John Elwood reviews Monday’s relists.

After we trumpeted that last week’s conference presented the newly installed Justice Neil Gorsuch with his first opportunity to show off his new door-opening and note-taking skills, the court announced that Gorsuch would instead be sitting out the conference so that, in light of the unusually short on-ramp before the April argument session, he could focus the brief time available preparing for oral arguments. Rumors flew that Gorsuch had spent the whole time with celebrity trainers, crashing on PX90 wrist workouts to ready himself for the fateful day when his colleagues would parade their extended families past the conference-room door at 3o-second intervals to test how long the famously affable Coloradan could remain famously affable. Gorsuch’s absence was reflected on the resulting order list, which contained a single, asterisked footnote on the first page confirming that the new guy “took no part” in considering any of the matters on the list.

So this week’s conference will be the first for Gorsuch. That fact is reflected in this week’s unusually long roll of relists, which are plentiful enough that it appears that the court may have simply rolled over the entire “discuss list” from last week’s conference. Three of last week’s relists return again, including the closely watched six-time relist and potential blockbuster Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, involving a cake decorator who refused on religious grounds to make a cake for a same-sex wedding. In addition to the repeat offenders, the court relisted a whopping 14 new cases. The new relists can be sorted into three main groups — plus one election-law case.

Where to begin?

State tax retroactivity. In the “dull but important” category we have a big knot of state tax cases out of Michigan presenting questions about retroactive changes to tax laws and the Multistate Tax Compact. As framed by one of the lead cases in this group, Goodyear Tire & Rubber Co. v. Michigan Department of Treasury, 16-699, these cases address (1) whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause. Other new relists cases raising closely related issues include: Sonoco Products Co. v. Michigan Department of Treasury, 16-687, Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury, 16-688, Gillette Commercial Operations North America & Subsidiaries v. Michigan Department of Treasury, 16-697, International Business Machines Corp. v. Michigan Department of Treasury, 16-698, and DIRECTV Group Holdings, LLC v. Michigan Department of Treasury, 16-736. In addition, Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308, presents just the retroactivity issue. Word to the wise: Gillette and DIRECTV are framed as “hold” petitions that advocate a grant in Goodyear, but if the court decides to take these issues, it can choose among them for a preferred vehicle. At least the petitioners in this group will have no problem convincing the court that the issue will affect a lot of cases.

Bankruptcy and pre-emption. There is a smaller group of cases that present a very different issue of interest to the business community. Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317, asks whether the U.S. Court of Appeals for the 2nd Circuit correctly held — allegedly contrary to several other courts of appeals — that the presumption against federal pre-emption of state law does not apply in the bankruptcy context.  The case also presents a second question involving whether the 2nd Circuit correctly held — consistent with decisions of the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but allegedly contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits—that a fraudulent transfer is exempt from avoidance under the Bankruptcy Code when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead a Bankruptcy Code safe harbor applies only when the financial institution has its own beneficial interest in the transferred property. Third, the petition asks whether bankruptcy law’s pre-emptive effect extends beyond its text and impliedly pre-empts fraudulent-transfer actions brought by private parties. Merit Management Group, LP v. FTI Consulting, Inc., 16-784, appears to ask Deutsche Bank’s second question and alleges the same split. Both these cases were repeatedly rescheduled before their first relist (seven times and five times respectively, along with a much-rescheduled (eight times) fellow traveler that presented similar issues: Whyte, as Trustee of the SemGroup Litigation Trust v. Barclays Bank PLC, et al., 16-239. But Deutsche Bank and Merit Management made the jump to relists while Whyte has once again been rescheduled, although it remains on track for the same conference as the others. If you have a theory, I’m all ears. I presume at a minimum it means the court views the first two cases and not Whyte as the more serious grant candidates on these issues.

Search warrants for cellphone data? Our third group of relisted cases concerns one of the hottest of hot-button criminal law issues now: whether investigators need to obtain a search warrant for historical cell-phone data such as location data (which is extremely useful for placing suspects at the scene of a crime). The question is whether people have an expectation of privacy in such data even though third parties (that is, phone companies) have access to it. Most courts have held that, just as with the telephone numbers that we expose to telephone companies and thus have minimal privacy interests in, phone users have no expectation of privacy in this kind of cell data, so the government can require telephone companies to turn it over without first getting a search warrant. A panel of the U.S. Court of Appeals for the 4th Circuit held in one of these cases, Graham v. United States, 16-6308, that a search warrant was required, but the en banc court then reversed and adopted a position that no warrant was necessary. And although the 3d Circuit speculated that there might be Fourth Amendment protection for cell-site records, it ultimately ruled that a magistrate judge could permit collection with less than probable cause.  There does not appear to be a split on the issue, which makes the court’s decision to relist interesting – perhaps one of the justices is making a case for taking the issue in the absence of a split because it is recurring and important. In addition to Graham (which also presents a second question about the good-faith exception to the warrant requirement), the other cases that present the issue are Carpenter v. United States, 16-402, and (apparently) Jordan v. United States, 16-6694 (sorry, the lawyer is unable to provide us the papers, so I’m a bit fuzzy on the details). Caira v. United States, 16-6761, involves a similar issue involving an IP address.

And the rest.  That brings us to the last of this week’s new relists, which is certainly not the least. North Carolina v. North Carolina State Conference of the NAACP, 16-833, involves a package of voting procedure changes enacted in North Carolina, including an ID requirement, a reduction in days of early voting, and eliminating out-of-precinct voting and election-day registration. The district court held that the changes neither had a discriminatory motivation or a discriminatory effect, but the U.S.. Court of Appeals for the 4th Circuit reversed. It left undisturbed the district court’s conclusion that the challenged provisions had no discriminatory impact, but rejected as “clearly erroneous” the district court’s factual conclusion that the legislature’s motive was not discriminatory. Having concluded that racial discrimination motivated the North Carolina changes, the 4th Circuit shifted the burden to the state to prove that the law would have been enacted absent that motive. Evidently concluding that test had not been met, it reversed.

You will recall that a few years back in Shelby County v. Holder, the justices invalidated a provision of the Voting Rights Act that required jurisdictions with a history of racial discrimination in voting to obtain preclearance before they would be permitted to change voting procedures. The Shelby County majority reasoned that Congress had not updated the list of jurisdictions in decades despite changed circumstances. North Carolina argues here that the 4th Circuit’s decision is tantamount to nullifying Shelby County and restoring preclearance. The state asks (1) Whether a federal court has the authority to reimpose the same “anti-retrogression” preclearance standard invalidated as to Section 5 by Shelby County; (2) whether the 4th Circuit erred in holding that, although the challenged reforms did not adversely affect minority voting, the North Carolina legislature nonetheless intended to deny African Americans the right to vote; and (3) whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a claim that the state is denying the vote.

It’s hard to say “that’s all” after having run through so many cases. So instead, we’ll just say “so long” until this time next week.

Thanks to Bryan U. Gividen for compiling the cases in this post.

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Returning Relists

Salazar-Limon v. City of Houston, 16-515

Issue: Whether, when a police officer shoots an unarmed person in the back and the person testifies that he was merely walking away when shot, a court may grant summary judgment to the officer in a suit for excessive force by concluding that it is an “undisputed fact” that the person reached for his waistband just because the officer said he did.

(relisted after the February 17, February 24, March 3, March 17, March 24 and March 31 conferences, and after the April 13 conference)

 

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March March 17, March 24 and March 31 conferences, and after the April 13 conference)

 

Needham v. Lewis, 16-881

Issues: 1) Whether, viewing the evidence from the officer’s perspective at the time of the incident as shown in the dashboard video, a reasonable officer could have believed that the decedent posed an imminent threat of serious harm to the officer or others in the vicinity; and (2) whether, at the time of the incident, the law clearly established in a particularized sense, considering the evidence available including the dashboard video, that the use of deadly force was unlawful in this situation.

(relisted after the March 17, March 24 and March 31 conferences, and after the April 13 conference)

  

New Relists

Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308

Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

(relisted after the April 13 conference)

 

Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit correctly held—contrary to several other courts of appeals — that the presumption against federal preemption of state law does not apply in the bankruptcy context; (2) whether the 2nd Circuit correctly held — following the U.S. Courts of Appeals for the 3rd, 6th, and 8th Circuits, but contrary to the U.S. Courts of Appeals for the 7th and 11th Circuits — that a fraudulent transfer is exempt from avoidance under 11 U.S.C. § 546(e) when a financial institution acts as a mere conduit for fraudulently transferred property, or whether instead the safe harbor applies only when the financial institution has its own beneficial interest in the transferred property; and (3) whether the 2nd Circuit correctly held — contrary to this court’s decisions holding that it is for Congress, and not the courts, to balance the multiple purposes of the Bankruptcy Code, and that courts must therefore rely first and foremost on the text of the code—that 11 U.S.C. § 546(e) is properly construed to extend far beyond its text and impliedly pre-empt fraudulent-transfer actions brought by private parties (as opposed to the “trustee” expressly mentioned in the statute).

(relisted after the April 13 conference)

 

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13 conference)

  

Sonoco Products Co. v. Michigan Department of Treasury, 16-687

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states and requires them to allow taxpayers to elect to use the compact’s equally weighted apportionment formula until the state prospectively withdraws from the compact; (2) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the contracts clause; (3) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the due process clause; and (4) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the commerce clause.

(relisted after the April 13 conference)

 

Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury, 16-688

Issues: (1) Whether a state statute that retroactively imposes over $1 billion in increased tax liability on out-of-state businesses for the benefit of in-state businesses violates the dormant commerce clause; (2) whether a state tax law that has a 6 1/2-year period of retroactivity and targets out-of-state businesses for increased tax liability of over $1 billion violates the due process clause; and (3) whether a state’s retroactive repeal of a central provision of the decades-old Multistate Tax Compact violates the contracts clause by imposing over $1 billion in retroactive tax liability on out-of-state taxpayers.

 (relisted after the April 13 conference)

 

Gillette Commercial Operations North America & Subsidiaries v. Michigan Department of Treasury, 16-697

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 conference)

 

International Business Machines Corp. v. Michigan Department of Treasury, 16-698

Issues: (1) Whether a state, without violating the constitutional bar against the impairment of contracts, can retroactively withdraw from the Multistate Tax Compact so as to divest taxpayers of benefits under that compact for a period of 6 1/2 years before that withdrawal; and (2) whether, consistent with due process, a state can, by statute, change its tax laws retroactively for a period of more than six years, when the change was not promptly instituted and when the change was designed to increase state tax revenues by overriding a Michigan Supreme Court decision determining taxpayer obligations under prior law.

(relisted after the April 13 conference)

 

Goodyear Tire & Rubber Co. v. Michigan Department of Treasury, 16-699

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 conference)

 

DIRECTV Group Holdings, LLC v. Michigan Department of Treasury, 16-736

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13 conference)

 

Merit Management Group, LP v. FTI Consulting, Inc., 16-784

Issue: Whether the safe harbor of Section 546(e) of the Bankruptcy Code prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the U.S. Courts of Appeals for the 2nd, 3rd, 6th, 8th, and 10th Circuits, but contrary to the decisions from the U.S. Courts of Appeals for the 7th and 11th Circuits.

(relisted after the April 13 conference)

 

North Carolina v. North Carolina State Conference of the NAACP, 16-833

Issues: (1) Whether a federal court has the authority to reimpose, under Section 2 of the Voting Rights Act, the same “anti-retrogression” preclearance standard invalidated as to Section 5 by Shelby County v. Holder; (2) whether the U.S. Court of Appeals for the 4th Circuit erred in holding that, although the challenged reforms did not adversely affect minority voting, the North Carolina legislature nonetheless intended to deny African Americans the right to vote; and (3) whether statistical racial disparities in the use of voting mechanisms or procedures are relevant to a vote denial claim under Section 2.

(relisted after the April 13 conference)

 

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13 conference)

 

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13 conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch: Asterisk edition, SCOTUSblog (Apr. 21, 2017, 7:59 AM), http://www.scotusblog.com/2017/04/relist-watch-asterisk-edition/