The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Friends, administrative procedure can be tricky. It's even trickier if the gov't can mislead you about the law and then argue that it is your responsibility to know better. Last week, relying on an IJ amicus, the Texas Supreme Court unanimously reversed a lower court ruling dismissing Patricia Mosley's argument that she should not be expected to know which of two conflicting procedural rules to follow when appealing an administrative judgment against her. After all, the government itself did not know the right answer and provided her with wrong guidance. The Texas Supreme Court held that tossing Patricia's case, when she properly relied on the government's guidance, "violates the most rudimentary demands of due process." Click here to read the opinion. And click here for an even more fiery concurrence: "People already have plenty of reasons not to trust their government. Apparently now the government agrees it shouldn't be trusted."
New on the podcast: A special Seventh Circuit extravaganza recorded before a live student audience at the University of Chicago Law School at the invitation of UChicago chapter of the Federalist Society. Featuring: Tacy Flint of Sidley Austin, Will Baude of UChicago Law, and Jim Pfander of Northwestern Law. Click here for iTunes.
- Two provisional Passaic County, N.J. corrections officers are frequently absent from work, incompetent, and insubordinate. They're fired. A state commission orders the county to rehire them on a provisional basis. The county accedes but only if the former officers promise not to sue. Instead, they sue. The commission removes them from its list of officers eligible to be rehired. One issue remains on appeal: Did they have a property interest protected by the Fourteenth Amendment in being on that list? The Third Circuit says no.
- There's no way Virginia corrections officials didn't know keeping death row inmates in solitary confinement between 23 and 24 hours a day could cause serious emotional and psychological harm, says the Fourth Circuit. And though conditions for inmates have since improved, officials haven't promised not to revert back. So, over a dissent, the district court did not err by ordering them not to.
- Michigan automatically suspends driver's licenses for unpaid court debt. A district court suspended this program because it did not include an ability-to-pay hearing before the license was yanked. Sixth Circuit: The state suspends licenses regardless of indigency, so no need for a hearing to establish that someone is poor. Dissent (with an exclamation point!): How does this policy make it more likely the state will recover the money it seeks?
- Man waiting at a St. Louis traffic light is gunned down by unidentified occupants of another vehicle. Can the man's widow recover $250k from his insurance policy, which covered him in the event of an accident with an uninsured motor vehicle? The Eighth Circuit, interpreting state law, says no. The man's death was caused not by an uninsured vehicle but by gunfire.
- Kansas City, Mo. police receive call about a burglary in Suite 200 of a building. For good measure, they enter and search Suite 201, too, despite no signs of entry. The same day, officers respond to a robbery call at a store on the first floor of the building, and while there they notice Syn brand incense, which they seize. Surprise! The same guy both owns the store and rents Suite 201, and he is fed up with KCPD's searching and seizing his property. And his Fourth Amendment claims may proceed to trial, says the Eighth Circuit.
- Springfield, Mo. prohibits women from exposing their nipples (in public) but not men. Unconstitutional gender discrimination? Eighth Circuit: Female nipples may not be freed. (The courts have cleaved on this issue.)
- In January 2019, the Department of Homeland Security implements new policy of returning many Central American asylum applicants to Mexico while an immigration judge resolves their claims. District court: This policy is unlawful. Ninth Circuit (motions panel): Actually, the gov't is likely enough to win that we shall allow the policy to proceed pending appeal. Concurrence: In practice, though, it seems likely this policy is returning people to Mexico even though they'll be persecuted there. Concurrence in result: There is no statutory basis for DHS's policy, and the merits panel should recognize the government's position as "baseless arguments in support of an illegal policy."
- California law allows union organizers onto agricultural land before/after work and during lunch breaks to tout the benefits of unionization. Is this physical invasion a Fifth Amendment "taking" of the owners' property rights? Ninth Circuit (over a dissent): No. Plaintiff: What about a Fourth Amendment "seizure" of our property? Ninth Circuit: Also no.
- Last year, it took the D.C. Circuit 250 pages to conclude that the structure of the Consumer Financial Protection Bureau, whose sole director does not serve at the pleasure of the president, is constitutional. This week, the Ninth Circuit declines to "re-plow the same ground" and reaches the same conclusion in a mere 10 pages.
- Sports Illustrated publishes article detailing how Oklahoma State football booster threw gobs of money at players for "jobs" they didn't really do. Booster: You've painted me in a false light! Tenth Circuit: These hours of recorded interviews with the players who received said gobs of money suggest otherwise.
- Miami officials have plausibly alleged that Bank of America and Wells Fargo refused to loan money to black and Latino homebuyers on the same terms as comparably situated white borrowers, instead lending to minorities only on predatory terms, resulting in disproportionate defaults and financial harm to the city in the form of lost tax revenue. So says the Eleventh Circuit, permitting the city's suit against the banks to proceed past a motion to dismiss.
- Allegation: Detainee suffering from alcohol withdrawal pulls away from Birmingham, Ala. jail officers trying to take him to cell. He's tased, falls to the floor motionless, urinates on himself. He doesn't respond to order to roll over and be handcuffed. He's tased again. He dies. Eleventh Circuit: His son can sue the officer for excessive force. But no suing the officer's superiors for inadequate medical screening procedures, allowing insufficiently trained officers to make decisions affecting medical care. (The local press interviewed a former chief deputy: "People die in jail just like anywhere else. This wasn't due to anything other than poor health and habits but, as you would expect, there is always an ambulance chaser with a dream of winning the lottery at taxpayer's expense. God bless him.")
City officials in Dunedin, Florida want to foreclose on Jim Ficken's home over $29k in unpaid fines for overgrown grass. While Jim was out of town tending to his late mother's estate, the man he hired to cut the grass died unexpectedly. Jim cut the grass (which must not exceed 10 inches) as soon as the issue was brought to his attention, but by then he'd been racking up fines of $500 per day for weeks—without any notice at all. Jim, who's nearly 70 and living on a fixed income, can't pay, so officials are planning to take his house to settle the debt. This kind of thing is not unusual in Dunedin, whose code enforcement revenues have jumped from $34k in 2007 to $1.3 mil in fiscal year 2018. This week, Jim joined with IJ to sue the city. Click here to read more.