Relist Watch: Confronting Life After Ryan v. Hurles

By John Elwood
on May 23, 2014 at 2:44 pm

John Elwood reviews Monday’s relisted cases.

We interrupt this blog with breaking (well, broken) news: You heard it here first, second, third, and fourth. The Justices may have their problems, but soon Ryan v. Hurles, 12-1472, will no longer be one of them. The Court reconsidered the reigning Relist King (which, one last time, involves whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim) a twenty-second time, but there will be no relist twenty-three: Arizona officials have moved to dismiss the petition after the Ninth Circuit issued another revised opinion in the case, more than a year after the last one. As Lyle has noted, this is not the end of the story; another petition is on the way. Stay tuned to this space for all your insomnia-defeating needs.

It will be hard to top that anticlimax, but let’s give it a try. The Court’s relist streak continues as this week’s lone grant was again a Relist Watch alumnus: Department of Homeland Security v. MacLean, 13-894, which had been relisted once. The case asks whether 5 U.S.C. § 2302(b)(8)(A) protects a federal air marshal fired for revealing information that is barred from disclosure by TSA regulations Meanwhile, Thomas v. Nugent, 13-862, which had been rescheduled once and relisted three times, was granted, vacated, and remanded for further consideration in light of the Court’s recent per curiam opinion in Tolan v. Cotton. That case was a qualified immunity claim that asked if it was clearly established that a police officer cannot tase a handcuffed prisoner eight times for refusing orders to stand up.

But not all that glitters is gold. One-time relist Pitcairn Properties, Inc. v. LJL 33rd Street Associates, LLC, 13-879, involving the ability of an arbitrator to exclude certain relevant evidence, will not be returning. Same for Sears v. Chatman, 13-8725, which asked whether Georgia’s Supreme Court improperly revisited the performance prong of Strickland v. Washington in a death penalty case after the U.S. Supreme Court vacated its earlier decision based on the prejudice prong. On the other hand, OBB Personenverkehr AG v. Sachs, 13-1067, which had been rescheduled once, has to like its chances after the Court called for the views of the Solicitor General. The hard-to-pronounce case asks (1) how courts should define “agent” under the Foreign Sovereign Immunities Act and (2) whether a personal injury claim related to injuries suffered while traveling abroad is based upon the allegedly tortious conduct that occurred abroad or the original sale of the ticket for travel in the United States. (If you haven’t clicked on that last hyperlink, you really need to do so now. I’ll wait while you do it.)

The departure of Ryan v. Hurles opens the field for the next Relist King. The current leader is Martinez v. Illinois, 13-5967, which this week picked up its tenth relist since the record arrived. The case, which asks whether jeopardy attaches when a jury is sworn after the prosecution refuses to participate, has been around so long that it has exhausted the universe of possible Saturday Night Live Jeopardy! parodies to hyperlink. Elmbrook School District v. Doe, 12-755, had been relisted six times before being held for a year for the recently decided Town of Greece v. Galloway. Like any great artist, it has come out of retirement and picked up its seventh relist. The case asks whether a public school runs afoul of the Establishment Clause by holding graduation ceremonies in a church that is way more comfortable than the school gym. On Tuesday, we’ll find out whether petitioners prevailed in their argument that the case still warrants review after Town of Greece.

We have a large number of debuts this week, thanks mostly to a gaggle of Confrontation Clause cases. Earlier, we identified James v. United States, 13-632, as one of the lead cases in this group and hypothesized that the Court had rescheduled them so that it could consider all the alternative vehicles together. James was relisted this week along with eleven of its closest friends: 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 of these cases ask some version of the same questions: whether forensic pathology reports are testimonial and, if they are used, who the witness to be confronted is.

Several other debutantes are looking to earn their place on the walk of fame. Comptroller of the Treasury of Maryland v. Wynne, 13-485 comes to us from the Old Line State; its Court of Appeals struck down all of Maryland’s county-level taxes on income earned outside the state as Dormant Commerce Clause violations. The Court called for the views of the Solicitor General back in January, conveniently delaying consideration until crab season. Uncle Sam recommends a grant, so there’s a decent chance that this week’s relist represents the Court’s final “quality check” before a grant.

Campbell-Ponstingle v. Kovacic, 13-933, is a rare qualified immunity case that involves neither guns nor tasers. Social worker Campbell-Ponstingle, citing exigent circumstances, removed the Kovacic children from their home without obtaining a warrant. The Kovacics sued, and the district court denied Campbell-Ponsingle’s qualified immunity claim. A divided panel of the Sixth Circuit affirmed, determining that exigent circumstances did not exist and that a warrant was required. Campbell-Ponstingle’s petition asks (1) whether it was clearly established that a social worker with probable cause to believe that a child has been abused cannot take custody of a child without advance notice and a pre-deprivation evidentiary hearing; and (2) whether the Sixth Circuit conducted its qualified immunity analysis at too high a level of generality by applying the Fourth Amendment to a social worker the same way as it would in a criminal case.

Arizona Department of Corrections director Charles Ryan may have lost his recurring role with the expected dismissal of Ryan v. Hurles, but he’s not leaving without a fight. He’s back with Ryan v. Detrich, 13-868, another state-on-top habeas case involving the always confusing situation of a petitioner claiming that he procedurally defaulted on his ineffective-assistance-of-trial-counsel claims because his post-conviction counsel was ineffective. The Court has seen Detrich once before. In 2010, the Ninth Circuit vacated Detrich’s death penalty but the Court remanded in light of Cullen v. Pinholster. This time around, the en banc Ninth Circuit, by a six-to-five vote, remanded the case back to the district court to determine whether Detrich’s procedural default should be excused under Martinez v. Ryan (there’s that name again) because of his post-conviction counsel’s alleged ineffectiveness. The petition raises two questions: (1) whether Martinez v. Ryan created a more lenient rule for procedural default excuse claims that involve underlying claims of ineffective assistance of counsel by combining cause and prejudice; and (2) whether a habeas petitioner must show that he was prejudiced by post-conviction counsel’s ineffectiveness or whether it is enough to demonstrate that he has a substantial ineffective assistance of trial counsel claim.

We end with Tate v. Louisiana, 13-8915, which comes to us from the A-list’s playground of the moment. In 1984, Tate was convicted of a second-degree murder he committed as a juvenile and sentenced to life imprisonment without parole. He unsuccessfully moved for resentencing in light of Miller v. Alabama. Tate, who is now just two years from AARP eligibility, asks whether Miller applies retroactively to prisoners whose sentences became final before it was decided.

That’s it for this installment. Hope everyone has a good Feast of Augustine of Canterbury on Monday, then we’ll see you back here next week when we do it all over again.

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

[page]12-1472[/page]

(relisted after the September 30, October 11, October 18, November 1, November 8, November 15, November 26, December 6, December 13, January 10, January 17, January 24, February 21, February 28, March 7, March 21, March 28, April 4, April 18, April 25, May 2, and May 15 Conferences)

[page]13-5967[/page]

(relisted after the February 21, February 28, March 7, March 21, March 28, April 4, April 18, April 25, May 2, and May 15 Conferences)

[page]12-755[/page]

(rescheduled after the May 2 Conference, relisted after the May 15 Conference)

[page]13-632[/page]