Archive for January, 2015

Wendell Berry: Ky. writers have too little impact on public discourse

Thursday, January 29th, 2015

150128KyWriters0027After becoming the first living author inducted into the Kentucky Writers Hall of Fame on Wednesday night, Wendell Berry, right, talked with Julie Wrinn, director of the Kentucky Women Writers Conference. At left is writer Jason Howard,  editor of Appalachian Heritage, a literary quarterly. Behind them, writer Bianca Spriggs. Photo by Tom Eblen


As the first living author inducted into the Kentucky Writers Hall of Fame, Wendell Berry lamented that many fine books the state’s authors have written about Kentucky issues have had little impact on public discussion or policy.

In most ways, Kentucky is too fragmented a state, Berry said in remarks at a ceremony Wednesday night at the Carnegie Center for Literacy and Learning, where he and five writers from the past were inducted into the Hall of Fame.

“This fragmentation is made possible, and continually made worse, by a cloud of silence that hovers over us,” Berry said. “We have in this state no instituted public dialogue, no form in which a public dialogue can take place.

“This public silence ought to be a worry, especially to writers,” he said. “What is the effect or fate, Kentucky writers may ask, of Kentucky books devoted to urgent public issues — Night Comes to the Cumberlands or Lost Mountain or Missing Mountains or The Embattled Wilderness?”

Lt. Gov. Crit Luallen, who spoke earlier at the ceremony, said afterward that Berry underestimates the impact of those books and others like them. They may not have led to solutions for Kentucky’s many problems, she said, but things would be worse without them.

Before Berry’s remarks, excerpts from the work of the five deceased authors were read. The standing-room-only crowd that filled the Carnegie Center’s first floor included many writers likely to earn spots in the Hall of Fame someday.

The other new inductees were: Hunter S. Thompson (1937-2005) of Louisville, who created “gonzo journalism”; Guy Davenport (1929-2005) of Lexington, who during his lifetime won a MacArthur Foundation “genius” grant; Effie Waller Smith (1879-1960), a black poet from Pike County; Elizabeth Hardwick (1916-2007) of Lexington, a novelist and critic who helped foundThe New York Review of Books; and Jim Wayne Miller (1936-1996) of Bowling Green, an author and poet.

Middle Class Getting Squeezed Out of Courts. So What is Being Done About it?

Tuesday, January 27th, 2015


Julie Kay, Daily Business Review

January 26, 2015

Chief Justice Jorge Labarga and Judge Marcia CookeAM Holt

Poor and middle-class litigants in Florida are increasingly showing up to court without lawyers, resulting in a significant access-to-justice problem throughout the state.

That was the consensus of a panel on “The Importance of Access to Justice to the Judiciary” held Friday at the University of Miami School of Law. The panel was part of a Legal Services Corp. half-day seminar.

Panelists included Florida Supreme Court Chief Justice Jorge Labarga; U.S. District Judge Marcia Cooke in Miami; Richard Leefe of Leefe, Gibbs, Sullivan & Dupre in Louisiana; Puerto Rico Supreme Court Chief Justice Liana Fiol Matta; and William Van Norwick Jr., a retired judge from Florida’s First District Court of Appeal. The panel was moderated by Harvard law dean Martha Minow.

Cooke and other panelists said they are more concerned about the “working middle class” who are not eligible for legal aid programs like the poor.

“I have seen a lot of working middle class litigants in court without attorneys,” she said. “Where they might have had a neighborhood attorney representing them before, now they are in court alone. Somewhere the wheels have fallen off the bus for the working middle class.”

Labarga saw the same thing during his 15 years as a Palm Beach trial court judge, particularly in foreclosure cases.

“Every other case had one unrepresented party,” he said. “Today, it must be even more. There is nothing more heartbreaking than to have a foreclosure case, and the bank’s lawyer comes in all polished, well-dressed, and he knows exactly what to do, and you see a husband and wife all by themselves with a file. As a judge, you can’t say, ‘This is what you have to do so I can rule in your favor,’ but you want to.”

Labarga noted the New York Bar requires law school graduates to perform 50 hours of pro bono work before they are admitted to the bar and California allows nonlawyers to help litigants. “Here in Florida I’d get pushback from the Bar for trying that,” he said.

The governor has not been supportive, vetoing extra legal aid funding every year, panelists noted.

Legal forums and advice columns are helpful in simple situations—but not with complex foreclosure cases, noted Van Nortwick.

“We need more money to hire lawyers for the poor and middle class. That’s the sad problem,” he said.

Labarga called on “mega law firms” with hundreds of attorneys to “kick in and help out.”

Some programs exist but are not well-publicized. Cooke asked the audience how many knew lawyers could volunteer for pro bono cases on the federal court’s website.

Cooke called on her fellow judges to be more flexible when dealing with pro bono lawyers, while Labarga encouraged them to simply thank lawyers handling such cases.

“I always did that,” he said. “It goes a long way.”

Labarga is hoping the situation will improve now that he launched the Florida Commission on Access to Civil Justice, which met for the first time this month. The major initiative of his two-year administration, the commission will study the unmet civil legal needs of disadvantaged, low-income and moderate-income Floridians.

The commission includes Gov. Rick Scott, members of the Florida House, law school deans, former American Bar Association president Martha Barnett and general counsel of Publix and Disney.

Having lawyers for two of Florida’s largest employers on board is important because they understand the difficulties of having their employees sidetracked by legal problems, Labarga said.

“I’m going to push this as hard as I can,” he said.

The situation is better in other states with so-called low bono programs to help middle class litigants, Minow said.

In Louisiana, several groundbreaking initiatives have made that state a leader in providing access to justice to all. One program seeks to mirror medical residencies, pairing recent law graduates with one-year internships representing indigent clients for a $36,000 salary. The program has been so popular that the unemployment rate for new lawyers, once 47 percent, is now non-existent. The only ones who aren’t fans of the program are some law firms that fear losing top job candidates, Leefe said.

“We think it’s a win-win,” he said. “We’ve had a great response from students.”

Additionally, Louisiana has kiosks staffed by volunteer lawyers at every courthouse and library in the state. These pro bono lawyers provide information and forms—but not legal advice—to litigants who lack lawyers.

LSC is the nation’s single largest funder of civil legal aid for low-income Americans. The organization has a budget of $365 million and dispensed about $20 million in grants last year to Florida legal aid programs, including two in South Florida.

Julie Kay can be reached at 305-347-6685.

Read more:

Supreme Court knocks down promised health benefits for union retirees

Monday, January 26th, 2015




Supreme Court deals setback to unions over pledges to provide lifetime health coverage

The Supreme Court cast doubt Monday on the future of old union contracts that had promised lifetime health benefits for retired workers and their families.

In a case seen as a victory for corporate America, the justices ruled these promises should not be treated as “vested rights” unless they are spelled out in the contract.

“When a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life,” wrote Justice Clarence Thomas.

In the unanimous opinion, Thomas chided lower-court judges who upheld the retiree benefits, citing “traditional principle that courts should not construe ambiguous writings to create lifetime promises.”

In decades past, union contracts often included a promise from the employer to pay for healthcare, even after the worker’s retirement. But as healthcare costs rose and companies changed hands, new owners objected to paying the benefits far into the future. They argued that the contracts applied only to the term of the agreements and not beyond.

The U.S. Chamber of Commerce and the National Assn. of Manufacturers backed an appeal from the owners of a West Virginia polyester plant who objected to paying benefits to workers who had retired in 1996.

Their contract, negotiated by the United Steelworkers Union, promised a “full company contribution” to their health benefits. But in 2006, M&G Polymers, the new owners of the plant, said the retirees must contribute to the cost of their health benefits.

A group of retirees sued and won before the U.S. 6th Circuit Court of Appeals in Cincinnati. Its judges said the negotiated benefits were a “form of delayed compensation.”

The Supreme Court agreed to hear the company’s appeal, and on Monday set aside the lower-court ruling that favored the retired workers.

Thomas told the lower court to take another look at the contract and to do so without “placing a thumb on the scale in favor of vested retired benefits.” He noted that federal law protects promised pensions, but it does not require employers to provide future benefits for healthcare.

In a concurring opinion, Justice Ruth Bader Ginsburg agreed that “ordinary contract principles” apply in such disputes, but she left open the prospect that the old agreement could be read to promise benefits in the future. Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan signed the concurring opinion.

Twitter: @DavidGSavage


Kentucky Supreme Court issues important guidance on proper jury instructions concerning causation of a plaintiff’s injury or death.

Monday, January 26th, 2015


By David Kramer |

In an opinion issued in December 2014 that recently became final, the Kentucky Supreme Court issued important guidance on proper jury instructions concerning causation of a plaintiff’s injury or death. In Branham v. Rock, 2012-SC-707, a decision authored by Justice Michelle Keller arising out of a medical malpractice action, the Court held that a so-called “Deutsch v. Shein” instruction — asking the jury whether the defendant’s negligence caused the event that resulted in injury or death, as opposed to causing the injury or death itself — is appropriate only when the defendant has claimed that there was an intervening superseding cause and the trial court has determined that the intervening event was not a superseding cause as a matter of law. In the absence of such a defense and finding, the jury should be asked only whether the alleged negligence caused the injury complained of or death, as opposed to a particular event that resulted in injury or death.

Incidentally, foreseeability of an intervening (subsequent) event causing injury normally precludes a finding that the event was a superseding cause as a matter of law. The classic example of this concept is the traditional rule that a tortfeasor is also theoretically responsible for further injury that the victim might suffer as a result of negligent medical treatment necessitated by the original injury (though in reality that situation is more likely to be the subject of a claim by the plaintiff against the health-care provider, an apportionment instruction, or an indemnity claim).

Also, a claim of intervening superseding cause is an affirmative defense that must be pleaded under CR 8.03, for which the defendant bears the burden of proof. Thus, a defendant should presumably be able to argue persuasively against a Deutsch v. Shein instruction proffered by the plaintiff even if a causation defense was protectively pleaded.

The Branham decision also upheld the trial court’s exclusion of evidence concerning the defendant physician’s prior unrelated medical licensure discipline as irrelevant, as well as the trial court’s finding that impeachment of the physician’s testimony about the irrelevant licensure action would have been collateral and was thus inadmissible.

The decision became final on January 8, 2015, and will be published soon in the South Western Reporter.

See the opinion here.

David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle psc, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.

Rand Paul’s Brand of Judicial Activism – Lochner v. New York discussed

Monday, January 26th, 2015

By Cass R. Sunstein

For many decades, the Supreme Court’s 1905 decision in Lochner v. New York has ranked among the most universally despised rulings in the history of American law. In that long-repudiated case, the court struck down a maximum-hours law for bakers.

A week ago, Senator Rand Paul — a likely candidate for president, and among the most influential members of the Republican Party — explicitly embraced Lochner, and proudly endorsed the whole idea of “judicial activism.” That tells us a lot about contemporary law and politics, and probably about the future of conservative thinking as well.

In its ruling in Lochner, the court relied on the due process clause of the 14th Amendment, which bars states from depriving people of life, liberty or property “without due process of law.” In the court’s view, “liberty” includes freedom of contract. The court said that if states cannot offer a strong justification for intruding on that form of freedom, they have violated the Constitution.

Under this approach, a lot of modern legislation could run into constitutional trouble, including minimum-wage laws, rent-control laws, occupational-safety laws, even laws forbidding discrimination on the basis of race, sex and disability — and Obamacare as well.

By the late 1930s, however, the Supreme Court repudiated its whole approach in the Lochner case. It embraced instead a version of Oliver Wendell Holmes’ dissent, which insisted that “a constitution is not intended to embody a particular economic theory,” and that “the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”

Ever since the 1930s, there has been widespread agreement that, at least in the economic sphere, Holmes was right and Lochner was wrong. But people have disagreed about exactly why.

In rejecting Lochner, many conservatives have called broadly for “judicial restraint.” In their view, federal judges should be reluctant to second-guess the judgments of the elected branches, whether the issue involves maximum-hour laws, the criminal justice system, voting rights, school prayer or abortion.

Other conservatives have emphasized that the Lochner Court was unfaithful to the text and original meaning of the Constitution. In their view, the due process clause doesn’t give general protection to freedom of contract; it says, much more narrowly, that before states can take your property, your liberty or your life, they have to give you a hearing (“due process”).

But more recently, conservative constitutional thought has undergone a reversal, even a kind of revolution. The University of Chicago’s Richard Epstein and Timothy Sandefur of the Pacific Legal Foundation have argued for a much more aggressive judicial role in protecting private property and freedom of contract. Sandefur himself believes that Lochner was right.

On the Supreme Court, that position has no support, and in Congress, it remains a fringe view. But among a younger generation, conservative judicial activism has unmistakable, and growing, appeal. The fringe seems to be moving toward the center.

Senator Paul’s own stand is clear: “I’m a judicial activist when it comes to Lochner,” he said in a speech at the Heritage Action Conservative Policy Summit. “I’m a judicial activist when it comes to the New Deal.” He continued, “I think if the states do wrong that we should overturn them,” because “there is a role for the Supreme Court to mete out justice.”

Paul derides Holmes and complains that, with judicial restraint, “we move all the way up to Obamacare.” He even uses the word “great” to describe Sandefur’s recent pro-Lochner book, “The Conscience of the Constitution.”

Within the federal courts, Paul’s position is closely aligned with that of Judge Janice Rogers Brown of the powerful U.S. Court of Appeals for the District of Columbia Circuit. Brown has contended that the New Deal “inoculated the federal Constitution with a kind of underground collectivist mentality,” which transformed the Constitution into “a significantly different document.” In a recent opinion, she complained that without an active judiciary, “property is at the mercy of pillagers.”

Judge Brown has no enthusiasm for judicial restraint. Along with like-minded colleagues, she has played a leading role in a series of aggressive lower-court decisions, striking down restrictions on commercial advertising, invalidating financial regulations and otherwise protecting economic liberty.

There’s good reason to resist this trend, which would empower federal judges to exercise far too much authority over the American people. Contrary to Senator Paul, the Supreme Court doesn’t have a general authority “to mete out justice.”

But whatever we think of the growing conservative enthusiasm for judicial activism, there is no mistaking its importance. There’s thunder on the right, and it’s getting a lot louder.

To contact the author on this story:
Cass Sunstein at

To contact the editor on this story:
Mary Duenwald at


Texas Used Junk Science to Restrict Abortion The state’s experts lied—and they got caught. By Kathryn Kolbert

Friday, January 23rd, 2015

Abortion rights activists protest outside a federal court in Austin, Texas, on Aug. 4, 2014, where a hearing started about restrictions on abortion clinics in the state.

Photo by Jon Herskovitz/Reuters

On Jan. 7, the U.S. Court of Appeals for the 5th Circuit heard oral arguments in a Texas case challenging the constitutionality of an abortion law, H.B. 2, that has shuttered half the abortion clinics in the state. The doctors bringing the lawsuit argue that the law’s restrictions on abortion facilities and providers make it more onerous for women seeking to end their pregnancies and provide no medical benefits.

In previous rulings, the 5th Circuit had refused to consider whether H.B. 2 has any medical benefit. So it was a pleasant surprise when Judge Catharina Haynes—who voted to uphold other portions of H.B. 2 in an earlier challenge—questioned whether the law was medically justified. “You can kind of find an expert to say anything,” she told the state’s attorney. “Are we saying if you can find someone in the world to say we need marble floors in an abortion clinic, then that would be good enough to allow the Texas legislature to pass that?”

In fact, lawyers are not permitted to use experts to “say anything,” because they have a duty of candor to the court. But in recent abortion cases across the country, that is indeed what state attorneys are doing when they hire Vincent Rue, the pioneering junk scientist behind “post-abortion syndrome.”

Rue, discredited by courts decades ago, has since made a career as a behind-the-scenes litigation consultant. I first met Rue when he tried to hold himself out as an “expert in the areas of problem pregnancy decision-making, marital family relationships, and psychological effects following an abortion” in the trial court phase of Planned Parenthood v. Casey, the 1992 case that reaffirmed Roe v. Wade. I was co-counsel in the case and argued on behalf of the abortion clinics before the Supreme Court. After a full trial, District Court Judge Daniel Huyett found that Rue’s testimony, “which is based primarily, if not solely, upon his limited clinical experience, is not credible. His testimony is devoid of … analytical force and scientific rigor. … Moreover, his admitted personal opposition to abortion, even in cases of rape and incest, suggests a possible personal bias.” When examining a study that Rue had co-authored titled the Psychological Aftermath of Abortion, Huyett specifically found:

After submission for peer review by scientists with the Center for Disease Control, the National Center for Health Statistics and other scientific institutions, his study was found to have “no value” and to be “based upon a priori beliefs rather than an objective review of the evidence.” The Board of Directors of the American Psychological Association, after review of all of the scientific literature, has determined that there are no scientific studies which support the existence of a “post abortion syndrome” as suggested by Dr. Rue (citations omitted).

Certainly, attorneys of all stripes are inclined to engage experts whose views are in accord with their clients’ positions, but the coordinated use of unqualified and discredited witnesses presenting junk science crosses the line. In other contexts, in criminal cases or civil disputes, state attorneys would consider it shameful and unethical to fabricate evidence or stretch the truth in this way. They feel no similar remorse nor hesitancy to do so when the issues involved are labeled “controversial” and involve highly charged ideological views or religious orthodoxy. But it is precisely such circumstances that require lawyers and courts to base arguments on real evidence—not conjecture or faux science. Without that check, we give government unlimited power to mandate harmful laws, with no recourse for those whose lives or health are jeopardized.

In an unusual turn of events at the Texas trial now under appeal, the state was caught red-handed: Four of the state’s five expert witnesses were forced to change their testimony on the stand when confronted with emails showing they had lied about who had written their reports.

Just how extensive and improper Rue’s contributions had been wasn’t known until a 2:30 a.m. document dump during the trial. That’s when the state’s lawyers finally turned over to the clinics’ attorneys emails they had withheld, despite a court order requiring them to turn over all the witnesses’ communications with Rue. The emails show that Rue sent drafts of rebuttals to expert reports to the purported rebuttal authors before the authors had ever seen the reports they were meant to be rebutting. Deborah Kitz, a witness testifying as an expert in the management of medical facilities, claimed under oath that no one else had contributed to the writing of her rebuttal. But she wrote to Rue, “I see ‘my’ report that you returned to me yesterday references my review of a report from a Dr. Layne-Farrar. I’ve never seen that report.” Similarly, Mayra Thompson, an OB-GYN, failed to review the sources she purported to rebut. Thompson admitted that she was unfamiliar with eight of the nine studies relied upon by the expert she claimed to critique, and she could not identify a single published study to support the opinions expressed in her own report.

There’s more. Sociologist Peter Uhlenberg, the author of a book claiming that scientific material must be tested against the Bible and “some findings must be rejected as contrary to a Christian understanding of reality,” denied ever discussing his opinions with Rue. Yet emails show him asking Rue what he should do about contradictory evidence. Rue helpfully suggested leaving the most recent data out of Uhlenberg’s report.

James Anderson, another state witness, also was confronted on the stand with his correspondence with Rue and was forced to admit that he had not read a number of the sources he cited in his expert report. This was not the first time Anderson was willing to let Rue put words in his mouth. In a recent Alabama case, District Court Judge Myron Thompson explained he had not credited Anderson’s testimony due to “concerns about his judgment or honesty” and in a supplemental opinion found “inexplicable” that Anderson had submitted a report to the court as his own that had been drafted entirely by Rue without even verifying its accuracy or learning whether Rue had any qualifications.


Friday, January 23rd, 2015


Posted: January 23, 2015 -

County Law Library fees in Kentucky have dropped.  Isn’t it time for the Legislature to increase court costs to allow proper funding of Kentucky’s County Law Libraries?

Stan Billingsley,



The shelves at the Lubbock County Law Library aren’t as full as they used to be.

Nan Hadley, the county’s law librarian, is hoping to change that by getting a bill through the state legislature that would create new funding through court fees.

The county’s law library is located on the third floor of the courthouse annex building, and is open to the public for legal research. Attorneys, court staff, law students, and basically anybody interested in the justice system can, and do, visit the library.

Walking through it can be a bit overwhelming. The books date back for decades, and are categorized in areas like Texas codes, Texas family law practice, real estate forms, advising elderly clients, criminal law materials and court of appeals. Commonly used forms and documents people needs, such as filing for divorce, are located near the front.

Hadley is there to help people navigate through it all. She’s also in charge of the library’s budget, which has been decreasing in recent years.

The Lubbock County Law Library does not get money from the county’s general fund. Rather, they operate through $35 payments that are taxed onto each civil case filed in the county or district court. So, when cases are filed in the district and county clerk’s office, other than suits for delinquent taxes, there’s a $35 charge the library receives.

But the revenue they get from that has been dropping in recent years.

According to information provided by the library, the revenue from the clerk’s fees has decreased from $191,707 in fiscal year 2009-10, to about $172,000 in fiscal year 2013-14.

“It’s been dropping and we don’t know why,” Hadley said. “We think part of it was when they raised the statutory limit for small claims, and so cases moved from the higher courts to the justice courts. We think that’s part of it. But we also think with the economy being the way it is, more people are filing affidavits of indigence so they’re not paying a filing fee. We think that’s part of it.”

Because of the drop in revenue, Hadley has had to cut a number of books from third-party publishers.

She said the library will be able to spend $78,000 on books this year, down about $10,000 from the previous years.

“I’ve cut and I’ve cut and I don’t know what else to do,” she said. “I don’t know what else to do because I’m locked into contracts. There’s only so much I can cut.”

What Hadley is doing is trying to get a bill passed that would add a $5 fee for each case filed in justice courts, which the law libraries would receive.

Hadley said she has spoken with other law librarians in Texas, and found that many are having similar budget difficulties. So Hadley, along with the help of others in the court administration department, crafted the resolution and bill that she hopes to get taken up in the 84th state legislature.

Lubbock County commissioners agreed with a 4-0 vote in May 2014 to endorse a proposal, and now several other law libraries in the state are crafting similar proposals to take to their commissioners, as well.

To get the bill introduced in the 84th legislature, Hadley contacted and sent the bill to the staff of Rep. John Frullo and Sen. Charles Perry’s offices.

As of Friday, a member of Frullo’s office has contacted Hadley and said they’re still considering all of his bill requests. In Perry’s office, Travis McCormick, spokesperson, said their policy analyst has studied the bill and contacted other law librarians, who were in agreement with Hadley’s efforts.

Due to the packed agenda, McCormick said it is likely that Perry will not introduce the bill, but instead, will advise his staff to attempt to get it added into the omnibus bill, which packages many regular bills into one.

McCormick said they are still waiting to hear back from the Committee on Jurisprudence, who monitor the implementation of the omnibus bill.


Attorney: Lawmaker can’t be charged with DUI during session

Friday, January 23rd, 2015


Associated PressJanuary 22, 2015

FRANKFORT, KY. — A state senator is trying to have his DUI charge dismissed because the state constitution bans lawmakers from being arrested while the legislature is in session.

Republican state Sen. Brandon Smith of Hazard was arrested and charged with DUI on Jan. 6, the first day of the 2015 legislative session. Smith had a .088 percent blood alcohol level in a portable breath test, according to a citation filed in Franklin County Circuit court. A person is presumed drunk when the alcohol to blood ratio is .08 and above.

But attorney Bill Johnson has filed a motion to dismiss the charges citing section 43 of the Kentucky Constitution which states that “members of the General Assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same.”

“If you can’t arrest them, then you can’t try them,” Johnson said.

That language was added to the constitution in 1891. Johnson said the purpose was to “keep legislators from being bothered by people who would arrest them during sessions.”

Attempts to reach the county prosecutor’s office were unsuccessful. But Assistant Franklin County Attorney David Garnett told The State Journal ( ) that it was “an interesting argument.”

“My preliminary impression is that the 1891 constitution did not intend to give legislators blanket immunity for any act committed during the legislative session,” he said.

A hearing on the motion is scheduled for Feb. 12.

This isn’t the only odd thing in Kentucky’s constitution. The document requires elected office holders to swear an oath that they have “not fought a duel with deadly weapons within this State nor out of it.”



Thursday, January 22nd, 2015

Wendell Ford, the patriarch of Kentucky Democratic politics in the latter part of the 20th Century, died Thursday morning in Owensboro, his hometown. He was 90.

Ford served 24 years in the U.S. Senate and was governor from 1971 to 1974. He was the first person in Kentucky history to be elected lieutenant governor, governor and U.S. senator.

A heavy smoker and a strong defender of the tobacco industry for most of his political life, Ford announced in July that he was undergoing chemotherapy treatments for lung cancer. He said he was going to follow his doctors’ orders “and leave the rest with the good Lord.”

He expressed disappointment that he was too ill to campaign for a number of state and local Democratic candidates on the November ballot, including U.S. Senate candidate Alison Lundergan Grimes in her bid to oust Republican incumbent Mitch McConnell.

Since his retirement in 1999, Ford frequently advised Democratic politicians and stumped on the campaign trail for them.

He was the longest-serving senator in Kentucky’s history at the time of his retirement, a mark that was surpassed by McConnell in 2009.

At the time, McConnell called Ford one of the great U.S. senators in Kentucky’s history.

Even as Ford attained high office, McConnell said, “he never forgot the lessons he learned working alongside his parents on the farm.”

“Kentuckians respected him for proving that a country boy could walk the corridors of power, dine with kings and presidents, and still come back to Yellow Creek and be right at home,” McConnell said.

Ford’s political career spanned several decades. He served four terms in the U.S. Senate, where he was first elected tin November 1974. He was the Senate Democratic whip from 1991 until his retirement.

Ford’s leadership in the U.S. Senate paid off for the state. He secured much money for building projects and sometimes held up national legislation to cut a better deal for Kentucky.

In the 1980s, unemployed Kentuckians ended up with 13 weeks of benefits, rather than six, after Ford held out for more.

Ford was governor of Kentucky from Dec. 7, 1971, to Dec. 28, 1974.

His overhaul of state agencies was the hallmark of his tenure as governor, said Kentucky’s late historian laureate, Thomas D. Clark.

Kentucky Democratic Party chairman Dan Logsdon said Ford “has been everything to us. He always fought for Kentucky interests. He never backed down on that.”

Logsdon said Ford was “a wonderful stump speaker. He would always give the best speech at political events.”

The Kentucky Democratic Party headquarters off Interstate 64 in Frankfort bears Ford’s name.

Cutting deals

As a politician, Ford was known more for making deals than authoring legislation. Still, he helped shape several pieces of historic legislation, such as the Family and Medical Leave Act, National Energy Security Act of 1992, Age Discrimination Act Amendments of 1986, Tobacco Reform Act of 1985 and the Surface Mining and Reclamation Act of 1977.

He also was a key player in passing the 1993 motor-voter law, which allows people to register to vote when they get their driver’s license.

His reputation was one of an effective, shrewd politician who, despite an easy smile and a quick, folksy wit, played hardball behind the scenes.

His intense support for home-state interests — coal, tobacco and alcohol — at times incurred the wrath of health and consumer advocates. He fought hard against warning labels on cigarette packs and alcoholic beverages and was often photographed with an ever-present cigarette hanging from the corner of his mouth.

But Ford was beloved by most Kentuckians.

“Ford was a champion of Kentucky’s so-called sin products — tobacco, whiskey, coal,” veteran journalist Al Smith said. “He was always proud to be from Kentucky and never forgot where he came from.”

Early years

Wendell Ford was born Sept. 8, 1924, in Owensboro. His father, Ernest, was a state senator and an ally of Kentucky Gov. Earle C. Clements.

Ford graduated from Daviess County High School in 1942. He attended the University of Kentucky for a semester, then returned to work on the family farm. He married Ruby Jean Neel of Daviess County on Sept. 19, 1943. The couple had two children, Steven and Shirley.

After serving in the Army from 1944 to 1946, Ford graduated from the Maryland School of Insurance and entered the insurance business with his father.

Ford didn’t set out to follow his father into public office.

“One of the things I had been turned off about politics by was watching my Dad, and how many people were coming in asking for things, pushing for things,” Ford said in 1999.

He didn’t become interested in politics until he was the national president of the Jaycees in 1956-57.

He became youth chairman of Bert Combs’ gubernatorial campaign and then an aide to Gov. Combs, from 1959 to 1961. He beat his former boss in the 1971 Democratic primary for governor.

Ford always said he ran every race scared and as if it were his last.

His first two were cliffhangers. In 1965, he won a state Senate seat by a mere 305 votes. Two years later, he was barely elected lieutenant governor, winning by 13,652 votes.

At that time, lieutenant governors ran independently of the governor. Ford was elected lieutenant governor on a split ticket with Republican Louie B. Nunn.

They often were at loggerheads.

Ford unsuccessfully opposed Nunn’s request to the legislature to increase the state sales tax in 1968 from 3 percent to 5 percent.

As governor,Ford had such a tight control over the Democrat-dominated legislature that nearly all of his programs were enacted.

During his tenure the five percent sales tax on food was removed, state government was reorganized and Kentucky’s first coal severance tax was levied.

As governor, he also asked for a two-cent-a-gallon increase in the gasoline tax, a corporate tax increase and a major increase in funding for education. He requested money for the newest higher education institutions, the University of Louisville and Northern Kentucky State College, and proposed strengthening the Council on Higher Education.

Funding for the Kentucky Horse Park, financing of the Lexington Civic Center and the development of Boonesborough State Park were among other accomplishments of the Ford administration.

A back injury that Ford suffered in June 1972 might have saved him from an early death.

He was at a boat regatta in Owensboro when he grabbed two people boarding a docked boat, apparently preventing them from falling into the Ohio River. The action left him with back problems.

An abdominal aortic aneurysm, unrelated to the accident, was discovered after he sought treatment for his back. Dr. Michael DeBakey, a renowned heart and vascular surgeon, removed the aneurysm at a Houston hospital.

Change of pace

Ford left the governor’s chair a year early in 1974 to run for the Senate. In that race, he upset Republican incumbent Marlow Cook.

Julian Carroll, who was lieutenant governor under Ford and succeeded him as governor, said he had been a backer of Bert Combs for governor.

“Wendell and I got along fairly well until he was elected governor,” Carroll said. “Things got cool between us for a while, but that was due more to our staffs. I was never a thorn in his side, and I had no frays with the governor.”

Carroll, who is now a state senator, said Ford initially wanted him to run for the U.S. Senate against Cook.

“We spent about six months talking about it at the home of Frankfort businessman Jim Gray, who became the secretary of my cabinet,” Carroll said.

Eventually, political strategist Bill Cox persuaded Carroll to call Bob Strauss, chairman of the Democratic National Committee, about the U.S. Senate race, Carroll said.

“I called Strauss and told him that if I ran, only the Carroll people would be excited about me. But if Wendell Ford ran, every one would be for him — his people and my people — because the Carroll people knew I would be governor.”

Carroll said Strauss called Ford and persuaded him to run for the U.S. Senate.

“I always deeply admired Wendell’s political abilities,” Carroll said.

Despite winning election to the U.S. Senate, Ford never really left the governor’s chair. He took the chair he used in his Frankfort office to Washington. He also found the desk used by the late Alben W. Barkley, who was Senate majority leader and later vice president, and paid a Senate committee $350 for it. The desk that Ford used in the Senate chamber was the former desk of 19th-century statesman Henry Clay of Kentucky.

He found the U.S. Senate was much slower than life in the Kentucky governor’s mansion.

“As governor, you could pick up the phone, make a couple of calls and get something accomplished,” he said. “Up here, it’s a different ballgame.”

His favorite saying as a senator was: “There are no victories in Washington, only varying degrees of defeat.”

Ford also was chairman of the Democratic Senatorial Campaign Committee from 1976 to 1982.

Kentucky issues

Ford thought about running for governor again in 1983 and 1991, but he decided against it both times.

In 1991, he said he preferred to run for Democratic Senate whip. In 1983, he would have faced sitting Lt. Gov. Martha Layne Collins, a strong Ford ally, in the primary.

A federal grand jury investigation of state government corruption also was a factor in his decision.

Ford’s name had arisen in connection with an alleged insurance fee-splitting scheme on state insurance contracts while he was governor.

In 1981, federal prosecutors in Lexington recommended that Ford be indicted on charges that he participated in a conspiracy to share commissions with members of the state Democratic Party and their families. Justice Department officials in Washington said the case was too old.

Ford refused to say whether he invoked his Fifth Amendment right against self-incrimination before the grand jury.

Later in the 1980s, there was a Senate Ethics Committee inquiry into Ford’s association with E.M. Ford & Co. insurance agency in Owensboro. Ford had been a partner in E.M. Ford & Co. and Southern Financial Insurance in Owensboro.

Then-Rep. Carroll Hubbard, D-1st District, first raised the issue in questioning E.M. Ford & Co.’s dealings with the financially troubled Big Rivers Electric Corp. E.M. Ford handled the property and liability coverage for Big Rivers, which had benefited from a federal bailout.

Ford maintained that he had no involvement in both insurance firms’ operations and said that he had sold his interest in them to his son, Steven Ford, and brother, Reyburn Ford. The Ethics Committee agreed that Ford’s ties had violated no Senate ethics rules, but welcomed his decision to sever his relationship with the two companies.

His popularity was not diminished.

In his 1986 U.S. Senate race, Ford won all 120 counties and captured nearly three-fourths of the vote.

Of his career in the Senate, Ford said, “I wasn’t interested in national issues. I was interested in Kentucky issues.”

After Ford retired, he enjoyed teaching politics to youth at the Owensboro Museum of Science and History. It housed a replica of his Senate office in the Wendell H. Ford Government Education Center.

The Western Kentucky Parkway was renamed in his honor during the administration of Gov. Paul Patton.

Ford is survived by his wife, Jean. They had been married 71 years. They have two children: a son, Steven, and a daughter, Shirley Dexter.

Jennifer Hewlett contributed to this story. Jack Brammer: (502) 227-1198. Twitter: @BGPolitics. Blog:

Read more here:


U.S. Supreme Court: Citizens Have No Protection Against 4th Amendment Violations

Wednesday, January 21st, 2015


WASHINGTON, D.C. — In a blow to the constitutional rights of citizens, the U.S. Supreme Court ruled 8-1 in Heien v. State of North Carolina that police officers are permitted to violate American citizens’ Fourth Amendment rights if the violation results from a “reasonable” mistake about the law on the part of police.


Acting contrary to the venerable principle that “ignorance of the law is no excuse,” the Court ruled that evidence obtained by police during a traffic stop that was not legally justified can be used to prosecute the person if police were reasonably mistaken that the person had violated the law.


The Rutherford Institute had asked the U.S. Supreme Court to hold law enforcement officials accountable to knowing and abiding by the rule of law. Justice Sonia Sotomayor, the Court’s lone dissenter, warned that the court’s ruling “means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.”


“By refusing to hold police accountable to knowing and abiding by the rule of law, the Supreme Court has given government officials a green light to routinely violate the law,” said John W. Whitehead, president of The Rutherford Institute and author of the award-winning book A Government of Wolves: The Emerging American Police State. “This case may have started out with an improper traffic stop, but where it will end—given the turbulence of our age, with its police overreach, military training drills on American soil, domestic surveillance, SWAT team raids, asset forfeiture, wrongful convictions, and corporate corruption—is not hard to predict. This ruling is what I would call a one-way, nonrefundable ticket to the police state.”


In April 2009, a Surry County (N.C.) law enforcement officer stopped a car traveling on Interstate 77, allegedly because of a brake light which at first failed to illuminate and then flickered on. The officer mistakenly believed that state law prohibited driving a car with one broken brake light. In fact, the state traffic law requires only one working brake light. Nevertheless, operating under a mistaken understanding of the law, during the course of the stop, the officer asked for permission to search the car. Nicholas Heien, the owner of the vehicle, granted his consent to a search. Upon the officer finding cocaine in the vehicle, he arrested and charged Heien with trafficking. Prior to his trial, Heien moved to suppress the evidence seized in light of the fact that the officer’s pretext for the stop was erroneous and therefore unlawful. Although the trial court denied the motion to suppress evidence, the state court of appeals determined that since the police officer had based his initial stop of the car on a mistaken understanding of the law, there was no valid reason for the stop in the first place.


On appeal, the North Carolina Supreme Court ruled that even though the officer was wrong in concluding that the inoperable brake light was an offense, because the officer’s mistake was a “reasonable” one, the stop of the car did not violate the Fourth Amendment and the evidence resulting from the stop did not need to be suppressed. In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys warn against allowing government agents to “benefit” from their mistakes of law, deliberate or otherwise, lest it become an incentive for abuse.

Citizens United’s Legacy: Supreme Court Poised To Strike Down Another Key Campaign Finance Law

Wednesday, January 21st, 2015


Imagine you are a lawyer representing one of your firm’s most important clients — a client that provides a huge chunk of your firm’s revenues and that allows you and your law partners to afford your mortgages. The client’s general counsel has made it very clear that they are counting on you to win their case, which could prove very expensive for them if you do not. And you fear that the client may ditch you for another law firm if you are not successful in court.

Now imagine that a judge who could be assigned to hear this case approaches you at a party, and asks you to donate to his or her upcoming reelection campaign. What would you do? And how comfortable would you feel explaining your decision to your client if you turned the judge down?

In Florida, judges and candidates who want to be judges are bound by an ethics provision preventing this situation from ever arising in the first place (eight other states with elected judges have a similar law or ethical rule). Under Florida’s Code of Judicial Conduct, judges and judicial candidates “shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.” On Tuesday, the Supreme Court will consider the constitutionality of this rule in a case known as Williams-Yulee v. Florida Bar.

This is a campaign finance case, which means that the Florida rule faces an uphill battle before the same Court that handed down Citizens United. Since the Court’s 1976 decision in Buckley v. Valeo, the fate of campaign finance laws has often rested upon what the justices perceive as corruption. Although Buckley held that “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities,” it also recognized that these First Amendment concerns are overcome when campaign finance regulation is needed “to deal with the reality or appearance of corruption” that arises when candidates receive funds from sources that have a stake in how those candidates might govern.

Yet, in Citizens United and a follow up case called McCutcheon v. FEC, the Roberts Court defined the concept of “corruption” very narrowly. According to Chief Justice John Roberts’ opinion in McCutcheon, campaign finance regulations must “target what we have called ‘quid pro quo’ corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money.” So, unless a donor offers “dollars for political favors,” McCutcheon says that no corruption exists.

If this standard applies in Williams-Yulee, it is tough to see how the Florida rule survives. The ethics rule sweeps much further than a narrow restriction on judges promising favors to the attorneys who give them money.

Judges, however, are not like other government officials. They are typically tasked with applying objective principles of law, and they preside over matters where lawyers and their clients have a very clear interest in influencing the particular judge or judges who are assigned to hear their case. In truly egregious cases, the Supreme Court — or, most importantly, Justice Anthony Kennedy — believes that judges should be removed from cases involving their most generous benefactors. That was the holding of Caperton v. Massey, which said that an elected state supreme court justice should have recused himself from a case involving a company whose CEO spent $3 million to place that justice on his state’s highest court.

Indeed, the attorneys challenging the Florida ethics rule point to recusal as an alternative to a solicitation ban. As a general rule, laws that implicate the First Amendment stand on weak ground where there are other ways that the state could have achieved the same end, and the lawyers for Williams-Yulee argue that “[r]ecusal rules prevent judges from presiding over matters in which their impartiality might plausibly be questioned, without intruding on First Amendment rights.”

Mandatory recusals, however, only address the problem of what a judge should do when one of their donors actually appears in their courtroom. Appellate judges in particular often preside over cases that have consequences for thousands of even millions of individuals who are not actually parties in the litigation. If the Supreme Court decides to gut Obamacare in a pending case, for example, studies predict that 8 million people will lose their health insurance. Few, if any, of these people are parties in that case.

Interest groups, lawyers and lobbyists, in other words, have a strong incentive to ingratiate themselves to certain judges, even if they are unlikely to find themselves in those judges’ courtrooms. That fact, combined with Kennedy’s past willingness to hold judges to a higher standard than other elected officials, might be enough to distinguish this case from others involving non-judges.

Ultimately, however, if Florida is hoping that Kennedy’s willingness to intervene under the particularly egregious facts presented by the Caperton case will also lead him to save the state’s ethics rule, they should probably expect to be disappointed. As SCOTUSBlog‘sLyle Denniston notes,

Williams-Yulee’s brief on the merits opens strategically with a quotation from Justice Anthony M. Kennedy, the Court’s most predictable defender of the idea that, in politics, money equals speech. In an opinion in 2002, Kennedy wrote that a “state cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgement of speech.” Kennedy was talking then about a ban on what judicial candidates could say about actual campaign issues, but the comment could be helpful on the money question, too.

Caperton was an anomaly in Kennedy’s history of extraordinary skepticism towards campaign finance regulations. That places Florida in the unfortunate position of hoping that lightning strikes twice.


Is the Supreme Court About to Gut Another Civil Rights Law?

Wednesday, January 21st, 2015


First, it was voting rights. Now, the Roberts court takes on the Fair Housing Act.

—By Pema Levy

| Wed Jan. 21, 2015 6:15 AM EST

In June of 2013, the Supreme Court struck down a key provision of the Voting Rights Act, making it more difficult to enforce that landmark civil rights law. On Wednesday, the Supreme Court will hear oral arguments about another 1960s law combating racial discrimination—and civil rights advocates fear the Court is poised to gut it as well.

The question before the court is whether the Fair Housing Act of 1968, intended to fight pervasive residential segregation, bans practices that unintentionally discriminate against minorities. For decades, the law has been used not only to fight intentional discrimination but any other practices that have a “disparate impact” on racial and other minority groups.

Under the FHA, it is illegal to “refuse to sell or rent… to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.” Civil rights advocates believe this language is broad enough to include disparate-impact claims, and the courts have historically agreed. In 2013, the Department of Housing and Urban Development issued guidelines also supporting this view.

But now, the case Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., represents the third time in as many years that the Supreme Court has agreed to take up the issue of how broadly, or not, the Fair Housing Act rules can be applied. Less than four years ago, the court agreed to hear a case out of Minnesota on disparate-impact claims; the following year it agreed to take up a New Jersey case on the same issue. Both cases were resolved before oral arguments, in part because civil rights advocates were afraid of what the Supreme Court under Chief Justice John Roberts might decide.

“There’s no disagreement among the lower courts, it’s always been the law since the late ’60s that you could have disparate impact,” says Deepak Gupta, a Washington lawyer who filed an amicus brief on behalf of current and former members of Congress urging the court to uphold the broad interpretation of the housing law. The court’s taking up the issue repeatedly, Gupta says, signals that “at least some of the justices are very interested in changing the law in this area.”

Joe Rich, an attorney with The Lawyers’ Committee for Civil Rights Under Law, agrees that the latest case “is of concern, because there is an interest in something that seemed to be settled.” He is more upbeat about the possible outcome, however. “I think if they give it a fair look, and look at the law and the unanimity that surrounded it, there’s a decent chance they’ll uphold it.”

The Texas case involves a fair-housing advocacy group that alleged state officials were perpetuating racial segregation in the Dallas region by making federal low-income housing vouchers available primarily in minority neighborhoods. A district court agreed that state officials were violating the FHA—whether intentionally or not. Texas appealed, urging the courts to find that the law only applies to intentional discrimination. “The text of the Fair Housing Act unambiguously precludes the ‘disparate impact’ interpretation adopted by HUD and the court of appeals,” the brief from the state says. “There is no language anywhere in the Fair Housing Act’s anti-discrimination rules that refers to ‘effects’ or actions that ‘adversely affect’ others.”

The nation’s highest court often declines to take on cases unless lower courts have split on the issue, creating a problem for the top justices to resolve. But in the more than 40-year history of the FHA, every circuit court has agreed that disparate-impact claims are covered by the law. Based on the track record of the Roberts court, including how it handled the Voting Rights Act, the conservative justices are expected to side with Texas.

Liberals say their hopes rest with an unlikely figure: Justice Antonin Scalia. While Justice Anthony Kennedy is generally regarded as the key swing vote on the current court, Scalia has been a proponent of deferring to government agencies when the text of a law is ambiguous. In this case, the Department of Housing and Urban Development interprets the FHA as applying to unintentionally discriminatory practices. In order for Texas to win over Scalia, it may need to demonstrate that the text of the law is not just ambiguous but that it clearly excludes unintentionally discriminatory practices.

But if Texas prevails, Gupta fears the damage could go beyond the Fair Housing Act itself. In its ruling, the court might throw into question the constitutionality of disparate-impact claims more broadly, from bank lending practices to employment discrimination. Potentially “all of this is on the chopping block at the Supreme Court,” he says.


Take Advantage of Class Action Waiver Protections

Tuesday, January 20th, 2015


Ronald L. Hicks, The Legal Intelligencer

January 20, 2015


Companies have new protections against class action lawsuits, thanks to two recent decisions by the U.S. Supreme Court. The court’s decisions in American Express v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), and Oxford Health Plans v. Sutter, 133 S. Ct. 2064 (2013), provide significant support for companies to incorporate class action waivers in their standard form contracts with investors, customers and vendors. Attorneys should pay close attention, as the effects of these decisions play out in lower courts, and carefully draft arbitration provisions to take full advantage of the new protections.

In American Express, the Supreme Court addressed “whether a contractual waiver of class arbitration is enforceable under the Federal Arbitration Act when the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery.”

Italian Colors Restaurant and other similarly situated merchants brought a class action lawsuit against American Express, asserting that the company had violated Section 1 of the Sherman Act, which prohibits anti-competitive practices, by using its monopoly power to force merchants to accept credit cards with fees that were significantly higher than the fees of American Express’ competitors. Shortly after the suit commenced, American Express moved to compel individual arbitration under the FAA and under the parties’ contracts, which required not only that all disputes be resolved in arbitration but also explicitly waived the merchants’ right to arbitrate claims on a classwide basis. In their response, the merchants argued that the costs of litigating their antitrust claims individually far outweighed their expected individual recoveries under the Sherman Act and that they should therefore be permitted to litigate as a class.

The district court sided with American Express and dismissed the merchants’ class action lawsuit. On appeal, the U.S. Court of Appeals for the Second Circuit reversed, holding that the class action waiver was unenforceable because it created a situation in which the merchants “would incur prohibitive costs” when exercising their federal statutory rights, effectively amounting to a forfeiture of those rights. In a 5-3 decision authored by Justice Antonin Scalia, the Supreme Court reversed the Second Circuit, holding that the parties’ contractual class action waiver was enforceable despite the fact that the waiver made it economically inefficient.

The Supreme Court majority in American Express began its analysis by emphasizing that “arbitration is a matter of contract.” Under the FAA, the courts “must ‘rigorously enforce’ arbitration agreements according to their terms.” Nevertheless, the majority acknowledged that there are two exceptions to the enforceability of arbitration agreements: (1) a contrary congressional command exists that overrides the FAA, or (2) the parties’ agreement includes a prospective waiver of a federal statutory right, the so-called “effective vindication” exception to the FAA.

As to the first exception, the Supreme Court majority found that there was “no contrary congressional command” in the federal antitrust laws overriding the FAA.

The Supreme Court then analyzed the effective vindication exception to the FAA. Following the lead of several other federal courts, the majority held that “the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy.” Thus, the majority ruled that the parties’ arbitration agreement with American Express did not fall within the effective vindication exception because it did not bar a merchant from pursuing its antitrust claim individually, and instead only made it economically inefficient to do so. Accordingly, the majority reinstated the district court’s decision dismissing the merchants’ class action lawsuit based on the parties’ contractual waiver provision.

In a dissenting opinion joined by Justices Stephen Breyer and Ruth Bader Ginsburg, Justice Elena Kagan criticized the majority for failing to properly apply the effective vindication exception to the FAA. According to Kagan, the exception was not intended to apply solely to “baldly exculpatory” arbitration provisions—clauses that expressly preclude the plaintiff from asserting specific federal statutory claims. Instead, “the rule against prospective waivers of federal rights can work only if it applies not just to a contract clause explicitly barring a claim, but to others that operate to do so.” Accordingly, Kagan concluded that the Second Circuit’s decision should have been affirmed.

In Oxford Health Plans, the Supreme Court reviewed the issue of whether an arbitrator had exceeded his powers under the FAA when he interpreted the parties’ arbitration clause to authorize class arbitration. In affirming the lower courts’ rulings, the Supreme Court held that under the limited judicial review provided by the FAA, the arbitrator’s interpretation of the parties’ agreement must stand, regardless of whether a court agrees with the interpretation or not.

In the case, a pediatrician filed a class action suit in New Jersey Superior Court alleging that Oxford Health Plans had failed to make full and prompt payment to the class of doctors, in violation of the parties’ agreement and various state laws. Oxford moved to compel arbitration of the claim and the parties agreed that the arbitrator should decide whether their agreement authorized class arbitration. The arbitrator interpreted the contract to say that both parties agreed to authorize class arbitration. Following the arbitrator’s decision, Oxford moved to vacate the arbitrator’s ruling in federal court. Both the district court and the Third Circuit declined to vacate the decision.

On appeal, the Supreme Court addressed whether a court may validly vacate an arbitral award under the FAA. As Kagan explained in the court’s unanimous decision, “the sole question for us is whether the arbitrator (even arguably) interpreted the parties’ contract, not whether he got its meaning right or wrong.” Kagan further commented that the possibility that an arbitrator may interpret a contract incorrectly is “the price of agreeing to arbitration,” and that the arbitral award stands, “however good, bad, or ugly.”

In her opinion, Kagan stressed that Oxford never presented the issue of whether the availability of class arbitration is a question that may be determined by the arbitrator, which is an issue the court could have reviewed de novo. As such, the outcome may have been different had the parties not conceded that the arbitrator should determine whether the agreement authorized class proceedings.

The concurring opinion, announced by Justice Samuel A. Alito Jr. and joined by Justice Clarence Thomas, noted outright that if de novo review had applied, the Supreme Court would have reached an opposite conclusion and ruled that the arbitrator’s interpretation was incorrect. The concurrence agreed, however, that de novo was not applicable in light of Oxford’s concession to arbitration. Alito wrote separately to stress his concern over the absence of class members in the case and questioned whether absent class members can be bound by an arbitrator’s decision to conduct class procedures.

The full impact of the Supreme Court’s decisions in American Express and Oxford Health Plans is still being played out in courts. Several federal courts, including the Second Circuit, have since upheld class action waiver provisions in arbitration agreements. Also, courts have relied upon the American Express and Oxford Health Plans decisions to compel individual arbitration in cases in which the arbitration provision was silent on whether class procedures were available.

But not all courts have found that the decisions compel the conclusion that class arbitration is unavailable. For example, in Lloyd v. JPMorgan Chase & Co., Nos. 11 Civ. 9305 (LTS), 12 Civ. 2197 (LTS), the U.S. District Court for the Southern District of New York granted a motion to compel individual arbitration as to certain JPMorgan employee-plaintiffs but denied it for a different set of employee-plaintiffs who had signed a different employment contract. The latter employee-plaintiffs’ arbitration agreement contained a term that stated only claims or controversies required to be arbitrated by Financial Industry Regulatory Authority rules would be “resolved by individual (not class or collective) arbitration.” FINRA rules prohibit the enforcement of arbitration agreements against a member of a putative class or collective action until class or collective certification has been denied or decertified. Thus, according to the Southern District of New York, the arbitration agreement signed by the second set of JPMorgan employee-plaintiffs meant that class procedures were available under FINRA’s rules, thereby warranting a denial of defendant’s motion to compel.

The decisions in Lloyd, American Express and Oxford Health Plans remind attorneys that arbitration is a creature of contract and parties seeking to preclude class action lawsuits need to make that clear. Moreover, parties wishing to preserve the question of arbitrability of class action claims for the courts rather than the arbitrator need to include specific reservations in their arbitration agreements. Hence, while the American Express and Oxford Health Plans decisions provide companies with significant means to protect themselves against class action claims and the costs entailed in defending such lawsuits, attorneys must carefully and clearly draft contracts to realize the benefit of these decisions.

Ronald L. Hicks handles corporate litigation, oil and gas rights and other business matters at Pittsburghbased Meyer, Unkovic & Scott. Contact him at

Read more:

SCOTUS Considers Major Energy Case From Western Energy Crisis

Sunday, January 18th, 2015


The Western energy crisis in 2000 and 2001 is finally getting its day in court – the U.S. Supreme Court, to be specific.

On Monday, the Supreme Court heard oral arguments in Oneok vs. Learjet. The lawsuit was brought by industrial companies in several Western states that purchase large quantities of natural gas for direct use. The industrial plaintiffs claim that they overpaid for natural gas in 2000 and 2001 because market prices had been rigged by the ten gas pipeline companies named as defendants. At the time, the market price for natural gas was pegged to the prices reported in private indexes. By falsely inflating the price indices, natural gas sellers were able to charge buyers much higher prices for natural gas.

The plaintiffs are thus suing the pipeline companies for violating state antitrust laws. A federal district court judge said that the Natural Gas Act (NGA) prohibited them from doing so. The Ninth Circuit Court of Appeals reversed the district court, holding that the NGA did not prohibit the plaintiff’s lawsuit. As it always does, the Supreme Court will get the last word on the matter.

Here is the non-nutshell version of the legal issue: Does the NGA preempts state-law antitrust claims targeting industry practices that directly affect wholesale gas rates (which are regulated by the feds) when the claims arise from retail sales of natural gas (which are regulated by the states).

Putting aside the preemption jargon, the issue is really about where the boundaries should be drawn between retail and wholesale sales. And not just for the sale of natural gas. The sale of electricity will also be affected by the Court’s decision. The NGA, which governs interstate markets for natural gas, is commonly used as for interpreting similar provisions of the Federal Power Act (FPA), which governs interstate markets for electricity.

What is the difference between wholesale and retail sales? Until recently, wholesale buyers purchased natural gas for resale. They did not actually use the gas they purchased, but sold it to homeowners or businesses that used the gas for heating, cooking or whatever. For example, natural gas utilities buy natural gas from wholesale sellers for resale to its customers. When the utility buys gas from a wholesale seller, the sales rate it pays is regulated by federal energy regulators. In a retail sale, the buyer uses – rather than resells – any gas it purchases.

During oral arguments on Monday, Justice Stephen Breyer described a hypothetical that illustrated how the boundary between wholesale and retail sales has blurred in recent years. “[A gas pipeline company] picks up gas in the Permian Basin. It ships it up to Ohio. It sells it to a retail distributor in Toledo,” said Justice Breyer. “FERC regulates the sale for resale, and the local regulator regulates the price to the distributor.”

But what if the same pipeline company selling gas from Texas for resale in Toledo also sells gas for direct use to a manufacturer in in Toledo. The latter type of direct sale from a pipeline company to an end user “used to be a bizarre and unusual occurrence,” according to Breyer. It is as common now as it was uncommon 20 years ago. It is also where federal and state authority of energy sales overlaps.

Supreme Court may dilute EEOC’s aggressive legal strategy re: concilation

Sunday, January 18th, 2015


Judy Greenwald  Jan. 8, 2015

The U.S. Supreme Court appears highly likely to take some degree of judicial review of whether the Equal Employment Opportunity Commission must seek conciliation with employers before suing them for violating federal law.

The high court heard oral arguments last week in a case in which a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled unanimously in 2013 that employers cannot use the EEOC’s failure to seek conciliation as a defense.

The EEOC had alleged in EEOC v. Mach Mining L.L.C. that the company discriminated against women in its hiring practices.

“My impression is that the court is very concerned with what appears to be the EEOC’s position” that it is not subject to judicial review on the conciliation issue, said David Barmak, a member of law firm Mintz Levin Cohn Ferris Glovsky & Popeo P.C. in Washington, who is not involved in the case.

Raanon Gal, an attorney at Taylor English Duma L.L.P. in Atlanta, said a ruling in the employer’s favor “will tip the balance of how these cases are litigated and how the conciliation process will be going forward, if the EEOC has to worry they actually made a good faith effort to settle.”

Mr. Barmak said, however, the ruling’s significance will be as much about the Supreme Court’s willingness “to rein in the EEOC” as it will be about the outcome of this particular case.

Meanwhile, the EEOC recently had two judicial defeats in cases that experts say provide some hope of employers’ success in challenging the agency’s aggressive legal strategy.

In its Jan. 6 ruling in EEOC v. Royal Caribbean Cruises, Ltd., the 11th U.S. Circuit Court of Appeals in Atlanta denied the agency’s appeal for a full court hearing to reconsider a three- judge panel’s ruling. That November ruling, which upheld a magistrate’s decision, chastised the agency for issuing an overly broad and burdensome subpoena in a discrimination case.

The case involved Argentine national Jose Morabito, who alleged in 2010 that Miami-based Royal Caribbean violated the Americans with Disabilities Act by refusing to renew his employment contract after he was diagnosed with HIV and Kaposi’s sarcoma, a cancer frequently associated with AIDS.

In EEOC v. Performance Food Group Inc., the agency accused the Richmond, Virginia-based food marketer and distributor and its predecessor company of an ongoing pattern of refusing to hire women at their distribution facilities.

In a Jan. 5 letter, the magistrate assigned to the case by the U.S. District Court in Baltimore refused the EEOC’s requests for sanctions for the defendant’s alleged “blatant disregard of court-approved and ordered deadlines” to provide its requested data, stating they are “not warranted at this time.”

The rulings in Royal Caribbean and Performance Food give firms the “ammunition to go to court where they really didn’t have a viable opportunity to do that before” in cases where the EEOC “visibly exceeded the boundaries of a reasonable investigation,” said David Gevertz, a shareholder at Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. in Atlanta.

“It’s too early to say there’s been a complete turnaround, but it’s just interesting that we start the year with the judges pulling back on the EEOC,” said Gerald L. Maatman Jr., a partner at Seyfarth Shaw L.L.P. in Chicago.

An EEOC spokeswoman said the agency does not comment on ongoing litigation.


Opinion analysis: Even habeas appellees may argue any ground fairly presented by the record so long as it does not enlarge the appellee’s rights

Friday, January 16th, 2015

Rory Little Criminal Law

Posted Fri, January 16th, 2015 12:27 pm

Since at least 1924, when the Supreme Court endorsed it in United States v. American Railway, a general rule of appellate procedure has been that an appellee – that is, the winner below — “may urge in support” of its judgment any argument “appearing in the record” (even if ignored or rejected by the lower court), so long as it does not “enlarge” the appellee’s rights or lessen the appellant’s. The question presented this Term in Jennings v. Stephens, which I previewed last October , was whether this rule should apply to appeals in the specialized federal habeas context when the prisoner has prevailed in district court.

On Tuesday the Court ruled that the answer is yes, in a relatively short (twelve pages) six-to-three decision. As Justice Antonin Scalia wrote for the Court – yes, Justice Scalia ruled for a federal habeas petitioner in a death penalty case – “the intuitive answer to the question” is yes, and there is no persuasive reason to change that answer in the federal habeas context. If, as Justice Clarence Thomas’s dissent (joined by Justices Anthony Kennedy and Samuel Alito) contended, this is perceived to create any difficulties, “that is a problem that can only be solved by Congress” – it is “beyond the power of the courts.”

Facts and context

The facts of Jennings’s underlying crime are not attractive, and the Court’s opinion bluntly describes his murder of a police officer who was “merely the most recent victim of Jennings’ criminality.” Jennings was convicted for this capital murder in Houston, and the Texas courts duly affirmed his conviction and death sentence.

In his subsequent federal habeas petition, Jennings sought a new sentencing hearing on three grounds alleging a Sixth Amendment claim of ineffective assistance of counsel: that his trial attorney had failed to present evidence of both (1) his disadvantaged background and (2) his low intelligence and organic brain damage – referred to as “Wiggins errors” after the Court’s opinion in Wiggins v. Smith; and that (3) his attorney had ineffectively argued in closing that “I feel like I ought to just sit down,” because if the jury chose a death sentence, “I can’t quarrel with that” – referred to as a “Spisakerror” after the Court’s opinion in Smith v. Spisak. The federal district court ruled in Jennings’s favor on the two Wiggins errors, but ruled against him on the Spisak claim. Based on these findings the district court’s judgment ordered, as is typical in such habeas cases, the State to either grant Jennings “a new sentencing hearing or resentence[] him to a [lawful] term of imprisonment.”

The state, however, appealed the finding of Wiggins errors and the Fifth Circuit agreed, reversing the judgment for Jennings. But Jennings had also argued that the judgment in his favor should be affirmed on the third ground – the Spisak claim – even if reversed on the other grounds. Rather than deny this claim on the merits, the Fifth Circuit ruled that it lacked jurisdiction to reach it because Jennings had not filed a notice of cross-appeal and had failed to obtain a “certificate of appealability” (known as a COA, which is a further hurdle required by statute specifically for federal habeas prisoners who take an appeal). Noting that the Seventh Circuit, as well as some district courts, had reached the opposite conclusion, applying to federal habeas the general rule that an appellee may argue any ground in the record to support his judgment without filing a cross-appeal, Jennings filed a petition for certiorari, which the Court granted last March.

The Court’s opinion

In ruling for Jennings and reversing the Fifth Circuit, the Court first noted that Jennings’s judgment entitled him to a new sentencing hearing, exactly the same relief he would receive whether hisWiggins or his Spisak arguments were accepted. Thus he did not seek to enlarge the rights that the judgment had given him, or lessen the state’s. The state had contended otherwise, arguing that the habeas judgment implicitly required a new sentencing hearing free only of the specified Wigginserrors, so that winning on a different claim of error, the Spisak claim, would actually “enlarge” Jennings’s rights. No, wrote the majority, “this Court, like all federal appellate courts, does not review lower courts’ opinion, but their judgments.” The Court declined to adopt an “unusual” or “peculiar” rule in the habeas context.

(A tangent: the Court suggested that the state’s argument “might have force” if the habeas judgment “explicitly imposes a condition governing the details of” any retrial – “but that case is not before us.” One wonders whether this might stimulate some habeas courts to start writing more detailed habeas orders. However, the Court suggested that this ought not be the result, because “a general grant of supervisory authority over state trial courts” is disfavored. The concept seems misguided to me for another reason as well: any habeas order that requires a new sentencing hearing or trial presumably requires that the new event be free of all constitutional errors, not just the ones expressly identified in the prior ruling. Specifying that the new hearing need be free only of errors argued by a prevailing petitioner in a particular appeal would seem to be misleading and inaccurate.)

Moving to further details that are likely meaningful only to appellate procedure wonks (like me), the Court also rejected with silence any effort to distinguish between “claims” and “arguments,” a distinction that had preoccupied the parties but apparently not the Justices. (Rejecting the distinction was also the suggestion of the amicus brief filed by the Criminal Justice Legal Foundation, which is normally adverse to habeas petitioners.)  The Court also rejected arguments that the preclusive implications of a judgment should limit the judgment to arguments particularly discussed in a court’s opinion; “this confuses a party’s rights under a judgment … with preclusive effects that the judgment might have in [the] future.” The Court also rejected expansive readings of two 1930s opinions as “distort[ing] American Railway.” Although Justice Thomas’s dissent says that the Court’s “narrow” interpretation of the general law of judgments will “do damage well beyond the habeas context,” this is simply asserted at the end of a section and is not followed by further argument.   While it is true that any Supreme Court ruling can have “ripple effects” on the details of doctrine as applied in the lower courts, it seems to me that the Court’s strong endorsement of the relatively clear and simple understanding of American Railway will come as some relief to many appellate lawyers and judges alike.

The Court also rejected as “exaggerated” the suggestion that its ruling will encourage more frivolous habeas defenses (as well as noting that this is a statutory problem for Congress if it is really a problem at all). In a paragraph likely added in response to the dissent, the Court seemed to express its impatience by describing the dissent’s “inability to substantiate its claim” and its “thoroughly implausible” speculations. Also in this section (pages 7-9 of the slip opinion), the Court applied what I would describe a “realistic litigator” analysis (which Justice Scalia often employs to reject claims of “future bad law” effects) to habeas lawyers’ likely moves, and expressed the majority’s “doubt that any more judicial time will be wasted” than would be the case under the dissent’s alternative vision.

Finally, the Court made quick work of the argument that the habeas statute’s specialized COA requirement should apply, because it textually applies “only when ‘an appeal’ is ‘taken’” — “it assuredly does not embrace the defense of a judgment on alternative grounds.” The fact that the Court’s ruling here was written by Justice Scalia and joined by Chief Justice John Roberts, in addition to the four Justices one might expect, suggests just how “mainstream” the Court’s application of the normal defend-on-any-ground ruling is.

The dissent

Justice Thomas’s dissenting opinion is workmanlike rather than vehement. It is ultimately founded on the view that Congress has demonstrated that it wants to eliminate delays and frivolous arguments in the federal habeas review of state criminal judgments, and that the Court’s application of the normal rule regarding alternative appellee arguments, to prisoners who prevail in the district court, frustrates Congress’s intentions and “ignores the unique context of habeas.” Justice Thomas argued that a conditional-release order in a habeas case “embodies” a “specific right” to a new hearing “that [only] cures the specific defect identified by the district court.” He cited “an unbroken line of precedent” of habeas rulings that in his view demonstrates this assertion (although they do not directly say it); thus, Justice Thomas asserted, allowing a new argument on appeal opens the door to “modify[ing] the prisoner’s rights.” As indicated above, the majority expressly disagrees; and, again, it seems true that any new criminal hearing that a habeas petitioner wins must be free of all constitutional error, not just the “specific” errors identified in the prior appeal, so that acceptance on appeal of any argument fairly presented by the record does not “enlarge” or “modify” the relief (which is simply a new and constitutional-error-free hearing) that a successful habeas petitioner wins.

The remand

Interestingly, rather than just remanding to the Fifth Circuit (the circuit that Justice Scalia supervises and whose judicial conference he annually attends) for “further proceedings consistent with this opinion,” as is normally the case, the Court’s opinion ends by specifically directing “remand … for consideration of Jennings’ Spisak claim.” But I doubt this is a signal on the merits of this claim; indeed, it could be read as a subtle suggestion to not further delay this case with procedural hurdles on remand; indeed, the opinion earlier noted that “in an already-pending appeal the court can give the back of its hand to frivolous claims en passant.” Although to this observer (and my disclaimers: I admit I haven’t read the trial transcript, and I also currently represent a federal habeas capital petitioner), a capital defense lawyer who tells the jury in closing that if they voted for death “I can’t quarrel with that,” hardly seems to meet Sixth Amendment performance standards. But in any case, the specific remand direction seems unusual.

Posted in Jennings v. Stephens, Merits Cases

U.S. Supreme Court Could Allow Judges in 30 States to Solicit Campaign Contributions from Wealthy Donors

Thursday, January 15th, 2015

Concerns about the appearance of corruption in American courts have grown more urgent in recent years as spending on judicial races has exploded.

By Billy Corriher | Thursday, January 15, 2015


  • print icon
  • SHARE:

  • Facebook icon

The U.S. Supreme Court could strike down rules that ban elected judges from personally soliciting potential donors for campaign cash. The Court has struck down campaign finance laws seven times since 2006. These rulings have fundamentally reshaped how political campaigns are waged and have increased the influence of big money in judicial elections. The Court is hearing arguments on the case on January 20, 2015.

One of the personal solicitation rules currently under contention—Florida’s—says that judicial candidates “shall not personally solicit campaign funds, or solicit attorneys for publicly stated support.” In 2009, lawyer Lanell Williams-Yulee ran for a seat on the Hillsborough County, Florida, bench and signed a mass fundraising letter to kick off her campaign. An arbitrator appointed by the Supreme Court of Florida fined her almost $2,000. The state supreme court affirmed the fine and upheld the ban as a means of protecting judicial integrity and the public’s trust in the fairness of judges.

Twenty-nine other states have similar bans. While four of the six federal appeals courts that have considered the legality of the bans struck them down, each elected state supreme court that has considered them—Florida, Arkansas, and Oregon—upheld these laws. The Supreme Court of Florida’s decision came two years after an unprecedented campaign to vote out three justices in the 2012 retention election—an election in which voters decide whether justices remain in office. The Republican Party of Florida and the billionaire Koch brothers’ super PAC Americans for Prosperity funded ads that attacked the justices. For their part, the justicesraised more than $1 million in order to respond.

The 2014 Arkansas Supreme Court election also saw unprecedented money and mudslinging, but the candidates could not personally ask for donations. In 2007, the state supreme courtupheld Arkansas’ ban:

Allowing a judge to personally solicit or accept campaign contributions, especially from attorneys who may practice in his or her court, not only has the possibility of making a judge feel obligated to favor certain parties in a case, it inevitably places the solicited individuals in a position to fear retaliation if they fail to financially support that candidate.

Several states have issued similar warnings to the U.S. Supreme Court, which will weigh them against any infringement on a would-be judge’s First Amendment right to ask potential donors for money. When the Court agreed to decide whether the bans in 30 states are unconstitutional, Adam Liptak of The New York Times noted that several of the justices oppose judicial elections, writing, “They make this clear by insisting that those elections, which take place in 39 states, be as political as possible.”

In 2002, the Court struck down bans on judges speaking out about “legal or political” issues, ruling that the bans violated the First Amendment. Justice Antonin Scalia’s majority opinion stated the rule was not “narrowly tailored” to preserve judicial impartiality because it focused on issues instead of on particular litigants. The opinion concluded, “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.” Conservative groups that oppose most campaign finance regulations have expressed a similar sentiment regarding the Williams-Yulee case.

Justice Anthony Kennedy—often the Court’s swing vote—has emphasized how electing judges threatens judicial independence, but he has also voted to strike down limits on fundraising and spending. Although he said in Citizens United v. Federal Election Commission that independent spending does “not give rise to corruption or the appearance of corruption,” Justice Kennedy authored a ruling in Caperton v. A.T. Massey Coal Co. that mining company executive Don Blankenship’s $3 million in independent spending for a West Virginia justice gave rise to an unconstitutional “risk of actual bias” in a lawsuit against the company.

Concerns about the appearance of corruption in American courts have grown more urgent in recent years as spending on judicial races has exploded. A 2014 Center for American Progress report titled “Dirty Money, Dirty Water” found a significant correlation between campaign cashfrom attorneys and favorable rulings by the North Carolina Supreme Court. In 1998, law firms “that had more than five cases before the court and donated $400 or more [to the justices’ campaigns] won an astonishing 70 percent of their appeals, compared to 33 percent for firms with at least five cases giving less than $400.”

These correlations—regardless of whether they reflect causation—sow doubt regarding the fairness of U.S. courts. A ruling in favor of Williams-Yulee, for example, would put pressure on judges to become more intimately involved in asking attorneys and corporations for money to campaign.

In a case that appeared before the U.S. Court of Appeals for the 6th Circuit, a candidate wished to sign a fundraising letter, announce his party affiliation, and respond to a questionnaire from an anti-choice group. The court found that Kentucky’s personal-solicitation ban was too restrictive of speech to serve the state’s goal of preserving judicial integrity:

Prohibiting candidates from asking for money suppresses speech in the most conspicuous of ways and, in the process, favors … incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.

The 6th Circuit implied that a narrower ban on “face-to-face solicitations, particularly by sitting judges, and solicitations of individuals with cases pending in front of the court” could satisfy the requirements of the First Amendment.

Judges across America have spoken out against money in judicial elections. Justice Stephen Breyer said, “[O]nce you get into this campaign business and begin to have a lot of money, then the person on the bench begins to think—what’s going to happen if I decide the case this way or that way? Or at least the public sees it that way.” Elected judges across America arehoping that the U.S. Supreme Court considers the appearance of impartiality to be more important than any infringement of First Amendment rights.

Billy Corriher is the Director of Research for Legal Progress at the Center for American Progress.

Supreme Court sides with MN couple in mortgage cancellation case (No need to file a lawsuit!)

Wednesday, January 14th, 2015

IssuesThe Associated Press · Washington ·

A unanimous Supreme Court ruled Tuesday that home buyers don’t need to file a lawsuit, but may simply write a letter if they want to back out of a mortgage because they claim their lender violated the federal Truth in Lending Act.

The decision came in a case involving Larry and Cheryle Jesinoski, a Minnesota couple who refinanced their home in 2007 with Countrywide Home Loans, Inc., now part of Bank of America Corp. They claim the company failed to provide some disclosures required under federal law.

The couple sent a written notice of rescission within three years after the loan closed. But a federal judge ruled they should have filed a lawsuit instead. The 8th U.S. Circuit Court of Appeals affirmed.

Resolving a split among lower courts, the Supreme Court said written notice was enough.

Justice Antonin Scalia wrote for the court that the law says nothing about how a borrower exercises the right to rescind” within the three years allowed.

Scalia said the resolution of the case was simple because the Jesinoskis mailed the bank their notice before the three-year deadline. “This is all that a borrower must do in order to exercise his right to rescind,” he said.

In a second unanimous opinion also written by Scalia, the court upheld a mandatory 10-year minimum prison term for a suspect who forces another person to accompany him during a bank robbery or in trying to elude police.

In the case before the court, defendant Larry Whitfield was fleeing police after a botched robbery at a credit union in Gastonia, North Carolina. He entered the home of 79-year-old Mary Parnell through an unlocked door. Once in the house, Whitfield encountered the frightened woman and guided her from a hallway to a computer room. There, she suffered a heart attack and died. A jury convicted Whitfield for forcing Parnell to accompany him in the course of evading arrest for a bank robbery, among other charges.

At issue was whether the distance traveled matters in figuring out whether the provision applies. Scalia said the several feet Whitfield and Parnell moved from one room to another was enough. Whitfield is serving a total sentence of 27 years.

Although he was the author of both opinions, Scalia was not on the bench Tuesday morning when the decisions were announced. Court spokeswoman Kathy Arberg said the justice was stuck in traffic between his suburban Virginia home and the court. Chief Justice John Roberts read summaries of both cases in Scalia’s absence.

The Supreme Court’s Citizens United decision continues to echo

Friday, January 9th, 2015



Citizens United vs. Federal Election Commission turns 5 this month, but the damage from the Supreme Court’s revolutionary ruling on campaign finance is just beginning to be felt.

Scholars and pundits will undoubtedly mark the anniversary with commentary on such issues as the troubling rise of “super PACs” and the proliferation of undisclosed contributions known as “dark money.” The biggest long-term impact, however, is the powerful framing effect the decision has had on other areas of the law. With last year’s decision in Burwell vs. Hobby Lobby Stores, the idea that “corporations are people” has spread from campaign finance law into the sphere of religious liberty. And there is no reason to believe it will stop there.

The idea that ‘corporations are people’ has spread from campaign finance law into the sphere of religious liberty. And there is no reason to believe it will stop there.-

In our legal system, the way an issue is first framed can have powerful and long-lasting consequences. Gordon Silverstein, assistant dean at Yale Law School, has described law as a game of Scrabble — the first tiles placed on the board limit the future moves of the other players. For example, in Buckley vs. Valeo (1976), the first campaign finance case of the modern era, the Supreme Court decided that “money is speech” rather than “money is property.” Once campaign contributions were elevated to a form of political speech, election spending became increasingly difficult to regulate. Like a series of tiles on a Scrabble board, the precedent set by this one decision has determined what is politically possible and judicially permissible in the realm of campaign finance for almost 40 years.

The way an issue is framed in one area of law can also wind up having dramatic effects in other areas. Savvy litigators frame their cases in the context of previous wins. In 2012, religious liberties advocates representing a for-profit corporation, Hobby Lobby, pointed to the Citizens United decision in making their case against the Affordable Care Act’s contraceptive mandate. If for-profit corporations could engage in political speech, why could they not also practice religion?

The strategy proved to be a winning one. The U.S. 10th Circuit Court of Appeals cited Citizens United 12 times in its Hobby Lobby decision, writing, “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.” The Supreme Court majority agreed and extended religious liberty protections to closely held for-profit corporations. The extension of the logic of Citizens United to Hobby Lobby was a seemingly small step. But as Justice Ruth Bader Ginsburg, writing in dissent in Hobby Lobby, warned, “The court, I fear, has ventured into a minefield.”

Minefield or not, the court didn’t venture into this place by accident. The Citizens United case came about through years of groundwork laid by conservative legal counterrevolutionaries connected through the Federalist Society — a network of 40,000 lawyers, judges and academics dedicated to reshaping the law to align with conservative and libertarian principles.

These lawyers nurtured and developed the “corporations are people” frame in their scholarship, at conferences and meetings, and in their legal briefs decades before a Supreme Court majority became receptive to it. Most critically, they dusted off an all-but-forgotten 1978 Supreme Court case challenging a ban on corporate ballot initiative spending — First National Bank of Boston vs. Bellotti. They used it to help build the legal scaffolding of Citizens United. Resurrecting some lost language from Justice Lewis Powell’s opinion in that case (“The inherent worth of speech… does not depend on the identity of its source, whether corporation, association, union or individual”), they took a legal analogy that might have seemed implausible to many — that corporate persons could have 1st Amendment speech rights like human persons — and made it look plausible, even legitimate.

So far, the most acute effects of the Citizens United decision have been on elections and campaigns over the last half-decade. Although these effects could be mitigated by statutes, a constitutional amendment or a future Supreme Court decision, the effect Citizens United has had on other areas of law could be longer-lasting and equally as troubling.

Imagine the variety of ways for-profit corporations might use the “corporations are people” frame to reap additional protections and privileges under the law. Doesn’t antitrust regulation infringe on a corporate person’s freedom of association? Freedom of association is, after all, an essential part of free speech. And, as we have seen, if it can be linked to speech, the claim is at least in play on this Supreme Court’s Scrabble board.

If past experience holds true, the logic behind the Citizens United decision will become increasingly accepted, authoritative and influential. As the late Justice Benjamin Cardozo said, “The power of precedent … is the power of the beaten track.” If the Supreme Court continues to beat the Citizens United track, we can look forward to corporate “people” accruing more and more of the rights and privileges of “We the People.”

Amanda Hollis-Brusky, an assistant professor of politics at Pomona College in Claremont, is the author of “Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution,” to be published this month.

Follow the Opinion section on Twitter @latimesopinion

State Courts Strike Blows to Criminal DNA Collection Laws in 2014—What to Look for in 2015

Tuesday, January 6th, 2015

DNA can reveal an extraordinary amount of private information about you, including familial relationships , medical history, predisposition for disease , and possibly even behavioral tendencies and sexual orientation . While DNA testing in a criminal context has some benefits—such as supporting innocence claims—the mass, suspicionless collection, testing, and storing of genetic material from large populations creates a danger for privacy that only grows with each new scientific discovery in the field of genomics. In this post, EFF Senior Staff Attorney Jennifer Lynch discusses state and federal cases that addressed DNA collection in 2014, following the Supreme Court’s landmark ruling in Maryland v. King.

2014 was a banner year for DNA cases. In the wake of Maryland v. King—the 2013 U.S. Supreme Court case upholding warrantless, suspicionless DNA collection from arrestees under Maryland state law—the constitutionality of DNA collection in the criminal context has continued to present challenging issues for courts.

Many of the courts that addressed DNA collection in 2014 followed the Supreme Court’s reasoning in King and held that DNA profiling upon arrest is a means of “identification” because it might help law enforcement to learn about a person’s past criminal behavior (read what we think of that analysis here). For example, in Haskell v. Harris,  the Ninth Circuit Court of Appeals reviewed a challenge to California’s DNA collection law, which requires DNA collection from all individuals arrested for a felony, and upheld the statute’s constitutionality in light of King. And in State v. Raynor , the Maryland high court went one step further than bothKing and Haskell to uphold warrantless DNA collection from someone who hadn’t even been arrested for a crime. Glenn Raynor voluntarily came to the station to answer questions in a rape case, and after he refused to provide a DNA sample, the cops extracted DNA without his consent from tissue he left behind on a chair.

However, late in 2014, in People v. Buza , the California Court of Appeal refused to follow this path. Instead, it held that California’s DNA Act (the same statute the Ninth Circuit addressed inHaskell), “unreasonably intrudes such arrestees’ expectation of privacy” and therefore violates the search and seizure provision of the California Constitution, California’s equivalent to the Fourth Amendment. Similarly, earlier in 2014, the Vermont Supreme Court held in State v. Medina , that Vermont’s law mandating DNA collection and analysis from anyone arraigned for a felony after a probable cause determination violated the Vermont state Constitution.

Although Maryland v. King appeared to create a blanket rule that DNA collection from arrestees is always constitutional under the Fourth Amendment, the Buza court left open the possibility that DNA collection statutes could violate the federal as well as state constitution. The court highlights key differences between California’s law and Maryland’s (which the Supreme Court upheld in King) that greatly increase the law’s impact on privacy. These include:

  • California’s law applies to any person arrested for a felony, while Maryland’s only applies to arrests for burglary or a crime of violence;
  • California requires DNA collection and processing immediately after arrest, while Maryland does not require collection until after a judge makes a probable cause determination and the person arrested is charged with a qualifying crime;
  • California currently allows familial searches of its convicted offender database—searches designed to find a biological relative whose DNA is not in the database—and will likely allow these in the arrestee database in the future; Maryland does not allow them;
  • California’s process for getting DNA expunged from the database is slow, “quixotic,” nearly impossible, and unreviewable; Maryland’s law includes an automatic expungement provision.

The court found these and other differences combined to “significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment.”

Nevertheless, after quoting liberally from Scalia’s scathing dissent in King and noting that King“eviscerated protections against suspicionless searches long recognized under both the federal and state constitutions,” the Buza court seemed to acknowledge what it was up against and stepped back from deciding the case on Fourth Amendment grounds.

Instead, Buza and Medina both limited their holdings to their respective state constitutions. This was likely a strategic decision. Not only do the California and Vermont constitutions offer greater privacy protections than the Fourth Amendment, the cases can’t be appealed to the federal Supreme Court if they’re decided purely on the basis of state law. Further, other courts post-King that have addressed arrestee DNA collection statutes under the Fourth Amendment (like Raynor and Haskell), have invariably found those statutes pass constitutional muster.

Although the California Court of Appeal’s opinion is thorough and welcome, several of the facts the court focuses on may change as technology advances, and this could undermine the applicability of the court’s decision in future cases.

First, the court recognizes that, right now, DNA cannot effectively be used to “identify” someone—immediately establish who that person is—because it takes so long to process a DNA sample. While this was true in 2009, when the police tried to collect Mr. Buza’s DNA, it very likely won’t be true in the near future. As we have noted before, law enforcement and the federal government are investing more and more money into Rapid DNA analyzers—machines that can be operated by a layperson, outside a lab and can process a DNA profile in under 90 minutes. A Rapid DNA profile can be compared to the profiles already stored in a DNA database to verify a person’s identity—in only about 60 minutes more than it would take to verify identity through a fingerprint. If a court relies on the current DNA processing backlog as a reason to find collection from arrestees unconstitutional, this rationale could be obviated by the widespread use of Rapid DNA in the near future.

Second, the court notes that because a person’s name and identifying information are not stored with his DNA profile in the database, this further undermines the government’s argument that it’s using DNA for identification. However, the FBI announced  at a 2014 biometrics conference that it’s exploring the possibility of using a universal identification number to link CODIS DNA profiles to data in its Next Generation Identification (NGI)biometrics database. This, combined with the use of Rapid DNA, could make it extremely easy to actually identify someone using a DNA profile.

A better basis for the constitutionality analysis is that, as both the Buza and Medina courts note, DNA collection from arrestees and arraignees not only impacts populations that have strong and recognized privacy interests—the presumed-innocent arrestees and arraignees themselves and their biological relatives—but also that “DNA contains an extensive amount of sensitive personal information beyond mere identifying information” and has the potential to reveal intensely private details about a person’s life and future. This is not trivial. In California, 20% of all people arrested for a felony—57,601 people in 2012—were never even charged with, much less convicted of a crime. And there are few rules in place in many states that protect sensitive DNA data from inappropriate use .

The Buza court notes the “stark contrast” between the Supreme Court’s analysis of privacy interests in DNA in King and its discussion of privacy interests in the data stored on our phones in Riley v. California. While in King, the Court minimized the privacy interest impacted by DNA collection, in Riley, the Court relied on the mere potential for privacy harm to hold warrantless cell phone searches unconstitutional. It’s unclear why the possible search of one’s entire genome should deserve lesser protection than the possible search of that same person’s “photographs, picture messages, text messages, Internet browsing history,” and other data on her phone.

We will continue to follow these issues. As we have done before in Buza, Haskell, U.S. v. Mitchell, U.S. v. Pool and King, we plan to file an amicus brief in support of Supreme Court review in Raynor in early 2015. And if the California Department of Justice decides to seek review in Buza, we’ll be there with a brief, too. As we noted in our brief in King, “the ‘slippery slope toward ever-expanding warrantless DNA testing’ that judges throughout the country have predicted is already upon us.” But Buza and Medina give us hope that, in Scalia’s words,King “will some day be repudiated.” We’ll be there to encourage courts to do just that.