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Relist (and Hold) Watch

John Elwood (finally) reviews Monday’s relisted and held cases.

Welcome to 2013!  I hope all of you had an enjoyable holiday season – whether spent in the company of loved ones, engaging in recreational pursuits, or just contemplating an exciting new work year.

One thing the Justices apparently didn’t do over the holidays was polish off December’s relists.  Both are back for more exciting relist action.  That includes now-six-time relister Bond v. United States, 12-158, a.k.a. “the case of the hazardous doorknob,” involving Congress’s authority to enact legislation to implement a treaty.  Let me say for the umpteenth time that we should be getting an opinion (or maybe opinions by this point) respecting denial of cert. soon.  Back for its second time in this hallowed blog is City of New York v. Southerland, 12-215, which concerns a Children’s Services case worker and qualified immunity for Section 1983 claims.  (The third possible relist we were wondering about back in December, Kentucky v. King, 12-140—recall the Clerk’s office hadn’t updated the docket—turns out to be a hold.)

That brings us to the dozen (!) new relists, which also explains why this is being posted Thursday.  First up out of the Eleventh Circuit is the dynamic duo Unite Here Local 355 v. Mulhall, 12-99, and Mulhall v. Unite Here Local 355, 12-312.  If those two look familiar from somewhere, that’s because they’ve graced these (e-)pages before.  Unite Here has travelled a long and winding road to be with us here today:  First, it was held, then held again, then rescheduled almost certainly so it could be considered alongside the conditional cross-petition, and now both have been relisted.  Unite Here asks whether an employer and union violate Section 302 of the Labor-Management Relations Act by entering into an agreement under which the employer promises to remain neutral to union organizing in return for the union’s promise to forgo its rights to picket, boycott, and otherwise put pressure on the employer’s business.  If the Court takes up Unite Here, Mulhall has his own Section 302 query he’d like to have answered, to wit, whether the provision saying employers cannot “pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization” reaches “intangible” assistance.

Another double-trouble relist comes out of Justice Breyer’s old judicial stomping grounds:  Chafee v. United States, 12-223, and Pleau v. United States, 12-230.  The pair concerns whether the federal government has the power effectively to override a state governor’s decision not to allow a requested state-prisoner custody transfer under the Interstate Agreement on Detainers Act, 18 U.S.C. App. II.  The en banc First Circuit, with Judges Torruella and Thompson dissenting, blessed the feds’ use of a writ of habeas corpus ad prosequendum, which in non-Little Lord Fauntleroy terms is a writ to produce the prisoner so he can be prosecuted.  (Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as co-counsel to the petitioner in Pleau.)

Speaking of habeas, there just couldn’t be a dozen new relists without at least one involving 28 U.S.C. § 2254.  Marshall, Warden v. Rodgers, 12-382, concerns the “clearly established” standard in Section 2254(d), asking whether Faretta v. California satisfies the requirement for a defendant to revoke his prior waiver of counsel at trial and require reappointment of counsel to file a motion for new trial.  But as a practical matter, the odds of Supreme Court review have less to do with the question presented than the fact that it’s a state petition seeking review of a judgment involving Ninth Circuit Judges Reinhardt and Fletcher.  In yet another state-on-top habeas case, Burt v. Titlow, 12-414, the Great (Lakes) State of Michigan says the New Ninth Circuit failed to give sufficient deference under AEDPA to the state court in holding that Titlow’s trial counsel was constitutionally ineffective for allowing him to maintain his claim of innocence, bungled the “reasonable probability” requirement, and misinterpreted Lafler v. Cooper to require resentencing.  And there’s one more habeas case, of the state-on-bottom variety, out of the Fourth Circuit:  Deyton v. Keller, 12-6230.  That case concerns three eighteen- to twenty-year-olds who robbed a Presbyterian Church at gunpoint (during which one of their guns, as predestined, discharged); they now argue it is a clearly established rule that judges cannot take into account their own religious beliefs when sentencing a defendant.  It seems the judge made repeated references to the crime’s spiritual effrontery:  They “didn’t just steal money from people.  [They] took God’s money.”  Arguing that the judge’s religious views may have had something to do with their rather long sentences (fifty-three to seventy-one years), they raise due process and Eighth Amendment challenges to their sentences – and argue that if a judge is going to consult religious scripture in sentencing, it should at least be the New Testament, not the Old.

Calhoun v. United States, 12-6142, out of the Fifth Circuit, concerns a question the prosecutor asked Mr. Calhoun, an African American, in his trial for conspiracy to possess cocaine with intent to sell:  “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money.  Does that tell you – a light bulb doesn’t go off in your head and say, This is a drug deal?”  The Fifth Circuit held that the failure to order a new trial as a result of the inappropriate question was not plain error, reasoning that it failed the third prong because it did not affect Calhoun’s “substantial rights.”

Womack v. United States, 12-6988, also out of the Fifth Circuit, concerns the male half of a husband-and-wife taxpayer-preparation operation tried for aiding and assisting the filing of false tax returns.  In his petition, Mr. Womack contends he was denied an opportunity to present his specific-intent defense to the jury as to “approximately 5,000 other returns” in violation of the Fifth and Sixth Amendment, which would have bolstered his claim to be merely an “unsophisticated tax preparer[] who may have made some mistakes.”  In Sekhar v. United States, 12-357, the managing partner of a venture capital fund started threatening to tell the wife of the New York Comptroller General that he was cheating on her if the Comptroller General did not invest in his fund.  The petition contends that the behavior was merely creepy, and not an attempt to obtain “property” by means of extortion under the Hobbs Act, as the Second Circuit thought.

Over on the civil front, American Trucking Ass’n v. Los Angeles, 11-798, involves whether regulations implementing the Port of Los Angeles’s “Clean Trucks Program” are preempted by the Federal Aviation Administrative Authorization Act or, if you like living dangerously close to the edge of a Microsoft sticky-keys warning, the FAAAA.  The American Trucking Association seeks review of the Ninth Circuit’s decision that the FAAAA did not preempt the program.  This one drew six amicus briefs and a CVSG, so you can bet the Justices are taking a close look.

Bass Pro Outdoor World v. Kelly, 12-407, concerns the constitutionality of a three-digit ratio between punitive and compensatory damages.  Although BMW of North America, Inc. v. Gore set the usual maximum ratio in the single digits, it said a higher number could comport with due process if “a particularly egregious act . . . resulted in only a small amount of economic damages.”  Bass Pro concerned a wrongful-dismissal suit from an employee who claimed he was fired for reporting his supervisor.  Because the plaintiff was an employee at Bass Pro Shops in Missoula, he got a modest $4,300 in lost wages, and, because this is America, he got $2.8 million in punitive damages.  The first round of state-court appeals reduced that to $650,000 (or a 151:1 ratio).  Arthur Miller – the civil procedure guru, not the improbable husband of Marilyn Monroe – is on the petition as Of Counsel.

If you’ve made it this far, congratulations – you’ve already read more than the average American reads in a year.  And you haven’t even made it to the holds yet.  There are seven of them.  There’s a twofer out of the Sunshine State, Kelly v. Florida, 12-6901, and Thompson v. Florida, 12-7238.  Both are just the tip of the metaphorical iceberg, as it seems there are a total of 117 cases in the pipeline involving the Florida Supreme Court’s decision upholding the constitutionality of a state law removing knowledge of the illegal nature of a substance as an element of the crime of possession of an illegal substance (now, it’s an affirmative defense that the defendant was unaware of the nature of the substance).  Expect many more similar holds before the State of Florida files a brief in opposition en masse on January 28.

Cano v. Texas, 12-5813, appears to be a fairly straightforward hold for Boyer v. Louisiana, 11-9953.  Both involve speedy trial claims.  Gonzalez v. Massachusetts, 12-7166, involves a Confrontation Clause claim that is likely being held for Chaidez v. United States, 11-820.  Into that murky chasm called “What is this being held for?” toss John v. United States, 12-5201.  John, a former Citigroup employee who was convicted of access-device fraud for passing account information to her half-brother, asks whether a computer user may be convicted of “exceeding authorized access” to another’s computer, when the user has been afforded unrevoked authorization to view or alter all of the information accessed.  Meirovitz v. United States, 12-7461, goes in the same category.  That case concerns a 28 U.S.C. § 2255 challenge to a crime-of-violence designation under the Sentencing Guidelines.  Maybe it is another hold for Chaidez because it invokes the retroactive application of Johnson v. United States (2010), which Meirovitz claims precludes his second-degree manslaughter conviction in Minnesota from being considered a “crime of violence.”  Or maybe it is a hold for Alleyne v. United States, 11-9335, which also concerns “crimes of violence.”  In any event, it’s peculiar, because the government waived its right to respond, and the Solicitor General is usually very good about spotting cases that may warrant a hold.

But let’s end on a high note, at least in terms of my degree of confidence:  Whirlpool Corp. v. Glazer, 12-322, is almost certainly being held for former six-time relister Comcast Corp. v. Behrend, 11-864.  Like Comcast, Whirlpool asks whether a district court may certify a class action under Fed. R. Civ. P. 23(b)(3) without first resolving factual disputes that bear on the certification requirements.

Please enjoy with our compliments the immense sense of accomplishment normally reserved for people who make it all the way through a Wagner opera awake.  See you back here next week to discuss the fruits of the January 11 Conference, which come to think of it isn’t too far off.

Thanks to Conor McEvily and Eric White for compiling and drafting this update.


[page]12-99[/page] (relisted after the January 4 Conference)


[page]12-312[/page] (relisted after the January 4 Conference)


[page]12-223[/page] (relisted after the January 4 Conference)


[page]12-230[/page] (relisted after the January 4 Conference)


[page]12-382[/page] (relisted after the January 4 Conference)


[page]12-414[/page] (relisted after the January 4 Conference)


[page]11-798[/page] (relisted after the January 4 Conference)


[page]12-6230[/page] (relisted after the January 4 Conference)


[page]12-6142[/page]  (relisted after the January 4 Conference)


[page]12-6988[/page] (relisted after the January 4 Conference)


[page]12-357[/page] (relisted after the January 4 Conference)


[page]12-407[/page] (relisted after the January 4 Conference)


[page]12-158[/page](relisted after the November 2, November 9, November 20, November 30, December 7, and January 4 Conferences)


[page]12-215[/page] (relisted after the December 7 and January 4 Conferences)


Recommended Citation: John Elwood, Relist (and Hold) Watch, SCOTUSblog (Jan. 10, 2013, 4:13 PM),