Relist Watch
on Dec 5, 2018 at 11:54 am
John Elwood reviews Monday’s relists.
With just one conference left in 2018, all is quiet on the Supreme Court’s shadow docket. Scarcely a creature has been stirring among the returning relists, which – with one exception – have been nestled snug in their beds for at least five relists each and thus are past the point where the statistics would say they’re prime candidates for a grant. (Sure, there are exceptions. But they are just that – exceptions.) And the serial rescheduled cases also appear to have settled their brains for a long winter’s nap. If the Supreme Court doesn’t act on these cases Monday, we won’t be hearing anything about them for almost a month. We will have to try to be patient.
We’ve made a list, and checked it twice – after emptying the cache and refreshing the page to make sure the docket pages we’re staring at aren’t out of date. Four new cases join the relist rolls. But what they make up for in quantity, they lack in interest. I kid! These cases are each interesting, but they’re not the kinds of cases that make for a blockbuster term, unless you have a very different idea than me about what a “blockbuster” is.
The first of the four is White v. Kentucky, 17-9467, a capital case out of the Bluegrass State, involving a defendant convicted of a decades-old murder. The case presents two issues: First, whether Kentucky violated petitioner Larry White’s rights when it denied him the opportunity to present evidence of his low IQ. The second question involves the validity of a traffic stop that yielded critical evidence. White argues that police pretextually pulled over for speeding a car in which he was a passenger so that they could frisk him to investigate the decades-earlier murder they suspected him of committing. While being frisked, White put down the cigar he was smoking, and it rolled off the car onto the street. Police later collected the cigar, and found DNA that linked White to the murder.
Next up is Thomas v. Williams, 17-1641. Police had a search warrant for 5818 Hirsch Street in Houston, Texas, and it turns out there is no residence with that address. They allegedly searched 5816 Hirsch Street instead. Petitioners Barbara Ann and John Thomas, who live at that address, filed suit, alleging that the officer who swore out the warrant deliberately or recklessly made material false statements. The U.S. Court of Appeals for the 5th Circuit held that Officer J.J. Williams was entitled to qualified immunity. The Thomases seek to challenge that determination.
Rehaif v. United States, 17-9560, involves a defendant who came to the U.S. from the United Arab Emirates on a student visa. Nearly a year after his school informed him that he was being dismissed on academic grounds, Hamid Rehaif visited a shooting range, where he purchased a box of ammunition and fired two rented guns. Rehaif was charged for knowingly violating a statutory provision that bars aliens “illegally or unlawfully in the United States” from possessing a firearm or ammunition that has traveled in interstate commerce. Rehaif argues that for him to be convicted of that offense, the government not only must show that he knowingly possessed firearms and ammunition – it also must show that he was aware of his unlawful immigration status. Rehaif cites two opinions written by then-Judge Neil Gorsuch involving another subsection of the same statute and arguing that the government must establish not only that the defendant knowingly possessed firearms, but also that the defendant knew of the fact that made it illegal for him to possess firearms. Rehaif likely got a boost from Gorsuch’s forceful dissent from denial of rehearing en banc, which began, “People sit in prison because our circuit’s case law allows the government to put them there without proving a statutorily specified element of the charged crime.”
That brings us to the last of the cases. The Dutra Group v. Batterton, 18-266, involves a hot-button question that made many readers of this column want to go to law school in the first place: whether a seaman in a personal injury suit can obtain punitive damages under general maritime law for a claim that his employer failed to provide a seaworthy vessel. Most people feel so strongly about the issue that they can’t unwind their views of the law from their personal beliefs. But I’m confident that the justices will do their level best to put aside their feelings and decide the case based only on what they believe is the best understanding of the law. Kidding aside, this strikes me as a pretty likely grant.
That’s all for this week. Thanks again to Ben Moss for combing the docket to find these cases.
New Relists
Issue: Whether the court of appeals erred by affirming the district court’s grant of summary judgment and failing to adhere to “the axiom” that, at the summary-judgment stage, “the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor,” Tolan v. Cotton.
(relisted after the November 30 conference)
Issues: (1) Whether the Kentucky Supreme Court violated the Eighth Amendment, as interpreted in Hall v. Florida and Moore v. Texas, when it denied the petitioner the opportunity to present evidence supporting the “conjunctive and interrelated” assessment for intellectual and adaptive functioning, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn effect and refusing to look past White’s other IQ score of 76 adjusted for standard error of measurement; and (2) whether it violates the Fourth Amendment when officers abandon their duty to address a traffic violation that justified a pretextual stop in order to investigate a passenger.
(relisted after the November 30 conference)
Rehair v. United States, 17-9560
Issues: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.
(relisted after the November 30 conference)
The Dutra Group v. Batterton, 18-266
Issue: Whether punitive damages may be awarded to a Jones Act seaman in a personal-injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.
(relisted after the November 30 conference)
Returning Relists
Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.
(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)
Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.
(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30 and December 7 conferences)
Andersen v. Planned Parenthood of Kansas and Mid-Missouri, 17-1340
Issue: Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.
(relisted after the September 24, October 5, October 12, October 26, November 2, November 9, November 16 and November 30 conferences)
Gee v. Planned Parenthood of Gulf Coast, Inc., 17-1492
Issue: Whether individual Medicaid recipients have a private right of action under 42 U.S.C. § 1396a(a)(23) to challenge the merits of a state’s disqualification of a Medicaid provider.
(relisted after the September 24, October 5, October 12, October 26, November 2, November 9, November 16 and November 30 conferences)
Issue: Whether the U.S. Court of Appeals for the 6th Circuit properly used Moore v. Texas, a Supreme Court decision from 2017, to find that an Ohio court unreasonably applied Atkins v. Virginia in 2008, despite the Ohio court’s reliance on the clinical judgments of experts to find that Danny Hill was not intellectually disabled.
(relisted after the October 5, October 12, October 26, November 2, November 9, November 16 and November 30 conferences)
Kennedy v. Bremerton School District, 18-12
Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.
Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.
(relisted after the October 12, October 26, November 2, November 9, November 16 and November 30 conferences)
Issues: (1) Whether it was objectively unreasonable for the Georgia Supreme Court to find that no prejudice resulted from the failure of defense counsel to conduct any investigation and to present any mitigating evidence, including readily available and undisputed expert testimony that the defendant suffered from significantly diminished mental capacity constituting dementia at the time of the crime, when these failures deprived the jury of mitigating evidence that was essential to an individualized determination of the defendant’s culpability; and (2) whether prejudice must be presumed in a death penalty case when defense counsel fails to conduct any investigation of potential mitigating evidence, fails to offer any evidence during the penalty phase, and fails to subject the state’s penalty-phase witnesses to any cross-examination, thereby undermining the adversarial system and depriving the defendant and the fact-finder of any meaningful opportunity to conduct an individualized determination of the defendant’s culpability.
(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences)
City of Escondido, California, v. Emmons, 17-1660
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.
(relisted after the October 26, November 2, November 9, November 16 and November 30 conferences)
Hester v. United States, 17-9082
Issue: Whether the rule of Apprendi v. New Jersey — which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt — should apply to the imposition of criminal restitution.
(relisted after the November 16 and November 30 conferences)
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