RELIST WATCH

The long conference’s relists

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.

The Supreme Court has returned from its summer break and gotten down to business. Last week the court met for its annual “Long Conference,” where it considers all the hundreds of cert petitions that built up during its summer recess. The court agreed to review a dozen petitions from that conference. But it also ordered that another 14 petitions be considered a second time at the very next conference, a process known as “relisting,” which the justices frequently do when they want to check a likely grant for potential vehicle problems, or because some justices are still making up their minds how to vote on a case — and sometimes because one of the justices is writing an opinion in one of the cases.

Below we briefly discuss those 14 cases. Several of them are sequels to earlier high court decisions.

First Amendment

The current court is very solicitous of First Amendment rights. So perhaps unsurprisingly, many of the relisted petitions – six of them – implicate the First Amendment.

Tingley v. Ferguson involves a First Amendment challenge to Washington state’s law prohibiting “conversion therapy,” the practice of seeking to change a gay or transgender person’s sexual orientation or gender identity through counseling. Brian Tingley, a Christian marriage and family counselor, argues that the law abridges his First Amendment right to speak freely when counseling his clients under the age of 18 on issues of sexual orientation or gender identity. The U.S. Court of Appeals for the 9th Circuit rejected that claim. Tingley also asks the court to overrule Employment Division v. Smith, which holds that laws of general applicability that burden religious exercise are not subject to strict scrutiny. Several justices have expressed an interest in overruling Employment Division, but the question remains whether this is the case to do it.

National Rifle Association of America v. Vullo involves a lawsuit in which the NRA alleges that Maria Vullo, then the Superintendent of the New York State Department of Financial Services, violated its First Amendment rights by threatening its business partners to try to encourage them to disassociate from the NRA. The U.S. Court of Appeals for the 2nd Circuit held that because Vullo’s actions did not cross over the line from permissible attempts to convince into improper attempts to coerce, and in any event did not violate clearly established law, she was entitled to qualified immunity. The NRA, represented by First Amendment scholar Eugene Volokh, seeks review of that conclusion.

Four years ago, the Supreme Court held in Nieves v. Bartlett that a plaintiff who alleges he was arrested in retaliation for speech protected by the First Amendment must show that police lacked probable cause to arrest him. However, Nieves recognized an exception for situations in which police had probable cause to arrest, but normally wouldn’t do so, such as jaywalking, which “rarely results in arrest.” The court held that the no-probable-cause requirement would not apply when a plaintiff presents “objective evidence” that he was arrested when similarly situated individuals not engaged in protected speech had not been.

Gonzalez v. Trevino seeks to test the limits of that exception. Sylvia Gonzalez, a newly elected Texas city council member elected on an anti-corruption platform was arrested after her first meeting for “intentionally … conceal[ing] … a government record,” for allegedly taking a petition her supporters had presented to the mayor seeking the removal of a city manager. Gonzalez explained that she had “probably picked it up by mistake,” and the charges were dropped, but not before the 72-year-old had spent the day in jail and her mugshot was released to the local media. Gonzalez sued the mayor and officials for arresting her in retaliation for her speech. A divided panel of the U.S. Court of Appeals for the 5th Circuit held that Gonzalez’s suit could not proceed because she could not show that another person in Texas had not been arrested after being found with a misplaced document at a government meeting because she had not criticized a public official. In dissent, Judge Andrew Oldham said “there’s zero difficulty … in figuring out whether it was animus or [Gonzalez’s] purportedly criminal conduct that caused her arrest.”

Stein v. People for the Ethical Treatment of Animals, Inc. and North Carolina Farm Bureau Federation v. People for the Ethical Treatment of Animals, Inc., both involve the constitutionality of a North Carolina law that allows an employer to sue for money damages any employee who “without authorization records images or sound occurring within” the nonpublic areas of the employer’s private property “and uses the recording to breach the person’s duty of loyalty to the employer.” The law was enacted in the wake of an incident in which ABC reporters posing as employees of the supermarket chain Food Lion videotaped practices there that were the subject of a controversial news program and ensuing lawsuit.  PETA and other animal-welfare and food-safety groups went to court in an effort to prevent the state from enforcing the law against their members. A federal district court in North Carolina ultimately invalidated much of the law, and the U.S. Court of Appeals for the 4th Circuit upheld that ruling in part, holding that as applied to “newsgathering” efforts by PETA and the other groups, the recording ban is unconstitutional. The Farm Bureau and North Carolina Attorney General Josh Stein ask the court to grant review and reverse the 4th Circuit’s decision.

Last among the First (Amendment) cases is Blankenship v. NBCUniversal, LLC, the most recent of a series of petitions asking the court to overrule New York Times v. Sullivan, which holds that to give the press “breathing room,” public figures cannot recover for defamation consistent with the First Amendment unless they demonstrate the press acted with “actual malice” – that is, knowledge that their statements were false or with reckless disregard of whether it was false or not. Don Blankenship, a coal company executive who was convicted of conspiring to violate safety standards, claims he was defamed when after release he unsuccessfully ran for office. While both Justice Clarence Thomas and Justice Neil Gorsuch have criticized Sullivan and called for it to be overruled, it seems unlikely that the court will grant review; just last term, the court relied on Sullivan in holding that threats could not be prosecuted under the First Amendment absent proof they were made in reckless disregard that the listener would be placed in fear. Thus, this case seems likely to yield only dissents from denial of cert.

Rent control and takings

There are also two cases challenging aspects of New York’s decades-old regulatory regime known as rent stabilization, which governs buildings built before 1974 with six or more units; landlords of such buildings cannot raise rents above a limit set annually, and they generally must renew a tenant’s lease. Petitioners in 74 Pinehurst LLC v. New York and 335-7 LLC v. City of New York argue essentially that (1) the program’s restriction on terminating tenants at the end of the lease term, except for reasons outside the owner’s control, constitutes a per se physical taking; and (2) the law so restricts owners’ property as to constitute a regulatory taking. The 2nd Circuit rejected both claims, arguing that landords voluntarily enter into rental agreements with tenants and so cannot complain, and held that the regulations did not so reduce the value of properties as to constitute a regulatory taking. While both cases present fascinating issues, the court on Monday denied review in another case raising the same issues about New York’s rent stabilization regime, Community Housing Improvement Program v. City of New York, NY. While that challenge was facial, and these petitions present both facial and as-applied claims, it seems like the court would at least have held that petition if it were going to grant review in one or both of these cases.

Dull civil procedure

I said what I said. Which is not to say they’re unimportant – just a lot less captivating than the brain candy that came before. King v. Brownback is a long-running case that has already been to the Supreme Court once. James King, then a college student, got into an altercation with plainclothes federal officers Todd Allen and Douglas Brownback because he says he thought they were criminals mugging him. King sued them under the Federal Tort Claims Act and under Bivens v. Six Unknown Federal Narcotics Agents, which allows lawsuits against federal officers for violations of constitutional rights. The district court dismissed both, King appealed only the Bivens action, and the U.S. Court of Appeals for the 6th Circuit ruled that those claims could go forward. But on further review, the Supreme Court unanimously held that the judgment in the FTCA case, under that act’s “judgment bar,” constitutes a complete bar to any action based on the same subject matter. In a footnote, the court reserved an issue not addressed by the 6th Circuit – whether the FTCA’s “judgment bar” applies when both the actions were brought together.

The case is now back before the court for resolution of that very question. The 6th Circuit held King’s Bivens action was barred though it was filed together with his FTCA claim. King now argues that because the “judgment bar” is supposed to be comparable to res judicata, it shouldn’t bar a claim that was originally filed together with the FTCA claim.

E.I. du Pont de Nemours & Co. v. Abbott involves a long-running series of multi-district litigation cases arising from du Pont’s government-permitted releases of chemicals from one of its plants; because the claims of harm from exposure were varied, the cases proceeded through multidistrict litigation rather than as part of a class action. Three trials the district court selected as non-binding “bellwether” trials resulted in plaintiff verdicts. The district court then invoked nonmutual offensive collateral estoppel to preclude du Pont from disputing key issues involving duty, breach, and foreseeability in other cases in the multidistrict litigation. A divided panel of the 6th Circuit affirmed, holding that application of nonmutual offensive collateral estopposel was permissible. Du Pont, represented by former Solicitor General Paul Clement, seeks to revisit that determination.

Criminal law

We are now in the home stretch. Justin Sneed murdered Barry Van Treese, owner of an Oklahoma City motel, in one of the guest rooms. Sneed implicated Richard Glossip, the motel’s manager, claiming that Glossip had paid him to kill Van Treese. On the strength of Sneed’s testimony, Glossip was convicted and sentenced to death. However, the prosecution failed to disclose to the defense important information undercutting Sneed’s credibility (that he was under the care of a psychiatrist), and failed to correct Sneed’s testimony that it knew to be false. Before the Oklahoma Court of Criminal Appeals, the state confessed error and said Glossip’s conviction should be vacated, though the attorney general still believed Glossip to be culpable. But the Oklahoma court denied relief, saying that relief was still barred by “limitations on successive post-conviction review,” since Glossip had unsuccessfully sought post-conviction review numerous times before. In two separate petitions captioned Glossip v. Oklahoma (resulting from Glossip’s fourth and fifth applications to that court for post-conviction relief), Glossip now seeks relief from the Supreme Court. The Supreme Court stayed his execution in May 2023 pending these petitions, so this case will clearly receive close attention.

Johnson v. Prentice: In most prisons, those held in solitary confinement are still allowed regular exercise. However, exercise can be denied for a period in response to misconduct. Beginning in March 2013, Michael Johnson, a state prisoner in Illinois convicted of armed home invasion, was held in solitary confinement for over three years. Johnson had been diagnosed by prison officials with a host of mental illnesses. But because of repeated misconduct, Johnson had only a handful of hours in which he was permitted to exercise over the course of three years. He spent the rest of that period alone in a small cell, which for stretches was windowless. Johnson sued prison officials for violating his civil rights. The district court entered summary judgment for the state; a divided panel of the U.S. Court of Appeals for the 7th Circuit affirmed. Rehearing en banc was denied by an equally divided vote. Johnson asks the court to resolve whether denying virtually all exercise violates the Eighth Amendment absent a security justification.

Thornell v. Jones, our last case, is a petition filed by Arizona arguing that the 9th Circuit erred in granting habeas relief to Danny Lee Jones on the ground that he received constitutionally ineffective assistance at his trial for beating two people to death. Arizona argues that the court improperly granted no deference to the district court’s detailed factual findings to the contrary. A total of 10 judges dissented from the court’s denial of rehearing en banc. The state seeks summary reversal, and the justices plainly are giving the case a close look.

That’s all for this week. Though it seems like the court relisted a lot of cases, just remember that the list of cert denials from the long conference ran for 33 pages. Stay safe!

[Correction: As originally published, this column erroneously indicated that Michael Johnson, the petitioner in Johnson v. Prentice, had been convicted of murder. Johnson was convicted of armed home invasion.]

New Relists

Johnson v. Prentice, 22-693
Issue: Whether punitively depriving a prisoner in solitary confinement of virtually all exercise for three years notwithstanding the absence of a security justification violates the Eighth Amendment, or whether such a denial only violates the Eighth Amendment if it is imposed in response to an “utterly trivial infraction.”
(relisted after the Sept. 26 conference)

King v. Brownback, 22-912
Issue: Whether the Federal Tort Claims Act’s judgment bar, which this court has repeatedly said functions in much the same way as the common-law doctrine of res judicata, nevertheless operates to bar claims brought together in the same action.
(relisted after the Sept. 26 conference)

Tingley v. Ferguson, 22-942
Issues: (1) Whether a law that censors conversations between counselors and clients as “unprofessional conduct” violates the free speech clause of the First Amendment; and (2) whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the court should overrule Employment Division v. Smith.
(relisted after the Sept. 26 conference)

Thornell v. Jones, 22-982
Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.
(relisted after the Sept. 26 conference)

Gonzalez v. Trevino, 22-1025
Issues: (1) Whether the probable-cause exception in Nieves v. Barlett can be satisfied by objective evidence other than specific examples of arrests that never happened; and (2) whether Nieves is limited to individual claims against arresting officers for split-second arrests.
(relisted after the Sept. 26 conference)

Blankenship v. NBCUniversal, LLC, 22-1125
Issues: (1) Whether the actual-malice standard imposed on public-figure plaintiffs in defamation cases should be replaced; and (2) whether the framework for summary judgment in public-figure defamation cases should be reformed.
(relisted after the Sept. 26 conference)

74 Pinehurst LLC v. New York, 22-1130
Issues: (1) Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking; and (2) whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.
(relisted after the Sept. 26 conference)

North Carolina Farm Bureau Federation v. People for the Ethical Treatment of Animals, Inc., 22-1148
Issue: Whether a worker planted in a business to collect information for their true employer, and who does so in nonpublic areas of the business, is immunized by the First Amendment from an action for trespass and breach of loyalty created by a content-neutral statute of general applicability.
(relisted after the Sept. 26 conference)

Stein v. People for the Ethical Treatment of Animals, Inc., 22-1150
Issue: Whether the First Amendment prohibits applying state tort law against double-agent employees who gather information, including by secretly recording, in the nonpublic areas of an employer’s property and who use that information to breach their duty of loyalty to the employer.
(relisted after the Sept. 26 conference)

335-7 LLC v. City of New York, NY, 22-1170
Issues: (1) Whether New York’s Rent-Stabilization Laws and accompanying regulations effect a per se physical taking by expropriating petitioners’ right to exclude; (2) whether the laws effect a confiscatory taking by depriving petitioners of a just and reasonable return; and (3) whether the laws effect a regulatory taking as an unconstitutional use restriction of petitioners’ property.
(relisted after the Sept. 26 conference)

Glossip v. Oklahoma, 22-6500
Issues: (1) Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland; and (2) whether suppressed impeachment evidence of the state’s key witness is per se non-material under Brady because that witness’ credibility had been otherwise impeached at trial.
(rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, and May 11 conferences; relisted after the Sept. 26 conference) 

Glossip v. Oklahoma, 22-7466
Issues: (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; and (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
(relisted after the Sept. 26 conference)

E.I. du Pont de Nemours & Co. v. Abbott, 23-13
Issue: Whether nonmutual offensive collateral estoppel can be applied to make the results of a handful of unrepresentative bellwether trials binding on the defendant in all pending and future cases in a multi-district litigation.
(relisted after the Sept. 26 conference)