Short Circuit: A Roundup of Recent Federal Court Decisions

A spate of bad lawyering, a spate of congressional subpoenas, and finding love in prison.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

To ensure compliance with Chicago's ban on food trucks operating within 200 feet of a restaurant, city officials require food truck operators to install GPS tracking devices that transmit a truck's location every five minutes. An unreasonable search? We think so! But earlier this year the Illinois Supreme Court disagreed. This week, IJ filed a cert petition urging the Supreme Court to give the case a look. Click here to learn more.

  • In an appeal of President Trump's effort to block congressional subpoenas aimed at forcing an accounting firm to disclose records about him or his businesses, the D.C. Circuit (over a dissent) says Congress can subpoena whatever it darn well pleases.
  • In an appeal of President Trump's effort to block congressional subpoenas aimed at forcing banks to disclose records about him or his businesses, the Second Circuit holds that media organizations have a right to intervene to seek unsealing of certain documents. It also holds that they don't have a right to have those documents unsealed.
  • New York trial judge loses her reelection bid after a local Democratic party judicial screening committee deems her unqualified, ultimately preventing her from securing the party's endorsement. A violation of the judge's equal protection rights? The Second Circuit says no; you can only sue the gov't for violating equal protection, and the Democratic party isn't acting as the gov't (at least here anyway).
  • Man calls 911 when his brother breaks into the house, apparently high on drugs. San Antonio, Tex. police arrive; they try to handcuff brother, who resists. When brother picks up a laptop, police worry he'll use it as a weapon and tase him at least seven times. He dies. District court: Might well be excessive force. A jury shall determine. Fifth Circuit: Qualified immunity.
  • Ohio man is convicted of burglary, robbery, murder, and sundry other crimes. Simultaneously—the man later learns—his defense attorney had been under indictment by the same prosecutor's office for a raft of felonies relating to sexual misconduct, rape, and kidnapping other clients. Yikes! The man should have the opportunity to raise an ineffective-assistance-of-counsel claim, says the Sixth Circuit.
  • Michigan teen is convicted of aiding and abetting murder after her abusive boyfriend kills a former houseguest. Instead of trying to show that his client didn't know of her boyfriend's murderous intent, the woman's lawyer spends the trial arguing that the boyfriend himself was innocent. (He wasn't.) That strategy suffered from "significant deficiencies," observes the Sixth Circuit, but it's not clear the trial would have turned out differently if the lawyer had done a better job. The woman's life sentence stands.
  • Michigan man is charged with aiding and abetting first degree felony murder after he gives a gun to his girlfriend (who uses it to kill an ATM customer). Due to "a shocking lack of comprehension regarding the pertinent law," the man's lawyer advises him not to seek a plea deal and assures him that he'll be acquitted at trial. He isn't, instead earning a mandatory life sentence. And defense counsel's actions amounted to ineffective assistance, says two-thirds of a Sixth Circuit panel.
  • It's a classic love story: boy meets girl, the two fall in love, and they wish to marry. Except the boy in this case is serving a 100-year sentence for two counts of intoxicated vehicular homicide, and the girl is his former prison psychologist. After a surreptitious affair that included secret letters, hidden photographs, and steamy phone sex—all conducted by the psychologist under the alias "Cassie Fox"—the two apply to the warden for permission to be married. Warden: Uh, no, this is a serious safety concern. District Court: Agreed. The lovestruck couple: But love knows no bounds! Seventh Circuit: Yes it does, and this is one of them. Affirmed.
  • Under California law, owners of state-licensed cardrooms are not allowed to own more than a 1% interest in an out-of-state gambling business that would be illegal if operated in California. One such cardroom operator challenges the prohibition as a violation of the Dormant Commerce Clause. District Court: But you filed beyond the two-year statute of limitations. Ninth Circuit (over a dissent): Doesn't matter; the law creates an ongoing injury, so the case can go forward.
  • Tenth Circuit: "Today we must decide, among other things, how to proceed where two of the three panel judges share some common rationale, yet ultimately reach different outcomes, and a different combination of two judges reach a common outcome by using different rationales." (Ed.: You ask the second judge whether the first judge thinks the third judge guards the door with the treasure behind it.) ((This is the case about the SWAT raid of an innocent family triggered by an officer surveilling a hydroponics supply store. We spoke to the family on the podcast.))
  • LaGrange, Ga. officials have a policy of shutting off electricity, gas, and water utility services (of which the city is the sole provider) without advance notice to residents who owe debts to the city, including court debts. Plaintiffs: Which has a disproportionate impact on black residents and violates the Fair Housing Act. Eleventh Circuit: The suit should not have been dismissed.
  • Score one for the little guy in this absolutely charming decision from the Pennsylvania Supreme Court, which holds that a man who cleaned up a city-owned vacant lot across from his house and took care of it for 30 years can argue that the property is now his under the doctrine of adverse possession.
  • Jilted boyfriend to ex-girlfriend's dad: Give me $25k or I'll release a video of your daughter talking about smoking marijuana. Minnesota DA: That's criminal coercion. Minnesota Court of Appeals: Unfortunately, the coercion statute isn't limited to extortion. It covers threats designed to coerce any act, which is too broad to be constitutional. We're throwing the whole law out.
  • Miami Beach doesn't like home-sharing services like AirBnB. And when we say "doesn't like," we mean a $20k fine for a first-time offender, escalating by $20k each time until it hits $100k. But state law limits municipal fines to $1k for a first offense and $5k for subsequent offenses. Can these be squared? Miami Beach: Absolutely! State law explicitly allows us to adopt "other means" of code enforcement; so we chose the "other means" of ginormous fines. Florida trial court: Too clever by half; the city's fines are preempted by state law.

When Linda Cameron applied for a permit to renovate her one-bedroom, one-bathroom home of nearly 40 years, Richland, Wash. officials said she would also need to pay to renovate the public street behind her property—widening the road, building curbs and gutters, and adding sidewalks (that don't connect to any other sidewalks). At an estimated cost of $60k, the city's demands mean Linda can't afford to do the project. This week, she and IJ filed suit against the city's abusive "impact fee." Though the Supreme Court has permitted such fees, it has stated that where there is no impact, there can be no impact fee. Otherwise, in the words of the Court, the gov't could engage in "out-and-out extortion." Click here to read more.

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  1. re: “former prison psychologist”

    I’m not seeing any “serious safety concern” here. He’s still going to be locked up. I am, however, seeing some extremely serious ethical issues. This might be one of the few scenarios where licensing laws are appropriate – and she really needs to lose hers.

    1. The argument seems to be that they were breaking the rules all the way up to the time of the request, so if you grant the request there’s effectively no punishment.

      But don’t worry, fans of love conquering all, warden’s denial was just a denial for now.

    2. “I’m not seeing any “serious safety concern” here.”

      She might try smuggling contraband to him or try to help him escape in some way. Their relationship to day breaks more rules than you can shake a stick at. Why assume they will follow the rules going forward.

      1. Really?

        Why assume that you’re not breaking the law, you should have all of your assets frozen until you can demonstrate that in each day since today you haven’t broken a rule.

        The easy answer is: approve and transfer him to another prison. If safety really is an issue it must be because if her knowledge of the facility from working there, which the state can easily cure by transferring him.

        1. Or transfer her. Or both.

      2. “She might try smuggling contraband to him or try to help him escape in some way.”

        True, she might. How does the ring on her finger, or not on her finger, alter the odds of success?

  2. “all conducted by the psychologist under the alias “Cassie Fox””

    Is “Cassie Fox” an alias for Harley Quinn?

    1. Harley Quinn is an alias for Harleen Quinzel

      /comic book nerd

  3. Meanwhile, in two more examples of leftist lawlessness on the judiciary, a black Clinton judge enjoined the public charge rule and a Hispanic Obama judge enjoined the wall. Our Pinochet can’t come soon enough.

    1. What are you waiting for, Mr Pinochet? Go for it!

  4. I see the seventh circuit has decided to throw out Obergefell’s holding that marriage is a fundamental right. The court gives short shrift to this argument, stating that such denial is “reasonably related to legitimate” government interests.

    I guess ex-Justice Kennedy forgot to say in his decision that the marriage right was subject to the lowest level of constitutional scrutiny.

    1. There’s one set of rules for denying it to a man and woman (as nature intended) and another set of rules for denying it to men who want to celebrate their unnatural sodomy.

      1. Again, what about the lesbians? Is that a third set of rules?

        And I’m pretty sure nature didn’t intend anyone to get married.

        1. Stop with the lesbian strawmen. You know full well that gay males are the face of modern Western homosexuality.

          1. I don’t know that at all, because that’s a pretty stupid thing to think. So again, are lesbians okay because they aren’t especially in to the anal-sex?

            1. He’s just miffed cuz teh gays aren’t into him and neither are the straights.

        2. jph12 wrote: “Again, what about the lesbians? Is that a third set of rules?”

          Well, maybe. Here’s Gertrude Stein on the matter (according to Ernest Hemingway):

          “The main thing is that the act homosexuals commit is ugly and repugnant and afterwards they’re disgusted with themselves. They drink and take drugs, to palliate this, but they are disgusted with the act and they are always changing partners and cannot be really happy…. In women it is the opposite. They do nothing that they are disgusted by and nothing that is repulsive and afterwards they are happy and they can lead happy lives together.”

          So there’s that, I guess.

          1. That’s right. Gay men know what they do is disgusting, and do hate themselves for it.

            1. So it is just about anal sex. You and Gertrude Stein are totally cool with lesbians.

            2. How about the straight dudes who sodomize women? Are they disgusted by it?

          2. “Scissor me timbers!”

        3. And I’m pretty sure nature didn’t intend anyone to get married.

          Because you’ve evaluated the arguments, or because of free-floating skepticism in a society where traditional understandings of marriage have been out-of-fashion for a couple centuries?

          Medieval writers were big on pointing out how much effort raising human children took, and how it required both a primary nurturer and a primary provider, the latter to support both the nurturer and child. And how these roles so naturally lined up with the mother and the father of the child, and accordingly, all human societies had the institution of marriage to socially support the necessary natural link between the nurturer and provider in providing for the raising of their children. There was debate over whether marriage was naturally monogamous (because in the “wild” no man could be a solid provider for more than one woman, it took social structures supporting the accumulation of wealth to do so, and the natural ratio of men to women was 1:1) or not (because a man could impregnate more than one woman, at a time, so of course he could be married to more than one), but that marriage was the social consequence of human reproductive nature was considered obvious.

          The idea that marriage was mostly about romantic love, on the other hand, is a modern fashion. Most historical writing about romantic love historically shows it outside of marriage. Traditional romantic love caused things like Helen abandoning her husband Menelaus to go with Paris to Troy, Lancelot having an affair with Guinevere, or Romeo and Juliet’s suicides. Romantic love wasn’t the foundation of marriages, but more often their destroyer.

          1. “Because you’ve evaluated the arguments, or because of free-floating skepticism in a society where traditional understandings of marriage have been out-of-fashion for a couple centuries?”

            Well, for for starters, nature doesn’t have any intentions at all.

    2. Fundamental rights like liberty can be curtailed when a person is convicted by a due process of a crime carrying a term of imprisonment. The scrutiny of denial of rights to inmates is one that is, shall we say, very much stacked towards the State.

    3. I see the seventh circuit has decided to throw out Obergefell’s holding that marriage is a fundamental right.

      Incorrect: The Seventh Circuit applied the test to determine whether or not a prison had appropriately denied a prisoner the fundamental right to marry that the Supreme Court prescribed in Turner v. Safley, 482 U.S. 78 (1987).

  5. For those more legally inclined…

    The Dissent in Trump v COMMITTEE ON OVERSIGHT AND
    REFORM is a quite nice explanation of the division between Congress’s legislative oversight capacity and Congress’s impeachment capacity, and why these two capacities are divided, with a very nice historical and constitutional overview. It is especially relevant in light of the current subpoenas from the Democratic committee chairs that conflate the two capacities.

    1. It’s bullshit from a Trump judge, who one of the Conspirators – I don’t remember which – thought was a wonderful nominee.

      Turned out to be as accurate as the praise for Barr we heard here.

      1. What, specifically, do you object to in her analysis?

        1. Can’t you read?

          It’s bullshit from a Trump judge

          Orange Man Bad. QED.

          1. The judge is orange?

        2. Read the majority opinion.

          She essentially exempts the executive from oversight short of an impeachment investigation.

          Trump judge.

          1. Isn’t that what the Supreme Court ruling was where Congress got to subpoena how the executive branch was fulfilling legislation, but not the inner details of direct executive decisions?

            This was a thing until last week.

            1. That’s the one thing I don’t quite understand about the majority decision here. It seems to remove all restrictions on Congress’s subpoena power.

              Just what is Congress NOT allowed to demand if this ruling is upheld?

          2. She does not. Rather she divides normal oversight, pursuant to a legitimate legislative aim, from oversight designed to target indivduals for wrongdoing, which is closer to impeachment.

            With many, many, historical examples to back it up.

            Plus, there’s a bonus reference on Bills of Attainder that really should be read again by some people.

          3. “Read the majority opinion.”

            Pretty sure that won’t tell me why you think her position is bullshit. I mean, I know they disagree with her.

            “She essentially exempts the executive from oversight short of an impeachment investigation.”

            Does she now? You’ll have to show me where in her dissent she took away the power of the purse from Congress, or any of the other tools they have.

            “Trump judge.”

            You are RestoreWesternHegemony should just get a room. Oh sure, you’ll bicker at first, but those superficial differences can’t mask the underlying passion.

        3. First, her notion that something ceases to be a legislative inquiry if it may also relate to the criminal acts of an individual.

          Second, her puzzling argument that the House has more power to investigate the crimes of people that it can’t impeach than it does to investigate the crimes of people that it can.

          Third, her idea that magic words matter, that the House must recite the word “impeach” if it wants to investigate the conduct of an impeachable officeholder.

          1. 1. What’s key to understand here is the division of powers inherent in the Constitution. At a very basic level, Congress makes the laws, the executive enforces the laws, the Judicial branch interprets the laws.

            Congress does not act as an agency which investigates crimes or judges whether people are guilty of crimes. That is the responsibility of the executive branch and judicial branch, respectively. Congress cannot specifically make a law, then say a person is guilty of breaking it and then punish them.

            The limited exception to this, is the power of impeachment. Which is why it’s important to define it, and when it is being used.

            2. Congress has powers in both respects (to investigate “people”), to a limited extent. It actually has significantly more power to investigate in impeachment inquiries, as long as that power is used. If it is using its legislative oversight ability against people it can’t impeach, it has no risk of crossing into impeachment territory.

            3. Words do matter. The division of powers is there, so that is perfectly clear, and so that different powers aren’t magically merged, while avoiding the limitations on those powers.

            1. But investigation of Presidential actions may be necessary for both purposes.

              That is, the President does X, which may be:

              1. Perfectly legal and acceptable
              2. Legal, but something Congress wants to legislate about.
              3. Potentially impeachable
              4. Clearly impeachable

              The difference between (3) and (4) is that under (3) there is support, but not majority support, for an investigation. Your argument is that Congress has to sort this out before it can investigate. That’s like saying the government can’t look into a possible financial fraud without being sure there was fraud, and knowing who did it.

              1. So, this is addressed directly by the dissent. Notably Senate Select Committee v Nixon, but several other cases as well. And the rule of thumb here is “If you’re targeting a specific government official for potential illegal actions,” then that falls under the impeachment authority.

                To address your example, if you (as Congress) think there was financial fraud by a specific government official, impeachment authority is used to investigate it. That is because Congress is not the executive branch, and outside of that specific authority (impeachment), it does not do investigations of people for specific criminal activity.

                In many ways, it’s like the criminal justice system. If you have a suspicion someone has done something wrong, then you need to go to a judge to justify the warrants to grab the information you need. You don’t just get to willy nilly grab anything you want on any suspicion you want on any person.

                1. You missed the point of my example.

                2. “the rule of thumb here is “If you’re targeting a specific government official for potential illegal actions,” then that falls under the impeachment authority.”

                  It also falls under oversight. Oversight is a general power… there are lots of reasons why a piece of legislation might not produce the desired effects. Direct interference by someone entrusted to execute it is one of them.

                  When someone is being investigated for possibly violating the law of one (or more) of the several states, that’s impeachment power exclusively. If they’re being investigated for possible violations of federal law, that falls under both powers. It’s up to the House members, using the rules of that body, to decide how to run it.

            2. 1. Believe me, I passed fifth grade social studies even before I went to law school. I am well aware of the separation of powers. Your comment misunderstands my point. Congress, except insofar as it is impeaching someone, does not have the power to decide on guilt. However, Congress has extremely broad power to conduct investigations to determine whether to enact legislation is needed. That power does not evaporate merely because as part of that investigation it may also learn information about individual malfeasance or criminal behavior. (Rao argues otherwise.)

              Note that if what Rao were saying was right, the Senate — which does not possess the impeachment power — could never investigate anything an individual officeholder had done unless the House had already impeached that person. The entire Senate Watergate Committee would have been unconstitutional, according to her.

              2. Your comment isn’t responsive to my point. Rao argues that when Congress is investigating someone that it does not have the power to impeach (e.g., a private citizen) it has more leeway than when it is investigating someone that it does have the power to impeach. That is nonsensical.

              3. It is very rare that words matter. Courts usually look to the substance of what is done, not the label that actors put on those words. There is no support whatsoever for the notion that Congress must say “Impeachment Power I Invoke Thee” before it can investigate whether an impeachable official has done something wrong.

            3. As an aside, Rao suggests that the courts have the power to determine whether something is an impeachable offense:

              While it is unnecessary here to determine the scope of impeachable offenses, …

              When would it be necessary?

  6. Under California law, owners of state-licensed cardrooms are not allowed to own more than a 1% interest in an out-of-state gambling business that would be illegal if operated in California.

    Why is this even allowed in a free country?

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