RELIST WATCH

Another separation-of-powers case, press access to trials, and maritime insurance

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

There were no new cert grants from our last installment of relisted cases. But in one of those cases, the court’s denial of review prompted two justices to object. Federal prisoner Quartavious Davis asserted that his trial lawyer rendered constitutionally ineffective assistance for not pursuing a plea deal for him, causing him to receive a sentence many times longer than his co-defendants who pleaded guilty. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented from the court’s denial of review in his case, arguing that “[t]he circuits appear to be at odds with respect to” when a prisoner can show he was prejudiced by his attorney’s failure to initiate plea bargaining. They argued that the question was important because “[o]ur criminal justice system today is for the most part a system of pleas, not a system of trials.”

The Supreme Court will meet this Friday to consider whether to grant review in a group of around 95 petitions and motions. They will be considering eight cases for the second time.

The highest profile of the bunch are undoubtedly rival twins Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd. and Community Financial Services Association of America, Ltd. v. Consumer Financial Protection Bureau, involving yet another juicy separation-of-powers issue. This one arises from the financing mechanism used for the Consumer Financial Protection Bureau, established as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act in the wake of the financial crash that precipitated the Great Recession.

To insulate the agency from influence by politicians, Congress provided that the president could remove the CFPB’s director only for “inefficiency, neglect of duty, or malfeasance in office,” and it provided that the agency would derive funding not from annual appropriations of Congress (which might withhold funding to place pressure on it), but from the operating reserves of the Federal Reserve, which is itself funded outside the appropriation process through bank assessments. Three terms ago in Seila Law v. Consumer Financial Protection Bureau, the justices ruled by a 5-4 vote that Congress violated the separation of powers when it placed the CFPB under the control of a single director removable by the president only for cause. But the court declined to invalidate the entire agency for this structural flaw, instead severing the for-cause provision from the rest of its authorizing statute.

Two financial associations sued the CFPB after the agency issued a rule cracking down on payday lenders. The U.S. Court of Appeals for the 5th Circuit rejected most of the lenders’ challenges, but agreed with the challengers that the CFPB’s funding mechanism violates the clause in Article I, Section 9 of the Constitution requiring congressional “Appropriations” for any “Money … drawn from the Treasury.” The court vacated the payday lending rule “as the product of the Bureau’s unconstitutional funding scheme.”

The decision was catastrophic enough for the CFPB – basically, disabling the agency from acting across a fairly broad swath of territory – that the government prepared its petition with uncharacteristic dispatch, filing in less than 30 days. The government argues that the Constitution permits Congress to fund the CFPB this way, and Congress has long funded other agencies through similar means. Even if the justices disagree, the government maintains that portions of the funding mechanism can be invalidated without jeopardizing the entire CFPB. The lenders filed a conditional cross-petition arguing that if the court takes the CFPB’s petition, it should take two other issues that might also invalidate the rule.

Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC involves how to determine the law to be applied under federal admiralty law in a maritime contract case. Raiders, a Pennsylvania-based company, insured a yacht with Great Lakes. After the yacht ran aground, Raiders submitted a claim, but Great Lakes rejected it, claiming that the yacht’s fire-extinguishing equipment was not timely recertified or inspected contrary to Raiders’ prior statements otherwise. Though the damage had nothing to do with fire, Great Lakes’ said misrepresentations about the vessel’s fire-suppression system made the policy void from inception. The insurer then filed an action for declaratory judgment in federal district court in Pennsylvania to determine whether the policy was indeed void. The district court concluded that, consistent with the contractual choice-of-law provision, New York law governed and barred Raiders’ Pennsylvania-law-based counterclaims. On appeal, the U.S. Court of Appeals for the 3rd Circuit reversed, holding the choice-of-forum clause could be overridden where its enforcement would be unjust, as it was here. It was a big win for a lawyer who is a mainstay of #AppellateTwitter – and who, as an aside, knows his federal holidays.

In its petition, Great Lakes claims that choice of law under federal admiralty has been utter chaos since a 1955 Supreme Court decision, made tolerable only by strict enforcement of choice-of-law clauses. It argues that the 3rd Circuit’s decision has thrown all of that into upheaval and must be reviewed.

Under the “safety-valve” provision of federal sentencing law, a defendant convicted of certain nonviolent drug crimes can obtain relief from statutory mandatory minimum sentences if, among other things, her criminal history satisfies criteria in 18 U.S.C § 3553(f)(1): she “does not have — (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines; (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

Pulsifer v. United States and Palomares v. United States present the question of how that provision should be read: whether a defendant is ineligible for relief from the mandatory minimum if her criminal history runs afoul of any one of the disqualifying criteria in subsections (A), (B), or (C), or is ineligible only if her criminal history runs afoul of all three disqualifying criteria, subsections (A), (B), and (C). The government agrees that the circuits are divided and review is warranted, and recommends that the court take Pulsifer, which it says is the better vehicle. Counsel for Palomares and Pulsifer trade barbs in their reply briefs about which is the better vehicle. Probably at least one will get the grant.

This week’s other new relists are substantially more straightforward – or maybe I just need to move along to my paying work. Morgan v. Arizona involves a petition brought by a newspaper reporter to gain access to jury-selection proceedings in the murder trial of Roger Wilson and the financial-misconduct trial of Lonney McCoy, which both involved restrictions on the rights of the public (and reporters) to learn the jurors’ names. The reporter argues that the public’s qualified right of access to attend jury selection that the Supreme Court has recognized under Press-Enterprise Co. v. Superior Court extends to hearing potential jurors’ names. The Arizona Supreme Court concluded that it does not.

Brown v. Louisiana involves the case of a man who was already in prison for murder when he was convicted and sentenced to death for being part of a group that murdered a prison captain during an escape attempt. The case involves the application of Brady v. Maryland, which requires the prosecution to disclose material exculpatory information to the defense. The specific issue is whether another suspect’s confession stating that he and someone else committed the act — without ever mentioning the defendant — is favorable and material evidence under Brady.

Lastly, in McNulty-Snodgrass v. United States, an Iowa man challenges his conviction for trafficking in methamphetamine and fentanyl and for being a felon in possession of a firearm, which landed him in prison for 17 and a half years. In a pro se petition, McNulty-Snodgrass argues that Congress lacks authority to regulate the intrastate sale of methamphetamine and fentanyl. A pro se claim that is foreclosed by Gonzales v. Raich ordinarily would not garner enough interest for the Supreme Court to consider a case at consecutive conferences. That is especially so because the government did not even file a brief in opposition to his petition, and the court’s failure to ask for the government to file one is a sure sign his petition will not be granted. But McNulty-Snodgrass’s second question presented accuses the “Judicial Branch” of “treason to the United States Constitution” for not enforcing the limits of the commerce clause. Thus, the justices probably need a bit more time to figure out how to handle the case (and whether they need to recuse) when they are implicated in allegations of misconduct. Based on the rather excited tenor of his filing, prison officials may be wondering whether Mr. McNulty-Snodgrass managed to sneak any of his old stash into prison with him.

We’ll find out soon what the Supreme Court thinks about all of these relists. If the cases are granted, they will likely be the first grants of upcoming October Term 2023.

New Relists

Brown v. Louisiana, 22-77
Issue: Whether, where a defendant denies participating in a particular criminal act, another person’s confession stating that he and someone else committed the act—without mentioning the defendant—is favorable and material evidence under Brady v. Maryland.
(record requested Oct. 18; relisted after the Feb. 17 conference)

Pulsifer v. United States, 22-340 
Issue: Whether a defendant satisfies the criteria in 18 U.S.C. § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).
(relisted after the Feb. 17 conference)

Morgan v. Arizona, 22-353
Issues: (1) Whether the qualified right of access to voir dire under the First Amendment, recognized in Press-Enterprise Co. v. Superior Court I, includes the right to hear potential juror names during voir dire; and (2) whether, if the qualified First Amendment right of access to voir dire recognized in Press-Enterprise I does not include the right to hear potential juror names during voir dire, the Arizona Supreme Court misapplied the logic prong of the test articulated in Press-Enterprise Co. v. Superior Court II when it held that there is also no presumptive right to hear juror names during voir dire under that test.
(relisted after the Feb. 17 conference)

Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd., 22-448
Issue: Whether the court of appeals erred in holding that the statute providing funding to the Consumer Financial Protection Bureau, 12 U.S.C. § 5497, violates the appropriations clause in Article I, Section 9 of the Constitution, and in vacating a regulation promulgated at a time when the Bureau was receiving such funding.
(relisted after the Feb. 17 conference)

Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC, 22-500
Issues: (1) What standard under federal admiralty law governs the enforcement of a choice-of-law clause in a maritime contract; and (2) whether, under federal admiralty law, a choice-of-law clause in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the state whose law is displaced.
(relisted after the Feb. 17 conference)

Community Financial Services Association of America, Ltd. v. Consumer Financial Protection Bureau, 22-663
Issues: (1) Whether a Consumer Financial Protection Bureau rule, which prohibits a covered lender from continuing to make preauthorized attempts to withdraw loan repayments from a consumer’s bank account after two consecutive attempts are denied for insufficient funds, should be vacated because it was promulgated by CFPB Director Richard Cordray while shielded from removal by President Donald Trump under a statutory provision this court later held is unconstitutional; and (2) whether the rule should be vacated because the prohibited conduct falls outside the statutory definition of unfair or abusive conduct.
(relisted after the Feb. 17 conference)

McNulty-Snodgrass v. United States, 22-6338
Issues: (1) Whether Congress has constitutional authority to regulate intrastate distribution of methamphetamine and fentanyl; (2) whether federal judges are violating their oaths of office and committing treason by presiding over drug prosecutions over which they lack jurisdiction.
(relisted after the Feb. 17 conference)

Palomares v. United States, 22-6391
Issue: Whether a defendant satisfies the criteria in 18 U.S.C. § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).
(relisted after the Feb. 17 conference)

Returning Relists

City of Ocala, Florida v. Rojas, 22-278
Issue: Whether psychic or emotional offense allegedly caused by observation of religious messages is an injury sufficient to confer standing under Article III of the Constitution, including where the offended party deliberately seeks out the exposure in question.
(relisted after the Jan. 13, Jan. 20 and Feb. 17 conferences)

McClinton v. United States, 21-1557
Issue: Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference) 

Luczak v. United States, 21-8190
Issue: Whether this Court should overturn its decision in United States v. Watts, which holds that sentencing judges can consider acquitted conduct in imposing a sentence under the factors set forth in 18 U.S.C. § 3553(a).
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Shaw v. United States, 22-118
Issues: (1) Whether the jury clauses of Article III and the Sixth Amendment or the due process clause of the Fifth Amendment bar a court from imposing a more severe criminal sentence on the basis of conduct that a jury necessarily rejected, given its verdicts of acquittal on other counts at the same trial; (2) whether the Supreme Court‘s decision in United States v. Watts should be overruled; and (3) whether, in avoidance of the constitutional question, the rules of issue preclusion, as applied in federal criminal cases, bar imposition of an aggravated sentence on a factual predicate necessarily rejected by the jury at trial in the same case.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Karr v. United States, 22-5345
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury; (2) Whether it violated the Due Process Clause of the Fifth Amendment for the district court to sentence Karr based on a 20-year-old, out-of-court statement, never subjected to cross-examination, made by the more-culpable but now-deceased coconspirator, who had been attempting to obtain, and did obtain, a more-favorable resolution to the same criminal charges Karr faced.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Bullock v. United States, 22-5828
Issues: (1) Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted defendant; (2) whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct which was charged in a different jurisdiction, tried before a different court, overseen by a different judge, and for which the Defendant was previously acquitted.
(relisted after the Jan. 13 conference; apparently held after the Jan. 20 conference)

Donziger v. United States, 22-274
Issues: (1) Whether Federal Rule of Criminal Procedure 42(a)(2) authorizes judicial appointments of inferior executive officers; and (2) if so, whether such appointments violate the appointments clause in Article II, Section 2 of the Constitution.
(rescheduled before the Jan. 13 conference; relisted after the Jan. 20 and Feb. 17 conferences)