The Oklahoma Supreme Court Should Have Read This Blog

Apparently irritated at the Oklahoma Supreme Court, the United States Supreme Court today summarily reversed the Oklahoma Supreme Court decision incorrectly ruling that an arbitrator, rather than the court, must decide whether an arbitration clause in an employment contract was valid.  See this blog's report of the United States Supreme Court's prior decision on this issue here. 

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Are Republicans Intentionally Disenfranchising Obama Supporters?

As election day approaches, the courts are tackling various challenges to voter laws.  Joining the recent decision by the Pennsylvania Supreme Court is the United States Supreme Court.

Yesterday,  Monday October 15, 2012, the United States Supreme Court agreed to hear an appeal from the Ninth Circuit's April 12, 2012 decision to strike down Arizona's Proposition 200 requiring voters to provide proof of citizenship in order to register to vote. The Ninth Circuit Court of Appeal stated that under the National Voter Registration Act (NVRA), the states must "accept and use" the federal form to register to vote, which requires prospective voters to swear or affirm by their signature that they are a citizen of the United States.  The Arizona law sought to require prosepective voters to produce proof of citizenship in order to register.  The Ninth Circuit upheld Proposition 200's provision requiring voters to provide identification at the poll, but stated that the NVRA supercedes the requirement to provide proof of citizenship with the use of the NVRA voter registration form.  The Court will not hear oral argument in this case until after the election, in early 2013.

In another voters' rights case, the Supreme Court today declined to stay a decision of the Sixth Circuit Court of Appeal affirming an injunction by the lower court preventing the 2011 revisions to Ohio Rev. Code s. 3509.03 from taking effect to stop voters from casting early ballots during the three days before the November 2012 general election.  The Sixth Circuit held that the revisions to the statute were unconstitutional and blocked the revisions from taking effect.  The state of Ohio applied to the Supreme Court for a stay of the injunction "pending the filing and disposition of a petition for a writ of certiorari."  The Supreme Court stated simply in its order, "The application for stay presented to Justice Kagan, and by her referred to the Court is denied."  It remains to be seen if the Supreme Court will ultimately grant certiorari to the State of Ohio, but this will also be decided after the November election.

If anything, this flurry of appellate activity surrounding voters' rights is an indication of just how close this election is expected to be.  Every vote counts, and it appears the Republican strategy is to disenfranchise the citizens who are most likely to be a vote for Obama.  If this sounds harsh or overstated, take a look at the words of Rep. Daryl Metcalfe (R-PA), or better yet, listen to those of Penn. Republican House Speaker Mike Turzai.



UPDATE (Oct. 17, 2012): See also this reported incident..

Perhaps the Republican theme is a fear of foreigners.  In the 2008 election, it appeared to be the Birthers' fear that a foreign born President would be elected.  That red herring had to be dropped in light of the fact that Mitt Romney's father was born in Mexico.  In 2012, perhaps the fear is that foreigners are reelecting him.

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Would You Like Broccoli With That Health Insurance Plan? The Supremes Discuss The Slippery Slope Of ObamaCare

Broccoli, cell phones and burial services, oh my! What will the government force us to buy next? The parade of horribles was the topic du jour at Tuesday's oral argument before the US Supreme Court on the constitutionality of the individual mandate contained in the Affordable Care Act. The Supremes expressed concern over the slippery slope potentially created by the ACA and where the line should be drawn. At issue is whether the individual mandate of the ACA is authorized by the United States Constitution art. 1 sec. 8 clause 3, the Commerce Clause, which gives Congress the power to regulate interstate commerce. The Supreme Court has, over the past 190 years, interpreted the Commerce Clause to allow congress to regulate all sorts of industries, from ship navigation, to the Chicago meat industry, to wheat production for personal use.


Justice Scalia, notorious for his conservative legal opinions, asked the first question of Solicitor General Donald Verrilli, setting the tone for the day. Scalia queried, perhaps disingenuously, why couldn't the federal government just directly address the problems of individual access to health care rather than the individual mandate to purchase health insurance. The answer of course, is that the present Congress will not create a public health care option. Appropriately, Mr. Verrilli did not give this answer, but offered instead that the ACA is in fact addressing the problem directly.


The Justices' questions centered around the concern that if Congress can require individuals to purchase health care, why can't Congress require the purchase of a cell phone, of broccoli, of health club memberships or of funeral services? Verrilli;s answer to these questions pointed out the health care market is different because (a) it is the only market where you can show up without the means to pay and you will still be provided the service at the expense of those who do pay; (b) everyone will eventually need health care and thus everyone is a market participant; (c) the ACA seeks to regulate the health care industry, not the insurance industry, and requires the method of payment for health care be through health insurance; (d) the ACA uses the most efficient method that allows consumer choice among insurance policies; and (e) the ACA does not provide any enforcement powers--if insurance is not purchased, the penalty is not anymore than what one would have paid for the insurance.


The respondents arguing to strike the mandate did not have any easier a time with the Justices. Attorney Paul Clemente, arguing for the respondent 26 states, argued the ACA forces individuals to purchase a product. Clemente argued that defining the market as those who access health care was improper, and that the market being regulated was those that purchased insurance. Clemente suggested it would be constitutional for the ACA instead to only require that insurance be purchased at the point of sale; i.e. only when one gets sick and shows up to the Emergency Room. The Justices focused their questions to Clemente on issues regarding the definition of the market being regualted (insurance versus health care), the fact that uninsured patients already shift the cost of their health care to paying patients, and what difference does it make if the ACA requires the purchase of insurance prior to getting sick or at the time of receiving health care services.


Justice Breyer proposed a hypothetical situation several times to the respondent attorneys, asking, what if "a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can't the federal Government say all 40 million get inoculated?" Mr. Clemente avoided answering, which perhaps accounts for Justice Breyer's attempt three more times to get an answer. Justice Breyer then changed the hypothetical to whether the EPA could require all automobiles have anti pollution equipment if it turned out 60% of them caused pollution. Attorney Carvin conceded the commerce clause authorized Congress to enact such a law but pointed out only those who bought automobiles would be required to do so.


The problem with the respondents' argument is they attempt to limit the individuals affected in the market being regulated by the ACA to those purchasing insurance, leading to their protest that Congress is requiring an affirmative purchase of a product that would not otherwise be purchased. To hear the respondents say it, the 40 million uninsured are uninsured by choice, rather than because they cannot afford the premiums, and thus should not be forced to purchase an unwanted product. Justice Ginsberg's comparison of the ACA to the social security system is well taken, albiet, social security is funded by a tax, making it a different animal. The truth is, as many of the Justices pointed out, every person from the time they are born will at some point need to use health care. That is the industry that the ACA targets. The ACA mandates that health care is paid for by insurance, which the respondents concede is a proper Congressional power under the commerce clause. As Justice Kennedy pointed out, "the young [healthy] person is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that s not true in other industries." Thus their participation directly affects the price others will pay not just for insurance, but for health care. Health care costs go up because hospitals are required by federal law to treat those who cannot pay for their services, thus shifting the costs to everyone else. The respondents' solution that those who "choose" not to purchase insurance can be required to purchase it at the time they do need health cares serices, is not only unreasonable and naive, but implausible.

As Mr. Vermilli pointed out, 40 million Americans can not obtain health care insurance because of the cost of the premiums. If a point of sale requirement were placed on these individuals as argued by the respondents, the cost of insurance would essentially be the cost of the health service. Actuarially, the premium you pay is based on some calculus of the chance you will get sick and how much the health care you might need could cost. If someone shows up at the Emergency Room and endeavors to purchase insurance then and there, the chance that you will get sick is 100% because you are currently sick, and the cost is more or less calculable. So, the premium, from an actuarial point of view and the point of view of the insurance company should be the cost of the treatment you are seeking. Which brings us back to the uninsured showing up to the Emergency Room with no means of paying The cost would still be shifted to others with insurance.

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Obama Care Oral Arguments Underway

On Monday, March 26, 2012, oral arguments in front of the United States Supreme Court got underway to hear the legal challenge to the Affordable Care Act enacted by Congress and signed into law by President Obama on March 23, 2010.


The Supreme Court scheduled an unprecedented six hours over three days for oral argument this week after granting certiorari. At issue is the Act's individual mandate to purchase health insurance or pay a tax penalty. two federal appellate courts have upheld the mandate, one declared it unconstitutional and one appellate court declined to decide the issue under the Anti-Injunciton Act, ruling the issue could not be decided until tax payers are actually harmed by having to pay the tax/penalty in 2015.


Monday's oral argument focused mainly on whether the Anti-Injunction Act prohibited the present challenge, and whether the requirement that a tax payer who fails to purchase health insurance is assessed a tax or a penalty, which would dictate whether the AIA applies. There was discussion between the Justices and amicus curiae court appointed counsel Robert A. Long whether the Anti-Injunction Act is jurisdictional, thus robbing the courts of the ability to hear the issue, or directed at the Solicitor General, thus prohibiting the litigants from filing suit.


Nomenclature was an issue regarding whether the assessment is actually a tax or a penalty. Right out of the box, Justice Alito quipped to the Solicitor General for the Department of Justice Donald B. Verrilli, "General Verrilli, today you are arging that the penalty is not a tax. Tomorrow You are going to be back and you will be arguing that the penalty is a tax." When Chief Justice Roberts referred to the assessment as a penalty, attorney for challengers to the Act, Gregory G. Katsas, corrected "taxes, Mr. Chief Justice."


The attorneys were peppered with questions mainly from Ginsberg, Scalia, Sotomayor, Breyer, Roberts and Kegan, with a few questions from Alito and Kennedy. Thomas remained characteristically silent during argument.


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Noteworthy U.S. Supreme Court Decisions of 2010

Once again, this year, I was mesmerized by the melodic cadence of renowned Professor Erwin Chemerinsky’s lecture discussing the significant U.S. Supreme Court opinions of 2010.  Here is a tongue in cheek recap of some of the more interesting decisions Professor Chemerinsky highlighted.

• Don’t expect a Fourth Amendment right to privacy when sending text messages with employer-owned equipment to your mistress while on the job.

City of Ontario v. Quon, 560 U.S. ___ (2010).

• If you want to invoke your right to remain silent, break your silence and say so.

Berguis v. Thompkins, 560 U.S. ___ (2010).

• Justice Scalia has decided the invocation of the right to counsel while being questioned automatically expires after 14 days.  Thus, the new police interrogation  techniques will be to arrest and Mirandize  a suspect, and if he invokes his right to counsel during questioning, simply wait 14 day periods before interrogating again.

Maryland v. Shatzer, 559 U.S. ___ (2010).

• Locking up your teenager and throwing away the key for anything less than murder is cruel and unusual punishment.

Graham v. Florida, 560 U.S. ___ (2010).

• Criminal lawyers who want to get their resident alien clients off, advise them to plead guilty and then misadvise them a guilty plea will not result in automatic deportation.

Padilla v. Kentucky, 559 U.S. ___ (2010).

• Corporations are people too; at least when it comes to the First Amendment and spending money in election campaigns.

Citizens United v. Federal Election Commission, 558 U.S. ___ (2010).

Professor Chemerinsky has a unique ability to keep participants attentive with not only his distinctive style of speech, but with his humorous side notes and commentary.  This year I noticed that not only do more questions get asked in Professor Chemerinsky's CLE lectures, but the questions are generally the sort one would have asked in one's Constitutional Law class in law school to impress the professor, i.e., statements of opinion or analysis disguised as questions:  "Well, is it your opinion professor that this case modifies the (insert obscure reference to case law not being discussed) case?"

But, I have to admit, listening to my fellow attendees attempt to impress Professor Chemerinsky is almost as much fun as listening to his lecture.

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Ninth Circuit Rules Lower Court Appropriately Considered Award of Attorney's Fees Under ERISA To Plaintiff After Grant of Summary Judgment Against Plaintiff's Claims

On June 24, 2010, the Ninth Circuit Court decided an ERISA case entitled
Simonia v. Glendale Nissan/Infinity.  Where a plaintiff's claim under ERISA 
has achieved "some degree of success on the merits," the plaintiff may seek
attoreny's fees under section 1132(g) under ERISA.

In this case, Plaintiff's claim for continuing disability benefits was dismissed on
summary judgment, and Plaintiff's "degree of success" amounted to Defendant
Hartford agreeing to dismiss its counterclaim for overpayment of benefits due
to retroactive SSDI payments received by Plaintiff, after Plaintiff informed
Hartford that the Social Security Administration subsequently retroactively
reduced his SSDI award.

The Ninth Circuit, relying on the recent Supreme Court case Hardt v.
Reliance Standard Life Insurance Co., 560 U.S. ___ (2010), concluded 
that in exercising its discretion to award attorney's fees, a trial court must apply
the factors enumerated in Hummell v. S.E. Rykoff & Co., 634 F.2d 446
(9th Cir. 1980), to guide the trial court's decision as to whether to award
attorney's fees a determination that the plaintiff has acheived "some degree of
success" under ERISA..
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Federal Court, Rather Than Arbitrator, Had Authority to Rule on Enforceability of Arbitration Clause In Employment Agreement

Last week the United States Supreme Court decided a case originating out of Nevada,

Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___ (2010).  An employee of Rent-A-

Center filed an employment discrimination suit in federal court, and the employer filed a

motion to compel arbitration.  On Certiorari from the Ninth Circuit, the Supreme Court ruled

that under the Federal Arbitration Act, codified in Title 9 of the United States Code (FAA),

the courts could decide the enforceability of an arbitration clause in an employment agreement 

that stated the arbitrator must decide the enforceability of the agreement as a whole,  

whereas only the arbitrator could decide whether the employment agreement as a whole

was enforceable.

In opposing the motion to compel arbitration, Jackson argued the arbitration clause was unconscionable under Nevada law.  The federal trial court dismissed, stating the arbtration clause prevented it from deciding Jackson's unconscionable argument. Jackson appealed to the Ninth Circuit, which reversed, stating the courts decide the threshold question of whether the agreement was enforceable, affirmed the trial court's finding against Jackson on part of his unconscionable argument, and remanding for the trail court to decide the remainder of Jackson's unconscionable argument.

Justice Scalia delivered the opinion, and pointed out that Jackson's challenge was not to the validity of the agreement but to his manifestation of intent to the arbitration clause based on his unconscionability agrument.  Additionally, Jackson's briefs argued the entire agreement was invalid.  Based on those observations, Scalia concluded that Jackson's challenge was to the validity of the agreement as a whole versus the validity of the arbitration clause, and reversed the Ninth Circuit's decision.

Relying on First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), Justice Stevens dissented, reasoning that the arbitration clause at issue did not "clearly and unmistakeably" evince Jackson's assent to arbitration because of his unconscionability argument.  Stevens characterized Scalia's opinion as a "'fantastic' and likely erroneous decision" because it went beyond what the parties asked the Court to decide.  Stevens also asserted that the majority opinion expanded the holding in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967), where the challenge was to the validity of the agreement due to fraud in the inducement, and not to the embedded arbitration clause.  Thus, Stevens would have affirmed the Ninth Circuit's decision.

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