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Relist Watch

John Elwood reviews Monday’s relisted cases.

After a customary mid-March break to allow all sentient life on Earth time to research and complete its brackets (history may view picking Villanova for the championship game as more Millard Fillmore than Abraham Lincoln), the Court is back in session, and so is the Watch.  Let’s take a look at how the unstoppable favorites and plucky underdogs did this week.

We start, as usual, with victors.   DIRECTV v. Imburgia, 14-462, pulled off an upset in double overtime.  After years of talking trash about whether an arbitration agreement requiring application of state law means state law before federal law has preempted provisions inconsistent with the Federal Arbitration Act, or after preemption, the Court will have to put its money where its mouth is.

Meanwhile, the scramble over the ball dropped by Toca v. Louisiana, 14-6381, has finally ended.  Congratulations to those who picked Montgomery v. Louisiana, 14-280, in their pools.  The Court granted cert. in the four-time relist, adding an additional question that may explain the Court’s delay in granting cert.  In addition to the original Toca question — whether Miller v. Alabama applies retroactively on collateral review to juveniles sentenced to life in prison — the Court directed the parties to brief whether it has jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give Miller retroactive effect.  The other Toca contenders met varying fates.  DeMola v. Johnson, 13-10288, was denied outright while the Court appears to be holding runners-up Tolliver v. Louisiana, 14-6673, and the indefinitely rescheduled Davis v. Michigan, 14-8106, for Montgomery.

Three cases will be joining Iowa State and Baylor on early flights home.  Returning relist champion Bower v. Texas, 14-292, was sent packing after six relists.  That case asked (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.  Proving our Court predictions to be slightly better than our March Madness predictions (we really thought this was Hampton’s year), Bower got a parting gift from Justices Breyer, Ginsburg, and Sotomayor, who filed a dissent from the denial of cert. that will be studied every bit as carefully as the Belmont team roster.  No such luck for Duran v. United States, 14-6820, which was sent packing in the second round, ending its hopes of a three-peat.  Fans aching for an answer to whether robbing drug dealers satisfies the Hobbs Act’s interstate commerce requirement will just have to wait until next year.  Finally, rescheduled cases continue to perform as well as Texas schools in the NCAA tournament.  Kent Recycling Services, LLC v. United States Army Corps of Engineers, 14-493, becomes the latest rescheduled case to underperform.  Kent’s petition asked questions suggested by Justice Alito’s concurring opinion in Sackett v. EPA: (1) whether a Clean Water Act jurisdictional determination is subject to judicial review under the Administrative Procedure Act; and (2) whether a due process claim against an agency action is subject to the APA’s finality requirement.

The rest of our relists successfully advanced to the next round.  Kansas v. Gleason, 14-452, is our new top seed after picking up its fifth relist.  Like any top team, it has picked up its share of bandwagon-jumpers.  It now finds itself trailed by Kansas v. Carr, 14-449, and Kansas v. [a different] Carr, 14-450, which had been rescheduled but is now newly relisted.  In all three cases, Kansas asks whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances need not be proven beyond a reasonable doubt.  (Both the Carr cases also present Confrontation Clause issues and questions about whether the Carr brothers were entitled to have their sentencing trials severed.)  In an apparent effort to prevail through sheer caption confusion, both Carr brothers filed cross-petitions, which are both newly relisted.  Carr v. Kansas, 14-7327, asks (1) whether the retroactive elimination of felony murder as a lesser-included offense of capital murder violates the Ex Post Facto Clause and the Eighth Amendment, (2) whether the Kansas Supreme Court applied the wrong standard of review in denying his claim regarding a failed motion for change of venue, and (3) whether the Kansas Supreme Court violated this Carr’s due process rights by affirming his convictions even after identifying eight trial errors.  The other Carr also has a cross-petition (and picked up new counsel since our last installment).  Twice-rescheduled (and now relisted) Carr v. Kansas, 14-6810, asks (1) whether a jury view is evidentiary, and thus a critical stage of a criminal prosecution requiring the presence of the defendant and the assistance of counsel; and (2) whether a trial court’s errors can be declared harmless in cases whether they result in the complete exclusion of the accused’s defense.  Whatever happens in this knot of cases, rest assured that Governor Brownback has the t-shirt ready to claim he supported it all along.

Four other relists continue to seek their one shining moment.  Bronx Household of Faith v. Board of Education of the City of New York, 14-354, picked up its fourth relist this week.  New York’s Board of Education has got to be hoping the Court doesn’t do social promotion, because four repeats is usually enough for most people just to give in.  The petition mounts a First Amendment challenge to the Board’s policy excluding groups engaging in religious worship services from using public school buildings after hours.  Woods v. Donald, 14-618, a state-on-top habeas case, picks up its third relist; the Justices will have an opportunity to consider the record materials they requested.  A divided Sixth Circuit affirmed habeas relief for Donald because his attorney was absent for ten minutes while the trial court received evidence about his co-defendants.  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.  We’ve saved the two returning sex-offender cases for last.  Nelson v. Wisconsin, 14-555, was required to register for relist number two.  The trial court refused defendant Angelica Nelson’s request to testify at her trial for statutory sexual assault of a child under sixteen because she did not intend to challenge any elements of the offense, and just “want[ed] my side to be heard.”  Nelson’s petition asks whether such a denial is amenable to harmless error analysis.  Grady v. North Carolina, 14-593, also picks up a second relist since the state’s response arrived.  Grady asks whether it was an unconstitutional search for a North Carolina court to order that he be required to wear a GPS monitoring bracelet for the rest of his life based on his status as a recidivist sex offender without a finding that he is a threat to society.

Since we covered most of the new relists in our earlier trek through Kansas, this will be short.  Our last remaining relist is Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 14-723.  Mr. Montanile was injured in a car accident involving a drunk driver (Relist Watch PSA: don’t drink and drive).  His health benefit plan paid his medical expenses.  Montanile then settled with the drunk driver and the plan’s board of trustees demanded that the settlement be used to pay the plan back.  Montanile said the funds had already been dissipated.  Settlement discussions between the parties yielded no result, and the board later sued.  The petition concerns ERISA Section 502(a)(3), 29 U.S.C. § 1132(a)(3), which permits plan fiduciaries to obtain equitable relief.  In reviewing Montanile’s case, the Eleventh Circuit sided with five other circuits in holding that plan fiduciaries seek equitable relief even when the funds they seek are no longer in the defendant’s possession and control.  Two other circuits have held that once there is no longer an identifiable fund, the relief sought is no longer equitable and therefore the fiduciary cannot recover.  If all this sounds familiar, you are an ERISA lawyer, need a new hobby, or simply recall that this was the same issue raised last Term in Thurber v. Aetna Life Insurance Company, 13-130.  In that case, the Court called for the views of the Solicitor General, who sided with the two circuits in the minority but recommended denial due to vehicle issues.  The Court followed the SG’s advice last year but Montanile asserts that his petition does not have the same problems.  This is the rare case in which respondent joins the petitioner arguing cert. is warranted; tune in Monday to see if they get their wish.  This seems like a dull issue whose time has come.

With the Court’s Top Ten squared away, we return you to the Sweet Sixteen.  Enjoy another fun weekend of college basketball (and don’t forget about hockey!).  We’ll be back next week to talk winners and losers.

Thanks to our own champions, Conor McEvily and Dmitry Slavin, for compiling and drafting this update.


[page]14-452[/page] (relisted after the January 23, February 20, February 27, March 6, and March 20 Conferences)


[page]14-449[/page] (relisted after the March 20 Conference)


[page]14-450[/page] (relisted after the March 20 Conference)


[page]14-6810[/page] (relisted after the March 20 Conference)


[page]14-7327[/page] (relisted after the March 20 Conference)


[page]14-354[/page] (relisted after the February 20, February 27, March 6, and March 20 Conferences)


[page]14-618[/page] (relisted after the February 27, March 6, and March 20 Conferences)


[page]14-555[/page] (relisted after the March 6 and March 20 Conferences)


[page]14-593[/page] (relisted after the March 6 and March 20 Conferences)


[page]14-723[/page] (relisted after the March 20 Conference)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Mar. 27, 2015, 12:55 PM),