California Gov. Jerry Brown vetoes proposal to codify federal regulations on campus sexual harassment

California Gov. Jerry Brown (D) has vetoed a California bill (SB169) that would have changed California law to embody certain Obama-era federal regulations related to campus sexual assault proceedings; I thought his veto message was worth passing along:

To the Members of the California State Senate:

I am returning Senate Bill 169 without my signature.

This bill would codify a combination of federal regulations and guidance on sexual harassment — some of which has been repealed, some of which is still in effect — as well as some language from model policies that have been developed by California universities.

This is not a simple issue. Sexual harassment and sexual violence are serious and complicated matters for colleges to resolve. On the one side are complainants who come forward to seek justice and protection; on the other side stand accused students, who, guilty or not, must be treated fairly and with the presumption of innocence until the facts speak otherwise. Then, as we know, there are victims who never come forward, and perpetrators who walk free. Justice does not come easily in this environment.

That is why in 2014 I signed into law the first affirmative consent standard in the country for colleges to adopt in their sexual assault policies, so that clear and basic parameters for responsible behavior could be established. Yes Means Yes, along with its attendant preponderance standard, is the law in California, which only the courts or a future legislature can change.

Since this law was enacted, however, thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault — well-intentioned as they are — have also unintentionally resulted in some colleges’ failure to uphold due process for accused students. Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.

Given the strong state of our laws already, I am not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven’t yet ascertained the full impact of what we recently enacted. We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity. We may need more statutory requirements than what this bill contemplates. We may need fewer. Or still yet, we may need simply to fine tune what we have.

It is time to pause and survey the land.

I strongly believe that additional reflection and investment of time in understanding what is happening on the ground will help us exercise due care in this complex arena. I intend to convene a group of knowledgeable persons who can help us chart the way forward.

Sincerely,

Edmund G. Brown, Jr.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/16/california-gov-jerry-brown-vetoes-proposal-to-codify-federal-regulations-on-campus-sexual-harassment/

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Newsmax should teach their writers to pay attention to dates

A recent article by David Hunter, a writer for the prominent conservative website Newsmax egregiously misrepresents a post I wrote about President Trump and illegal Obamacare subsidies. He does so in large part by ignoring the date when the post was written.

Hunter depicts me as attacking Trump’s recent decision to end illegal Obamacare subsidies for health insurers:

Naturally, the anti-Trump mainstream media (MSM) opposes his rightful action. For example, Washington Post contributor Ilya Somin writes, “Now, President Trump is making the situation worse by trying to use these illegal payments as leverage to force the legislature to do his bidding.” For the record, didn’t the Democratically-controlled Congress do Obama’s bidding when they passed the ironically named Affordable Care Act (ACA) in 2010?….

What liberals don’t scramble, it seems, they tend to mix up. For starters, only Obama overstepped here, not Trump. Yet, Mr. Somin continues:

“What is ultimately at stake here is not only the future of the health care law, but of the constitutional separation of powers and the limits of executive branch authority. Trump’s ham-fisted attempt at dealmaking is eroding those limits….”

Had Hunter actually read my post (which he does not link to), he might have noticed that it was published on August 2, over three months before Trump announced he would end the Cost Sharing Reduction subsidies (October 13). I was not attacking the decision to end the subsidies (which had not happened), but rather Trump’s earlier effort to use them as leverage to try to extract concessions from Congress. Here is what I said:

Instead of simply putting an end to these illegal appropriations, Trump is trying to use them as leverage against Congress, to get it to resuscitate the stalled GOP effort to “repeal and replace” Obamacare…

[Peter] Suderman is absolutely right to point to the potentially dangerous precedent here. If it is illegal for the executive to spend money on X, it is also illegal for him to offer to continue to spend it on X so long as Congress does what he wants on some other issue. If, on the other hand, the payments are mandated by Congress, after all (as the Obama administration dubiously claimed), then Trump has no right to withhold them….

This issue is one of several where Obama’s high-handed behavior set a dangerous precedent that Trump can now exploit. In some ways, using illegal spending as leverage is even worse than just doing it without trying to extract concessions for it. The latter creates a dangerous new power for the executive that can easily be abused in many ways. There are many situations where a president can try to exploit legal ambiguities to dole out unappropriated funds to influential constituencies. He can then follow Trump’s example of threatening to cut the payments unless Congress does his bidding on some other matter.

As the above (and the rest of my post) makes clear, I have no objection to simply ending illegal Obamacare subsidies; indeed, that was the right thing to do. What I objected to was Trump’s (ultimately unsuccessful) effort to hold out the prospect of their potential continuation as leverage to force Congress to make concessions on other issues. Had his plan succeeded, it would have set a dangerous precedent for the reasons I described.

While Trump ultimately did the right thing by ending the subsidies, the credit he deserves for it is greatly diminished by the fact that he only did so after he was unable to use them for political leverage. If Trump was genuinely motivated by principled adherence to constitutional constraints, he would not have waited ten months to end the subsidies and would not have tried to used them as a political tool.

Misrepresenting my position on the CSR subsidies is not the only mistake in Hunter’s article. For example, he also erroneously describes me as a “liberal” and a representative of the “mainstream media.” In reality, I am a law professor and a blogger at the editorially independent Volokh Conspiracy blog (hosted at the Washington Post website, but not editorially controlled by the Post). I have also written extensively for conservative and libertarian media such as National Review and Reason. Hunter could have found out all of this with only slightly greater difficulty than it would have taken to read the date of my August 2 post and figure out what it is referring to. Much of this information is available simply by clicking my name on the post he quoted (or any other post I have written), which brings up my bio. The rest is readily available at my website, and elsewhere.

Hunter’s errors contain some useful lessons for other writers. First, if you are going to quote something, it pays to check when it was written, and consider what that implies for its meaning. Second, if you are going to set yourself up as a critic of “mainstream media,” you may want to at least adhere to minimal standards of accuracy yourself.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/16/newsmax-should-teach-their-writers-to-pay-attention-to-dates/

John Dickinson comes into prominence

This year marks the 250th anniversary of one of the most influential series of writings in American history. The series was John Dickinson’s “Letters from a Farmer in Pennsylvania.” The “letters” were 12 newspaper essays, the first of which was published in November 1767.

In accordance with the contemporaneous understanding of freedom of the press, Dickinson chose to remain anonymous: He signed the letters “A Farmer.” The letters argued that Parliament’s Townshend duties were improper and unconstitutional, and explained how Americans should resist them.

The Farmer took America by storm. The essays were widely reprinted individually, and they were collected as a book. There were editions in Britain and Europe. When Dickinson’s true identity emerged, he became the second-most-famous American in the world, after Benjamin Franklin.

This is the first of five postings on the life and thought of John Dickinson. In addition to examining “Letters from a Farmer” and other writings, these postings summarize how the author’s views affected the drafting and ratification of the U.S. Constitution.

John Dickinson was born in Maryland on Nov. 8, 1732, to Samuel Dickinson and Mary Cadwalader Dickinson. His father was a prosperous planter of tobacco and later of wheat. In 1740 the family moved to Delaware, occupying a home near Dover. His parents valued learning and provided John and his few surviving siblings with an excellent classical education.

By 1750, Dickinson decided he wanted to be a lawyer, and that year he began clerking with the leading attorney in Philadelphia. In 1754, his parents sent him to London’s Middle Temple, where he studied for another three years. His correspondence with his parents from England still survives, displaying mature commentary on daily life and English political developments.

Thus, Dickinson received many advantages. But in London he encountered a severe obstacle: poor health. Even as a young man, he seems to be been subject to infection, and this remained true throughout his life. After age 40, he also suffered from gout.

In 1757, he was admitted to the bar at the Middle Temple and returned to America. Success in his Philadelphia law practice was rapid. Besides being bright and diligent, he seems to have had a magnetic presence. He was the kind of man people wanted to be around and wanted to entrust with their affairs.

Much of his Dickinson’s practice centered on private rather than public law: decedents’ estates, land claims and most likely trusts. As was true of other founders, the rules prevailing in private law — particularly the rules binding fiduciaries — influenced Dickinson’s attitudes toward public law.

In those days Pennsylvania and Delaware were tied in harness (they had a common governor), so a young man of promise could aspire to a political career in both states. Before Dickinson was 27, he won a seat in the Delaware colonial assembly. He was reelected the following year, and thereupon his colleagues in the assembly elected him speaker. In 1762, he won a special election to fill a vacancy in the Pennsylvania house of assembly. He was reelected in 1763 and 1764.

While serving in the Pennsylvania assembly, he faced a political crisis. Dickinson had frequently been critical of the colony’s propriety charter with the Penn family. However, when Joseph Galloway and Benjamin Franklin — two of the colony’s most powerful figures — proposed to petition the king to convert it into a royal charter, Dickinson was skeptical. A royal charter, he believed, would leave Pennsylvania unprotected if the British government ever became oppressive.

On May 24, 1764, Dickinson rose in the assembly to deliver an elaborate speech in opposition to the petition. A written version of this oration survives. It was extraordinary for its careful balancing of the risks and rewards attributable to alternative courses of conduct. It was extraordinary also for its use of what Dickinson’s beloved Roman authors called “sententiae” — sound bites. Among them:

  • “Power is like the ocean; not easily admitting limits to be fixed in it.”
  • “It will be much easier for me to bear the unmerited reflections of a mistaken zeal, than the just reproaches of a guilty mind.”
  • “A good man ought to serve his country, even tho’ she resents his services.”

The speech identified the charter change as a constitutional alteration requiring special procedures to adopt. Dickinson maintained that a legislature elected under one constitution has no power to create another one. A new constitution required the “almost universal consent of the people.”

Although Dickinson overwhelmingly lost the assembly vote, he was soon vindicated. The passage of the Stamp Act the following year demonstrated the correctness of his prediction that the British government might prove more oppressive than the Penn family. The charter-change request died quietly.

In 1765, Pennsylvania sent Dickinson to the Stamp Act Congress in New York. His fellow commissioners (delegates) selected him to author the Congress’s chief pronouncement, the “Declaration of the Rights and Grievances.” Although Parliament soon repealed the Stamp Act, two years later Parliament replaced it with the Townshend Acts. That action provoked the Farmer letters.

Tomorrow: the message of the Farmer letters.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/16/john-dickinson-comes-into-prominence/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

New on the podcast: suspending indigent drivers’ licenses, forfeiture standing, and a wayward cop’s sign ban. Click here for iTunes.

  • District court: We can’t reach the merits of two Philadelphia cops’ claims against the city because their lawyer failed to comply with a rudimentary procedural rule. Case dismissed. Third Circuit: Affirmed. Though plaintiffs may still have some recourse … through their lawyer’s malpractice insurer.
  • Does a court lack jurisdiction under the Labor Management Relations Act when an employee files a lawsuit a few days before a contractually mandated arbitrator issues a final decision? Yes, says the Fifth Circuit (over a dissent), in an unpublished opinion that is also about football.
  • Septuagenarian chronic opioid addict sentenced to 18 months in prison based on government’s unsupported pseudoscientific claim that it takes 18 months for the brain of an addict to “reset.” Sixth Circuit: That was both procedurally and substantively unreasonable.
  • Retailer pays its employees on commission; if that amounts to less than the minimum wage, employees get an advance, which is then deducted from future paychecks, to bump them up to $7.25/hr. A violation of the Fair Labor Standards Act? Ordinarily not, says the Sixth Circuit, but here plaintiffs allege employees were encouraged to work off the clock to avoid the deductions, so the suit should not have been dismissed.
  • In 2014, the Supreme Court ruled that non-union home health assistants in Illinois could not be forced to pay fees to a union. On remand, plaintiffs sought to certify a class of all non-union assistants — as many as 80,000 who perhaps turned over a total of $32 million. Seventh Circuit: No can do. Among other things, there’s no way to know how many proposed class members didn’t mind paying the fees. (But plaintiffs still get money damages, an injunction against forced dues).
  • Plaintiff: Red Hots, the cinnamon candy, are packaged deceptively; the boxes contain too much air and not enough candy. Eighth Circuit: Which should be sorted out in state court.
  • The Second Amendment does not protect a right to sell guns, says the Ninth Circuit, sitting en banc, so Alameda County, Calif., zoning restrictions that allegedly amount to a ban on new gun stores are constitutional.
  • A California law requiring an Ohio company, which helps homeowners pay less interest on their home loans, to incorporate in California as a condition of doing business in the state falls afoul of the Dormant Commerce Clause, says the Ninth Circuit. A separate requirement forcing the company to disclose in its solicitations that its services are not authorized by lenders does not offend the First Amendment, however.
  • Ninth Circuit: We reinstate this death row inmate’s habeas petition because his claims were not really waived. Dissent: I disagree, but none of this matters because California doesn’t execute anybody anyway. This is either a “cruel and expensive hoax” or “a Gilbert and Sullivan operetta,” or, possibly, both.
  • Allegation: Police corner motorist who fled traffic stop, asked police to kill him. After they shoot him with Taser, bean bags, he turns his back on the officers and begins to raise his empty hands; a Pinal County, Ariz., officer, who says he did not hear multiple reports that the motorist was unarmed, shoots him in the back, killing him. Ninth Circuit: No qualified immunity; this case needs to go to trial.
  • Colorado Springs, Colo., SWAT ignite bomb in the home of Army vet suffering from PTSD who allegedly threatened to kill neighbors (firing a shot into the ground during the altercation). The blast breaks his leg, sends shrapnel into his flesh. Tenth Circuit: He can sue officers in their official, but not individual, capacities and press his claim the city failed to train them properly.
  • Bucks County, Penn., police chief’s daughter, one Ms. Knott, is jailed for her role in beating in Philadelphia. Unrelated woman creates social media account with username “Knotty is a Tramp” and posts comments like “I’m an entitled princess who can beat up gay people if I want to.” Allegation: Bucks County officers obtain the woman’s IP address, travel out of their jurisdiction, threaten her with prosecution (for impersonation), and get her fired from her job. District court: Could be retaliation for protected speech.
  • And in en banc news, the Ninth Circuit (over a dissent) will not reconsider its ruling that a Berkeley, Calif., requirement that cellphone retailers warn consumers about the danger of radiation (in technically accurate but perhaps misleading language) is constitutional. We discussed the case on the podcast.

In May, a Wisconsin judge struck down the state’s ban on selling home-baked goods, ruling it lacked a “real or substantial connection” to public safety; rather, it served the interests of commercial bakeries that don’t want competition. Which was a superlative ruling, but state officials argued it applied only to the three home bakers who brought the lawsuit. Sneaky! This month, however, the judge clarified that indeed all Wisconsin home bakers are free to sell home-baked goods (that do not require refrigeration) without the threat of thousands in fines or jail time. Read more here. New Jersey is now the only state to ban such sales.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/16/short-circuit-a-roundup-of-recent-federal-court-decisions-76/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

New on the podcast: suspending indigent drivers’ licenses, forfeiture standing, and a wayward cop’s sign ban. Click here for iTunes.

  • District court: We can’t reach the merits of two Philadelphia cops’ claims against the city because their lawyer failed to comply with a rudimentary procedural rule. Case dismissed. Third Circuit: Affirmed. Though plaintiffs may still have some recourse … through their lawyer’s malpractice insurer.
  • Does a court lack jurisdiction under the Labor Management Relations Act when an employee files a lawsuit a few days before a contractually mandated arbitrator issues a final decision? Yes, says the Fifth Circuit (over a dissent), in an unpublished opinion that is also about football.
  • Septuagenarian chronic opioid addict sentenced to 18 months in prison based on government’s unsupported pseudoscientific claim that it takes 18 months for the brain of an addict to “reset.” Sixth Circuit: That was both procedurally and substantively unreasonable.
  • Retailer pays its employees on commission; if that amounts to less than the minimum wage, employees get an advance, which is then deducted from future paychecks, to bump them up to $7.25/hr. A violation of the Fair Labor Standards Act? Ordinarily not, says the Sixth Circuit, but here plaintiffs allege employees were encouraged to work off the clock to avoid the deductions, so the suit should not have been dismissed.
  • In 2014, the Supreme Court ruled that non-union home health assistants in Illinois could not be forced to pay fees to a union. On remand, plaintiffs sought to certify a class of all non-union assistants — as many as 80,000 who perhaps turned over a total of $32 million. Seventh Circuit: No can do. Among other things, there’s no way to know how many proposed class members didn’t mind paying the fees. (But plaintiffs still get money damages, an injunction against forced dues).
  • Plaintiff: Red Hots, the cinnamon candy, are packaged deceptively; the boxes contain too much air and not enough candy. Eighth Circuit: Which should be sorted out in state court.
  • The Second Amendment does not protect a right to sell guns, says the Ninth Circuit, sitting en banc, so Alameda County, Calif., zoning restrictions that allegedly amount to a ban on new gun stores are constitutional.
  • A California law requiring an Ohio company, which helps homeowners pay less interest on their home loans, to incorporate in California as a condition of doing business in the state falls afoul of the Dormant Commerce Clause, says the Ninth Circuit. A separate requirement forcing the company to disclose in its solicitations that its services are not authorized by lenders does not offend the First Amendment, however.
  • Ninth Circuit: We reinstate this death row inmate’s habeas petition because his claims were not really waived. Dissent: I disagree, but none of this matters because California doesn’t execute anybody anyway. This is either a “cruel and expensive hoax” or “a Gilbert and Sullivan operetta,” or, possibly, both.
  • Allegation: Police corner motorist who fled traffic stop, asked police to kill him. After they shoot him with Taser, bean bags, he turns his back on the officers and begins to raise his empty hands; a Pinal County, Ariz., officer, who says he did not hear multiple reports that the motorist was unarmed, shoots him in the back, killing him. Ninth Circuit: No qualified immunity; this case needs to go to trial.
  • Colorado Springs, Colo., SWAT ignite bomb in the home of Army vet suffering from PTSD who allegedly threatened to kill neighbors (firing a shot into the ground during the altercation). The blast breaks his leg, sends shrapnel into his flesh. Tenth Circuit: He can sue officers in their official, but not individual, capacities and press his claim the city failed to train them properly.
  • Bucks County, Penn., police chief’s daughter, one Ms. Knott, is jailed for her role in beating in Philadelphia. Unrelated woman creates social media account with username “Knotty is a Tramp” and posts comments like “I’m an entitled princess who can beat up gay people if I want to.” Allegation: Bucks County officers obtain the woman’s IP address, travel out of their jurisdiction, threaten her with prosecution (for impersonation), and get her fired from her job. District court: Could be retaliation for protected speech.
  • And in en banc news, the Ninth Circuit (over a dissent) will not reconsider its ruling that a Berkeley, Calif., requirement that cellphone retailers warn consumers about the danger of radiation (in technically accurate but perhaps misleading language) is constitutional. We discussed the case on the podcast.

In May, a Wisconsin judge struck down the state’s ban on selling home-baked goods, ruling it lacked a “real or substantial connection” to public safety; rather, it served the interests of commercial bakeries that don’t want competition. Which was a superlative ruling, but state officials argued it applied only to the three home bakers who brought the lawsuit. Sneaky! This month, however, the judge clarified that indeed all Wisconsin home bakers are free to sell home-baked goods (that do not require refrigeration) without the threat of thousands in fines or jail time. Read more here. New Jersey is now the only state to ban such sales.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/16/short-circuit-a-roundup-of-recent-federal-court-decisions-76/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

New on the podcast: suspending indigent drivers’ licenses, forfeiture standing, and a wayward cop’s sign ban. Click here for iTunes.

  • District court: We can’t reach the merits of two Philadelphia cops’ claims against the city because their lawyer failed to comply with a rudimentary procedural rule. Case dismissed. Third Circuit: Affirmed. Though plaintiffs may still have some recourse … through their lawyer’s malpractice insurer.
  • Does a court lack jurisdiction under the Labor Management Relations Act when an employee files a lawsuit a few days before a contractually mandated arbitrator issues a final decision? Yes, says the Fifth Circuit (over a dissent), in an unpublished opinion that is also about football.
  • Septuagenarian chronic opioid addict sentenced to 18 months in prison based on government’s unsupported pseudoscientific claim that it takes 18 months for the brain of an addict to “reset.” Sixth Circuit: That was both procedurally and substantively unreasonable.
  • Retailer pays its employees on commission; if that amounts to less than the minimum wage, employees get an advance, which is then deducted from future paychecks, to bump them up to $7.25/hr. A violation of the Fair Labor Standards Act? Ordinarily not, says the Sixth Circuit, but here plaintiffs allege employees were encouraged to work off the clock to avoid the deductions, so the suit should not have been dismissed.
  • In 2014, the Supreme Court ruled that non-union home health assistants in Illinois could not be forced to pay fees to a union. On remand, plaintiffs sought to certify a class of all non-union assistants — as many as 80,000 who perhaps turned over a total of $32 million. Seventh Circuit: No can do. Among other things, there’s no way to know how many proposed class members didn’t mind paying the fees. (But plaintiffs still get money damages, an injunction against forced dues).
  • Plaintiff: Red Hots, the cinnamon candy, are packaged deceptively; the boxes contain too much air and not enough candy. Eighth Circuit: Which should be sorted out in state court.
  • The Second Amendment does not protect a right to sell guns, says the Ninth Circuit, sitting en banc, so Alameda County, Calif., zoning restrictions that allegedly amount to a ban on new gun stores are constitutional.
  • A California law requiring an Ohio company, which helps homeowners pay less interest on their home loans, to incorporate in California as a condition of doing business in the state falls afoul of the Dormant Commerce Clause, says the Ninth Circuit. A separate requirement forcing the company to disclose in its solicitations that its services are not authorized by lenders does not offend the First Amendment, however.
  • Ninth Circuit: We reinstate this death row inmate’s habeas petition because his claims were not really waived. Dissent: I disagree, but none of this matters because California doesn’t execute anybody anyway. This is either a “cruel and expensive hoax” or “a Gilbert and Sullivan operetta,” or, possibly, both.
  • Allegation: Police corner motorist who fled traffic stop, asked police to kill him. After they shoot him with Taser, bean bags, he turns his back on the officers and begins to raise his empty hands; a Pinal County, Ariz., officer, who says he did not hear multiple reports that the motorist was unarmed, shoots him in the back, killing him. Ninth Circuit: No qualified immunity; this case needs to go to trial.
  • Colorado Springs, Colo., SWAT ignite bomb in the home of Army vet suffering from PTSD who allegedly threatened to kill neighbors (firing a shot into the ground during the altercation). The blast breaks his leg, sends shrapnel into his flesh. Tenth Circuit: He can sue officers in their official, but not individual, capacities and press his claim the city failed to train them properly.
  • Bucks County, Penn., police chief’s daughter, one Ms. Knott, is jailed for her role in beating in Philadelphia. Unrelated woman creates social media account with username “Knotty is a Tramp” and posts comments like “I’m an entitled princess who can beat up gay people if I want to.” Allegation: Bucks County officers obtain the woman’s IP address, travel out of their jurisdiction, threaten her with prosecution (for impersonation), and get her fired from her job. District court: Could be retaliation for protected speech.
  • And in en banc news, the Ninth Circuit (over a dissent) will not reconsider its ruling that a Berkeley, Calif., requirement that cellphone retailers warn consumers about the danger of radiation (in technically accurate but perhaps misleading language) is constitutional. We discussed the case on the podcast.

In May, a Wisconsin judge struck down the state’s ban on selling home-baked goods, ruling it lacked a “real or substantial connection” to public safety; rather, it served the interests of commercial bakeries that don’t want competition. Which was a superlative ruling, but state officials argued it applied only to the three home bakers who brought the lawsuit. Sneaky! This month, however, the judge clarified that indeed all Wisconsin home bakers are free to sell home-baked goods (that do not require refrigeration) without the threat of thousands in fines or jail time. Read more here. New Jersey is now the only state to ban such sales.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/16/short-circuit-a-roundup-of-recent-federal-court-decisions-76/

Short Circuit: A roundup of recent federal court decisions

(Here is the latest edition of the Institute for Justice’s weekly Short Circuit newsletter, written by John Ross.)

New on the podcast: suspending indigent drivers’ licenses, forfeiture standing, and a wayward cop’s sign ban. Click here for iTunes.

  • District court: We can’t reach the merits of two Philadelphia cops’ claims against the city because their lawyer failed to comply with a rudimentary procedural rule. Case dismissed. Third Circuit: Affirmed. Though plaintiffs may still have some recourse … through their lawyer’s malpractice insurer.
  • Does a court lack jurisdiction under the Labor Management Relations Act when an employee files a lawsuit a few days before a contractually mandated arbitrator issues a final decision? Yes, says the Fifth Circuit (over a dissent), in an unpublished opinion that is also about football.
  • Septuagenarian chronic opioid addict sentenced to 18 months in prison based on government’s unsupported pseudoscientific claim that it takes 18 months for the brain of an addict to “reset.” Sixth Circuit: That was both procedurally and substantively unreasonable.
  • Retailer pays its employees on commission; if that amounts to less than the minimum wage, employees get an advance, which is then deducted from future paychecks, to bump them up to $7.25/hr. A violation of the Fair Labor Standards Act? Ordinarily not, says the Sixth Circuit, but here plaintiffs allege employees were encouraged to work off the clock to avoid the deductions, so the suit should not have been dismissed.
  • In 2014, the Supreme Court ruled that non-union home health assistants in Illinois could not be forced to pay fees to a union. On remand, plaintiffs sought to certify a class of all non-union assistants — as many as 80,000 who perhaps turned over a total of $32 million. Seventh Circuit: No can do. Among other things, there’s no way to know how many proposed class members didn’t mind paying the fees. (But plaintiffs still get money damages, an injunction against forced dues).
  • Plaintiff: Red Hots, the cinnamon candy, are packaged deceptively; the boxes contain too much air and not enough candy. Eighth Circuit: Which should be sorted out in state court.
  • The Second Amendment does not protect a right to sell guns, says the Ninth Circuit, sitting en banc, so Alameda County, Calif., zoning restrictions that allegedly amount to a ban on new gun stores are constitutional.
  • A California law requiring an Ohio company, which helps homeowners pay less interest on their home loans, to incorporate in California as a condition of doing business in the state falls afoul of the Dormant Commerce Clause, says the Ninth Circuit. A separate requirement forcing the company to disclose in its solicitations that its services are not authorized by lenders does not offend the First Amendment, however.
  • Ninth Circuit: We reinstate this death row inmate’s habeas petition because his claims were not really waived. Dissent: I disagree, but none of this matters because California doesn’t execute anybody anyway. This is either a “cruel and expensive hoax” or “a Gilbert and Sullivan operetta,” or, possibly, both.
  • Allegation: Police corner motorist who fled traffic stop, asked police to kill him. After they shoot him with Taser, bean bags, he turns his back on the officers and begins to raise his empty hands; a Pinal County, Ariz., officer, who says he did not hear multiple reports that the motorist was unarmed, shoots him in the back, killing him. Ninth Circuit: No qualified immunity; this case needs to go to trial.
  • Colorado Springs, Colo., SWAT ignite bomb in the home of Army vet suffering from PTSD who allegedly threatened to kill neighbors (firing a shot into the ground during the altercation). The blast breaks his leg, sends shrapnel into his flesh. Tenth Circuit: He can sue officers in their official, but not individual, capacities and press his claim the city failed to train them properly.
  • Bucks County, Penn., police chief’s daughter, one Ms. Knott, is jailed for her role in beating in Philadelphia. Unrelated woman creates social media account with username “Knotty is a Tramp” and posts comments like “I’m an entitled princess who can beat up gay people if I want to.” Allegation: Bucks County officers obtain the woman’s IP address, travel out of their jurisdiction, threaten her with prosecution (for impersonation), and get her fired from her job. District court: Could be retaliation for protected speech.
  • And in en banc news, the Ninth Circuit (over a dissent) will not reconsider its ruling that a Berkeley, Calif., requirement that cellphone retailers warn consumers about the danger of radiation (in technically accurate but perhaps misleading language) is constitutional. We discussed the case on the podcast.

In May, a Wisconsin judge struck down the state’s ban on selling home-baked goods, ruling it lacked a “real or substantial connection” to public safety; rather, it served the interests of commercial bakeries that don’t want competition. Which was a superlative ruling, but state officials argued it applied only to the three home bakers who brought the lawsuit. Sneaky! This month, however, the judge clarified that indeed all Wisconsin home bakers are free to sell home-baked goods (that do not require refrigeration) without the threat of thousands in fines or jail time. Read more here. New Jersey is now the only state to ban such sales.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/10/16/short-circuit-a-roundup-of-recent-federal-court-decisions-76/