John Elwood reviews Tuesday’s relisted cases.

Greetings Court fans, and welcome back to another edition of Relist Watch.  As (both) our regular readers are well aware, we here at Relist Watch are hustlers, not ballplayers, but we still work hard not to throw wide of the mark.  The folks in black at One First Street have certainly been busy this week calling balls and strikes, so grab your peanuts and crackerjacks, and let’s play ball!

As always, we lead off with last week’s resolved cases.  After a string of relists that went into extra innings (ten relists), the Court finally reversed in Martinez v. Illinois, 13-5967, in a unanimous per curiam opinion.  To call it a “summary reversal” would seem a little inapt for a case that first appeared at the Long Conference.  Martinez, you’ll recall, asked whether jeopardy attaches when a jury is sworn after the prosecution refuses to participate.  The Court answered emphatically in the affirmative:  “Our cases have repeatedly stated the bright-line rule that ‘jeopardy attaches when the jury is empaneled and sworn.’  There is simply no doubt that Martinez was subjected to jeopardy.”  “[N]o doubt?”  So why did it take ten relists to produce a unanimous ten-page opinion?  For old time’s sake, we’ll throw in one more Jeopardy! themed hyperlink for the enjoyment of the IT people who are even now monitoring your profligate Internet use.  And for the record, we totally want to hang with Julia Collins, as long as she’s buying.

The Court granted cert. in Comptroller v. Wynne, 13-485, a one-time relist from the Maryland Court of Appeals, thereby extending to eighteen the Court’s streak of relisted grants.  Wynne asks whether the Constitution prohibits a state from taxing all the income of its residents – wherever earned – by mandating a credit for taxes paid on income earned in other states.

Being someone who wishes to postpone unpleasantness, we save for last the least fun of the resolved relists – the IT people remind you to please keep your tears from splashing on the keyboard – the denials.  The Court denied cert. this week in both Ryan v. Detrich, 13-868, a one-time relist in which the petitioner claimed ineffective post-conviction counsel procedurally defaulted on his ineffective-assistance-of-trial-counsel claims, and Tate v. Louisiana, 13-8915, a one-time relist asking whether Miller v. Alabama applied retroactively to prisoners whose sentences became final before the case was decided.  The Court also denied cert. in a dozen Confrontation Clause cases it relisted last week, all of which we’ll list here in an effort to waste even more electrons (and time) than usual: James v. United States, 13-632, Turner v. United States, 13-127; Brewington v. North Carolina, 13-504; Maxwell v. United States, 13-7394; Ortiz-Zape v. North Carolina, 13-633; Edwards v. California, 13-8618; Galloway v. Mississippi, 13-761; Yohe v. Pennsylvania, 13-885; Walker v. Wisconsin, 13-8743; Marshall v. Colorado, 13-7768; Arauz v. California, 13-9118; and Williams v. Massachusetts, 13-9930.  All asked whether forensic pathology reports are testimonial and, if so, whom the witness to be confronted is.  Before moving on, a tip of the hat to the unsung hero who helped Grunkle Sam make one-quarter of those cases seem uncertworthy.  Finally, while neither a denial nor even a relist, we continue to await an imminent, if perhaps ugly, dismissal in Ryan v. Hurles, 12-1472.  As previously reported here, Arizona officials have moved to dismiss the petition (which involves whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim) after the Ninth Circuit issued another revised opinion in the case. Rule 46 motions to dismiss ordinarily are granted with dispatch; the delay makes us wonder whether the dismissal will be accompanied by choice words, or perhaps after months of relists, all the dust that’s settled has gummed up the works.

Let’s move on to the repeat offenders.  We begin with a pair of relisted cases that are leftovers from last week.  Elmbrook School District v. Doe, 12-755, notched its eighth total relist on Tuesday (its second since the Court’s decision in Town of Greece v. Galloway.)  The case asks whether the Establishment Clause prohibits a public school from conducting a high school graduation in a church building, where the school selected the venue for reasons of convenience.  The first post-Greece relist had me hopeful; but the continued relists make its future murkier.  Campbell-Ponstingle v. Kovacic, 13-933, also earned another relist this week — its second, and perhaps its last.  Kovacic involves a qualified immunity claim by a social worker who was sued for removing children from their home without first obtaining a warrant; perhaps it will be GVR’d in light of Wood v. Moss and Plumhoff v. Rickard, the brace of qualified immunity opinions handed down Tuesday.

Among this week’s rookie relists is Elonis v. United States, 13-983.  In 2010, petitioner Anthony Elonis took to Facebook to post “crude, spontaneous and emotional language expressing frustration” about the loss of his job and the dissolution of his marriage.  The posts, which were “frequently in the form of rap lyrics,” prompted the authorities to arrest Elonis, who was charged and convicted of transmitting, in interstate commerce, a threat to injure the person of another.  The petition asks whether, consistent with the First Amendment, conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, or whether it is enough to show that a “reasonable person” would regard the statement as threatening.  Martinez v. United States, 13-8837, raises the same basic issue.  While Martinez has not been relisted, around the time Elonis was, the Martinez docket appears to have sprouted a superfluous May 29 distribution entry (that’s right, it has one extra), suggesting that someone has been fussing over the docket as though the Court will be considering the cases together at the upcoming Conference.  [Disclosure:  John Elwood, who contributes to this column in various capacities, serves as counsel to petitioner in Elonis.]

Also relisted this week are two “curve-lined” cases (what we might call a “double header” if we were still milking the baseball theme): Alabama Legislative Black Caucus v. Alabama, 13-895, and Alabama Democratic Conference v. Alabama, 13-1138, both of which implicate the Court’s mandatory jurisdiction.  The jurisdictional statements involve challenges to Alabama’s redistricting plans, which were adopted by the state’s legislature following the 2010 census, involving claims that the plans “unconstitutionally classify black voters by race by intentionally packing them in districts designed to maintain supermajority percentages [of black voters].”

Rounding out the new relists is an old case: Kansas v. Nebraska and Colorado, 126 Orig., which implicates the Court’s original jurisdiction.  The case, which has been pending since 1998, involves whether Nebraska violated a compact apportioning the waters of the no-it’s-really-named-that Republican River between Kansas, Nebraska, and Colorado; and if so, what relief is appropriate to remedy the violation.  In January 2014, the Court received the Special Master’s report.  No one has been able to read more than three pages of the filings without falling asleep, necessitating that the Court have a bit of more time to study the matter.  Let’s hope the Court puts the “ripe” back into “riparian” to resolve this dispute before the high plains states lose their premiere water-volleyball court.

And on that note, that’s today’s ball game.  Tune in next week to find out what happened.

Thanks to Conor McEvily and Dmitry Slavin for compiling and drafting this update.


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.

(rescheduled after the May 2 Conference, relisted after the May 15 and May 22 Conferences)


Issue(s): (1) Whether the Due Process Clause of the Fourteenth Amendment allows a social worker to take temporary custody of a child, without advance notice and pre-deprivation evidentiary hearing, when the social worker has probable cause to believe that the child has been abused; and, if not, whether the contrary legal principle was clearly established in 2002; and (2) whether the Sixth Circuit erred by conducting its qualified-immunity analysis of the children’s Fourth Amendment claim at a high level of generality and holding that the “absence” of case law specifically mentioning social workers was enough to clearly establish that the Fourth Amendment applies in the context of child-safety seizures by social workers in the same manner as in the criminal-law context.

(relisted after the May 15 and May 22 Conferences)

Disclosure: John Elwood, a frequent contributor to this blog, is among the counsel to the petitioner in the case.

Issue(s): (1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

(relisted after the May 22 Conference)

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

Issue(s): Whether Alabama's legislative redistricting plans unconstitutionally classify black voters by race by intentionally packing them in districts designed to maintain supermajority percentages produced when 2010 census data are applied to the 2001 majority-black districts.

(relisted after the May 22 Conference)

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

Issue(s): Whether Alabama’s effort to redraw the lines of each majority-black district to have the same black population as it would have using 2010 census data as applied to the former district lines, when combined with the state's new goal of significantly reducing population deviation among districts, amounted to an unconstitutional racial quota and racial gerrymandering that is subject to strict scrutiny and that was not justified by the putative interest of complying with the non-retrogression aspect of Section 5 of the Voting Rights Act; and whether these plaintiffs have standing to bring such a constitutional claim.

(relisted after the May 22 Conference)

126 Original

Issue(s): Whether Nebraska violated a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado; if so, what relief is appropriate to remedy the violation.

(relisted after the May 22 Conference)

Posted in Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 30, 2014, 9:31 AM),