Short Circuit: A Roundup of Recent Federal Court Decisions

Vaccinated jurors, a parking monopoly, and plant-based meat.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

The Fifth Amendment requires just compensation when the government takes property, and, for all of recorded human history that matters, this requirement has always been "self-executing." Meaning Congress doesn't need to pass a law saying the Fifth Amendment requires just compensation. But the Fifth Circuit recently held otherwise. Click here to read all about it in the Washington Examiner. Or click here for IJ's cert petition. Or perhaps click here for a podcast about the case.

• Jan. 6 rioters challenge their indictment for violating 18 U.S.C. § 1512(c)(2), which makes it a crime to "corruptly . . . obstruct[], influence[], or impede[] any official proceeding." The district court tosses the indictment, reasoning that 18 U.S.C. § 1512(c)(1) is all about destroying evidence, so (c)(2) can't extend to hitting Capitol police officers. D.C. Circuit: Yes it can. Concurrence: It can, but only if we adopt a narrow interpretation of "corruptly"; otherwise, the law is breathtakingly broad. Dissent: "The conduct alleged here violates many criminal statutes, but section 1512(c) is not among them."
• In September 2002, Yemeni man suspected of assisting al Qaeda "traveled to Cairo, Egypt on business and disappeared. He arrived at United States Naval Station Guantanamo Bay two years later." He tries to file a writ of habeas corpus. Gov't: Habeas isn't a thing if you're at Guantanamo Bay. Supreme Court (in a different detainee's case, 2008): Oh yes it is. District court (2008-2019): You lose anyway. Man: That took kind of a long time. Along the way a bunch of stuff violated due process. D.C. Circuit (en banc): We're not saying you even get due process, but even if you do everything's still cool. You might have this one statutory argument on remand, though. Dissents: Due process isn't a thing if you're at Guantanamo Bay.
• To comport with the Appointments Clause, administrative law judges must be appointed by the head of an agency instead of staff. Acting commissioners count as heads of agencies, provided that they serve no more than 210 days or while a new commissioner's nomination is pending in the Senate. Fourth Circuit (aligning with the Eighth Circuit): That "or" is pretty important. Just as a waiter offering "coffee or dessert" means that a patron could have both, an acting commissioner may serve under the time limitation, while a nomination pends, or both.
• A couple facing trial for drug-related crimes in the fall of 2021 were not vaccinated against COVID-19 due to their sincerely held beliefs. The court struck all unvaccinated prospective jurors. Did that violate the Sixth Amendment's requirement that a jury be composed of a fair cross section of the community? Fourth Circuit: It did not.
• Fifth Circuit: The good news for the plaintiffs is that they have standing because, on one reading of this statute, it outlaws their speech. The bad news is that their First Amendment challenge fails on the merits because, on a totally different reading of this statute, it doesn't outlaw their speech.
• Pseudonymous plaintiffs challenge Mississippi's "Unnatural Intercourse Act" which makes illegal, well, pretty much any sexual act not strictly involving genitalia. They're forced to register as sex offenders even though Lawrence v. Texas (2003) is a thing. But the state agrees to settle, so the district court doesn't rule on the statute's constitutionality. Plaintiffs: Hurray! Let's now move for attorney's fees. State: But not that much, and it was total overkill to use out-of-state counsel. District court: Plaintiffs get most of what they asked for. Fifth Circuit: Affirmed, do you have any idea how hard it is to find lawyers for sex offenders in Mississippi? Plus, even though the issue isn't before us, we'll say in a footnote that the statute is unconstitutional.
• The Fifth Circuit's order partially staying a district court's order forbidding the sale of mifepristone will surely come in for withering criticism, but your editors choose to focus on one unambiguously praiseworthy sentence: "If that's confusing, we hope this chart helps[.]" (Editors' note: It was, and it did.)
• Brownsburg, Ind. high school orchestra instructor believes his faith prohibits him from calling transgender students by their newly adopted names or preferred pronouns. He reaches an accommodation with the school, allowing him to call all students by their last name, but following complaints the school revokes the accommodation. Given the choice to use students' preferred names/pronouns, resign, or be fired, the teacher resigns and sues the school for failure to accommodate his sincerely held religious beliefs. Seventh Circuit: Allowing the teacher to continue using students' last names only would impose an undue burden on the school, because the practice upset so many people. Dissent: If that's grounds for denying an accommodation, it's not clear what Title VII does. In any event, this is a factually contested case that should go to a jury.
• When Chicago officials found themselves $150 mil short of cash during the recession of 2008, it brokered a deal that granted a private company the right to operate and collect revenue from the city's 36k metered parking spaces for 75 years in exchange for more than a billion dollars. Parking rates soon doubled and Chicago now has the most expensive street parking in the country. An antitrust violation? Seventh Circuit: If there's a monopoly here, it's the city's, whose ongoing supervision of the private company overseeing its parking spaces creates state-action immunity from antitrust lawsuits.
• Disabilities prevent a Dubuque, Iowa tenant from working full-time. Her landlord refuses to accept housing vouchers. Is the landlord illegally discriminating against her because of a handicap? Eighth Circuit: No. The landlord must provide reasonable accommodations, such as providing a preferred parking space for a tenant with difficulty walking, but that doesn't encompass an obligation to accommodate a tenant's shortage of money.
• One power of a magistrate judge is to conduct an evidentiary hearing and submit to an Article III judge a recommendation on how to rule on a motion to suppress. If a party disagrees with the magistrate's proposal, the district court judge is to conduct de novo review. Does 4½ pages of boilerplate repeated in dozens of cases count as de novo review? Ninth Circuit: Sure does. Dissent: The only part of the order relating to the defendant here are the names of the magistrate, the party, and the docket number. It's a rubberstamp, which creates constitutional problems. (Unfortunately for the defendant, the Ninth Circuit also affirmed his conviction for transporting noncitizens.)
• Honk if you think the First Amendment protects the right to honk your car horn as a form of political expression! Ninth Circuit (over a dissent):
• Oklahoma prison classifies inmate as a member or associate of the Sureños prison gang, which has primarily Hispanic membership. As a result, he's placed with the gang in administrative segregation. Inmate: My name is Ong and I am a member of the Hmong people of Southeast Asia. Can I be moved back to my normal cell, because these people are trying to stab me? Prison: For now you stay, because we found your name on a list of gang associates that we will not show you. Tenth Circuit (unpublished): Prison sucks, man. What do you want us to do about it?
• Oklahoma prison employee raises concerns with prison director that the deputy director is abusing inmates; director doesn't want to hear about it. When the abuse continues—including a prisoner being handcuffed in a "crucifixion-type pose" for no apparent reason—the employee takes her concerns to the Oklahoma State Bureau of Investigation. Following an investigation, the deputy director is fired. Two months later, the whistleblowing employee is fired. She sues, alleging unconstitutional retaliation for her exercise of her First Amendment rights. Trial court: The First Amendment doesn't apply to gov't employee speech that is part of their official duties. Because reports of misconduct were part of the employee's job as a compliance officer, she has no claim. Tenth Circuit (unpublished): Actually, her boss told her to stop working on all compliance issues after she discovered the deputy director's non-compliance. The First Amendment applies and the case moves forward.
• Impoverished Oklahomans sue to challenge ruthless (and allegedly unconstitutional) scheme to collect "court debts." District court: A hat trick, friends! Your case is dismissed under Rooker-Feldman and Younger *and* Heck v. Humphrey. Tenth Circuit: Everything the district court said was wrong. The case may proceed. (Appetite whetted? Read the amicus brief IJ filed in support of the plaintiffs.)
• In this corner, it's the lean, mean, the-text-the-whole-text-and-nothing-but-the-text, old-school pugilist Saaaaaaamuel Williston; and in the other corner, it's the wily, anything-goes, fight-with-whatever-extrinsic-evidence-ya-got brawler Arrrrrrrrrrrthur Corbin! If that lede didn't excite you, you may disagree with the Eleventh Circuit that this insurance case is "(as it turns out) interesting." But if it did, you'll enjoy knowing that Williston wins by knockout (at least for insurance contracts in Florida).
• Unnamed class member in a multimillion-dollar class action suit regarding the defendants' "brain performance supplements" appeals settlement approved by the lower court on the basis that its value was falsely inflated so the attorneys could get more fees. Eleventh Circuit: Careful what you wish for; there are bigger issues here—the named representatives don't even have standing for the injunctive relief they asked for in the settlement. Poof goes the settlement and back to the drawing board go the parties.
• In today's rendition of hot-button suit plays standing-ripeness-mootness roulette, it's [pause for wheel spin] a win for the house. (Eleventh Circuit: No standing for immigrants' rights nonprofits to challenge Florida law requiring that local law enforcement help implement federal immigration laws because the alleged harms are too speculative, and they sued the wrong officials.)

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Comments

[John F. Carr]

I was hoping that Ong's case would end up as a heartwarming odd couple story, like the grandma who accidentally invited a black boy to Thanksgiving.

[Gandydancer]

Seems more likely to end up with Ong having a shiv stuck in him. But apparently it hasn't happened yet, so so far no harm no foul.

[SomeGuy 2]

For all we know, he really is a member of the gang and just suing to get out to general where he can serve the gang's interests more effectively.

Regardless it's been almost three years and he's fine. He should indeed come back to the court if he gets stabbed. Until then, he can quit his belly-achin'.

[Gandydancer]

What do you imagine his recourse will be after he's stabbed?

Particularly if he's dead.

As to the "for all we know" bit, the real world is not like TV where all the gangs are multi-racial because, hey, we wouldn't want to notice hate facts like that the Sureños are all Mexicans or a generation or so removed from being Mexicans.

[SomeGuy 2]

“What do you imagine his recourse will be after he’s stabbed?”

He (or his estate) can sue the stabber for damages and the stabber can also be subject to criminal penalties. Sounds like his problem, not ours. However, I delight in generosity; most prison systems offer the option to voluntarily check into solitary confinement and think we should extend that offer to him. If he wants to spend the rest of his life in solitary confinement instead of in the gang unit, then he should be allowed to do so.

The gangs might be mostly racial but also recruit auxiliary members of other races precisely to throw us off the trail. They’re savvy operators, so I wouldn’t discount the possibility that the plaintiff is in the gang and just litigating to get in genpop and serve the gang from there.

[Gandydancer]

Yeah, I'm sure the stabber's trust fund will cover any award of damages.

Whatever branch or branches of the Sureños are involved i, I doubt if they need to get this guy into "genpop" (is that supposed to be argot?) to have any influence in "genpop" that they want.

[SomeGuy 2]

The stabbing is itself speculative, as is any means of recovery for any civil injury. Rather than grant relief based on speculation, the courts are properly waiting until there's a live issue to adjudicate. In principle, anybody in the country could be stabbed, of course that doesn't mean they can run to the court asking for relief now.

I was under the impression genpop was still used to refer to the general prison population. If that's no longer accurate, then update accordingly. Regardless, though, there's no reason to send another agent into the gang into whatever you wish to call that population. If he is a member of the gang, then he can enjoy his accommodations with his fellow gangsters; if he doesn't like that or he's been a mistake then he should be able to opt for solitary confinement. Either way, problem solved.

[Gandydancer]

I am unaware that he has been given the option of solitary confinement. Can you document this claim?

The claim that not being of the Sureños ethny generally makes one at greater risk if confined with them is a factual assertion subject to proof, not a mere speculation.

[John F. Carr]

In the vaccination case, the court suggests the defendants failed to properly recite the one true name of their cause of action. They said "Sixth Amendment" when they should have said "Batson". We can't right a wrong if you call it by the wrong name.

[Gandydancer]

I haven't read the opinion, but that doesn't make sense. Batson WAS a 6thA challenge, wasn't it?

But I suppose being black makes you more of a Special Class of Persons than being vaccination-skeptic.

[Gandydancer]

Sure enough: “Construing the defendants’ argument as raising a Batson3 challenge, the court found that “being vaccinated is not a protected class.”

The idea that whether or not you are entitled to a jury of your peers only along the dimension of whether they are your peers in the sense that you are both Special Persons is of course as obnoxious as hell. Systematically excluding jurors who are skeptical of government dogma (whether COVID panic or a prosecutor’s claims) certainly seems to me like a thumb on the scale in favor of a guilty verdict.

[David Nieporent]

Systematically excluding jurors who are skeptical of government dogma (whether COVID panic or a prosecutor’s claims) certainly seems to me like a thumb on the scale in favor of a guilty verdict.

I've got some bad news for you about 'death qualified' juries.

[Gandydancer]

I already know about that. Where did I say that excluding jurors opposed to the death penalty was OK? (I'm undecided, and maybe would distinguish guilt/innocence from penalty, but... Here there is no clear conflict between declared position and performing the intended task. Disinclination to take a prosecutor as a compelling authority is quite different. )

[hoppy025]

Batson was wrongly decided. Peremptory challenges should mean what they say, "any reason."

[Noscitur a sociis]

No, the court notes that the defendants expressly disclaimed that they were relying on a Bateson theory.

[Gandydancer]

As with many things judges "note", that sounds to me like tendentious nonsense. What the defense attorney probably did was say his theory of why the jury selection interference by the judge was a sixth Amendment violation was not on the grounds described BY THE JUDGE as constituting proper grounds for a "Bateson challenge", e.g. the crap about "historically excluded groups".

[Krayt]

When Chicago officials found themselves $150 mil short of cash during the recession of 2008, it brokered a deal that granted a private company the right to operate and collect revenue from the city’s 36k metered parking spaces for 75 years in exchange for more than a billion dollars. Parking rates soon doubled and Chicago now has the most expensive street parking in the country. An antitrust violation? Seventh Circuit: If there’s a monopoly here, it’s the city’s, whose ongoing supervision of the private company overseeing its parking spaces creates state-action immunity from antitrust lawsuits.

Corruption needs re-election, and that means selling off a century of steady income in exchange for a wad you can spend in one one hundredth of a century, rather than risk a touch of belt tightening.

Turnpikes, prisons, mineral rights, and now parking meters (!!!)

Getting your money’s worth from the corruptions?

“I have a structured settlement century of steady income, and I need cash now!"

"If you're a corrupt politician and terrified of the gravy train ending at the next election because your mismanagement requires belt tightening, call one of our specialists who will help you consume that century's worth of steady income now! To hell with future citizens, to say nothing of future corrupt politicians not yet born!"

[Bob from Ohio]

Don't forget the bribes they also got.

[Rev. Arthur L. Kirkland]

By all means, we should not forget, especially when the ethically inadequate violate federal law to try to conceal the "gifts."

Carry on, clingers. And by all means keep leading with your chins . . . it makes everything easier for your betters.

[Gandydancer]

“Texas billionaire Harlan Crow bought property from Clarence Thomas. The justice didn’t disclose the deal. The transaction is the first known instance of money flowing from Crow to the Supreme Court justice. The sale netted the GOP megadonor two vacant lots and the house where Thomas’ mother was living.”

This is a lie, of course. Or illiteracy. The “money flow” NETTED Crowe two lots and a house LESS the price he paid, and if it was inexplicably net positive than Thomas was bribing HIM, eh?

The supposed violation of federal law was what? Other than in your imagination was there a line on the Judge Disclosure form where capital gains and losses are supposed to be reported?

Thomas presumably reported it to the IRS, just not to you.

And, while where at it, does Tony Rezko ring a bell? Where’s your whining about Obama’s sweet deal and was it more or less sweet than Thomas’?

[Rev. Arthur L. Kirkland]

Are you familiar with the Ethics In Government Act (1978)?

Are you a lawyer?

Do you have any advanced degree? A college degree? High school diploma?

Backwater religious schooling does not count.

(If you are unfamiliar with that law, Clarence Thomas apparently tries to claim to be similarly uninformed.)

[Gandydancer]

On the internet any dog can pretend to be a Nobel Prize winner… and YOU can claim to be a disgrace to whatever law school you want to claim to be a disgrace to. But, typically, in the process of vomiting up your slurs you haven’t identified any provision of the Ethics In Government Act that Thomas is supposed to have violated or how he is supposed to have done so so a law degree would anyway be entirely irrelevant to evaluating the crap you say. ANYone can see that you are simply full of shit.

[Rev. Arthur L. Kirkland]

Enjoy these sources, you bigoted, worthless, ignorant wingnut, as you continue to comply with the preferences of your betters:

Senate letter

A mainstream journalist's analysis

You could ask someone with an ethical compass and an education to try to explain this for you. Even if you need to drive through three or four towns to find such a person in your deplorable backwaters, it could be worth the effort.

Do you genuinely believe bigotry, superstition, and ignorance are going to get conservatives anywhere in modern, improving America?

[Dr. Ed 2]

"Do you genuinely believe bigotry, superstition, and ignorance are going to get conservatives anywhere in modern, improving America?"

"Some fear the Biden administration is losing control of our southern border; losing control of our decaying, crime-infested big cities; creating a recession; vilifying and needlessly destroying the fossil fuel industry while pushing suspect and subsidized “green” energy alternatives; leaving tens of billions of dollars in military equipment in Afghanistan while withdrawing our troops and abandoning an ally; stepping closer to a trip-wire in the Ukraine war, which could trigger a nuclear strike; turning on Israel over ideological issues as Turkey and others call on Arab and Muslim nations to unite and crush the Jewish State; weakening our military with one “woke” edict after another; focusing on “trans” issues at the expense of failing transportation infrastructure; cheerleading the social justice warrior takeover of our colleges and universities; and weakening the dollar (the currency much of the world depends upon)."
https://thehill.com/opinion/white-house/3950467-is-there-a-worldwide-run-on-the-bank-of-the-united-states-of-america/

Yes Kirkland, The Hill...

[Gandydancer]

A Bushie in The Hill.

But, yeah, the idea that we live in a "modern, improving America" would be funny if it weren't so ridiculously out of touch.

[David Nieporent]

But, typically, in the process of vomiting up your slurs you haven’t identified any provision of the Ethics In Government Act that Thomas is supposed to have violated or how he is supposed to have done so so a law degree would anyway be entirely irrelevant to evaluating the crap you say.

5 U.S.C. § 13104(a)(1)(B) and (a)(5)(A), you sad person who likes to pretend to engage in legal analysis but is incompetent at it.

[GKHoffman]

Supreme Court to Congress: You're not the boss of me!

[David Nieporent]

Other than in your imagination was there a line on the Judge Disclosure form where capital gains and losses are supposed to be reported?

Well, yes, there is. And, indeed, all real estate transactions other than one's own personal residence must be reported if the value is over $1,000. If you're so ignorant that you don't even know the most basic background facts, you probably should sit this one out.

[Gandydancer]

"(B) Dividends, rents, interest, and capital gains.-The source and type of income which consists of dividends, rents, interest, and capital gains, received during the preceding calendar year which exceeds $200 in amount or value, and an indication of which of the following categories the amount or value of such item of income is within-
(i) not more than $1,000;
(ii) greater than $1,000 but not more than $2,500;
...

You can't even read this well enough to realize that the "basic fact" that the lower limit for reporting is $200, and that the mention of $1000 is the upper limit of the first of a number of ranges rather than the triggering amount?

[David Nieporent]

You are fucking incompetent. I cited two provisions of the statute. Can you count to two?

[Magister]

Same thing was done with tobacco settlements in some states.

[bernard11]

That was a catastrophically stupid deal.

According to a href="https://chicago.suntimes.com/city-hall/2022/5/26/23143356/chicago-parking-meters-75-year-lease-daley-city-council-audit-skyway-loop-garages-krislov">this the company that leased the meters is already ahead on its investment, with 61 years to go.

It shows Chicago parking meter revenues nearly back to pre-pandemic levels. After dipping to $91.6 million in 2020, they climbed to $136.2 million last year.

A 75-year revenue stream of $100M/yr produces a 10% return on a $1B investment.

[Gandydancer]

Given the risk of government claw-back in a way that a private party couldn't I'm not sure that 10% is enough.

Cut to the chase: Is there any limit on what can be charged?

[Dr. Ed 2]

Is there anything preventing the city from taxing those profits?

[Gandydancer]

Haven't read this, but it exists: https://www.chicago.gov/city/en/depts/fin/provdrs/tax_division/svcs/pay_and_file_yourtaxesonline.html

The risk of a targeted increase is anyway precisely why any company dealing with the city of Chicago ought demand a higher capital return than otherwise.

[hoppy025]

Of course it was. It was agreed to by Democrats in Chicago, which means they were elected by white Catholics and blacks.

Put white Protestants in charge, and you get good governance.

[Gandydancer]

As indeed you got from George Bush (not Catholic).

/s

[hoppy025]

Better than what we got from Diaper Boy Biden

[Gandydancer]

A low bar for comparison doesn't mean that you got "good governance".

[kotodama]

So now libertarians are against privatization? When did that happen?

[Gandydancer]

Actual libertarians needn’t favor corrupt crony capitalism.

[Rev. Arthur L. Kirkland]

What about "often libertarians," or the "libertarianish," or the faux libertarians who operate this blog?

[Gandydancer]

They are not required for consistency to favor corrupt crony capitalism either.

But to retain a consistent level of stupidity you would certainly have to,

[bernard11]

I'm not a libertarian, and I'm neither for nor against privatization.

I am against stupid wasteful deals.

[hoppy025]

You're an idiot.

[John F. Carr]

Sheriff can be a good racket. After the Boston Globe reported on abusive debt collection practices by Massachusetts sheriffs the legislature forbade seizing the poorest debtors' cars. The car has to be worth $7,500 before it can be taken to pay a debt.

[Rev. Arthur L. Kirkland]

A Jan. 6 defendant today was ordered to spend seven and one-half years in federal prison for his un-American, criminal conduct.

Let's hope every day behind bars is a rough one for that loser.

[Dr. Ed 2]

"Let’s hope every day behind bars is a rough one for that loser."

And when he comes out in 6 1/3 years, let's hope he shows up on your doorstep...

Sentenced to at least twice what anyone otherwise would be for a similar crime, he's going to come out prison as a very dangerous man with nothing to loose. Another Timothy McVey, but only with *years* of rage built up inside him. And he's going to looking for revenge.

[Nige]

Against who? His lawyer? Trump?

[Krayt]

Honk if you think the First Amendment protects the right to honk your car horn as a form of political expression! Ninth Circuit (over a dissent):

Clever

[Gandydancer]

Honk if you think there's probably content-motivated enforcement.

[Dr. Ed 2]

" The landlord must provide reasonable accommodations, such as providing a preferred parking space for a tenant with difficulty walking, but that doesn't encompass an obligation to accommodate a tenant's shortage of money."

The tenant isn't short of money -- the voucher *is* money.

Massachusetts law -- I forget how -- has a expensive cost to the landlord for doing this.

[David Nieporent]

No; the voucher is a way of obtaining money. It is not money.

[Dr. Ed 2]

Yes and no -- and it may vary by state, but in MA it is "housing discrimination" not to accept a Sect 8 Voucher. See: https://www.mass.gov/service-details/overview-of-fair-housing-law

However, I think that the judge who wrote the concurring opinion got it right -- the tenant owned the home and was merely renting the land underneath it. HUD's HQS are all about the home and not the land it is sitting on, hence the landlord could get stuck with no payment for defects that it had no control over.

And the more I think about it, HUD should never have allowed vouchers to be issued to people who already own a home -- that's gotta be a violation of the regs!