ISU asks Eighth Circuit to stop marijuana advocates from using the university’s logo

By: Rox Laird on April 6th, 2016

Iowa State University students advocating marijuana law reform won a First Amendment victory against the university in federal court in Des Moines in January. Now ISU wants to put that victory on hold while the university’s appeal is considered by the Eighth Circuit U.S. Court of Appeals.

U.S. District Judge James Gritzner ruled that ISU violated the First Amendment rights of student leaders of the National Organization for the Reform of Marijuana Laws (NORML) campus chapter when the university – based on the group’s political viewpoint – denied permission to use the school’s trademarked logos on NORML’s T-shirts and other materials depicting a cannabis leaf.

ISU appealed that ruling, and a flurry of preliminary motions and responses from the two sides presage a closely fought battle between students’ free speech and the university’s desire to protect its public image.

Not surprisingly, the two sides disagree on the need for a stay and issues central to the case.

The ISU defendants argue in the motion seeking a stay order that “ISU trademarks constitute government speech which they exclusively control and license in accordance with the overall goal of their trademark policies: to promote the image of the University.”

Unless the Court blocks enforcement of Judge Gritzner’s ruling, ISU says it would be “irreparably injured” because it would lose its right to control its own speech by allowing its trademarks to be associated with symbols of illicit drug use.

In response, the students say this case is not about trademarks or “government speech.” Rather, they argue, it is about “viewpoint discrimination” and how the university licenses its trademarks “when student organizations incorporate them into their speech.”

“The district court entered an injunction on summary judgment to prevent ISU from engaging in viewpoint discrimination in its trademark licensing program,” they say, and ISU’s motion for a stay pending appeal “seeks to allow ISU to continue discriminating on the basis of viewpoint until this Court decides the matter.”

What the Eighth Circuit decides on the motion for a stay might hint at how the appeals court judges see the issues. In any case, the final outcome won’t be known for several months after the case is briefed and argued.


Eighth Circuit to decide whether company executives can be jailed under a “responsible corporate officer” theory

By: Rox Laird, Ryan Koopmans on March 14th, 2016

National business groups are keeping a nervous eye on two Iowa egg company executives’ appeal to be heard Thursday by the U.S. Court of Appeals for the Eighth Circuit in St Paul.

A federal trial judge in Sioux City last April sentenced the top two executives of an egg-production company to three-month prison terms following a massive salmonella outbreak that sickened thousands of consumers.

The central question in the appeal is whether top executives of a corporation can be sentenced to prison for a crime that the company committed but that the executives did not “personally participate” in.  Five national business associations, including the National Association of Manufacturers and the U.S. Chamber of Commerce, submitted briefs to the federal appeals court saying that sending executives to prison under the so-called “responsible corporate officer” theory would have a “chilling effect” on businesses because  it “dramatically increases the risks of being a business executive in a regulated industry.”

Austin (“Jack”) DeCoster, the owner of Quality Egg that operates several egg-producing facilities in Iowa, and his son Peter, the company’s chief operating officer, pleaded guilty last year to criminal charges related to a salmonella outbreak across the country in 2010. That outbreak caused nearly 2,000 reported illnesses and the recall of 500 million eggs.

In addition to levying fines of $100,000 each and other financial penalties, U.S. District Judge Mark Bennett in Sioux City sentenced each DeCoster to three months in federal prison, and both men have now appealed.

Both sides called in big legal guns: The DeCosters retained Washington, D.C. attorney Peter Keisler from Sidley Austin LLP; the U.S. Justice Department’s civil appellate division and consumer protection branch are assisting the U.S. Attorney for the Northern District of Iowa.

The DeCosters acknowledge the company’s criminal violations for wrongdoing by employees that included falsifying inspection records, mislabeling expiration dates, and bribing a USDA inspector, but they argue that prison sentences are unconstitutional without evidence that they (the two executives) personally participated in the criminal violations or intended to violate the law.

“For more than a century, crimes like these have been punished by fines, occasionally probation, and above all the serious stigma and collateral consequences of criminal conviction,” their lawyers argue in a brief submitted to the appeals court. “Considered against that backdrop,”  it would violate due process and be “cruel and unusual” to send the DeCosters to prison, they argue.

Lawyers for the government contend that the constitution does not prohibit courts from sending an executive to jail, even if he did not “personally participate in the company’s violation.” But they also argue that there’s no reason to address that issue here, because, they say, the DeCosters were directly responsible for wrongdoing by their employees in Iowa: They had knowledge of what was going on at the egg production facilities and what was necessary to prevent the spread of salmonella.

The evidence, the government argues, showed that the DeCosters not only did nothing to prevent the contamination but sought to prevent the government from knowing of the extent of the problem in Iowa: “As the DeCosters themselves emphasize, they were aware for many years that their facilities—and the laying hens themselves—had tested positive for Salmonella, thus putting them on notice of the risk of egg contamination.  Yet defendants, who were indisputably responsible for managing the business, did not take the steps necessary to ensure that Salmonella-contaminated eggs were not shipped in interstate commerce.”

So the case could simply come down to the facts–what did the DeCosters know and when, and what actions did they take, if any.  But if three three-judge panel (Judges Murphy, Beam, and Gruender) decides in the DeCosters’ favor on the factual issue, then they will go on to address the broader legal question: whether district court can send executives to prison under a “buck stops here” theory, or whether punishment for these kinds of strict-liability crimes are limited to fines.


Eighth Circuit reverses “novel” limitation on a defendant’s procreation

By: Uncategorized on July 21st, 2015

Today, the Eighth Circuit ruled that a district court goes too far when it attempts to limit a defendant’s ability to procreate.  

Christopher Harris, a convicted felon, fathered ten children out of wedlock with seven different women.  After Harris was caught illegally possessing firearms, the district court took it upon itself to curtail Harris’s procreation, which the court viewed as a “very serious social problem.”  So the court crafted a special condition of supervised release that the Eighth Circuit accurately described as “novel.”  The court ordered that Harris not engage in “unprotected sex activities without probation office approval.”  Harris, apparently not wanting to run these things by his probation officer when he’s released in 2029 (he got a fifteen year sentence), appealed.

The Eighth Circuit, Judge Colloton writing, held that the district court lacked authority to impose the special condition:

For one thing, the special condition as pronounced is even broader than the novel restriction on fathering children that the court seemed to contemplate during the hearing.  By restricting “unprotected sex activities,” without limitation, the condition purports to regulate conduct that could not result in pregnancy.  The condition is not even reasonably related to the purposes that motivated the condition.

There were other problems with the restriction.  There was no showing, for example, that Harris’s sexual activity was “related to his unlawful possession of a firearm.”  The restriction also involved a greater deprivation of liberty than was necessary to provide deterrence and protect the public from future crimes.  In short, the district court “sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.”


Beard Update

By: Uncategorized on January 21st, 2015

Last month, the Eighth Circuit rejected Arkansas inmate Christopher Deaton’s request to grow a full-length beard for religious reasons.  As we noted then, Judge Colloton dissented, arguing that the panel should wait for the Supreme Court’s decision in Holt v. Hobbs, another beard case out of the Eighth Circuit.  Although Holt is a bit different (it involves an inmate’s “compromise” request for just a half-inch beard), Judge Colloton noted that the Supreme Court’s soon-to-come decision might give the Eighth Circuit some guidance in approaching the more robust beard at issue in Deaton.  And, as Judge Colloton noted, awaiting the outcome in Holt could save Mr. Deaton the burden of filing a cert. petition and waiting for the Supreme Court to vacate the Eighth Circuit’s decision and remand for further consideration in light of Holt.

Yesterday, just over a month after the Eighth Circuit rejected the beard request in Deaton, the Supreme Court held that Gregory Holt is entitled to grow a half-inch beard consistent with his religious beliefs.  It’d be tough, the Court thought, to stash contraband in such a short beard.  Wouldn’t the stuff just fall out?  And the prison lets inmates have hair on their heads; can’t they hide contraband there, too? The state’s concerns with the well-kept beard seemed overblown, so the no-beard policy had to give way to Holt’s religious exercise under the Religious Land Use and Institutionalized Person Act (RLUIPA). 

But as Deaton teaches, beards come in all shapes and sizes.  Do the security concerns grow with the beard?  That’s the question now facing the Eighth Circuit after Holt.  And fortunately for Mr. Deaton, it doesn’t look like he’ll have to go to the Supreme Court (at least not yet) to pursue his case.   Late last month, he asked for more time to file a petition for rehearing.  The Court granted that request, so the Eighth Circuit should be able to reconsider Deaton (in light of Holt), without the rigmarole of a cert. petition and remand order. 


When should an inferior court just sit tight?

By: Ryan Koopmans on December 18th, 2014

That was the main question yesterday in Deaton v. Arkansas Department of Correction. Arkansas prisoner Christopher Deaton wants to grow a full-length beard for religious reasons, but prison policy doesn’t allow it because of safety concerns.  Deaton sued under the Religious Land Use and Institutionalized Person Act (RLUIPA), but a federal district court threw out the case and yesterday an Eighth Circuit panel summarily affirmed that ruling in a one-paragraph order.

One paragraph, because the Eighth Circuit has already decided this question.  In fact, the court ruled last year in Holt v. Hobbs that the no-beard policy doesn’t violate RLUIPA even if the prisoner agrees to keep his facial hair to a half inch.  And since one three-judge panel cannot overrule another, the panel in Deaton has no authority to say that a full-length beard is okay.

But it might soon.  Which is why Judge Colloton dissented.  The Supreme Court granted cert. in Holt and heard oral argument in October.  That means a decision could be coming out any day, and any day the law in the Eighth Circuit might be completely different.  So why not wait, Judge Colloton asks:

This case is factually distinguishable from Holt, because appellant Deaton—like the prisoner in Fegans v. Norris, 537 F.3d 897 (8th Cir. 2008)—claims a right based on RLUIPA to grow a full beard in accordance with his religious beliefs. But the Court’s reasoning in Holt will inform how Deaton’s claim should be analyzed and whether Fegans has continuing vitality. In the interest of judicial economy, I would hold this case briefly pending a decision in Holt rather than burden Mr. Deaton with the need to file a petition for writ of certiorari to secure an order granting certiorari,vacating this court’s decision, and remanding for further consideration in light of Holt.

That’s not the kind of dissent we usually get to see.  It’s not about the merits of the case (everyone agrees that Eighth Circuit precedent dictates the outcome, at least for now) but on how the court should conduct its business. Assuming he does not file for rehearing, Deaton will have to write and file a cert. petition and  file a motion to proceed in forma pauperis (i.e., ask the court to waive the filing fee).  He has 90 days to do that, so the Supreme Court may very well have decided Holt by then.  That, though, won’t alleviate the need for the filings, even if it’s clear that Deaton would win under the new Supreme Court decision. (And if oral argument is any indication, it seems likely that Deaton will get some help.)

But the extra burden isn’t just on Deaton.  The Supreme Court clerk’s office will have to docket the case, a law clerk in the Supreme Court clerk pool will have to review the cert. petition, verify that the Holt decision could possibly change the outcome, and draft a memo to the justices recommending that the court grant the petition and remand the case to the Eighth Circuit.  Once the Court enters the order, the Eighth Circuit clerk’s office will have to notify the panel that the case is back, thus putting the three judges back in the same position they would have been had they held the case (which was submitted just last month) a few more months.  Hence Judge Colloton’s dissent.


Supreme Court Takes Up Two Cases from the Eighth Circuit

By: Administrator on March 3rd, 2014

By Ryan Leemkuil

This morning, the United States Supreme Court agreed to review two cases from the Eighth Circuit Court of Appeals.

In Holt v. Hobbs, the Court will consider the legality of the Arkansas Department of Corrections’ no-beard growing policy.  Gregory Holt (a/k/a Abdul Maalik Muhammad) challenged the ban, seeking permission to grow a half-inch beard consistent with his Muslim beliefs.  The state denied Holt’s request, citing security concerns (inmates might hide contraband in their beards or quickly change their appearance with a shave).  Last June, the Eighth Circuit upheld the policy as the least restrictive means of furthering prison security interests.  Holt, in a handwritten pro se petition, convinced the Supreme Court to take up his challenge to the beard-ban.

In the other case, Warger v. Shauers, the Court will consider whether juror testimony is admissible to show alleged juror dishonesty as the basis for a new trial.  Last year, the Eighth Circuit held the evidence was inadmissible under Federal Rule of Evidence 606, reasoning that “occasional inappropriate jury deliberations” are preferable to “relentless post-verdict scrutiny and second guessing.”  The panel did, however, acknowledge a circuit split on the issue, and the Supreme Court appears poised to resolve that conflict.

 


The Eighth Circuit Bar Association’s Winter Newsletter is Out

By: Ryan Koopmans on February 13th, 2014

The Eighth Circuit Bar Association’s winter newsletter is now available here.  It covers Eighth Circuit decisions on topics from NFL collective bargaining to the Truth in Lending Act, and it contains another profile of the Eighth Circuit’s newest member, Judge Jane Kelly.


Robert Bork v. Antonin Scalia, Tom Harkin, and the Iowa Supreme Court’s upcoming decision in Bertrand v. Mullin

By: Ryan Koopmans on January 28th, 2014

Last Thursday, the Iowa Supreme Court heard oral argument in Bertrand v. Mullin and the Iowa Democratic Party, a defamation case that stems from a state senate race out of Sioux City.  Shortly before the November 2010 elections, Republican Rick Bertrand sued  in response to an ad that his opponent, Rick Mullin, and the Iowa Democratic Party ran against him.

An ominous-sounding voice (you know the one) told the audience that “Bertrand doesn’t want you to know he puts his profits ahead of children’s health.”  “Bertrand,” the voice said, “was a sales agent for a big drug company that was rated the most unethical company in the world.”  And the “FDA singled out Bertrand’s company for marketing a dangerous sleep drug to children.”


The NFL Goes Back to the Eighth Circuit

By: Ryan Koopmans on January 14th, 2014

The decades-old battle between the NFL and its players is returning to the Eighth Circuit this morning, when  the NFL Players Association will ask a three-judge panel to reinstate its lawsuit against the teams and their owners for secretly setting a salary cap for the 2010 season, which was supposed to be uncapped.

In 1993, the players and the NFL entered into a settlement agreement in White v. NFL that governed the league’s labor relations until 2011.  That agreement allowed the NFL to set a salary cap, but it also provided that the “Final League Year”–the season before the agreement expired–would be uncapped.  The theory was that the owners’ fear of a salary-cap free season would entice them to extend the agreement into perpetuity.

It seemed to work.  The two sides extended the agreement in 1996, 1999, 2002, and 2006.  But a few years after the last extension, the NFL announced that it wasn’t going to play that game anymore; it was letting the agreement expire in the spring of 2011, meaning that the 2010 season would be uncapped.

Or at least it was supposed to be.  The players now allege that the owners agreed to a secret $123 million salary cap during the 2010 season.  There were a few rogues, as there often are.  The Redskins, Cowboys, Raiders, and Saints exceeded the unspoken payroll limit by$103 million, $53 million, $41 million, and $36 million, respectively.  But the league later punished those teams by taking salary-cap space from worst offenders (the Redskins and the Cowboys) for the 2011 and 2012 seasons and evenly distributing that amount to every other team, except the Raiders and Saints.

After the NFL doled out the punishments, some of the other owners were blunt about the reason.  New York Giants owner John Mara said that the Redskins and Cowboys had violated “the spirit of the salary cap” because they “attempted to take advantage of a one-year loophole”–meaning the 2010 uncapped season.

So the players  might have a case–if they can ever get to the merits. When the owners locked out the players after the 2011 season, the players disbanded their union and filed another antitrust action (Brady v. NFL).  The district court sided with players by enjoining the lockout, but the Eighth Circuit reversed and as a result the players and owners entered into a new collective bargaining agreement.  As a condition of that agreement, the owners made the players file a stipulated dismissal in the White v. NFL class action, which stated that the players and their association agreed to dismiss all potential claims for any breach of the 1993 agreement “known and unknown, whether pending or not.”

That dismissal includes the claim that the owners wrongly conspired to set a salary cap for the 2010 season, so the district court dismissed the players’ claim.  And that’s the issue the Eighth Circuit panel (Chief Judge Riley and Judges Wollman and Shepherd) will hear today.

The players argue that because the White case was a class action (meaning that some of the plaintiffs weren’t directly represented), the dismissal of all claims related to the 1993 White settlement couldn’t happen unless and until the district court held a fairness hearing and approved it under Rule 23(e).

The parties’ briefs are linked below.  The case will likely be decided sometime before the 2014 season begins.  If the Eighth Circuit reverses and sends the case back to district court, the NFL will face a potential $3 billion judgment.

Players’ opening brief
Owners’ brief
Players’ reply brief


Judge Colloton warns of Twombly and Iqbal embellishment

By: Ryan Koopmans on September 12th, 2013

Twombly and Iqbal aligned the case law with the Federal Rules’ pleading standards, they didn’t change them (nor could they).  That was Judge Colloton’s message last week in Horras v. American Capital Strategies, Ltd., an Iowa case about minority shareholder rights.

Thomas Horras owned a minority interest in a home healthcare business and the majority shareholder purported to sell out without telling him.  So Horras sued.  He claimed that the majority shareholder had a duty to disclosure the sale to him, especially because the majority shareholder represented that it was selling all of the company’s shares, not just a controlling interest.

The district court dismissed the lawsuit, and last week an Eighth Circuit panel affirmed that ruling 2-1. The majority of the panel, Judge Gruender writing, concluded that if given the chance, the Iowa Supreme Court would not require majority shareholder to tell the minority shareholder that he intended to sell the majority interest.  While the Iowa Supreme Court might very well recognize such a claim for a closely held company, Horras hadn’t pled that this was a closely held company.  And according to Judge Gruender (joined by Judge Benton) Twombly and Iqbal require that he plead it.

As for Horras’s claim that the majority shareholder purported to sell all of the company’s shares, Judge Gruender wrote that Horras hadn’t properly pled that either.  The breach-of-fiduciary-duty count stated only that the majority shareholder failed to notify Horras of “corporate activity [a]ffecting his shares.”  The part about purporting to sell off the shares was in a separate breach-of-contract count, which the district court also dismissed.  (That dismissal was unanimously affirmed.).

Judge Colloton dissented. In an interesting opinion about what Twombly and Iqbal do and what they don’t, Judge Colloton–who served on the Advisory Committee on Civil Rules from 2008-2013– concluded that Horras said enough to get by the motion to dismiss.  Here’s the relevant portion of his dissent:


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