Short Circuit: A Roundup of Recent Federal Court Decisions

Citizenship, machine guns, and bigamy

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

In 2020, police in the city of Brookside, Ala., made more misdemeanor arrests than the number of residents. Over two years, revenue from fines and forfeitures increased more than 640 percent. But it's not the result of a sudden crime spree; it's taxation by citation. And now, it's IJ's latest class action. IJ Senior Attorney Bill Maurer has more in today's Washington Post.

• Readers may recall the controversy over the Department of Commerce's "contrived" campaign to add a citizenship question to the census. Are documents concerning census-related-backchanneling between Commerce and the DOJ required to be disclosed under FOIA? DOJ: Deliberative process privilege! District court: But Attorney General Sessions made his decision to request the citizenship question before the documents at issue were written, so those documents couldn't be "predecisional" (a requirement for the privilege to attach). D.C. Circuit: Yes, the documents postdated the bottom-line decision, but they related to how to articulate that decision. So DOJ gets to keep (most of) them secret.
• Federal judge in Puerto Rico appears to have a habit of varying upwards (that is, imposing sentences higher than recommended by the sentencing guidelines) in machine-gun-possession cases based on a sense that machine-gun-related crime is a bigger problem on the island than elsewhere in the United States. First Circuit: Those generic "community characteristics" cannot be the exclusive basis for varying upwards from the guidelines. Forty-eight-month sentence vacated and case remanded for resentencing withing the advisory prison range of 24 to 30 months. Concurrence: "my colleagues have effectively deprived district judges of the ability to align sentences with the perceived level of crimes in their communities, and hence with the requisite need for deterrence." But this result seems compelled by our precedent.
• Did Congress, through the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA), abrogate the Eleventh Amendment immunity of the Financial Oversight and Management Board for Puerto Rico? First Circuit: Yes. So the Centro de Periodismo Investigativo (a nonprofit media organization) can sue the Board in federal court to seek disclosure of various agency documents under the Puerto Rico Constitution. Dissent: No way. (If Pennhurst piques your interest, this opinion may be worth a read. If not, maybe keep scrolling.)
• Participant in a New York armed robbery is sentenced to 100 months' imprisonment plus five years of supervised release, during which he cannot commit a new crime or else he'll go back to the clink. Alas, he commits more crimes, including assaulting his ex-girlfriend. But when she refuses to testify at his revocation hearing, the court relies on her signed statement to police and revokes his supervised release, sending him back for 28 months. Second Circuit: Seems fine. Dissent: He was sentenced to federal prison without a federal indictment for the assault, without the ability to confront accusers, without a jury trial, and without being found guilty beyond a reasonable doubt. None of this is okay, even if our circuit precedent says it is.
• New York man's debts are discharged in bankruptcy, including his mortgage. Nevertheless, his mortgage servicer continues to try to collect. He reopens the proceedings and obtains contempt sanctions against the servicer, which appeals and loses. District court: But no appellate attorneys' fees for the man, as the bankruptcy court lacks authority to grant them. Second Circuit: Contempt powers include assessing attorneys' fees. And while you're calculating those fees, consider whether he's entitled to fees for this appeal, too.
• Over an eight-day period in late 1979 and early 1980, two men went on a "Kill for Thrill" spree in western Pennsylvania, torturing and murdering their victims. Both were sentenced to death. One died in prison of natural causes. The other has been litigating habeas petitions since 1986. Third Circuit: His conviction and sentence stand. Dissent: Reviewing the records of his horrific childhood would've indicated to an effective attorney that a brain-damage test was necessary. His sentence should be vacated.
• Haitian man flees political violence, ultimately making his way to the U.S. But he didn't enter legally, and U.S. officials want him gone. Unlike many, he's able to hire an attorney to represent him. But the attorney provides only scant documentary evidence and fails to prepare the man for his hearing. He loses. Third Circuit: Ineffective assistance of counsel = new hearing.
• After Texas man dies in a crash with a semi-truck, his common-law wife sues the trucking company. Twist! Another plaintiff intervenes … a woman who also claims to be the man's common-law wife. During litigation the trucking company goes into bankruptcy and defaults on the lawsuit, leading both maybe-spouses to move for judgment. Can both get paid? Fifth Circuit: Texas doesn't recognize bigamy, so no. The man's first common-law wife wins.
• Safe to say that the Fifth Circuit is not impressed with this immigration lawyer, whose "repeated delays have resulted in a situation where Daughter must now effectively proceed as a minor orphan since Mother has died from a prolonged illness" (emphasis in original).
• In which the Eighth Circuit applies the ancient legal maxim "laches nihilum prohibet, socii," which means "laches doesn't prohibit anything, you guys" and is no less true for the fact that we made it up just now.
• Come for two opinions from this Eighth Circuit panel sparring over whether changed circumstances require it to vacate a preliminary injunction against Iowa's ban on mandatory public-school masking, stay for both of those opinions low-key agreeing that the ban doesn't affect these plaintiffs' children anyway.
• This Ninth Circuit case reviewing a denial of asylum is simultaneously so simple that it did not require oral argument and so complex that the three-judge panel generated four different opinions.
• Manufacturer of cannabis-derived vaping products sues a competitor for selling counterfeit versions of its trademarked products. The competitor concedes that it counterfeited the products but argues that the manufacturer cannot have a valid trademark, because marijuana remains illegal under federal law. Ninth Circuit: But this product isn't marijuana, it's hemp, which the 2018 Farm Act defines as containing less than 0.3% delta-9 THC by weight (it doesn't say anything about delta-8 THC, an isomer of delta-9 THC, which these products are loaded with).
• The American Rescue Plan Act gives money to states to help mitigate the effects of the COVID-19 pandemic, but prohibits states from using the money to offset tax cuts. Arizona sues, alleging that the law violates the Spending Clause and the 10th Amendment. But there's no concrete dispute between the parties yet. Does Arizona have standing? Ninth Circuit: Yes. Arizona has validly alleged a harm to its sovereign interest in being free from federal coercion over its tax policy.
• The Constitution guarantees criminal defendants the right to a public trial, but is it a sufficient substitute to provide a live audio stream at the height of the COVID-19 pandemic? Ninth Circuit: The Constitution required the district court to pivot to video, not just audio, streaming. Conviction vacated and case remanded for a new trial either in public or on, like, TikTok or something.
• Eleventh Circuit: This lawsuit seeking to prevent the city of Pensacola, Fla., from removing a Confederate monument may be a "topsy-turvy procedural mess," but its resolution is simplified by the fact that "the plaintiffs ultimately being sad about the cenotaph being taken down does not give rise to standing."

This week, the Tennessee Supreme Court rejected the lead claim in a lawsuit challenging the constitutionality of the Tennessee Education Savings Account Pilot Program, giving thousands of low- and middle-income families in Tennessee the ability to direct their children's educations as they see fit. The Institute for Justice, joined by the Beacon Center of Tennessee, intervened in the lawsuit on behalf of Tennessee parents to defend the ESA program's constitutionality against legal claims pressed by the governments of Nashville and Shelby County. The opinion from the Tennessee Supreme Court reverses the Court of Appeals and vacates the Chancery Court's 2020 ruling that held the program violated the Tennessee Constitution's Home Rule Amendment. Click here to learn more.

Comments

[John F. Carr]

Which Pennhurst? I find the second more interesting.

[DaivdBehar]

“…imposing sentences higher than recommended by the sentencing guidelines) in machine-gun-possession cases based on a sense that machine-gun-related crime is a bigger problem on the island …”

This is punishment for the crimes of others, and violates Fifth Amendment Due Process right to a fair trial. The is true for all the deterrence of others.

[DaivdBehar]

“…brain-damage test was necessary.”

Another fucking lawyer delusion. You people are really annoying in your utter stupidity. Who is more dangerous, who should be fast tracked to the death penalty? A mob assassin who kills only if paid to do so, or a brain damaged rampage killer who kills for fun?

The lawyer is not brain damaged. He just makes shit up to generate the fraudulent death penalty appellate business, a $billion scam.

[DaivdBehar]

” Conviction vacated and case remanded for a new trial either in public or on, like, TikTok or something.”

Courts are stupid. You have to transport dangerous people giving them endless opportunities to attack, to escape, to get injured in crashes, requiring buildings, multiple staff. Oh, I see, you are generating worthless make work and expenses of worthless buildings.

[Nisiiko]

Commies throw up roadblocks to executing criminals, and then use the delays as an argument that the death penalty is unconstitutional. Only something a criminal lawyer could come up with.

[John F. Carr]

In the Florida case, it strikes me as odd that people can sue because they are upset over seeing or not seeing swamps or wildlife, but not over seeing or not seeing a conspicuous monument.

[Nisiiko]

And they can sue because they’re offended by a cross in a park.

[Toranth]

so complex that the three-judge panel generated four different opinions.

Opinion by Judge Graber;
Concurrence by Judge Graber;
Concurrence by Judge Collins;
Partial Concurrence and Partial Dissent by
Judge Choe-Groves

Guys, gals, come on.

[ReaderY]

How can an agency of a federal territory get 11th amendment state immunity?

[tkamenick]

Because federal courts have read the 11th amendment to say something close to the opposite of what it actually says.

[MatthewSlyfield]

What the 11th actually says is that state A can’t be sued (in federal court) by citizens/residents of state B or citizens of a foreign nation. There is nothing in the text of the 11th that prevents the federal courts from hearing lawsuits against a state from their own citizens/residents.

[ReaderY]

On the Haitian asylum case, the 3rd Circuit refers to “constitutionally effective counsel” without citing any any authority at all for why the constitutiion should have anything to do with it. If you don’t have a right to a lawyer, you don’t have a right to an efffective lawyer. And aliens don’t have a constitutional right to have a hearing before the government makes a decision on whether to accept them into this country or deport them, let alone a right to have any counsel at all present at such a hearing, let alone a right to have effective counsel.

[Nisiiko]

The only thing Haitians should have a right to is to be thrown back into the Caribbean to drown.

[ReaderY]

Well, if there had been any doubt that the consequences of nonexistence of constitutional rights can potentially be serious, just look at Roe v. Wade.

[Davedave]

“aliens don’t have a constitutional right to have a hearing”

No, they have that right from the international laws the US has signed up to which supersede the Constitution in this regard.

[Michael P]

How so? Article III courts have jurisdiction as defined by Congress, and treaties supercede statutes like those passed by Congress, so self-executing treaties could grant jurisdiction over immigration cases.

[GKHoffman]

Even a treaty can’t supersede the Constitution. And I doubt the international laws you’re referring to rise to the level of a treaty.

[ReaderY]

They might have a right by treaty. But the 3rd Circuit didn’t refer to one. It accepted and resolved a constitutional claim withought questioning whether a right to make such a claim exists, let alone whether the claimant might have an alternative basis for the claim.

[Rev. Arthur L. Kirkland]

One of these summaries surprised me; I recall working on the events underlying the case as a journalist.

[Commenter_XY]

Which one, Arthur? What was it like working the story?

[Rev. Arthur L. Kirkland]

Same as most stories back then (pre-intertubes). Many telephone calls, maybe a trip to an incident scene or police station or morgue, then providing information to the rewrite desk or perhaps writing the story with input from colleagues. Lots of time trying to determine what was happening, then some time writing or editing a story. Then checking the published story for errors or weaknesses.

That was work at the city desk.

For sports, much different. Covering a team meant getting to know the team and the people (players, coaches, administrators or owners, even regular opponents) and settling into a predictable rhythm centered on the team’s schedule. Pregame story, game story or sidebar, feature stories, with the occasional special development (injury, trade, recruit, etc.). Instead of a different story nearly every day (if not more frequently), you covered a situation in depth. Much more role for opinion in the writing. Plus great seats, free food, prepackaged quotes if you wanted them. And the travel was great. In those days, not every town had the same stripmalled blandness and food. Many towns were distinctive. Cincinnati, Skyline chili. Philadelphia, cheesesteaks. San Francisco, seafood. New Orleans, barbecue shrimp and gumbo. North Carolina, vinegar barbecue. Texas, no-sauce barbecue. Kansas City, tomato barbecue. Chicago, deep dish pizza. Detroit, thick and square pizza. New York, deli or slices.
Syracuse, rubbery turkey croquettes at a Howard Johnson.

Also, as a sportswriter, I never had to pay for a drink. If the bar wouldn’t comp you, the customers would.

[Nisiiko]

Why am I not surprised that a self-avowed leftist is also a mooch?

[Ed Grinberg]

One of these summaries surprised me; I recall working on the events underlying the case as a journalist.

Why am I not surprised that an open bigot is a (former?) journalist.

[Nisiiko]

LOL

[Noscitur a sociis]

First Circuit: Those generic “community characteristics” cannot be the exclusive basis for varying upwards from the guidelines.

This is some of the worst writing I can remember seeing in a circuit court opinion.

[ReaderY]

I think the 5th circuit got the case involving two woman both claiming to be the common-law wife entitled to wrongful death proceeds completely wrong.

1. The underlying dispute is more or less in the nature of an interpleader dispute. Default by the original defendants ends dispute over their liability. But the two plaintiffs hotly contest who is entitled to the proceeds of the default, and their dispute is a live one not propwrly susceptible to default judgment.

2. The underlying facts are hotly contested. While the record contains substantive evidence that the deceased and the first putative wife held themselves out to the community as husband and wife, it also contains substantive evidence that they didn’t, including an obituary notice for the deceased’s father describing putstive wife 1 as the son’s “fiancee” rather than wife, but other evidence as well. If the 2nd putative wife’s view of the evidence prevails, the first putative wife did not establish a Texas common law marriage with the deceased and hence the second putative wife’s common law marriage was valid, and she gets tbe proceeds.

3. These disputed facts make judgment on the pleadings completely inappropriate. And there is no default here on the dispute between tbe two putative wives. Both parties pleaded and showed up in court. Both are entitled to be heard, The record suggests a factual dispute requiring a trier of fact to resolve.

4. This is not an interpleader case, as the defendants defaulted before one could be set up. It is not clear if federal courts have jurisdiction over this intrastate domestic dispute between two putative wives.

5. Accordingly, the court of appeals should have reversed the default judgment. Judgment cannot be rendered until lhe dispute between the 2 putative wives is resolved and the real legal life determined. It should have determined whether federal courts retain juirisdiction over the dispute or it must be resolved by state courts. It should have remanded to district court to hold the case in abeyance until the dispute is resolved, and given the second wife leave to pursue the dispute with the first wife in the appropriate court.

6. I would have included three additional things in the opinion, all of which I think are very important to the proper role of the juddiciary.

a. I would have expressed sympathy to both women. Both women lost a man they thought was their husband. Both women face the prospect of a court decision which will cause one of them great further pain not merely by denying the insurance proceeds, but much more importantly by denying the legitimacy of their entirely relationship history, and with it the support of society as a whole in bearing their pain and their loss. It will leave one of them bereft and alone. In a society that values marriage, this is a great loss, causing suffering whose emotional pain ought to be acknowledged.

b. I would have suggested that the parties consider settling their dispute. Settling would enable both parties to proceed directly with the default judgment, and proceeds coild be divided as the parties agree. In addition to not dissipating the limited proceeds on more attorneys fees and taking yet more tome, it might be best for the emotional well being of both parties not to have lawyers and a court rake over both parties’ relationship with this man looking for flaws.

c. I would express judicial humility. In the biblical story, Solomon resolved a dispute between two putative mothers in an innovative way that all parties could accept and see as just. But the law prevents modern courts from devising such free-wheeling solutions to life’s problems. This can limit their ability to do justice in a way all parties can accept. Resolving the matter through the courts will likely require one of these women to lose everything, including ties to a man she had thought of as her husband, for reasoms she might have good reason to think unfair. This limitation is a necessary result of courts’ limited role in the society and their duty to follow law set down by others, even when it does not perfectly foresee every possible case.