RELIST WATCH

Congressional oversight of the Trump International Hotel, civil rights “testers,” and the death penalty

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court disposed of last week’s one new relist, Chapman v. Doe, involving whether a state court clerk was properly denied quasi-judicial immunity for telling a pregnant minor, Jane Doe, that her parents would be informed if she tried to obtain a judicial bypass to get an abortion without parental consent. The court granted vacatur under United States v. Munsingwear so that the state of Missouri wouldn’t be bound by a judgment it wasn’t able to challenge in court because of intervening mootness — caused by the fact that both Doe and the state stipulated to the case’s dismissal after the Supreme Court overturned the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization. Justice Ketanji Brown Jackson filed a solo dissent arguing that the court’s increasing reliance on Munsingwear vacatur “has drifted away from the doctrine’s foundational moorings.”

The court has 119 petitions and applications before it for resolution at this Friday’s conference. It will be considering four of them for the second time. Two of them, believe it or not, involve Article III standing … and hotels.

First, Carnahan v. Maloney. Federal law authorizes seven or more members (less than a majority) of the House of Representatives’ Committee on Oversight and Reform to request and to receive information from government agencies that is relevant to the performance of their Committee duties. In 2017, the Ranking Member of the Committee and seven other members sent such a request to the General Services Administration seeking information related to – as the U.S. Court of Appeals for the District of Columbia Circuit delicately put it – “property owned by the United States government.” The property in question was D.C.’s Old Post Office, which at the time was being leased to a company owned by then-President Donald Trump and his children and operated as the Trump International Hotel. The agency refused to comply.

A divided panel of the D.C. Circuit held that individual members of Congress who request agency information have standing under Article III to sue to enforce their statutorily conferred right to information. The majority held that informational injuries have long satisfied the injury requirement of Article III, and that traditional form of injury is quite distinct from the non-cognizable, generalized injuries sometimes claimed by legislators that are tied broadly to the law-making process and that affect all legislators equally. Senior Circuit Judge Douglas Ginsburg dissented.

The United States petitioned for review, arguing that the D.C. Circuit’s opinion “contradicts historical practice stretching to the beginning of the Republic” and “threatens serious harm to all three branches of the federal government.” The government argues that legislators lack any personal rights to the information, which they’re only entitled to because of their office. The members of Congress respond that there is “no division of authority requiring resolution by this Court,” because the case involves “a once-in-a-decade, virtually unprecedented rejection of [an informational] request” from Congress.

That brings us to our second Article III standing case involving hotels, Acheson Hotels, LLC v. Laufer. Regulations promulgated under the Americans with Disabilities Act (“ADA”) require places of public lodging to make information about the hotel’s accessibility to those with disabilities available on any reservation portal. Respondent Deborah Laufer is disabled. Laufer didn’t plan to visit Acheson Hotels’ property on Maine’s southern coast. But as an advocate for the disabled, she reviewed Acheson’s website and found it didn’t identify accessible rooms or provide an option for an accessible room, or even give sufficient information to determine whether the property would be accessible to her. Laufer then brought suit under the ADA, arguing that the hotel’s website discriminated on the basis of disability. Acheson moved to dismiss, arguing Laufer lacked Article III standing because she didn’t actually intend to visit the hotel. The U.S. Court of Appeals for the 1st Circuit held that Laufer had suffered concrete and particularized injury in fact sufficient to have standing to sue in federal court.

Acheson petitioned for Supreme Court review, arguing that the courts of appeals are divided about whether such self-appointed “testers” have standing to sue and that Laufer lacks any cognizable injury. While Acheson recognizes that the Supreme Court has recognized “tester” standing in the past in Havens Realty Corp v. Coleman, it argues that Havens is hard to square with the court’s more recent standing precedents. Laufer’s counsel agrees that certiorari should be granted, but he maintains that Havens is still good law and is applicable here. This case strikes me as a likely grant – although, in a strange way, the court probably would have preferred if Laufer had strenuously opposed cert so the court had greater assurances that there is not some lurking vehicle problem.

Two death penalty cases

The state of Alabama sentenced Kenneth Eugene Smith, the respondent in Hamm v. Smith, to die for murdering Elizabeth Dorlene Sennett in a murder-for-hire plot. Smith challenged Alabama’s lethal injection process as unconstitutionally cruel and unusual, and he proposed nitrogen hypoxia as an alternative means of execution under the Supreme Court’s procedures for method-of-execution claims. The Eighth Amendment inquiry focuses on whether the state’s chosen method of execution “cruelly superadds pain to the death sentence” by asking whether the state has “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain.” The U.S. Court of Appeals for the 11th Circuit held that nitrogen hypoxia is “feasible and readily implemented” because Alabama adopted a statute authorizing that method of execution. The state has petitioned for certiorari, arguing that that nitrogen hypoxia is not yet “feasible and readily implemented” because the state has not developed a protocol for that method of execution.

Kevin Burns, the petitioner in Burns v. Mays, was convicted and sentenced to death for killing two people (and wounding two others) during a botched robbery. A divided panel of the U.S. Court of Appeals for the 6th Circuit held that Burns had not received constitutionally ineffective assistance of counsel. Before the Supreme Court, Burns argues that he received constitutionally ineffective assistance of counsel because his lawyer failed to ask the jury not to sentence him to death because of “residual doubt” about his guilt as permitted by state law, because he failed to introduce evidence that a co-defendant was the actual shooter, and because counsel conducted only one or two hours of work to prepare for the sentencing phase of the trial. Burns argues that his entitlement for relief is so clear that the Supreme Court should summarily reverse.

That’s all for today. Tune in Monday, when we’ll have a better idea which (if any) of these petitioners has persuaded the justices that their cases warrant Supreme Court review.

New Relists

Carnahan v. Maloney, 22-425
Issue: Whether individual members of Congress have Article III standing to sue an executive agency to compel it to disclose information that the members have requested under 5 U.S.C. § 2954.
(relisted after the Mar. 17 conference)

Acheson Hotels, LLC v. Laufer, 22-429
Issue: Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.
(relisted after the Mar. 17 conference)

Hamm v. Smith, 22-580
Issue: Whether, in an Eighth Amendment method-of-execution case, an alternative method of execution is feasible and readily implemented merely because the executing state has statutorily authorized the method.
(relisted after the Mar. 17 conference)
(rescheduled before the Feb. 24 and Mar. 3 conferences; relisted after the Mar. 17 conference)

Burns v. Mays, 22-5891
Issues: (1) Whether an ineffective assistance claim may be based on counsel’s failure to exercise a state-law right to introduce residual doubt evidence at a capital sentencing; (2) whether counsel provides ineffective assistance at capital sentencing if they fail to establish the defendant’s lesser moral culpability by demonstrating that he did not kill a victim, even if the lesser culpability proof fails to negate all aggravating (eligibility) factors; and (3) whether it constitutes deficient performance under Strickland v. Washington if trial counsel postpones their preparations for sentencing until a brief post-guilt phase recess; and if deficient, whether counsel’s performance can be excused, if omitted mitigation evidence fails to explain why the defendant committed the offense.
(relisted after the Mar. 17 conference)

Returning Relists

McClinton v. United States, 21-1557
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Luczak v. United States, 21-8190
Issue: Whether this Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court‘s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; (2) Whether it violated the Due Process Clause of the Fifth Amendment for the district court to sentence Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the Defendant was previously acquitted.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Donziger v. United States, 22-274
Issues: (1) Whether Federal Rule of Criminal Procedure 42(a)(2) authorizes judicial appointments of inferior executive officers; and (2) if so, whether such appointments violate the appointments clause in Article II, Section 2 of the Constitution.
(rescheduled before the Jan. 13 conference; relisted after the Jan. 20, Feb. 17, Feb. 24, Mar. 3 and Mar. 17 conferences)

Brown v. Louisiana, 22-77
Issue: Whether, where a defendant denies participating in a particular criminal act, another person’s confession stating that he and someone else committed the act—without mentioning the defendant—is favorable and material evidence under Brady v. Maryland.
(record requested Oct. 18; relisted after the Feb. 17, Feb. 24, Mar. 3 and Mar. 17 conferences)