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.
This week, by a 7–2 margin, the Supreme Court struck down a Tennessee law that prohibited newcomers (like IJ clients Doug and Mary Ketchum) from obtaining a retail liquor license until they'd resided in the state for two years. Moreover, the law also barred newcomers from renewing their license (which must be done annually) until they'd resided in the state for 10 years. Yup, you could get a license after two years, but then it would lapse for seven years. Lame! The law served only to protect existing liquor stores from competition, and indeed a private association of liquor retailers, rather than the state AG, defended the law at the high court. Click here to read more.
- 42 U.S.C. § 7545(a)(2) would be a run-of-the-mill subsection of the Energy Independence and Security Act of 2007. Except that it doesn't exist. Which is a problem because Congress mandates that the EPA periodically review the Act's mandates, including the requirements of the nonexistent section (a)(2). EPA (2017): Our legal opinion is we should just ignore that section. D.C. Circuit: We don't have jurisdiction to review that mere legal opinion.
- As winged pigs passed overhead, Satan pulled on a cardigan, grabbed a mug of hot cocoa, and settled in to read this First Circuit opinion, in which a prosecutor is denied absolute immunity for withholding exculpatory evidence.
- Plaistow, N.H. man misses mortgage payment; following a loan servicing rep's advice, he mails in a check. Alas, the company returns his checks, says it'll foreclose. He calls the loan rep back, who instructs him to send a cashier's check. He does so, but the company forecloses anyway. Can he sue Fannie Mae, who appointed the loan servicing company, for service so bad it was tortious? First Circuit: It's pellucid that Fannie Mae (a sorta gov't instrumentality) cannot be liable for the unauthorized misdeeds of its agents, so his case is defenestrated.
- Does the label "Diet Coke" (and the use of fit models in advertising) mislead consumers (in violation of New York law) into thinking the drink will assist in weight loss or at least not cause weight gain? The Second Circuit says no (and same deal with the same attorneys' recent claims against Pepsi and Dr. Pepper). "Diet" means contains fewer calories than non-diet, and Diet Coke doesn't have any calories.
- In a brief order Tuesday, the Fourth Circuit remanded a case about the inclusion of a citizenship question on the 2020 census back to district court in Maryland. The district court case will go forward because of newly discovered evidence about whether the citizenship question was unconstitutionally intended to shift political power to white voters. (On Thursday, the U.S. Supreme Court reached a compromise holding in a parallel case: Although the government has the authority to ask the question, it needs to better explain its decision to do so. The Maryland case should be able to continue after the Supreme Court's ruling.)
- Allegation: Memphis police don't take the investigation of sex assaults as seriously as other violent crimes. Over several decades, police declined to test over 15,000 rape kits, resulting in spoliation. Sixth Circuit (over a dissent): The city unreasonably delayed discovery and didn't produce evidence that could allow plaintiffs to succeed on their equal protection claim. The case should not have been dismissed.
- Polk County, Wisc. corrections officer sexually assaults two female inmates over three years. (He's sentenced to 30 years.) Jury: For which the county is liable. Pay each woman $2 mil. Seventh Circuit: Reversed. The officer went to some lengths to conceal his misconduct; no reasonable jury could believe corrections officials were deliberately indifferent to the risk of such assaults. Dissent: Officials didn't punish prior sexually predatory behavior by a different officer; the jury's verdict's is not so unreasonable.
- Despite taking 12 depositions, making 294 document requests, and filing three motions to compel, Illinois attorney has literally no admissible evidence with which to defend against summary judgment. Yet defend he does. Without complying with the local rules. With papers the district court deems "laden with disingenuous and misleading statements." Seventh Circuit: $66k in sanctions is OK with us.
- Police suspect man sitting in his car is watching kids in Monmouth, Ill. park and masturbating. A search of the car yields contraband. They get a search warrant for his phone, laptop, and camera, which yields child porn. State court: Suppress all the evidence. Officers lacked sufficient justification for ordering him out of the car, among other things. But wait! Three weeks later, the feds seek search warrant based on info from the state's searches. The man is convicted, gets an 11-year sentence. Seventh Circuit: Conviction affirmed. There's no evidence the feds knew the state's evidence had been suppressed.
- Des Moines, Iowa man films music video with alleged gang members in which a gun is toted, touted. The video is posted on Facebook. Other photos on the man's Facebook page appear to show him posing with guns and smoking pot. Probable cause to get a warrant for more info from Facebook? Eighth Circuit: Yes, indeed. His conviction for possessing a firearm while being an unlawful user of a controlled substance stands.
- Atlanta officers have search, arrest warrants for nightclub, but it's closed when they show up, so they decide to "attack" other commercial properties nearby. Without knocking, they enter what turns out to be a private motorcycle clubhouse (Dirty South Slab Riders) at 4 a.m. and arrest its owner for failing to produce business and alcohol licenses. Georgia court: He didn't need those licenses. District court: He can sue the officers. Eleventh Circuit: Reversed. The officers could have reasonably believed he did need the licenses. The owner's claims against the city can still go though.
- The Colorado Supreme Court has good news and bad news for corporations in the Centennial State. The good news is that corporations are entitled to the Eighth Amendment's protection against excessive fines. The bad news is that, for fines that accrue daily, excessiveness is based on the amount of the daily fine and not the total amount of fines. Which is unfortunate for a motel owner who learned, after seven years, that he had racked up 1,698 daily fines totaling over $841k for letting his worker's comp insurance lapse.
- And in en banc news: Fifth grade teacher at Catholic school needs time off to undergo surgery, chemo for breast cancer. She's fired. A violation of the Americans With Disabilities Act? District court: No need to answer that. The First Amendment's ministerial exception excepts the school from the ADA. Ninth Circuit (2018): She's not a minister. The case should not have been dismissed. Judge Nelson (2019, joined by eight others), dissenting from denial of en banc review: The panel decision exhibits "the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid."
- And in cert grant news: IJ is going back to the Big Show next term. In 2015, Montana legislators enacted a tax-credit scholarship program that enables low-income families to send their kids to private schools. (Individuals and businesses who donate to private scholarship organizations are eligible for a $150 tax credit. The scholarship organizations then give the donations to families.) But last year, relying on the state's "Blaine Amendment" (a relic of 19th-century anti-Catholic bigotry (that 36 other states also still have in their constitutions)), the Montana Supreme Court invalidated the program because it allows families to send their kids to religious schools. Today, the U.S. Supreme Court agreed to consider whether that violates the Establishment Clause, the Free Exercise Clause, or the Equal Protection Clause. Read more here. And check out the cert petition here.
IJ is excited to announce a new opportunity to join the team as a Law and Liberty Fellow at our headquarters in Arlington, Virginia. If you are a rising 3L or recent law graduate and you are interested in a career in litigation and public interest law, this Fellowship is your opportunity to join IJ's litigation team! IJ is accepting applications through July 15 and will notify all applicants of decisions by the end of August for two-year Fellowships beginning in August 2020. To learn more and apply, click here!