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.
New on the Short Circuit podcast: Special guest Walter Olson of the Cato Institute joins the panel to talk faith-based adoption agencies, university bias response teams, and a notable qualified immunity decision out of Mississippi.
- Sitting en banc, the D.C. Circuit holds that the House Committee on the Judiciary absolutely has standing to enforce its subpoena against former White House council Don McGahn—and suggests that this conclusion might just have some implications for whether the House has standing to pursue its lawsuit challenging the Trump administration's border wall expenditures.
- Convicted Boston Bomber Dzhokhar Tsarnaev challenges his death sentence, alleging that the Boston jury pool was tainted and that the trial court should have granted his counsel's multiple motions for a change of venue. First Circuit: We don't think the jury pool was irrevocably tainted, but the judge failed to conduct a proper voir dire. The death penalty is vacated and the case is remanded for a new penalty phase. Concurrence: If this jury pool wasn't tainted by pre-trial publicity, no jury pool can be.
- Student posts a sticky note in Cape Elizabeth, Me. high school bathroom stating "THERE'S A RAPIST IN OUR SCHOOL AND YOU KNOW WHO IT IS." This, and the school's handling of the sexual assault claims, makes the local news. The school suspends the student who put up the note for three days for bullying. A First Amendment violation? First Circuit: Sure looks like it. Tinker requires the school to justify its suspension; bullying doesn't cut it, and the gov't can't invoke post hoc rationalizations.
- Congress has never defined the term, but for well over a century Congress has barred immigrants who are likely to become a "public charge." Can the Dep't of Homeland Security adopt a definition of the term that will render way more people inadmissible? The Second Circuit says no: This new definition is both arbitrary and capricious and foreclosed by the longstanding implicit definition of public charge. But the nationwide injunction is limited only to this circuit, even though some of the plaintiff organizations exist outside the circuit and even though SCOTUS already stayed the injunction. The Fourth Circuit, however, says yes (over a dissent): SCOTUS wouldn't have stayed the injunction against the rule if it wasn't lawful, so injunction reversed. Also, lower courts should stop issuing nationwide injunctions as they are beyond their power.
- Assistant principal at Harrisburg, Penn. high school sexually abuses a 16-year-old special needs student. (He's sentenced to 6 to 18 months of work-release, ordered to pay the student $700k). Can the student sue the school district? Third Circuit: In order for the district to be liable, someone with some authority at the school—like an assistant principal—must have known about the abuse. Someone other than the abuser, which isn't the case here.
- Allegation: Diagnosed with glaucoma, Pennsylvania inmate requires surgery "as soon as humanly possible" to save his eyesight. Despite repeated requests, nothing happens for nearly a year, surgery comes too late, and the inmate is now blind. District court: He should have exhausted administrative remedies. Case dismissed. Third Circuit: Not so; the procedures have an exemption for medical emergencies, which this was (though his claims against some of the defendants are barred by sovereign immunity, raised for the first time on appeal).
- Allegation: Guards at a Pennsylvania federal prison harass Muslim inmate, telling him "there is no good Muslim except a dead Muslim" and placing a sticker on his back that read, "I love pork bacon." When the inmate complains, he is fired from his prison job. He then sues for First Amendment retaliation. Third Circuit: Sorry, but this was a federal prison, and we decline to extend Bivens to give you a remedy.
- In 2013, Maryland enacted a requirement that those seeking to purchase, rent, or transfer a firearm first obtain a handgun qualification license, which requires, among other things, the completion of 4 hours of firearms safety training, getting your fingerprints taken, and firing at least one round of live ammunition. Gun owners' rights group, a gun shop, and individual firearms enthusiasts challenge the law. Following discovery, the trial court dismisses all of the claims for lack of standing. Fourth Circuit: Which was error, as to the Second Amendment claims. The gun shop provided uncontroverted evidence that the law had harmed their sales, a classic injury-in-fact.
- Does a statute that allows the National Oceanic and Atmospheric Administration to regulate fishing in the Gulf of Mexico also allow it to create a fish farming regime—spawning "an entire industry the statute does not even mention"? Fifth Circuit: "We will not bite."
- For independents to get on the ballot in Ohio, they have to collect signatures in person. And in-person interactions are not so popular these days. So do Ohio's social distancing orders violate the First Amendment rights of independents seeking ballot access? The orders do except "petition and referendum circulators"—but, still, it's tough to get signatures. Sixth Circuit: We decided this when it was signatures for initiatives and referendums. No dice then, no dice now.
- Allegation: When an Illinois school superintendent seeks a forensic audit of the district's expenditures, a school board member calls her and says she is "itching for an ass-kicking." She reports the call to the police. Afterwards, the school board refuses to extend her three-year contract, blocks her email, and pretends that she doesn't exist. She sues, alleging First Amendment retaliation, and a jury awards her nearly $600k in damages and attorneys' fees. School board: The superintendent's complaint to the police was not on a matter of public concern, so the First Amendment doesn't apply. Seventh Circuit: A school board member threatening to kick the ass of a school superintendent for looking into financial irregularities is very much a matter of public concern.
- In class actions, a phenomenon called "objector blackmail" is very much a thing. A few class members object to the class action settlement, appeal from its approval, and then agree to dismiss their appeal in return for a payout far above what the original settlement would have awarded them. Seventh Circuit: Roguery! The district court may properly require those objectors to disgorge their side deal settlements for the benefit of the class.
- Nevada rancher has long grazed his cattle on federal land but stopped getting a permit decades ago. He continues despite court orders to stop, so the feds seek to remove the cattle. Rancher recruits supporters; armed standoff ensues. Feds back down but charge the rancher and others, alleging they lied about the ranch being surrounded by snipers in an effort to draw supporters. After trial starts, evidence dribbles out showing the presence of heavily armed patrols and gov't docs discussing snipers. District court: Flagrant prosecutorial misconduct = indictment dismissed with prejudice. Ninth Circuit: Yup.
- To preserve land in its natural, scenic, or open condition, Colorado offers a tax credit to property owners who agree to a conservation easement. But until recently taxpayers were expected to donate the easement and not until the ink was dry would they learn if they could get the tax credit. Property owners who donated an easement but did not get a credit sue, seeking a declaration that that violates the Constitution. Tenth Circuit: That is exactly the sort of thing the Tax Injunction Act says courts can't declare.
- Nonprofits challenge fees charged for accessing federal court filings on PACER. Challengers: The fees need to be way lower. Gov't: The fees are just fine. District court: The fees are not just fine. But nor do they need to be way lower, just a bit lower. Federal Circuit: Indeed.
- And in en banc news, the Eleventh Circuit will reconsider its decision that Jeffrey Epstein's victims did not have a right to be apprised of his negotiations with federal prosecutors, which ultimately resulted in a non-prosecution agreement. (We discussed the original panel's holding on the podcast.)
In 2017, North Dakota legislators adopted a cottage food law that permits residents to sell a wide variety of homemade foods. Huzzah! Research shows that such legislation lets a thousand small businesses bloom and that they are overwhelmingly run by women with below average incomes from rural areas. But wait! After twice attempting and failing to get the legislature to change the law, bureaucrats at the North Dakota Dep't of Health decided to impose a bunch of rules that dramatically scale back what foods can be sold. Raw chicken: allowed! Chicken noodle soup: verboten! Cheesecake: have at it! Cheese pizza: you could go to jail! The new rules, which went into effect in January, put a lot of hardworking folks out of business for no good reason. But some good news: This week, a state judge ruled that a challenge to them by five home-food producers can proceed. Click here to read more.