Relist Watch

By John Elwood
on Oct 23, 2013 at 2:59 pm

John Elwood reviews Monday’s relisted cases.

There are those who say the Supreme Court involves itself in too much of American life. But when you see how well the other branches are doing, you begin to understand why. The Court was takin’ care of business again this week, but as usual, there were a handful of cases that need a bit more time.

We always start with the old. Congratulations to the petitioner in two-time relist Robers v. United States, 12-9012: Following Monday’s grant, those contemplating a second life in straw purchasing will at long last know whether they’ll get credit for the fair market value of their fraudulently purchased real estate in determining victim restitution. Joining Robers in the winner’s circle is two-time relist Hall v. Florida, 12-10882, concerning the Sunshine State’s definition of mental retardation. (Fellow traveler and one-time relist Lipsey v. United States, 12-10638, is now most likely on hold for Robers; ditto Quince v. Florida, 13-5753, for Hall.) Meanwhile, the petitioner in one-time relist Martin v. Blessing, 13-169, the case involving the racially conscious class-certification order, keeps his hopes alive as the Court has called for the record. Sadly, it’s curtains for the once-relisted dog-sniff petition in Sellars v. North Carolina, 12-10958.

It appears that several cases are back for another round of relists. I say appears, in italics no less, because the Court has not yet updated its docket. But after careful analysis, we’re going to say the Court has relisted these again rather than just putting them on hold. Back for a third time is the trio of state-on-top habeas cases, Ryan v. Hurles, 12-1472 (asking whether it is per se unreasonable for a state not to provide an evidentiary hearing on a judicial-bias claim), Rapelje v. McClellan, 12-1480 (asking whether dismissal “for lack of merit in the grounds presented” is adjudication on the merits), and Unger v. Young, 13-95 (asking whether a state can forfeit application of the Stone v. Powell rule that Fourth Amendment claims aren’t cognizable on habeas). Relisted state petitions in habeas cases are as a class better-than-average candidates for summary reversals, dissents from denial of cert., or even belated grants, but it’s hard to tell what is in store for any one of these. Stanton v. Sims, 12-1217, the cop-on-top qualified immunity case, is likewise still in “hot pursuit” with a third relist. And trailing just slightly behind at two relists is Marek v. Lane, 13-136, the Facebook case concerning the propriety of cy pres class-action remedies.

Enough with the old. This week brought us what appear to be two new relists. The first is Plumhoff v. Rickard, 12-1117. Sounding at first blush a little like Stanton (where the Ninth Circuit denied qualified immunity to an officer in hot pursuit of a suspect), Plumhoff concerns the Sixth Circuit’s denial of qualified immunity to an officer in hot pursuit of a suspect, this time in a car instead of on foot. But where the plaintiff in Stanton was an innocent bystander, the plaintiff in Plumhoff was a driver who led the police on a high-speed chase before police elected to end the chase by shooting him. The officers’ petition claims that the panel majority essentially inverted the proper qualified-immunity inquiry by looking to whether subsequent case law supported their actions rather than whether those actions violated then-existing clearly established law.

Meanwhile, possible relist Woodward v. Alabama, 13-5380, holds out the possibility that the standards of decency undergirding the Eighth Amendment are still evolving. Following Woodward’s conviction for murdering a police officer, the penalty-phase jury voted eight to four in favor of life imprisonment without parole. But, based in part on recordings and transcripts “the jury did not hear,” the trial judge decided to impose the death penalty anyway. The Alabama Court of Criminal Appeals affirmed. Woodward argues that the increasingly rare and “geographically isolated” practice of “imposing the death penalty through override” violates evolving standards of decency. And when he says “geographically isolated,” you can bet he doesn’t mean the Northeast and California.

That’s all for now, so we’ll leave you to your Chulalongkorn Day parties. The Justices’ next Conference is November 1, so don’t get bent out of shape about a missing post next week. We’ll be back fresh-faced in two weeks.

Thanks to Eric White for compiling and drafting this update.

[page]13-136 [/page]

(relisted after the October 11 and October 18 Conferences)

[page]12-1217[/page]