The Volokh Conspiracy

From Betzko v. Mick, decided March 28 by the Ohio Court of Appeals (Judge Robin Piper joined by Judge Robert Hendrickson):

Appellant, Clair [Buch] Betzko … [sued] Charles Mick, Karen Francis, and Teresa Bayer. Betzko is the former mayor of the village of New Holland…. Francis and Bayer had … frequently posted to social media and were administrators of a Facebook group page which was often critical on a variety of issues including public officials and the local government. Bayer also erected signs in her yard that stated, "STOP THE CORRUPTION" and "MAKE NH GREAT AGAIN DRAIN THE SWAMP STOP THE CORRUPTION." In addition, the defendants participated in exchanges with an individual named Derek Myers. Myers is a freelance news reporter who published an electronic forum called The Advocate. Myers was behind several critical social media posts alleging public corruption and publishing unflattering articles in The Advocate.

Francis and Bayer became concerned that certain public officials and law enforcement officers had been stalking and harassing them due to their public commentaries. They made complaints and sent letters to various agencies, including then-Attorney General Mike DeWine. The letter to Attorney General DeWine provided a list of general concerns in a variety of areas, such as the possibility of abuse of power, speed traps, nepotism, inflated charges on water and sewer, intimidation, and harassment. The record does not reveal that any action or response was made in regard to the letter.

In 2018, Mick was hired as a village police officer under the supervision of Chief Jason Lawless. Soon after starting with the department, Mick met with Francis and Bayer in a park outside the village to "talk in general about the police force." Francis and Bayer expressed their concerns with Betzko's leadership of the village. Francis and Bayer also told Mick they suspected members of the police department were stalking and harassing them.

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

Friends, come and see us at UCLA on Thursday, June 30th, for a very special event—a live recording of the Short Circuit podcast preceded by the unveiling of an interactive new study that identifies clearly established constitutional law sufficient to overcome qualified immunity in each federal circuit. The study also catalogues and grades state-law immunity doctrines, giving a fuller picture of each state and circuit's civil rights ecosystem. RSVP today.

• D.C. gov't worker alleges her numerous transfer requests were denied on the basis of sex—similarly situated male employees had their requests granted. D.C. Circuit (sitting en banc, with dissents): That is indeed something Title VII forbids, and we overrule our precedent saying plaintiffs also have to show they suffered "objectively tangible harm," a high bar that does not appear in the statute.
• Juror 103: I work at a state hospital and I'm concerned that, if I vote guilty, I'll get blowback at work from patients who are inmates. Prosecutor: We want to strike Black Juror 103 because, being Black, he is concerned that if he holds the Black defendant guilty, he'll get blowback at work. R.I. Supreme Court: Sounds race-neutral to us. First Circuit: But not to us. Retry the defendant within 90 days or let him go.
• In the wake of the public outcry following the death of George Floyd, Connecticut legislators nullify provision of collective bargaining agreement that shielded state police officers' disciplinary files from public disclosure. (The agreement expires this month.) A Contracts Clause violation? Second Circuit: States can impair contracts so long as it's in the public interest, which this is. Denial of preliminary injunction affirmed.
• Visually impaired plaintiffs in New York file hundreds of substantively identical lawsuits, alleging that merchants' gift cards violate the ADA because it's impossible to distinguish the cards by touch. But they seem to be playing fast and loose with their allegations, which sometimes refer to nonexistent stores or claim they want to go to Banana Republic for its food. Second Circuit: These allegations are so implausible that the plaintiffs lack standing. Concurrence: Of course they have standing (they just lose on the merits).
• New York restaurant worker sues her former employer. "Not so fast," says the employer, "You signed an arbitration agreement." "I absolutely did not," avers the worker. District Court: That's just a self-serving denial, not evidence. Second Circuit: Ahem. It's a SWORN self-serving denial, which is enough to raise a dispute over whether the worker actually signed the arbitration agreement.
• Allegation: Cornell physics professor is up for tenure when an aggrieved former student accuses him of rape years earlier. He's subject to an investigation in which he is not fully informed of the allegations against him and the university refuses to interview witnesses he identifies. He is denied tenure. He successfully appeals the denial, but the dean overrides the appeal. A professor involved with the tenure review later tells him that "the faculty had considered [the] accusations to have been false and malicious, but also said that the faculty would take no action, saying, 'Can you imagine what would happen if we took action against a blonde, female student? Twitter would explode and the entire department would be labeled bullies. We don't want that.'" Second Circuit: We hold that Title IX allows faculty members to bring allegations of gender discrimination, and these allegations are more than sufficient.
• Pennsylvania will count your mail-in ballot if you write the wrong date on the envelope, but not if you write the date in the wrong place (or forget to write it at all). Third Circuit: Which is exactly the sort of picayune nonsense prohibited under the Materiality Provision of the Civil Rights Act.
• Philly cop pulls over black man riding a dirt bike, shoots and kills him as he runs away. The cop is charged with third-degree murder (charges remain pending). One of the investigating cops believes the charges to be unfounded and that prosecutors knowingly lied to the grand jury to get the indictment. Allegation: After finding out that the investigating cop wanted to expose her wrongdoing, one of the prosecutors retaliated by filing baseless criminal charges against him. Third Circuit (2020): Some of his claims may proceed. Third Circuit (2022): As we said, some of his claims may proceed. Prosecutorial immunity doesn't protect the prosecutor from all of his claims.
• The Supreme Court has pretty clearly said that states can't discriminate against interstate commerce—except, maybe, sometimes, if they're regulating alcohol. Fourth Circuit (over a dissent): And this North Carolina law barring out-of-state retailers from shipping wine directly to consumers is maybe one of those times!
• In 2018, a state trial court ordered New Orleans to repay traffic fines it had illegally imposed. And so New Orleans . . . doesn't? It just doesn't pay. Which stinks, says the Fifth Circuit, but not everything that stinks violates the Takings Clause.
• Jasper, Tex. police arrested known drug user (who maybe ingested a baggie of drugs on his way to the jail) for public intoxication. Over the next 34 hours, his condition worsened; he vomits black liquid at least 3 times, cries out to officers at least 62 times, and moans in agony at least 70 times. Said one non-defendant officer: "I should have looked, but, you know, oh well." Fifth Circuit: "[W]hether the officers refused [the detainee's] requests, or merely disregarded them," they violated his rights. No qualified immunity.
• The Tennessee Legislature does not like preachers ordained over the internet officiating weddings, so much so that in 2019 they amended the law to make it a felony punishable by up to six years in prison for an internet preacher to sign a marriage license knowing they were ineligible to do so. The Universal Life Church Monastery and several of its ministers sue. Sixth Circuit: And they have standing to sue at least a few of the defendants, so the case can go forward.
• In 2013, Kansas City, Mo. officer shoots, kills man suspected of cell phone theft (wrongfully it turns out). Police dept. to public: It was an armed standoff! The officer heroically saved fellow officers' lives! Officer's statement to police dept. right after the shooting: So, he wasn't necessarily armed when I shot him, but I saw him with a gun moments earlier, and he ignored my orders to show his hands. Other officer on scene: He did not have a gun; he was complying with my orders; and I didn't hear the first officer give any orders. Third officer: I didn't see a gun either. Other witnesses: We didn't see a gun. Man's friend: The gun that the first officer says he saw was in fact in my car the whole evening; the deceased did not possess it at any point. Eighth Circuit: Assuming disputed facts in plaintiff's favor, as we must at this stage of the case, qualified immunity for the first officer.
• In 2013, a U.S. citizen of Eritrean descent files a lawsuit challenging his inclusion on the No Fly List, which he claims occurred after he refused to act as a confidential informant to the FBI. Three years into the litigation, the gov't informs the court he's been removed from the list and moves to dismiss for mootness. Ninth Circuit (2018): That's voluntary cessation; the case remains live. Feds: But we removed him from the list. Ninth Circuit: (2022): That's. Voluntary. Cessation.
• Denver man sentenced to 48 years for a brutal rape and assault, after the victim identified him following a medicated dream in which she relived the attack. More than 20 years later, another man admits to having sex with the woman and beating her. The convicted man gets a new trial and is acquitted—exonerating him after 28 years in prison. (He gets $2 mil for the years he spent wrongfully locked up.) He sues, alleging a multitude of claims including malicious prosecution, destruction of good evidence, and creation of bad evidence. Tenth Circuit: No constitutional violations here.
• And in en banc news, the Sixth Circuit will not reconsider its recent precedent putting it on the side of a 4–4 circuit split that makes it somewhat less difficult for pretrial detainees to sue corrections officials for deliberate indifference—here a guard who allegedly turned a blind eye to plaintiff being labeled a snitch and beaten by other detainees. Dissentaling, Judge Bush asks the Supreme Court to step in.
• After Fort Worth, Tex. officer violently arrests family for "piss[ing him] off," internal affairs officers recommend the officer be fired because he "made a false arrest, he lied in his affidavit and used excessive force." Yikes! The IA officers are then put on detached duty and demoted; one is suspended for three days. (The offending officer was suspended for 10). Can they sue the city under Texas's Whistleblower Act? Texas Supreme Court: Nope. Their recommendations weren't a "report," so the Act doesn't apply. (Ed. note: As amicus, IJ is urging the Fifth Circuit to reconsider its grant of qualified immunity to the officer.)
• Charges against Alabama man accused of setting fire to his own property for the insurance payout are dropped after fire marshal admits the man did not actually confess, as the marshal had claimed. Can the man sue the marshal for malicious prosecution under state law? Alabama Supreme Court: Indeed! Since the suit is against the marshal in his personal rather than official capacity, sovereign immunity does not apply. (Click here for a discussion of the ruling, which, while heartening, probably doesn't help Alabama's grade of "F" for its immunity and accountability practices.)

In June 2020, René Quiñonez, an activist who owns a screen-printing company in Oakland, Calif., shipped a batch of boxes containing COVID-19 face masks with custom-print messages like "Stop Killing Black People" to customers around the country. But the masks did not arrive on time, and customers who put in their tracking number saw only this cryptic message: "Alert," "Seized by Law Enforcement." Which seriously hurt René's business when the word got out and lots of his partnerships dried up. Eventually, and only after his congresswoman got involved, USPS officials gave an explanation: The seizure wasn't because of the packages' political content, but because they looked like they might contain illegal drugs. Which doesn't make any sense because they were just plain brown boxes, no different from millions of other pieces of mail. So this week, René and IJ sued the USPS officials who seized and searched his mail without a warrant, probable cause, or reasonable suspicion. Click here to read more.

I am happy to announce that the latest article by Cassandra Burke Robertson and myself, "Integral Citizenship", is now out in the centennial volume of the Texas Law Review. It joins our previous publications on denaturalization and other forms of citizenship loss in the NYU Law Review (2019), Vanderbilt Law Review (2020), and North Carolina Law Review (2021). Here is the final version of the abstract:

Does the Constitution's promise of birthright citizenship to all born "in the United States" cover the United States Territories? Residents of the Territories have regularly sought judicial recognition of their equal birthright citizenship under the Fourteenth Amendment, most recently in some prominent cases reaching federal appellate courts. When rejecting these claims, the courts have been unable or unwilling to articulate a unified theory of citizenship. Most problematically, judicial decisions have continued relying on the Insular Cases, whose reasoning over a century ago was explicitly based on a policy of racial exclusion. 

We argue that the time has come for unambiguous judicial recognition that individuals born in the U.S. Territories form an integral part of the United States citizenry. This outcome is the only one that comports with both constitutional structure and historical practice. In analyzing why courts still deny claims for constitutional citizenship in the Territories, we explore the covert norms of belonging that shed light on the otherwise inexplicable logic of the courts' opinions. For example, there is no legal reason to treat the citizenship of those born in the U.S. Territories differently from that of those born in Washington, D.C. Nevertheless, an asymmetrical perception of belonging has flowed into the courts' construction of legal status, influencing whose citizenship is questioned and whose is assumed. 

Although some judges and government officials have recently put forth new arguments that citizenship recognition would risk interfering with indigenous rights and endangering cultural practices, we argue that the opposite is more likely to be true. Attempting to retrofit a doctrine built on the political and social exclusion of racial minorities cannot offer durable cultural protection. By contrast, a unified national civic identity that recognizes the Territories as a fundamental part of the American fabric is more likely to foster the political will to protect indigenous rights. Recognizing the Fourteenth Amendment's promise of integral citizenship ensures that anyone whose birth location entails allegiance to the United States—be it the U.S. Territories or Washington, D.C.—is equally American. 

From Judge Cabranes's concurrence yesterday in Vengalattore v. Cornell Univ.:

[A]s alleged, this case describes deeply troubling aspects of contemporary university procedures to adjudicate complaints under Title IX and other closely related statutes. In many instances, these procedures signal a retreat from the foundational principle of due process, the erosion of which has been accompanied—to no one's surprise—by a decline in modern universities' protection of the open inquiry and academic freedom that has accounted for the vitality and success of American higher education.

This growing "law" of university disciplinary procedures, often promulgated in response to the regulatory diktats of government, is controversial and thus far largely beyond the reach of the courts because of, among other things, the presumed absence of "state action" by so-called private universities. Thus insulated from review, it is no wonder that, in some cases, these procedures have been compared unfavorably to those of the infamous English Star Chamber.

Vengalattore's allegations, if supported by evidence, provide one such example of the brutish overreach of university administrators at the expense of due process and simple fairness. His allegations, if corroborated, would reveal a grotesque miscarriage of justice at Cornell University. As alleged, Cornell's investigation of Vengalattore denied him access to counsel; failed to provide him with a statement of the nature of the accusations against him; denied him the ability to question witnesses; drew adverse inferences from the absence of evidence; and failed to employ an appropriate burden of proof or standard of evidence. In other cases and other universities the catalogue of offenses can include continuing surveillance and the imposition of double jeopardy for long-ago grievances.

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From Vengalattore v. Cornell Univ., decided yesterday by the Second Circuit (Judge Amalya Kearse, joined by Judges José Cabranes and Rosemary Pooler):

Vengalattore is a male of Indian descent. He became a tenure-track Assistant Professor of Physics … in 2009…. One [of his laboratory assistants], a graduate student—called "Jane Roe" in this litigation—worked on a Vengalattore experiment from 2009 until late 2012. She, inter alia, struggled with her lab assignments and often took professional criticism personally; was somewhat unprofessional in her language and conduct; falsely accused others of breaking lab equipment; and objected to "work[ing] long hours" as she stated would be expected of "Indians." Roe withdrew from Vengalattore's project in November 2012. In the Spring of 2013, she told a professor who collaborated in Vengalattore's research "if I have my way, [Dr. Vengalattore] will have a hard time getting tenure."

In May 2014, during the Physics Department's consideration of Vengalattore's request for tenure, Roe sent the tenure review committee a letter alleging that Vengalattore had once angrily thrown a five-pound piece of equipment at her. In September 2014, two days after learning that the committee had recommended that tenure be granted, Roe told Physics Professor Ritchie Patterson that Vengalattore had engaged in sexual misconduct with her. That accusation was relayed to Alan Mittman, Director of Cornell's Office of Workforce Policy and Labor Relations.

Dean Gretchen Ritter, responsible for approval of tenure decisions in the College of Arts and Sciences, was informed of Roe's accusation while she was considering Vengalattore's tenure request. Mittman proceeded to conduct numerous informal interviews of Roe, keeping the Dean informed of Roe's allegations; Vengalattore was not similarly informed. On February 13, 2015, Dean Ritter denied Vengalattore's request for tenure.

One business day later, Mittman, with Sarah Affel, Cornell's Title IX coordinator (the "investigators"), conducted the first interview with Roe that was recorded. In that February 16, 2015 interview, Roe told the investigators that she had been raped by Vengalattore in late 2010, and that she thereafter had a secret consensual sexual relationship with him until December 2011.

On February 27, 2015, Vengalattore, still unaware of Roe's accusations, appealed to the University appeals committee, challenging the denial of his request for tenure. On the next business day, March 2, Mittman summoned him to appear at the Title IX office on March 3 "to 'review [an] alleged romantic relationship with a student under [his] supervision in or around the 2011 calendar year.'"

In the March 3 interview, Vengalattore was informed of Roe's allegation that he and she had had a consensual sexual relationship. Vengalattore denied it. Toward the end of the three-hour interview, he was informed that Roe also accused him of rape. He responded by asking for the assistance of counsel; the investigators told him that was not necessary, and continued with the interview. Vengalattore throughout denied having had any sexual, romantic, or other unprofessional relationship with Roe.

As described in Part I.C.1. below, the Complaint alleged that the investigation was conducted in a manner that was designed to support Roe's accusation. For example, Roe had told the investigators that the sexual relationship began during the final week of the Fall 2010 semester, on a day when Vengalattore had not come to the lab and she went to his house at 7 p.m. to check on him. She said he invited her in and began kissing her; that she initially resisted but then agreed to have sex with him; that she considered this to be rape; that she spent the night with him and went with him to the lab the following morning; and that they then had a secret consensual sexual relationship until December 2011. When Vengalattore asked on what date Roe claimed he had raped her, the investigators refused to answer. Instead they asked Vengalattore to take a blank December 2010 calendar and mark off for them the days he had been in town….

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