Short Circuit: A Roundup of Recent Federal Court Decisions

Fly fishing, blackout periods, and discarded ballots.

|The Volokh Conspiracy |

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

Cert petition: In 2015, DEA agents got a bad tip and raided Miladis Salgado's Miami home, seizing $15k in cash and forcing her to cancel her daughter's quinceañera. Though the DEA admitted there was zero evidence linking the money or Ms. Salgado to any crime, it fought her efforts to get the money back for two years before finally relenting. But Ms. Salgado hasn't been made whole. Last year, the Eleventh Circuit ruled that because the gov't dropped the forfeiture action right before the court could rule on the merits, Ms. Salgado did not "substantially prevail" and thus she was not entitled to attorney's fees—meaning a third of the cash will go to her attorney. Now, Ms. Salgado and IJ are asking the Supreme Court to step in and apply the statute's plain text mandating an award of fees instead of the judicially created "get out of jail free" card for civil forfeiture abuse. The South Florida Sun Sentinel has more.

  • Part-time adjunct faculty at Duquesne University attempt to unionize, and the NLRB declares the United Steel, Paper and Forestry, Rubber, Manufacturing, Allied-Industrial and Service Workers International Union as their exclusive bargaining unit, presumably because adjuncts grade papers (NB: Your editor does not understand labor law). Duquesne, a "Catholic University in the Spiritan Tradition," refuses to bargain with the union. An unfair labor practice? D.C. Circuit: Nope, the NLRB lacks jurisdiction over disputes between religiously affiliated nonprofit schools and their faculty. Dissent: Maybe if the adjuncts were fulfilling a religious role, but a categorical exemption sweeps too broadly.
  • Under the Violence Against Women Act, aliens who are subject to removal can seek cancellation of removal if they are victims of domestic violence by a U.S. citizen spouse. To be eligible, the person seeking cancellation cannot have a criminal conviction unless the crime was connected to the alien's having been abused or subject to extreme cruelty. Is the statute broad enough to cover punching your husband's mistress in the nose? Third Circuit: In this case, the husband's repeated adultery was part of the extreme cruelty, and socking the mistress was connected to it. Removal canceled.
  • Getaway driver for a string of five robberies is convicted of five counts of "aiding and abetting the use of a firearm during and in relation to a crime of violence" and one count of being a felon in possession, is sentenced to 124.5 years in prison (his co-defendant in the robberies, by contrast, has already completed his sentence). Defying all odds, he convinces the Supreme Court to vacate his sentence not once, but twice, requiring the Sixth Circuit to reconsider his sentence. Sixth Circuit: We got it right the first two times. An intervening change in the law that would have reduced his firearm charges to 35 years instead of 107 doesn't apply retrospectively.
  • The Speedy Trial Act requires the government to try a criminal defendant within 70 days or the case will be dismissed. All that's required is that a defendant make a motion after the 70 days expire. Defendant: I objected after 86 days! Sixth Circuit: That's 86 calendar days. But 18 of those days don't count under the statute, so your objection was two days too early and the conviction stands. Concurrence: Besides that, merely objecting isn't enough; you have to file a motion to dismiss (or at least you did until our Circuit rewrote the statute).
  • Off-duty Kane County, Ill. deputy attends his child's soccer game in neighboring DuPage County. Displeased with off-color language being bandied about on a nearby basketball court, the deputy confronts teenage basketballers, flashes his badge and gun, then physically assaults one of the players. Player wins a $110k default judgment against the deputy. Which cannot be collected from his Kane County employer, affirms the Seventh Circuit. "The fact that [the deputy] used his badge, gun, and training in an unauthorized manner in pursuit of that purely personal goal does not bring his conduct within the scope of his employment."
  • Do Illinois state courts provide an adequate forum for adjudicating taxpayers' Equal Protection claims? Seventh Circuit: Everyone agrees the taxpayers cannot raise their Equal Protection claims in state court. So no.
  • Merrill, Wisc. man is caught with 143 kilos of marijuana, pleads guilty to possessing over 100 kilos. Yikes! He's sentenced as if he possessed the equivalent of 4,679 kilos. Seventh Circuit: That finding rested on potentially unreliable statements by confidential informants. The trial court should have taken steps to determine whether the CIs were reliable. Eighteen-year sentence reversed and case remanded for resentencing.
  • Arkansas prohibits anyone from donating money to a candidate running for state office more than two years before the election. Does the "blackout period" violate the First Amendment? Eighth Circuit: The preliminary injunction is upheld, and plaintiff can donate money while the case is pending.
  • Arizona has a policy of wholly discarding ballots that are cast in the wrong precinct, rather than counting or partially counting those ballots. Arizona has also made it a crime to collect and deliver another person's ballot. Violations of the Voting Rights Act? Ninth Circuit (en banc): Absolutely. The former has a discriminatory impact, and the latter was enacted with discriminatory intent. Dissents: It's not unreasonable to regulate where voters can cast their ballots or who may handle absentee ballots.
  • Arizona corrections officials settle health care class action, agree to comply with 103 "performance measures" designed to improve things. Was a district court justified in imposing contempt sanctions on the dep't of corrections of $1k per incident of noncompliance? It was, says the Ninth Circuit. And with 1,445 such incidents (not to mention attorney's fees), that's a hefty chunk of change.
  • Responding to a report of a domestic dispute, Sonoma County, Calif. deputies barge into man's bedroom and find him alone, in bed, on his cell phone. Man declines to stand up and says he's calling his lawyer. Deputy responds by tasing him in the chest. Ninth Circuit: No qualified immunity for the tasing deputy.
  • Septuagenarian has a favorite fly fishing spot in the Arkansas River. Yikes! Nearby Cotopaxi, Colo. homeowners believe he's trespassing on their property, which runs up to the centerline of the riverbed. Fisherman: The land is public land because it was navigable at Colorado's statehood, which we know thanks to an early 19th-century beaver trapper and other accounts of commercial use from the time. Trial court: The fisherman doesn't have standing. Tenth Circuit (over a dissent): Try again. (Click here for some local journalism.)
  • And in en banc news, the Fifth Circuit (by an 8–8 vote) will not reconsider its decision allowing a Baton Rouge, La. police officer's suit to proceed against a protest organizer. (The cert petition remains pending.) Nor will the Fifth Circuit revisit its decision deeming the individual mandate not a tax (on account of the tax being zero) and thus not a constitutional exercise of Congress' taxing powers. (Relatedly, SCOTUS will not hustle along its consideration of the cert petitions.) Meanwhile, the Ninth Circuit will not reconsider its decision affirming the suppression of evidence on Crow land from a man an officer deemed non-Indian due to his physical appearance. A dissent castigates the decision, and a concurrence castigates the dissent. Spicy!
  • And in Ohio Supreme Court action, a one-sentence, 307-word dissent: "I join Justice Lanzinger's well-reasoned dissent, but write separately to highlight the General Assembly's failure in legislative drafting exemplified by former R.C. 2929.14(D)(3), which the majority opinion relegates to a footnote to fully accommodate its 24 lines of unrelenting abstruseness consisting, remarkably, of the sum total of 307 words and a mere one period, a punctuation mark set out as a lone sentinel facing odds similar to that of the Spartans at the Battle of Thermopylae, a battle that occurred over the course of three days during the second Persian invasion of Greece, and is estimated by historians to have occurred in either August or September, or perhaps both, in 480 B.C., pitting an alliance of Greek city-states, led by King Leonidas of Sparta, against the Persian Empire of Xerxes I, bravely standing before the onslaught of invaders but ultimately unable to stanch the unrelenting tide of the overpowering hordes of words and statutory numbers including R.C. 2903.01, 2907.02, 2903.02, 2925.04, 2925.11, 2925.02, 2925.06, 2925.36, 3719.07, 3719.08, 3719.16, 3719.161, 4729.37, 4729.61, 3719.172, 4729.51, 4729.54, 2941.1410, 2929.20, without so much as a helping hand from a single, solitary semicolon, colon, or parenthesis, other than the parentheses surrounding the capital letters denoting the divisions of statutory sections that are sprinkled throughout the statute, a statute that purports to inform the citizenry of the potential penalty for certain enumerated criminal acts, but by cramming so many words about sentencing into one sentence, sentences itself to uselessness, especially in the case of an offender involved in a pattern of corrupt activity, regarding which R.C. 2929.14(D)(3) surprisingly is completely without specificity, in that it fails to cite a statutory section outlining what constitutes corrupt activity when it otherwise lists specific statutory sections relating to all the other offenses to which it applies, a statutory circumstance up with which we should not put." (H/t: @Nonfinality)

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  1. “husband’s repeated adultery was part of the extreme cruelty”

    More pro illegal alien nonsense from a court of appeals. She assaulted a third party, not her husband.

    1. Bob, we are system of laws, and there’s an equal protection clause in the Constitution. Judges can’t deny meritorious claims because they dislike illegal immigrants (in this case, the petitioner was a visa overstay).

      Yes, she assaulted a third party. However, the VAWA merely requires that the crime she committed be “connected to” the applicant’s being subjected to violence or extreme cruelty. That’s the statutory language. “Connected to”.

      She claims that her husband’s cruelty to her included violence and repeated affairs. Why is that implausible to you? Do you doubt that this husband was extremely cruel to his wife? Do you doubt that part of the cruelty was that he repeatedly cheated on her? Do you doubt that the attack on the mistress was “connected to” that (which is not a very strict standard)?

      So why is the immigrant supposed to lose here?

      1. Because to some people, the only laws that are actually worth following are:

        1. Laws aimed at removing immigrants.
        2. Certain criminal offenses and their associated harsh sentences.
        3. Laws which shield officers who enforce the first two from any sort of accountability.

        The rest of the laws are merely technicalities that stand in the way of the first three.

      2. If she assaulted a total stranger because she was mad at her husband, it would also be “connected to” it. “My husband was cruel to me so I ________” isn’t any standard at all.

        “So why is the immigrant [sic] supposed to lose here?”

        Illegal alien.

        Because the crime was directed not at her husband but a third party.

        .

        1. If she assaulted a total stranger because she was mad at her husband, it would also be “connected to” it. “My husband was cruel to me so I ________” isn’t any standard at all.

          Bob, Congress said “connected to”. If you think that’s no standard at all, well, as your side often points out, it isn’t the judiciary’s function to rewrite the laws.

          At any rate, I think it is a standard. Unconnected offenses, such as if she held up a liquor store, don’t count. Offenses that arise out of something the husband did do count.

          Illegal alien.

          So what? The ENTIRE POINT OF THE STATUTE is to allow a subset of the “illegal alien” population to contest removal proceedings.

          Because the crime was directed not at her husband but a third party.

          Which doesn’t track the statutory language. It just says “connected to”. Doesn’t say anything about who the victim is.

          Indeed, if she murdered her husband not in response to abuse but to collect life insurance money, it wouldn’t entitle her to relief here.

          1. What if she was became so enraged at her husband that she committed: -assault -vehicular manslaughter -armed robbery etc.

            One could construct an entirely plausible fact pattern with vehicular manslaughter. She was so distressed by her husband’s adultery that she got inebriated and committed vehicular manslaughter (the inebriation isnt even necessary).
            Why is this not connected to her husband’s “extreme cruelty”?
            If one cant distinguish these absurd situations then this statuory provision gives illegals subject to deferred removal cart blanche to commit all sorts of negligent or criminal acts.

            1. Why the emphasis on “illegals”? Do you think no other legislation uses “connected”?

              1. I am going to take that as a serious question.

                I think the right has, for whatever reason (and we can speculate on that), got itself wound up that crossing a border without documents or overstaying a visa is one of the worst possible crimes.

                That’s why they constantly call them “illegals” and “lawbreakers” and “criminals” and “invaders”, and that’s why they advocate for such things as shooting them in the back while they are unarmed.

                And, importantly for this case, that’s why they think that it shouldn’t matter that they are victims of domestic violence or are in some other sympathetic situation. They have decided that these people are hostis humanae generis, and that’s it.

                And, of course, that’s crazy. It’s crazy on all sorts of levels. Illegal immigration isn’t a trivial offense, but it isn’t anything like the most serious crimes. It can even be justified, if one’s family is fleeing threats or extreme poverty. And different groups of illegal immigrants have more or less compelling claims (e.g., the Dreamers have more compelling claims as they were brought here through no choice of their own).

                But to these folks, any sort of acknowledgement of nuance leads inexorably to “open borders” and no rules at all. So they can’t even accept when Congress legislated in the nuance, as they did in the VAWA.

                1. Thanks, but it was rhetorical 🙂

                  1. I know, but given the vehemence of the sentiment, it is worth spelling out exactly how wrong it all is.

                    1. Calling a bigot a bigot is never a bad idea,

                      It won’t make you many friends at the Volokh Conspiracy, though.

                2. IIUC you justify Violence Against a Woman because the perpetrator claimed to be a victim of Violence Against a Woman?

                  Nice circular logic.

            2. Sam:

              The fact that you can construct an extreme hypothetical where plain statutory language would result in an absurdity, does not mean the plain language shouldn’t apply to the ordinary case.

              This was a pretty ordinary case. There’s a clear connection between her husband’s cruelty (which included his cheating) and her attacking one of the women he was cheating with. There’s nothing implausible or attenuated about that connection. The plain language controls.

              Now, you have given a more attenuated hypothetical. And I think I know what a court would actually do there, though it isn’t discussed in Ramos da Silva, the case that is cited in OP.

              What the Court would do in your case is apply proximate cause rules. Essentially, the Court would hold that when the causal connection was too attenuated, a “connection” won’t be found and withholding of removal won’t be required.

              A less likely possibility is that they will find a connection, and you won’t like the result, but the Court will tell Congress to fix the statute. Ironically, it is often conservative judges that do it this way.

              But there’s absolutely no reason to not apply the plain language to reach a non-absurd result just because there’s some possible absurd result out there.

              If one cant distinguish these absurd situations then this statuory provision gives illegals subject to deferred removal cart blanche to commit all sorts of negligent or criminal acts.

              But Congress has the absolute power to grant that carte blanche. Not that they really did- this statute is limited to acts that have a connection to the cruelty of the husband- but Congress absolutely has plenary power to allow any group of aliens it wants to, to apply for withholding of removal.

              Indeed that’s part of the same sovereign power y’all complain about. If you think it’s really outrageous to give some domestic violence victims a break, go to Congress. I think you will find that your position is absolutely unpopular- while people want to deport undocumented immigrants in general, they don’t particularly want to deport victims of domestic violence, and that’s why we have this statute.

              But Congress has exercised the sovereign power that every nation-state has to control its borders. You just don’t like the way they did it.

        2. The heat of passion defense in cheating cases where they kill the spouse and the other (wo)man applies to both. Not just the husband. Given that I think it is entirely appropriate to consider assault of the other woman connected to the abuse.

          I’d agree with you if she claimed general rage from and assaulted a completely unconnected third party, but the actual mistress is much closer to the abuse.

  2. Reading the original Sixth Circuit sentencing brief opinion’s analysis of Eighth Amendment claims is a good reminder that the Eighth Amendment doesn’t really do a whole lot.

  3. Suddenly someone wants the city to pay for a cop’s loss! I can guess why: the cop is pleading poverty, and part of the attraction of suing a government worker is the deep taxpayer pockets. But the general good will be better served by cops not having taxpayers paying for their malfeasance.

    1. This isn’t unique to this situation or to that of a government worker. Anytime a worker is arguably acting under employment the plaintiff will attempt to get from the employer. And yes it is because the employer/business has deeper pockets so is more likely to have the funds to pay the judgement. I have no problem with them making the argument. It was at least plausible. But I also think the court was right that he wasn’t acting in his role as an employee.

  4. There seems to be a Bluebook error in the second paragraph of the CA6 Speedy Trial Act concurring opinion: “see also Collins v. Mnuchin, 938 F.3d 553, 610–11 (2019)”

    1. Both WestLaw and Lexis let you copy/paste the citation of a case so I’m surprised that happened.

    2. OH NO!!! Those are the worst kind of errors.

  5. That Duquesne decision is one of the reasons I expect a backlash against limitless special privilege for religious claimants during my lifetime. Like gun nuts and anti-abortion absolutists, greedy religious snowflakes are going to go down with the S.S. Clinger.

  6. The first case reminded me of a legal question I’ve had for quite some time. Are there any lawyers [who post here in the comments] who can talk about cases where atty fees are awarded? I’ve wondered about this for years.

    Say I’m the plaintiff and you’re my atty. You get me a judgment of $100,000, and you also convince the court to award atty fees of $50,000. You and I already agreed to a contingency fee of 40%, which will include your out-of-pocket costs. Who ends up with what? I see a few possibilities:
    1. You get the 40K from my 100K, plus the atty fees. This seems like a huge windfall for the atty, since you’ll end up with 90K and I’ll end up with 60K. But maybe this is correct, since the legislators want attorneys to take these types of cases and therefore give attorneys the possibility of these lopsided awards.
    2. You get your 50K atty award, but nothing from my 100K damages. This seems like a huge windfall for me. But you do end up with more than 40% of the award, so maybe this is the standard.
    3. You get your 50K for legal fee, plus some much smaller percentage of my 100K…in spite of our contract, which clearly calls for 40%. (This seems more “fair” to me than the first two options. But if so; who decides on what percentage? The judge, presumably. But maybe it’s mandated by statute???)

    Is there some nation-wide standard for what happens? Or is it state-by-state? Or is it completely dependent on what is in the contract that the atty and client have signed, and a judge will accept any reasonable division in that atty-client contract?

    This issue must come up A LOT. (ADA cases, 1983 cases, etc) But this was never covered in my law school classes, and I’ve never had a legal job where an attorneys fees award was even a possibility.

    1. How about
      4. The lawyer gets 40% of 150K, since the defendant paid a total of 100+50 to the plaintiff.

  7. In the Hill case, consider the following hypothetical.

    Suppose that you own a home and property surrounded by someone else’s land. A road leads from your home through it, the only way out. You’ve used it for years. The other property owner now claims the road is theirs. You claim it’s public.

    Do you have Article III standing to sue? It could be argued that in asserting a right to use the road, you are asserting a generalized grievance, a right you share equally with every member of the public. But I think things aren’t so generalized. You have a particular need to use the road arising from your circumstances that makes your situation different from that of a general member of the public. This particularized need gives you standing.

    Now, Mr. Hill’s regular use of a particular fishing spot is not as strong a need as a person who needs to use a road to leave their home. But I think it nonetheless makes him different from a member of the general public, and makes his situation more particularized. It seems to me a history of regular personal use as well as a specific need for use creates a personal interest that is sufficient for standing. The interest does not have to be great, of course.

    The fact that Mr. Hill has regularly used a single particular spot in the Arkansas River To fish for many years makes his situation different from, say, an environmental group interest whose interest in the river is essentially ideological and whose members don’t personally regularly use it.

    1. Perhaps it depends on particular facts. If there are thousands of people who regularly fish in the Arkansas River, perhaps that’s enough to be a general public so that Mr. Hill doesn’t have a special interest different from others. But what about a hundred? A dozen? Three?

      Just as the degree of interest seems to be a boundary issue – surely the road from ones home is a cleared case than fishing, a person who fishes for a living clearer than recreational fishing, and a person who fishes regularly cleared than occasionally – the extent to which the interest is shared and how many people it is shared by would also seem to matter.

    2. In that case you’d have a valid claim for an easement guaranteeing your right to cross from your land to the main road even if it wasn’t a public easement. In fact if his destination was somewhere he was allowed to go and he’d been using it long enough he might be able to claim an easement across private lands. But you can’t get an easement to trespass. That’s why he had to claim where he was fishing from was public land.

    3. In your hypothetical, the court would find an Easement by Necessity, but that would not be applicable to the case at hand.

  8. It appears from this brief list of cases that the Ninth Circuit has decided to secede entirely from the US system of law.

    God speed you crazy bastards.

  9. I agree with the D.C. Circuit in the Duquesne University case. In my view, limitations on government regulation of religious institutions is based on the Establishment Clause, not (or at least not only) the Free Exercise Clause, and hence is not subject to Smith. They would apply if the RFRA were not there.

    Given my view that government’s ability to control what religious educational institutions do is constitutionally circumscribed, I think this situation provides a rational basis for government choosing not to fund religious institutions. Ordinarily government gets to require agreement to conditions as a condition of funding, even to things it cannot regulate directly. But if the constitution says it must fund, it has no ability to impose or negotiate restrictions. I think this puts institutions it can’t regulate in a rationally different class from institutions it can.

    I also think government is limited in its ability to conditionally fund religious institutions. Suppose a state will fund ministers’ salaries in churches that agree to hire female ministers, or gay ones. I think it would be clear that this would be a core violation of Establishment, funding institutions that adhere to government orthodoxy on matters of doctrine and not ones that don’t. It’s pretty clear that who ministers can be implicates doctrine. But where is the bright line that distinguishes interference with ministers from interference with adjunct faculty? As the DC Circuit held, I think correctly, such a line is hard for secular courts to identify and police.

    And even in areas where a state can impose conditional funding so far as the courts are concerned, it can choose not to. It can rationally conclude that there is too great a likelihood that any conditions it would seek to impose would end up being doctrinal in nature. The very difficulty of policing the boundary makes a decision to steer clear entirely a rational one.

    1. Finally, yet another plug against the court’s animosity doctrine. We are now a country torn by hyperpartisanship, in which partisans can be more inclined to see their traditional political opponents as enemies of the country and the embodiment of evil than even potential foreign aggressors.

      The heart of hyperpartisanship is an overtendency to view ones political opponents as motivated by animus. In my view, the introduction of hyperpartisanship radically distorts the judicial role and turns it into a partisan instrument. The animosity doctrine lets partisan appointees constitutionalize partisan hyperbole.

      It is a fundamental duty of judges to try to see reason in what coequal branches of government have done. Sometimes of course this is not possible to do. The problem with the animosity doctrine is it gives those blindest to the views of others the greatest power.

      In my view, if a doctrine has historically been held by serious thinkers, it is immune to an animosity claim. This rule of thumb is hardly without problems – why should elite “serious thinkers” get more say than ordinary people – but I think it offers at least a check on the animosity doctrine’s worst tendencies. Otherwise, partisan judges could do exactly what their elected partisan counterparts do, and pretend the worst arguments in support of an opposing view are the sole arguments.

      I appreciate Justice Kagan’s entry into this issue. I realize that in the recent past the animosity doctrine has been used almost entirely by liberals claiming conservative views and policies are motivated by animus. The fact that it’s a two-edged sword – conservatives are perfectly capable of claiming liberal policies are motivated by animus – has perhaps not been seen as clearly as it could be until recently.

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