John Elwood reviews Monday’s relisted cases.

Well, it’s finally upon us:  le coupe du monde! That benevolent celebration of athleticism and sportsmanship that, once every four years, draws the world’s attention to a pitch and a game, and reminds us that, different though we may be, we all inhabit the same little blue football spinning through the cosmos.  That is, unless you’re American, in which case “soccer” is a game your nine-year-old daughter plays, and real football doesn’t begin for a few months.  While the World Cup has its uses – without it, how would you know which of your coworkers to distrust? – it’s all a distraction from America’s fastest-growing spectator sport, Relist Watch.

We begin as always by surveying last week’s damage.  After relisting it twice, the Court granted argument this week in Kansas v. Nebraska and Colorado, 126 Orig., involving a dispute over an interstate compact apportioning the waters of the Republican River, which has been flowing a bit less smoothly as of late.  Not wanting to be too precipitous in its handling of the case, which has been pending at the Court for a mere sixteen years, Monday’s order list merely specified that the case “has been set for oral argument in due course.”

The rest of last week’s relists have all lived to see another day.  Elmbrook School District v. Doe, 12-755, notched its tenth relist this week, its fourth since the issuance of Town of Greece v. Galloway.  The case asks whether a public high school can hold its graduation in a church for reasons of convenience without offending the Establishment Clause.  And Elonis v. United States, 13-983, and Martinez v. United States, 13-8837, picked up their third and second relists, respectively.  Both cases present the question whether, consistent with the First Amendment, a conviction for 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 the petitioner in Elonis.]

We’ve got a fearsome foursome of new hopefuls.  First up is Brown v. Shaw, 13-897, whose facts would sound contrived if they appeared on a law-school exam.  In 2000, while visiting Indiana to sell (we’re not making this up) magazine subscriptions, Shaw and his sales team encountered an uninvited guest in one of their motel rooms.  The group beat the man to death, with Shaw delivering the fatal blow.  Shaw was charged with aggravated battery, but the state later upped the charge to murder over Shaw’s objection that the greater charge was barred by a state law limiting the time for amending charging documents. After his conviction, Shaw’s new appellate lawyer abandoned the amendment argument and instead pressed a sufficiency-of-the-evidence claim that went nowhere.  Shaw filed a federal habeas petition urging that his appellate lawyer’s decision to forgo the charge challenge was constitutionally ineffective.  The district court denied habeas relief, but the Seventh Circuit reversed.  In its petition for certiorari, Indiana asks whether, in an ineffective assistance claim, “a state appellate court’s holding that an omitted state law issue ultimately lacked merit precludes a federal habeas court from later finding either deficient performance or prejudice relating to that omission under the standards of Strickland v. Washington.”  The Court doesn’t always grant state-on-top habeas cases, of course, but if relists are any guide (and I would think they are), it certainly gives them close consideration.

Next, we have two linked petitions, Perez v. Mortgage Bankers Association, 13-1041 and Nickols v. Mortgage Bankers Association, 13-1052 – both arising from the same suit and both addressing the scintillating subject of how federal agencies may revise their interpretive rules under the Administrative Procedure Act (APA).  The respondent in both cases, Mortgage Bankers Association (MBA), filed suit against the Department of Labor (DOL) seeking to invalidate a revised agency “Administrator’s Interpretation” (AI) under which mortgage loan officers were deemed not to qualify for an “administrative” employee exception under the Fair Labor Standards Act (FLSA).  The D.C. Circuit held that DOL violated the APA by issuing its revised AI of the FLSA regulations without notice and comment.  That clear?  The petitions in both Perez (the agency’s petition) and Nickols (the intervenors’ petition) ask whether the APA categorically prohibits agencies from revising their interpretive rules unless such revisions are made through notice-and-comment rulemaking.

Let’s all take a minute to recover from the excitement of the previous paragraph.

OK.  Composure regained.  Let’s push on to our last new relist, Whitfield v. United States, 13-9026, which comes to us from the state which may (or may not) be the future home of our next ex-president.  In 2008, petitioner Larry Whitfield attempted to rob a Gastonia, North Carolina, credit union with accomplice Quanterrious McCoy (aka, “Nefarious Quanterrious”).  The robbery went awry, as they tend to do, prompting Whitfield to seek refuge in the unlocked home of seventy-nine-year-old Mary Parnell.  While attempting to guide his getaway car to his location, Whitfield asked Parnell to go into an adjacent room, where she was later found dead of a heart attack.  Whitfield was apprehended and, in addition to being charged with three counts pertaining to the botched robbery, was also charged with violating 18 U.S.C. § 2113(e), making it illegal for a bank robber to force another to “accompany him,” which “if death results,” carries a mandatory life sentence and is a death-eligible crime.  (It’s not entirely clear whether the government satisfied the requirement, implicit in the term “accompany,” that the perpetrator and victim move together.)  Whitfield’s cert. petition asks whether Section 2113(e) “requires proof of more than a de minimis movement of the victim.”  Whitfield joins Bond v. United States and Yates v. United States, 13-7451, in 2014’s Dubious Exercise of Prosecutorial Discretion Hall of Fame.

Finally, the Court has rescheduled Lui v. Washington, 13-9561, for the June 19 Conference.  Lui is another forensic-report Confrontation Clause case that is likely being rescheduled so it can be considered with another case (or cases?) raising the same issue; however it seems doubtful that Lui will fare any better than the other Confrontation Clause cases raising similar issues that the Court recently denied.

And with that, we’ll let you return to your regularly scheduled programming.  See you all next week!

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


12-755

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, May 29, and June 5 Conferences)

13-983
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, May 29, and June 5 Conferences)

13-8837

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 and June 5 Conferences)

13-897

Issue(s): Whether, in a claim of ineffective assistance of appellate counsel, a state appellate court’s holding that an omitted state law issue ultimately lacked merit precludes a federal habeas court from later finding either deficient performance or prejudice relating to that omission under the standards of Strickland v. Washington and 28 U.S.C. § 2254(d).

(relisted after the June 5 Conference)

13-1041

Issue(s): Whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

(relisted after the June 5 Conference)

13-1052

Issue(s): Whether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and-comment rulemaking.

(relisted after the June 5 Conference)

13-9026

Issue(s): Whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.

(relisted after the June 5 Conference)

Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 12, 2014, 11:43 AM), https://www.scotusblog.com/2014/06/relist-watch-39/