John Elwood reviews Monday’s relisted cases.

Welcome back from the two-week break!  After days spent merrily consuming a year’s worth of sodium in the form of rim salt and treatin’ Ma to somethin’ special, the Court dumped the proverbial ice-cold bucket of reality over some of our favorite relists.  Seemingly unmoved by the emotional trauma we as a nation have suffered because of ABC’s cancellation of Parents Television Council-favorite Don’t Trust the B—- in Apartment 23 and the timely How to Live with Your Parents (for the Rest of Your Life), the Court slashed forty percent from last week’s relist rolls.  Gone are the two two-time relists and follow-ons to Genesis HealthCare Corp. v. Symczyk, Convergent Outsourcing, Inc. v. Zinni, 12-744, and Cerdant, Inc. v. DHL Express (USA), Inc., 12-747.

But glass-half-full types will rejoice that Seventh Circuit Establishment Clause case Elmbrook School District v. Doe, 12-755, is back for its sixth relist; I am now officially out of the business of confidently predicting that some kind of opinion is probably in the works, so let me simply note that the parties need just one more relist before they’re entitled to a free lunch at this popular ornithology club.  Back for its mere fifth relist (since the record came in) is Nevada v. Jackson, 12-694, the Ninth Circuit state-on-top habeas case we know and love.  Back for its second relist is the piker Valenzuela v. Cliett, 12-773, the Ninth Circuit state-on-top habeas case we’re still getting to know.

Just as the lot was beginning to run low on inventory, the Justices added three shiny new relists.  First up is Town of Greece, New York v. Galloway, 12-696, another Establishment Clause case.  Not content with the heavenly aroma of baked spanakopita that fills the air in this Rochester suburb, the town has long invited members of the community to offer prayers before the start of local board meetings.  Unconstitutional, sayeth the Second Circuit.  Writing for the panel, Judge Calabresi concluded that the record showed that the town’s allegedly random process for selecting prayer-givers actually ensured a Christian viewpoint and impermissibly affiliated the town with that single creed.  This was the natural result, the court determined, of the town’s practice of offering the prayer duties to members of the clergy in congregations within the 96,000-person town’s borders, rather than to volunteers of any religious beliefs or “non-beliefs,” which the court intimated might pass constitutional muster.  In their petition, the Town’s ekklesia (boule?) maintains its actions were squarely permissible legislative prayers under Marsh v. Chambers (1983), which it says forecloses the Second Circuit’s impermissible-endorsement theory, and urges the Court to instruct the courts of appeals on the proper line between Marsh and County of Allegheny v. ACLU (1989).  Go tell the Spartans!

Those of you in the financial services community reading this blog aboard your G650 will want to pay particularly close attention to the next “new” relist.  Lawson v. FMR, 12-3, involves a First Circuit decision holding that the employee retaliation protections in the Sarbanes-Oxley Act, 18 U.S.C. § 1514A, do not extend to employees of contractors and subcontractors of publicly traded companies.  Those of you feeling déjà vu right now are not experiencing an anomaly of memory giving the false impression that an experience is being recalled.  Or at least, not necessarily.  You could just be remembering that Lawson was relisted way back at the Long Conference and then CVSG’d a week later.  At long last, the SG has reported the results of his ruminations, urging that although the First Circuit’s decision was erroneous, cert. should be denied because deciding the issue now would be premature.

Last up, out of the California Court of Appeals, is Fernandez v. California, 12-7822, a Fourth Amendment case concerning co-tenant permission to search a dwelling.  After Fernandez robbed a man as part of a “gang challenge” in the sleepy bedroom community of South Central LA, he fled to a nearby apartment he shared with his girlfriend.  A police officer who heard a domestic disturbance later knocked on the door to be greeted by Fernandez’s bloodied-up girlfriend.  Despite Fernandez’s protests (“Get out.  I know my rights.  You can’t come in.”) the officer separated the two , and in the process realized Fernandez matched the description of the robbery suspect.  While Fernandez was being hauled off to the pokey, Fernandez’s girlfriend gave the officers written permission to enter, where officers discovered Fernandez’s shotgun and ammunition, possibly nestled in his remarkably complete collection of Beanie Babies®.  If this fact pattern is ringing some bells, it’s because the issue whether an absent co-tenant’s prior refusal to consent to a search invalidates a physically present co-tenant’s consent has been teed up for the Court more than once already this Term.  Way back in October, I speculated that Cooke v. United States11-10835, was put on hold to allow a Fourth Circuit case, Shrader v. United States12-5614, to catch up; in both, just like here, the courts sided with the majority view that such searches are valid.  Both were denied.  To date, the only federal circuit to hold that an earlier objection precludes subsequent co-tenant consent is the Ninth, in a decision authored by archconservative Judge Stephen Reinhardt.

In keeping with the déjà vu theme of today’s post, we’ll cap off with a morsel of hold news:   Northwest, Inc. v. Ginsberg, 12-462, the case involving whether a dispute over frequent-flyer miles was preempted under the Airline Deregulation Act, which previously was relisted and then held, has just been scheduled for the May 16 Conference, suggesting that it was being held for Dan’s City Used Cars, Inc. v. Pelkey, 12-52, issued Monday.  The two cases involve similar statutory schemes.  In other hold news, back in October, I speculated that Allshouse v. Pennsylvania, 11-1407, was being held for DeLeon v. United States, 12-6558, in which the Court had called for a response from the Solicitor General.  Both concerned whether a child’s statements in an interview with child protective services regarding past abuse are “testimonial” for purposes of the Confrontation Clause.  Well, five extensions later, the SG finally filed his response in DeLeon; in a strange twist, the Court responded by holding DeLeon and denying cert. altogether in Allshouse.  Word on the street is DeLeon is now being held because the supplemental brief raises the same issue as Alleyne v. United States11-9335, which seeks to revisit the Court’s conclusion that judges (and not just juries) can decide facts necessary to impose mandatory-minimum sentences.  Whew!  (Disclaimer: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, were among the counsel to the petitioner in Allshouse.)

And with that – hallelujah! – we’ve come to the end.  In laboratory studies, ten out of ten rats consumed lethal doses of anesthetics before reaching the end of this post, so congratulations on your evolutionarily superior pain threshold.  Proving that they, too, are gluttons for punishment, the Justices are meeting again this Thursday, meaning we’ll be back here next week with another installment.

Thanks to Eric White for compiling and drafting this update.


Issue(s): Whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation by Section 806 of the Sarbanes-Oxley Act, 18 U.S.C. § 1514A.

(relisted after the May 9 Conference)



Issue(s): Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity.

(relisted after the May 9 Conference)


Disclosure: Kevin Russell, of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the petitioner in this case.

Issue(s): Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.

(relisted after May 9 Conference)



Issue(s): Whether, when a custodial suspect upon Miranda advice literally states that he chooses to remain silent, “clearly established Federal law” both (1) prohibits a state court from considering objective circumstances suggesting that the suspect did not intend to invoke his right; and (2) precludes the police from briefly asking the suspect to confirm his intent, so long as they commence any interrogation only after the suspect then explicitly agrees to talk.

(relisted after the April 26 and May 9 Conferences)



Issue(s): (1) Whether the Establishment Clause prohibits the government from conducting public functions such as high school graduation exercises in a church building, where the function has no religious content and the government selected the venue for reasons of secular convenience; (2) whether the government “coerces” religious activity in violation of Lee v. Weisman and Santa Fe Independent School District v. Doe where there is no pressure to engage in a religious practice or activity, but merely exposure to religious symbols; and (3) whether the government “endorses” religion when it engages in a religion-neutral action that incidentally exposes citizens to a private religious message.

(relisted after the March 22, March 29, April 12, April 19, April 26, and May 9 Conferences)



Issue(s): Whether the Ninth Circuit exceeded its authority under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), by granting habeas relief on the ground that the Nevada Supreme Court unreasonably applied “clearly established Federal law, as determined by” this Court when it held that respondent’s right to present a defense was not violated by the exclusion of extrinsic evidence through which he sought to impeach a prosecution witness on a collateral matter.

(relisted after the March 15, March 22, March 29, April 12, April 19, April 26, and May 9 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist watch, SCOTUSblog (May. 14, 2013, 5:36 PM),