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Relist Watch

John Elwood reviews Monday’s relisted cases.

This is a momentous day for Supreme Court watchers: Today marks the first time in history that the Justices will meet on April First to consider whether to grant review in new cases. We at Relist Watch are celebrating the occasion by treating out readers to a 100%, entirely, completely, verifiably not-made-up edition of Relist Watch.  No totally fake stories here about George Mason renaming its law school! We can’t vouch for your other news sources, but we are above peddling such nonsense.

We begin, as always, with the success stories. Fortune favored the Bravo-Fernandez v. United States case, 15-537. Even Donald Trump’s fingers are longer than its one-week stay on Relist Watch. The Court granted cert. on only the first question presented, which asks whether “a vacated, unconstitutional conviction can cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause.” A jury convicted a business executive and a Puerto Rico legislator of bribery after the executive financed the legislator’s Vegas junket, apparently unaware that what happens in Las Vegas does not necessarily stay there. But the jury somehow acquitted them both of conspiracy to commit that bribery — the first real-world demonstration of something quantum mechanics has long hypothesized, Schrödinger’s payola. After the appellate court vacated and remanded the bribery conviction because of an erroneous jury instruction, the defendants argued that their acquittal on the conspiracy count created double jeopardy problems for re-trial. All that double jeopardy talk was frankly a little dry, so we’ll make up for it with a human-interest story: the Court has taken the rare step of appointing a non-attorney, George A. Trebek, to brief and argue the case as amicus supporting petitioners.

The Court hasn’t been granting review much in the post-Scalia era, so that means it’s already time to move on to the cases that didn’t pan out. The Court denied cert. in the thrice-relisted Ohio v. Sierra Club, 15-684, which is just as well, because the associate who explained the case to me every week has stopped returning my calls. Denial here means that the Court will have to wait for another case to finally resolve the fundamental question whether the Environmental Protection Agency (EPA) can mumble mumble nonattainment whatsit reasonable availability something. The Court’s decision not to take the case raises the question whether the Justices took a pass because of concerns it would leave them evenly split along ideological lines. Of course, if Merrick Garland were confirmed, it would (absent recusals) end the risk of such stalemates, but that is not the only advantage of his joining the Court: during Senate courtesy calls this week, Garland revealed that, if confirmed, he would become the first male Justice to wear a jabot.

State-on-top habeas case Woods v. Etherton, 15-723, notched its fourth relist. The state of Michigan argues that the Sixth Circuit didn’t defer adequately to the state court decision denying relief when it held that a criminal defendant’s counsel was ineffective because he failed to raise a Confrontation Clause issue. Given the subject matter and the number of relists, there is the real prospect that an opinion of some sort is in the works. The smart money is on it being a summary affirmance commending the Sixth Circuit for independently re-examining the state court’s conclusions.

Readers of the most beautiful, luxurious Relist Watch in history will recall Beckworth v. Alabama, 15-7451, the capital case that the Court relisted for two weeks later, curiously skipping an intervening Conference. More curious still, the Court has now rescheduled the case for some yet-to-be-determined date. The case asks whether defense counsel may be presumed to have knowledge of exculpatory statements withheld by the prosecution.

We’ve previously reported on knotts of relisted cases raising Montgomery v. Louisiana claims regarding sentences of life without parole for juveniles. All eight of those cases stuck around another week. The Court requested the records for all of the cases, and the records have arrived in all but one of them. So we will have to continue waiting a little while longer before the Court disposes of this bunch — unless Alabama voluntarily commutes all of the sentences first.

On to the new relists. This week, they come in two flavors: “overtly offensive” and “procedural snoozers.” We begin with the snoozers, because they are potentially of enormous importance to American business.

Our first new relist has been playing the long game, or perhaps the Court is just setting us up for a great April Fools’ joke. Wal-Mart Stores, Inc. v. Braun, 14-1123 & 14-1124, asks whether the Due Process Clause prohibits a state court from certifying a class action (and entering judgment in favor of the class) when the court permits the use of extrapolation to relieve individual class members of their burden of proof and forecloses defendants from presenting individualized defenses to class members’ claims. The case was originally relisted back in spring 2015, when Hamilton was just a political figure and Donald Trump wasn’t. The petition was then held for nearly a year pending the Court’s decision in Tyson Foods, Inc. v. Bouaphakeo, which presented a similar question. Just last week, the Court decided Tyson Foods and concluded that statistical evidence could be used . . . in Fair Labor Standards Act collective actions, and under the particular facts of that case, which involved a fairly narrow class of workers at a single pork processing plant. The relist in Braun could simply reflect the Court’s need for more time to decide whether to take fairly routine action — grant cert., vacate the lower court’s judgment, and remand for further consideration in light of Tyson Foods. But some Court watchers think the Justices may want to consider the limits on the class action mechanism outside the narrow context offered by Tyson Foods.

Wells Fargo Bank v. Gutierrez, 14-1230, was likewise held for Tyson Foods and has likewise been relisted. It asks a question that the Court thought it would resolve in Tyson Foods, but found out too late the question was “not … fairly presented by th[at] case.” The Tyson Foods opinion explicitly recognized (p.16) that “the question whether uninjured class members may recover is one of great importance.” If the Court decides to use Gutierrez to resolve that issue next Term, class action mavens will be able to watch the oral argument in the comfort of their own homes, because Chief Justice John Roberts has announced that beginning in October Term 2016, video of oral argument will be publicly available for the first time, but only through Netflix.

Kakarala v. Wells Fargo Bank N.A., 15-712, may involve the most difficult and complex questions the Court has faced since I began writing this paragraph. The petition first asks the Court to overrule its decision in Thermtron Products, Inc. v. Hermansdorfer, an improbably captioned 1976 case holding that appellate courts can review remand orders based on considerations beyond those explicitly listed in the removal statute. The relist in this case is something of a tribute to Justice Antonin Scalia, who most definitely did not have any law schools named after him this week, because Scalia wrote in a concurring opinion in 2009’s Carlsbad Technology, Inc. v. HIF BIO, Inc., that Thermtron was “questionable in its day and is ripe for reconsideration.” The parties disagree about whether the case also presents a second question, which boils down to whether a civil defendant can waive its ability to rely on federal diversity jurisdiction by litigating a case in state court for an extended period of time. As if that weren’t enough excitement for one case, Kakarala also presents a third question, which the petition frames in the starkest terms imaginable: “Kirk . . . or Picard?

If anyone is still awake out there, our last new relist will be of greater interest to the non-nerd community. Pena-Rodriguez v. Colorado, 15-606, asks whether the general rule holding inadmissible juror testimony about deliberations may constitutionally bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury. After a jury convicted Miguel Pena-Rodriguez of unlawful sexual contact and harassment, two jurors told defense counsel that your racist uncle who always ruins Thanksgiving sat on the jury, and brought to deliberations such insightful comments as his belief that the defendant committed the crime “because he’s Mexican and Mexican men take whatever they want.” For once, we are not making this up. The juror in question also held strong negative views about Pandas after an ugly incident at work. Apparently, way more people have been having uncomfortable Thanksgiving dinners than we previously imagined, because nine different courts have weighed in this issue and created a circuit split on whether a defendant has a constitutional right to impeach the verdict with juror testimony. Who would ever have thought so many people held such views?

And with that, we’re finished. Now that you’ve finished with America’s Most Reliable News Source, we advise you to take everything else you read today with a giant grain of salt. We’ll be back next week with more insightful analysis and sober commentary on our nation’s most transparent institution.

Thanks to Bryan U. (for “Unbelievable”) Gividen for compiling the cases and drafting this post.


[page]15-723[/page] (relisted after the February 19, March 4, March 18, and March 25 Conferences)


[page]15-7451[/page] (relisted after the March 18 Conference)


[page]14-1123[/page] (relisted after the May 28, 2015, June 4, 2105, and March 25, 2016 Conferences)


[page]14-1230[/page] (relisted after the September 28, 2015 and March 25, 2016 Conferences)


[page]15-606[/page] (relisted after the March 25 Conference)


[page]15-712[/page] (relisted after the March 25 Conference)


Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Apr. 1, 2016, 1:22 PM),