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Relist Watch

John Elwood reviews Monday’s relisted cases.

Apart from the release of the Court’s order list, the big news Monday was the announcement of this year’s Pulitzer Prizes. And once again, we have been cheated of our rightful gold Pulitzer medallion and $10,000 in prize money. We figured we’d at least get some recognition for our poetry submissions, if not for explanatory reporting, public service, or even our editorial cartooning (what is with that pinkie, anyway?). As an aside, while ten Gs might make for a decent hip-hop starter kit, that kind of stumpy seems a little meager for the preeminent prize in American journalism. No wonder journalism seems about as appealing nowadays as, well, law.

In an effort to make everyone else as miserable as we are, we begin, as usual, with the week’s grim tidings. On Monday, a pair of last week’s relists were cut down in their prime. Scott v. Alabama, 14-8189, and Lockhart v. Alabama, 14-8194, both one-time relists, asked whether a judge’s override of a jury’s decision to recommend a sentence of life imprisonment without parole violates the Eighth Amendment’s prohibition on arbitrary and capricious sentences and cruel and unusual punishment, or the Sixth Amendment’s guarantee to a trial by jury in criminal cases. Justices Breyer and Sotomayor dissented from the denial of cert., just as they did two years ago in Woodward v. Alabama, a case raising essentially the same issues. However, in contrast to their fifteen-page Woodward dissent, this time, the Justices dissented without comment, declining even to cite their earlier opinion.

Speaking of capital-jury overrides, the Court also denied rehearing in Wilcox v. Florida, 14-7293, which had been rescheduled once. Wilcox’s rehearing petition – which asked whether “the Jury, Due Process and Cruel and Unusual Punishment Clauses forbid a death sentence imposed after a jury has found ‘sufficient aggravating circumstances’ by a bare-majority seven-to-five vote” – was originally denied on February 23. But after the Court granted cert. March 9 in Hurst v. Florida, 14-7505, concerning the constitutionality of Florida’s capital sentencing scheme (under which he was sentenced), Wilcox sought rehearing. Hurst appeared to focus on the fact that Florida’s capital sentencing scheme, like Alabama’s, allows a trial court to overrule a jury’s sentencing recommendation. We had thought, in light of the Wilcox rescheduling and the Scott/Lockhart relists, that the Court might address capital-jury overrides in Hurst. But given this week’s developments, the Court seems less likely to address the issue.

That leaves our only returning relist, Larkin v. Florida, 14-7884, which notched its third relist since the arrival of the record. Larkin, you’ll recall, asks whether the Florida Supreme Court violated clearly established law by allowing a trial court that had expressly found reasonable doubt regarding the defendant’s competency to then allow the defendant to represent himself at his own competency hearing.

That brings us to the week’s new relists, of which there are either three or five, depending on how much you’ve been drinking what you count as a “relist.” The first three cases are typical relists, in which the Court has ordered a case relisted for a consecutive Conference with no intervening change to the materials before the Court. But for the last two, the Court has relisted because at the last Conference, the Justices voted to call for the record (“CFRecord” in the language of cert. pool memos) and the record materials have since arrived. Thus, in this latter group, the Court isn’t considering the same materials a second time; it’s considering an expanded group of materials for the first time. Let’s start with the typical relists, and, if we aren’t all squashing our “H” and “J” keys with our noses while snoring loudly when we finish, maybe we’ll include a word or two about the CFRecords. Or maybe not. ¯\_(ツ)_/¯

The respondent in Spokeo, Inc. v. Robins, 13-1339, instituted a putative class action against petitioner Spokeo — a company that operates a “people search engine” — alleging that as a “consumer reporting agency” the company violated the Fair Credit Reporting Act (“FCRA”) by failing to “follow reasonable procedures to assure maximum possible accuracy of” consumer reports. According to Robins, Spokeo’s search results for his name indicated that he was better educated than he really was, had more professional experience than he really had, and was better off financially than he really was … all of which might be considered enormously helpful on some websites. But Robins was unemployed, and he said he worried that the inaccuracies might impede his ability to obtain “credit, employment, insurance, and the like.” A federal district court dismissed Robins’s suit for lack of standing, holding that because he did not claim “any actual or imminent harm,” he had failed to allege an injury in fact. But the Ninth Circuit reversed, holding that the “creation of a private cause of action to enforce a statutory provision implies that Congress intended the enforceable provision to create a statutory right,” and that “the violation of a statutory right is usually a sufficient injury in fact to confer standing.” In its petition, Spokeo asks “whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.” This, according to Spokeo, is the same QP as in First American Financial v. Edwards — a case in which the Court granted cert. in 2010, but later dismissed as improvidently granted. At the Long Conference, the Court “invited” the Solicitor General to provide his views, and the government has now responded, arguing that cert. should be denied and emphasizing the difference between what it called Spokeo’s “highly abstract question,” and First American’s “focus[] on [a] specific statutory scheme and cause of action at issue.” We’ll know soon whether the Justices buy the Solicitor General’s efforts to distinguish this case from First American.

After a thirty-five-year career as a letter carrier, the petitioner in Green v. Donahoe, 14-613, unsuccessfully sought employment as the Boulder, Colorado postmaster. Believing that he was rejected because he was black, Green eschewed traditional methods of resolving postal disputes and instead contacted an Equal Employment Opportunity (EEO) counselor. Subsequently, Green’s relations with his superiors soured. His supervisors confronted him with allegations of mismanagement, reassigned him to “Emergency Placement in Off-Duty Status,” and suspended his pay. A deal was later struck under which Green’s emergency placement ended and his pay was reinstated; however, under the deal, Green would either have to retire, or take a demotion to a position in Wamsutter, Wyoming (pop: 451), which made up for the isolation with a $40,000 pay cut. Green retired, instituted mandatory administrative proceedings with an EEO counselor, and then filed suit against the Postmaster General alleging, among other things, constructive discharge in violation of title VII of the Civil Rights Act of 1964. However, both the district court and the Tenth Circuit agreed that because Green had not initiated his administrative proceedings within forty-five days of “the employer’s last discriminatory act allegedly giving rise to the resignation” — as opposed to the date on which Green gave “definite notice” of resignation — his claim was time-barred. Alleging an “intractabl[e]” circuit split, Green’s cert. petition asks whether “under federal employment discrimination law, [] the filing period for a constructive discharge claim begin[s] to run when an employee resigns … or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation ….”

County of Maricopa, Arizona v. Lopez-Valenzuela, 14-825, arises from a constitutional challenge to Arizona’s Proposition 100, a measure denying bail to individuals charged with serious felonies when “the proof is evident or the presumption is great that the person is guilty of the offense charged” and “there is probable cause to believe that the person has entered or remained in the United States illegally.” After the two respondents were arrested and charged with, respectively, transporting dangerous drugs and aggravated assault with a deadly weapon, a court commissioner denied bail to each under Proposition 100. Respondents then “filed a combined class action complaint and federal habeas corpus petition” (I’m quoting that so you won’t think I’m making it up) challenging the law’s constitutionality, which both the federal district court and a Ninth Circuit panel rejected. However, sitting en banc, the Ninth Circuit reversed the panel decision, holding Proposition 100 to be unconstitutional, in part because the “record contains no findings, studies, statistics or other evidence (whether or not part of the legislative record) showing that undocumented immigrants as a group pose either an unmanageable flight risk or a significantly greater flight risk that lawful residents.” The en banc panel concluded that the law was not “carefully limited” as required by United States. v. Salerno. In its cert. petition, Maricopa County cites Demore v. Kim — upholding a statute denying bail to whole categories of criminal illegal aliens facing removal proceedings (admittedly because of criminal convictions), without requiring individualized assessments — and asks, among other things, whether “the Ninth Circuit err[ed] in holding, contrary to th[e] Court’s decision in Demore, that under Salerno a denial of bail is permissible ‘only’ after individualized assessments of flight risk or future dangerousness, thereby barring categorical denials of bail … and calling into question categorical bans on bail in non-capital cases that exist in seventeen other states …?”

Since we’ve come this far, we should probably say something about the two CFRecord “relists” that we wouldn’t normally treat as relists, but which we’re going to treat like relists anyway because, hey, we’ve got nothing better to do. And if you’re still reading, apparently you don’t either.  Based on the remarkable recitation of facts in these two capital cases, one gets the feeling that the Justices will be paying very close attention to the record in both.

The petitioner in Jordan v. Fisher, 14-8035, entered into a plea agreement under which he would receive a sentence of life without parole. After the Mississippi Supreme Court held that such agreements were void because they were unauthorized by state law, petitioner unsuccessfully sought to modify his plea to life with the possibility of parole. Later, after the Mississippi legislature authorized life-without-parole sentences, the prosecutor refused to enter into the original plea because, when the original plea had been deemed unlawful, the petitioner sought to have it favorably modified. After the petitioner was sentenced to death, a divided Mississippi Supreme Court rejected petitioner’s claim of prosecutorial vindictiveness. On federal habeas, though acknowledging that the en banc Ninth Circuit had recognized such a claim in similar circumstances, a motions panel of the Fifth Circuit refused to grant petitioner even a certificate of appealability. Jordan’s petition asks: (1) whether it is error to deny a habeas petitioner a certificate of appealability in a case in which the state supreme court was divided and another federal court of appeals would recognize the claim; and (2) whether the fact that the prosecutor did not expand the sentence to which the defendant was exposed prohibits a finding of prosecutorial vindictiveness. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is co-counsel to the petitioner in this case.]

Finally, in Foster v. Humphrey, 14-8349, petitioner Timothy Tyrone Foster, “a poor, black, intellectually compromised eighteen-year-old,” was charged in the 1986 Georgia murder of an elderly white school teacher named “Queen White.” During jury selection, the prosecutor used his peremptory challenges to remove all four black prospective jurors and, after the trial court found a prima facie showing of racial discrimination under Batson v. Kentucky, the prosecutor rebutted the Batson challenge by providing roughly a dozen “race-neutral” reasons for each of the four strikes. After Foster’s conviction, the prosecutor urged the imposition of the death penalty to “deter other people out there in the projects.” Foster was sentenced to death. After instituting a state habeas proceeding, Foster obtained the prosecution’s notes from his trial’s jury selection. If you don’t believe that visual aids in briefs are effective, you really need to look at the petition, which reproduces the notes in the body of the brief so the reader doesn’t think the lawyers are just exaggerating. Among other things, the notes showed that the prosecution had (1) marked the name of each black prospective juror in green highlighter on four different copies of the jury list; (2) circled the word “black” next to the “Race” question on the juror questionnaires of five black prospective jurors; (3) identified three black prospective jurors as “B#1,” “B#2,” and “B#3” (um, maybe it stood for “badjuror”? “Batson-proof strike”?); (4) ranked the black prospective jurors against each other in case “it comes down to having to pick one of the black jurors;” and (5) created strike lists that contradicted the “race-neutral” explanation provided by the prosecution for its strike of one of the black prospective jurors. Notwithstanding this evidence, the Georgia Superior Court denied Foster’s claim of race discrimination, and the Georgia Supreme Court denied review. On cert., Foster asks if the “Georgia courts err[ed] in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case?” Tune in next week as the picture becomes clearer whether this is the next Miller-El v. Dretke.

We jumped the gun a bit on rescheduled cases discussing Wilcox above; but we’ve got two more to get through before you get back to work. First, a newly rescheduled case, Jackson v. City and County of San Francisco, 14-704, involves a constitutional challenge to a 2007 San Francisco ordinance requiring all residents who keep handguns in their homes to stow them away in a lock box or disable them with a trigger lock whenever they are not physically carrying them on their persons. Petitioners invoke District of Columbia v. Heller — recognizing an individual constitutional right to possess firearms — to challenge the decision of the district court and Ninth Circuit refusing to preliminarily enjoin the law’s enforcement. On cert., petitioners argue this case is controlled by Heller, framing the question as whether “San Francisco’s attempt to deprive law-abiding individuals of immediate access to operable handguns in their own homes [is] any more constitutional than the District of Columbia’s invalidated effort to do the same.” Second Amendment relists have not fared well in the last year; we’ll see if the rescheduled cases do any better.

Last, and probably least, we note that Davis v. Michigan, 14-8106, the last loose string in the tangle of cases involving the retroactivity of Miller v. Alabama, and which has been rescheduled without a conference date since mid-February, finally has been tied up: It has been distributed for Conference today.

That’s it for us this week. Tune in next week for more mind-numbing Court minutiae seasoned with a mirepoix of tasteless jokes, outdated cultural references, and the occasional pun.

Thanks to Ralph Mayrell and Conor McEvily for compiling and drafting this update.



(relisted after the March 27, April 3, and April 17 Conferences)


(relisted after the April 17 Conference)


(relisted after the April 17 Conference)


(relisted after the April 17 Conference)


(relisted after the April 17 Conference)


(relisted after the April 17 Conference)



Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Apr. 24, 2015, 10:29 AM),