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Relist Watch

John Elwood reviews Monday’s relists.

There have been no actual grants since October 16, but at least we’ve been accumulating relists. Oh sure, we had a couple of summary reversals this week – the first opinions of the term – from the ranks of the relists. But that’s not exactly what keeps people tuning in, is it? (Wait – why do people tune in?) Well, I have no idea what makes people read this, but rest assured we have plenty of whatever it is.

This week we have three –count ‘em – three new relists. As always, we begin with the most colorful one. Judging by his name, Fane Lozman was a character in a Japanese video game in the 1990s. But today, Lozman is an outspoken critic of the use of eminent domain for redevelopment efforts in the City of Riviera Beach, Florida. During one city council meeting, Lozman persisted in talking about local government corruption despite the efforts of the presiding councilmember to cut him off. The councilmember summoned a police officer and, when Lozman kept talking, ordered the officer to “carry him out.” Prosecutors later dismissed the resulting “disorderly conduct” and “resisting arrest without violence” charges on the ground that there was “no reasonable likelihood of successful prosecution.” Lozman then brought a claim that the city had violated his First Amendment rights by arresting him in retaliation for speaking out. In the district court, it was undisputed that (1) Lozman had been engaging in protected political speech at the time of the arrest and (2) an arrest would “chill a person of ordinary firmness”—the first two elements of the claim. The case went to trial on the remaining two necessary elements under the governing law of the U.S. Court of Appeals for the 11th Circuit: (3) whether the city acted because of a retaliatory motive, and (4) whether the officer had probable cause to arrest Lozman. The jury found for the city. In his petition, Lozman argues that there is a circuit split on whether the fourth element is really necessary – that is, “whether the presence of probable cause categorically defeats a retaliatory-arrest claim.”

If Lozman v. City of Riviera Beach, Florida, 17-21, sounds familiar to you, that’s because Mr. Lozman is making a return trip to the Supreme Court. The first case with that caption concerned the very different issue of whether Lozman’s floating house was a “vessel” for purposes of federal maritime jurisdiction. (The Supreme Court sided with Lozman in holding that it wasn’t.) The Supreme Court not infrequently takes cases from returning litigants. But if this case gets granted, I think Mr. Lozman will be the litigant who has brought the two most dissimilar legal claims to the court (though both cases are rooted in his legal wrangling against the city).

The next two new relists concern the Oneida tribe of upstate New York, one of the most powerful tribes in the country at the time of the American Revolution. In 1788, the tribe agreed to sell huge tracts of land to New York state and retain a (soon federally recognized) reservation of 300,000 acres, which dwindled to just 32 acres by 1920. Beginning in the 1990s, the tribe began to repurchase reservation land. The Oneidas then successfully petitioned the Secretary of the Interior to accept transfer of certain of their lands to be held in trust; in 2008, the secretary accepted the land to “help to address the [Oneida] Nation’s current and near term needs to permanently reestablish a sovereign homeland for its members and their families, preventing alienation of the lands.” The state of New York (which later settled), several local governments, and citizen groups filed suit, because the secretary’s decision reduced their ability to tax the property and exert regulatory control over it. Two petitions seek to challenge the secretary’s action on a number of bases, including that the statute the secretary invoked is unconstitutional, that the statute doesn’t apply to the Oneida tribe, and that the Oneida’s federally recognized reservation has been disestablished. The petitioners are one municipality (and associated officials), in Town of Vernon, New York v. United States, 17-8, and a citizen’s group, in Upstate Citizens for Equality v. United States, 16-1320. Co-counsel for the town of Vernon, John Bursch, tipped me off to the fact that when Chief Justice John Roberts was in private practice, he filed a petition that unsuccessfully sought review of the same non-delegation issue (involving an earlier codification of the same statute) raised by Town of Vernon. See Roberts v. United States, No. 99-1174.

We’ll be back next week with more baseless speculation and – as always – plenty of brother love.

Thanks to the unimaginatively named but diligent Kent Piacenti for compiling the cases in this post.


New Relists

Upstate Citizens for Equality v. United States, 16-1320

Issues: (1) Whether Congress in the exercise of its Article I powers can infringe, reduce or diminish the territorial integrity of a state without its prior consent; (2) whether Congress possesses plenary power over Indian affairs and if so whether the Indian commerce clause authorizes the displacement of state rights to territorial integrity; (3) whether the land acquisition in this case via the mechanism of 25 U.S.C. § 465 (now 25 U.S.C. § 5108) represents a violation of the limits inherently expressed in the Indian commerce clause that limits Congress’ power to “regulate” “commerce”; and (4) whether the 300,000-acre ancient Oneida Indian reservation in New York still exists.

(relisted after the November 3 conference)


Town of Vernon, New York v. United States, 17-8

Issues: (1) Whether a tribe that opted out of the Indian Reorganization Act can have its status under the Act revived under the Indian Land Consolidation Act, 25 U.S.C. § 2202, even though the United States did not hold land in trust for that tribe at the time the tribe sought a land-in-trust acquisition; (2) whether the land-in-trust provision of the Indian Reorganization Act, 25 U.S.C. § 5108, exceeds Congress’ authority under the Indian commerce clause, Art. I, § 8, cl. 3; (3) whether § 5108’s standardless delegation of authority to acquire land “for Indians” is an unconstitutional delegation of legislative power; and (4) whether the federal government’s control over state land must be categorically exclusive for the enclave clause, Art. I, § 8, cl. 17, to prohibit the removal of that land from state jurisdiction.

(relisted after the November 3 conference)


Lozman v. City of Riviera Beach, Florida, 17-21

Issue: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

(relisted after the November 3 conference)


Returning Relists

National Institute of Family and Life Advocates v. Becerra, 16-1140

Issue: Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

(relisted after the October 6, October 13, October 27 and November 3 conferences)


A Woman’s Friend Pregnancy Resource Clinic v. Becerra, 16-1146

Issues: (1) Whether a determination that a law is content-based leaves room for a court to apply something less than strict scrutiny, specifically (a) whether the court’s decision in Reed v. Town of Gilbert establishes a bright-line rule for content-based speech, (b) whether content-based, compelled speech is subject to lower scrutiny if it is deemed to be an abortion-related disclosure, and (c) whether the First Amendment permits lower scrutiny for content-based restrictions on professional speech or professional facilities; and (2) whether a law requiring religious nonprofits to post a government message antithetical to their beliefs triggers heightened or minimal scrutiny under the free exercise clause.

(relisted after the October 6, October 13, October 27 and November 3 conferences)


Livingwell Medical Clinic, Inc. v. Becerra, 16-1153

Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred, in conflict with the U.S. Courts of Appeals for the 2nd and 4th Circuits, in holding that the petitioners can be compelled to advertise free or low-cost abortion services to all clients; and (2) whether the 9th Circuit erred in not applying strict scrutiny to a law that compels speech and is content-based, in conflict with the decisional law of the Supreme Court.

(relisted after the October 6, October 13, October 27 and November 3 conferences)


Minnesota Voters Alliance v. Mansky, 16-1435

Issue: Whether Minnesota statute Section 211B.11, which broadly bans all political apparel at the polling place, is facially overbroad under the First Amendment.

(relisted after the October 6, October 13, October 27 and November 3 conferences)


Sykes v. United States, 16-9604

Issue: Whether Missouri’s second-degree burglary statute is divisible into two offenses with separate elements for the purpose of analyzing whether a conviction under that statute qualifies as a conviction for a “violent felony” as defined in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the October 6, October 13, October 27 and November 3 conferences)


Tharpe v. Sellers17-6075

Issues: (1) Whether reasonable jurists could disagree with the district court’s rejection of the petitioner’s Rule 60(b) motion, and, accordingly, whether the U.S. Court of Appeals for the 11th Circuit erred in denying a certificate of appealability; (2) whether, given the petitioner’s credible evidence that a juror voted for the death penalty because the petitioner is a “nigger,” the lower court erred in ruling that he failed to make “a substantial showing of the of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2); and (3) whether Pena-Rodriguez v. Colorado created a new constitutional claim, and, if not, whether the lower courts erred in denying the petitioner’s motion for relief from judgment under Rule 60(b)(6).

(relisted after the October 6, October 13, October 27 and November 3 conferences)


Reeves v. Alabama, 16-9282

Whether, when trial counsel does not testify about his or her own strategic decisions as part of a claim under Strickland v. Washington, a defendant may establish ineffective assistance of counsel using other evidence, as most circuit and state courts hold; or whether the presumption of sound strategy is categorically irrebuttable in the absence of trial counsel’s testimony, as the Alabama Court of Criminal Appeals held here.

(relisted after the October 13, October 27 and November 3 conferences)


Floyd v. Alabama, 16-9304

Issue: Whether, when the Alabama Supreme Court failed to apply the reasoning and analysis mandated by the Supreme Court’s decision in Foster v. Chatman, the U.S. Supreme Court should intervene to enforce its precedents following Batson v. Kentucky, which prohibit discrimination in jury selection on the basis of race or gender.

(Relisted after the October 27 and November 3 conferences)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (Nov. 7, 2017, 3:28 PM),