RELIST WATCH

Is it unconstitutional for an elected official to block critics on social media?

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The justices will be considering 123 petitions and applications at this Friday’s conference. They’ll be discussing four cert petitions for the second time.

Two of the relisted cases involve an issue sufficiently important that the court already came close to granting it in Trump v. Knight First Amendment Institute (until the issue in that case became moot when President Trump was voted out of office): whether it violates the First Amendment for a government official to block people on a personal social media account that they use to communicate with the public about their official duties. O’Connor-Ratcliff v. Garnier involves a suit against two members of a Southern California school board, Michelle O’Connor-Ratcliff and T.J. Zane. The U.S. Court of Appeals for the 9th Circuit held that the board members blocking constituents on Facebook and Twitter constituted state action. O’Connor-Ratcliff and Zane seek review. Lindke v. Freed is a similar case involving the city manager of Port Huron, Michigan. The U.S. Court of Appeals for the 6th Circuit held that he did not violate a city resident’s rights when he blocked access to his Facebook page, and the resident, Kevin Lindke, seeks review. There is undoubtedly a split and the issue unquestionably recurs frequently. I rate this a likely grant, and the odds are good the court is simply taking the extra week to check for vehicle problems and deciding which of the two to take (although it could take both and consolidate).

St. John v. Jones involves a question that is common in the class-action context: What happens when it’s not practical for the defendant to pay every member of the class? Frequently, courts direct that a portion of the settlement be paid to charities or nonprofits that are supposedly aligned with class members’ interests. The term for this procedure, “cy pres,” is old legal French and refers to a payment that is supposed to be “as near as possible” to paying all those allegedly harmed. But it has been criticized because it doesn’t get the recovery into the hands of those actually harmed by the defendant’s actions, and is therefore not “fair, reasonable, and adequate,” as class-action settlements are required to be under Federal Rule of Civil Procedure 23(e)(2).

St. John involves a lawsuit against the agrochemical company Monsanto, alleging false and misleading advertising used to sell the popular weed killer RoundUp. Only 3% of eligible RoundUp purchasers signed up through the claims process to receive funds from the $39 million settlement. As a result, the district court approved a cy pres agreement to distribute $12 million to the enrolled class members, $10 million to the plaintiffs’ attorneys, and $16 million to three consumer-protection nonprofits. Class member Anna St. John objected to the settlement, arguing that the chosen nonprofits (and in particular the Center for Consumer Law and Economic Justice at the University of California, Berkeley) did not have interests aligned with the class members, and also argued that the payments represented a forced subsidy of speech. St. John argued that the court’s failure to consider feasible methods used in other class actions to identify additional class members rendered the cy pres settlement not fair and reasonable under Rule 23. The U.S. Court of Appeals for the 8th Circuit rejected St. John’s claims, accepting Monsanto’s argument that further outreach efforts would be unduly expensive and discover no more than a handful of additional affected purchasers.

St. John now asks the court to curtail the practice of channeling large portions of cy pres settlements to nonprofit organizations. St. John also suggests that the 2018 amendments creating Rule 23(e)(2)(C)(ii), requiring courts to evaluate the effectiveness of proposed methods of distributing relief, also counsel against cy pres. Sixteen state attorneys general have filed an amicus brief supporting the petition. Chief Justice John Roberts expressed “fundamental concerns” about class-action payouts to nonprofits in a case the court declined to review in 2013, and Justice Clarence Thomas did the same in a 2018 case. The relist shows that at least one of the justices continues to be interested in the issue, but the fact that the court denied review to a group of related cases on Monday suggests we may just get another opinion respecting the denial of review.

Last up is Steward v. Gable. More than thirty years ago, Oregon Department of Corrections Director Michael Francke was murdered in front of his office building. A tip led investigators to respondent Frank Gable, who was charged and convicted of the murder, and sentenced to life imprisonment without the possibility of parole. Because no physical evidence was found, the state’s case rested exclusively on witness testimony. But in the decades since trial, nearly all the witnesses have recanted (although one witness has recanted his recantation). They attributed their false testimony to investigative misconduct. And the trial court excluded evidence that another man, John Crouse, had confessed multiple times to the murder (although it appears that the jury did hear some information about Crouse’s confession and the fact that he later recanted). The case has generated wide public interest, has been the subject of “unsolved murder” style podcasts, and the victim’s brother believes Gable is innocent.

Gable filed a federal habeas petition asserting various claims, including constitutional violations based on the trial court’s exclusion of Crouse’s confession. Although Gable’s constitutional claims were procedurally defaulted because he failed to raise them in state court, the district court and the U.S. Court of Appeals for the 9th Circuit excused the default under the “actual innocence” exception recognized by Schlup v. Delo. On the merits, both courts held that the state trial court violated Gable’s due process rights by excluding evidence of third-party guilt.

The state of Oregon now seeks review. It argues that the 9th Circuit’s error was so clear that summary reversal is warranted. Alternatively, it asks the court to take the case and set it for oral argument. Clearly, at least one of the justices is taking a very close look.

New Relists

O’Connor-Ratcliff v. Garnier, 22-324
Issue: Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.
(relisted after the Apr. 14 conference)

St. John v. Jones, 22-554
Issue: Whether, or in what circumstances, a court may approve a settlement as “fair, reasonable, and adequate” under Federal Rule of Civil Procedure 23(e)(2) when it pays a substantial cy pres award to third parties from the settlement fund.
(relisted after the Apr. 14 conference) 

Steward v. Gable, 22-581
Issues: (1) Whether Oregon Evidence Code Rule 804(3)(c), which allows admission of an out-of-court statement against penal interest only if the declarant is unavailable and the statement is supported by corroborating circumstances that clearly indicate its trustworthiness, violates the due process clause of the 14th Amendment as interpreted by Chambers v. Mississippi when it excludes a third-party confession that is recanted by the declarant in court and inconsistent with known facts about the crime; and (2) whether recantations by trial witnesses and a recanted third-party confession are sufficient to satisfy Schlup v. Delo.
(relisted after the Apr. 14 conference)

Lindke v. Freed, 22-611
Issue: Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.
(relisted after the Apr. 14 conference)

Returning Relists

McClinton v. United States, 21-1557
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Luczak v. United States, 21-8190
Issue: Whether this Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court’s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; (2) Whether it violated the Due Process Clause of the Fifth Amendment for the district court to sentence Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the defendant was previously acquitted.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Carnahan v. Maloney, 22-425
Issue: Whether individual members of Congress have Article III standing to sue an executive agency to compel it to disclose information that the members have requested under 5 U.S.C. § 2954.
(relisted after the Mar. 17, Mar. 24, Mar. 31 and Apr. 14 conferences)

Hamm v. Smith, 22-580
Issue: Whether, in an Eighth Amendment method-of-execution case, an alternative method of execution is feasible and readily implemented merely because the executing state has statutorily authorized the method.
(relisted after the Mar. 17 conference)
(rescheduled before the Feb. 24 and Mar. 3 conferences; relisted after the Mar. 17, Mar. 24, Mar. 31 and Apr. 14 conferences)

Burns v. Mays, 22-5891
Issues: (1) Whether an ineffective assistance claim may be based on counsel’s failure to exercise a state-law right to introduce residual doubt evidence at a capital sentencing; (2) whether counsel provides ineffective assistance at capital sentencing if they fail to establish the defendant’s lesser moral culpability by demonstrating that he did not kill a victim, even if the lesser culpability proof fails to negate all aggravating (eligibility) factors; and (3) whether it constitutes deficient performance under Strickland v. Washington if trial counsel postpones their preparations for sentencing until a brief post-guilt phase recess; and if deficient, whether counsel’s performance can be excused, if omitted mitigation evidence fails to explain why the defendant committed the offense.
(relisted after the Mar. 17, Mar. 24, Mar. 31 and Apr. 14 conferences)

Loper Bright Enterprises v. Raimondo, 22-451
Issues: (1) Whether, under a proper application of Chevron v. Natural Resources Defense Council, the Magnuson-Stevens Act implicitly grants the National Marine Fisheries Service the power to force domestic vessels to pay the salaries of the monitors they must carry; and (2) whether the court should overrule Chevron, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
(relisted after the Mar. 24, Mar. 31 and Apr. 14 conferences)