Short Circuit: A Roundup of Recent Federal Court Decisions

A transatlantic pie fight, a pecunious divorce, and a putrid pool of purple ink.

|The Volokh Conspiracy |

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

New on the Short Circuit podcast: Special guest Joey Mogul, of the People's Law Office, joins the panel to talk about a pizza raid in Chicago.

  • After the Affordable Care Act caused insurance premiums to increase, younger and healthier consumers turned to short-term limited duration insurance plans that were exempt from ACA requirements, and therefore much cheaper. But this shrunk the risk pool for ACA-compliant plans, leading to more premium increases. After an abortive attempt to scale back the market for short-term insurance, the feds relent and return to the original rules. Sellers of ACA-compliant plans sue, alleging that the reversal of course was arbitrary and capricious. D.C. Circuit: Not at all. Premiums kept going up after the rule change, and it was reasonable for the feds to try to make cheaper insurance available to consumers. Dissent: The whole point of the ACA was for young healthy people to subsidize older and sicker people, and this rule undermines that.
  • &pizza (a U.S.-based pizza restaurant) sues @pizza, a restaurant in Edinburgh. Allegations: @pizza's founders photographed &pizza restaurants and downloaded copyrighted pictures of &pizza—all culminating in their knock-off restaurant across the Atlantic. D.C. Circuit: None of that means &pizza can enforce the Copyright Act or the Lanham Act extraterritorially. So (for now at least) @pizza gets off scot-free.
  • After something like 50 years of marriage, a Connecticut couple divorces. Allegations: The (now-deceased) ex-husband concealed marital assets in offshore accounts, nearly $40 mil of which went to his alma mater to, among other things, fund "unlimited" scholarships for Antiguan and Barbudan students. (Separately, the ex-husband is accused of hiring a hitman to kill his son.) Which gives occasion to this vocab quiz, courtesy of Judge Selya of the First Circuit: eleemosynary, oenologist, vel non, and importunings.
  • New York state officials instruct 50-year-old Christian adoption agency to provide adoption services to unmarried and same-sex couples or close down. (The agency's current practice is to refer such couples to other adoption services). The agency sues and seeks a preliminary injunction, but the district court denies the motion and dismisses the case. Second Circuit: Erroneous. Take a second look at that preliminary injunction request.
  • South Carolina, like virtually all states, has a winner-take-all system of appointing its nine Electors to the Electoral College, in which all Electors' votes will go to the presidential candidate who received the most votes in the state. Plaintiffs: Which renders the losing side's votes meaningless; the electoral votes should be distributed proportionately. Fourth Circuit: You will not be surprised to learn that the system 48 states use for apportioning their Electors—and have used for more than a century—is constitutional. Dissent: Being old doesn't make it constitutional; the case should move forward.
  • Practice pointers, courtesy of the Sixth Circuit: Don't liken your litigation adversaries to (1) incestuous lovers "the likes of which have not been seen since the days of Sodom and Gomorrah" or (2) perpetrators of "rape, murder, pillage, loot and plunder" or (3) a virus or (4) an octopus "slink[ing] back into its hidey hole by firing its putrid pool of purple ink into the faces of the[] plaintiffs." And if you're going liken your opponent to Marshal Philippe Pétain, at least give the man his accent aigu. (Well, that last one is subtext.) Also, your clients need Article III standing.
  • Seventh Circuit: There are many government jobs for which political affiliation may be a valid requirement, but "Deputy Assessor" ain't one of 'em. So no qualified immunity for a newly elected Assessor who canned his rival's supporters.
  • Allegation: Displeased with Cook County, Ill. court system's bail reforms, the sheriff unilaterally decides to keep people in jail (more than 80 percent of whom are Black) even after they have met bail conditions and also imposes his own conditions on their release (like, for one plaintiff, no contact with his children). Seventh Circuit: Decisions about pretrial detention are to be made by judges, not sheriffs. The case should not have been dismissed, and the district court shall consider whether the sheriff ought to be held in contempt.    
  • Eighth Circuit: Police are not required to knock and announce before entering a house if the door is already open.
  • Los Angeles drivers whose cars outstay their welcome in metered parking spaces face a $63 fine. Failing to timely pay that fine yields another $63 in late fees. An Excessive Fines Clause violation? Ninth Circuit: No, as to the first $63; maybe, as to the second, since "the City of Los Angeles did not even bother addressing the constitutionality of its late fee." Concurrence in the judgment: I'm skeptical that the Excessive Fines Clause applies to this sort of thing, but Los Angeles conceded that point.
  • Las Vegas police arrest man for alleged sexual assault. A state court suppresses evidence and holds that gov't failed to preserve potentially exculpatory material. After gov't drops all charges, the man sues, alleging that officers manipulated the crime scene, lied in the warrant application, threatened him for asserting his constitutional rights, and made racially derogatory remarks to him. District court: A state justice of the peace originally found probable cause to believe the man committed the crimes, which precludes this lawsuit. Ninth Circuit: That hasn't been the rule in Nevada since at least 2005. Most of the man's case can proceed.
  • Ostensibly out of his cell to take a shower, juvenile pretrial detainee instead makes his way to a control panel where he unlocks other cells, allowing two compatriots to brutally assault a fourth juvenile, whom the three had threatened the night before. Doña Ana County, N.M. corrections officials were watching TV. Tenth Circuit: Qualified immunity. Dissent: One of the officers was plainly incompetent, so he should be held liable along with the county.
  • In the mid-2000s, Chiquita financed Colombian paramilitary groups, even after the U.S. State Dep't designated the groups foreign terrorist organizations. After the company pleaded guilty and paid a $25 mil fine, a number of people sued, claiming the financial support contributed to the deaths of their family members. They've been proceeding pseudonymously due to fears of reprisal, but Chiquita now seeks to reveal their identity and facts. Eleventh Circuit: "For over a decade, hundreds of plaintiffs have litigated this case under their true names, and yet nothing in the record suggests that they have faced paramilitary retaliation." No more privacy.
  • How much should Alabama's history of enacting laws designed to suppress voting by people of color factor into the Eleventh Circuit's review of a 2015 voter ID law? Eleventh Circuit: Not much. Case dismissed. Dissent: A lot, actually. This should go to trial.

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  1. “Fourth Circuit: You will not be surprised to learn that the system 48 states use for apportioning their Electors—and have used for more than a century—is constitutional.”

    Texas v. Johnson perpetually unavailable for comment.

    1. Also INS v. Chadha, 416 U.S. 919 (1983). The legislative veto had been used since the First Congress, but the Supreme Court had no trouble striking it down for violating the Presentment Clause.

    2. The Constitution says:

      “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”

      This is fairly clear: the manner in which electors are appointed rests with the state legislatures and no one else. I would argue that if the Voting Rights Act purported to require the states to appoint electors in a certain way, the Voting Rights Act itself would be unconstitutional.

  2. I have a small helping of humble pie on my plate.

    A day or two ago, on another thread, I expressed the opinion that the opinions of Republican appointed judges in partisan political cases, eg voting rights etc, were predictable with at least 80% confidence, and that the opinions of Democrat appointed judges in such cases were predictable at the 100% level. (And that consequently this business of recusal where there might be an appearance of partiality seemed a little odd.)

    But whaddya know. In the South Carolina Electors case, one of the two Dem appointed judges broke ranks and went in the direction not favored by the lefties. Moreover, I can’t even claim it was just a tactical move to preserve credibility when the cause was already lost. No, this defection flipped the result.

    In my defense – and i never leave that stuff out – the plaintiff’s case was batshit crazy, redoubled and vulnerable. But even so, I must in good conscience spoon down a mouthful or two.

  3. “Affordable Care Act caused insurance premiums to increase”

    That doesn’t seem right. It was a wonderful reform. Everybody loved it.

    1. Wait a minute. You mean there was a massive overhaul where not every single person was a ‘winner?” Man, that is almost unheard of in sweeping federal legislation.

      In all legislation, there are winners and losers. The fact that some people’s insurance went up was as predictable as the sun rising. The fact that some good policies went away is both a shame and equally predicable. But there were 10s of millions of winners as well. And at least now we are a tiny bit closer to the dozens of First World countries that have better health outcomes, although those still, generally, do it at a fraction of the per-person cost as here in America.

    2. People liked the Affordable Care Act.

      They are going to love universal coverage.

      Let’s call the federal program “Obamacare” when enacted next year.

  4. In the mid-2000s, Chiquita financed Colombian paramilitary groups, even after the U.S. State Dep’t designated the groups foreign terrorist organizations.

    I thought “banana republic” was a thing of 80 years ago.

    1. The term “banana republic probably goes back further than that. In any case, most of the “banana republics” are still “banana republics”.

    2. I’m surprised that no one at Chiquita went to jail for this — or did they? Aren’t there consequences for funding terrorists, beyond a mere corporate fine?

      Of course: https://www.youtube.com/watch?v=Arp__bfgYcU

  5. Can the First Circuit please use a better typeface? I’ll even take Times New Roman.

  6. “…Scot-free.” I see what you did there.

    1. Is it something to do with a lack of toilet paper?

    2. It should have been Scott free.

      1. The spelling of Dred Scot’s name is far from settled.

        1. The scot free comment was from the blurb on a case where a US Pizza restaurant was trying to sue a Scottish pizza restaurant located in Edinburgh in US courts for IP violations.

          I don’t see how you make the jump to scot free being a reference to Dred Scot as opposed to Scott (as in someone from Scotland).

          1. What should they have done? Sue them in a UK court?

            1. Not sued them at all?

  7. After the Affordable Care Act caused insurance premiums to increase,

    Because we all know that insurance premiums never increased much before that.

    Post hoc much?

    1. Only a True Believer™ would think otherwise.

      1. That’s not an argument. Care to try again?

        1. How about “increased at an even faster rate than previously’?

          1. Grrrrr… Sorry, somehow got on the wrong reply arrow.

            1. That’s ok, it made as much sense as if he had actually said something as substantial as he thinks he always does.

    2. How about “increased at an even faster rate than previously’?

      1. Yeah, the rate of increase of insurance costs was on such a small incline pre-ACA.

        1. So you’re conceding that it was bad but claiming that getting noticeably worse is not relevant?

          At the same time, you’re ignoring the conclusions of every one of the economists and policy analysts to consider the question. Aren’t you and bernard the ones constantly telling us to defer to the experts?

          1. No, dude. The conclusion is that the ACA failed to control premiums. Not many have estimated whether the ACA made premiums go up compared to what they would have been because no one is dumb enough to argue a counterfactual.

          2. Are you at all familiar with sarcasm? If not look it up, then come back and re-read.

  8. “Dissent: The whole point of the ACA was for young healthy people to subsidize older and sicker people, and this rule undermines that.”

    It’s nice for some liberals to finally acknowledge that. Why should young people be forced to subsidize boomers, the laziest most selfish generation in American history?

  9. So the Affordable Care Act made health care less affordable?

    1. It at least was a complete and total failure at making health insurance (the act isn’t actually about health care it’s about health insurance) more affordable than it was before.

  10. That a couple of Federalist-class southern clingers would approve Alabama-style voter restrictions by donning their “colorblind” hoods is not surprising. Alabama’s bigoted vote suppressors had the benefit of a favorable draw and a sympathetic Department of Justice this time around — they may not be so fortunate beginning in January 2021.

    1. A lot of Dem states would be casting some Red votes under the Maine plan.

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