RELIST WATCH

What to do with the abortion case on the Supreme Court’s docket?

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 will observe St. Patrick’s Day this year by meeting in conference to discuss which of the 184 petitions and applications for resolution that day should be granted favorable consideration. Only one of those cases is newly relisted: Chapman v. Doe. Jane Doe, then an unemancipated 17-year-old, went to Missouri state court seeking to be granted a judicial bypass under state law that would allow her to obtain an abortion without her parents being notified. The clerk of the court, Michelle Chapman, told Doe that her parents would be notified anyway; Chapman later argued that the presiding judge had told her to provide that response, though the judge did not recall doing so. Doe (who eventually traveled to Illinois and obtained a judicial bypass and an abortion there) then sued, alleging that her constitutional rights had been violated. The district court denied Chapman quasi-judicial immunity because there was a disputed issue of material fact, and denied qualified immunity because there was case law on the books holding that the imposition of an extra-statutory notice requirement was unlawful. The U.S. Court of Appeals for the 8th Circuit affirmed.

And then the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey and holding that there was no constitutional right to an abortion. The state of Missouri filed a certiorari petition, arguing that Chapman had been improperly denied judicial immunity; that it was not clearly established that a bypass provision was constitutionally required even under Roe; and that the case should be remanded for reconsideration under Dobbs. Then Chapman and Doe (now an adult) went back into district court and both parties filed a “stipulation of dismissal” under Federal Rule of Civil Procedure (a)(1)(A)(ii).

Both parties have filed suggestions of mootness in the Supreme Court, but they don’t agree why the dismissal renders the case moot. The state argues that the mootness happened because of “circumstances unattributable to any of the parties,” and therefore the court should vacate under United States v. Munsingwear so that the state isn’t bound by a judgment it wasn’t able to challenge in court because of intervening mootness. The state maintains that position even though it agreed to the dismissal because, Missouri says, “Dobbs, not Petitioner, caused the mootness.” It also variously says the case is moot because of Doe’s “unilateral dismissal of her case” (though the dismissal was stipulated) and argues that “[n]o exception to mootness applies, in part because [Doe] is no longer a minor.”

Doe, on the other hand, says the case is moot only because the parties stipulated to dismissal, and she notes that at this late stage of the litigation, she was only able to dismiss the case because both parties agreed to do so. Doe also argues that the fact that she is an adult has no relevance, because she sought nominal damages for her past injury that prevented the case from becoming moot. And she argues that Dobbs has nothing to do with mootness, because she was arguing her due process rights were violated through Chapman’s “graft[ing] [of] a new notice requirement onto a statute that does not require notice” rather than because of her abortion rights alone. But Doe nonetheless states that she does not oppose vacatur.

Long story short, it seems quite unlikely the court will grant review in Chapman v. Doe. But it seems like the court needs more time to sort out whether Munsingwear vacatur is in order. We’ll have a better idea on Monday.

New Relists

Chapman v. Doe, 22-312
Issues: (1) Whether Clerk Chapman was properly denied quasi-judicial immunity because the judge could not recall anything about the case, including whether the judge directed her to notify the parents when an unemancipated minor filed an application for a judicial bypass to have an abortion; (2) whether it was clearly established in 2018 that providing prehearing notification to an unemancipated minor’s parent of a judicial bypass procedure violates the minor’s clearly established rights; and (3) whether, in light of this court’s intervening decision in Dobbs v. Jackson Women’s Health Org., the court should remand to determine whether Doe can show she has a right to a judicial bypass procedure without notice to her parents. 

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 and Mar. 3 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 and Mar. 3 conferences)