Due to overwhelming demand, we’d like to start this blog back up again. If you think you are the right person to be the Decision of the Day blogger, please email: alex (@) enotes.com. Thanks!

Decision of the Day began in October 2005, when I started stockpiling posts to see whether I could keep up the frenetic pace of blogging. I decided that I could and, for the most part, I did. The website went live in November 2005, and I never looked back.

Sure, I took some breaks . . . a week for a wilderness camping trip here, a couple of days for childbirth there . . . but for the past thirty months, I have spent almost every weekday reading newly published appellate decision from all thirteen circuits and picking one or two to try to bring to life for my readers.

1275 posts later, it is time to say farewell to the frenzy.

I am thankful to the wonderful people at eNotes for hosting this blog since January 2006 and making it worth my while to continue for so long. And I am very thankful to all of the bloggers who have linked to Decision of the Day, sometimes offering praise, sometimes offering sheer disdain, but mostly just offering me the reassurance that there were people out there who cared about what I was writing. Extra special thanks go out to Howard Bashman and Mike from Crime and Federalism, who both managed to find and link to Decision of the Day within minutes of it going live, pulling me out of obscurity and into the brights lights of the blawgosphere far quicker than I had ever dreamed.

And finally, a huge thanks to all of my readers. Trust me when I say I will miss you more than you will miss me.

Students for a Sensible Drug Policy v. Spellings, 07-1159 (8^th Cir., April 29, 2008)

Under a 1998 law, students who are convicted of possessing or selling drugs are ineligible for federal financial assistance. One strike buys a year or two of ineligibility and, depending on the offense, multiple strikes can result in a permanent ban. (The ban has since been amended to apply only to students who commit the offenses while receiving aid.) A group of students challenged the ban, arguing that it violated the Fifth and Eighth Amendments, but the district court dismissed their suit.

I guess the cruel and unusual punishment argument was a bit too much even for the plaintiffs, as they abandoned this claim on appeal.  But the plaintiffs did appeal on Fifth Amendment grounds, arguing that the ban violated the double jeopardy clause. They claimed that the ban amounted to a second criminal punishment for the same offense, pointing to legislative history that the ban was intended to deter drug use on campus by severely punishing those who get caught. But the Eighth holds otherwise, concluding that the ban is more like a civil sanction than punishment.  Accordingly, the Court affirms the district court’s dismissal.

In a perfectly snarky world, the Eighth would have issued this decision on April 20, but I suppose April 29 is close enough for government work.

Crawford v. Marion County Election Board, 07-21 (Supreme Court, April 28, 2008)

In January 2007, I reported on this Seventh Circuit decision, in which a divided panel upheld a controversial Indiana law that requires voters to show specific forms of identification at the polls. Advocates of the law argued that it was necessary to combat voter fraud, while opponents argued that the overly strict law was a thinly veiled attempt to disenfranchise traditional Democratic voters like the elderly and the poor. 

Judge Posner wrote the majority opinion, which was joined by Judge Sykes. Judge Evans dissented, arguing that Indiana didn’t even have a voter fraud problem and in any event, the law was the equivalent of using a sledgehammer to swat a fly off of a glass coffee table. Here’s a link to my earlier coverage.

In the event that judges actually keep track of these things, Posner and Sykes can add another check to their “win” column. Today, the Supreme Court similarly upheld the voter identification requirement, over the dissent of three Justices. And the federal appellate docket just got a little bit lighter: several challenges to similar state laws are pending in other circuits, but Indiana’s law is often described as the strictest voter identification law in the country. So it looks like Crawford is the end of the line for voting rights activitists.   

Full coverage of this important ruling is available at Scotus Blog via Rick Hasen’s Election Law Blog.

Koger v. Bryan, 05-1904 (7^th Cir., April 24, 2008)

Remember the Religious Freedom Restoration Act? That law, designed to protect religious practices from government interference, went on life support in 1997 when the Supreme Court declared that the statute was unconstitutional as applied to state and local governments. So in response, Congress enacted the stronger and tougher Religious Land Use and Institutionalized Persons Act. (Its acronym is usually pronounced “ri-LOOP-ah.”)

RLIUPA has spawned all kinds of litigation, particularly from state and federal prisoners who want to eat special meals. This case is a shining example. Plaintiff Gregory Koger was a Baptist when he entered Illinois state prison, but he went through several religious transformations while incarcerated, filing numerous requests for a special religious diet along the way. Eventually, Koger settled on Thelema, a religion founded by famed devil worshipper Aleister Crowley, whose golden rule is not “Do Unto Others . . .,” but rather “Do What Thou Wilt.” And Koger decided that for him, “Do What Thou Wilt” meant eating a special vegetarian diet. But the prison said, “Oh no you won’t.” So Koger sued, claiming that the prison was substantially burdening his religious exercise in violation of RLUIPA. And he is pursuing his suit even though he has completed his sentence and is now a free man, free to eat whatever diet he pleases.

Skeptics might think that Koger was, and still is, simply on a mission to game the system. But under RLUIPA, he’s got a triable claim. Accordingly, the Seventh Circuit reverses the district court’s decision granting summary judgment for prison officials. Judge Evans concurs but takes the opportunity to comment on the wisdom of RLUIPA. He writes,

RLUIPA, I submit, fosters the potential for mischief and game-playing. Koger’s case is, potentially at least, a pretty good example of that. . . . [W]as his request for a nonmeat diet a mere preference (he practiced yoga) or the result of a sincerely held religious belief? On this record, we have no reason to doubt that it was the latter. But one would not be terribly surprised if Mr. Koger has had a beef tenderloin or a Big Mac since he left the prison a little over two years ago.

. . .

So when all is said and done, the State of Illinois has spent a lot of money defending this case for six years. Koger may end up with a dollar, and his lawyer, Jeffrey L. Oldham, who by the way has done an outstanding job, will get a limited amount of attorney’s fees. A waste of time? Some may disagree, but I lean towards saying “yes.”

I know I already said this once this month, but it bears repeating . . .

Can I get an Amen?

Nuxoll v. Indian Prairie School District, 08-1050 (7^th Cir., April 23, 2008)

In a late-breaking school speech case, the Seventh Circuit has concluded that a high school sophomore is entitled to a preliminary injunction that allows him to wear a banned t-shirt opposing homosexuality.

This case arises from dueling awareness days and accompanying t-shirts in a Naperville, Illinois high school. On the school’s “Day of Silence,” members of the school’s gay-straight alliance broadcast their tolerance by wearing t-shirts with slogans like “Be Who You Are.” The next day is called “Day of Truth,” on which a different group of students wear t-shirts with slogans like “Be Happy, Not Gay.”

School officials concluded that the latter slogan violated the school’s code of conduct, which forbids derogatory comments about race, religion, gender, sexual orientation, or disability. So sophomore Alexander Nuxoll sued, arguing that he had a First Amendment right to wear his “Be Happy, Not Gay” t-shirt. The district court denied preliminary relief, but the Seventh Circuit reverses. The panel unanimously agrees that Nuxoll is likely to succeed on the merits of this claim and is therefore entitled to a preliminary injunction.

Judge Posner’s lead opinion is worth reading, as always. But so is Judge Rovner’s concurrence. While Judge Posner scratches his head wondering why kids are so silly and why anyone would be offended at a t-shirt, Judge Rover spills an inordinate amount of ink explaining why the slogan is derogatory. But she spills even more ink explaining why speech in schools is so important. It is a breath of fresh air after decisions like this and this, in which judges have openly disdained students who pursue First Amendment crusades. The Seventh’s decision also creates an unacknowledged split with the Ninth, which rejected a similar claim from an anti-gay high schooler. (My coverage here.)

Update: Scratch that circuit split stuff.  As a commenter points out, on remand from the Supreme Court, the Ninth dismissed its anti-gay t-shirt appeal as moot. 

Springman v. AIG Marketing, Inc., 08-1019 (7^th Cir., April 15, 2008)

In a decision issued last week and amended today, the Seventh has deepened a circuit split under the Class Action Fairness Act. CAFA gave defendants a much-fought-for right to remove certain large class actions from state to federal court, but CAFA only applies to lawsuits filed after its effective date of February 18, 2005. At issue in this Seventh Circuit appeal is whether a suit filed before CAFA’s effective date but naming the wrong defendant is subject to CAFA removal once the plaintiff names the correct defendant.

The Ninth Circuit has held that the answer is no, and that class actions filed before the effective date are not removable, even if the plaintiff substituted the correct defendant after the effective date. Several other circuits have rejected this position, and the Seventh adds itself to the list. In classic fashion, Judge Posner has this to say about his westernmost colleagues’ logic:

On the Ninth Circuit’s view, a plaintiff can defeat removal by first filing a complaint that does not include a claim or a defendant that would trigger the Act’s right of removal and later substituting a claim or defendant that would have triggered the right. Suppose that with the Act’s effective date looming, the plaintiff had not completed even a minimal pre-complaint investigation. Under the Ninth Circuit’s view, the plaintiff could sue Donald Duck for violating a Chicago noise ordinance and then at his leisure amend the complaint to substitute a proper claim against a proper defendant, and the new defendant would not be able to remove.

Benzman v. Whitman, 06-1166 (2^nd Cir., April 22, 2008)

In big Bivens news, a panel of the Second Circuit has rejected efforts to hold a government official personally liable for false reassurances about lower Manhattan’s air quality in the days after the September 11 attacks. The plaintiffs live, work, or attend school in lower Manhattan or just across the bridge in Brooklyn. They sued the Environmental Protection Agency and its Secretary, Christine Todd Whitman, for failing to disclose the dangerous environmental fallout from the World Trade Center collapse.

The key issue for this appeal is whether, accepting the plaintiffs’ allegations as true, Whitman can be held personally liable for violating the plaintiffs’ due process right to be free from government-created health dangers. The district court concluded that the plaintiffs had stated a novel yet viable constitutional claim, but while this appeal was pending, the Second Circuit rejected similar claims from Ground Zero workers. (My coverage here.) The plaintiffs tried to distinguish this unfavorable precedent on the ground that the government needed emergency workers to go to Ground Zero immediately, whereas there was no comparable need to have residents and workers return to the area right away. But the Second rejects their efforts, explaining that the same policy considerations motivated Whitman’s actions.

The plaintiffs also argued that Whitman’s reassurances were worse than deliberate indifference, the constitutional standard addressed in the prior case, and instead amounted to intentional lies. The plaintiffs pointed to the fact that others within the EPA knew that the air around Ground Zero had dangerous levels of toxins and carcinogens. But the Second holds that this information is not enough to meet the high pleading requirements for alleging that Whitman intentionally made false statements. The Court concludes that Whitman may be accused of incompetence, but her failure to stay on top of all the information possessed by 17,000 EPA employees is certainly not a constitutional violation.

The Court goes on to affirm the district court’s dismissal of the plaintiffs’ other claims under the Administrative Procedures Act. It concludes,

We understand the Plaintiffs’ concern, supported in substantial part by the report of the EPA’s own Inspector General, that the agency’s performance in discharging its responsibilities in the aftermath of the 9/11 attacks, which involved an attack on America’s largest city unprecedented in our history, was flawed. But legal remedies are not always available for every instance of arguably deficient governmental performance.

U.S. v. Arnold, 06-50581 (9^th Cir., April 21, 2008)

On the way back from a three-week vacation in the Philippines, defendant Michael Arnold was selected for secondary screening by Customs officials at Los Angeles airport. One officer asked Arnold to turn on his laptop to determine whether it was functioning. After his laptop was booted up, another officer started clicking through Arnold’s files, including one labeled Kodak pictures and another labeled “Kodak Memories.” The officer saw a picture with nude women, so he turned Arnold’s laptop and electronic storage devices over to his supervisors. They conducted a full search and found child pornography.

Arnold filed a motion to suppress the illegal images. He faced a high burden, because border searches of closed containers are almost universally upheld. But Arnold argued that a laptop should be entitled to greater protection, because it is less like a closed container and more like a home or a human mind. The district court agreed and suppressed the results of the search.

On appeal, a panel of the Ninth Circuit reverses. Writing for the Court, Judge O’Scannlain takes Arnold’s analogy a step further, arguing that a laptop is less like a home and more like an automobile for Fourth Amendment purposes. Indeed, in California v. Carney, the Supreme Court rejected similar claims about a search of a mobile home. Judge O’Scannlain draws on this decision, explaining,

Here, beyond the simple fact that one cannot live in a laptop, Carney militates against the proposition that a laptop is a home. First, as Arnold himself admits, a laptop goes with the person, and, therefore is “readily mobile.” . . . Second, one’s “expectation of privacy [at the border] . . . is significantly less than that relating to one’s home or office.”

Finally, Arnold argued that using the legal images on his computer as a basis for conducting a more intensive search violates the First Amendment. But Judge O’Scannlain rejects this suggestion, pointing to a decision from the Fourth Circuit that upheld a child pornography search based on the fact that the defendant had a video of a young boy playing tennis on his camera. That court concluded that carving out First Amendment rights at the border would hamper law enforcement and help the terrorists. The panel is persuaded by the Fourth’s analysis and declines to create a circuit split on this issue.

U.S. v. Bonilla, 06-40894 (5^th Cir., April 16, 2008)

With most eyes focused on a trio of major sentencing decisions issued yesterday by the Supreme Court, it was easy to miss this divided Fifth Circuit sentencing decision. But it is definitely worth a read. The defendant appeals his forty-one month sentence for being in the United States after deportation. He argues that the district court erred in applying a sixteen-level sentencing enhancement based on his previous crime of attempted manslaughter.

All three panelists agree that the district court should not have applied the sixteen-level enhancement. But the majority of Chief Judge Jones and Judge Davis affirms the sentence anyway, based on the district judge’s statement that even if he was wrong about the enhancement, he would have given the defendant the same sentence. Although the majority concedes that the district court did not give a suitable rationale for this “alternative” sentence, the majority opts to examine the record and create its own rationale.

Judge Garza strongly dissents, arguing that the majority’s willingness to gloss over the district court’s error flies in the face of the Supreme Court’s recent sentencing decisions. And the majority’s decision to scour the record for facts to support the district court’s “alternative” sentence for the sake of efficiency will end up creating a lot more work for appellate courts.