Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
Friends, do you like tacos? What about late at night, perhaps after an adult beverage? If so, you should be just as hopping mad as we are about the city of Denver's recent ban on food trucks in Lower Downtown. Though ostensibly enacted with the goal of reducing crime, a 2012 IJ study found that the presence of food trucks actually reduces crime by providing extra eyes on the street. Smells like protectionism for brick-and-mortar restaurants to us. While a letter from IJ convinced the city to partially repeal the ban, IJ won't rest until the senseless ban is totally repealed. Click here to learn more.
- Pro tip from the D.C. Circuit: If you're trying to intervene in a case on the grounds that an existing party doesn't adequately represent your interests and the appellate court invites you to show up at oral argument to represent your own interests, you say yes.
- Can the government forbid employees of the Administrative Office of the United States Courts from engaging in off-hours partisan activity in order to preserve the judiciary's reputation for impartiality? D.C. Circuit (over a dissent): The only way for Administrative Office employees' activities to affect the judiciary's reputation would be if the public knew the Administrative Office existed in the first place, which is . . . contestable.
- Maine officials: The dormant Commerce Clause doesn't apply to marijuana because Congress has outlawed interstate commerce in marijuana. First Circuit (over a dissent): I don't know if you guys have noticed, but there's a pretty big interstate market in marijuana anyway, so the doctrine still applies.
- Second Circuit: For a job applicant to be entitled to an ADA-mandated accommodation on an employment exam, the applicant must show he's qualified to do the job he's applying for, not just that he's qualified to take the exam.
- Bribe-danglers worldwide beware! As this Second Circuit opinion illustrates, if you, as a non-citizen based wholly outside of the U.S., orchestrate the bribing of foreign officials, also outside the U.S., the United States may nonetheless bring you to trial some 15 years later, after which only slightly more than half of your convictions will be thrown out on appeal.
- Pennsylvania woman shops for pet stairs from an online gift company. Unbeknownst to her, the company is allowing a third-party marketer to snoop on her shopping activity. Yikes! She says that's illegal wiretapping. District Court: Give me a break, case dismissed. Third Circuit: Not so fast. The Pennsylvania statute may indeed be broad enough to reach this case. Remanded for more factfinding.
- Jersey City passes an ordinance encouraging short-term rentals, and investors take up the city's invitation by buying properties to rent out short-term. But when the hotel industry gets upset and the mayor's relationship with Airbnb sours, the city changes course and significantly restricts short-term rentals. The investors cry foul and say the about-face violates several constitutional provisions, including the Takings Clause. Third Circuit: Courts aren't in the business of second-guessing zoning laws, so all your claims fail. Concurrence: Modern "regulatory-takings doctrine is a mess," and rather than using a fuzzy multifactor test courts should just ask whether the government has "taken a property right and pressed it into public use."
- Delaware and Hoboken, NJ sue oil companies, alleging they committed various state-law torts for their role in causing climate change. Oil companies: Whoa, these are claims with national and global ramifications, and they belong in federal court. Third Circuit: We agree with our sister circuits that, although climate-change suits are a big deal, these are still just state-law claims, so to state court they shall go.
- Trans woman housed in a Fairfax County, Va. prison alleges she was mistreated and denied proper hormone treatments. She sues, principally claiming the prison violated the Americans with Disabilities Act by failing to accommodate her disability arising from gender dysphoria. District Court: Gender dysphoria isn't a disability under the ADA, which excludes "gender identity disorders not resulting from physical impairments." Fourth Circuit: The contemporary medical understanding of gender dysphoria isn't a "gender identity disorder," especially because excluding gender dysphoria from the ADA would likely be unconstitutional discrimination against trans people. So the claim can go forward. Dissent: "My view here is not in any way a value judgment on . . . those with gender dysphoria," but it is clearly a condition Congress meant to exclude from the ADA in 1990.
- Emmitsburg, Md. postal employee is fired and then brings discrimination claims against USPS. District Court: All claims dismissed and case closed. But wait! One claim is dismissed without prejudice, yet the court is silent about whether the plaintiff can amend the complaint. Fourth Circuit: Before we get to the merits, we need to take this en banc to decide whether this odd duck is a final judgment that can even be appealed. We unanimously reject our old case-by-case finality standard and adopt a bright-line rule that a dismissal of all claims is final unless the district court expressly grants leave to amend. Even so, a reminder to district courts and lawyers: you really should "clarify the finality of an order before" anyone "knock[s] on this Court's door."
- Supervising a 50-year-old school desegregation order, the Fifth Circuit concludes that the district court correctly found that the Saint Martin Parish, La. school board has done a pretty lousy job by just about any metric of remedying de jure segregation. But the district court nevertheless exceeded its discretion when it ordered the closure of a predominantly white elementary school as a remedy.
- In which the Fifth Circuit determines that Sealed Appellee was not a John Doe. Tough luck, Sealed Appellant.
- Last November, the Fifth Circuit denied qualified immunity in a case involving the unconstitutional arrest of a journalist for the "crime" of asking public officials questions about things that had not yet been made public. At the time, a forthcoming dissent was promised. At long last, it has arrived, and Judge Ho, concurring in his original panel opinion, is singularly unimpressed. (IJ filed an amicus brief in this case.)
- This week, courtesy of the Fifth Circuit, your editor learned the difference between a collision (an impact with a moving object) and an allision (an impact with a stationary object).
- Accomplished high-schooler in Cleveland, Miss. is on track to graduate second in her class. Salutatorian! But in the lead-up to her senior year, a federal judge enforces a 50-year-old desegregation consent decree and orders Cleveland's two high schools to consolidate. Following the consolidation (and much back-and-forth about credits on transcript), the would-be salutatorian ends up ranked third in her class, not second. A due process violation? Fifth Circuit: No. Students lack a due process interest in their class rank.
- A Play in One Act.
