Short Circuit: A Roundup of Recent Federal Court Decisions

A Social Security screw-up, prolonged detentions, and greasing the wheels of justice.


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 Third Circuit (non-precedential): The statute is supposed to cover dealers, not people who get a small amount of drugs to share only among themselves.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.

NEXT: A Badly Flawed DC Circuit Ruling in Favor of the CDC Eviction Moratorium

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  1. “but because those schools might use the funds to do religious things.”

    I are we really going to start funding religious activity?

    “that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?”

    1. The Establishment and Free Exercise Clauses mean government is to be neutral toward religion. It shouldn’t fund a school because it is religious, but neither should it deny funding because the school is religious.

      1. So you think Madison wouldn’t have wrote the Remonstrance if the bill in question was changed to tax everyone three pence for a general fund which could go to religious instruction but no single religion singled out for it?

        It seems to me the Establishment Clause was meant to stop government from endorsing any religion, the two should be separate.

        1. “So you think Madison wouldn’t have wrote the Remonstrance if the bill in question was changed to tax everyone three pence for a general fund which could go to religious instruction but no single religion singled out for it? ”

          False equivalence. You are limiting it to religious only. To equate it to the case in question it would be “a general fund for ANY instruction” regardless of religious or not.

          1. Even that misstates it, because it doesn’t fund ‘religious’ or ANY education, it funds primary K-12 education regardless who provides it, if they are properly credentialed.

          2. Madison wrote against funding for religious instruction. You think he wouldn’t have wrote if it was a fund for any instruction, though mostly religious?

            1. Madison wrote against funding for religious instruction.

              And this has nothing to do with funding for religious instruction, so…what?

              1. “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.”

                I eagerly await the websites and pamphlets of the schools declaring that religious instruction isn’t part of their education there!

                1. I’m sure the degree to which religion is integrated into their religious education is very minimal.

        2. Government does not endorse religion with these vouchers. Government provides money for citizens to choose a school. Government cannot (constitutionally) condition that choice on the school being secular.

          1. I’m saying giving government money to be used for religious instruction was empirically, historically, frowned upon in our Founding.

            1. This is, quite simply, not true.

              There were actual, literal, state churches in that era. Legally, constitutionally, well-known, and accepted by many of the Founding Fathers.

              Most states collected taxes explicitly to fund their state church, and continued to do so well into the 19th century. Massachusetts did not stop this until the 1830s!
              Explicit religious oaths of office in states continued into the 20th century, as well.

              1. From what I head around here, that in the First Amendment was to prevent a religion gaining national ascendancy, they way different ones had in the several states.

                I’ll take constitutional creep when it expands freedom and rights beyond what the framers thought, but not when it expands government power beyond such.

                This position is not self-contradictory, but rather in accordance with a design that government shall only have powers The People clearly gave it, to prevent scurrilous behavior so common through history, and the idea rights are not limited to those listed, which might indeed increase, but could never decrease sans amendment.

                1. Congress was barred from legislating in any way at all on the topic of established churches, the states wanted no federal established church, nor any interference with their own established churches if they chose to go that way. The only way a religion could achieve ‘national ascendancy’ would be to achieve ascendancy state by state.

                  It was the free exercise clause that was actually addressed to individual rights.

                  1. “It was the free exercise clause that was actually addressed to individual rights.”

                    But it IS in there, isn’t it, Brett?

                  2. “Congress was barred from legislating in any way at all on the topic of established churches, the states wanted no federal established church, nor any interference with their own established churches if they chose to go that way. The only way a religion could achieve ‘national ascendancy’ would be to achieve ascendancy state by state.”

                    Congress was NOT barred from legislating an established church by the original Constitution, which is why it was amended to add such a ban.

                    (Unless, of course, “Congress shall make no law…” is interpreted as meaning “OK, sometimes Congress can make a law…”)

          2. ” Government cannot (constitutionally) condition that choice on the school being secular.”

            This is your conclusion, but you offer literally nothing to support this claim.

            1. Pretty sure everything striking down Blaine amendments supports this claim. Unless you’re saying you’re on the side of the KKK?

              1. You didn’t support this claim, either.

    2. We have been letting servicemembers use government dollars to pay for seminary via the GI Bill for, what is it now? 60 years?

      This is the same thing. Money follows the student. Whether the student chooses to be educated secularly or religiously, so long as the student (or the student’s parents) make the decision, none of your Madisonian concerns are relevant. That creates no Establishment Clause problems.

      1. There’s a big difference between saying that government CAN fund a religious school if it wants to (and the student rather than the government selected it), and saying it is REQUIRED to fund it.

        Although several decades ago the Suoreme Court took the postion that such funding was prohibited, for the last fw decades. until fairly recently, the Supreme Court took an intermediate “play between the joints” approach saying that such funding was neither required nor prohibited, but at each government’s discretion. The idea that it is required is fairly new, and reflects the Supreme Court’s recent conservative bent.

        1. Although I’ve taken a fairly expansive interpretation of the Free Exercise Clause, I’ve accepted skme of the previous boundaries fairly confortably, including the idea that, while the taxpayers and government generally can’t forbid you from practicing your religion, they don’t have to pay for it.

          1. The eventual solution to this problem will involve accreditation. Superstition-based, nonsense-teaching, science-disdaining schools should fear that development.

            1. Any government rule by which religious schools that teach secular subjects at a reasonable level can’t get accreditation merely because they are religious would be a far greater intrusion on religion, and far more obviously unconstitutional, then any limit on funding.

              1. You can tell that to your betters. As you comply with their preferences.

                1. You do understand, by shifting from a giant memeplex “for God”, to another, equally all-intrusive and corrupt one “for The People”, you’re really not changing much, right?

                  You think you are, because political memeplexes adopt “Science!” as a plank, but that is just another tool for useful idiots to gather under them, to seize power, and force themselves on unwilling congregants, while those at the top continue the ancient practices of corruption and graft.

                  You know, the purpose governments are instituted amone men, in the vast majority of cases?

              2. “Any government rule by which religious schools that teach secular subjects at a reasonable level”

                I’m sure the nuns down at the Catholic school do a bang-up job teaching sex-ed, and science courses at the Evangelical academy are actual science courses, and don’t teach (as science) that the Earth is only 6000 years old, fossils are frauds, and evolution is disproven because species aren’t observed to change.

                1. Sounds pretty crazy. Kind of like the teachers in the public school teaching that sex is a matter of self-identification rather than biology.

                2. See Yoder v. Wisconsin. That’s the constitutional standard. People don’t have to know the things a liberal person would want to teach in a sex ed vourse to function in society az Yoder defined it – be able to support themselves and avoid crime.

                  There are schools that don’t teach to that level, which is why I caveated at a reasonable level. But you can learn how to read and write and do essays perfectly well from books on religious subjects. And while it’s not my cup of tea, if push comes to shove people don’t have to know the theory of evolution to function into society. If they learn reading, writing, math, and so forth at a reasonable level, they can get into college if they want and learn it there.

                  I’m not saying people should have to accredit a biology program that doesn’t teach the theory of evolution. But you can acceedit a high school that doesn’t teach it. Or critical race theory, or any of multiple other subjects that some constituency or other insists ought to be mandatory to allow a school to function.

                  The Yoder standard, once again, is whether you can function in society enough to support yourself and avoid crime. It’s not a sham or nonexistent standard. There are religious schools that teach essentially no secular subjects at all. Just look at New York. But but it’s not a very high one either.

                  Caveat: This is for mandatory education requirements, which is what Yoder was about. College isn’t mandatory, so it’s a somewhat different situation. Even there, you can accredit religious schools for specific programs.

                  1. Nice substitution. You went from “if they teach secular subjects at a reasonable level” to “schools hadn’t oughta be teaching all those subjects in the first place”.

              3. “Any government rule by which religious schools that teach secular subjects at a reasonable level”

                Let me guess, you’re going to let the religious schools decide if they’re teaching secular subjects at a “reasonable” level?

            2. Would these be the schools that followed the science and had in-school teaching the past year? Or those that didn’t follow the science and are still arguing against in-school teaching?

            3. “Superstition-based, nonsense-teaching, science-disdaining schools”

              In other words, any school teaching belief in ‘social forces’? Or better yet, historical forces? Hate forces? Supremacy forces? Superstitious stuff like that?

    3. We’re funding PEOPLE. People are choosing to use those funds on religious schooling.

      Under your perverse logic, all those stimulus payments could be…”withheld”…from Muslims because they were likely to use at least part of them for religious activity. And thus the government would be funding religious activity.

      But I’m sure you didn’t think of that.

      1. I submit that your last two words are extraneous.

    4. QA, honest question: how far down the following list would you be willing to see such prohibitions go?

      6. People spending an education voucher at a religious school
      5. Veterans using their GI Bill funding to go to divinity school
      4. People spending a daycare voucher at a church-run daycare
      3. People spending their Medicare/Medicaid at a church-owned hospital.
      2. People donating part of their stimulus check to a church.
      1. People donating part of their social security check to a church.

      It seems to me you’re OK with (7). On the other hand I assume you’re not so far gone that you’re OK with (1).

      Any insight on where you’d draw the line and why?

      1. Sorry…”you’re OK with (6)”

      2. If the government offers a voucher for college study in general must it offer it for seminaries?

        1. OK, you’re fine with prohibiting (6) and (5). But the daycare is OK?

          1. You know they are not, they would forbid all of it and if necessary fine the recipient if they could not prove the source of their money wasn’t from a government program

      3. People donating part of their social security check to a church is one thing, and the social security administration withholding from peoples’ checks for them and forwarding the funds to a church is another.

      4. Add in 4.5) People using their GI Bill funding to go to a religious college, such as Notre Dame

    5. See Locke v. Davey, 540 U.S. 712, 719 (2004) (“Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients.”).

      1. As government insinuates itself more and more into all human activity, the idea it can continue taking vast sums from the people, and can only return it to the people as long as they cleanse it from any religious institutions, said institutions that have been doing this work for millenia before politicians stuck their nose into it, is supremely perverse.

        1. Jesus told his followers to pay their taxes.

  2. The authoritarian prude dissenting in that Third Circuit case is a lifelong clinger and Trump nominee.

    Drug warriors are among my favorite culture war casualties. The worst is yet to come for them (and the gun nuts, and the anti-abortion absolutists, and the others who have hitched the political wagons to a losing cause).

    1. We have two drug warriors as both President and Vice-President who both suddenly forgot what they supported on the campaign trail. Going to be a fun four years when nothing changes

      1. And we have a leader one heartbeat away from the presidency who won the Democratic debates on how to most severly hurt the Internet companies for not censoring as they all wished.

        These are not the betters you are looking for, Rev.

        1. Unless it’s better to have Internet companies to run than to not have Internet companies to run. Such a pity for the Republicans that tech is dominated by young people, and young people are NOT their demographic.

      2. “We have two drug warriors as both President and Vice-President”

        When you become President or Vice President, you take an oath to faithfully execute the laws of the United States. If you think the laws of the United States should be dfferent, you want different legislators, not different executives.

    2. The most fun comes from the anti-drug absolutists who ALSO complain about the overreach of Wickard. Dial back on the authority of Congress to make laws based on commerce that isn’t actually happening, and the Controlled Substances Act is on amazingly thin ice.

    3. I see you’re still peacocking peacock.

  3. Be sure to read through to the concurrence where Judge Menashi tells the district judge he committed religious discrimination:

    “This decision — that the petitioners should be denied full preliminary injunctive relief because Rice’s religious mission and curriculum justified extra precautionary measures — was itself status-based religious discrimination.”

    1. High principles! “In a tie, or if unsure for now, the First Amendment loses.”

      The fight between sides as to who has freedom of religion on their side is interesting. Neither apparently has problems with government taking such massive sums to begin with.


  4. Many of the Founders were Deists, which is a short way of saying “atheist trying to get along in a society of Christians.”

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