John Elwood reviews next Monday’s likely relists. [Editor’s Note: This post was updated on November 27 to confirm our predicted returning relists and address one new relist (Hester v. U.S.) that we had not included in the original post. Last week our computers apparently had cached an outdated version of the docket page that did not note the case had been distributed for the November 16 conference.]

One of the great things about being paid absolutely nothing for writing is that your take-home pay is the same whatever you wind up producing. That is comforting indeed when, having staked out one absurdly specialized subject area to write about weekly, you wake up one morning and decide that this week, you really need to write about something even more obscure.

That’s what happened today. We have just one new relist this week: Hester v. United States, 17-9082. And the issue is a straightforward one: Whether the rule of Apprendi v. New Jersey — which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt — should apply to the imposition of criminal restitution.

With nothing else new among the relists, rather than observe again how relists are disproportionately associated with grants and dissents from denial of cert, I thought we should discuss where the real action seems to be this week on the Supreme Court’s shadow docket. And this week, it seems to be among the cases the court has rescheduled.

Leading the leagues this week is McKee v. Cosby, 17-1542, which has been rescheduled seven times. As framed by the petition, that case presents the question whether an alleged victim of sexual misconduct whose only public act has been simply to state that she was victimized by a well-known alleged abuser (yes, that Cosby), thereby becomes a limited-purpose public figure. Under current First Amendment doctrine, that status makes it much harder for plaintiffs to recover for defamation, and requires them to make a showing by clear and convincing evidence that the defendant acted with “actual malice.” Kathrine McKee says she was defamed by a letter Bill Cosby and his lawyer sent to the New York Daily News after McKee told the paper that Cosby had assaulted her. Although McKee argues that she has kept a low profile and has not sought the spotlight on sexual-abuse issues, the Cosby brief in opposition argues she has kept a much higher profile and used her “longstanding celebrity status” to gain media access for her allegations. The case is also interesting for two other reasons; (1) McKee is represented by Charles Harder, who helped take on Gawker for Hulk Hogan and has had a number of high-profile clients since; and (2) the petition’s question presented is the first one I’m aware of to use a hashtag (“#metoo”). Obviously, this case has the attention of at least one of the justices; perhaps he or she is wondering whether it’s time to revisit the court’s complex defamation jurisprudence.

Next up is Zimmerman v. City of Austin, Texas, 18-93, which has been rescheduled four times. Petitioner Don Zimmerman was a one-term city councilman in the Texas capital who in 2015 was seeking to raise campaign funds to use in responding to political attacks heading into the 2016 election. But his ability to raise money was limited by Austin’s campaign-finance restrictions, which include a $350 base limit on campaign contributions and an aggregate limit on the total a candidate can accept from contributors who are not eligible to vote in Austin zip codes. Zimmerman says he wanted to solicit contributions from “like-minded conservative donors without respect to whether they qualified as registered voters within Austin[],” but suspended his efforts because it appeared the upfront investment needed to undertake solicitations would do him no good. Zimmerman lost his re-election bid. The U.S. Court of Appeals for the 5th Circuit later upheld the $350 restriction and said that Zimmerman’s decision to suspend his fundraising plans outside Austin was not an injury sufficient to confer standing. Zimmerman challenges that decision. And it appears that he has the attention of at least one of the justices. It could also be that the court is trying to get Zimmerman on the same schedule as Lair v. Mangan, 18-149, involving similar challenges to Montana campaign finance limits.

Our last entry illustrates what is perhaps the most traditional use of rescheduling — to get cases that raise related issues onto the same schedule so the justices can consider them together at conference. Bostock v. Clayton County, Georgia, 17-1618, and Altitude Express, Inc. v. Zarda, 17-1623, both present the question whether Title VII of the Civil Rights Act of 1964, which prohibits discrimination “because of … sex,” encompasses discrimination based on an individual’s sexual orientation. The court has rescheduled both once, apparently so they can be considered at the November 30 conference along with R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, 18-107, which presents the related question of whether Title VII applies to gender identity and transgender status. These are some of the most closely watched cases the court is now considering, so perhaps they’ll be back soon as relists.

That’s all for this week. Thanks again to Tom Mitsch and Ben Moss for compiling these cases, however they are classified. And best wishes for a happy and safe Thanksgiving to our entire readership!

 

New Relists

Hester v. United States, 17-9082

 Issue: Whether the rule of Apprendi v. New Jersey — which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt — should apply to the imposition of criminal restitution.

(relisted after the November 16 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; the parties recently notified the court that the case has settled and requested dismissal)

 

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, October 5, October 12, October 26, November 2, November 9 and November 16 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, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)

 

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.

(relisted after the September 24, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)

 

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.

(relisted after the September 24, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)

 

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.

(relisted after the September 24, October 5, October 12, October 26, November 2, November 9 and November 16 conferences)

 

Shoop v. Hill, 18-56

Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.

(relisted after the October 5, October 12, October 26, November 2, November 9 and November 16 conferences)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2, November 9 and November 16 conferences)

 

Lance v. Sellers, 17-1382

Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.

(relisted after the October 26, November 2, November 9 and November 16 conferences)

 

City of Escondido, California, v. Emmons, 17-1660

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

(relisted after the October 26, November 2, November 9 and November 16 conferences)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Reschedule Watch (UPDATED), SCOTUSblog (Nov. 21, 2018, 12:56 PM), http://www.scotusblog.com/2018/11/reschedule-watch-2/