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.
Last summer, in Espinoza v. Montana, the Supreme Court ruled that if states subsidize private education, they cannot withhold funding from students who choose to attend religious schools. But last October, the First Circuit upheld a Maine law that does just that, reasoning that the law does not discriminate against schools because they are religious but because those schools might use the funds to do religious things. Over at the National Catholic Register, IJ Senior Attorney Michael Bindas explains why IJ is asking the Supreme Court to overturn the First Circuit. Click here for our cert petition.
- Gov't oversight organization files records request under FOIA. The DOJ identifies responsive records and then refuses to produce the parts of the records it claims are nonresponsive. D.C. Circuit: Absolutely not. Parts of records aren't separate records. Records are records. Turn over everything. But challenges to any broader DOJ policy to do this will have to wait for another day.
- The Russian mob. Prince Albert II of Monaco. Brexit. A book called The Spymaster of Monte Carlo. The facts of this D.C. Circuit libel case are dripping with international intrigue. (The holdings—standard stuff about foreseeability and inquiry notice—are less exciting.)
- Since 1869, Vermont has offered students in rural districts a stipend that they can use at any school, public or private, if their local district doesn't provide instruction at their grade level. However, the stipends can't be used at religious schools. District court: Which is unconstitutional. But there's no need to order school districts to provide funding on an equal basis just yet. Second Circuit: On the contrary, plaintiffs, who seek to use the funding at a Catholic high school, are entitled to equal funding right now. (IJ is litigating a nearly identical case.)
- Three friends inject heroin in the bathroom of a West Philadelphia KFC. One dies and another is convicted of distributing drugs resulting in death and sentenced to 21 years in prison. Third Circuit (non-precedential): The statute is supposed to cover dealers, not people who get a small amount of drugs to share only among themselves. Conviction overturned. Dissent: Handing drugs to someone else is "distributing" them and well within the law's reach.
- Allegation: Louisiana prisoner files grievances against federal prison officials who retaliate by putting him in special housing for 280 days without due process. He sues, alleging First Amendment retaliation (among other things). Fifth Circuit: These are serious allegations that merit … wait, did you say federal prison officials? Never mind.
- Does qualified immunity shield a Cook County, Ill. investigator who allegedly used racial slurs against a police officer whom he later recommended for termination? Seventh Circuit: The right to be free from firing based on your race was clearly established like 30 years ago, so no. But immunity for his two superiors who are not alleged to have known about the investigator's impermissible motives.
- There's no physical evidence that man convicted of a murder in Addison, Ill. is guilty. Instead, his conviction is mostly based on the testimony of three friends, all of whom later recant. District court: Nevertheless, conviction upheld. So what does the Seventh Circuit do under the "double-layered deference" appropriate to federal habeas petitions? "Although we sympathize," affirmed.
- University of Minnesota cheerleader (who is white) claims that multiple football players (all of whom are black) sexually assaulted her after a season-opening win over Oregon State. The school suspends the players "because of optics" while Minneapolis police investigate, then reinstates them after prosecutors decline to file charges. But the school's separate investigation determines that players did sexually assault or harass her, and each are suspended from the team before a bowl game (and before a hearing). A hearing results in findings of guilt for five players. Eighth Circuit: The university might well have discriminated against the players on the basis of their sex. But the players' race-discrimination claim was properly dismissed.
- Following arrest on marijuana-related charges, man spends nearly a year in solitary confinement in a private prison without a hearing. (Once he gets a hearing, the court orders his immediate release, and charges are eventually dismissed.) District court: The prison couldn't schedule a hearing, so it's off the hook. Ninth Circuit: No. A jury might well find that the prison's failure to notify the feds of the man's continued detention and discouraging him from seeking outside help prolonged his detention.
- Class action alleges "100% Natural" label for vegetable oil is misleading because it includes genetically modified organisms. Case settles, but with three "red flags" that it's a "collusive settlement:" too much money going to attorneys, a "clear sailing agreement" (no challenge to attorneys' fees), and a "kicker" (also about attorneys' fees). Overall attorneys get around $7 mil, class members less than a mil. Objecting class member challenges the settlement, and the Ninth Circuit agrees. But what this opinion will be remembered for is not class actions, but whether it's "all right, all right, all right" for a court to state the plaintiffs were "hoping to strike oil" and "grease the wheels of justice," assert that class certification "does not cleanse all sins," and discuss hypotheticals involving the Bachelor and George Lucas' sale to Disney.
- In 2011, the Fish and Wildlife Service lists the Pacific walrus as endangered or threatened. In 2017, after further assessment, it concludes the listing is no longer warranted. The earlier determination had lots of facts and discussion. But the 2017 version, says the Ninth Circuit, is a "spartan document" that contains very little of that. It does refer to a separate, beefier, document, but still doesn't tie things together with an admin-law bow. Therefore, there's an APA violation and it's back to the agency to try again.
- The feds hire an Indian nation to make firewalls in a New Mexico national forest. Unfortunately, in making a firewall the workers start a fire. Which burns nearly 18k acres. Affected property owners and insurance companies sue the United States under the Federal Tort Claims Act. But the FTCA doesn't apply if the workers were acting as independent contractors. So were they? Applying a seven-factor test the Tenth Circuit explains that yes they were. And even if they weren't, the discretionary-function exception applies. Case dismissed.
- Woman born in 1976 is given Social Security number that already belongs to another individual, and the feds don't fix the screw-up until 1993. The double-booking still affects her, including when her number-double declared bankruptcy and it hit her own credit rating and employment prospects. So can she sue for damages? The Tenth Circuit explains for a bunch of reasons the FTCA is not your friend.
- And in en banc news, Ninth Circuit will not reconsider its ruling that a California man who gave an un-Mirandized confession to a crime of which he was later acquitted can sue the officer who failed to give him his Miranda warning for violating his constitutional rights. Seven judges dissent from denial of rehearing (and include a saucy chart comparing the number of times the Supreme Court has called Miranda a prophylactic rule to the number of times the Court has called it a constitutional right).
- Missouri legislators pass law requiring, in addition to all the other fees one has to pay in court—whether civil or criminal—individuals to please throw in another three bucks for the sheriffs' retirement fund. But wait! Is that in line with the state constitution's requirement (taken from Magna Carta) that "justice shall be administered without sale"? Missouri Supreme Court: Actually, no. Sheriffs' retirements are not "reasonably related to the expense of the administration of justice." Speeders get their three dollars back, and in the underlying class action potentially millions of other dollars might be going back too. (For more on this decision, please see this sterling blog post.)
This February, Orange City, Iowa (pop. 6,000) officials adopted a rental inspection ordinance requiring landlords and tenants to submit to searches of their homes and properties. Typically, officials need some sort of individualized suspicion that a law has been violated before they can enter someone's home without their permission. But under Orange City's ordinance, officials can obtain so-called "administrative warrants" with no suspicion of wrongdoing at all. Last month, Erika Nordyke and her fiancé Bryan Singer joined with IJ to challenge the ordinance under Iowa's state constitution, which provides sterner protections against unreasonable intrusions onto private property than the federal Constitution. Click here to learn more.