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, the Minnesota Legislature passed a bill that will allow hair and makeup artists who want to earn a living outside a salon—at weddings, proms, and elsewhere—to do so once they've finished a four-hour sanitation course. Currently, the state Board of Cosmetologist Examiners imposes a labyrinth of licensing requirements that takes hundreds of hours to complete and that it polices with heavy fines. Gov. Walz, sign this bill! Read more here.
- Watchdog group sends the Secret Service a FOIA request, seeking records of visitors to the White House and President Trump's Mar-a-Lago home. The Secret Service demurs, and the watchdog sues. Second Circuit: Interpreting FOIA to require the president to turn over the identity of everyone he met with at home and work over a seven-week period would cause some pretty big separation of powers problems, and we decline to do so.
- Between February and April of this year, 10 of the 11 candidates for the Democratic presidential nomination terminated or suspended their campaigns. Ordinarily, they still would have appeared on the primary ballot in New York. But in April, New York passes a law authorizing the state's board of elections to remove those candidates from the ballot. And because only one candidate remained, the state then canceled the primary. Andrew Yang (among others): Changing the rules of the game in that way violates the First and Fourteenth Amendments. District court: That's probably right, so the state must restore all the candidates to the ballot and hold the primary. Second Circuit: Just so.
- Allegation: Industrial waste is emptied into floor drains at Hoosick Falls, N.Y. plastics facility, contaminating surrounding properties, the municipal water supply, and private wells. In a trio of opinions, the Second Circuit allows a variety of claims and a putative class action to proceed. However, a local business that claims only loss of income (without a property damage claim) cannot proceed; caselaw (based on construction-related collapses in Midtown Manhattan) forecloses negligence suits that allege purely economic losses.
- Diabetic inmate submits 12 grievances over the course of three months at Camp Hill, Penn. prison because medical care for festering wound on his already-partially amputated leg is not forthcoming. But staff give him incorrect advice on how to file a grievance and withhold the handbook that explains the process. Ultimately, each grievance is rejected, mostly for technical reasons, and more of his leg must be amputated. A violation of the Constitution or the Americans with Disabilities Act? Corrections officials: Well, you didn't properly appeal the grievance rejections, so you can't sue. Third Circuit: The suit should not have been dismissed.
- Madisonville, Tex. police pull over a car for speeding, search it, and find meth. They arrest the pregnant driver, and she loses custody of her kids until charges are dropped more than a month later. Yikes! Her ex-husband, a then-Madisonville cop, planted the drugs! He's convicted, and she's awarded monetary damages against him after trial. Fifth Circuit: And two of her claims against the city should not have been dismissed.
- In 2018, Rutherford County, Tenn. law enforcement undertake "Operation Candy Crush," raiding 23 stores that sell gummies, vape juice, and other products containing cannabidiol, a derivative of marijuana. They padlock the stores, file criminal charges, prep the civil forfeiture machine, and hold a press conference about protecting the children. Yikes! Cannabidiol is legal under state and federal law. Sixth Circuit: No absolute or qualified immunity for the sheriff or prosecutors.
- Fire starts in Lawrence, Mich. home of couple who are about to divorce. The wife flees the house and hits her husband, who was on fire, with a van in the driveway. He dies. Murder? Prosecution: The wife, who was having an affair, said as much to jailhouse informants. Defense: Both of whom admitted to having mental health issues. Moreover, two of the husband's previous houses had burned down; he started the fire. A jury convicts. Sixth Circuit: New trial. The prosecutor committed misconduct, and the wife's lawyer was unconstitutionally deficient. Dissent: Cases like this are why Congress passed AEDPA. "All that was missing [from the evidence against the defendant] was a film of the mariticide."
- In attempt to force residents to pay their traffic debt, Tennessee suspends driver's licenses even if drivers are too poor to pay. Which is irrational, it is argued, imposing hardship on hundreds of thousands of people while furthering no gov't interests. Sixth Circuit: We upheld a similar Michigan law recently and so are bound to do so here. Concurrence: The law is cruel, unwise, and unconstitutional. (We filed an amicus brief in the case.)
- Law enforcement learn that child porn has been uploaded from a Clark County, Ky. resident's IP address. They arrest the man and imprison him for 14 months before dropping the case. For much of that time, at least one investigating officer knew that a forensic test of the man's electronic devices had uncovered no child porn. Sixth Circuit panel (over partial dissent): The man's malicious prosecution claim can proceed.
- While conducting a late-night search for a fugitive, Flint, Mich. police raise the ire of a neighboring homeowner. Their conversation—recorded on the homeowner's cell phone—reveals an encounter that starts out salty and ends up spicy when police pepper spray and arrest the homeowner for disturbing the peace. Prosecutors ultimately drop the charges. The homeowner sues the police. Do they get qualified immunity? Sixth Circuit: Depends on whether he was actually disturbing the peace, which involves a contested question of fact. A jury can sort it out.
- Polk County, Wisc. prison guard repeatedly rapes two inmates. (He goes to prison.) Jury: The guard and county must pay each woman $2 mil. Seventh Circuit (2019): The guard violated county policy and took steps to conceal his misconduct, so while he's liable, the county is not. Seventh Circuit (en banc, over a pair of dissents): The county must also pay. Officials failed to punish a prior sexual harasser, tolerated sexual talk about inmates among guards, and didn't impose certain low-cost safeguards against prison rape. (We talked about this case on the podcast and filed an amicus urging en banc review.)
- In fifth trial, man is convicted of 1991 Ozark, Mo. murder on the strength of jailhouse informant (who lied about her dozens of convictions (including forgery and fraud) and the fact that prosecutors dismissed a charge against her in exchange for her testimony) and blood spatter analysis (the state's expert said the small spot of victim's blood on the defendant's shirt was more consistent with the defendant stabbing the victim 50 times than with the defendant's testimony that he found the body). District court: His execution is stayed for 30 days to allow for review of new evidence of innocence. Eighth Circuit: Reversed. There's no new evidence. The jury was told of the informant's disreputable history, and the defense made a strategic decision not to call its own blood spatter expert at trial. (Ed. note: He was executed Tuesday night in the country's first pandemic-era, socially distanced execution.)
- In the Eighth Circuit, a dispute in the world of competitive dart throwing leads to a tour of Missouri defamation law. The unsurprising result? Potentially defamatory statements bear their reasonable meanings, not their innocent ones.
- Under NCAA rules, student athletes are (mostly) prohibited from being compensated for anything past the cost of attendance at their college or university. Does this violate antitrust law by rigging the market for student-athlete labor? Indeed it does, says the Ninth Circuit, but it's still okay to prohibit cash payments. Concurrence: These kids are out there getting brain damage for our entertainment; just pay them already.
- After Castle Rock, Colo. council member is startled by a door-to-door solicitor while working in his garage, officials ban such solicitation in the evening. Tenth Circuit: And the First Amendment bans the ban.
- And in en banc news, the Sixth Circuit will reconsider its ruling that there is a fundamental due process right to education. (We talked about the case on the podcast. Meanwhile, the litigants have tentatively settled the case, and an attorney for the students believes they "are done with the courtroom.")
Friends, the Georgia Supreme Court has "long interpreted the Georgia Constitution as protecting a right to work in one's chosen profession free from unreasonable government interference." So wrote the Court this Monday, reviving an IJ lawsuit over a 2016 law imposing extensive, prohibitive-for-most licensing requirements on lactation consultants, who provide breastfeeding advice and support to new mothers. The law, which was passed at the behest of a small group of consultants who mostly already meet its requirements, would put hundreds of other consultants, many of whom serve low-income, rural, and minority communities, out of work and force those communities to go without services. All this despite no evidence whatsoever that licensing protects mothers and babies; indeed, no other state imposes restrictions as severe as Georgia's. Click here to read more. Is Georgia's Constitution some sort of crazy outlier? Not at all. On Tuesday, the Pennsylvania Supreme Court ruled that economic restrictions must have a "real and substantial relationship" to a legitimate purpose and not be "unduly oppressive or patently beyond the necessities of the case." This standard, the Court confirmed, is sterner than the federal rational basis test. The decision revives an IJ lawsuit on behalf of a vacation rental property manager who state officials say must, among other unreasonable requirements, spend three years unpaid as an apprentice in order to obtain a real estate broker's license, even though that has nothing to do with the work she actually does. Click here to read more.