Monthly Archives: July 2015

“Short Circuit” for July 31, 2015

Each week, the Institute for Justice — a libertarian public interest law firm that specializes in constitutional litigation — issues a fun “short circuit” newsletter summarizing the interesting U.S. Circuit Court opinions of the week (you can subscribe by clicking here).   This week’s summary, authored by John K. Ross, is re-posted below:
  • Fairfax, Va. nurse engages in sexual innuendo in the workplace. For shame! NLRB: Many staff members enjoyed the odd ribald joke. In fact, the hospital actually fired her for asking management—in concert with other nurses—for certain accommodations. D.C. Circuit: Agreed. Fun Fact: No union = no problem. The NLRB has jurisdiction.
  • To impose a penalty, in this case for late paperwork, four of six FEC commissioners must vote in favor of enforcement. Is it cool that failing to vote counts as a yes vote? D.C. Circuit: It gives us pause, but we need not resolve the issue just now.
  • Inmate Liaison Committee member at Fishkill, N.Y. prison files grievance on behalf of prisoners, is sent to solitary confinement for 90 days. Retaliation? Second Circuit: That’s a possibility.
  • Fifth Circuit: No new trial for a former New Orleans, La. police officer convicted of burning the body of a police-shooting victim to cover up the victim’s death in the aftermath of Hurricane Katrina.
  • Litigation pro-tip from the Sixth Circuit: When challenging an ordinance that requires your client to mow the curb strip in front of his house, maybe don’t compare the city to North Korea, “a totalitarian regime that notoriously tortures criminal defendants, executes non-violent offenders, and sends those accused of political offenses to ‘brutal forced labor camps.’”
  • Should the prevailing party in a just-compensation case involving abandoned property receive attorneys’ fees even if the district court doesn’t feel like awarding them? In a word, yes, says the Seventh Circuit.
  • A strip club in Winnebago County, Wis., successfully demonstrates that the county’s permitting scheme for adult businesses is an unconstitutional prior restraint. Can the county regulate the club under a new zoning code, or is the club now a preexisting nonconforming use? Seventh Circuit: Now that the First Amendment thing is settled, let the state courts figure out the rest.
  • DEA agents seize $239,400 cash money from train passenger. He’s free to go; they don’t find any contraband. Gov’t: Sucks for you, guy. You don’t have standing to try and get the money back. Seventh Circuit: Yeah, no, he does.
  • In which the Seventh Circuit expresses concern about the reliability of drug doggies but gives no succor to man sent away for 20 years for cocaine possession.
  • Officers scuffle with detainee in Ferguson, Mo. jail. After subduing detainee, officers continue to kick and beat him. Blood gets on the officers’ uniforms, so the detainee is charged with damaging property—among other things. Detainee sues, alleges excessive force. Eighth Circuit: Contra the district court, a concussion, scalp laceration, and bruising cannot be considered de minimis for qualified immunity purposes.
  • Convict to judge: I hope you die slowly of a painful disease. U.S. Marshals to convict: We’re going to arrange for you to be mistreated. Eighth Circuit: No qualified immunity for the marshals. Fun fact: If you get invited to a “blanket party,” do not go.
  • Hawaiians challenge the “cabotage” requirement of the Jones Act, under which all shipping between domestic ports must be carried out by ships made in America and owned by Americans, alleging that it forces them to pay higher prices for goods.Ninth Circuit: Even if you had standing, which you don’t, you would still lose.
  • A 370 lb. mountain goat with a nasty attitude and no fear of humans menaces visitors and rangers in Olympic National Park for years, then finally kills a hiker. Ninth Circuit holds negligence suit is barred by the Federal Tort Claims Act’s “discretionary function” exception. Dissent: Doing nothing to protect the public from an unruly beast the size of an NFL lineman was not a “policy” choice—it was garden-variety negligence.
  • After having previously concluded that the First Amendment does not apply to a Florida prohibition on doctors inquiring about their patients’ gun ownership, a panel of the Eleventh Circuit changes its mind: The First Amendment applies, but the prohibition is still constitutional. (Interested in occupational speech? Read IJ’s latest cert. petition to the U.S. Supreme Court.)
  • And in en banc news, the Third Circuit will reconsider whether the government must file a forfeiture petition if it wants to keep 10 ultra-rare coins given to Treasury officials for authentication and then not returned to the owner.

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Tennessee Supreme Court holds that a special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims.

By Daniel A. Horwitz

A special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims, the Tennessee Supreme Court has held.

The Tennessee Supreme Court had previously held that in order to protect a defendant’s right to due process under the Tennessee Constitution, a special jury instruction is required in certain cases involving both kidnapping and a more serious criminal offense, such as robbery, burglary or rape.  The basis for this special jury instruction – which is known as a “White” instruction in light of the eponymous Tennessee Supreme Court case State v. White[1] – traces back to the Tennessee Supreme Court’s earlier decision in the 1991 case State v. Anthony.[2]  In Anthony, the Tennessee Supreme Court recognized that “the offense of kidnapping. . . at times ‘could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.’”[3]

Stated differently, because “[i]t is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained,” the Anthony court expressed concern that a defendant could be convicted for two separate crimes –kidnapping as well as a more serious crime – when the defendant had only truly committed the more serious crime.[4]  In other words: “Where a defendant is charged with kidnapping and an accompanying offense involving some confinement . . . , there are appropriate due process concerns that the defendant could be convicted of two crimes—e.g. robbery and kidnapping—when he has only committed one crime—robbery.”[5]  More simply, as one Court of Criminal Appeals Judge once explained the issue:  “I do not believe the legislature intended robbers to be prosecuted as kidnappers.”[6] Continue reading Tennessee Supreme Court holds that a special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims.

Tennessee Supreme Court denies inmates’ request to challenge constitutionality of the electric chair, but holds that they will have the opportunity to do so in the future.

By Daniel A. Horwitz

[Disclosure:  The author was represented as an amicus curiae in this case as one of twenty-two members of the Tennessee Bar Association, and he has previously written about and spoken about his opposition to capital punishment on several occasions.]

In the latest round of litigation over the constitutionality of Tennessee’s death penalty protocol, thirty-five death-sentenced inmates[1] filed a lawsuit against several Tennessee prison officials challenging the constitutionality of the electric chair as a method of execution.  The inmates’ claims in this particular case arose out of Tennessee’s “Capital Punishment Enforcement Act” (CPEA), which is codified at Tenn. Code Ann. § 40-23-114(e).  Following nationwide difficulties securing the chemicals necessary to implement Tennessee’s pre-existing lethal injection protocol, the state legislature enacted the CPEA in 2014 in an effort to permit the use of the electric chair as an alternative method of execution should the requisite lethal injection chemicals be unavailable.

The Government opposed the inmates’ challenge to the constitutionality of the electric chair in part on the basis that Continue reading Tennessee Supreme Court denies inmates’ request to challenge constitutionality of the electric chair, but holds that they will have the opportunity to do so in the future.

The Second Circuit weighs in on economic protectionism, an issue which could affect Nashville’s proposed local hire referendum

By Daniel A. Horwitz

The U.S. Court of Appeals for the Second Circuit has officially weighed in on an issue that looks increasingly likely to reach the U.S. Supreme Court:  Whether laws that promote pure economic protectionism — known in economic terms as “rent seeking” — are prohibited by the 14th Amendment to the Constitution.  As this blog has previously explained, with Nashville’s voters contemplating adding a “local hire” provision to the Metropolitan Charter this August, this debate appears poised to return to Tennessee soon as well.

The Second Circuit’s opinion helpfully outlines the divergence of authority that has emerged with respect to this issue, noting:

In recent years, some courts of appeals have held that laws and regulations whose sole purpose is to shield a particular group from intrastate economic competition cannot survive rational basis review.  See St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir. 2013) (“[N]either precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose[.]”); Merrifield v. Lockyer, 547 F.3d 978, 991, n.15 (9th Cir. 2008) (“[M]ere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review.”); Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (“[P]rotecting a discrete interest group from economic competition is not a legitimate governmental purpose.”).  The Tenth Circuit, on the other hand, has squarely held that such a protectionist purpose is legitimate.  See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004) (“[A]bsent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest.”).

Ultimately, the majority opinion flatly concludes that:  “economic favoritism is rational for purposes of our review of state action under the Fourteenth Amendment.”

Rejecting the majority’s conclusion on this point, however, the similarly informative concurring opinion penned by Judge Christopher Droney reaches a directly contrary view.  Judge Droney explains:

[T]here must be at least some perceived public benefit for legislation or administrative rules to survive rational basis review under the Equal Protection and Due Process Clauses.  As the majority acknowledges, only the Tenth Circuit has adopted the view that pure economic protectionism is a legitimate state interest.  See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004).  Two of the circuits that reached the opposite conclusion expressly rejected the Tenth Circuit’s approach.  See St. Joseph Abbey v. Castille, 712 F.3d 215, 222‐23 (5th Cir. 2013); Merrifield v. Lockyer, 547 F.3d 978, 991 n.15 (9th Cir. 2008).

I agree with the Fifth Circuit’s reasoning in St. Joseph Abbey, particularly insofar as it disputes the Tenth Circuit’s reliance in Powers on the very Supreme Court cases that the majority cites in support of its holding here.  See St. Joseph Abbey, 712 F.3d at 222 (“[N]one of the Supreme Court cases Powers cites stands for that proposition [that intrastate economic protectionism is a legitimate state interest].    Rather, the cases indicate that protecting or favoring a particular intrastate industry is not an illegitimate interest when protection of the industry can be linked to advancement of the public interest or general welfare.” (emphasis in original)); see also Powers, 379 F.3d at 1226 (Tymkovich, J., concurring) (“Contrary to the majority . . ., whenever courts have upheld legislation that might otherwise appear protectionist . . ., courts have always found that they could also rationally advance a non‐protectionist public good.” (emphasis in original)).

A review of the Supreme Court decisions confirms the Fifth Circuit’s conclusion that some perceived public benefit was recognized by the Court in upholding state and local legislation. . .

As this author has previously noted, the U.S. Court of Appeals for the Sixth Circuit — which has jurisdiction over Tennessee — was the first Circuit court to resolve this issue, holding in Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) that: “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.”   The Tennessee Supreme Court has reached a similar conclusion with respect to the Tennessee Constitution, concluding in Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956) that: “Although [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”

Whether this line of authority will cause Nashville’s local hire ordinance to be invalidated — and whether the U.S. Supreme Court will definitively answer the question to resolve the growing divergence of authority — only time will tell.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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Tennessee Supreme Court holds that insurance assignment clause was ineffective.

By Daniel A. Horwitz

A Victim was injured in a car accident, and he sought chiropractic services from the Plaintiff, Action Chiropractic Clinic.  Prior to receiving the chiropractic services, the Victim signed a contract with an “Assignment of Rights” clause.  In pertinent part, the Assignment of Rights clause stated:

For treatment provided, I hereby require my Health Insurance, Auto Insurance, or any other party involved to pay by check and mail directly to: ACTION CHIROPRACTIC

. . . .

For the medical expense benefits allowable, and otherwise payable to me under the current Insurance Policy, as payment toward the total charges for Professional Services rendered.

The Assignment of Rights clause specifically named Erie Insurance Exchange as the policy holder.  Of note, however, Erie Insurance Exchange was not the Victim’s insurance company.  Instead, Erie Insurance Exchange was the insurance provider for the driver who had injured the Victim in the car accident.

Action Chiropractic Clinic ultimately charged the Victim $5,010.00 for its chiropractic services.  Shortly thereafter, Erie Insurance Exchange entered into a settlement with the Victim and paid him $8,510.00 for all claims relating to the car accident.  However, neither the Victim nor Erie Insurance Exchange paid Action Chiropractic Clinic anything for the chiropractic services that it rendered to the Victim.  As a result, Action Chiropractic Clinic sued both the Victim and Erie Insurance Exchange seeking payment, among other things, under the “Assignment of Rights” provision. Continue reading Tennessee Supreme Court holds that insurance assignment clause was ineffective.

Can Rep. Womick Impeach Governor Haslam and U.S. Supreme Court Justices Breyer, Ginsburg, Kagan, Kennedy and Sotomayor over the same-sex marriage ruling?

Can Rep. Womick impeach Governor Haslam and U.S. Supreme Court Justices Breyer, Ginsburg, Kagan, Kennedy and Sotomayor over the same-sex marriage ruling?

In a word:  No.

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Jury’s verdict that CSX was liable for negligently causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial addressing damages, holds Tennessee Supreme Court.

By Daniel A. Horwitz

A massive jury verdict finding the railroad company CSX liable for causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial on the damages awarded to the employee’s widow, the Supreme Court of Tennessee has held.

Between 1962 and 2003, Winston Payne worked for CSX Transportation as a switchman, a switch foreman, and a brakeman.  Less than three years after he retired, he was diagnosed with lung cancer.  In 2007, Mr. Payne filed a lawsuit against CSX both under the Federal Employers’ Liability Act and based on a common law negligence theory, alleging that CSX had negligently exposed him to asbestos, diesel engine exhaust fumes, and radioactive materials, and further alleging that CSX had violated several statutes and regulations designed to protect the safety of railroad employees.  According to Mr. Payne, all of these failures contributed to his developing lung cancer.

In contrast, CSX contended that Mr. Payne had instead developed lung cancer due to his history of cigarette smoking.  Furthermore, CSX contended if the jury decided to award damages to Mr. Payne based upon its negligence, then any damages award should be reduced by virtue of the impact of Mr. Payne’s cigarette smoking.  Mr. Payne died from lung cancer in 2010, and his widow continued the lawsuit in his place.

During the trial, the late Mr. Payne’s legal team Continue reading Jury’s verdict that CSX was liable for negligently causing a former employee’s lung cancer will stand, but CSX is entitled to a new trial addressing damages, holds Tennessee Supreme Court.

Does the Constitution prevent Nashville from enacting a local hire law? Yes, it probably does.

By Daniel A. Horwitz

On August 6, 2015, Davidson County voters will head to the polls to vote on Metro Charter Amendment 3, which has been dubbed the “local hire” amendment.  If enacted, the crux of Amendment 3 is that 40% of the work performed on taxpayer-funded construction projects within Davidson County would legally have to be set aside for Davidson County residents.

In recent weeks, opposing advocates have expressed their views on Charter Amendment 3 in editorials published in The Tennessean.  First, on June 22, 2015, union organizer and community activist Ashford Hughes penned the op ed: “[A] Vote for Charter Amendment 3 is [a] vote for local jobs,” in which he argued – among other things – that “[i]t makes no sense to bring in out-of-county and out-of-state hires when so many Nashville construction workers, engineers and skilled tradesmen and women are out of work.”  Making the contrary case, on June 30, 2015, Nashville Area Chamber of Commerce President Ralph Schulz penned the op ed: “Vote no on Amendment 3: It sounds good, but won’t work,” contending that the measure “would translate to longer delays on Metro construction projects and more money coming out of taxpayers’ pockets.”  Various other interested parties have also weighed in on the matter in recent days, disputing the referendum’s likely policy ramifications.

What has largely flown under the radar to this point, however, are the constitutional implications of the proposed local hire amendment, which are substantial.[1]  The text of the proposed amendment is a doozie, but in full, it reads as follows: Continue reading Does the Constitution prevent Nashville from enacting a local hire law? Yes, it probably does.