Relist Watch

By John Elwood
on Oct 16, 2014 at 10:57 am

John Elwood reviews Tuesday’s relisted cases.

Though we’re just a week into the new Term, OT2014 has already had more than its share of headlines, with the Justices issuing a slew of emergency orders on hot topics ranging from gay marriage to voting rights to abortion. But those faded into insignificance Wednesday as the Court took up the controversial issue of teeth whitening, with the Nine debating whether strips, gels, or trays were the best way to get their ivories just the right shade of Biden. The magic number for adult teeth may be thirty-two, but the magic number for relists this week is the almost manageable number of eleven. Relist Watch will now pause for three minutes and thirty-seven seconds while you watch that last link.

Let’s start with the few relists that the Court cleared off its plate. First, the Good News: the Court called for the views of the Solicitor General in Samantar v. Yousuf, 13-1361, a case in which the Court has already granted cert. once, and – given the increased odds of being deemed cert.-worthy after a CVSG – the case may be making a repeat appearance. Samantar asks whether a foreign official’s common-law immunity for acts performed on behalf of a foreign state is abrogated by allegations that those official acts violate jus cogens norms of international law.

But the petitioners in the rest of last week’s resolved relists got Bad News. The audit did not turn out well for Richards v. Ernst & Young, LLP, 13-1274, a Ninth Circuit case asking whether a party must show prejudice after its opponent waived its contractual right to arbitrate by participating in litigation for such waiver to be binding. The Court previously granted cert. on this issue, so either its ardor cooled, or the Justices decided this was not the vehicle. Also, the (wild) goose case ended for Association des Éleveurs de Canards et d’Oies du Québec v. Harris, 13-1313, after the Court took a quick gander at California’s foie gras ban. Good news for the hepatic functioning of anserines; bad news for Left Coast liver-lovers. Finally, as Lyle reported yesterday, the Court denied review in Jones v. United States, 13-10026, asking whether, consistent with the Sixth Amendment, the petitioners’ sentences could be enhanced for acquitted conduct based on judge-found facts. The Jones petitioners were favored with a dissent from denial of cert. written by Justice Scalia, joined by Justices Ginsburg and Thomas. But because even the best writers can’t crank out “this wolf comes as a wolf” every day of the week, this dissent is most noteworthy for saying that Jones “presents the nonhypothetical case the Court claimed to have been waiting for.”

The only real new addition to the relist rolls this week was Chism v. California, 14-5442. Chism, who is African American, was convicted of murdering a white store clerk. The first jury deadlocked during the penalty phase of his trial (the two holdouts were African-American jurors) and a mistrial was declared. During voir dire of the second penalty-phase jury, the prosecutor exercised peremptory challenges against the first two African Americans in the jury box. The trial court overruled Chism’s Batson v. Kentucky challenges. The California Supreme Court affirmed after conducting “comparative jury analysis” between one of the struck African-American jurors and those who served on the jury. Justice Goodwin Liu filed a twenty-one-page dissent from the eighty-three-page majority opinion. Chism’s cert. petition asks “[w]hen the California Supreme Court conducts comparative review on appeal from the denial of a [Batson] motion … does its practice of seeking out reasons other than those stated by the prosecutor as a basis for the trial court’s ruling contravene [the Supreme] Court’s [precedent]?”

These are not technically relists, but they’re worth brief comment anyway. The Court “rescheduled” two cases this week: Whitman v. United States, 14-29, involving a prosecution under §10(b) of the Securities Exchange Act, or the ’34 Act, as we old-timers call it (rescheduled for this Friday’s Conference); and Crews v. Farina, 13-1227, involving “unreasonable factual determinations” in a federal habeas proceeding (rescheduled for an as-yet-undetermined Conference). The cases showcase the Court’s new policy of semi-transparency, under which online dockets now indicate if a case has been rescheduled, but don’t say why. So what’s the difference between a case that’s been relisted and one that’s been rescheduled? A rescheduled case is assigned to a new Conference before being discussed at a particular Conference; a relisted case is assigned to a new Conference after being discussed at Conference. Clear on that? Me neither.

At this point, we’re just going to talk about the ten relists that are returning after last week’s installment, so for our regular reader, this is your cue to move on to more pressing business. The oldest relist of the bunch is Cope v. South Carolina, 13-8427, a holdover from OT2013 that asks whether South Carolina violated the Cope’s due process right to present a full defense by excluding evidence of an alternative suspect’s modus operandi. Henderson v. United States, 13-1487, is a two-time relist (and sentimental favorite) that asks whether a federal-law prohibition on felons possessing firearms prevents the government from transferring felons’ firearms on their behalf. [Disclosure: John Elwood, who inexplicably speaks of himself in the third person, serves as counsel to the petitioner in Henderson.]

Then there’s City of Los Angeles v. Patel, 13-1175, a twice-relisted petition involving motel owners’ complaint that an L.A. ordinance which allows police to inspect motel records at any time without a warrant or consent violates the Fourth Amendment. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.] Chappell v. Ayala, 13-1428, a state-on-top two-time relist outta the Golden State, asks whether the conclusion a claim represents harmless error is an “adjudication on the merits” under the federal habeas statute, 28 U.S.C. § 2254(d).

Johnson v. City of Shelby, 13-1318, arises from a suit in which two former Shelby, Mississippi police officers claimed that their termination violated their Fourth Amendment rights. Their petition asks, among other things, whether a federal complaint is subject to dismissal when it fails to cite the statute authorizing the cause of action. And Brumfield v. Cain, 13-1433, is a capital case from the world’s prison capitol that asks “[w]hether a state court that considers evidence presented at a petitioner’s penalty phase proceeding as determinative of petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2).”

We also have a pair of Sixth Circuit cases. Kalamazoo County Road Commission v. Deleon, 13-1516, asks whether it is an “adverse employment action” for a discrimination claim, or a “materially adverse action” for a retaliation claim, when an employer grants an employee’s request for a job transfer and it doesn’t turn out well. Volkman v. United States, 13-8827, relates to a charge under the Controlled Substances Act, and challenges the denial of the defendant’s proposed jury instruction under which, in order to find him guilty, the jury would have had to find “that he used his prescription[-]writing power as a means to engage in … illicit drug dealing and trafficking as conventionally understood.”

Carroll v. Carman, 14-212, involves two Pennsylvania state troopers who approached the side door of the Carmans’ house on the whimsically named Raspberry Path. The petition asks “[w]hen a police officer approaches a residence to conduct a ‘knock and talk,’ does the Fourth Amendment require the officer to go to the ‘front door’ even where it reasonably appears that some other entrance is also customarily used by visitors?” Finally, in Kahn v. Chowdhury, 13-1479, a jury found Khan liable to Chowdhury under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). Thereafter the Supreme Court handed down Kiobel v. Royal Dutch Petroleum Co., which effectively invalidated Chowdhury’s ATS legal theory. The Second Circuit nevertheless affirmed the verdict on harmless error grounds. Kahn’s petition asks whether, where one of the claims submitted to a jury is set aside after trial, a court must vacate the jury’s general verdict, or may apply a “harmless error” exception.

That’s it for today; hopefully, the Court will act on some of these cases in the next week. Until then, thanks to Stephen Gilstrap and Conor McEvily for compiling and drafting this update.

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[page]13-8427[/page]

(relisted after the June 19, September 29, and October 10 Conferences)

[page]13-1487[/page]