Abell's Kentucky Law Blog

Does the Supreme Court Even Understand the Healthcare Reform Law?

Does the Supreme Court even understand the healthcare reform law? Has the nine-member Court and the lawyers that argued before it failed to grasp a basic point about the law's mandate for individuals to obtain health insurance?  Ricardo Alonso-Zaldivar in an article, Individuals Can Comply With Obama Insurance by Buying Skimpy Insurance; Did Justices Understand?, in the Minneapolis Star-Tribune offers this observation:

A possible misunderstanding about President Barack Obama's health care overhaul could cloud Supreme Court deliberations on its fate, leaving the impression that the law's insurance requirement is more onerous than it actually is.

During the recent oral arguments some of the justices and the lawyers appearing before them seemed to be under the impression that the law does not allow most consumers to buy low-cost, stripped-down insurance to satisfy its controversial coverage requirement.

In fact, the law provides for a cheaper "bronze" plan that is broadly similar to today's so-called catastrophic coverage policies for individuals, several insurance experts said.

Robert L. Abell
www.RobertAbellLaw.com 

 

Did the Fifth Circuit Have a "Hissy Fit"?

Tonight's homework is a three-page assignment explaining the historical significance of judicial review.  The student: the Department of Justice.  The teacher: Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit.  Jeffrey Toobin describes this judicial "hissy fit" on CNN: Court's Obama Order a "Hissy Fit."

Robert L. Abell
www.RobertAbellLaw.com 

Did Dickens Hate Lawyers?

February 7 is the bicentennial of Charles Dickens's birth in England. In his many books and stories, Dickens was unsparing toward lawyers. Here's an interesting take in the New York Times: Dickens v. Lawyers.

Robert L. Abell
www.RobertAbellLaw.com 

Should A Judge Recuse When He Owes Money to One of the Law Firms In A Case?

It would seem obvious that a judge who owes money to one of the law firms representing a party in a lawsuit before that judge should recuse or get off the case. But Justice Michael Gableman of the Wisconsin Supreme Court sees it otherwise as discussed in this New York Times editorial: A Wisconsin Judge's Refusal to Recuse.

Robert L. Abell
www.RobertAbellLaw.com

Sixth Circuit Hears Appeal of Phen-Fen Lawyers, Gallion and Cunningham

The federal Sixth Circuit Court of Appeals today heard argument in the appeals of phen-fen lawyers William Gallion and Shirley Cunningham reports the Lexington Herald-Leader, "Federal Appeals Court Hears Kentucky Diet Drug Pair."

Order In the Court!: Wisconsin Supreme Court Justice Accused of Choking A Colleague

Wisconsin Supreme Court Justice David Prosser, who was barely re-elected in November, has been accused of choking a colleague, Justice Ann Walsh Bradley, in her court office after she asked him to leave:

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the Milwaukee Journal-Sentinel.

Justice Prosser does not come off looking too good as the story, "Justices Feud Gets Physical," reports what appear to be prior instances of bullying by him of Chief Justice Shirley Abrahamson.

Robert L. Abell
www.RobertAbellLaw.com 

 

“This is a business court. Now it’s the era of the corporation and the interests of business.” -- The Supreme Court That We Have

The Supreme Court led by Chief Justice John Roberts has become an aggressive advocate for and defender of big business and corporate interests reports Adam Liptak in the New York Times, "The Roberts Court Comes of Age."  This should give you the picture:

The Citizens United decision contained not a trace of minimalism, and it showed great solicitude to the interests of corporations.

“They’re fearless,” Lisa S. Blatt, who served in the solicitor general’s office for 13 years before joining Arnold & Porter last year, said of the justices in the majority. “This is a business court. Now it’s the era of the corporation and the interests of business.”

Robert L. Abell
www.RobertAbellLaw.com

The Common and Meaningless Defense: "To the extent that Plaintiff ..."

Almost as a matter of course an answer to a complaint asserts a number of defenses for which there is no possibility of any factual basis (nor was there any contemplated) and equally as often the defenses have some amorphous phrasing such as "to the extent that plaintiff did not mitigate her damages."

Almost never are these meaningless recitations ever questioned by the Court. It is plain that it is almost never because the Court in Santiago v. Pulido, No. 02-C-1160, questioned these rote recitations in a sua sponte order as follows:

After all, it is really meaningless to say that a plaintiff may not recover "to the extent" that some defect may exist, without in any way identifying how that hypothetical possiblity relates to the case at hand.

The judge, Hon. Milton Shadur of the Northern District of Illinois, also questions whether defendant truly means its blanket denials of particular and specific allegations in the plaintiff's complaint, asking and directing as follows:

Does District really know that those charges are untrue, so that it can flat out deny them in good conscience, or is it rather opting to believe Pulido in a situation in which only the two protagonists know the real facts? ... As long as District's counsel must return to the drawing board in any event, she should give careful consideration to each responsive paragraph to avoid the rote repetition of outright denials where they are inappropriate. 

A copy of this remarkable memorandum order can be read here.

Robert L. Abell
www.RobertAbellLaw.com

Supreme Court Rules On How Much Justice Can Be Bought

How much justice can be bought? This question arises from judicial campaign contributions and the escalating expenses of state judicial campaigns and the Supreme Court answered it Monday in Caperton v. Massey Energy.  The answer is when it is just too much and "extraordinary."

 

The story began in August 2002 with a $50 million jury verdict for Caperton against Massey Coal, which was found to have engaged in fraudulent misrepresentations, concealment and tortiously interfered with Caperton’s business relationships. The trial court ruled that Massey Coal acted with “utter disregard” for Caperton’s rights and succeded in destroying its businesses. 

 With an eye on the appeal, Don Blankenship, Massey’s chairman, decided to get him elected a Justice to the West Virginia Supreme Court. Blankenship donated or spent more than $3 million for his preferred candidate, a previously obscure lawyer Brent Benjamin. Blankenship’s $3 million was more than the total amount spent by all other Benjamin supporters put together and three times the amount spent by Benjamin’s own election committee; it was more than $1 million more than the total amount spent by both candidates’ committees.  Money talks and Benjamin won a seat on the West Virginia Supreme Court. After Massey appealed, Benjamin twice refused to recuse himself and voted in Massey’s favor to vacate the jury verdict.  The Supreme Court decided to review Benjamin's refusal to recuse himself.

The Supreme Court ruled that it was just too much money, that the appearance of  justice being for sale was just too strong.  The basic inquiry, the Court explained," centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election."  And Blankenship's $3 million was just too much, the Court explained:

we conclude that Blankenship’scampaign efforts had a significant and disproportionateinfluence in placing Justice Benjamin on the case.Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin. His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin’s campaign committee.


The problem, the Court emphasized, is that it looked like Massey and Blankenship had gotten all the justice that money could buy:

Although there is no allegation of a quid pro quo agreement, the fact remainsthat Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome. Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause. And applying this principle to the judicial electionprocess, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

Money talks for sure and they say it swears too.  When it swears too loud, it violates, according to the Supreme Court, basis principles of due process.  This was, the Court said, "an extraordinary situation."


Robert L. Abell
www.RobertAbellLaw.com

Justice For Sale? Supreme Court To Decide West Virginia Judicial Campaign Contribution Case

The United States Supreme Court indicated Friday that it will decide a case that comes close to the very fundamental question of whether justice and a court can be bought.  The case, Caperton v. A.T. Massey Coal Company, Inc., according to the petition for writ of certiorari filed the losing party in the West Virginia Supreme Court, presents the following question:

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court -- more than 60% of the total amount spent to support Justice Benjamin's campaign -- while preparing to appeal the verdict against his company.  After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict.  The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment. (The petition for certiorari can be read here). 

The petition leans primarily on an "appearance of bias" argument, stopping short of accusing or alleging actual bias.  It recites prior pronouncements by the Court that "to perform its high function in the best way justice must satisfy the appearance of justice."  Basic components of fairness are implicated:  (1) a "fair trial in a fair tribunal is a basic requirement of due process" and, (2) a "neutral and detached judge" is an essential component of this due process requirement." 

It does not appear that the Court will be asked to prohibit categorically campaign contributions by individuals in judicial elections, while noting that between 1999 and 2006 candidates seeking seats on state supreme courts raised more than $157 million.  The Court is urged to "clarify the circumstances in which due process requires the recusal of a judge who benefited from the campaign expenditures of a party or an attorney."  And so the Court is asked to draw the line at which point it may appear that justice has been bought. 

Robert L. Abell
www.RobertAbellLaw.com