Relist Watch: Just the facts
on Jun 12, 2018 at 10:15 am
John Elwood provides an unadorned roll of Monday’s relists.
New Relists
Arlene’s Flowers Inc v. Washington, 17-108
Issues: (1) Whether the creation and sale of custom floral arrangements to celebrate a wedding ceremony is artistic expression, and, if so, whether compelling their creation violates the free speech clause; and (2) whether the compelled creation and sale of custom floral arrangements to celebrate a wedding and attendance of that wedding against one’s religious beliefs violates the free exercise clause.
(relisted after the June 7 conference)
Issue: Whether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense. CVSG: 05/08/2018.
(relisted after the June 7 conference)
Issue: Whether the Alaska National Interest Lands Conservation Act prohibits the National Park Service from exercising regulatory control over state, native corporation, and private land physically located within the boundaries of the national park system in Alaska.
(relisted after the June 7 conference)
Issue: Whether the “presumption of prejudice” recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.
(relisted after the June 7 conference)
Lorenzo v. Securities and Exchange Commission, 17-1077
Issue: Whether a misstatement claim that does not meet the elements set forth in Janus Capital Group, Inc. v. First Derivative Traders can be repackaged and pursued as a fraudulent-scheme claim.
(relisted after the June 7 conference)
Issue: Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the 14th Amendment.
(relisted after the June 7 conference)
Issue: Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.
(relisted after the June 7 conference)
Sanders v. United States, 17-8002
Issue: Whether the Supreme Court should overrule the “dual sovereignty” exception to the double jeopardy clause of the Fifth Amendment for serial state and federal prosecutions for the same conduct.
(relisted after the June 7 conference)
Returning Relists
Issue: Whether the U.S. Court of Appeals for the 10th Circuit’s holding that law-enforcement officers who stopped the petitioner from praying silently in her own home were entitled to qualified immunity because there was no prior case law involving similar facts conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’” facts.
(relisted after the February 23, March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)
Issue: Whether the death penalty in and of itself violates the Eighth Amendment in light of contemporary standards of decency and the geographic arbitrariness of its imposition.
(relisted after the February 23, March 2, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences; rescheduled after the March 16 conference; rescheduled before the March 23, March 29 and April 13 conferences)
Gamble v. United States, 17-646
Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)
Tyler v. United States, 17-5410
Issue: Whether the Supreme Court should overrule the dual sovereignty exception, which permits a successive federal prosecution after a defendant has been prosecuted for the same offense in state court.
(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)
Ochoa v. United States, 17-5503
Issues: (1) Whether the double jeopardy clause of the Fifth Amendment prohibits the federal government from charging, convicting and sentencing a person who has already been charged, convicted and sentenced in the court of a state for much of the same conduct; and (2) whether the seriousness of the offense conduct is an appropriate consideration for a district court when fashioning a sentence on revocation of supervised release.
(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)
Gordillo-Escandon v. United States, 17-7177
Issue: Whether, when a criminal defendant has already been convicted of an offense in a state criminal proceeding, the United States may thereafter prosecute the defendant for the same offense without violating the Fifth Amendment’s prohibition on double jeopardy.
(relisted after the April 13, April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)
Eaton v. United States, 17-6680
Issue: [Petitioner is a pro se prisoner and the government waived its right to respond, so we have been unable to obtain a copy of the petition.]
(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)
Bearcomesout v. United States, 17-6856
Issue: Whether the “separate sovereign” concept actually exists when Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s constitution in such a way that the petitioner’s prosecutions in both tribal and federal court violate the double jeopardy clause of the Fifth Amendment to the U. S. Constitution.
(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)
Jordan v. Mississippi, 17-7153
Issues: (1) Whether incarcerating a prisoner over four decades awaiting execution, even after the state found at one point that a life without parole sentence was appropriate, violates the Eighth Amendment because it fails to serve any legitimate penological purpose; (2) Whether incarcerating a prisoner over four decades awaiting execution, with over half that time attributable to repeated constitutional violations in a succession of sentencing hearings, violates the Eighth Amendment because it fails to serve any legitimate penological purpose.
(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)
Quality Systems, Inc. v. City of Miami Fire Fighters and Police Officers’ Retirement Trust, 17-1056
Issue: Whether, or in what circumstances, a defendant must admit that non-forward-looking statements are false or misleading, in order to be protected by the Private Securities Litigation Reform Act safe-harbor provision for forward-looking statements.
(relisted after the April 20, April 27, May 10, May 17, May 24, May 31 and June 7 conferences)
Issues: (1) Whether the Louisiana Supreme Court erred in upholding the petitioner’s death sentence when the jury made only one of the two statutory required jury findings beyond a reasonable doubt; (2) whether standards of decency have evolved to render the execution of a defendant prosecuted as a principal to first degree murder unconstitutional when, as the state conceded, jurors could not know who inflicted the blows that caused the victim’s death; (3) whether testimony establishing communications between a deputy monitoring the trial and an alternate juror in front of other jurors about the trial constitutes sufficient evidence to be presumptively prejudicial; and (4) whether the Louisiana Supreme Court’s rule, which requires an indigent defendant to accept his trial counsel’s decision to concede his guilt of second-degree murder over his express objections or represent himself, vitiates the voluntariness of the petitioner’s waiver of counsel.
(relisted after the May 17, May 24, May 31 and June 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 and June 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 and June 7 conferences)
Gelhaus v. Estate of Andy Lopez, 17-1354
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit improperly departed from the Supreme Court’s decision in White v. Pauly and numerous other cases when it denied qualified immunity notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting the petitioner in this case; and (2) whether the lower court improperly departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard when it denied qualified immunity based on the absence of a constitutional violation given that the undisputed facts established that the petitioner acted reasonably in responding to the threat of a suspect turning towards him while raising the barrel of what appeared to be an assault rifle.
(relisted after the May 31 and June 7 conferences)
North Carolina v. Covington, 17-1364
Issues: (1) Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander; (2) whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race; (3) whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides; (4) whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and (5) whether the district court erred by imposing a map that improperly considered race.
(relisted after the May 31 and June 7 conferences)
Thanks once again to Kevin Brooks for compiling the cases in this post. John Elwood’s humorless commentary will return next week.
