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Relist Watch

John Elwood reviews Monday’s relisted cases.

For a nation beset with scandals and squabbles, Relist Watch is the rare bearer of glad tidings: Every one of last week’s decuplet of relists had good (or at least not bad) news on Monday. So take a hike, crosspatch. Schadenfreudeans need not apply. This week is all about the good news – not your typical fare for Friday the Thirteenth.

We begin with the world’s most famous GVR. In the unlikely event you are unfamiliar with that abbreviation, just hang on. In University of Notre Dame v. Burwell, 14-392, the university with the best football program in a state famous for basketball claimed a religious exemption from regulatory requirements under the Affordable Care Act regarding “abortion-inducing products, contraception, and sterilization.” Rather than asking for the Court for plenary review, the university simply asked the Court to grant its petition, vacate the judgment below, and remand to the Seventh Circuit for further consideration in light of last Term’s Burwell v. Hobby Lobby Stores, Inc. and its progeny. After being rescheduled once and relisted once, that is precisely what the Court did on Monday, without recorded dissent. So while the vita was all dulcedo and spes for Notre Dame this week, don’t forget the modest ask. As Father Duane would say, “Dude! Facilius humilitatem exspectationes.”

On to this week’s sole plenary grant, Hurst v. Florida, 14-7505, a twice-relisted capital case involving a murder in a Florida Popeye’s. Hurst’s petition originally posed two questions spanning fifteen lines of text, but in granting cert., the Court limited review to just one question, occupying more like two lines: whether Florida’s capital sentencing scheme violates the Sixth Amendment or Eighth Amendment in light of Ring v. Arizona.

The other eight relisted cases from last week are all back for another go. Bower v. Texas, 14-292, the reigning relist king, scored its sixth relist on Monday. It 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 (3) whether “executing a defendant who has already served more than 30 years on death row” amounts to cruel and unusual punishment. It’s time for me to start predicting that we’ll see an opinion in that case soon, so the Court will feel free to grant cert. outright, as in Comcast v. Behrend (six relists before plenary review) or Bond v. United States (seven).   Another capital case, Kansas v. Gleason, 14-452, earned its fourth relist this week. There, the Sunflower State seeks review of the Kansas Supreme Court’s decision that a trial court violates the Eighth Amendment by failing “to affirmatively inform the [capital-sentencing] jury that mitigating circumstances need not be proved beyond a reasonable doubt.” Gleason’s latest relist means it has finally achieved its destiny of being considered at the same Conference as two rescheduled cases raising the same issue: Kansas v. Carr, 14-449, and Kansas v. [a different] Carr, 14-450.

Also notching their respective fourth relists are a trio of cases the Court appears to be considering as potential candidates to replace Toca v. Louisiana, 14-6381 — the now-dismissed case involving the retroactivity of Miller v. Alabama, holding that sentencing minors to life without parole violates the Eighth Amendment. Montgomery v. Louisiana, 14-280, Tolliver v. Louisiana, 14-6673, and DeMola v. Johnson, 13-10288, have all been redistributed for the March 20 Conference. Also, the Court has yet to set a Conference for the rescheduled Davis v. Michigan, 14-8106, which raises the same issue. Hopefully, the Court will have some action on these at the next Conference: It’s Miller time.

Because my OCD requires me to move relentlessly in descending order, you know where we’re headed next: Bronx Household of Faith v. Board of Education of the City of New York, 14-354, which was relisted a third time this week. The Bronx Household of Faith invokes the First Amendment’s Free Exercise, Free Speech, and Establishment Clauses to challenge the New York Board of Education’s policy excluding groups engaging in “religious worship services” from using public school buildings after hours.

Last on our list of old business is a pair of two-time relists: Woods v. Donald, 14-618, a state-on-top habeas case, stems from a multi-defendant murder case in which the respondent alleges his counsel rendered ineffective assistance by being absent for ten minutes while the trial court received evidence about co-defendants. On cert., the state asks (1) whether the Michigan courts’ decision not to extend United States v. 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. And in DIRECTV v. Imburgia, 14-462, DIRECTV — together with its former teen-star huckster and his phalanx of unappealing alter egos that ironically closely resemble the actual viewing audience — ask the Court to resolve a split between the Ninth Circuit and the California Court of Appeal about whether an arbitration agreement requiring application of state law means state law before federal law has preempted a provision inconsistent with the Federal Arbitration Act, or after the inconsistent provision has been preempted. If the Justices grant cert., look for them to invoke the obscure Rule 69(q), which would permit respondent Amy Imburgia to render her name in all-capital letters to offset DIRECTV’s distinct typographical advantage.

In the “new relist” basket we’ve got three criminal law cases vying for the Court’s attention. The petitioner in Nelson v. Wisconsin, 14-555, then an eighteen-year-old female with “some mental limitations” (that describes most of us), was arrested and charged with statutory assault of a child after the mother of her fourteen-year-old paramour/victim discovered the two had had sex. At trial Nelson expressed her desire to testify — not to dispute the charges, but because she “want[ed] my side to be heard.” The trial court denied the request because Nelson did not intend to challenge any elements of the offense. Nelson was ultimately convicted (“requir[ing] [her] to register for life as a sex offender”). On appeal, she urged that the trial court’s refusal to allow her to take the stand violated her constitutional right to testify. The Wisconsin courts found Nelson’s claims to be (a) amenable to harmless-error-review, and (b) harmless. On cert., Nelson asks the Court to resolve a “wide[] and intractibl[e]” lower-court split regarding “[w]hether a trial court’s complete denial of a criminal defendant’s constitutional right to testify is amenable to harmless-error analysis,” or whether it is a “structural error … requir[ing] automatic reversal without regard to the[] effect on the outcome of the trial.”

Let’s stick with the happy topic of registered sex offenders for just a moment. Though the petitioner in Grady v. North Carolina, 14-593, was neither in custody nor on probation for any crime, he was ordered by a North Carolina trial court to submit to an involuntary GPS monitoring system “for the rest of his life” on the basis of two prior convictions — a second-degree sexual offense committed when he was seventeen, and a subsequent conviction for indecent liberties with a child about ten years later. At the hearing to determine his eligibility for the program, “there was no consideration of whether [p]etitioner constituted a threat to society,” nor were any other facts introduced, other than that Grady had received two previous convictions. Grady unsuccessfully appealed the trial court’s monitoring order to both the state court of appeals and the state supreme court. On cert., he asks whether North Carolina “perform[s] an unconstitutional search when it requires a citizen to wear a GPS monitoring ankle bracelet for the rest of his life based only on the citizen’s status as a recidivist sex offender and where there is no finding that he is a threat to society.”

The last of this week’s new relists, Duran v. United States, 14-6820, comes to us from the City of Brotherly Love. The facts should make us all feel good about our fellow man. Duran, suspecting that his girlfriend’s ex-boyfriend was a drug dealer, lured the ex-boyfriend and his nephew to an apartment, where Duran and several co-conspirators repeatedly stabbed and burned the two victims, threatening to kill them unless they turned over drugs or money. The nephew agreed to take his assailants to the ex-boyfriend’s house, where the assailants committed a violent home-invasion robbery. Still holding the nephew hostage, Duran and his confederates then violently robbed other nearby homes, triggering a shoot-out that caused him to flee. (Duran at least had the decency to commit another robbery to help his girlfriend raise bail money.) Six weeks later, Duran was charged with (among other things) conspiracy and attempted robbery under the Hobbs Act — prohibiting “attempts or conspiracies” to commit a robbery that “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.” At trial and on appeal, Duran unsuccessfully urged the dismissal of his Hobbs Act charges on the grounds that “the robberies targeted private individuals rather than businesses” and thus had an insufficient impact on interstate commerce. On cert., Duran asks whether “the evidence was sufficient to establish that petitioner’s conspiracy to rob and attempted robberies of the inventory and assets of drug trafficking enterprises had the requisite effect on interstate commerce under the Hobbs Act.”

Our one newly rescheduled case is Kent Recycling Services, LLC v. United States Army Corps of Engineers, 14-493, involving the important issue of the appealability of a “Jurisdictional Determination” issued by the Army Corps of Engineers under the Clean Water Act — a question left unanswered by Sackett v. EPA three Terms ago. Kent Recycling appealed the Jurisdictional Determination by the Corps that the company’s property contained “waters of the United States” subjecting the property to regulation under the Act. But invoking the Administrative Procedure Act (“APA”), the Fifth Circuit refused to review the Jurisdictional Determination on the ground that it creates no legal consequences and is not a “final agency action.” Kent Recycling’s cert. petition asks (1) “[i]s a Jurisdictional Determination, that is conclusive as to federal jurisdiction under the Clean Water Act, and binding on all parties, subject to judicial review under the [APA],” and (2) “[i]s a due process claim against an agency action subject to the finality requirement of the [APA]?”

Alright, that’s it from us for this week … and next week, for that matter, since the last time the Court held a Conference on a Friday the Thirteenth, Justice McReynolds was appointed. But seriously, the week off has nothing to do with SCOTUStition: The happy-go-lucky Justices doubtless just want to get an early start on St. Patrick’s Day.

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



(relisted after the January 9, January 16, January 23, February 20, February 27, and March 6 Conferences)


(relisted after the January 23, February 20, February 27, and March 6 Conferences)


(relisted after the November 25, February 20, February 27, and March 6 Conferences)


(relisted after the January 9, February 20, February 27, and March 6 Conferences)


(relisted after the January 23, February 20, February 27, and March 6 Conferences)


(relisted after the February 20, February 27, and March 6 Conferences)


(relisted after the February 27 and March 6 Conferences)


(relisted after the February 27 and March 6 Conferences)


(relisted after the March 6 Conference)


(relisted after the March 6 Conference)


(relisted after the March 6 Conference)


Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 13, 2015, 1:47 PM),