Category Archives: Law

Stevens on Separation of Religion and Government

Americans United for Separation of Church and State has compiled some noteworthy quotations from the opinions of retiring Supreme Court Justice John Paul Stevens on the topic of religion-government separation.

That topic is one of the main reasons I’ll miss having Justice Stevens on the Court. In 1878 the Supreme Court quoted with approval a statement in a letter penned by Thomas Jefferson that the First Amendment’s Establishment Clause set up “a wall of separation between church and State.” Reynolds v. United States, 98 U.S. 145, 164 (1878). Lofty rhetoric notwithstanding, the Supreme Court has never interpreted the Establishment Clause as actually requiring strict separation or anything even close to strict separation.  In one landmark case, the Court quoted Jefferson’s letter then promptly held that a state statute and local board of education resolution that  combined to authorize the use  of public funds to transport children to and from Catholic schools was A-OK. Everson v. Board of Education, 330 U.S. 1 (1947).

Stevens is the closest thing to a strict separationist the Court has ever had. A favorite example of mine (one that didn’t make AU’s list) comes from City of Boerne v. Flores, 521 U.S. 507 (1997). At issue in that case was the constitutionality of a federal law called the Religious Freedom Restoration Act (“RFRA”), passed in 1993 in response to a1990 Supreme Court ruling that many considered an overly narrow and restrictive view of the First Amendment’s Free Exercise Clause.

The Supreme Court ruling was narrowly based. The majority in Flores held that RFRA was unconstitutional as applied to state and local governments because Section 5 of the Fourteenth Amendment – the power by which Congress purported to render RFRA applicable to those entities – didn’t extend quite so far.

Justice Stevens wrote a very short but much broader-based concurring opinion in which he concluded that RFRA “is a ‘law respecting an establishment of religion’ that violates the First Amendment to the Constitution.” His rationale:

If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.

We may never have another  Supreme Court justice who favored  separation as thoroughly as Stevens does.

It’s Kagan

It’s not official yet, but insiders are saying that Elena Kagan, a Harvard lawprof currently serving as the U.S. Solicitor General, is President Obama’s nominee to replace retiring Supreme Court Justice John Paul Stevens.  The move is entirely expected, since Kagan has been the frontrunner since Stevens announced his retirement.

It remains to be seen whether Kagan’s comment that the Senate confirmation process has become a “vapid  and hollow charade” will come back to bite her on the ass.  I suppose she could just say that she was speaking not of the process but rather of Senate Judiciary Committee member Sen. Jeff Sessions, whose bona-fides as a vapid and hollow charade are beyond question.

Sen. Sessions tells us what we Americans want in a Supreme Court justice here. Turns out that what we really want is someone “committed to the text of the Constitution and the vision of the Founding Fathers” instead of “an activist who will shed a judge’s neutral, constitutional role to push a progressive policy agenda.”

We’re also “looking for judges in the mold of Chief Justice John Roberts, not Justice John Paul Stevens.” That’s good to know. Until reading that, I might have believed that I’d prefer a principled conservative jurist to a political hack. Silly me.

Dianne Primavera Continues to Rock

I’ve gotten somewhat involved in local Democratic politics since moving to Colorado in 2003.  Over the the past couple of years, though, I’ve found myself sitting in a meeting or an assembly multiple times wondering, “What the fuck is the point?”

But every now and again the old excitement returns. Last night was one of those times.

I was a delegate to the Democratic Colorado House District 33 Assembly.  Pretty much the sole purpose of the Assembly was to nominate incumbent Rep. Dianne Primavera as the party’s official candidate for the state House of Representatives.

It was all pretty perfunctory. Everyone knew way that Dianne wanted to run for reelection. No other Democrat wants the job, AFAIK, and Dianne is extraordinarily good at it. She’s respected on both sides of the aisle and is widely viewed as the James Brown (“hardest working [wo]man”) of the Colorado General Assembly.

The Assembly got under way at 7:30 p.m. and its business took all of about fifteen minutes to complete. We managed to nominate Dianne before she even showed up.

So why wasn’t she on time? What’s the matter, can’t this hoity toity incumbent be bothered with the details of her own reelection?

That’s not it at all, of course. Dianne was late to the Assembly because she was working, as always. The House Judiciary Committee was conducting a hearing on S.B. No. 10-076 (pdf, 3 pages), which Dianne is sponsoring along with Sen. Morgan Carroll. The bill is quite important to Dianne, and she wanted to be there in person to shepherd the bill through what promised to be a rather prickly process.

It worked. When all was said and done the Judiciary Committee voted 7-4 in favor.

And what does the bill do? It designates as an unfair claim settlement practice an insurer paying its employees bonuses, incentives or other compensation for denying or delaying a claim, or for canceling or rescinding an insurance policy. When Dianne arrived and told us why she was late, the room erupted in applause. While clapping my hands I smiled and thought, “This, THIS is the point.”

Anyone who knows our humble little district knows that Dianne is a Democratic incumbent in sea of Republicans. Given the voter registration numbers, the state Republican Party has once again made retaking this seat a priority. So despite Dianne’s exceptional record over the course of two terms, getting reelected will take loads of time, effort and money.

You know what? It’ll be worth it. Dianne Primavera’s extraordinary combination of skill, work ethic and deep concern for actual flesh-and-blood constituents is all too rare. We’re fortunate as all hell to have Dianne Primavera representing us in Denver, and we’ll not give up such high-quality representation without a huge honking fight.

Fuckin’ Racist Dipshit Law Students: How do They Work?

I tell everyone who’ll listen that, as a general rule, people who graduate law school aren’t all that smart. In my experience (admittedly somewhat dated), law school is geared toward people of average intelligence who don’t mind putting a lot of work into activities that fall largely between drudgery and pain-inducing on the I Don’t Like This Shit continuum.

Seems that analysis applies not only to middling law schools like the one I attended but also to the hoity toity upper crust schools. The analysis also applies to overall enlightenment rather than just intelligence.

The magnificent Aryan warrior princess depicted here is Stephanie Grace, a third-year law student at venerable Harvard Law School.  Ms. Grace managed not only to get into Harvard – an impressive feat all by itself – but to do quite well. The linked article indicates that she’s secured a clerkship with Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

Ms. Grace is a prime example of an excellent law student who’s just not  smart or enlightened. Seems she wrote and sent an email to some friends announcing that she just can’t rule out the possibility that black folk are genetically stupider than white folk. She does, however, admit the possibility of being “convinced that by controlling for the right variables, we would see that they are, in fact, as intelligent as white people under the same circumstances.” It’s difficult to determine which component of this story is stupider, the old-school Prescott Bush style eugenics or Ms. Grace’s apparent belief  that she could transmit such statements over the internet without anyone forwarding her email to, say, the Harvard chapter of the Black Law Student Association.

In any event, Ms. Grace’s apparent imperviousness to outrage should serve her well in her new endeavor. Judge Kozinski, who has long been famous in law circles for his rulings and legal writings, was outed a couple of years back as a serious devotee of barnyard-themed porn. Videos of boner-sporting donkeys chasing pantsless men through fields would no doubt appear eminently tame to someone like Ms. Grace.

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.

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.

Capital Punishment Avoids Execution

The 2009 Session of the 67th Colorado General Assembly adjourned sine die on Wednesday.  House Bill 1274, which would have abolished capital punishment in Colorado and channelled additional funds to the Colorado Bureau of Investigation’s cold case unit, went down to a narrow 18-17 defeat in the state senate. Democratic Senators Mary Hodge, Jim Isgar, John Morse and Lois Tochtrop sided with the senate’s fourteen Republicans in voting to keep capital punishment. Earlier, the bill passed the state house of representatives by an equally slender vote of 33-32.

For now, at least, troglodytic Old Testament savagery is safe in Colorado.

And what would Gov. Ritter have done had the bill passed? He ain’t sayin’.


On Monday, the U.S. Supreme Court decided Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. ____ (2009) (pdf, 27 pages). At issue was the scope of liability for environmental cleanup costs under the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). In brief and grossly oversimplified terms, CERCLA authorizes certain federal and state agencies to clean up contaminated lands and collect the costs of cleanup from certain types of entities Congress deemed responsible.

Among the parties that can be held liable for cleanup costs are those who “arrange[] for disposal . . . of hazardous substances” on the site. The Court ruled that “arranger liability” requires a finding that the defendant intended that at least some of the hazardous material at issue would be disposed of on the site in question; mere knowledge or foreseeability of disposal on the land is not enough.

CERCLA imposes a general rule of joint and several liability for cleanup costs. In other words, if more than one entity contributed to the problem, any one of those entities can be compelled to pay the full cost of cleanup. In effect, joint and several liability places the risk of insolvency of one co-defendant on the other co-defendants rather than the plaintiff. However, CERCLA provides that each defendant is liable for only a proportionate share of the cleanup costs (several-only liability) if “there is a reasonable basis for determining the contribution of each cause to a single harm.” The Supreme Court arguably lowered the bar for obtaining several-only liability by approving the trial court’s apportionment, which suffered from what appears to be a rather serious lack of evidentiary support.

A hoity toity law firm’s analysis of Burlington is available here. I’m not especially interested in these cases, but I blogged about this one because it’s morally repugnant to pass on an opportunity to use  the term “CERCLA jerk.”

Judge McConnell leaving 10th Circuit

The U.S. Court of Appeals for the Tenth Circuit announced yesterday that Judge Michael McConnell is resigning effective August 31. After seven years on the bench Judge McConnell is returning to academia. He’s going to be a law professor and director of the Constitutional Law Center at the prestigious Stanford Law School.

Judge McConnell has served with distinction since being appointed to the Tenth Circuit in 2002 by President George W. Pencilcock. Here’s wishing Judge McConnell all the best in his new endeavor.

The Tenth Circuit’s official announcement, along with the resignation letter Judge McConnell send to President Obama, is available here (pdf, 4 pages).