By John Elwood
on May 12, 2021
at 11:08 pm
The Relist Watch column reviews certification applications that the Supreme Court has “re-listed” for its upcoming conference. A short explanation of the relists can be found here.
The Supreme Court has had two weeks to consider which cases to consider, which unsurprisingly means that the judges for Thursday’s conference have many petitions before them: 249 by my count. You will consider three of these petitions for a second time as the court re-listed them after discussion at the April 30 conference. They concern three issues that the court has dealt with over the years: arbitration, habeas corpus and excessive police force. Please contact me now as I have to be cut short this week because of the press.
Badgerow v. Walters, 20-1143, deals with a very specific issue of arbitration law. In the Vaden v. Discover Bank case, the Supreme Court ruled that when considering an application for compulsory arbitration under Section 4 of the Federal Arbitration Act, a federal court can “look through” the application to determine whether the underlying dispute between the parties gives rise to federal jurisdiction. Badgerow is about the question of whether the same review analysis applies to requests for confirmation or annulment of arbitral awards under sections 9 and 10 of the Federal Arbitration Court. The petitioner Denise Badgerow claims that the circuits in this matter are divided four to two. Respondent Greg Walters counters that the case appears to be federal and a parallel case before the same trial judge has been confirmed, which makes this case a bad vehicle, as the law in question is unlikely to have affected the outcome. We’ll have a better idea next Monday whether the court will agree.
The Terrorism and Effective Death Penalty Act limits the ability of federal courts to provide relief to state prisoners who seek help. Among other things, AEDPA prevents a federal court reviewing a habeas conviction from examining evidence outside the state court record if a prisoner or his attorney has not carefully developed the factual basis of the claim in a state court, subject to non-relevant exceptions . In Shinn v. Ramirez, 20-1009, the U.S. Court of Appeals for the 9th Circuit concluded that the AEDPA’s barrier to evidence development does not apply to a federal court review of the merits of a lawsuit if a court apologizes for the procedural deficiencies in that lawsuit, because the failure was caused by the attorney’s negligence after the conviction. The 9th Circle decision brought relief to death row inmates David Martinez and Barry Jones. When the 9th Circle refused to repeat the cases en banc, eight judges disagreed, saying the panel’s decision was “disregard[s] Control the precedent of the Supreme Court by creating a new judicial exemption from the restrictions imposed by it [AEDPA] on the use of new evidence in habeas corpus proceedings. “The state of Arizona is now moving to the Supreme Court for a review. Martinez and Jones claim the case is a bad vehicle. Since the Supreme Court has unceremoniously overturned the Court of Appeal’s decisions in habeas cases (including another case from the 9th circuit) twice in recent months, this petition will no doubt be carefully examined by the court.
That brings us to Lombardo versus City of St. Louis, Missouri, 20-391. The case involves an allegation of excessive police force made by the parents of Nicholas Gilbert, who died in police custody. Jody Lombardo and Bryan Gilbert claim that a reasonable jury could have established that officers kneeling on Nicholas Gilbert used excessive force when they covered him up at a time when he was both handcuffed and handcuffed laid on the floor and pressed up in his back he choked. The US Court of Appeals for Circuit 8 ruled, for legal reasons, that the officers’ actions did not constitute excessive violence, as Gilbert’s behavior could rightly have been interpreted as “resistance”. This case has been hanging on the file for several months. It was supposed to be considered at every conference of the court from early December to late April, and it was postponed 13 times at the last moment, so the case wasn’t actually considered until the April 30 conference. While it is difficult to predict what will happen as an empirical matter, repeated rescheduling is often a prelude for judges filing separate opinions that differ from the court’s refusal to review. We will see what knowledge the order list from Monday brings.
That’s all for this week. Stay safe!
Lombardo v City of St. Louis, Missouri, 20-391
problem: Whether a reasonable jury could determine that officers used excessive force by laying a handcuffed and handcuffed person face down on the floor and pushing them in their back until they suffocated.
(before the conferences of December 4, December 11, January 8, January 15, January 22, February 19, February 26, March 5, March 19, March 26, April 1, April 16, April and April 23 postponed; listed again after the April 30 conference)
Shinn v. Ramirez, 20-1009
problem: Whether the application of the just rule has been announced by the Supreme Court in Martinez versus Ryan renders the Law against Terrorism and the Effective Death Penaltywhich prevents a federal court from examining evidence outside the state court records when examining the merits of a request for habeas relief when a prisoner or his attorney has not carefully developed the factual basis of the request in a state court, which is based on The merits of a federal court does not apply review of a claim for habeas relief.
(resumed after the conference on April 30th)
Badgerow v. Walters, 20-1143
problem: Whether federal courts have material jurisdiction to confirm or set aside an arbitration award Sections 9 and 10 of the Federal Arbitration Court if the only basis for jurisdiction is that the underlying dispute concerned a federal issue.
(resumed after the conference on April 30th)
Chipotle Mexican Grill versus Scott, 20-257
Problem: Whether a district court may consider factors other than the existence of a single material question of law or fact common to a group of workers when assessing whether workers are “similar” for the purposes of the collective bargaining provision of the Fair Labor Standards Act.
(Performed again after the conferences of December 4, December 11, January 8, January 15 and January 22) [NB: the parties have reached an agreement in principle to settle and the court now appears to be holding the case]
Dobbs v Jackson Women’s Health Organization, 19-1392
Problems: (1) whether all prohibitions on dropping out of elections before viability are unconstitutional; (2) whether the validity of a viability law that protects the health of women, the dignity of unborn children, and the integrity of the medical profession and society, according to the standard “Planned Parenthood v. Casey’s “inappropriate burden” or according to the health of whole women v Hellerstedt’s weighing of benefits and burdens; and (3) whether third party abortion providers have the right to invalidate a law that protects women’s health from the dangers of late-term abortions.
(postponed before October 9, October 16, October 30, November 6, November 13, November 20, December 4 and December 11; again after January 8, January 15, January 15 recorded; February 22, 19, February 26, March 5, March 19, March 26, April 1, April 16, April 23 and April 30 conferences)
Harris v. Maryland, 20-101
problem: Whether, if the delay in giving notice actually impaired the defendant’s ability to defend himself or herself, the due process clause requires the defendant to demonstrate that the delay was due to an improper motive on the part of the prosecutor or that the courts the particular prejudice of the accused versus the particular reasons (or lack thereof) for the delay.
(Performed again after the conferences of January 8, January 15, January 22, February 19, February 26, March 5, March 19, March 26, April 1, April 16, April 23 and April 30th)
Johnson v. Precythe, 20-287
Problems: (1) Whether Bucklew v Precythe made a categorical rule that a state may obtain dismissal of a claim to method of execution after the Eighth Amendment by giving a reason for rejecting the plaintiff’s abstractly rejected alternative method of execution, whether or not the Claimant has plausibly alleged that the state put forward in relation to the facts is illegitimate or sufficient; and (2) whether the U.S. Court of Appeals alternatively summarizes the 8th Circle’s refusal to allow Ernest Johnson to amend his complaint to suggest a previously used alternative method of warrant enforcement following the decision of the Bucklew Supreme Court Reversal.
(listed again after the conferences of January 8, January 15, January 22, February 19, February 26, March 5, March 19 and (after supplementary briefing) April 30)
Woodard v USA, 20-6387
problem: Whether, as many courts have found, continuing a prosecution after a long and demonstrably adverse delay in filing criminal charges is against due process, even when the prosecution does not intend to gain tactical advantage or harass when law enforcement cannot explain the delay sufficiently to justify the extent of the defendant’s prejudice.
(Performed again after the conferences of March 19, March 26, April 1, April 16, April 23 and April 30)
Allen v. Wells Fargo & Co., 20-866
Problems: (1) Whether under Fifth third Bancorp against DudenhoefferEmployee equity fund trustees are effectively immune to due diligence if inside information is not made public. and (2) whether the scope of Dudenhoeffer goes beyond prudent claims and applies to claims of loyalty against ESOP trustees.
(performed again after the conferences of April 1st, 16th and 23rd)
Ericsson Inc v TCL Communication Technology Holdings Limited, 20-1130
Problems: (1) Is there an exception for summary judgment decisions that relate solely to “legal issues”, notwithstanding the customary rule that a pre-trial rejection of a summary judgment application cannot be reviewed on appeal? and (2) whether an order rejecting a summary judgment may be reviewed in the discretion of the appeals court regardless of failure by either party to obtain final judgment on those grounds Federal Code of Procedure 50.
(performed again after the conferences of April 23rd and 30th)