Relist Watch
on Mar 4, 2016 at 4:01 pm
John Elwood reviews Monday’s relisted cases.
The month since our last atrocity against the English language has been so . . . eventful that it’s hard to know how to start. If we were – to stretch the bounds of plausibility even more than usual – bedside with a Supreme Court junkie emerging from a month-long coma, there would be no way of breaking the news to them gently. Think about it. Even starting from the milder end of the news spectrum, either “Justice Thomas grilled a lawyer at argument” or “the President posted on SCOTUSblog” (or even, “Senator Grassley said something not involving corn!”) would cause the patient either to flatline or to flip you off using a finger with a pulse monitor still on it. And we haven’t really come to terms with the big news ourselves yet.
Being a patriotic bunch, we at Relist Watch want to do our part to reestablish a sense of normalcy in discussions of the Supreme Court – the heavy eyelids, the thickening of the breathing, the jerk awake when your chin’s about to hit your chest. Trust us . . . in a few thousand words, things will be back to normal.
We usually begin with the winners, but there were no grants on Monday. Instead, we saw the departure of three relisted cases the hard way, two of which occasioned statements by Justice Samuel Alito. Taylor v. Yee, 15-169, was a seven-time relist that asked whether California’s regime for unclaimed property is a “taking” for Takings Clause purposes. Concurring in the denial of cert., Alito (joined by Justice Clarence Thomas) highlighted the growing trend of states “shorten[ing] escheat periods” and “minim[izing] notification procedures,” before seizing private property. “The convoluted history of this case makes it a poor vehicle for reviewing the important question it presents,” he explained, but added that “the constitutionality of current state escheat laws is a question that may merit review in a future case.”
Ben-Levi v. Brown, 14-10186, met its end after four relists. Israel Ben-Levi – a Jewish prisoner who was denied permission to pray with others because prison officials believed there was an insufficient number of people for organized prayer under their understanding of Judaism – brought a complaint against the prison under both the First Amendment and the Religious Land Use and Institutionalized Persons Act (aka, “our lupa”). Alito dissented from denial of the petition, stating that because Ben-Levi had “provided ample evidence that [the prison’s] restrictions substantially burdened his religious exercise, and because [officials] had not identified a legitimate penological interest in treating Jewish inmates more strictly than inmates of other religions,” he would have granted the petition and summarily reversed the judgment below. Kudos to the one Justice who does not participate in the cert. pool for paying attention to a messily handwritten, pro se prisoner petition appealing a summary affirmance.
Monday also brought a cert. denial in one-time relist Doe v. Christie, 15-195, where petitioners – a minor and his parents – sought to reverse the Third Circuit’s decision rejecting their First Amendment challenge to New Jersey’s “gay conversion therapy” ban. So obviously, this has been a good week for Governor Chris Christie. A total winner!
We’ve ended several screeds by congratulating ourselves for not inflicting the details of rescheduled cases, which are even more obscure than our usual fodder. The thrice-rescheduled California Building Industry Association v. City of San Jose, 15-330, plainly got someone’s attention. Thomas concurred in denial of cert. in the case, which involved a Takings Clause challenge to San Jose’s ordinance compelling developers of projects with twenty or more units to reserve at least fifteen percent of units for low-income buyers. While Thomas acknowledged that the case was not a good candidate for cert. because of timeliness questions, he lamented that, “[u]ntil we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively.”
As for the rest of last installment’s cert. candidates, their cause marches on. Caetano v. Massachusetts, 14-10078, asking whether a stun gun is an “arm” within the meaning of the Second Amendment, and Wearry v. Cain, 14-10008, asking questions about Brady and ineffective assistance of counsel, have each earned an eighth relist. These petitions seem long overdue for opinions (an observation that’s usually the Court’s cue to go ahead and grant cert.). Also back is three-time relist V.L. v. E.L., 15-648, a case involving an Alabama woman who won adoption of her same-sex partner’s three kids in Georgia, only to have her home state’s supreme court declare that the Georgia courts erred in applying Georgia adoption law. Last time we checked in on this case, the Court had requested the record, which arrived in early February. Finally, the Court has relisted American Freedom Defense Initiative v. King County, 15-584, for a second time. There, petitioners ask (among other things) whether the King County, Washington, transit system violated petitioners’ First Amendment rights by rejecting, based on its message, an advertisement featuring the faces of wanted terrorist “jihadis.”
Fi-nuh-lee, on to the new stuff. We’ve got three — well, three-and-a–half — new relists to chew through before you can go back to soaking up your office’s bandwidth watching twenty-minute YouTube clips.
Our first new relist is from the Sixth Circuit. This case may have been relisted simply because no one has made it past about page nine of the petition without curling up in a ball and crying from the sheer density of terms like “NAAQS,” “nonattainment,” “volatile organic compounds,” “reasonably available control technology,” and “PM2.5.” Ohio v. Sierra Club, 15-684, is a Clean Air Act (“CAA”) case that arises from the Environmental Protection Agency’s designation of Cincinnati as a “nonattainment” area for purposes of ambient air-quality standards. That is the last sentence you’re going to understand for the rest of this paragraph. Under the CAA, when an area is designated “nonattainment,” a state must submit nonattainment plans that implement “reasonably available control measures.” Once a formerly nonattainment area meets those air-quality standards, the EPA may re-anoint it an “attainment” area so long as the state meets five conditions, including that the EPA has “fully approved of the applicable implementation plan for the area.” This is where Ohio got in trouble. After Cincinnati’s “nonattainment” designation (which it presumably earned because of appalling air pollution), Ohio submitted a plan outlining how it would meet the air-quality standards. But because Cincinnati met air-quality standards so quickly, Ohio didn’t identify or implement any new air pollution control measures. Nevertheless, the EPA redesignated the area to “attainment” based on its view that the phrase “reasonably available control measures” only requires measures necessary for attainment. The Sierra Club appealed the EPA’s attainment redesignation, and the Sixth Circuit reversed. The court first held that “applicable implementation plan” under the CAA requires that states that have achieved attainment to continue implementing nonattainment-plan requirements. The court also held that the nonattainment-plan requirements to use “reasonably available control measures” compels measures that are unnecessary for attainment. The Solicitor General agrees with Ohio that “[t]he decision below conflicts with [a] Seventh Circuit[] decision” and “is in tension with EPA’s longstanding view of the statute,” but he nevertheless maintains that the Sixth Circuit’s error “does not appear to be of sufficient practical importance to warrant this Court’s review.” The Supreme Court has gone both ways in recent years when the EPA tells it that errors favoring environmentalists are insufficiently important to warrant review. Jonathan Adler wrote in 2012, “It’s almost as if the Roberts Court does not trust the judgment of the SG’s office as to whether environmental cases are cert worthy.” But the Court has lost one prominent EPA skeptic since then.
Before you start the next paragraph, here’s a mental palate cleanser. (I challenge you to watch that for a minute or so and not at least smirk.)
Our next new relist, Cook v. Barton, 15-580, is a state-on-top habeas petition from (where else?) the Sixth Circuit. Jim Barton was a longstanding suspect in his wife’s 1995 murder in Springboro, Ohio. But it wasn’t until the Springboro police chief instituted a cold-case unit in 2003 that the police made certain factual connections sufficient to indict Barton in 2004. At trial, the prosecution claimed that Barton hired a hit man to scare his wife by burglarizing their home, but that, somewhere along the line, things “went bad.” Barton was convicted of involuntary manslaughter and aggravated burglary and sentenced to fifteen to fifty years of imprisonment. After an unsuccessful direct appeal, Barton ‘advanced a Brady claim in state habeas proceedings, alleging that the prosecution failed to disclose exculpatory evidence pertaining to another burglary in the area. Here’s where things get a little “procedurally tricky,” by which I mean “skip to the next paragraph.” The state trial court rejected this claim as procedurally barred and then added that the claim failed substantively as well. The state intermediate court of appeals adopted the trial court’s procedural default holding, but said nothing about the claim’s substance. On federal habeas, after a district court rejected Barton’s claims, the Sixth Circuit reversed. The court concluded that the deferential review on habeas under 28 U.S.C. § 2254(d) applied only when a state court makes an “adjudicat[ion] on the merits,” and was inapplicable here since (1) the trial court’s substantive analysis was mere “dicta” given its procedural-default holding; and (2) the intermediate appellate court only affirmed on procedural-default grounds. Prison warden Brian Cook (that is, the state of Ohio again) raises two questions: (1) if a state court’s decision on a prisoner’s constitutional claim contains both a substantive and procedural grounds for rejecting the claim, when do Section 2254(d)’s standards apply to that claim? and (2) if a lower state court rejects a state prisoner’s claim “on the merits,” do Section 2254(d)’s standards fall away if a higher court rejects the claim on procedural, rather than substantive, grounds.
Rounding out this week’s trio of new relists is Woods v. Etherton, 15-723, a state-on-top habeas case from – wait for it – the Sixth Circuit. Respondent Timothy Etherton was pulled over by police after an anonymous tipster informed them that the car he was driving contained cocaine. Etherton was tried and convicted of possessing cocaine with intent to distribute it. At his trial, the officers testified about the tip they received to explain why they pulled Etherton over. After unsuccessfully pursuing appellate and state habeas relief, Etherton filed a federal habeas petition claiming the officers’ description of the tip was testimonial and thus violated his right to confront witnesses testifying against him. The federal district declined to grant Etherton habeas relief, and the Sixth Circuit likewise agreed that the confrontation claim would be procedurally defaulted. However, the Sixth Circuit also held that Etherton’s appellate counsel was constitutionally ineffective under Strickland v. Washington for failing to raise (1) the confrontation claim and (2) an associated claim of ineffective assistance of trial counsel. On cert., Michigan says that the Sixth Circuit failed to apply “either layer of the double deference due on federal habeas review when a state court’s Strickland analysis is reviewed through [the] lens” of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Michigan seeks summary reversal “to reinforce AEDPA’s and Strickland’s deferential standards of review.” It will be interesting to see if the Court retains its enthusiasm for periodic AEDPA summary reversals after the loss of Justice Antonin Scalia.
Finally: about that “half” relist. The Court released a veritable boatload of cases it was holding for the cases decided in February, and there were enough to chew on that the Court relisted them on Monday to continue sorting through them. The vast majority will likely be granted, vacated, and remanded (GVR’ed) in light of recently issued opinions (among them, Montgomery v. Louisiana, holding that the Court’s 2012 decision prohibiting mandatory sentences of life without parole for juveniles, Miller v. Alabama, applies retroactively to cases on collateral review). One of the released holds that might warrant a grant of plenary review is Kansas v. Dull, 15-276. After pleading guilty to burglary, misdemeanor theft, and aggravated indecent liberties with a child, respondent Bryce Dull, who was a minor at the time of his crimes, was sentenced to (among other things) forty-five months’ imprisonment followed by statutorily mandated lifetime postrelease supervision for the indecent liberties conviction. Dull appealed, arguing that the lifetime postrelease supervision violated the Eighth Amendment, and the Kansas Supreme Court agreed. On cert., Kansas asks whether the Kansas Supreme Court misinterpreted Miller and Graham v. Florida when it extended those decisions to a sentence that does not involve life imprisonment and held that “the Eighth Amendment categorically bars a sentence of mandatory lifetime postrelease supervision (i.e., non-incarceration) for juveniles convicted of serious sex offenses.” We’ll find out soon whether the Court has an appetite to take on this further extension of Miller.
As usual, we’re tempted to skip over the rescheduled cases. And as usual, something compels us to do otherwise. This week that “something” is Apple, Inc. v. United States, 15-565, which was rescheduled for today’s Conference. Since Apple is very serious about privacy, we won’t say too much about what the case involves, other than to note that Apple is contesting charges that its “disruptive” entry into the e-book market was unlawful under Section 1 of the Sherman Antitrust Act. A slew of other cases were also rescheduled (or re-rescheduled) but we’ll bore you with that stuff in the event any of those cases matures into a relist. See you next week – if you don’t see us first.
Thanks to Bryan U. Gividen for compiling (there were a lot of cases this week) and Conor McEvily for drafting this update (particularly the Ohio v. Sierra Club part).
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[page]14-10008[/page] (relisted after the November 13, November 24, December 4, December 11, January 8, January 15, January 22, and February 26 Conferences)
[page]14-10078[/page] (relisted after the November 13, November 24, December 4, December 11, January 8, January 15, January 22, and February 26 Conferences)
[page]15-648[/page] (relisted after the January 15, January 22, and February 26 Conferences)
[page]15-584[/page] (relisted after the January 22 and February 26 Conferences)
[page]15-580[/page] (relisted after the February 26 Conference)
[page]15-684[/page] (relisted after the February 26 Conference)
[page]15-723[/page] (relisted after the February 26 Conference)
[page]15-276[/page] (relisted after the February 26 Conference)
