John Elwood reviews Monday’s relists.

If you’re reading a blog post that is entirely devoted to cases on the Supreme Court’s docket that haven’t even been granted yet, chances are you’re a law nerd. Thus, I will go ahead and make the heroic assumption that if you’re reading this, you already know about the six relisted cases the court agreed on Friday to review. I will likewise assume that you already know that the court denied review outright in the seven “net neutrality” relists – although you may not yet appreciate that in doing so, the court adopted the position advanced by just two lonely attorneys against legions of lawyers (including the “Tenth Justice”) advocating either Munsingwear vacatur or plenary review. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the respondents in this case.] That is all noteworthy, but we at Relist Watch like to go even more obscure. As I said, we like our shadow docket shadowy.

Thus, we will begin Relist Watch the same improbable way we did last week: talking not about relisted cases but rescheduled ones. What’s the difference? When the Supreme Court reschedules a case, that case is moved on the court’s docket from one of the justices’ private conferences to the next one before the justices even have the opportunity to discuss it. By contrast, a relisted case is moved from one conference to the next after they have discussed it. I’ve linked dockets of a rescheduled case and a relisted case so you can see how both work.

Last week we remarked that Justice Sonia Sotomayor appeared to have repeatedly rescheduled Townes v. Alabama to give her the time to prepare an opinion respecting denial in the case. Justices traditionally have relisted cases in which they are writing an opinion respecting (or dissenting from) denial of cert. By rescheduling a case instead of relisting, the author of a draft opinion (or any other document – say, a memorandum to the other justices) would have the opportunity to prepare it fully before the case is considered by the entire court. Some bonehead speculated on Twitter that a justice might proceed by rescheduling rather than relisting because he or she suspects the case won’t interest the rest of the court, so there’s no point bringing it up repeatedly by relisting it; alternatively, rescheduling the case repeatedly allows the justice to make the best argument possible the very first time the case is considered at conference.

That long windup is a helpful introduction to this week’s relists, because every one of the relisted cases has been rescheduled, most of them repeatedly. Once again, we have a group of seven relisted cases all presenting the same issue and all involving the same respondent. Each of the seven involves a Florida man convicted of capital murder and sentenced to the death penalty. The issue should be familiar to Relist Watch readers. In Hurst v. Florida, the Supreme Court held 8-1 in an opinion by Sotomayor that Florida’s capital-sentencing scheme – under which a jury rendered an “advisory sentence” but a judge had to independently weigh the aggravating and mitigating factors before entering a sentence of life or death – violated the Sixth Amendment’s requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death. The Florida Supreme Court later held that Hurst error was harmless because juries had to unanimously find beyond a reasonable doubt all the elements necessary to support imposition of the death penalty. But since that time, challenger after challenger has argued that the Florida Supreme Court’s harmless-error conclusion cannot be squared with Caldwell v. Mississippi, which held that it is constitutionally impermissible to rest a death sentence on a determination made by a jury that has been led to believe that the responsibility for determining the appropriateness of the death sentence rests with someone else. This issue has yielded multiple dissents from denial of cert, in Truehill v. Florida (Sotomayor dissenting, joined by Justices Ruth Bader Ginsburg and Stephen Breyer; Breyer also dissented separately), Middleton v. Florida (identical lineup), Guardado v. Florida (Sotomayor dissenting alone), and Kaczmar v. Florida (Sotomayor dissenting alone).

Now we have seven more such cases — including one that was the subject of a previous dissent: Guardado v. Florida, 17-9284, Philmore v. Florida, 17-9556, Tanzi v. Florida, 18-5160, Reynolds v. Florida, 18-5181, Franklin v. Florida, 18-5228, Grim v. Florida, 18-5518, and Johnston v. Florida, 18-5793. The arrival of seven cases at once presents Sotomayor with her best opportunity yet to make the case that the issue is a recurring and important one. The big question now is whether Justice Elena Kagan (or some other justice) is now ready to provide a fourth vote to grant – or whether Sotomayor will be filing yet another dissent from denial on this issue. And to get into the weeds a bit, these cases provide yet another example of what a good job the Supreme Court and its staff do of tracking related cases on the court’s crowded docket.

That’s all we have for this week. Tune in this time next week to find out whether the court will be adding to its capital docket. Thanks again to Tom Mitsch for compiling the relists.

 

New Relists

Guardado v. Florida, 17-9284

Issues: (1) Whether the Florida Supreme Court’s per se harmless-error rule for violations of Hurst v. Florida—which deems errors harmless in every case in which the capital defendant’s pre-Hurst advisory jury, after being instructed that the findings of fact and sentencing decision would be made by the judge alone, unanimously recommended the death penalty—contravenes the Eighth Amendment under Caldwell v. Mississippi; (2) whether the Florida Supreme Court’s per se harmless-error rule for Hurst violations contravenes the Supreme Court’s decisions holding that harmless-error review cannot be “automatic and mechanical,” Barclay v. Florida; must include consideration of the whole record, Rose v. Clark; and must be accompanied by “a detailed explanation based on the record,” Clemons v. Mississippi.

(relisted after the November 2 conference)

 

Philmore v. Florida, 17-9556

Issues: (1) Whether Florida violated the petitioner’s and similar situated defendants’ Eighth Amendment rights, and their equal protection and due process rights as guaranteed by the 14th Amendment, by denying the opportunity for full briefing of relevant, life-or-death, Hurst v. Florida issues; and (2) whether the Eighth and 14th Amendments require the petitioner and other similarly situated defendants to receive Hurst relief based on the Supreme Court’s decision in Caldwell v. Mississippi in light of evolving standards of decency, equal protection, and the Eighth Amendment’s prohibition against cruel and unusual punishment when the advisory panel at the penalty phase of trial was repeatedly instructed in violation of Caldwell.

(relisted after the November 2 conference)

 

Tanzi v. Florida, 18-5160

Issues: (1) Whether the Florida Supreme Court’s per se harmless-error rule for violations of Hurst v. Florida—which deems errors harmless in every case in which the capital defendant’s pre-Hurst advisory jury, after being instructed that the findings of fact and sentencing decision would be made by the judge alone, unanimously recommended the death penalty—contravenes the Eighth Amendment under Caldwell v. Mississippi; and (2) whether the Florida Supreme Court’s per se harmless-error rule for Hurst violations contravenes the Supreme Court’s decisions holding that harmless-error review cannot be “automatic and mechanical,” Barclay v. Florida; must include consideration of the whole record, Rose v. Clark; and must be accompanied by “a detailed explanation based on the record,” Clemons v. Mississippi.

(relisted after the November 2 conference)

 

Reynolds v. Florida, 18-5181

Issues: (1) Whether the Florida Supreme Court’s plurality decision rejecting the petitioner’s Caldwell v. Mississippi claim is error when the jury was affirmatively misled regarding its role in the sentencing process so as to diminish its sense of responsibility; and (2) Whether the Florida Supreme Court’s per se harmless-error rule for violations of Hurst v. Florida—which deems errors harmless in every case in which the capital defendant’s pre-Hurst advisory jury, after being instructed that the findings of fact and sentencing decision would be made by the judge alone, unanimously recommended the death penalty—contravenes the Eighth Amendment under Caldwell v. Mississippi.

(relisted after the November 2 conference)

 

Franklin v. Florida, 18-5228

Issues: (1) Whether the per se harmless-error rule adopted by the Florida Supreme Court—which deems errors harmless in every case in which the capital defendant’s pre-Hurst advisory jury, after being instructed that the findings of fact and sentencing decision would be made by the judge alone, recommended the death penalty by a unanimous vote, rather than a majority vote—violates the Supreme Court’s precedents prohibiting state courts from mechanically denying federal constitutional claims on harmless-error grounds without first conducting an individualized review of the record as a whole; and (2) whether the per se harmless-error rule violates the Eighth Amendment doctrine discouraging reliance on decisions made by jurors whose sense of responsibility for a death sentence was diminished.

(relisted after the November 2 conference)

 

Grim v. Florida, 18-5518

Issues: (1) Whether a violation of Hurst v. Florida can be ruled harmless beyond a reasonable doubt based solely on a pre-Hurst “advisory” jury’s unanimous vote to recommend the death penalty to the judge in a case in which the advisory jurors heard none of the available mitigating evidence; (2) whether the Florida Supreme Court’s per se harmless-error rule for Hurst claims violates the Eighth Amendment in light of Caldwell v. Mississippi by relying exclusively on the number of advisory jurors who recommended the death penalty to the judge, when those jurors were repeatedly instructed that the judge alone, notwithstanding the recommendation of the majority of jurors, would make the findings of fact required for a death sentence under state law and bear ultimate responsibility for a death sentence; (3) whether the Florida Supreme Court’s per se harmless-error rule for Hurst claims, which relies entirely on pre-Hurst advisory jury recommendations that did not fulfill Sixth Amendment requirements as to any element of a Florida death sentence, contradicts Sullivan v. Louisiana and Neder v. United States; and (4) whether, when a defendant proffers uncontested evidence and requests a hearing on whether a state could meet its burden of establishing that a Hurst violation was harmless beyond a reasonable doubt, the Florida Supreme Court’s summary application of its per se harmless-error rule impermissibly shifts the burden of proof and contravenes the Supreme Court’s admonitions that harmless-error review cannot be “automatic or mechanical,” Barclay v. Florida; must include consideration of the whole record, Rose v. Clark; and must be accompanied by “a detailed explanation based on the record,” Clemons v. Mississippi.

(relisted after the November 2 conference)

 

Johnston v. Florida, 18-5793

Issues: (1) Whether the Florida Supreme Court’s holding that a Hurst error is per se harmless when a jury issues a generalized unanimous recommendation for death, after receiving instructions that the judge would make both the findings of fact necessary for a death sentence and render the final decision on the death penalty, contravenes the Eighth Amendment under Caldwell v. Mississippi; and (2) whether the refusal of the Florida courts to consider the proffered scientific and sociological evidence to refute the notion of harmless Hurst error in this case resulted in violations of due process under the Fifth and 14th Amendments to the United States Constitution.

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

 

PDR Network, LLC v. Carlton & Harris Chiropractic Inc., 17-1705

Issues: (1) Whether the Hobbs Act strips courts of jurisdiction to engage in a traditional Chevron analysis and requires automatic deference to an agency’s order even if there has been no challenge to the “validity” of such order; and (2) whether faxes that “promote goods and services even at no cost” must have a commercial nexus to a firm’s business to qualify as an “advertisement” under the Telephone Consumer Protection Act of 1991, which permitted civil liability for sending “unsolicited advertisements” by fax; or whether a plain reading of the rules set forth by the Federal Communications Commission creates a per se rule that such faxes are automatically “advertisements.”

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

 

Stuart v. Alabama, 17-1676

Issue: Whether the Alabama courts’ decision to permit the introduction of written “reports” to law enforcement, regarding blood-alcohol tests, into evidence for the truth of the matters asserted therein — despite the lack of testimony from the person who performed the test and signed the report, or any witness who personally involved in the testing of the blood samples in question — is contrary to Bullcoming v. New Mexico.

(relisted after the October 26 and November 2 conferences)

Posted in Cases in the Pipeline, Featured

Recommended Citation: John Elwood, Reschedule Watch, SCOTUSblog (Nov. 7, 2018, 11:46 AM), http://www.scotusblog.com/2018/11/reschedule-watch/