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Relist Watch

John Elwood reviews Monday’s relisted cases.

It has been a rough month since our last installment. Much of the country, from the Dakotas to Dallas, has seen record low temperatures, causing pipes to burst, and creating icy roads and massive pile-ups. Boston has endured more snowfall than at any time since wooly mammoths roamed the area. On several occasions, the D.C. area received as much as three-quarters of a centimeter of snow, causing even less to get done than usual. But on the other hand, we made it almost all the way through February without Relist Watch, so things have been pretty good overall.

We begin, as always, with old business, which will be pretty fast work this week. Shao v. Wang, 14-7244, the once-rescheduled child-custody case from California’s intermediate court of appeals, seemed like it might have a shao-cause order in its future, but the Court simply denied the petition outright this week. While the Court is done with the case, that won’t stop us from receiving emails from petitioner’s counsel for some time yet.

Next is the current relist king, the four-time relisted Bower v. Texas, 14-292, involving a quadruple homicide from so long ago that people still thought I had promise. The petitioner in Bower asks (1) “[w]hether the former Texas special issues for death penalty sentencing [provide] . . . an appropriate vehicle for the jury to consider and give full effect to mitigating evidence of good character [under Penry v. Lynaugh]”; (2) whether the state’s post-trial disclosure of evidence relating to ammunition used in the crime resulted in a violation of the Fifth and Fourteenth Amendments under Brady v. Maryland; and finally, the so-called Lackey claim: (3) whether “executing a defendant who has already served more than 30 years on death row” amounts to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. In early February, the Court granted Bower a stay of execution, so something is going on here. We depart from our usual practice of hermetically sealing new and old relists to note that Bowers’ Lackey claim got some new company this week: the newly relisted Davis v. Ohio, 14-7426. This is the biggest bunch of Lackeys the Court has seen since, well, the bar section at the last business case.

Our last returning relist is Kansas v. Gleason, 14-452, in which the Sunflower State seeks to revisit the Kansas Supreme Court’s decision that it violates the Eighth Amendment for a trial court to fail “to affirmatively inform the [capital-sentencing] jury that mitigating circumstances need not be proved beyond a reasonable doubt.” Shadowing Gleason are two returning rescheduled cases that raise the same issue involving Wichita brothers Reginald Jr. and Jonathan D. Carr, Kansas v. Carr, 14-450, and Kansas v. Carr, 14-449, which the Court has now rescheduled for the March 20 Conference. Joining the state’s petitions for that Conference is Reginald’s own petition in Carr v. Kansas, 14-6810, which asks whether a “jury view” of locations relevant to a criminal case is a critical stage of a criminal trial requiring the presence of a defendant and assistance of counsel.

Even the new business this week isn’t all that new. The big news in the relist world this week (acknowledging that everything is the relist business is by definition “Small Ball”) is that the Court is auditioning potential replacements for Toca v. Louisiana, 14-6381, which was dismissed after the state released the petitioner. That case involved the retroactivity of the Supreme Court’s decision in Miller v. Alabama, holding that a sentencing minors to life imprisonment without the possibility of parole violates the Eighth Amendment. The Court has relisted a bevy of potential replacements for this Friday’s conference, including Montgomery v. Louisiana, 14-280 (second relist since the Court received the state’s brief in opposition); Tolliver v. Louisiana, 14-6673 (second relist since the Court received the state’s brief supporting the petition), and DeMola v. Johnson, 13-10288 (second relist). Which vehicle the Court will take depends on vehicle issues that I’m way too lazy busy to sort out, but Louisiana acquiesced in Tolliver and California is ably represented by former Assistant to the Solicitor General (and former Federal Circuit nominee) Ed DuMont in DeMola. If you’re wondering how those cases are racking up their second relist when you’ve never heard of them before, that’s because on February 9, the Court took each of them out of stasis they’ve been lingering in since their original Conferences and relisted them for the February 20 Conference. In addition, the Court has rescheduled Davis v. Michigan, 14-8106, which raises the same issue, to an as-yet-to-be-determined Conference. There are still others in the pipeline, but they are further behind in briefing.

Elsewhere in old new business: Inveterate time-wasters will be familiar with Bronx Household of Faith v. Board of Education of the City of New York, 14-354, from its first time on the relist rolls. The petition challenges the New York Board of Education’s policy excluding groups engaging in “religious worship services” from the types of community welfare groups that can use public school buildings after hours as a violation of the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses. But there are worse things than not having someplace for your after-school program to meet.

On to the new new business. There is a fair amount of it this week. Hawkins v. Community Bank of Raymore, 14-520, concerns development of a residential subdivision in (I’m not making this up) Peculiar, Missouri (town motto, also not made up: “Where the odds are with you.”). When an LLC that owned the development borrowed money from the bank, it required the wives of the owners to sign the loan agreement, agreeing to be “primarily and unconditionally liable” for the debt, so the bank could pursue them first, before pursuing the LLC’s owners. The petition asks whether (1) such spousal guarantors are categorically excluded under the Equal Credit Opportunity Act from being “applicants” for credit and (2) whether the Federal Reserve Board has authority by regulation to classify such guarantors as “applicants” to eliminate discrimination against married women. Maybe the Court will call for the views of the Solicitor General if that one sticks around.

On to the criminal side of the docket. Ocasio v. United States, 14-361, involves a bribery ring in Baltimore under which the owners of a car-repair shop paid police officers to refer to them business resulting from the car collisions to which they responded. Officers were charged with (among other things) conspiring with the shop owners to extort money from … the shop owners. The case presents the question whether a Hobbs Act conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.

Towles v. Pennsylvania, 14-7656, which comes from a place better known for mildly embarrassing place names than aggravated murder, asks whether the Due Process Clause requires that state procedural laws designed to ensure jurors properly weigh aggravating and mitigating circumstances be followed in capital cases. There, jurors did not check a box on a verdict form indicating that the aggravating factors the jury found outweighed the mitigating factors (one of which was the incongruous-sounding, “the emotionally charged atmosphere at the Mighty Dog contributed to [the defendant’s] poor decision making”). Nor did the trial judge, when polling the jury, ask the jury the reason for their verdict of death. Meanwhile, Hurst v. Florida, 14-7505, a capital case involving the murder of the manager of a Florida Popeyes restaurant, asks two questions: (1) whether a penalty-phase jury has a constitutional obligation to render a verdict on whether the defendant is intellectually disabled when evidence has been presented to support such a conclusion; and (2) whether Ring v. Arizona applies to Florida’s capital sentencing scheme, which requires a judge to impose a sentence after considering the jury’s (potentially non-unanimous) recommendation.

But wait—there’s more! Rescheduled cases, that is. Petitioners in on 8 v. Padilla, 14-434, who are opponents of same-sex marriage, argued unsuccessfully for a First Amendment-based exemption from California’s campaign-finance disclosure requirements, because of past incidents of harassment. Their petition raises two questions: (1) whether their First Amendment challenge seeking exemption from California law’s disclosure requirements is moot regarding expungement of past records and further release of those records; and (2) whether the case comes within the mootness exception for cases capable of repetition yet evading review. The case was rescheduled on January 22 for this Friday’s Conference.

University of Notre Dame v. Burwell, 14-392, was rescheduled on February 18 for this Friday’s Conference. The University of Notre Dame claims a religious exemption from regulatory requirements under the Affordable Care Act regarding “abortion-inducing products, contraception, and sterilization,” but have been unsuccessful in the lower courts. Their petition asks whether the judgment below should be vacated and the case remanded for further consideration in light of Burwell v. Hobby Lobby Stores, Inc., and Wheaton College v. Burwell.

Finally, Carpenter Co. v. Ace Foam, Inc., 14-577, also was rescheduled on February 18 for this Friday’s Conference. The petition, which is the latest twist in a huge antitrust class action involving allegations of price fixing in the polyurethane foam industry, presents two questions: (1) Whether the standing requirements of article III apply to all members of a class certified under Federal Rule of Civil Procedure 23; and (2) whether certifying a class under Rule 23(b)(3) is improper where individualized damages issues predominate, and where plaintiffs rely exclusively on aggregate damages models that calculate damages purportedly incurred by the class as a whole, rather than by individual class members.

As if the unremitting dismal weather weren’t depressing enough, we’ll be back next week to discuss the fall-out from the February 27 Conference. Until then, keep warm!

Thanks to Ralph C. Mayrell for compiling this update.



(relisted after the November 25, 2014 and February 20, 2015 Conferences)


(relisted after the January 9 and February 20 Conferences)


(relisted after the January 9, January 16, and January 23, and February 20 Conferences)


(relisted after the February 20 Conference)


(relisted after the February 20 Conference)


(rescheduled for the February 27 Conference)


(rescheduled for the February 27 Conference)

[page]14-450[/page] and [page]14-449[/page]

(rescheduled for the March 20 Conference)


(relisted after the January 23 and February 20 Conferences)


(relisted after the February 20 Conference)


(rescheduled for the February 27 Conference)


(relisted after the January 23 and February 20 Conferences)


(rescheduled for the March 20 Conference)


(relisted after the February 20 Conference)


(relisted after the February 20 Conference)


(relisted after the February 20 Conference)


(rescheduled for still-unspecified Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Feb. 27, 2015, 9:15 AM),