to represent that same defendant in a subsequent and related capital trial; and (2) whether a valid waiver of the right to conflict-free counsel can be found when the trial record contains no mention of a conflict or waiver, and the post-conviction record does not address, let alone satisfy, the constitutionally required elements of a valid waiver.

(relisted after the October 28, November 4, November 10 and November 22 conferences)

 

16-67

Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit’s panel opinion improperly denied qualified immunity to the officers by considering the validity of the use of force from the perspective of the suspects rather than from the perspective of a reasonable police officer on the scene; and (2) whether the panel opinion considered clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case.

(relisted after the November 4, November 10 and November 22 conferences)

 

16-5580

Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.

(relisted after the November 4, November 10 and November 22 conferences)

 

New Relists

15-1031

Issue: Whether the Uniformed Services Former Spouses’ Protection Act pre-empts a state court’s order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s portion of the veteran’s military retirement pay, when that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability. CVSG: 10/17/2016.

(relisted after the November 22 conference)

 

15-1139

Issue: Whether the Arizona Supreme Court erred in circumventing Mansell v. Mansell under the guise that post-divorce waivers of retired pay are different from pre-divorce waivers.

(relisted after the November 22 conference)

 

15-1189

Issues: (1) Whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article’s use or resale avoids application of the patent-exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common-law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside the United States exhausts the U.S. patent rights in that article. CVSG: 10/12/2016.

(relisted after the November 22 conference)

 

15-8114

Issues: (1) Whether, when counsel fully concedes the client’s guilt to all charges over the client’s express objection, counsel’s performance amounts to a complete failure to subject the prosecution’s case to meaningful adversarial testing so that the United States v. Cronic prejudice standard applies (as every other state and federal court to consider the question has held), or whether the Strickland v. Washington prejudice standard applies (as the lower court in this case held); (2) whether the petitioner’s 14th Amendment rights under Boykin v. Alabama and Brookhart v. Janis were violated when his counsel entered the “functional equivalent of a guilty plea” to first-degree murder over his objections; (3) whether the petitioner’s Sixth Amendment right to self-representation under Faretta v. California was violated when the trial court did not explain that the petitioner had the right to represent himself when he tried unsuccessfully to fire his attorneys; and (4) whether, in a capital case, the defense counsel who concedes guilt after failing to investigate and present a readily available innocence defense against his client’s express wishes renders ineffective assistance under Strickland.

(relisted after the November 22 conference)

 

16-74

Issue: Whether the Employee Retirement Income Security Act of 1974’s church-plan exemption applies so long as a pension plan is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

(relisted after the November 22 conference)

 

16-86

Issue: Whether the Employee Retirement Income Security Act of 1974’s church-plan exemption applies so long as a pension is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

(relisted after the November 22 conference)

 

16-254

Issue: Whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters authorizes service of process by mail.

(relisted after the November 22 conference)

 

16-258

Issue: Whether the Employee Retirement Income Security Act of 1974’s church-plan exemption applies so long as a pension plan is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

(relisted after the November 22 conference)

 

16-369

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit’s “provocation” rule should be barred as it conflicts with Graham v. Connor regarding the manner in which a claim of excessive force against a police officer should be determined in an action brought under 42 U.S.C. § 1983 for a violation of a plaintiff’s Fourth Amendment rights, and has been rejected by other courts of appeals; (2) whether, if the “provocation” rule is upheld, the qualified-immunity analysis must be tailored to require a reviewing court to determine whether every reasonable officer in the position of the defendant would have known his unlawful conduct would provoke a violent confrontation under the specific facts of the case, as this is the conduct for which the 9th Circuit imposes a constitutional liability despite a reasonable use of force under the Fourth Amendment; and (3) whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.

(relisted after the November 22 conference)

 

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 (Dec. 2, 2016, 11:19 AM), http://www.scotusblog.com/2016/12/relist-watch-93/