It seems our issue keeps bubbling to the surface in other venues, in other contexts, long after we first noticed it.
There are now two cases before the Supreme Court that are, perhaps, serendipitous. And perhaps not. Because as with all things in appellate courts, assessments of favorable v. unfavorable must abide the event, “the event” being whenever some judge or group of judges decides to weigh in.
We discover these cases courtesy of SCOTUS Blog’s “Relist Watch” which is a very useful tool for learning what SCOTUS Justices and/or their law clerks are looking at and maybe even interested in.
Astute and attentive readers, in other words, will appreciate the significance of Manuel v. City of Joliet. It was filed in the SCOTUS way back in April, but by the time some modicum of interest was shown – that is, a response was requested – and after two extensions, the matter wasn’t fully submitted until December 14th, whereupon it was quickly scheduled for a conference, whereupon it was then relisted.
A “response requested” and a “relist” are two signs that the case is receiving serious attention.
We don’t really like this development otherwise. Take a look at the Petitioner’s brief. The case is out of the 7th circuit, which is the most confused circuit on our issue and has been the circuit most responsible for confusing the rest of the country. The confusion is reflected in the brief, which is nowhere near up to speed, citing Albright v. Oliver – a 7th circuit case, of course – as standing for the proposition that a federal “malicious prosecution” cause of action sounds in the 4th amendment rather than the due process clause, which leaves Mooney v. Holohan out of it, a – ahem – problematic result inasmuch as Mooney and its progeny are the governing federal law on the question and they are all due process cases. The brief cites neither Mooney, nor Pyle nor Miller v. Pate.
The Respondents’ response is dismissive, only 5 pages. The Petitioner’s reply is more dismissive still, only 2 pages.
This case isn’t very well briefed and we hope the SCOTUS denies the petition. It wasn’t granted today, so it’s either going to be denied or “relisted” again. We have nothing against the Petitioner, but we hope it’s the former. Too much at stake for us and lots of other people to have the issue messed up in the SCOTUS with yet another 7th circuit fiasco.
The other case is this one. It was filed at the end of May and has been “relisted” five times. It was not among the grants today either, meaning it will either be relisted again or denied on Monday, and again while having nothing at all against the Petitioner we hope it’s the latter, because the issue in the case is a Brady issue and the Petitioner’s attorney is not aware of the true Brady-Mooney relationship. He more appears to be of the erroneous mind that Mooney has been “generally subsumed” into Brady.
What is interesting about both of these cases is that the disfavored litigant is the Petitioner in both and they received considerable interest and attention. Ordinarily when the disfavored litigant is the Petitioner a case will receive no attention in the SCOTUS no matter how meritorious it might otherwise be.
We’ve talked about that before, in the same context, but with respect to different cases which were also not taken up. Thankfully.
That was in February, almost a year ago, and we surmised then that there was at least one Justice on the SCOTUS who was attuned to our issue. We think by now there is probably more than one, but in that respect nothing has changed, because one is all you can know for sure.
This is a little like reading tea leaves, isn’t it?
Correction: Manuel v. City of Joliet was a GRANT. Ugh. We are morons sometimes. Don’t know how we missed that, misreading the order list on Friday.
What does this mean? This is a very important development for us. We may have things to do in connection with it. Ugh again.
The other case, Wearry v. Cain, does not appear on today’s order list unless we are become morons again and have misread the list. In all likelihood this means another relist – the 6th for this petition. Or perhaps it has been consigned to some sort of SCOTUS limbo.
Update: Wearry v. Cain is “relisted” again for this Friday’s conference. See here. That’s a 6th relist. If I’m not mistaken, while a relist or two means a greatly enhanced chance of a grant, this many relists implies the opposite, but an enhanced chance of, say, a dissent from a denial of cert.
Again, this begins to resemble reading tea leaves or divination.