Relist Watch
on Jan 27, 2017 at 3:52 pm
John Elwood reviews Monday’s (suspected) relists
There is nothing like a presidential transition, particularly between presidents of opposing (I almost said “different”!) parties. It goes without saying that the public will be treated to the spectacle of politicians expressing outrage that opponents are espousing positions that they themselves took only recently. But in the Internet Age, there’s plenty of room for us amateurs to participate too, leading to “an unstoppable process of reciprocally escalating outrage & disgust, justified via social media.” There’s also a negative side.
I kid! There is a positive side to this situation. Supreme Court nominations are law nerds’ favorite spectator event. That means we’re basically in the middle of a year-long Netflix binge – only way, way weirder. By the next time you absentmindedly skim Relist Watch during a conference call, the plot of the drama we’re all living will have advanced significantly: We will have a new nominee, ending months of speculation about potential nominees (including some dark horses).
We now have a luxurious 29 days until the court’s next conference, which means we have a little bit of time to talk about cases, a rare thing in these go-go days. As lawyers, we are all about the satisfaction of delayed gratification, so let’s begin by talking a bit about old business. We at Relist Watch are the subject of a long-running jinx that whenever we talk about how a repeated relist is plainly destined for summary reversal or an opinion dissenting from denial of cert, the court up and grants. The jinx struck again in District of Columbia v. Wesby, 15-1485, the eight-time relist that the court granted last Thursday. This case involves whether police acted constitutionally (or at least were entitled to qualified immunity) when they arrested partygoers who had been invited to celebrate at a vacant house by someone who, although not the homeowner, was at least called “Peaches.” I suspect that a strong dissent caused the court to abandon plans to summarily reverse, but my ignorance is only too apparent. To my knowledge, this case represents the most-relisted case the court has granted, unseating Bond v. United States (relisted seven times before cert was granted), which in turn unseated Comcast Corp v. Behrend (relisted six times before grant). The court also granted last Thursday in the much less colorful two-time relist Bristol-Myers Squibb Company v. Superior Court of California, San Francisco County, 16-466, involving the showing necessary to establish specific jurisdiction. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this case.]
But it was bad news for three death-row prisoners whose cases had two things in common: the same legal issue and – not coincidentally – the words “v. Alabama” in the caption. Three-time relist Arthur v. Alabama, 16-595, and two-time relists Shaw v. Alabama, 16-5726, and Bohannon v. Alabama, 16-6746, all raised (among other issues) Sixth Amendment challenges to Alabama’s advisory-jury death-sentencing scheme based on Hurst v. Florida. Thomas Douglas Arthur, at least, has one other petition still pending, because the court appears to have relisted all the other cases one more time.
Now on to the new business. The court has not yet formally relisted cases – the dockets are frozen as of the January 19 conference – but there appear to be three newish relists. We say “newish” because one of them is a returning relist that somehow slipped past us last week: Baston v. United States, 16-5454. Petitioner Damion St. Patrick Baston (no, not that guy) argues that 18 U.S.C. § 1596(a)(2), which expressly establishes extraterritorial jurisdiction over sex trafficking by force, fraud or coercion, exceeds Congress’ power under the foreign commerce clause.
Class v. United States, 16-424, presents the question whether a defendant’s unconditional guilty plea waives a his right to challenge the constitutionality of his statute of conviction. After U.S. Capitol Police observed petitioner Rodney Class parked illegally outside the U.S. Botanic Garden, Class made a decision almost as fraught with legal consequence as violating parking regulations on the grounds of the Capitol: He admitted having weapons in his car. Police then searched the car and found 256 rounds of ammunition and three handguns (apparently he brought extras, in case the first two were stolen). Class challenged his prosecution as violating the Second Amendment, but later entered an unconditional guilty plea to unlawfully carrying or heavily readily accessible a firearm on capitol grounds, in violation of Washington, D.C., law. Class renewed on appeal his claim that his prosecution violated his Second Amendment rights, but the U.S. Court of Appeals for the District of Columbia Circuit held, in an unpublished opinion, that unconditionally entering a guilty plea waives the defendant’s claims of error on appeal, including constitutional claims. Class seeks to revisit that determination on appeal, arguing that some courts allow review of constitutional claims notwithstanding an unconditional guilty plea.
Lastly, the court appears to have relisted Perez v. Florida, 16-6250, involving a pro se petitioner who was convicted of making a threatening statement about a Molotov cocktail in a Florida supermarket. Perez argues that a special jury instruction as to the relevant provision of the Florida statute, which stated that Perez could be convicted if he had the “stated intent” to do bodily harm to any person or damage to the property of any person, amounts to an unconstitutional diminishment of the criminal mens rea required under Elonis v. United States, or alternatively, that Elonis requires that the statute be construed to require proof of guilty knowledge rather than mere negligence.
And that’s it for nearly a month. The coming days and weeks may be full of partisan wrangling, readers, but resist the temptation to flee. Our willingness to face our challenges head on is the only thing that separates us from animals.
Thanks to Bryan U. Gividen for compiling the cases in this post.
============================================================
Returning Relists
Arthur v. Dunn
16-602
Issues: (1) Whether, to satisfy his Glossip v. Gross burden, a condemned prisoner is limited to selecting an alternative method of execution from those already permitted by state statute; (2) whether Glossip requires a prisoner proposing an alternative lethal injection drug to provide a specific willing supplier for the alternative drug; (3) whether, to meet his Glossip burden, a condemned prisoner is required to provide, through a medical expert, a detailed protocol for an alternative method of execution including “precise procedures, amounts, times and frequencies of implementation”; and (4) whether it is a violation of the 14th Amendment guarantee of equal protection for a state to arbitrarily deviate from its voluntarily adopted execution safeguards.
(relisted after the December 9, January 6, January 13 and January 19 conferences)
Johnson v. Kelley
16-6496
Issues: (1) Whether, in a means-of-execution suit, known and available alternatives are limited to those already provided in a statute an inmate is challenging; (2) whether an inmate pleads a known and available alternative by identifying an execution method—firing squad—that other states have used and that the state has admitted it can carry out; and (3) whether an inmate pleads a known and available alternative by identifying a lethal-injection drug and identifying vendors who currently sell it.
(relisted after the December 9, January 6, January 13 and January 19 conferences)
Rippo v. Baker
16-6316
Issue: Whether the trial judge’s failure to recuse himself from the petitioner’s capital trial violated the due process clause.
(relisted after the January 6, January 13 and January 19 conferences)
Baston v. United States
16-5454
Issue: Whether 18 U.S.C. § 1596(a)(2) – which expressly establishes extraterritorial jurisdiction over sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591 – is a valid exercise of Congress’s power under the foreign commerce clause.
(relisted after the January 13 and January 19 conferences)
Class v. United States
16-424
Issue: Whether a guilty plea inherently waives a defendant’s right to challenge the constitutionality of his statute of conviction.
(relisted after the January 19 conference)
Perez v. Florida
16-6250
Issues: (1) Whether a special jury instruction as to Section 790.162, Florida Statutes, that an accused may be convicted of that offense with the “stated intent” to do bodily harm to any person or damage to the property of any person, amounts to an unconstitutional diminishment of the required criminal mens rea or scienter under the United States Supreme Court’s decision in Elonis v. United States; and (2) whether, under Elonis, Section 790.162, Florida Statutes, contains the necessary criminal element of mens rea or guilty knowledge instead of a mental state of mere negligence.
(relisted after the January 19 conference)
