Relist Watch

By John Elwood
on Oct 9, 2014 at 11:46 am

John Elwood reviews Monday’s relisted cases.

Greetings Court fans! Welcome back to yet another season of Relist Watch, which is kind of like Baywatch except that, instead of being a source of ironic enjoyment, this column is a source of no enjoyment.

The beginning of a new Supreme Court Term always brings an air of giddy anticipation, and the Nine certainly ramped up the excitement this year by rolling out a brand new website on Monday and announcing changes to the type of information the Court makes public on its docket. The rollout was every bit as smooth as we’ve come to expect for a new government website, although it took, um, over five days to update the dockets of cases to reflect that they’d been granted, and it took even experienced Court-watchers precious minutes to find “[w]here the [expletive] … orders list” was on the newly redesigned website. But as I keep telling my screen-crazed kids, the real fun was to be had offline, as the Supreme Court press corps learned when reporters reviewed paper copies of the Order List, which, in an apparent early observance of Earth Day, omitted thirty-three pages’ worth of denials, including a few splitless cases of narrow interest to a small handful of absolutely everyone. Fortunately, your loyal relist correspondents have been unaffected by these minor glitches: Our problems are way more fundamental.

The Court has relisted more than a dozen new cases, which means we’ve got a lot of ground to cover today, so let’s get started. But before we do, we should note that the Court’s long-running streak of only granting cert. in relisted cases ended last Thursday. Although some of the cases had been relisted along the way so the Court could consider additional materials it had requested from the parties or the Solicitor General, none had been relisted once all the papers had arrived. But the Court took longer than usual to announce grants after the Long Conference, suggesting that the law clerks fit the final quality control check into the few days before the announcement. Does this mean the Court will be ending the practice of relisting cases to check for vehicle problems? As usual, we have no idea. But we’ll keep an eye on it, because we have nothing better to do. By the way, we’ve already looked, and the briefs in opposition for the relisted cases didn’t arrive any later than the BIOs for the briefs that were granted last Thursday. So it’s not just that the Court drew a line at a certain cutoff date and relisted cases that fell after it.

The only old relist we’re aware of from OT2013 is Cope v. South Carolina, 13-8427, a two-time relist involving the rape and murder of Cope’s twelve-year-old daughter. Under police interrogation, Cope confessed to committing the crime; but some months later, DNA testing identified another suspect, James Sanders, a serial burglar and rapist who had been paroled shortly before the murder. As a defense to the prosecution’s theory that the men committed the crime together, Cope offered evidence that Sanders alone had committed four other burglaries and assaults at nearby homes. The trial court excluded Sanders’s other-crimes evidence, and the South Carolina Supreme Court affirmed. Cope’s petition asks (1) whether South Carolina violated his due process right to present a full defense by excluding evidence of an alternative suspect’s modus operandi; and (2) whether South Carolina erroneously evaluated his federal constitutional challenge to the exclusion of defense evidence in light of the prosecution’s evidence and theory of guilt, while failing to consider the actual issues the defense raised or the purposes of the evidentiary rules at issue. A good question presented answers itself; others suggest opportunities for gift-giving.

Take a swig of some good strong coffee because we’ve got a baker’s dozen first-time relists to get through before you pass out/return to your regularly scheduled programming. We begin with a sentimental favorite. At the magistrate’s request, the petitioner in Henderson v. United States, 13-1487, voluntarily turned over to the FBI fifteen firearms while unrelated marijuana charges were pending against him. After pleading guilty to the charges, Henderson asked the FBI to transfer his guns to an unrelated third-party to whom he had sold them. They refused, saying that allowing the transfer would give Henderson, a convicted felon, constructive “possession” of firearms prohibited by 18 U.S.C. § 922(g). The district court and Eleventh Circuit agreed with Grunkle Sam. The Third, Sixth, and Eighth Circuits basically agree; the Second, Fifth, and Seventh Circuits basically disagree. Henderson is looking for a definitive answer. [Disclosure: John Elwood, who purportedly contributes to this column in various capacities, serves as counsel to petitioner in Henderson.]

Next, we’ve got a quartet of cases from the Ninth Circuit. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, 13-1313, stems from a California Health & Safety Code law banning the sale of any product that “is the result of force feeding a bird for the purpose of enlarging the bird’s liver.” I know what you’re thinking: Does this prohibit the sale of DVDs including that 1999 Iron Chef episode? But causation is a bit more direct here. Petitioners, who represent producers of foie gras in Canada and New York, challenged the state law in federal court on the ground that it is unconstitutional as applied to the sale of products that result from activities entirely outside California. After losing in the trial and appellate courts, petitioners seek cert. on the issue of “[w]hether the Commerce Clause allows California to impose a complete ban on the sale of wholesome USDA-approved poultry products from other States and countries … based solely on the agricultural methods used by out-of-state farmers who raise their animals entirely beyond California’s borders.” The Court denied cert. in June on a very similar issue involving California’s efforts to affect production beyond its borders in Rocky Mountain Farmers Union v. Corey, 13-1148, but that involved the altogether quotidian product ethanol, which apparently was not enough to goose the Justices into action.

Moving to slightly less rarified circles, the respondents in City of Los Angeles v. Patel, 13-1175, are L.A. motel owners who complain that their registration records have been continually and unconstitutionally searched pursuant to a city ordinance allowing police to demand inspection of motel records at any time without a warrant or consent. After the federal district and appellate courts rejected the motel owners’ challenge to the ordinance, a Ninth Circuit en banc panel reversed, finding that the ordinance facially violated the Fourth Amendment. The city’s cert. petition asks (1) whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether, under the Fourth Amendment, a hotel has an expectation of privacy in a hotel guest registry. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as co-counsel to the respondent in this case.] Richards v. Ernst & Young, LLP, 13-1274, stems from a suit against the respondent for allegedly violating California labor laws. After extensive discovery, Ernst & Young moved to stay litigation and compel arbitration pursuant to an arbitration clause. The district court denied the arbitration motion, finding that Ernst & Young had intentionally proceeded with litigation and not arbitration, but the Ninth Circuit reversed, holding that the petitioner had not established prejudice as a result of Ernst & Young’s delay in asserting its arbitral rights. The petitioner asks (1) whether a party is required to demonstrate prejudice after the opposing party waived its contractual right to arbitrate by participating in litigation, in order for such waiver to be binding and irrevocable; and (2) if prejudice is required, what constitutes sufficient prejudice in order to find “wavier”? If you’re thinking, “hey, didn’t the Court previously grant on question 1 in Stok & Assocs., P.A. v. Citibank, N.A., which was later dismissed by agreement?,” you’re right. It also means you’re lying, because that’s way too obscure for anyone to remember.

We end the Ninth Circuit hit parade with Chappell v. Ayala, 13-1428, which is a more familiar subject matter for that court’s relist docket: a state-on-top habeas case, this one involving the jury selection phase of a California murder trial. After being questioned by the trial court about using peremptory challenges to strike minority jurors, the court granted the prosecutor’s request to provide his reasons ex parte to avoid divulging matters of trial strategy. The jury convicted Ayala, and the California Supreme Court affirmed. Though the state supreme court held that, as a matter of state law, the trial court erred in conducting the hearing ex parte, it determined that the errors were harmless. A federal district court denied Ayala habeas relief, but the Ninth Circuit reversed, determining that the presumption that the state court had adjudicated Ayala’s federal claim on the merits had been rebutted, and holding that excluding the defense from the ex parte hearing was both unconstitutional and prejudicial. The petition presents the question “[w]hether a state court’s rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an ‘adjudicat[ion] on the merits’ within the meaning of 28 U.S.C. § 2554(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision.” Bryan Garner to the white courtesy phone, please.

It is separated from the Ninth Circuit by less than two hundred miles, but the Fifth Circuit is a world away. Two relists hail from that court. In Brumfield v. Cain, 13-1433, the petitioner was sentenced to death in Louisiana for murder. Shortly after the issuance of Atkins v. Virginia—declaring it unconstitutional to execute a defendant with an intellectual disability – Brumfield sought state habeas relief, which was denied on the grounds that his disability was not evident from his pre-Atkins trial transcripts. Brumfield then successfully sought habeas relief in federal district court, which held that, by denying Brumfield an Atkins hearing, the state court based its decision on an unreasonable determination of the facts. The court also held that the state court acted contrary to Atkins and Ford v. Wright by refusing to provide Brumfield with funding because he had no other means to develop his claim. After a trial, the district court recognized Brumfield’s disability, but the Fifth Circuit reversed. In his petition, Brumfield asks (1) “[w]hether a state court that considers evidence presented at a petitioner’s penalty phase proceeding as determinative of petitioner’s claim of mental retardation under Atkins [] has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) [w]hether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his ‘opportunity to be heard,’ contrary to Atkins and [Wainwright], and his constitutional right to be provided with the ‘basic tools’ for an adequate defense.”

Johnson v. City of Shelby, 13-1318, involves city officers who filed a federal suit complaining that the City of Shelby, Mississippi had terminated them in violation of their Fourteenth Amendment due process rights. On summary judgment, the district court declined to address the merits of their case, ruling for the city because the complaint failed to cite the statute authorizing their cause of action, 42 U.S.C. § 1983, The Fifth Circuit affirmed the judgment. On cert., the petitioners ask (1) “[i]s a federal complaint subject to dismissal when it fails to cite the statute authorizing the cause of action”; (2) “[d]o the lower federal courts have authority to create pleading requirements for complaints when those requirements are not contained in the Federal Rules of Civil Procedure”; and (3) “[s]hould a federal complaint be dismissed when it alleges the elements of a 42 U.S.C. § 1983 claim, but does not cite 42 U.S.C. § 1983?”

Samantar v. Yousuf, 13-1361, is on its third trip to the Supreme Court, and stems from a suit filed by respondents under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA) for actions Samantar undertook in his official capacity as the First Vice President, Minister of Defense, and Prime Minister of Somalia. In its first time up, the Supreme Court held that than the Foreign Sovereign Immunities Act did not apply to the immunity of state officials (as opposed to immunity of the foreign state), but common-law immunity might. On remand, the Fourth Circuit created an exception to common-law immunity, holding that a foreign official is not entitled to common-law immunity for acts performed in an official capacity whenever plaintiffs in a civil suit allege that those acts violate jus cogens norms of international law. Samantar’s petition questions the validity of this “exception to common-law immunity that swallows the rule.” Kahn v. Chowdhury, 13-1479, likewise involves claims under the ATS and TVPA, but they arise in a classic civil procedure context. A jury found that Khan was liable to Chowdhury for the former’s involvement in the latter’s torture; however the jury verdicts did not distinguish between the ATS and TVPA claims. While on the appeal to the Second Circuit, the Supreme Court handed down Kiobel v. Royal Dutch Petroleum Co., which effectively invalidated Chowdhury’s ATS legal theory. The Second Circuit acknowledged that the ATS claim was legally invalid, and noted that ordinarily, under the “general verdict rule,” a new trial is required where there is no way to know that an invalid claim was not the sole basis for a verdict. But the court nevertheless upheld the verdict against Khan on harmless error grounds. On cert., Khan asks whether, “[w]here one of the claims submitted to a jury is set aside after trial, must a court vacate the jury’s general verdict, or may the court apply a ‘harmless error’ exception?”

Just four more and we’re done with the longest list of the Term.

Two from the Sixth: In Kalamazoo County Road Commission v. Deleon, 13-1516, Deleon filed a suit against the Kalamazoo County Road Commission under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act as a result of a job transfer that he voluntarily sought but which ended up being less than he’d hoped for. The district court granted summary judgment to the Commission, but the Sixth Circuit reversed, holding that “a transfer may classify as an adverse employment action where it constitutes a ‘constructive discharge.’” In its cert. petition, the Commission seeks a rule that, absent employer coercion or working conditions that are so intolerable that a person would feel compelled to transfer, “an employer’s grant of an employee’s transfer request is not an adverse action for purposes of discrimination and retaliation laws.” In a very different vein, Volkman v. United States, 13-8827, concerns jury instructions regarding a charge under the Controlled Substances Act. Dr. Volkman, a board-certified physician, was indicted for knowingly and willfully distributing and dispensing controlled substances outside the usual course of medical practice. At his trial, Volkman proposed the following jury instruction: “in order to find the defendant guilty … you must find that he used his prescription[-]writing power as a means to engage in … illicit drug dealing and trafficking as conventionally understood.” The court rejected this instruction and the jury convicted Volkman of a spate of federal violations, yielding sentence of four consecutive life terms. Volkman’s petition challenges the denial of his proposed jury instruction.

The petitioners in Jones v. United States, 13-10026, were indicted for, among other things, violations of federal drug conspiracy and distribution statutes. After a lengthy trial, the jury acquitted them of all charges except for distributing “street-level” quantities of crack cocaine. During the sentencing phase, they argued that the Sixth Amendment prohibited the court from punishing them on the basis of acquitted conduct, and further urged that the Sixth Amendment as articulated by Justice Scalia in his concurrence in Rita v. United States, precluded inflating their base offense through an (advisory) Sentencing Guidelines calculation that included judge-found facts rejected by the jury. The district court nevertheless factored acquitted conduct into the petitioners’ sentencing, and the D.C. Circuit affirmed. Quoting another concurrence by Justice Scalia, the petitioners ask whether “‘[t]he door remain[s] open’ for a defendant to demonstrate that a sentence would not be ‘upheld but for the existence of a fact found by the sentencing judge and not by the jury.’”

Finally, Carroll v. Carman, 14-212, concerns the particularities of what, in Fourth Amendment lingo, is called a “knock and talk,” among people who think those words really rhyme. After Pennsylvania state trooper Carroll received a dispatch to search for a burglary suspect, he and another trooper arrived at the Carmans’ house on Raspberry Path in Dingman’s Ferry, Pennsylvania. The troopers approached the house from a sliding door on the back deck, which they said “looked like the customary entryway” for visitors, hoping to speak with the Carmans. Mr. Carman spoke to them, and a scuffle ensued, and Mrs. Carman nevertheless gave them permission to search the house for a “person of interest” who was not there. The Carmans later sued Carroll for violating their Fourth Amendment rights and the jury returned a verdict in Carroll’s favor. On appeal, the Third Circuit determined that the district court should have granted summary judgment as a matter of law on the Carmans’ unlawful entry claim, holding that “a ‘knock and talk’ encounter must begin at the front door because that is where police officers, like any other visitors, have an implied invitation to go.” Carroll’s petition presents two questions: (1) “[w]hen a police officer approaches a residence to conduct a ‘knock and talk,’ does the Fourth Amendment require the office to go to the ‘front door’ even where it reasonably appears that some other entrance is also customarily used by visitors?” and (2) whether the court of appeals erred in holding that such a rule was “clearly established” for purposes of qualified immunity.

Alright folks, that’s it for this week. We’re too punch-drunk at this point to come up with a final quip, so instead we’ll just leave you with the biggest waste of bandwidth on the Internet this week. See you next time!

Thanks to Ironman Conor McEvily for compiling and drafting this update.

_________________________

[page]13-8427[/page]

(relisted after the June 19 and September 29 Conferences)

[page]13-1487[/page]

(relisted after the September 29 Conference )

[page]13-1175[/page]