John Elwood reviews Monday’s relists.

With all the crazy things happening now, it seems a little frivolous, even irresponsible, to be obsessing about the minutiae of the Supreme Court’s docket. So let’s get started.

The ranks of the court’s relists are swelling. With the exception of the petition in the North Carolina voting case, North Carolina v. North Carolina State Conference of the NAACP, 16-833, which the court denied, and Deutsche Bank Trust Company Americas v. Robert R. McCormick Foundation, 16-317, which has gone into the “hold” status (for Merit Management Group, LP v. FTI Consulting, Inc., 16-784) that we expected it to assume a week ago, all of last week’s relists are back for another spin. As a statistical matter, we’re getting to the point that it’s time to start expecting dissents from denial in some of these cases. That is especially true for the closely watched First Amendment/same-sex marriage case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111, which has been relisted nine times. To my knowledge, the most-relisted case the court has ever granted is eight-time relist District of Columbia v. Wesby, 15-1485. Given the lack of a clear circuit split, we may also be getting a dissent from denial in the group of cases involving cell-site records, which are on their fourth relist. The tangle of retroactive tax cases, also on four relists, may likewise be approaching their sell-by date, but there are so dang many of them that it’s conceivable the court needs more time to sort through all the vehicles.

On top of that already heapin’ helpin’ of hospitality, we have four new relists. In the past, we’ve noted the court’s general wariness about granting in Second Amendment cases. (Note that the Second Amendment challenge to San Diego’s concealed-carry licensing, Peruta v. California, 16-894, has been relisted a second time this week.) This week’s first new relist puts the court on the horns of dilemma because it is a Second Amendment case that comes from one of the all-time most successful petitioners, Uncle Sam. Sessions v. Binderup, 16-847, involves two people, Daniel Binderup and co-respondent Julio Suarez, who were separately convicted of strangely classified crimes: misdemeanors punishable by multi-year prison sentences (sex with an underage person, with a maximum 5-year penalty, and drunken driving, carrying a 3-year maximum penalty, respectively). Hey, I’m used to crimes punishable by more than a year in prison being felonies, but whatever. Binderup and Suarez had their rights to own firearms restored under state law, but they were still subject to the prohibition of 18 U.S.C. § 922(g)(1), which, among other things, prohibits a person “convicted of[] a crime punishable by imprisonment for a term exceeding one year” to possess “in or affecting commerce[] any firearm or ammunition.” Binderup and Suarez separately filed, and won, lawsuits arguing that Section 922(g)(1) violated the Second Amendment as applied to them. The U.S. Court of Appeals for the 3rd Circuit sua sponte consolidated the appeals en banc and affirmed by a one-vote margin, with no opinion garnering a majority of the judges on the Second Amendment issue. In the waning days of the Obama administration, the government sought certiorari, arguing that Binderup and Suarez were not entitled to relief. The respondents, represented by Alan Gura, the counsel who won the court’s two Second Amendment blockbusters McDonald v. Chicago and District of Columbia v. Heller, acknowledge a “circuit split,” but argue that the court shouldn’t take this case, involving misdemeanors in which the individuals’ Second Amendment rights are particularly strong, but should instead take a recently decided case in which the U.S. Court of Appeals for the 4th Circuit denied a similar claim brought by another Gura client (a convicted felon whose rights were restored). Maybe the court will compromise and take both. I don’t yet see a petition in the 4th Circuit case, however.

Sessions v. Binderup is accompanied by its doppelganger Binderup v. Sessions, 16-983, a conditional cross-petition. The latter case involves a statutory exception for the Section 922(g)(1) prohibition available for state misdemeanors “punishable by a term of imprisonment of two years or less,” 18 U.S.C. § 921(a)(20)(B). The cross-petition asks whether that phrase means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.” The basic argument appears to be that because it was possible to receive less than a 2-year sentence for the offenses, they qualified for the exception.

SAS Institute Inc. v. Lee, 16-969, involves “inter partes” review of patents before the Patent Trial and Appeals Board. SAS Institute commenced inter partes proceedings to challenge the validity of claims in a patent issued to ComplementSoft LLC. SAS sought review of claims 1-16 of that patent, but the board agreed to institute review only as to claims 1 and 3-10 on certain grounds, declined to institute review as to those claims on other grounds, and declined review altogether on claims 2 and 11-16. The PTAB invalidated certain claims of the patent as obvious under prior art, but the board’s final decision did not address the merits of SAS Institute’s remaining claims. The U.S. Court of Appeals for the Federal Circuit held that the board didn’t need to address every claim. In its petition, SAS Institute asks whether 35 U.S.C. § 318(a), which provides that the PTAB in an inter partes review “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner,” requires the board to issue a final written decision as to every claim challenged by the petitioner, or whether it allows the board to issue a final written decision with respect to the patentability of only some of the patent claims challenged by the petitioner. The government argues that, because of the reticulated rules governing appellate jurisdiction over PTAB decisions, the court of appeals lacked jurisdiction to address “a key predicate of petitioner’s argument,” that the Patent and Trademark Office “was required to institute review of every claim challenged in the petition for inter partes review.” If the court decides to take this case, it sounds like it will be a pretty important one for the patent bar.

Our last new relist is Neal v. Kubsch, 16-1021, a gruesome capital case out of Indiana. Wayne Kubsch was convicted of killing his wife, her ex-husband and his stepson for insurance money. The trial court declined to admit as substantive evidence the videotaped testimony of a nine-year-old neighbor who, days later, recalled seeing the stepson alive at a time after Kubsch had left the area; the court said that Kubsch had failed to establish the reliability of the evidence. By the time of trial, the girl no longer remembered events, and several relatives said the girl had gotten the day mixed up (that is, she was remembering events from the day before the murders). Kubsch challenged his conviction on habeas, arguing that the trial court’s exclusion of the testimony violated Chambers v. Mississippi, in which the Supreme Court held that a trial court had violated a criminal defendant’s due process rights by excluding hearsay statements that were critical to his defense and that bore “substantial assurances of trustworthiness.” The district court ruled that the exclusion was consistent with Chambers because the hearsay testimony of the girl was not trustworthy and that in any event, the error was harmless beyond a reasonable doubt. A divided panel of the U.S. Court of Appeals for the 7th Circuit affirmed, with Chief Judge Diane Wood dissenting. But the court of appeals reheard the case en banc and granted Kubsch habeas relief. Wood, writing for the majority, held that excluding the videotaped statement as substantive evidence constituted an unreasonable application of Chambers. Three judges dissented, noting pointedly that “the [Supreme] Court has summarily reversed a grant of habeas relief where the court of appeals, like the majority here, read Chambers too broadly.” The petitioner, Indiana, is doubtless hoping that happens again here.

That’s all for this week. Tune in next week as we blind ourselves to the latest outrage and blithely plow ahead.

Thanks to Bryan U. Gividen for compiling the cases in this post.

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New Relists

Sessions v. Binderup, 16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

(relisted after the May 11 conference)

SAS Institute Inc. v. Lee, 16-969

Issue: Whether 35 U.S.C. § 318(a), which provides that the Patent Trial and Appeal Board in an inter partes review “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner,” requires that Board to issue a final written decision as to every claim challenged by the petitioner, or whether it allows that Board to issue a final written decision with respect to the patentability of only some of the patent claims challenged by the petitioner, as the U.S. Court of Appeals for the Federal Circuit held.

(relisted after the May 11 conference)

Binderup v. Sessions, 16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

(relisted after the May 11 conference)

Neal v. Kubsch, 16-1021

Issue: Whether a state court reasonably applies Chambers v. Mississippi when it requires a defendant to meet traditional tests of reliability under rules of evidence for using hearsay as substantive evidence.

(relisted after the May 11 conference)

Returning Relists

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clause of the First Amendment.

(relisted after the February 24, March 3, March 17, March 24, March 31, April 13, April 21, April 28 and May 11 conferences)

Dot Foods, Inc. v. Department of Revenue for the State of Washington, 16-308

Issue: Whether, or under what circumstances, imposing additional tax beyond the year preceding the legislative session in which the law was enacted violates due process.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

Carpenter v. United States, 16-402

Issue: Whether the warrantless seizure and search of historical cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days is permitted by the Fourth Amendment.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

Sonoco Products Co. v. Michigan Department of Treasury, 16-687

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states and requires them to allow taxpayers to elect to use the compact’s equally weighted apportionment formula until the state prospectively withdraws from the compact; (2) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the contracts clause; (3) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the due process clause; and (4) whether Michigan’s retroactive repeal of, and withdrawal from, the compact violated the commerce clause.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

Skadden, Arps, Slate, Meagher & Flom, LLP v. Michigan Department of Treasury, 16-688

Issues: (1) Whether a state statute that retroactively imposes over $1 billion in increased tax liability on out-of-state businesses for the benefit of in-state businesses violates the dormant commerce clause; (2) whether a state tax law that has a 6 1/2-year period of retroactivity and targets out-of-state businesses for increased tax liability of over $1 billion violates the due process clause; and (3) whether a state’s retroactive repeal of a central provision of the decades-old Multistate Tax Compact violates the contracts clause by imposing over $1 billion in retroactive tax liability on out-of-state taxpayers.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

Gillette Commercial Operations North America & Subsidiaries v. Michigan Department of Treasury, 16-697

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

International Business Machines Corp. v. Michigan Department of Treasury, 16-698

Issues: (1) Whether a state, without violating the constitutional bar against the impairment of contracts, can retroactively withdraw from the Multistate Tax Compact so as to divest taxpayers of benefits under that compact for a period of 6 1/2 years before that withdrawal; and (2) whether, consistent with due process, a state can, by statute, change its tax laws retroactively for a period of more than six years, when the change was not promptly instituted and when the change was designed to increase state tax revenues by overriding a Michigan Supreme Court decision determining taxpayer obligations under prior law.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

Goodyear Tire & Rubber Co. v. Michigan Department of Treasury, 16-699

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

DIRECTV Group Holdings, LLC v. Michigan Department of Treasury, 16-736

Issues: (1) Whether the Multistate Tax Compact has the status of a contract that binds its signatory states; and (2) whether a state law that imposes retroactive tax liability for a period of almost seven years, in a manner that upsets settled expectations and reasonable reliance interests, violates the due process clause.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

Graham v. United States, 16-6308

Issues: (1) Whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time; and (2) whether 18 U.S.C. § 2703, which contains both a provision that requires the government to seek a warrant in order to obtain stored location information from cellular service providers, as well as a provision allowing law enforcement to obtain this data on less than probable cause, supports application of the good-faith exception to law enforcement’s acquisition of over seven months of cell-site location information without a warrant.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

Jordan v. United States, 16-6694

Issues: (1) Whether the trial court’s order granting a request by the accused’s codefendant to prohibit the accused from testifying about details that were exculpatory to the accused but prejudicial to his codefendant constituted an impermissible limitation on the accused’s right to testify in his own behalf as set forth in Rock v. Arkansas; and (2) whether the Fourth Amendment requires law enforcement to obtain a warrant to acquire cell-site location information used to track and reconstruct the location and movements of cell-phone users over extended periods of time.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

Caira v. United States, 16-6761

Issue: Whether the Supreme Court should resolve a split of authority among the courts by rejecting the U.S. Court of Appeals for the 7th Circuit’s reasoning in United States v. Caira, which holds that individuals have no reasonable expectation of privacy in information held by a third party.

(relisted after the April 13, April 21, April 28 and May 11 conferences)

Rios v. United States, 16-7314

Issues: (1) Whether law-enforcement officers must secure a warrant to obtain real-time cellular-phone location data; (2) whether courts must instruct juries on the required unanimity regarding the specific categories of acts in RICO conspiracy cases, and likewise whether this court’s conclusions in Richardson v. United States apply in RICO cases; and (3) whether courts should deliver uniform jury instructions on reasonable doubt and preserve the standard of proof necessary to sustain a criminal conviction.

(relisted after the April 21, April 28 and May 11 conferences)

Peruta v. California, 16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

(relisted after the April 28 and May 11 conferences)

Recommended Citation: John Elwood, Relist Watch, SCOTUSblog (May. 17, 2017, 2:02 PM), https://www.scotusblog.com/2017/05/relist-watch-104/