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Relist Watch

John Elwood reviews Monday’s relisted cases.

The words “Snow Day!” bring a curl to the lips of all but the gloomiest sourpuss. But this snow day also poses grave hazards. Outside, incessant snow creates slick conditions that threaten drivers and pedestrians with catastrophic injury. Inside, incessant King v. Burwell spin pieces clog readers’ Twitter feed, keeping them from the photos of cute cats, rulers stuck in snow, and bacon donuts that they need to survive. (Not to be outdone, we offer our own highly analytical prediction about the likely votes of the Chief Justice and Anthony Kennedy.) So daunting is this influx that the average user has only checked Twitter 847 times today. But neither snow nor rain nor . . . you know, all that other stuff — keeps Relist Watch from its appointed rounds.

You know the drill: first old, then new. Both this week’s winners of golden tickets are one-time relists: Hawkins v. Community Bank of Raymore, 14-520, the Peculiar case that asks whether (1) loan applicants’ spouses who act as 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. And Ocasio v. United States, 14-361, the peculiar case that asks whether a Hobbs Act conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy, or whether it’s enough to conspire with the people whose money they’re taking.

But the news is never all good. The Court threw in the Towles v. Pennsylvania, 14-7656, denying cert. in the capital case that asked whether the Due Process Clause requires jurors to follow state procedural laws designed to ensure that they properly weigh aggravating and mitigating circumstances. A murder defendant from the land of weird facial hair and frumpy clothing complained that jurors did not check a box on a verdict form to confirm that the aggravating factors they found outweighed the mitigating ones. The Court also denied cert. in Davis v. Ohio, 14-7426, the capital case that briefly accompanied Bower v. Texas, 14-292, in presenting a so-called Lackey claim that long delay in imposing the death penalty during the pendency of appeals and collateral challenges violates the Eighth Amendment. The denial suggests the Justices are not interested in addressing that issue, which may explain why Justice Breyer (who has been banging the drum) dissented from the denial — although without opinion.

The cold streak for rescheduled cases continues, as two of last week’s group were denied without comment: Carpenter Co. v. Ace Foam, Inc., 14-577, the big polyurethane foam antitrust class action presenting class-certification questions; and on 8 v. Padilla, 14-434, which challenged a mootness determination in a case involving opponents of same-sex marriage who sought a First-Amendment-based exemption from California’s campaign-finance disclosure requirements.

Aside from those cases, everything that was old is new again, as the balance of last week’s relists are back for another trip on the relist snow patrol. The current relist king, the five-time relisted Bower v. Texas, 14-292, is back once more, involving: (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 an unlikely-to-prevail Lackey claim: (3) whether “executing a defendant who has already served more than 30 years on death row” amounts to cruel and unusual punishment.

Kansas v. Gleason, 14-452, is also back again, in which America’s Breadbasket 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.” One more relist and two rescheduled cases involving the same issue will finally catch up to Gleason: Kansas v. Carr, 14-450, and Kansas v. Carr, 14-449, cases involving brothers convicted of murder that have been biding their time for the March 20 Conference. Elsewhere on the criminal docket, Hurst v. Florida, 14-7505, a capital case involving the murder of the manager of a Florida Popeye’s 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.

Retroactivity is back! The Court has been auditioning potential successors to replace Toca v. Louisiana, 14-6381, the now-dismissed case involving the retroactivity of the Supreme Court’s decision in Miller v. Alabama, holding that sentencing minors to life imprisonment without the possibility of parole violates the Eighth Amendment. Presumably, the Court has already decided the issue is cert.-worthy, so the only question is which vehicle is best. Evidently, that is time-consuming work: The Court has relisted each of the potential replacement workers again this week. The Justices are considering Montgomery v. Louisiana, 14-280 (third relist since the Court received the state’s brief in opposition); Tolliver v. Louisiana, 14-6673 (third relist since the Court received the state’s brief supporting the petition), and DeMola v. Johnson, 13-10288 (third relist). In addition, we’re still waiting to hear which Conference the Court selects for the rescheduled Davis v. Michigan, 14-8106, which raises the same issue. (As an aside, the Fourth Circuit just weighed in on this issue today, holding that Miller is not retroactive.)

Bronx Household of Faith v. Board of Education of the City of New York, 14-354, notched its second relist, thus surpassing the single relist the case got during its first trip to the Supreme Court. The petition challenges the New York Board of Education’s policy excluding groups engaging in “religious worship services” from among the community welfare groups allowed to use public school buildings after hours as a violation of the First Amendment’s Free Exercise, Establishment, and Free Speech Clauses. If only the group would incorporate (say) a twenty-foot inflatable cat head that projects crowd-sourced art into its services, it would be getting somewhere.

Finally! On to the new relists. There are three. University of Notre Dame v. Burwell, 14-392, was rescheduled last time we checked in, but its condition was upgraded to “relist” this week, which, statistically, is where you want to be. The university claims a religious exemption from regulatory requirements under the Affordable Care Act regarding “abortion-inducing products, contraception, and sterilization,” but it was unsuccessful in the lower courts. The 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. Petitioner explicitly asks only that the Court “GVR” — grant the petition, vacate the judgment below, and remand for consideration in light of precedents the court below previously did not have occasion to consider. Next week we’ll find out what the Court has in store for the Fighting Irish.

DIRECTV v. Imburgia, 14-462. The DIRECTV customer agreement provides for arbitration in the unlikely event that a customer has a dispute with the company. The agreement explicitly states that neither party “shall be entitled to join or consolidate claims in arbitration” and that arbitration is covered by the Federal Arbitration Act (“FAA”). The customer agreement goes on to say that “[i]f … the law of your state would find this agreement to dispense with class action procedures unenforceable, then this entire Section [on arbitration] is unenforceable.” Recall that in AT&T Mobility LLC v. Concepcion, the Supreme Court held that the FAA preempted California’s so-called Discover Bank rule, which conditioned the enforceability of consumer arbitration agreements on the availability of classwide arbitration. The California court of appeals nonetheless held that the “law of your state” provision referred to California law before being preempted by federal law, and thus held the class-action waiver invalid and refused to enforce the entire arbitration agreement. The Ninth Circuit, apparently interpreting the very same agreement in a case involving another DIRECTV customer, called that argument “nonsensical.” DIRECTV argues, not without force, that there is conflict in need of resolution.

Last up is Woods v. Donald, 14-618. The lawyer for Cory Donald, a defendant in a multi-defendant murder case, was absent from trial for ten minutes while the court received evidence about co-defendants that, in the words of Donald’s trial counsel, “doesn’t affect m[y client] at all.” The Michigan state courts affirmed his conviction, rejecting Donald’s ineffective assistance of counsel claim. The courts held that that Donald must show the alleged deficiency in representation had an effect on the reliability of the trial, because he had not shown that that he had been denied the presence of counsel at a “critical stage of his trial” sufficient to presume prejudice under United States v. Cronic. A federal district court then granted Donald’s habeas petition, holding that the state courts’ failure to apply Cronic was an “unreasonable application of clearly established federal law” sufficient to warrant habeas relief under the strictures of AEDPA. A divided panel of the Sixth Circuit affirmed. The state now seeks cert. on two questions: (1) Whether the Michigan courts’ decision not to extend Cronic to cover counsel’s brief absence from trial was an “extreme malfunction” entitling the petitioner to habeas relief; and (2) whether the Michigan courts reasonably determined that Donald had not shown Strickland v. Washington prejudice flowing from his counsel’s brief absence during the taking of evidence that did not inculpate his client. As with any relist of a state-on-top petition from the Sixth or Ninth Circuit in a habeas case, the summary reversal speculation begins now.

We’ll be back next week with more minutiae about stuff you couldn’t care less about. But after that, a welcome week off for all of us. Until next time, live long and prosper!

Thanks to Stephen Gilstrap for compiling this update.



(relisted after the November 25, 2014, February 20, 2015, and February 27, 2015 Conferences)


(relisted after the January 9, February 20, and February 27 Conferences)


(relisted after the January 9, January 16, and January 23, February 20, and February 27 Conferences)


(relisted after the February 20 and February 27 Conferences)


(relisted after the February 27 Conference)


(relisted after the January 23, February 20, and February 27 Conferences)


(relisted after the February 27 Conferences)


(relisted after the February 27 Conference)


(relisted after the January 23, February 20, and February 27 Conferences)


(relisted after the February 20 and February 27 Conferences)


Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 5, 2015, 5:56 PM),