John Elwood reviews Monday’s relisted cases.

This is it.  The end.  We’ve long known that Hollywood was out of ideas.  How else do you explain Anchorman 2, The Hangover Part III, or Zookeeper, the groundbreaking film that proved a movie doesn’t need to be a sequel to be excruciating.  Heck–the movie industry is so hard up that it is recycling a movie about reliving the same dayThe Court is having its own problem with retreads.  As you will see, our only “new” relist this week is just a bootleg version of one of last week’s relists. 

But first, let’s review last week’s box office hits and flops.   If you’re reading this, the odds are good that you’ve had your head flushed in a toilet at some point for maintaining a fine distinction long past the point at which it became annoying.  So you’ll appreciate that there were no grants this week — the Court just noted probable jurisdiction in a couple cases off its tiny mandatory jurisdiction docket:  Alabama Legislative Black Caucus v. Alabama, 13-895 (limited to Question 2), and Alabama Democratic Conference v. Alabama, 13-1138 (limited to Question 1).  These consolidated cases challenge the legality of Alabama’s redistricting plan, which appellants claim unconstitutionally packs minorities into districts they already dominate.  Both these cases were relisted once, so the streak continues.

Great news for our team of spellcheckers:  The Court denied cert in Campbell-Ponstingle v. Kovacic, 13-933, sending the two-time relist straight to DVD.  The case asked whether a social worker is entitled to qualified immunity for removing an allegedly abused child from her mother’s home without notice or a warrant.

Now on to the parade of sequels.  Elmbrook School District v. Doe, 12-755 has been redone more times than Spider-ManElmbrook has now picked up its ninth total relist and third since the Court’s decision in Town of Greece v. Galloway revived its career.  The case asks whether a public high school can hold its graduation in a church for reasons of convenience without offending the Establishment ClauseKansas v. Nebraska and Colorado, 126 Orig., has been around since 1998 and is apparently in no rush to move out, as it picked up its second relist.  The case is a dispute over an interstate compact apportioning the waters of the Republican River.  If the river were as turgid as the docket, we wouldn’t be in this mess:  The parties have filed a total of three sur-replies, a type of pleading outlawed by the Geneva Convention on humanitarian grounds.

Elonis v. United States, 13-983, also obtained its second relist.  That case, involving a Pennsylvania man arrested for impersonating Eminem without a license, 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.  [Disclosure:  John Elwood, who purportedly contributes to this column in various capacities, serves as counsel to petitioner in Elonis.  Probably about as well as he does this column.]  Our lone new relist is Martinez v. United States, 13-8837, a spinoff of Elonis presenting the same issue (and a related question about the facial invalidity of the federal threat statute).  Ms. Martinez, inspired by a firebrand radio host’s call to exercise Second Amendment rights, emailed the host and explained that she was “planning something big around a [local] government building.”  The police, apparently assuming her plans involved something other than Public Service Recognition Week, arrested her.

Finally, in a no-longer-relist-related note, the Court finally dismissed Ryan v. Hurles, 12-1472, a mere fifteen days after petitioner submitted his motion to dismiss.  Our long national nightmare is over.

Unlike Hollywood, we strive to keep things short, if not sweet.  Send your script ideas to One First Street, and maybe next week we will have something new to discuss.

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, May 22 and May 29 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 and May 29 Conferences)


Issue(s): (1) Whether the First Amendment protects political speech that is uttered without the subjective or specific intent to threaten or intimidate; or, in the alternative, (2) whether 18 U.S.C. § 875(c), which makes it a federal offense to “transmit[] in interstate or foreign commerce any communication containing . . . any threat to injure the person of another,” is facially overbroad.

(relisted after the May 29 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 and May 29 Conferences)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 6, 2014, 10:09 AM),