Monthly Archives: November 2009

Firearm Follies

The question then is whether the Michigan Legislature can constitutionally provide that a felon who possesses a firearm shall be convicted of and punished for violating two criminal statutes: felon in possession of a firearm, and possession of a firearm while being a felon in possession of a firearm.

White v. Howes, ___ F.3d ___, No. 08-1458, at 8 (6th Cir. Nov. 20, 2009) (pdf, 14 pages). The answer, says the U.S. Court of Appeals for the Sixth Circuit, is yes.

Unlike so many other recently decided firearms cases, White has nothing to do with the Second Amendment. This one’s a Fifth Amendment Double Jeopardy Clause case, and it’s an especially lovely example of how Byzantine double jeopardy analysis can get.

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Palin-Beck in 2012?

Hey, don’t blame me. It’s Sarah Palin’s suggestion, apparently. The fact that such lunacy got so much as a nod from CBS News, much less the full-blown article it actually got, is itself a telling comment on the state of the media, the contemporary Republican party, or both.

H/T – The Legal Satyricon

Damn Fine Tune

Thanks to YouTube, everyone can enjoy this obscure tune recorded by a band of high schoolers from Dayton, Ohio long about 1971:

The Fabulous Originals – It Ain’t Fair But It’s Fun

“The Tank” is back!

Sociopathic racist lunatic Tom Tancredo, who’s gotten more than his fair share of ink on this blog, simply won’t go away. The failed Republican presidential candidate and former congressman looks to be planning a run for Governor of Colorado, according to the good folks at Colorado Independent. Though he hasn’t formally declared, he’s telling reporters that he “fully intends to run.”

Tancredo’s intent is perhaps best revealed in this breathtakingly over-the-top video the Tancredo folks recently posted to YouTube. The upshot is that all those illegal immigrant gangstas we’re letting into God’s Chosen Nation are raping, murdering and eating our godly white wives, children and pets, and will continue to do so unless and until we finally wise the fuck up and do what Tom Tancredo says.

Of course, the gang whose members are depicted in the video, Mara Salvatrucha a/k/a MS-13, hails not from some barbaric foreign land but rather from Los Angeles, California, USA. But hey, never mind that shit. One should never let a fact stand in the way of hysterical fear mongering. We can be damned good and sure that Tancredo won’t allow himself to get distracted. Let the good times roll, Colorado!

Speaking of taking it up the ass …

… our old friend Ted Haggard in back in the news. No stranger to this blog, Haggard was the golden boy of the lunatic Christian right until three years ago when his career as a megachurch pastor and de facto Bush administration advisor disappeared in a blizzard of methamphetamine and cockmeat.

After a lengthy sojourn during which he solicited donations to pay his living expenses while he pursued a counseling degree, using a convicted sex criminal as his collection agent, Ted is back in his $700,000 house in Colorado Springs. He and his lovely wife Gayle hosted a big ol’ prayer meetin’ on Thursday night.  In true hebephrenic Christian conservative style, Haggard observed:

“For the people who come tonight, that means they believe in the resurrection in me,” he told reporters before the start of the meeting Thursday night. “Because I died. I was buried.”

So, yeah. Ted is now zombified. Or something. And that’s a good thing for some reason. Maybe he’s saying that the “good” part of him is still alive; only the part that was into penis and meth died. Or maybe not. If anyone knows what Ted is trying to say here, please be so kind as to pass it along.

Haggard also wants us to know that he was never, ever a hateful anti-gay preacher. All that stuff about gays being an abomination was love, you see.

In addition, going through that silly ol’ gay sex scandal “was good for me as a heterosexual evangelical Christian, father of five, 30-year husband of Gayle.” As a result of all those Christians THINKING Ted was gay and hating him for it, his “compassion for the homosexual community has gone up incredibly.” Accepting multiple dicks in his mouth and anus no doubt helped with the compassion thing as well.

Anyhow, Ted says he’s looking to make a “comeback,” and judging from the fifty or so cars parked outside his house for the prayer meeting he’s well on his way. A fundy and his money are lucky enough to get together in the first place, and rarely stay together very long. In the final analysis, that’s a fundamental truth Haggard can really believe in. And exploit the hell out of.

Birfers take it up the ass yet again

Sadly, I can’t seem to get enough of the birthers (“birfers,” to impart a needed and useful sense of derision), the lunatic fringers who insist that President Barack Obama should be removed from office because he isn’t a “natural born Citizen” (NBC) as Article II, Section 1 of the U.S. Constitution requires. Some birfers insist that Obama can’t be a NBC because he born in Kenya or Indonesia or anywhereelsebutHawaii. Others contend that it doesn’t really matter where Obama was born. Those birfers claim that Obama is not a NBC even if he was born in Hawaii; the Constitution requires that both parents be U.S. citizens, and Obama’s father was a British citizen.

These nutjobs have clogged state and federal courts alike with innumerable frivolous lawsuits aimed at ousting the president. All those cases have failed miserably. In the vast majority of cases, dismissal is based on the plaintiffs’ failure to establish standing and/or the fact that the lawsuits present issues that are non-justiciable under the “political question” doctrine.

That brings us to Ankeny v. Governor of Indiana (pdf, 19 pages), which the Indiana Court of Appeals decided yesterday. The case began with a couple of pro se litigants filing suit against Indiana’s governor and others in an Indiana state court. The complaint appeared to be based on the notion that the governor owed and breached a legal duty to ascertain whether or not candidates for President of the U.S. met the constitutional criteria for office. The plaintiffs averred that neither Obama, the Democratic nominee, nor John “WALNUTS!” McCain, the Republican nominee, qualified as a NBC.

(The plaintiffs also evidenced a rather amusing inability to distinguish between presidential electors and presidential candidates, but that’s neither here nor there for present purposes.)

Yes, it does indeed sound batshit insane. Yes, the “argument” did indeed fail in a big way. However, the two buffoons who brought this case managed to pull off something that’s proven to be far beyond the grasp of illustrious birfer lawyers such as Leo Donofrio, Phil Berg, Mario Apuzzo, Orly Taitz and thrice-disbarred Charles Lincoln III (currently serving as Taitz’s “law clerk” and alleged fuck buddy): they got a ruling on the merits.

The defendants in Ankeny didn’t rely on standing-based arguments. The governor moved to dismiss on the ground that, even assuming that all the facts alleged in the complaint were true, the plaintiffs’ claims nonetheless failed as a matter of substantive law. The trial court agreed, and the court of appeal affirmed in the opinion linked above.

The Ankeny plaintiffs are among birfers who believe that only someone born of two citizen parents can be a NBC for presidential qualification purposes. That contention is based in part on Le Droit des Gens ou Principes de la Loi Naturelle, appliques a la conduite & aux affaires des Nations & des Souverains, a treatise on natural law completed in 1758 by Swiss philosopher and bureaucrat Emmerich de Vattel. In Book I, Chapter 19, Section 212 of his treatise Vattel allegedly wrote that “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” That, the argument goes, is the definition of NBC the framers of the U.S. Constitution had in mind.

Relying on U.S. Supreme Court case law, the Indiana Court of Appeals rejected the Vattel argument on the merits. Per the well established rule of English common and positive law — a rule that was entirely familiar to the framers — a person born in country is “natural born” regardless of the citizenship of his parents. There’s no support at all for the remarkable contention that the framers cast aside that familiar understanding in favor of the Vattel definition.

Moreover, although the Ankeny court didn’t actually address the issue, the Vattel definition that birfers rely on doesn’t really exist. Vattel never defined or purported to define the term “natural born citizen.” Being Swiss, Vattel wrote exclusively in French, so the term at issue never appears in Les Droit des Gens.

The initial appearance of “natural born citizen” in an English translation of Vattel’s book came in a edition first published in 1797, a full decade after the Constitutional Convention. The wildly speculative conclusion that the framers got their understanding of NBC from the original French edition of Vattel’s book is belied by the fact that nothing in the original Section 212 fairly and accurately translates to “natural born citizen.”

All in all, Ankeny is pretty tame stuff compared to the multiple spectacular legal train wrecks wrought by soon-to-be-former-attorney Orly Taitz. But a victory for sanity is still a victory, even if unaccompanied by $20,000 in monetary sanctions for frivolous conduct.

De novo review lives (in the 10th Circuit, at least)

I have on multiple occasions bitched, moaned, whined and otherwise griped about the unholy abomination that is the federal Employee Retirement Income Security Act of 1974 (“ERISA”). Opportunities to pass along ERISA-related good news don’t come along that often, but we got one earlier this week, and it definitely warrants a bit of discussion.

As we’ve seen before, ERISA authorizes employees to sue in federal court to recover benefits to which they’re entitled under their employer-provided benefit plans. Unfortunately, the federal judiciary has long been renowned for its predisposition toward wrapping its lips lovingly around the insurance industry’s aching, tumescent Johnson and comfortably sucking the industry to the point of release. That predisposition appears in abundance in ERISA cases.

For one thing, insurance companies and self-funded employee benefit plans invariably include provisions in the plan documents under which benefits denials are subject to one or more levels of in-house “appellate review.” In other words, if the insurance company denies your claim you must appeal that decision to the insurance company, which then gets to decide whether or not it acted properly in denying your claim.

You can guess how those “appeals” generally come out, but the painfully obvious fact that in-house “appeals” are textbook exercises in futility is wholly irrelevant in federal court. You must comply with all of the plan’s in-house “appeals” procedures. If you don’t, the federal court in which you file suit will dismiss your case for “failure to exhaust administrative remedies.”

In addition, though federal law allows courts to review an ERISA plan’s decision to deny benefits, federal courts exercise that authority with substantially less than boundless enthusiasm. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the Supreme Court set up a default rule under which courts must review an ERISA benefits denial de novo,  meaning the court gives no deference to the ERISA plan’s decision at all. However, Firestone also endorsed including language in ERISA plan documents giving the plan administrator sole and absolute discretion in interpreting and applying the plan’s terms, as well as determining eligibility for benefits. If the magic language appears in the plan, then judicial review of a benefits denial is limited to whether the plan administrator acted “arbitrarilty and capriciously.” Under that standard, the benefits denial stands if there’s any remotely reasonable basis for the administrator’s decision. Application of arbitrary-and-capricious review generally means that the federal court acts as a rubber stamp for ERISA plan administrators.

If the notion that an insurer or self-funded employee benefit plan can exempt itself from meaningful judicial review by unilaterally inserting a nyah-nyah-na-nyah-nyah clause into the pertinent plan documents sounds, well, TOTALLY FUCKING INSANE to you, that’s because it IS totally fucking insane. But there it is nonetheless.

In 2003 the U.S. Court of Appeals for the Tenth Circuit, the territorial jurisdiction of which includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming and Utah (as well as the parts of Yellowstone National Park extending into Montana and Idaho), decided Gilbertson v. AlliedSignal, Inc., 328 F.3d 625 (10th Cir. 2003). In that case, the employee benefit plan included the magic “sole and absolute discretion” language, but the plan administrator didn’t issue any decision on the plaintiff’s claim for disability benefits. Many months after the regulatory deadlines for making a decision, the plaintiff filed suit. The trial court, applying “arbitrary and capricious review,” dismissed the lawsuit.

Department of Labor regulations then in effect provided that failure to issue a decision within the regulatory deadlines (generally 90 days for an initial claim and 60 days for an in-house “appeal”) meant that the claim was “deemed denied.” The Tenth Circuit held that a plan administrator isn’t entitled to a deferential standard of review in federal court unless the administrator actually exercised the discretion conferred by the plan within the time alloted by law. Absent an actual, timely decision, Firestone‘s default de novo standard of review applies unless the administrator can prove “substantial compliance” with the regulatory deadlines. Substantial compliance requires a showing that the delay in issuing a decision was both “inconsequential” and the product of “an ongoing productive evidence-gathering process in which the claimant is kept reasonably well-informed as to the status of the claim and the kinds of information that will satisfy the administrator.” 328 F.3d at 636.

Gilbertson gave claimants a path to de novo review other than the one recognized in Firestone. The Supreme Court case law suggests that de novo review is allowed only when a plan does not include the magic language. Gilbertson hold that de novo review can be available even if the magic language is there. The heightened level of judicial review basically serves as a sanction for (and thus a deterrent to) inexcusably dilatory conduct.

The Gilbertson Court noted that after the events at issue in that case the Labor Department amended its ERISA regulations. The time limits stayed essentially the same, but the provision that noncompliance with the deadlines resulted in a claim being “deemed denied” was replaced with one stating that noncompliance meant that the claimaint was “deemed to have exhausted . . . administrative remedies.” The Gilbertson Court expressed no opinion on whether its standard-of-review analysis  would apply in cases governed by the amended regulations.

The Tenth Circuit addressed the continuing viability of Gilbertson in Rasenack v. AIG Life Ins. Co. (pdf, 33 pages), decided on Monday. There, a Colorado man was creamed by a hit and run driver, leaving him permanently brain-injured and otherwise severely disabled. The injured person worked for Marriott International, which had an employee benefit plan that included accidental death and dismemberment (“AD&D”) benefits under a policy issued by AIG Life Insurance Company. (Yes, AIG Life is part of the same motley band of sink-or-swim free marketeers that’s received hundreds of billions of dollars in largess from the American taxpayer.)

The AD&D policy included a rider under which the employee is entitled to benefits if he suffers “hemiplegia,” which the policy defines as the “complete and irreversible paralysis of the upper and lower limbs of the same side of the body,” within 365 days of an accidental injury. Mr. Rasenack purchased the basic AD&D coverage and the supplemental hemiplegia coverage through payroll deductions.

Mr. Rasenack’s spouse, who was appointed his guardian and conservator after the accident, made a claim for hemiplegia benefits based on the fact that Mr. Rasenack’s left arm and left leg were paralyzed as a result of the hit-and-run.

AIG denied the claim. The AD&D policy did not define the term “paralysis.” AIG hired a couple of whores with medical degrees to opine that Mr. Rasenack was not hemiplegic because the medical records indicated that he some de minimis movement in his left hand. According to said whores, any movement at all = no “paralysis” and therefore no hemiplegia. AIG was unimpressed with the conclusions of Mr. Rasenack’s treating physician and a nurse AIG itself hired to interview Mr. Rasenack,  both of whom stated in no uncertain terms that he was hemiplegic. Nor was AIG persuaded by the fact that a number of well-recognized medical authorities define “paralysis” in ways that do NOT require a total absence of movement.

AIG’s troubles in this case started with its laughably egregious disregard for regulatory guidlelines. The standard deadline for deciding an intial claim is 90 days, with an absolute maximum limit of 180 days. AIG took sixteen months to deny Mr. Rasenack’s claim.

In-house “appeals” have to be decided within 60 days, up to a maximum of 120 days. When AIG failed to act on an appeal after eight months, Mr. Rasenack filed suit in the U.S. District Court for the District of Colorado. Only after the lawsuit was filed did AIG bother to deny the appeal.

Despite AIG’s egregious and unjustifiable delays, the trial court declined to review AIG’s actions de novo. The AIG policy included the magic Firestone language. The court noted that Gilbertson was based on a now-superseded version of Labor Department ERISA regulations and that, in any event, AIG did exercise its discretion (albeit belately) by denying the claim. The lower court, applying a somewhat modified version of arbitrary-and-capricious review, dismissed Mr. Rasenack’s lawsuit.

On appeal, a unanimous three-judge panel of the Tenth Circuit held that the above-described change to ERISA regulations did not render Gibertson inapplicable. Slip op. at 8. The court of appeals also rejected the rather silly contention that the fact that AIG eventually issued decisions on the intial claim and the appeal rendered arbitrary-and-capricious review appropriate. The court ruled that there’s no meaningful distinction between issuing a decision long after expiration of the applicable deadlines, as happened here, and issuing no decision at all.

Rasenack also illustrates the potential benefits of de novo review. For one thing, in de novo review cases the court must apply the rule of insurance policy construction under which any ambiguities are construed strictly against the insurer and strictly in favor of the insured. The court of appeals found that the undefined term “paralysis” was  ambiguous in the context of this policy, and on that basis ruled that AIG wasn’t allowed to define the term in a way that required proof of a total absence of movement.

We can expect AIG to demand an en banc review of this decision. If that fails, they’ll probably seek review in the U.S. Supreme Court. For now, though, claimants can take comfort in knowing that not all federal courts are completely goddamned unreasonable when it comes to ERISA claims. Such tepid declarations aren’t ordinarily anything to write home about, but in the ERISA context it’s a very big deal indeed.