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Relist Watch

John Elwood reviews Monday’s relisted cases.

It’s a new year, and that means it’s time to reflect on past successes, contemplate future ones, and get back to work, reinvigorated and full of new ideas.  The Justices are back at work at One First Street, fresh off their customary four-week stint as seasonal workers at Hagerstown Premium Outlets.  And yours truly is back as well, with the Relist Watch you’d love to hate, if only you could bring yourself to care.  Now with 800% More BaconRelists!

First let’s check in with last year’s league-leader, Ryan v. Hurles, 12-1472.  Yep, still there.  There was some hope that the holiday break might allow the Court finally to move this thing, but alas, the petition that asks whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim has now spent more time at the Supreme Court than Associate Justice Thomas Johnson, by a nearly two-month margin.  An imminent dissent from denial of cert. is still the odds-on favorite disposition, but each relist past the current dime supports the alternative theory that the entire Hurles file was consumed by a rogue Roomba.

Now on to the newbies.  Apparently a lot of good cases built up at the Court over the past month, because in addition to last Friday’s eight grants, we have eight new relists.  Those who like their Comcast v. Behrend follow-ups like they like their Bring It On sequels will delight at what appears to be a relist of a trio of cases concerning the scope of Federal Rule of Civil Procedure 23(b)(3)’s requirement that classwide issues predominate over individual ones:  BSH Home Appliances Corp. v. Cobb, 13-138; Sears, Roebuck and Company v. Butler, 13-430; and Whirlpool Corp. v. Glazer, 13-431, known collectively and casually as the “smelly washing machine” cases.  If that last one sounds familiar, it may be because a previous iteration – Whirlpool Corp. v. Glazer, 12-322 – was held for Comcast during OT2012 and then GVR’d in light of that decision; the Sixth Circuit went ahead and affirmed class certification anyway.

Alabama readers have one more disappointment to contend with:  To the dual indignities of the January 2 Sugar Bowl loss to the Sooners and of being the setting for a thoroughly mediocre Reese Witherspoon romantic comedy, you can now add living in a jurisdiction that is subject to a “uniquely restrictive interpretation of the First Amendment.”  Or so says the petitioner in Lane v. Franks, 13-483.  Lane was the director of a community college at-risk youth training program.  Ostensibly, he was fired for budgetary reasons, but Lane claims he was actually given the boot in retaliation for (subpoenaed) testimony he gave in the federal fraud prosecution of an Alabama state legislator.  The Eleventh Circuit, in an unpublished opinion, held that Lane was not testifying as a citizen on a matter of public concern, and thus could not stake out a First Amendment retaliation claim.  (Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in Lane.)  It looks like Lane is being held so it can be considered with Bianchi v. Chrzanowski, 13-498, a case from the Seventh Circuit that raises a similar question that is on for the January 17 Conference.

Also out of the Dixie Circuit is Perez-Guererro v. Holder, 13-323, which asks whether federal courts have jurisdiction to review fact issues in Board of Immigration Appeals decisions concerning deferrals of removal.  The court of appeals there joined three others in holding that a provision in the REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(C), which limits Article III jurisdiction over asylum and withholding of removal, implicitly stripped federal courts of jurisdiction over deferral cases.

Heading out West, we come to Kansas v. Swindler, 13-52.  Besides having a surname that inspires immediate distrust, Jeffrey Swindler had the misfortune to find himself at the receiving end of questioning by Sunflower State investigators.  Swindler – suspected of raping an eleven-year old girl – voluntarily went for an interview at KBI offices.  The officers Mirandized Swindler before questioning, but he soon told the interviewers that he wanted to go home and needed to get to work.  Nevertheless, the investigators continued questioning; after several hours, Swindler made incriminating statements, provided two signed confessions, and even drew a diagram of the act.  He was convicted.  But not so fast, said the Kansas Supreme Court, which held that the statements Swindler made after he said he wanted to leave were procured involuntarily, and thus should have been suppressed.   In its petition, Kansas claims that there was no constitutional violation, and that even if at some point the noncustodial interview became custodial, that should have been only one factor to consider when looking at the totality of the circumstances.

Fugit v. United States, 12-10591, involves a clash of titans like we haven’t seen since 1974’s Rumble in the Jungle:   It seems that Judges Posner and Wilkinson disagree on the interpretation of “sexual activity” in 18 U.S.C. § 2422(b), which prohibits enticing a minor “to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense.”  The Seventh Circuit holds that “sexual activity” requires the defendant to make or attempt to make physical contact with the minor.  But the Fourth Circuit in Fugit rejected that approach, holding that “sexual activity” is undefined in the statute and that the element is not restricted to physical acts; thus, it held, Fugit ran afoul of the statute when he engaged a ten-year old in “inappropriate sexual conversation” in what youths refer to as a “chat room” and then later by something called a “telephone.”  Chris Hansen will walk in at any moment.

This week’s sole new capital case, Williams v. California, 13-494, is literally straight outta Compton.  Williams, an African American, was brought to trial on murder and robbery charges stemming from a drug deal gone bad.  Prosecutors used peremptory challenges to remove five of six qualified African-American female prospective jurors, ostensibly for reasons of “demeanor” but which Williams claims was motivated by racial and gender stereotypes.  When Williams challenged the challenges under Batson v. Kentucky, the trial court deferred to the prosecution, and then the California Supreme Court deferred to the trial court.  Williams’s petition claims that no court has conducted the last step of a proper Batson analysis:  That is, he says that he made out a prima facie showing of purposeful discrimination, then the prosecution offered a neutral explanation, but a court did not then independently assess that reason, evaluate the circumstances, and make an informed determination about the challenge.

And with that – praise the Heavens – we’ve come to the end of our exceedingly long post.  But don’t get too excited:  Refreshed by all of Monday’s talk of recess, the Justices will be conferencing again this Friday, which means we’ll be back here next week with yet another waste of electrons.

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


(relisted after the September 30, October 11, October 18, November 1, November 8, November 15, November 26, December 6, December 13, and January 10 Conferences)


(relisted after the January 10 Conference)


(relisted after the January 10 Conference)


(relisted after the January 10 Conference)


(relisted after the January 10 Conference)


(relisted after the January 10 Conference)


(relisted after the January 10 Conference)


(relisted after the January 10 Conference)


(relisted after the January 10 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jan. 16, 2014, 10:21 AM),