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Relist Watch

John Elwood reviews Monday’s relists

After spending the better part of two terms in a holding pattern because they were down a justice and at risk of 4-4 splits, the court is back at full strength and next term is shaping up nicely. We’re not quite back in every-term-a-blockbuster mode, but October Term 2017 is looking not too shabby. Last week’s grant in the cell-site data case Carpenter v. United States, 16-402, got the ball rolling. Then there was Monday’s grant in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 16-712, which is, to use a legal term of art, a Big Hairy Deal for the patent bar. Oil States involves the constitutionality of the administrative mechanism Congress created for revisiting the validity of issued patents, which has been hotly debated by bigger nerds than me for quite some time. With two cases involving the constitutional validity of partisan gerrymandering as serious prospects at tomorrow’s conference, next term is off to a decent start.

In addition to Monday’s Oil States grant, another relisted petition won big. The court summarily reversed in Virginia v. LeBlanc16-1177, concluding that Graham v. Florida, which held that the Eighth Amendment prohibits sentencing juvenile offenders to life in prison without parole for crimes other than murder, did not clearly prohibit Virginia’s program that allowed eventual “geriatric release.” Aside from Oil States and LeBlanc, all the other relists are back for another week, including, most prominently, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, now on its unlucky 13th relist.

This week we have five new relists, taxing even my prodigious ability to string transitions between questions presented. For people who have been watching the recent North Carolina election cases like Harris v. Cooper, 16-166, our first new relist is like déjà vu all over again. In Gill v. Whitford, 16-1161, the state of Wisconsin seeks review of the judgment of a three-judge district court, which by a divided vote (and in a total of 159 pages of opinions) invalidated the state legislative district map on the grounds that it represented unlawful partisan – yes, partisan, not racial – gerrymandering. In light of all the language in Vieth v. Jubelirer about the lack of judicially manageable standards for partisan-gerrymander claims, successful partisan-gerrymandering claims have been something of a unicorn, so this case undoubtedly has the court’s full attention. The case is part of the court’s tiny appellate (not certiorari) docket, which means they have to do something with it. Summary affirmance seems unlikely; summary reversal would be a heavy lift when dealing with a 119-page majority opinion. So perhaps the smart bet would be that the court will note probable jurisdiction, set the case for argument, and brace itself for the sea of green (briefs) that will be washing its way over the summer.

Northeast Ohio Coalition for the Homeless v. Husted, 16-1068, represents something of a classic candidate for cert: a clear split that even the respondent acknowledges (though disparaging it as “stale” and “shallow”) on a discrete legal issue: “Whether private parties can sue to enforce 52 U.S.C. § 10101.” But what is “10101”? I mean, other than the base-2 rendering of the age at which drinking Jäger Bombs stops being illegal and becomes merely a bad idea. Turns out Section 10101 is a provision of the Voting Rights Act that provides that no one acting under color of law may “deny the right of any individual to vote in any election because of an error or omission” on a registration, application or ballot if the error or omission “is not material” in determining whether the individual is qualified to vote. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.] Also, they invented Jäger Bombs.

Next up is Lenz v. Universal Music Corp., 16-217, the famous “dancing baby” case. As every sentient human knows only too well, Section 512(c) of the Digital Millennium Copyright Act creates a safe harbor from copyright-infringement liability for website operators and other online service providers that store or host material at the direction of users. We will pause briefly while you absorb that. To be eligible for that safe harbor, a service provider that receives a “notification of claimed infringement” from a copyright owner – commonly known as a “takedown notice” – must remove material that allegedly infringes a copyright. Section 512(f) allows a user to recover damages from a copyright owner that “knowingly misrepresents” in a takedown notice that material is infringing. Lenz presents the question whether a copyright owner can be liable for sending a takedown notice based on a sincere but unreasonable belief that the challenged material is infringing.

In 2007, Stephanie Lenz uploaded to YouTube a 29-second video of her children dancing to the song “Let’s Go Crazy” by Prince. The copyright holder sent a “takedown notice” to YouTube, which then removed the video. YouTube restored the video several weeks later when Lenz sent a counter-notification. At that point, many people would have just gone back to retweeting cat pictures. But Lenz did what any concerned mother would do, and brought suit in federal court against Prince’s record company. One thing led to another and yada yada yada a divided panel of the U.S. Court of Appeals for the 9th Circuit held in 2015 that UMC couldn’t be held liable for sending the takedown notice if it had a good-faith belief that the video infringed the copyright, even if the copyright owner acted unreasonably in concluding that using a bit of the song as background music for the video did not constitute “fair use.” Correctly sensing that what this case really needed was more process, the court called for the views of the solicitor general, who recently weighed in. The acting solicitor general recommends that the court deny cert; in his view, the 9th Circuit correctly concluded that liability under the DMCA requires actual knowledge or willful blindness, the issue is splitless, and the decision is interlocutory (because the case is on an interlocutory appeal of the denial of Lenz’s motion for summary judgment). We’ll find out soon what the court thinks of the government’s recommendation.

Coutts v. Watson, 16-1075, involves another great American legal drama, sort of an “Inherit the Wind” for the 21st century. Joseph Watson is a prisoner in Pennsylvania, and Ronald Coutts is a corrections officer at his facility. Watson says that during a routine cell search, another corrections officer examined Watson’s radio, which had a loose antenna that was held on with tape; Watson alleges that, in examining the radio, the officer broke the antenna. Because broken radios are “considered contraband under [Pennsylvania] Department of Corrections’ rules,” the officer confiscated the radio. Watson accused the officer of breaking his radio and asked for a grievance form. Coutts then charged Watson with “destroying, altering, tampering with property” for altering the radio’s antenna. The hearing examiner credited the officer’s version of events (that is, that Watson and not the officer “alter[ed] the antenna on his radio”), found Watson guilty of misconduct, and sanctioned him by confiscating the radio. Watson filed suit, alleging that Coutts had violated his First Amendment rights by issuing a prison misconduct charge against him in retaliation for announcing his intention to file a grievance against the other officer. The district court held that because Watson had been found guilty of altering the radio’s antenna, Coutts could not be liable for retaliating because he “would have issued [Watson] the misconduct regardless” of his request for the grievance form. But the U.S. Court of Appeals for the 3rd Circuit reversed, holding that “a plaintiff can make out a retaliation claim even though the charge against him may have been factually supported.” Supreme Court short-lister Judge Thomas Hardiman dissented.

And that brings us to our last relist: Johnson v. Alabama, 16-7835. Petitioner Toforest Johnson was convicted of capital murder and sentenced to death based principally on the testimony of Violet Ellison, who said she overheard Johnson confessing to the crime in a telephone call. Years later, Johnson learned that Ellison had come forward because of a cash reward offer and was paid $5,000 for her testimony. Because the state of Alabama failed to disclose Ellison’s reward at the time of his trial, Johnson raised a claim in post-conviction proceedings under Brady v. Maryland, which, for people who have been living under a rock since 1963, prohibits the suppression of material evidence during criminal trials. The Alabama Court of Criminal Appeals dismissed Johnson’s claim because of a state procedural rule that “allows relief on Brady claims only where ‘[t]he facts do not merely amount to impeachment evidence’” (quoting Ala. R. Crim. P. 32.1(e)(3)). Now, that is a great rule with much to recommend it, but it has one minor drawback: The Supreme Court has squarely held that “ the right to receive from prosecutors exculpatory impeachment material [is] a right that the Constitution provides as part of its basic ‘fair trial’ guarantee.” United States v. Ruiz. The state of Alabama filed in the Supreme Court a pleading captioned “Brief in Opposition” that nevertheless recommends that the court grant the petition, vacate the judgment below, and remand (GVR), stating that the state court “arguably misapplied Alabama law,” and noting that the Supreme Court of Alabama had rejected that reading of state rules in a 2013 decision. But the state argues that the Alabama Court of Criminal Appeals should be allowed to apply harmless-error analysis on remand. The Supreme Court’s GVR practice has definitely drawn controversy over the years (see Lawrence v. Chater), but it’s always hard to tell when such controversy will rear its head again.

That’s all for this week. We have only two more scheduled conferences (and one unscheduled-but-foreseeable conference) before October Term 2016 effectively ends and we will all have to confront the fundamental emptiness of our lives.

Thanks to Bryan U. Gividen and newcomer R. Kent Piacenti for compiling the cases in this post, and the voices in my head for drafting it.


New Relists

Lenz v. Universal Music Corp., 16-217

Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in concluding that the affirmation of good-faith belief that a given use of material use is not authorized “by the copyright owner, its agent, or the law,” required under Section 512(c) of the Digital Millennium Copyright Act, may be purely subjective and, therefore, that an unreasonable belief — such as a belief formed without consideration of the statutory fair-use factors — will not subject the sender of a takedown notice to liability under Section 512(f) of the DMCA. CVSG: 5/4/2017.

(relisted after the June 8 conference)


Northeast Ohio Coalition for the Homeless v. Husted, 16-1068

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

Issue: Whether private parties can sue to enforce 52 U.S.C. § 10101.

(relisted after the June 8 conference)


Coutts v. Watson, 16-1075

Issue: Whether a prisoner who claims that he was charged with misconduct in retaliation for activity protected by the First Amendment may prevail on his claim when he was found guilty of the misconduct in a constitutionally adequate proceeding.

(relisted after the June 8 conference)


Gill v. Whitford, 16-1161

Issues: (1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

(relisted after the June 8 conference)


Johnson v. Alabama, 16-7835

Issue: Whether a state court can enforce a rule that Brady v. Maryland does not apply to impeachment evidence when the Supreme Court has held that Brady does apply to impeachment evidence.

(relisted after the June 8 conference)


Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28, May 11, May 18, May 25, June 1 and June 8 conferences)


Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28, May 11, May 18, May 25, June 1 and June 8 conferences)


Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the April 28, May 11, May 18, May 25, June 1 and June 8 conferences)


Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11, May 18, May 25, June 1 and June 8 conferences)


Pavan v. Smith, 16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

(Relisted after the May 18, May 25, June 1 and June 8 conferences)


Harris v. Cooper, 16-166 

Issues: (1) Whether the district court erred in holding that a lack of discernible standards prevented it from striking down as a partisan gerrymander a districting plan when the plan’s architect freely admitted it was a partisan gerrymander designed to elect as many Republicans as mathematically possible; (2) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the Fourteenth Amendment when the plan was designed to secure “partisan advantage” for Republicans; and (3) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the First Amendment when the plan was designed to impose burdens on Democratic voters because of their political beliefs. In addition, on May 26, the Supreme Court ordered the parties to brief the following issues: (1) Do the appellants have standing to challenge the remedial map as a partisan gerrymander? (2) Is the district court’s order denying the appellants’ objections to the remedial map appealable under 28 U. S. C. § 1253?

(relisted after the May 25, June 1 and June 8 conferences)


Jenkins v. Hutton, 16-1116

Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit properly held, on its own initiative, that the respondent could overcome his procedural default under Sawyer v. Whitleys actual-innocence exception; and (2) whether the 6th Circuit properly held that judicial reweighing cannot cure errors at the weighing stage of a capital trial by extending Ring v. Arizona‘s standards from the eligibility phase into that weighing phase.

(relisted after the June 1 and June 8 conferences)


Hicks v. United States, 16-7806

Issues: (1) Whether petitioner should have been sentenced under the Fair Sentencing Act of 2010; and (2) Whether the court of appeals offered an insufficient explanation for denying petitioner a certificate of appealability.

(relisted after the June 1 and June 8 conferences)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Jun. 14, 2017, 12:04 PM),