Short Circuit: A Roundup of Recent Federal Court Decisions

Innovative orthodontics, cumulative explosions, and voting by proxy.

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

Motorists who get traffic tickets in rural Louisiana can talk to the judge, who, it just so happens, is often the mayor. The results are outrageous. Some towns and villages get more than 80% of their revenue from fines and fees. And though the U.S. Supreme Court declared this kind of thing unconstitutional in 1972, Louisiana lawmakers have decided that the ruling does not apply in the bayou. IJ's Daryl James has the story over at Reason.com.

  • Retired U.S. Army veteran suffers a stroke at age 46, which his physician believes was related to traumatic brain injury (TBI) from an explosion. He applies for the Purple Heart. Army: Because you served in more than 200 combat missions, we think your TBI was actually caused by the cumulative effect of many explosions, so you're not eligible. D.C. Circuit: Thanks for your service, but we have to defer to the Army on this one.
  • In response to the COVID-19 pandemic, the House of Representatives in 2020 adopted a resolution allowing members to vote by proxy. House Minority Leader Kevin McCarthy sues, alleging that the Constitution requires all House votes to occur in person. D.C. Circuit: Which is precisely the sort of internal legislative dispute that the Speech or Debate Clause prohibits us from considering.
  • Federal officials may be sued for constitutional violations only in very narrow circumstances. Ignoring and failing to treat the many symptoms of a prisoner's Crohn's disease is one of those circumstances, holds the Fourth Circuit. So the prisoner's Bivens claims (and, over a eulogizing dissent, his FTCA claim) will live another day.
  • Federal prison official allegedly retaliates against inmate who filed a tort claim by, among other things, putting him in solitary. District court: That's a thing you can sue a federal official over. The case can proceed. Officer: Qualified immunity? Sixth Circuit: Nope, you didn't raise that below. And unlike with QI, there's no interlocutory review of Bivens claims. We can give this another look after the district court issues a final order. (Ed.: Bivens remedies are much rarer than this week's edition might lead one to believe.)
  • The University of Iowa has a policy of nondiscrimination in leadership positions for student groups. Except when it gives groups an exemption. It denied an exemption for a Christian group that asked for leaders to affirm that same-sex relationships are against the Bible. But it granted them for many other groups, such as minority-focused groups, fraternities and sororities, and even a group with the exact-opposite affirmation on Christianity and same-sex relationships. Eighth Circuit: "We are hard-pressed to find a clearer example of viewpoint discrimination." And not only that but denial of qualified immunity affirmed.
  • After a jury convicts a Cali woman for resisting, obstructing, or delaying a peace officer, the woman sues the officer for excessive force. "Nuh uh," says the Ninth Circuit. You were convicted for resisting the officer on the same facts underlying your excessive force claim, so your claim is barred by Heck v. Humphrey. Dissent: The jury was told it had to find just one of four factual scenarios true to convict, and three of those four scenarios involved different facts than the excessive force claim.
  • California requires churches to make elective abortions available as part of their workers' health coverage. Churches sue, and the case is dismissed. Meanwhile, the Supreme Court decides Fulton v. City of Philadelphia, holding that Philadelphia could not exclude Catholic adoption services from government contracts because of their refusal to place adoptees with same-sex couples. Ninth Circuit: Take another crack at it, district court. Dissent: Let's not waste time. Strict scrutiny applies and the government should lose.
  • Certain allegations lead the Arizona State House to overwhelmingly vote to expel a member. He sues, claiming it's a fix I tell ya'! Ninth Circuit: No. There's no equal protection violation, and even if there was a due process violation there's no sufficiently similar prior caselaw on point, so qualified immunity.
  • Would this court care to "reverse incorporate" the Privileges or Immunities Clause against the federal government, à la the Equal Protection Clause in Bolling v. Sharpe? Tenth Circuit: Are you serious? And the claim that the revocation of a passport when you're behind on a lot of taxes is unconstitutional also fails under substantive due process.
  • Is there a clearly established right under the First Amendment to use tobacco for a Native American religious service, thereby defeating qualified immunity? Yes, at least in the Tenth Circuit, even if you're in prison.
  • Innovative orthodontics company will scan your teeth, send the results to a state-licensed dentist, and send dental appliances right to your door. Georgia's dental board—composed mostly of dentists—doesn't like that one bit, and prohibits the practice. The company sues, alleging antitrust violations. Board: Can't sue us, we have state-action immunity. District Court: Maybe. I'll decide that later. Eleventh Circuit (en banc): And the Board can't appeal that ruling either, because it isn't a final order.
  • Woman is told if she gives the property manager of an apartment she applies to live in a "kiss" she can live there. She reluctantly accedes. He then asks for more than a kiss after she moves in, which continues for over three years. She finally cuts the relationship off (the physical one). He cuts off the other one for nonpayment of rent, even though she owed no money. Can you bring a sexual harassment claim under the Fair Housing Act? Eleventh Circuit: Yes.
  • And in en banc news, the Ninth Circuit (with one, two, three … NINE! … separate opinions accompanying its order) will not reconsider its decision that a public school district did not violate the constitutional rights of a football coach who led prayer sessions at midfield after games by suspending him. (We talked about the March 2021 panel opinion on the podcast.)
  • Friends, last week's en banc news contained a grievous error. In fact, the original Second Circuit panel granted a petition for rehearing, rather than the full Second Circuit granting a rehearing en banc. And this week, the panel issued an amended opinion that leaves the original panel opinion holding unchanged: Vimeo, which deleted the account of a church that promoted gay conversion therapy, is protected from the church's suit by Section 230(c)(2). (We discussed the original panel decision on the podcast.)

On average across the 50 states and D.C., it takes 11 times as much training to become a cosmetologist as it does to become an entry-level EMT. And all that time in training ain't cheap. Using federal education data, a new IJ study titled Beauty School Debt and Drop-Outs finds that cosmetology school—required for a state license to work—is a raw deal for many aspiring beauty workers. It's expensive, time-consuming, and risky, and it rarely pays off in terms of earnings. The study also finds that state licensing requirements—not health and safety—are likely the reason cosmetology school takes so long (and therefore costs so much). Click here to read the report.

NEXT: Sixth Circuit Concludes CDC Eviction Moratorium Is Unlawful

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  1. “Army: Because you served in more than 200 combat missions, we think your TBI was actually caused by the cumulative effect of many explosions, so you’re not eligible.”

    Christ, what a bunch of assholes.

    1. The serviceman who sued because he didn’t get a medal is a tool, too.

  2. Friends, last week’s en banc news contained a grievous error. In fact, the original Second Circuit panel granted a petition for rehearing, rather than the full Second Circuit granting a rehearing en banc.

    That makes more sense. The Second Circuit virtually never grants en banc review. A litigant might have a better chance of SCOTUS granting cert.

    1. What’s the problem? The judges don’t want to move more chairs into the courtroom?

  3. Woman is told if she gives the property manager of an apartment she applies to live in a “kiss” she can live there. She reluctantly accedes. He then asks for more than a kiss after she moves in, which continues for over three years. She finally cuts the relationship off (the physical one). He cuts off the other one for nonpayment of rent, even though she owed no money. Can you bring a sexual harassment claim under the Fair Housing Act? Eleventh Circuit: Yes.

    This is one of those “I’m surprised anyone took the the contrary position” cases. We know that under Meritor Savings Bank v. Vinson, Title VII prohibits sexual harassment at work. The Fair Housing Act contains the same nondiscrimination language. How could it possibly not prohibit sexual harassment by a landlord?

    1. The only question is “which law did this violate?” It’s either sexual harassment or prostitution. If you consider losing her housing a sufficient threat, it might even be rape.

      Now, if this was in a state with legalized prostitution, there might be a rational counterpoint that it was a legal exchange of services. However, it’s in Florida. Even then, he would have to allow her to pay the rent in a more traditional manner if she chose to break up.

  4. This is f/k/a hardreaders.

    I’m just dishing out quick thoughts on some of these cases for kicks.

    CADC (House of Reps): The result is correct I think, but political question seems like a superior basis instead of Speech and Debate.

    CA9 (excessive force): On the one hand, the daughter and mom seem like obnoxious hicks, and, per the linked article below, might also be racists. On the other hand, the cop brutalized a freakin’ high school girl who didn’t pose a danger to anyone. And it seems like he perpetrated an illegal search on the boyfriend’s truck, which helped set off the whole confrontation. While it’s appropriate that the daughter and mom got convicted and had to serve a bit of time, I think the dissent is right that the cop should have been on the hook for excessive force too.

    https://www.pressdemocrat.com/article/news/gabbi-lemos-mother-sentenced-to-jail-in-resisting-arrest-case/

    CA10 (passport): What is up with these Frankenstein cases where multiple judges’ opinions are stitched together to form a majority? CA10 seems to be doing this a lot recently. It’s also interesting the plaintiff is apparently destitute—he filed an IFP petition at SCOTUS in 2019 and I doubt his situation has improved since then—but yet a major firm like Polsinelli is handling the appeal. Are they doing it pro bono?

    CA9 (football prayer): Yeah, there are 9 (it’s the Ninth Circuit after all!) separate opinions, but the case blurb oversells it a bit. Three of those are just 1-sentence opinions agreeing with some of the other, actually substantive, opinions. OK, 6 separate substantive opinions are still plenty, I’ll grant that. I liked Judge Milan Smith invoking the Odyssey. He also had some harsh words for the coach’s counsel—Kirkland and First Liberty Institute—they “spun” “a deceitful narrative” of the case.

    TGIF!

    1. ” What is up with these Frankenstein cases where multiple judges’ opinions are stitched together to form a majority?”

      It’s what happens when a majority of the judges agree on what the outcome ought to be, but can’t agree on why.

  5. “California requires churches to make elective abortions available as part of their workers’ health coverage.” Are you fucking kidding me?

    1. It’s California, they’re lucky they’re not required to perform them in the sanctuary on Sundays.

      1. Surely, they remain free to hire people who don’t WANT to have abortions…

    2. Could you be more specific? I mean is it the fucking or the kidding that is a problem for you. It is well known among members of the bar that one leads to the other.

      Actually, I do have a serious comment. This issue has always been completely disingenuous on the part of religious establishments. This is insurance. The insurer accepts the risks (costs) of the thing covered (here, pregnancy). The cost of an abortion is much less than that of childbirth. The whole idea of insurance is that everyone’s risks are spread out among all the policyholders. If a subset of policyholders desires to mandate the more expensive treatment for its beneficiaries (even though some in fact desire the cheaper treatment) they must raise the cost of the premiums for everybody. They should not have a right to do that, unless they also accept a substantial surcharge. Worse, even if they did pay extra, they would still be denying some potential parents of their equal rights under ACA. Such preposterous crap from people who don’t even pay taxes.

      1. Blackstone, ignorantio elenchi. Stop ignoring the question.

        Yes, it’s cheaper to abort rather than have a baby. However, they are objecting to their money being used to murder babies. It doesn’t matter if you disagree that is what’s happening. That is what they think it is and their argument makes perfect sense from that perspective.

        It would also be much cheaper to pay for a single bullet rather than palliative care for hospice. It would be cheaper to pay for a single bullet rather than chemotherapy. Bullets are cheap. However, you wouldn’t suggest that it’s logical to go to a lead-based medical system. This is essentially the same argument.

        1. ” they are objecting to their money being used to murder babies.”

          No, they are objecting to anyone’s money being used. Apparently, they think doctors should be required to provide this service for free.

  6. The Ninth Circuit’s apparent conclusion with respect to the presentation of the football case prompts a question: Do Mormons believe they are entitled to lie in court if on a Mission From God?

    1. The thing about being on a Mission From God is that He wants you to succeed, and won’t put any obstacles in your way that you can’t overcome. So if you run into a serious obstacle that blocks you, you weren’t really on a Mission From God.

      1. Like any reasonable person, I defer to Jake and Elwood on all Mission From God issues.

        1. I share Jake and Elwood’s opinion of Illinois Nazis.

  7. “But it granted them for…even a group with the exact-opposite affirmation on Christianity and same-sex relationships.”
    Hold on there just a second. A group that requires a confirmation of inclusion (on whatever issue) is hardly the exact opposite of a group that requires one of exclusion, which is arguably the manifest discrimination sought to be circumscribed. Does the court really want to say it’s OK for the first group to discriminate because the school simultaneously allows the second group to not discriminate? I can’t say that the decision is right or wrong, but I do say the Court’s rationale in this aspect frankly, begs the question.

    1. If one requires a statement saying same sex marriage is right and another that same sex marriage is wrong then they are the opposite viewpoint. That is classic viewpoint discrimination.

      The point is the second group does discriminate against people that hold the opposite point of view on Christianity and same sex marriage. The Constitution doesn’t allow the government to do that.

      1. Well, it depends. You seem to think that all the groups require a statement about same sex marriage. We don’t know that is the case here. I doubt it is.

        The school here has said that if you want to have an organization receiving substantial benefits from the school, you cannot engage in discrimination when appointing leaders. Does the school have that right? Does the school also then have the right to enumerate specific sets of persons to protect?
        It is important to note that your premise is faulty. “If one requires a statement saying same sex marriage is right…” There’s nothing here to show that happened.

        This is a case of prohibited discrimination against a gay student. The court’s holding is reductio ad absurdum, in saying that the University of Iowa cannot discriminate against discrimination.

        1. “The school here has said that if you want to have an organization receiving substantial benefits from the school, you cannot engage in discrimination when appointing leaders. Does the school have that right?”

          So you think the school can require a student organization to accept leaders who reject the groups values and mission?

          Should a Jewish student group have to accept a member the Nation of Islam as not just a member but for a leadership position?

          1. Maybe your hyptothetical Jewish student group would be comfortable assuming that few Nation of Islam members will be applying to join their group, and thus don’t need to broadcast the fact that anyone from Nation of Islam can’t be in the leadership of the Jewish student group.

            My daughter was a member of the robotics club in her university, which was mostly made up of engineering students. That group didn’t feel the need to tell non-engineering students that they couldn’t join, instead, they told prospective new members “hey, our group is all about engineering. If you don’t want to do any engineering, this club might not be the one you want to join.” And then, the people who aren’t interested in engineering go join the clubs that are more suited to non-engineers.

        2. Did you read the ruling? Did you even read the summary?

          There were other groups, approved by the university, that required their leadership to express pro-same sex marriage views. There were groups that excluded people of one sex or the other. There were groups that accepts only members of certain races. There were even religious groups where leadership was required to affirm other beliefs – including support of same-sex marriage (example given in the ruling), but not opposition to same sex marriage. There were other religious groups allowed require their members to oppose same sex marriage – there is the example of a Muslim group. These groups had been given exceptions to the general policy for decades – even InterVarsity, the organization in questions, was allowed to have their policy in place for more than 25 years.

          However, when the University began its “review” of student groups, it explicitly ordered the reviewers to pay special attention to religious groups that expressed certain beliefs. This led to the punishment of InterVarsity.

          After the punishment was announced, InterVarsity offered to amend their charter to mere “encourage” that the leadership hold the specified religious views. The University said this was unacceptable, and went through with their punishment of InterVarsity.

          Then the review stopped. All other organizations – sex based, racial based, even some religious groups that the University liked – were either grant exemptions and allowed to continue their exclusionary policies, or were not even reviewed.

          The ruling is quite detailed and clear, and if you’d bothered to read it, you would not have been as mistaken in your post as you are.

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