John Elwood reviews Monday’s relisted cases.

We are really sorry. We knew Relist Watch was important to our entire readershipboth of them emailed us to say so – but we had no idea that everything would fall apart without our weekly-ish dose of what passes in the legal community for “humor.” In the weeks since our last full Relist Watch, the mighty Capitals fell apart, this silly primary season refused to end, this silly primary season ended badly, a horse whose name is useless for jokes won the Derby, Ramsay Bolton revealed himself to be not an entirely sympathetic character, and residents of the East Coast stopped using “the sun will rise tomorrow” as an expression of hope (not that most East Coast cities are hotbeds of that particular feeling). But never fear! Relist Watch has returned and everything will be good again! Or not.

Now, let’s see if we still remember how to do one of these. We should start with the summary reversal as the week’s highest-achieving relist. Kernan v. Hinojosa, 15-883, gets that honor this week after four relists. The Court held, over a dissent by Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg), that exactly the circuit you expected (OK, not that one) failed to give the required deference under the Antiterrorism and Effective Death Penalty Act to the decision of a state high court.

The one reversal is matched by one high-profile denial among the relists. United Student Aid Funds, Inc. v. Bible, 15-861, has gone off to that great Relist Watch in the sky. That petition asked the Court to overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand, which stand for the proposition that courts defer to agencies’ interpretations of their own regulations. The author of Auer had started beating the drum for that case to be overruled, but had never been able to achieve his goal. Justice Thomas, who has also been quietly plotting to kill off Auer for a while, dissented. We look forward to seeing how HBO uses this against him.

Now to the cases that refuse to leave. Our top returning relists are still relative rookies, with just three relists each. Johnson v. Lee, 15-789, is a state-on-top habeas case out of the you-know-where Circuit (no, not that one; cut it out already!). The case involves a California rule barring review of claims that were not raised on direct appeal. The Ninth Circuit held that this rule was not an adequate and independent state-law ground that precludes habeas review because the state did not prove consistent application. California’s petition asks whether the rule is an adequate state law ground and whether the state (as in the Ninth and Tenth Circuits) or the habeas petitioner (as in the Fifth Circuit) bears the burden of persuasion as to adequacy.

Our other thrice-relisted petition is Moore v. Texas, 15-797, a prisoner-on-top capital case out of Texas. Bobby James Moore was found guilty of capital murder and sentenced to death during the Carter Administration, when people thought eighty-seven cents a gallon was a lot to pay for gas and I was still capable of forming new memories. In the years since then, his case has bounced around the courts thanks to a successful federal habeas petition alleging ineffective assistance and a temporarily successful state habeas petition alleging that Moore is intellectually disabled. The determination that Moore is intellectually disabled (and thus cannot be executed) was overturned on appeal.   Seeking review of that decision, Moore’s petition argues that (1) the decision violates the Eighth Amendment because it is based on an outdated standard of intellectual disability and (2) executing him after over three decades on death row would be cruel and unusual punishment. Justice Breyer has already written one dissent from denial of cert. this Term relating to the second issue.

The only two-time relist is Lynch v. Arizona, 15-8366, another state capital case. Lynch, who at least was convicted of murder this millennium, raises three issues in his petition. First, he claims the trial court did not adequately investigate racial discrimination under Batson v. Kentucky after the prosecution struck two minority jurors. Second, he argues the trial court erred by refusing to instruct the jury that the only alternative to the death penalty is life without parole; Lynch claims this decision conflicts with Simmons v. South Carolina. Third, the Arizona Supreme Court held that the prosecutor had made a number of improper comments during the trial but that they did not affect the result. Lynch argues that his due process right to a fair trial was violated by allowing a prosecutor with a history of misconduct to commit further misconduct in his case.

We have four first-time relists of varying degrees of newness. Perhaps the most closely watched of the bunch is a wee bit stale, because as the true nerderati know, the Court has already rescheduled the case three times. Stormans, Inc. v. Wiesman, 15-862, is a constitutional challenge to Washington regulations that require pharmacies to deliver lawfully prescribed drugs or devices to patients. The regulations have exceptions for when filling the prescription would threaten patient safety, the patient is unable to pay, an emergency limits the availability of a drug, or the pharmacy runs out of a drug it normally stocks despite its best efforts. Petitioners, who operate pharmacies, hold religious beliefs that forbid them from dispensing abortifacients. Supported by fourteen (!) amicus briefs, they argue that they should be permitted to decline to dispense such medications and instead refer patients wanting those drugs to other pharmacies; they contend that the lack of a religious-belief exception violates the Free Exercise Clause. They also argue that the regulations have been enforced only against religious conduct and the history of their use reveals an intent to target religion. A district court enjoined the regulations but the Ninth Circuit reversed. While petitioners seek cert., they also ask the Court to summarily reverse the decision below. If the pundits are right, there is zero chance that the Court will take this controversial issue when they’re still down a Justice.

The next first-time relist, Johnson v. Carpenter, 15-1193, dates to the Reagan administration. Johnson was convicted in Tennessee for the 1984 murder of his wife and sentenced to death. Either because the town in question was a bit too tight knit, or because its residents were trying to convince denizens of the coasts of the dangerous inbreeding in “flyover country,” Johnson was defended at trial by a firm that had represented the only other suspect in the murder in an unrelated case just a month earlier (and didn’t disclose that fact to Johnson). Those attorneys also failed to investigate potential mitigating factors for sentencing. Johnson’s state habeas counsel failed to bring up either of those issues. When Johnson was finally able to present the claims on federal habeas review in 1997, the federal courts ruled that they could not address them because they were procedurally defaulted. In 2013, Johnson filed a motion asking the district court to reconsider its previous dismissal based on Martinez v. Ryan, which allowed certain petitioners who claimed ineffective assistance to excuse procedural defaults. The district court denied the motion, and the Sixth Circuit refused to issue a certificate of appealability. Johnson claims that the Sixth Circuit is one of four circuits that categorically denies such motions while three other circuits consider such cases on the merits. Tennessee acknowledges the split but counters that the Sixth Circuit considered Johnson’s motion and rejected it on the merits. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Hawkins v. Community Bank of Raymore, 14-520, is one of those rare cases to appear on Relist Watch in consecutive Terms. Let’s see what the younger, funnier versions of us had to say about this case way back in 2015’s post: Hawkins v. Community Bank of Raymore, 14-520, concerns development of a residential subdivision in (I’m not making this up) Peculiar, Missouri (The town motto, also not made up, is “Where the odds are with you.”). When an LLC that owned the development borrowed money from the bank, it required the wives of the owners to sign the loan agreement, agreeing to be “primarily and unconditionally liable” for the debt, so the bank could pursue them first, before pursuing the LLC’s owners. The petition asks whether (1) such spousal 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. This case was argued in October and was so hotly contested that it was affirmed by an equally divided Court in March – the first case to meet that fate after Justice Scalia’s mid-February death. The petition for rehearing has now been relisted. We normally wrap up all relist-related stuff before heading on other matters, but we have to make an exception here. Friedrichs v. California Teachers Association, 14-915, the blockbuster First Amendment union-dues case which, like Hawkins, was affirmed by an equally divided court earlier this Term, has just been rescheduled for the second time.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in Friedrichs.]

Finally: that whole tangle of repeated relists from Alabama raising questions involving Montgomery v. Louisiania has just been relisted a tenth time. Happy tenth relist-versary to those cases, which are listed here. We got them some party hats to celebrate this milestone.

With that, our long hiatus is over. We’d love to stick around to bask in your adoration but have to make headway on actual paying work on this important case. We hope to be back next week.

Thanks to Bryan U. Gividen for compiling and Dmitry Slavin, who was really hoping for an Exaggerator win to help with this post, for drafting this update.



Issue(s): (1) Whether, for federal habeas purposes, California’s procedural rule generally barring review of claims that were available but not raised on direct appeal is an “adequate” state-law ground for rejection of a claim; and (2) whether, when a federal habeas petitioner argues that a state procedural default is not an “adequate” state-law ground for rejection of a claim, the burden of persuasion as to adequacy rests on the habeas petitioner (as in the Fifth Circuit) or on the state (as in the Ninth and Tenth Circuits).

(relisted after the Apr. 22, Apr. 29, and May 12 Conferences)



Issue(s): Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

(relisted after the Apr. 22, Apr. 29, and May 12 Conferences)



Issue(s): (1) What is the proper appellate procedure to address a trial court's failure to conduct the third Batson v. Kentucky step; (2) whether the Arizona Supreme Court, where it has continuously refused Simmons v. South Carolina instructions by relying upon the availability of commutation, has decided this question in a manner that conflicts with Simmons; and (3) whether a defendant's Due Process right to a fair trial is secure when a prosecutor with a history of misconduct commits misconduct on several occasions through the defendant's trial.

(relisted after the Apr. 29, and May 12 Conferences)



Issue(s): (1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.

(relisted after the May 12 Conference)



Issue(s): Whether a law prohibiting religiously motivated conduct violates the Free Exercise Clause when it exempts the same conduct when done for a host of secular reasons, has been enforced only against religious conduct, and has a history showing an intent to target religion.

(relisted after the May 12 Conference)


Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue(s): (1) Whether a court must categorically deny a Federal Rule of Civil Procedure 60(b)(6) motion premised on the change in decisional law produced by Martinez v. Ryan; and (2) whether the Sixth Circuit's decision to deny even a certificate of appealability in this case should be summarily reversed.

(relisted after the May 12 Conference)


Posted in Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch Returns, SCOTUSblog (May. 20, 2016, 12:08 PM),