Relist Watch
on May 26, 2017 at 9:29 am
John Elwood reviews Monday’s relists.
The Supreme Court conducted an overdue spring cleaning this week, trimming half the relists from its rolls. But in the process, losers outnumbered winners bigly. Sure, it was a good day for patent nerds as the court granted in one-time relist SAS Institute Inc. v. Lee, 16-969, presenting the question whether Patent Trial and Appeal Board opinions must address all the claims of patent challengers in inter partes review, or just the ones the board feels like addressing. But it was bad news for one-time capital-case relist Neal v. Kubsch, 16-1021, regarding the admissibility of hearsay evidence. And worst of all, the court denied the big knot of seven state tax retroactivity cases that was on its fourth relist. I have it on good authority that those cases were exquisitely exciting, too. Aside from those nine relists, all the cases from last week are back again, although their chances aren’t getting any better.
That brings us to this week’s three-ish new relists. Our first entry, Husted v. A. Philip Randoph Institute, 16-980, is another in a string of recent high-profile voting cases. Husted involves what steps states may take to maintain accurate voter-registration lists under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002. Those laws prohibit states from removing “the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote,” but provide that a state must remove a voter if the voter (1) does not respond to a confirmation notice the state sends them and (2) then does not vote in the next two general federal elections. Since 1994, Ohio has sent voters who do not vote over a two-year period a confirmation notice; if they do not respond to that notice and do not vote over the next four years (including two more federal elections), Ohio removes them from the list of registered voters and requires them to reregister.
A divided panel of the U.S. Court of Appeals for the 6th Circuit held that the state’s process violates the NVRA because Ohio uses the failure to vote as the “trigger” for sending voters a confirmation notice. The question presented is: Does the NVRA permit Ohio to use a voter’s inactivity as a reason to send a confirmation notice to that voter under the NVRA and HAVA? The issue appears to be splitless, but the petition is supported by four amicus briefs, including one filed by 15 states.
The second case likewise comes to us from Ohio, and likewise involves review of a decision of a divided panel of the 6th Circuit. Hooks v. Langford, 16-886, involves a Detroit gang member who was convicted of murder, apparently on an aiding-and-abetting theory, because of a mistake in the jury instruction that may have eliminated the required mens rea showing for the defendant. The state courts affirmed the conviction, but a federal district judge granted habeas relief, finding that the jury was never told that it must find that the defendant acted with a purpose to kill, and the error was not harmless. A divided panel of the 6th Circuit, over Judge Danny Boggs’ dissent, affirmed. The Supreme Court then granted Ohio’s petition, vacated the judgment, and remanded for further consideration in light of Davis v. Ayala, which held that under the Antiterrorism and Effective Death Penalty Act, a federal court must not only conclude that the state courts’ application of the law regarding the underlying error was unreasonable; it must also conclude that the state courts’ application of harmless error was unreasonable. On remand, the same divided panel of the 6th Circuit again affirmed the district court’s grant of habeas relief, concluding that “there was no state court review of harmless error.” The court ordered the defendant, Mark Langford, retried or released within 180 days.
In its petition, Ohio makes no bones that it is only requesting summary reversal; it doesn’t allege any split on the trial court’s error or on the 6th Circuit’s conclusion that the state courts hadn’t conducted harmless-error review. So now we — and more to the point, Mark Langford—must wait to see whether some justice is preparing a summary reversal or a dissent from denial of cert (or perhaps just is taking a little longer to make up his or her mind). The court called for the record back on April 19, so obviously, someone is looking at the case pretty closely. The state has filed an application to stay the 6th Circuit’s mandate, because the 180-day period ends June 13. By my calculation, the court has three more relists to finish up with whatever it’s doing before either it will need to grant the stay or its failure to do so would show its hand.
That brings us to the third-ish relist, which isn’t really a relist for this week. Pavan v. Smith, 16-992, was relisted on Monday for yesterday’s conference. But later the same day, the court requested the record in the case. The record arrived the very next day (it’s electronic), but there’s no way that the law clerk(s) have had time to review it and write up a supplemental memo. So it’s almost certain the case will be hanging around until at least next week. The issue is a juicy one. Under Arkansas law, when a married woman gives birth, her husband must be listed as the second parent on the child’s birth certificate, including when he is not the child’s genetic parent because the child was conceived by artificial insemination. The Supreme Court of Arkansas held below that, notwithstanding Obergefell v. Hodges, Arkansas may treat married same-sex couples differently. The question presented is: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate. Because some poor clerk is now poring over the record, don’t freak out when the name and docket number aren’t on Monday’s orders list; we’ll have to wait for the next conference to find out what is up with this one.
That’s all for this week. Tune in next week to find out what fresh hell awaits us in June.
Thanks to Bryan U. Gividen for compiling the cases in this post.
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New Relists
Husted v. A. Philip Randoph Institute, 16-980
Issue: Whether 52 U.S.C. § 20507 permits Ohio’s list-maintenance process, which uses a registered voter’s voter inactivity as a reason to send a confirmation notice to that voter under the National Voter Registration Act of 1993 and the Help America Vote Act of 2002.
(Relisted after the May 18 conference)
Issues: (1) Whether a state court unreasonably applied this court’s cases under Section 2254(d)(1) when it held that a misplaced adverb in one jury instruction on state law did not violate federal due process; and (2) whether the U.S. Court of Appeals for the 6th Circuit properly held that the alleged instructional error was harmful and that Davis v. Ayala was irrelevant to the harmless-error inquiry.
(Relisted after the May 18 conference)
Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.
(Relisted after the May 18 conference)
Returning Relists
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111
Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.
(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28, May 11 and May 18 conferences)
Carpenter v. United States, 16-402
Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment.
(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)
Graham v. United States, 16-6308
Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.
(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)
Jordan v. United States, 16-6694
Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.
(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)
Caira v. United States, 16-6761
Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.
(relisted after the April 13, April 21, April 28, May 11 and May 18 conferences)
Rios v. United States, 16-7314
Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.
(relisted after the April 21, April 28, May 11 and May 18 conferences)
Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.
(relisted after the April 28, May 11 and May 18 conferences)
Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.
(relisted after the April 28, May 11 and May 18 conferences)
Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”
(relisted after the May 11 and May 18 conferences)
