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on Oct 3, 2018 at 2:26 pm
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John Elwood reviews the cases the Supreme Court relisted after the long conference.

I don’t find much to be amused about recently, so let’s just do this. The Supreme Court relisted 17 cases after the long conference held on September 24. That’s a big increase in raw numbers from last term, but the numbers are inflated because there are a few groups of cases presenting the same issues.

 This week’s cases include:

The new relists are below. For each of them, I’ve indicated the dates that the court distributed papers to the justices’ chambers for consideration as part of my pet project to see if distribution dates affect the likelihood of a grant.

In addition, two serially rescheduled (and once-relisted) capital cases are back again this term. I can’t wait to see what the court does with those. And we have one serial relist on hold waiting for a settlement to be approved.

We’ll be back next week, hopefully with a more mirthful installment. Thanks to Kevin Brooks for wading through the largest docket of the term to identify these cases.

 

New Relists

Fleck v. Wetch, 17-886

Issues: (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

(distributed June 27, 2018; relisted after the September 24 conference)

 

Kindred Nursing Centers Limited Partnership v. Wellner, 17-1318

Issue: Whether Section 2 of the Federal Arbitration Act pre-empts the Kentucky Supreme Court’s newly announced rule holding that a power of attorney authorizing the holder to enter into “contracts of every nature in relation to both real and personal property” does not encompass arbitration agreements because those agreements instead relate to rights to trial by jury and access to court.

(distributed June 13, 2018; relisted after the September 24 conference)

 

Andersen v. Planned Parenthood of Kansas and Mid-Missouri, 17-1340

Issue: Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

(distributed July 18, 2018; relisted after the September 24 conference)

 

Gee v. Planned Parenthood of Gulf Coast, Inc., 17-1492

Issue: Whether individual Medicaid recipients have a private right of action under 42 U.S.C. § 1396a(a)(23) to challenge the merits of a state’s disqualification of a Medicaid provider.

(distributed July 18, 2018; relisted after the September 24 conference)

 

Manhattan Community Access Corporation v. Halleck, 17-1702

Issues: (1) Whether the U.S. Court of Appeals for the 2nd Circuit erred in rejecting the Supreme Court’s state-actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability; and (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in holding—contrary to the U.S. Courts of Appeals for the 6th and District of Columbia Circuits—that private entities operating public-access television stations are state actors for constitutional purposes when the state has no control over the private entity’s board or operations.

(distributed September 5, 2018; relisted after the September 24 conference)

 

The American Legion v. American Humanist Association, 17-1717

Issues: (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

(distributed August 22, 2018; relisted after the September 24 conference)

 

Molette v. United States, 17-8368

Issue: Whether, under Johnson v. United States, the U.S. Court of Appeals for the 4th Circuit erred when it denied a certificate of appealability on a 28 U.S.C. § 2255 motion regarding the application of Johnson to the Federal Sentencing Guidelines with regard to a defendant sentenced under the pre-Booker, then-mandatory guidelines.

(distributed June 21, 2018; relisted after the September 24 conference)

 

Gipson v. United States, 17-8637

Issue: Whether defendants sentenced under the then-mandatory Federal Sentencing Guidelines’ residual-clause definition of “crime of violence”—prior to the Supreme Court’s decision in United States v. Booker, when judges were given no discretion—have a retroactive right to be resentenced because they were sentenced under the equivalent of a vague statute.

(distributed August 9, 2018; relisted after the September 24 conference)

 

Wilson v. United States, 17-8746

Issues: (1) Whether the residual clause of the Federal Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), is void for vagueness with regard to defendants sentenced under the pre-Booker, then-mandatory guidelines; and (2) whether invalidation of U.S.S.G. § 4B1.2(a)(2)’s mandatory residual clause would retroactively apply to cases on collateral review.

(distributed August 9, 2018; relisted after the September 24 conference)

 

Greer v. United States, 17-8775

Issues: (1) Whether a vagueness challenge to the residual clause of the Federal Sentencing Guidelines asserts a violation of Johnson v. United States, such that it is timely under 28 U.S.C. § 2255(f)(3), when the residual clause was applied in a mandatory, rather than advisory, manner; and (2) whether the residual clause of the Federal Sentencing Guidelines is unconstitutionally vague when it was applied in a mandatory, rather than advisory, manner.

(distributed August 23, 2018; relisted after the September 24 conference)

 

Homrich v. United States, 17-9045

Issue: Whether petitioners who were sentenced as career offenders in accordance with the mandatory guidelines filed timely 28 U.S.C. § 2255 motions if they filed their motions within one year of Johnson v. United States.

(distributed August 9, 2018; relisted after the September 24 conference)

 

Brown v. United States, 17-9276

Issues: (1) Whether a 28 U.S.C. § 2255 motion filed within one year of Johnson v. United States, claiming that Johnson invalidated the residual clause of the pre-Booker career offender guideline, asserts a “right … initially recognized” in Johnson within the meaning of 28 U.S.C. § 2255(f)(3); and (2) whether the residual clause of the pre-Booker career offender guideline is unconstitutionally vague.

(distributed August 23, 2018; relisted after the September 24 conference)

 

Chubb v. United States, 17-9379

Issue: Whether a 28 U.S.C. § 2255 motion filed within one year of Johnson v. United States, claiming that Johnson invalidated the residual clause of the pre-Booker career offender guideline, asserts a “right … initially recognized” in Johnson within the meaning of 28 U.S.C. § 2255(f)(3) .

(distributed August 30, 2018; relisted after the September 24 conference)

 

Smith v. United States, 17-9400

Issues: (1) Whether a 28 U.S.C. § 2255 motion filed within one year of Johnson v. United States, claiming that Johnson invalidated the residual clause of the mandatory career offender guideline, asserts a “right … initially recognized” in Johnson within the meaning of 28 U.S.C. § 2255(f)(3); and (2) whether, in light of Johnson, the residual clause of the mandatory career offender guideline is unconstitutionally vague.

(distributed August 30, 2018; relisted after the September 24 conference)

 

John Elwood Buckner v. United States, 17-9411

Issue: Whether the U.S. Court of Appeals for the 4th Circuit incorrectly denied a certificate of appealability on the petitioner’s claim when he argued that the residual clause of the mandatory career offender guideline was void for vagueness after Johnson v. United States.

(distributed August 30, 2018; relisted after the September 24 conference)

 

Lewis v. United States, 17-9490

Issues: (1) Whether the residual clause of the Federal Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), is void for vagueness with regard to defendants sentenced under the pre-Booker, then-mandatory guidelines; and (2) whether invalidation of U.S.S.G. § 4B1.2(a)(2)’s mandatory residual clause would retroactively apply to cases on collateral review.

(distributed September 6, 2018; relisted after the September 24 conference)

 

Maryland-National Capital Park & Planning Commission v. American Humanist Association, 18-18

Issue: Whether the establishment clause requires the removal or destruction of a 93-year-old memorial to American servicemen who died in World War I solely because the memorial bears the shape of a cross.

(distributed August 22, 2018; relisted after the September 24 conference)

 

Returning Relists

Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056

Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.

(relisted after the April 20, April 27, May 10, May 17, May 24, May 31, June 7, June 14 and June 21 conferences; apparently held pending approval of a settlement agreement)

 

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24 and October 5 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24 and October 5 conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Oct. 3, 2018, 2:26 PM), https://www.scotusblog.com/2018/10/relist-watch-128/