Cuccinelli relieved from case, McDonnell still in the crosshairs

In the case of former chef to the Executive mansion Todd Schneider, AG Cuccinelli's office (as predicted) has been let out of the case.

In response to discovery motions implicating Governor Bob McDonnell, AG Cuccinelli's office moved the court to allow the AG's office to be recused from the case.  Schneider's attorneys objected. 

At a hearing this afternoon, Judge Margaret Spencer of the Richmond City Circuit Court allowed AG Cuccinelli's office to withdraw from the case. 

Norfolk Commonwealth's attorney, Greg Underwood (D) will be handling the prosecution from now on.  Commonwealth's Attorney, Paul Ebert was not selected for reasons not apparent from any news source at this time.

The AP reports that the motion to dismiss has been delayed until May 14, 2013.  Given the fact the recusal motion has been granted, I strongly predict the motion to dismiss will be denied.

Governor McDonnell still faces the possibility of substantial disclosure of records regarding his family's use of assets at the Governor's mansion.  With AG Cuccinelli's office out of the picture, he is likely anxious to find out what will happen next.

Star Scientific and Cuccinelli, a fleeting excitement

Updated: Motion to recuse AG Cuccinelli's office granted, as predicted.

An Attorney General seeking a governorship, a well-heeled businessman paying a substantial amount toward the Governor's  daughter's wedding, a disgruntled former employee being prosecuted for embezzlement, and an off year election make for some juicy legal stories.

The only thing clear is that there will be more chaos before the waters settle down.

Todd Schneider - Executive Chef and current source of angst for Governor McDonnell

Todd Schneider, the former executive chef at the Governor's mansion in Richmond, is being prosecuted for alleged embezzlement of (it appears) food from the executive mansion.  As part of his defense he is seeking substantial information about the McDonnell's use of goods from the Executive mansion.  The implication is one of outright theft, but nothing beyond bare allegations from the accused has surfaced.  Still, the Washington Post broke the story this morning that the FBI have been investigating McDonnell due to alleged improper ties to Jonnie Williams the CEO of Star Scientific, Inc. 

Star Scientific, Inc. appears to be a former tobacco company that now produces dietary supplements.  It also appears that much of Star Scientific's resources were spent on lawsuits defending patents in the past decade.

What could this possibly have to do with AG Cuccinelli?

Attorney General Cuccinelli has his own ties to Jonnie Williams, having received gifts from Williams.  Cuccinelli also, up until recently, owned some stock in Star Scientific.  But what does this have to do with Schneider?

Schneider claims, that in 2012, Schneider was interviewed by the FBI, Virginia State Police, and the Virginia AG's office regarding information Schneider had regarding improper connections between Jonnie Williams and the McDonnell family.

The Attorney General's office then, one year later, initiated prosecution against Schneider for embezzlement.  It is not clear that there is any direct tie between the conversations in 2012, and the evidence gathered for the embezzlement charges. 

Schneider's counsel, seeing an opportunity to defend their client, are now seeking to force the Commonwealth to turn over substantial documentation that appears embarrassing to the McDonnell family. 

AG Cuccinelli, seeing what a mess this was becoming sought to be recused from the case due to a conflict of interest that likely existed prior to indicting Schneider.

But wait, I thought the Virginia Attorney General does not handle criminal prosecutions

Okay, I have made a big deal in the past over the limited criminal enforcement powers of the AG's office.  The AG in Virginia is essentially a civil attorney's office, although it handles criminal appeals.  So, in searching for the local Commonwealth's attorney who I felt should be prosecuting Schneider, I instead found this:

"Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth . . ."  Va. Code § 2.2-511.  Wow! That looks really bad, did Gov. McDonnell insist on prosecution?!?!?!?!?!  Did AG Cuccinelli prosecute without proper authority?!?!?!?!?!

No.

The statute goes on to state "except in cases involving . . . (v) the theft of state property . . ."  Us lawyers always have exceptions.  Va. Code § 2.2-511.

So the AG has the authority.  But that does not mean he had to utilize it.  Yes, the AG's office, to handle this cleanly, should have handed the prosecution off earlier.  We are where we are, so is the AG seeking to throw the book at Schneider?  Is the AG counseling people to hide evidence?  Is the AG promising to get Schneider if that's the last thing he'll do?  Nope, quite the opposite.  The AG's office has filed it's mea culpa seeking to be relieved from the case and appointing the Democrat Commonwealth's Attorney from Prince William County (more on that later) to handle the prosecution.  This would include any plea deals or decisions to drop the charges.

So the AG's office probably should have handed this off sooner, but what does it matter?

Not content to simply seek to embarrass Governor McDonnell with some interesting discovery, Schneider's counsel are seeking everything.  They have filed an opposition to the motion to recuse, trying to keep the AG's office in the case.  I am not really sure why.

Moreover, yesterday Schneider's counsel filed a motion to dismiss on the grounds that the indictment should never have been filed by the AG's office due to the alleged conflict of interest in the AG's office.  Essentially their claim is that because AG Cuccinelli can not prosecute the matter fairly, simply by filing the case with an alleged conflict, Schneider should be let off for ALL alleged criminal charges. 

I am often asked the following question:  "Mr. Prados, do you have any case authority for that position?"  Either I'm prepared to hit that matter out of the park, or I'm about to lose a substantive point.  The major cases cited by Schneider's counsel do not stand for the proposition that if a prosecutor with a conflict of interest obtains an indictment against a Defendant, that the mere existence of the conflict of interest allows the Defendant to be free from all further prosecution.  It would be an absurd result.

In fact, in my opinion, the main Virginia case they cite makes clear that the remedy available to Schneider is to force the AG's office to recuse itself, something the AG's office is doing voluntarily, and that Schneider's counsel has objected to.

So why the remarks about the Commonwealth's attorney for Prince William County?

Paul Ebert is the decades long Commonwealth's attorney for Prince William County.  Defense counsel felt it was important to point out that Ebert himself was a poor choice for replacement counsel as Schneider's counsel alleges "Mr. Ebert and his office have engaged in a pattern of intentionally withholding exculpatory information from defendants."  If you have some extra time you can read about this history in the Justin Wolfe case here and here.

So what happens next?

The parties are before the Court May 2 for a hearing on the motion to recuse.  No matter what happens, a prominent Republican statewide official is going to be dissatisfied with the decision.  If the recusal motion is granted, McDonnell will likely risk an extensive probe into his families records.  If the recusal motion is denied, the case might be dismissed, but more importantly it puts AG Cuccinelli in an ongoing difficult position.

I believe recusal will be granted and the motion to dismiss will be denied.  Contact me directly to discuss all non-monetary wagers.

The only thing guaranteed is that this will get messier before the truth becomes clear.

And my strongly held (albeit biased) belief is that AG Cuccinelli did not do anything wrong.

Virginia Can Engage in Mid-cycle Redistricting

Monday's redrawing of Virginia Senate Districts was likely Constitutional.

On Monday, Virginia Senate Republicans redrew Virginia's state senate districts utilizing their bare majority due to the absence of Senator Henry Marsh who was a couple hours up the road attending inauguration activities.

I have seen repeated calls for the plan to be struck down as unconstitutional under the Virginia Constitution.  Up until a few days ago, I agreed that mid-cycle redistricting was likely unconstitutional.

I repeatedly heard of a redistricting case from early 2012 in Richmond that prohibited mid-cycle redistricting, but no one seemed to have read the case.

I looked into some arguments, and had changed my mind.

Then I obtained a copy of the opinion.

In part:

The Constitution of Virginia dictates that “[t]he authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.”  VA. CONST. art. IV, § 14 . . . The Court is unable construe Article II, Section 6, [regarding apportionment] as cabining the General Assembly’s authority to enact decennial reapportionment legislation to 2011 and foreclosing the enactment of such legislation in 2012.  Moreover, the 2004 amendments to this provision, specifically the addition of the word, “decennial,” and the replacement of the date in a section containing two-hundred-fifty-one words, do not support a finding that these revisions divested the General Assembly of its authority to enact decennial reapportionment legislation in 2012 after it failed to do so in 2011."  Slip Op pp. 7-8.

Reading the entire opinion is necessary if you want to understand the breadth and detail of the ruling.  The Judge did leave a loophole for later adjudication, and this legislation may beget the test case for that loophole.

Please note that this opinion is not binding outside of the parties in that case.  Nonetheless, the reasoning is sound, and I do not feel I could say it better myself.

The lawsuit to strike down the bill will likely fail, but the press generated will be damaging.  Republicans concerned about the effects on our statewide ticket this November need to urge the House to reject the legislation and the Governor to veto it.  Pass the bill in the light of day, and we will talk. 

As previously laid out the current senate districts from the Democrats are a travesty.

First Federal Court of Appeals declares individual mandate unconstitutional

Early this afternoon the 11th Circuit Court of Appeals declared the individual mandate of the PPACA unconstitutional in a 2-1 decision.

The case, Florida v. U.S. Department of Health and Human Services, is the matter filed on behalf of 26 states, the NFIB, and a handful of individual plaintiffs.  Most notably the lower court decision in this case was one of only two declaring the individual mandate unconstitutional, and the only case declaring the entirety of Obamacare unconstitutional as a result.

My previous analysis from January 2011 of the lower court ruling can be found here. 

What this means for the Supreme Court

The Supreme Court now has two competing appellate decisions from different parts of the country on the same issue: the earlier decision from the 6th Circuit upholding the individual mandate, and now this decision from the 11th Circuit declaring the individual mandate unconstitutional.  This "circuit split" is one of the strong factors considered by the Supreme Court when deciding to take a case.

What this means for the challengers in the 11th Circuit

There was always a danger that the 11th Circuit challengers might win this case, but that the government might seek and obtain en banc review (review by the entire appellate court).  This would have delayed a petition to the Supreme Court for months and months.  Instead the challengers lost on a couple of issues, and may file a petition for Writ of Certiorari as soon as they are ready.

Introduction to the opinion

The opinion is a monstrous 304 pages (including the brief appendix).  Below is an analysis primarily of the majority decision, and what it means for challengers of the individual mandate throughout the country.  Judges Dubina and Hull wrote for the majority, while Judge Marcus wrote the dissent.

Findings and Medicaid - the first 67 pages

Most of the first 67 pages are devoted to stating factual findings, primarily reciting the legislative history of the PPACA, Congressional findings regarding the bill, and actual terms of the bill.

Did you know the suit filed by the states challenged Congressional authority to expand the mandates within Medicaid?  This is the portion of the lawsuit in which Virginia did not also file a similar action.  The states actually lost on this issue in the lower court and the decision was the same here before the 11th Circuit.  The short version of how Medicaid works is that states may opt out of the program, and so any constraint placed on the program by Congress are inherently not coercive, and coercion equals unconstitutionality.

The history of the Commerce Clause and explanation of the necessary and proper clause

The Commerce Clause is one of the enumerated powers under Article 1 § 8 of the U.S. Constitution allowing Congress to write laws "To regulate Commerce with foreign Nations, and among the several States . . ."  The majority goes to great lengths to detail commerce clause jurisprudence in pages 67-92 of the opinion.  A Constitutional law course on the Commerce Clause could be taught from this portion of the brief.

Pages 92-99 are devoted to explaining the Necessary and Proper Clause also of Article 1 § 8 of the U.S. Constitution allowing Congress "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States . . ."

The individual mandate exceeds the powers allowed under the Commerce Clause

Given the length of the opinion I will allow the judges to speak for themselves:

In commenting on the court's need to intervene: "When Congress oversteps those outer limits [of the Commerce Clause], the Constitution requires judicial engagement, not judicial abdication." p. 104.

On the issue of activity v. inactivity: "[T]he Supreme Court has always described the commerce power as operating on already existing or ongoing activity."  p. 108.  Nonetheless, "we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case."  p. 109.  The decision is not made based on the concept that not buying health insurance constitutes activity or inactivity.

What the Court views as the actual legal question: "We perceive the question before us to be whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives." p. 112. 

On the unprecedented nature of behavioral mandates (economic or otherwise): "Given the attractiveness of the power to compel behavior in order to solve important problems, we find it illuminating that Americans have, historically, been subject only to a limited set of personal mandates: serving on juries, registering for the draft, filing tax returns, and responding to the census." p. 119.  "[T]he individual mandate is a sharp departure from all prior exercises of federal power." p. 120.

Why looking at the decision to not purchase health insurance by everyone (i.e. in the aggregate) is not a justification for the individual mandate:  "Applying aggregation principles to an individual’s decision not to purchase a product would expand the substantial effects doctrine to one of unlimited scope." p. 124.  "Although any decision not to purchase a good or service entails commercial consequences, this does not warrant the facile conclusion that Congress may therefore regulate these decisions pursuant to the Commerce Clause."  p. 125. 

On what is actually being regulated: "But the individual mandate does not regulate behavior at the point of consumption . . . Instead, the language of the individual mandate in fact regulates a related, but different, subject matter: when health insurance is purchased."  p. 130 (internal quotations omitted). 

Why the federal government's analysis of Commerce Clause Jurisdiction is incorrect

On the nefarious reason why the federal government chooses to argue that the individual mandate is Constitutional under the Commerce Clause because it regulates the consumption of healthcare (as opposed to health insurance):  "Because an individual’s decision to forego purchasing a product is so incongruent with the “activities” previously reached by Congress’s commerce power, the government attempts to limit the individual mandate’s far-reaching implications.  Accordingly, the government adroitly and narrowly redefines the regulated activity as the uninsured’s health care consumption and attendant cost-shifting, or the timing and method of payment for such consumption."  pp. 135-136.

On the issue of the uniqueness of the healthcare system as the government's argument for allowing this one infringement of the bounds of the Commerce Clause:  "The government’s five factual elements of “uniqueness,” proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory."  p. 168.  Translated this means the government's argument that healthcare is a special area of the economy and has different Constitutional limitations has absolutely no basis in law.

The other concerns of the Court and the thrilling conclusion

The Court acknowledged that insurance is traditionally an area of state concern and this increases the Constitutional concerns.  The Court also indicates that striking the individual mandate will not hinder the ability of Congress to regulate insurance companies. 

And most importantly the sweeping conclusion!  "The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure." p. 171. 

The individual mandate is not a tax

If the penalty from the individual mandate is a tax it is much easier for the government to show that it is Constitutional.  The Court noted that no Court has upheld the individual mandate penalty because it is considered a tax.  "It is not surprising to us that all of the federal courts, which have otherwise reached sharply divergent conclusions on the constitutionality of the individual mandate, have spoken on this issue with clarion uniformity." p. 173.  And later the Court concludes, "The plain language of the statute and well-settled principles of statutory construction overwhelmingly establish that the individual mandate is not a tax, but rather a penalty." p. 174.

And the challengers suffer a major loss

The individual mandate was found to be severable from the remainder of Obamacare.  Essentially courts are required to leave a statute intact, and simply remove the unconstitutional portions if at all possible.  The lower court found that the individual mandate was not severable from the remainder of the Act and therefore struck down the whole of Obamacare.  The 11th Circuit has reversed that decision, and merely determined the individual mandate itself was unconstitutional.

Judge Marcus's dissent

Judge Marcus wrote an over 80 page dissent determining that the individual mandate is Constitutional under the Commerce Clause.  I may go back later and pull quotes from this section to show differences in thought form other judges that upheld the individual mandate.

Conclusion

This was a great day for challengers of the individual mandate.  A victory was obtained in a federal appellate court accompanied by sound reasoning.  This nearly assures that the Constitutionality of the individual mandate will be decided by the Supreme Court.

I may, over the next week, explain the standing ruling in the 11th Circuit and why it does not bode well for the Commonwealth of Virginia.

My previous analysis of litigation regarding the individual mandate can be found here.

Legal qualifications for candidacy in Virginia elections explained

I have seen repeated concerns in Virginia political blogs about the residency requirements for candidates for political office.  The practical effect of allegedly failing to meet residency requirements appears to be minimal.  This post is specifically designed to explain the law behind the residency requirements for candidates for Virginia public office, and the potential consequences of failing to meet those requirements.

How does one become qualified to hold a public office?

“In order to hold any [elected] office . . .the candidate must have been a resident of the Commonwealth for one year next preceding his election and be qualified to vote for that office.”  Va. Code § 24.2-500.  Keep in mind this is simply to hold an office.  This is not the requirement to run for the office, or to be voted in to office.  This is the requirement to be sworn in.

How does a candidate become qualified to be a candidate for a particular public office?

“In order to qualify as a candidate for any office . . . a person must be qualified to vote for and hold that office.”  Va. Code § 24.2-500.  A similar provision applies to candidates in primaries under Va. Code § 24.2-519.  It is not actually possible to tell at the time that one qualifies as a candidate if that person will actually be a resident up until the actual election.  Presumably, the legislature means that to qualify you must be a resident for the year preceding the date one qualifies as a candidate.  The alternative is that this portion of the statute is potentially unenforceable as vague. 

How does one become “qualified to vote?”

Both the previous situations - holding an office, or qualifying as a candidate for an office -  require that the candidate or officer be qualified to vote for the office in question.  “‘Qualified voter’ means a person who is entitled to vote pursuant to the Constitution of Virginia and who is (i) 18 years of age on or before the day of the election…, (ii) a resident of … the precinct in which he offers to vote, and (iii) registered to vote.” Va. Code § 24.2-101.  Items i and iii are factual and self explanatory.  Item ii and the definition of “resident” is less clear.  "Residence" or "resident," for all purposes of qualification to register and vote, means and requires both domicile and a place of abode. To establish domicile, a person must live in a particular locality with the intention to remain. A place of abode is the physical place where a person dwells.”  Va. Code § 24.2-101.  The definition of abode is fairly self explanatory.  Domicile is a legal term of art that can generally be proven by showing that one intends to remain by changing mail delivery, drivers’ licenses, car registrations, and tax filing addresses to the new home.  It requires a very fact intensive analysis.

What does it take to get on the ballot?

Here is where the threat of criminal sanctions can arise in egregious situations.  A statement of qualification for candidacy must be filed by the candidate pursuant to Va. Code § 24.2-503.  In 2011 the dates for filing are different under HB 1507 due to redistricting.  There are different dates for filing the statement depending on if there is a primary, or if there is no primary.  The terms of the statement required are detailed in Va. Code § 24.2-501, which states in part “a person must file a written statement under oath, . . . that he is qualified to vote for and hold the office for which he is a candidate.” 

A statement made under oath, particularly to an agency of the Commonwealth of Virginia or its subparts is subject to potential criminal sanction under Va. Code § 18.2-434, which states in part “any person to whom an oath is lawfully administered on any occasion . . . willfully subscribes as true any material matter which he does not believe is true, he is guilty of perjury, punishable as a Class 5 felony.”  Under Va. Code § 18.2-10, class five felonies are punishable with “a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.”

So what are the remedies for a candidate or voter negatively affected by the candidacy of a person not capable of holding or being a candidate for a particular office?

A. Criminal Sanctions

The reader must understand that prosecution of criminal matters is at the discretion of the local Commonwealth’s Attorney.  Anyone with knowledge of a crime can swear out the warrant for someone’s arrest.  But, a magistrate does not have to issue the warrant, and the prosecutor can drop the case.  The only actual crime potentially arising out of a situation with a non-legally qualified candidate is perjury under Va. Code § 18.2-434 for the action of submitting the false statement of qualification under oath.  Not only do criminal matters need to be proven beyond a reasonable doubt, but perjury requires that the person making the sworn statement “know” that the statement they are making is not true.  This last element must be proven by a prosecutor, whereas any candidate can easily claim they made an innocent mistake.

Functionally prosecution is nearly impossible.  Any Commonwealth's Attorney that pursues this route will likely lose in a high profile, politically charged case.

B. Civil administrative remedies by the SBE or local registrar

These folks are performing administrative duties.  It is not their job to research the histories and backgrounds of potential candidates.  There is nothing improper about them accepting a statement of qualification of candidacy at face value.  In fact, if after receiving a statement of qualification containing all the required elements, and requisite petition signatures, a registrar refused to place a candidate on the ballot due to the registrar's own belief that the candidate is not legally qualified, then the registrar should expect to be subject to a writ of mandamus an unusual legal proceeding designed to force a public official to perform a ministerial act.

This is not the place to seek a remedy.

C. Civil enforcement between private parties

The proper and effective route to challenge a legally unqualified candidate is to bring a civil action against the candidate as early as legally possible.  This lawsuit must be brought on behalf of someone directly affected by the improper candidacy (opposing candidate, voter, local political committee), and must be brought against the legally unqualified candidate, and the local registrar and SBE depending on the type of office.  The party bringing the lawsuit should immediately seek a preliminary injunction against placement of the legally unqualified candidate on the ballot.  The preliminary injunction against placement on the ballot, although difficult to obtain, will likely be the only potential remedy.  The court has the power to reject an injunction after an election on the grounds that it is not in the public interest to upset the results of an election. 

If the goal is simply to make a statement about how a candidate was never legally qualified, a lawsuit after the election is possible.

These remedies require payment of substantial attorneys' fees and the posting of a bond if successful at the preliminary injunction stage.  Between the difficulties in obtaining an injunction, and the costs involved no one seems willing to pursue this route.

Conclusion

There is only one legal remedy (civil enforcement) for someone affected by a candidate they feel is not legally qualified.  Otherwise affected parties can attempt to persuade voters of the illegal nature of a persons candidacy in the court of public opinion.  The problem with this latter route is that voters never seem to notice - or if they do notice they do not care.

Previous shorter versions of parts of this explanation can be found in my comments at:
http://virginiavirtucon.wordpress.com/2011/05/04/where-does-ron-speakman-live/
http://www.tooconservative.com/?p=9395

Other federal lawsuits challenging the individual mandate are catching up while we await rulings in the claims made by states

There have been two true victories for opponents of the individual mandate, one in Virginia, and the second in Florida.  These matters have been appealed by the federal government.  At the same time, Plaintiffs have filed another dozen substantive claims in various courts throughout the country.  Of those that have been ruled upon at the trial level, challengers to Obamacare have lost in every other District Court.  See coverage of the other cases Liberty University v. Geithner, here, and Seven-Sky v. Holder, here.

Only one Federal Court of Appeals has ruled, and it found the individual mandate Constitutional by a vote of 2-1 (the ruling is far more complicated than the mere 2-1 vote suggests, and I explained the details here).

Where are we headed?

If you read the articles of any major news organization, it is presumed this litigation will ultimately be decided in the Supreme Court.  But, there simply is no guarantee the Supreme Court will weigh in on this issue.  Before the Supreme Court takes a case, they usually must see an egregious miscarriage of justice, or a conflict amongst appellate courts, or both.  Right now we have one appellate opinion.  For the challenges to the individual mandate to have a reasonable chance of being adjudicated in the Supreme Court there will likely need to be at least one victory for opponents of Obamacare before the Supreme Court is willing to take the case.

The most likely victories

The most likely victories will come from the Fourth or the Eleventh Circuits.  These are the two Circuits in which the lawsuits filed by Virginia and the other 26 states respectively are being adjudicated.  These are also the Circuits adjudicating the only victories so far.  Unfortunately it looks like the Fourth Circuit is likely to uphold the individual mandate, as explained here.  The Eleventh Circuit though appears to have a mixed panel, and there is a better chance of success.

Both the Fourth and Eleventh Circuits have completed briefing and oral argument and have been pending written decisions for over a month.

The rise of other opportunities

Because of the passage of time, two lesser known appeals have caught up.  In the Third Circuit, New Jersey Physicians v. Obama is now pending a decision.  In the Ninth Circuit, the matter of Baldwin v. Sebelius is pending a decision.

Both cases were dismissed due to a lack of standing for the Plaintiffs.  Although originally standing was thought to be a large hindrance to these types of cases, the courts have been fairly responsive to the need to find standing and proceed to the merits in other jurisdictions.  In fact, the Sixth Circuit Court of Appeals ruling upholding the individual mandate still goes to great lengths to explain why plaintiffs have standing in these types of cases.  The victory opponents of the individual mandate are looking for may be coming any day, but it may surprisingly be coming from the Third or the Ninth Circuits. 

Keep an eye on the Courts, any day now we will see our next ruling, and be one more step closer to convincing the Supreme Court to take on this major Constitutional issue.

For previous posts regarding the individual mandate please click here.

Opportunity for corporations to donate directly to federal candidates possible: Eighth Circuit grants en banc review for Swanson case

Excitement in the world of campaign finance litigation yesterday!* 

On July 12, 2011 the U.S. Court of Appeals for the Eight Circuit granted en banc review in the case of Minnesota Citizens Concerned for Life, Inc. v. Swanson, Record No. 10-3126.  This means that all of the Judges of the Eight Circuit will rule upon the issue of whether the Constitution allows the government to prevent corporations form making direct contributions to candidates.  

What is this about?

In May and June 2011 I covered the details of an Eastern District of Virginia case referred to generally as Danielczyk.  Coverage here.  In short the major issue of concern is whether a federal ban on contributions from corporations directly to federal candidates is Constitutional.  Judge Cacheris in the Eastern District of Virginia said the ban is unconstitutional.  The federal government has now appealed the Danielczyk decision.  Three federal appellate courts said a ban is Constitutional . . . until July 12.  On July 12, 2011 the Eight Circuit Court of appeals vacated their holding of Constitutionality, and now all the judges on the Circuit will have an opportunity to weigh in.

How does En banc review work?

When a case goes to a U.S. Court of Appeals it generally will go before a randomly selected panel of three appellate judges for that particular circuit.  Those three judges render an opinion, that then becomes the opinion of the entire circuit.  Litigants dissatisfied with a ruling by a panel may petition for rehearing (asking the same three judges to change their minds) or petition for a rehearing en banc.  A rehearing en banc is when all of the judges sit, hear argument, and rule upon a case.  Successful petitions for rehearing and petitions for rehearing en banc are very uncommon, and publicly available statistics for these procedures are unavailable (outside of the Federal Circuit).  Under Fed. R. App. P. 35(b) a rehearing en banc should only be granted in instances where the panel decision conflicts with a decision of the Supreme Court, or another decision from the same circuit, or if the case involves an issue of exceptional importance that can be concisely stated.  The petition is limited to 15 pages, and will often be narrowly focused on the major issue(s) in order to make an important point in a small amount of space.

Once en banc review is granted, the court may, in its discretion, order additional briefing.  This does not appear to have been done in this case.

What does this grant of en banc review mean?

1) It likely means a number of judges at the Eighth Circuit have serious misgivings about the Constitutionality of a ban on direct contributions from corporations to candidates.

2) More importantly, the judges of the Eighth Circuit likely believe this is an issue that will not be settled once and for all in the Courts of Appeals.  This issue is likely headed back to the Supreme Court where the scope of the January 2010 Citizens United Ruling will have to be clarified.

I just hope our Fourth Circuit Judges get a chance to opine before the Supreme Court sets the matter straight.

*I know campaign finance law and appellate procedure are not fun for everyone, but that is okay.  I think there is room enough in the world for all of us.

Sixth Circuit (sortof) upholds Constitutionality of the individual mandate (and clearly states the penalty is not a tax)

Today the Sixth Circuit Court of Appeals upheld the individual mandate in the PPACA.  Below is a synopsis of the findings of the court and the likely procedural effects on all litigation regarding the individual mandate.  Contrary to the headlines, this is far from a loss for believers in the Constitution.  We just need to dig through the details.

The decision can be found here.

The determination of the Court by a 2-1 decision is as follows:

The individual mandate is not facially unconstitutional. 

This does not mean that the individual mandate is Constitutional in all instances.  It does mean that the challengers to the individual mandate lost, today.

Who came to this decision?

Federal Circuit Court cases are decided (in almost all instances) by a panel of three judges.  In this instance two Circuit Court Judges, Martin and Sutton, and a District Court Judge, Graham, sitting by designation.  Each Judge issued a separate opinion agreeing on a handful of issues and explaining their disagreements on the remainder.

Judge Boyce F. Martin, Jr. determined the individual mandate is Constitutionally permissible under the Commerce Clause

Judge Martin determines that "Virtually everyone participates in the market for health care delivery, and they finance these services by either purchasing an insurance policy or by self-insuring."  p. 17.  His argument essentially runs downhill from there.  As soon as he accepted intellectually that not buying insurance constitutes an affirmative economic action of "self insurance" it is virtually guaranteed he will determine the individual mandate to be Constitutional.

Judge Jeffrey S. Sutton determined that The individual mandate is not facially unconstitutional

In a well thought out and explained opinion Judge Sutton determined first that the Plaintiffs were only bringing a facial challenge, which bears a very high burden.  This burden requires a showing that a law is unconstitutional in all applications.  Even, for example, in a state that already has an individual mandate like (Mitt Romney's) Massachusetts.  This is a very high standard to meet.  The Plaintiffs were unable to show that the individual mandate is unconstitutional in all applications, and therefore their appeal is denied.

Judge Sutton, despite dismissing the challenge, invited future litigants back to the Court to decide this issue in more particularized cases, stating:

"While future challenges to the law have hills to climb, nothing about this view of the case precludes individuals from bringing as-applied challenges to the mandate . . . Just as courts should refrain from needlessly pre-judging the invalidity of a law’s many applications, they should refrain from doing the same with respect to their validity."  pp. 52-53.

The combination of Judge Martin's and Judge Sutton's opinions means the challengers to the individual mandate lost 2-1.  But in such instances as when a majority requires the inclusion of different reasoning, the narrowest reading constitutes the holding of the court.  In this instance Judge Sutton's narrower procedural ruling that the Plaintiffs had not met their burden of proof for a facial challenge constitutes the holding.  The Sixth Circuit has only determined that The individual mandate is not facially unconstitutional.

Judge James L. Graham determined the individual mandate is an unconstitutional regulation of inactivity

I could quote most of Judge Graham's dissenting opinion, but will simply state that I agree with it.

Instead please consider Judge Graham's admonishment that Judges should not fear using the Constitution to overturn political decisions by the legislature stating:

"We must not lose sight of the fact however that the Constitution we interpret and apply itself embodies a resolution of powerful competing political ideologies, including the extent of the power of the federal government – a resolution that the States and the people accepted in the ratification process." p. 63.

Do not overlook some major important victories where all three Judges agreed

1. The Plaintiffs have standing.

2. The case is ripe.

3. The Anti-Injunction Act does not apply.

4. The penalty for not complying with the individual mandate is not a tax.

What does this mean in the Sixth Circuit

The Plaintiffs may seek en banc review where all the judges in the Circuit may hear the case, or there will be a direct appeal to the Supreme Court.  The decision is the hands of the challengers to the individual mandate.

What does this mean for the other challenges to the individual mandate

This outcome is generally good news for the other challenges.  The diverse opinions of the three Judges begs for intervention by the Supreme Court.  The Fourth and Eleventh Circuits where other matters are awaiting a ruling can not rely on the Sixth Circuit opinion to say there is a clear outcome with which they agree.  These cases will likely result in divergent opinions necessitating a ruling from the Supreme Court.  Challengers to the individual mandate should remember that without differing opinions between the Circuit Courts we are far from guaranteed an audience in the Supreme Court.

For my previous posts regarding challenges to the individual mandate click here.

Virginia's supplemental brief on the Anti Injunction Act

No time to analyze, just links to uploaded copies of

Virginia's Supplemental Brief in Commonwealth v. Sebelius 

The Federal Government's Brief in Commonwealth v. Sebelius

The Federal Government's Brief in Liberty v. Geithner

The Plaintiffs' Brief in Liberty v. Geithner

regarding the status of the individual mandate penalty as a tax and the application of the Anti Injunction Act.

Provided as a public service.

My previous coverage of PPACA/Individual mandate challenges can be found here.

Why the real fallout of Judge Cacheris’ expansion of the Citizen’s United case will be minimal

UPDATE: Judge Cacheris reconsiders his previous ruling, coverage here.

On May 29, 2011 I explained the nature of Judge Cacheris’ decision in U.S. v. Danielczyk, Case No. 1:11cr85, and how the portion reported in the media is only a small portion of a 52 page substantial opinion. 

Some commentary from learned observers prompts me to explain why in my estimation this opinion will have little effect on the electoral landscape.

Is the opinion subject to being overturned?

For the opinion to be overturned it must be appealed.  Only in certain specific and uncommon circumstances can a decision be appealed before a case has been resolved.  U.S. v. Danielczyk does not have a final decision, and can not be currently appealed.  There is a trial set for July 6, 2011.  No appeal will be happening at least until after trial, sentencing, and post trial motions.

Moreover, many criminal cases do not reach an appeal stage.  The case is a criminal matter with an indictment that has at least five counts that survived the Defendants’ motions to dismiss.  If there is any reasonable possibility of both actual guilt of the Defendants, and success on any count by the prosecution, the parties will probably reach a deal.  If there is a plea bargain the case will not be appealed, and the ruling will stand.

Professor Rick Hasen who runs the Election Law Blog believes the case will be overturned on appeal, or at least be reconsidered.  In this post, Prof Hasen points out that Judge Cacheris failed to address an earlier Supreme Court case, FEC v. Beaumont, that supports the Constitutionality of the ban on corporate giving.   

It would be odd that Judge Cacheris failed to mention this case, except, as suggested by Prof. Hasen, the federal government did not mention it in their brief.  As indicated, I do not think an appeal is likely, although I do believe this is grounds for reconsideration so Judge Cacheris can write an additional paragraph about how FEC v. Beaumont although not specifically overturned, was functionally overturned in Citizens United.

So if no appeal occurs do we have a corporate fundraising free-for-all?

In my last post I suggested, through a series of rhetorical questions, that a corporate fundraising free-for-all is unlikely for practical reasons.  In reality, as long as this decision is not appealed, a corporate fundraising free-for-all remains legally perilous for candidates and corporations alike.

In Roll Call on May 28, 2011 in an article entitled Campaign Finance Experts See Few Implications for Virginia Ruling, the author states the following:

“The interpretations of Thursday's U.S. District Court decision by Judge James C. Cacheris vary. Campaign finance lawyers believe the decision applies to only a small section of the country, would allow federal candidates to raise donations only from Virginia companies and even those contributions would be subject to donation limits.”

This is mostly accurate.  To understand how this works the reader needs to understand the jurisdictional effect of federal precedent.  In simpler terms, “if a court says something, who geographically is affected?”  For Supreme Court cases, the opinions affect the entire country.  For Federal appeals court cases, (Circuit Courts) the cases affect all of the states and territories within the Circuit. For example the Fourth Circuit encompasses the following states, MD, WV, VA, NC, and SC, and all of those states would be affected by a Fourth Circuit ruling.  For these reasons it is possible to have conflicting rulings in different parts of the country.

The article seems to suggest that the ruling of a District Court Judge will be binding on the entire District.  This is simply not the case.  The rulings of District Court Judges are binding only on the facts, circumstances, and parties of the exact case before the Court.  The other Judges in the Eastern District of Virginia re not even bound by Judge Cacheris’ ruling outside of the actual case of U.S. v. Danielczyk.  Any federal candidate or federal corporation engaging in direct solicitation or contribution, even in the Eastern District of Virginia, is doing so at the highly likely peril of prosecution, assignment to a Judge other than Judge Cacheris, and criminal sanctions.  Not even Judge Cacheris is technically bound by his previous decision, and could decide in a contrary manner for the next similar Defendants in his courtroom.

So if the decision is not appealed, does it matter at all?

Yes.  Any ruling declaring a law unconstitutional will be used by future litigants in an attempt to invalidate the law in other courtrooms.  Eventually this issue will make it to one or more Circuit Courts, and perhaps back to the Supreme Court.  This is just a very early skirmish in a very long litigation battle.  Corporations are far from being able to donate directly to federal candidates. 

For those interested in seeing how an alternative campaign finance system works with no limits, but full disclosure, look into Virginia’s state level campaign finance regulatory scheme.

Some basic sources can be found here:

http://www.vpap.org/

http://www.sbe.virginia.gov/cms/Campaign_Finance_Disclosure/Index.html

Fairfax County Circuit Court to host lawsuit regarding Bush administration intrigue

A lawsuit alleging high level conspiracy in the Bush administration has been filed in Fairfax County Circuit Court.

The lawsuit is filed by former Special Counsel Scott Bloch who was allegedly forced out of his position in the waning days of the Bush administration.  This matter is significant due to the Defendants listed such as Karl Rove and former Congressman Tom Davis, but also because of its allegations.  Most importantly, for purposes of my coverage, it was filed in my neck of the woods where I can get access to the files as the case progresses.  Coverage of this lawsuit so far can be found here and here.

The parties

The Plaintiffs in the case are Scott Bloch and his wife Catherine Bloch.  The Defendants include, among others, the "Executive Office of the President," Thomas Davis, Jr., Karl Rove, Human Rights Campaign, POGO (Project on Government Oversight?), GAP (Government Accountability Project?), PEER (Public Employees for Environmental Responsibility?), and numerous other governmental officials and private sector people active in government.  What is interesting about the people involved, is that according to the Complaint each of them played a specific role in the case, and there appears to be a basis for their inclusion.  This means that if the lawsuit progresses we should expect to see some interesting unprivileged documents from some high profile politicos.

The claims

Complaints are often broken into "Counts" where particular causes of action are delineated.  Significant effort has been placed into making this Complaint fact intensive and detailed, so as to avoid early dismissal.  There appear to be Counts I-XIII listed although Count XI appears to be missing so there are only 12 Counts.

Count I: Deprivation of property rights without just compensation: This is a Federal cause of action under the 5th Amendment of the U.S. Constitution.  This amendment is often called the “takings” clause.  The property right allegedly taken is the remainder of Mr. Bloch’s five year term (with one year extension) as Special Counsel.  The letter and spirit of the takings clause appears to apply primarily to physical property such as real property and tangible property.  Nonetheless, I could see an argument that the Fifth Amendment applies to contractual rights. 

Count II: Declaratory Judgment and Injunction: In this Count Mr. Bloch seeks a declaration that the actions of the Defendants were wrongful, a writ of mandamus requiring public officials to cease ongoing investigations, and a mandatory injunction requiring an independent prosecutor to prosecute the Defendants. 

This is some of what I do for a living so seeing it all jumbled up is a little frustrating.  A writ of mandamus against federal officials should be sought in federal and not state court.  The declaratory judgment is fine, although it is part of some of the other causes of action and therefore should not stand as an independent cause of action.  The injunction requiring investigation and prosecution appears to not be a proper civil remedy.  Perhaps there is something I do not know.

Count III: Violation of the separation of powers:  This appears to be a legitimate separate declaratory judgment action that the other parties are violating the Constitution, that the Court should declare that the Defendants are violating the Constitution, and that they should be enjoined from violating the Constitution.  The remedies desired are sought within other Counts.

Count IV: Violation of the Privacy Act 5 U.S.C. § 552a:  This may very well state a proper cause of action.  I am unfamiliar with the Privacy Act.

Count V: RICO and Virginia criminal conspiracy to harm in trade or business:  RICO is used to prosecute criminal conspiracies particularly as conducted as organized crime.  The Virginia criminal conspiracy statutes have significant shortcomings worthy of its own post, but nonetheless they do provide a cause of action.  The allegations of this Count appear reasonably well presented.

Count VI: Violation of 42 U.S.C. §  1985:  This statute is designed to prevent people from conspiring to prevent people from performing their official duties on behalf of the U.S. government.  The allegations of this Count appear reasonably well presented.

Count VII:  Bivens Action:  This is a federal cause of action for violation of Constitutional rights under color of Federal law.  There are treatises on this type of action that cannot be summarized in a few short sentences.  The allegations of this Count appear reasonably well presented.

Count VIII:  Civil Conspiracy:  This is the heart of the Complaint, is a state law claim, and the allegations of this Count appear reasonably well presented.

Count IX: Libel/defamation: There is a one year statute of limitations for these claims.  Everyone has been defamed at some point, rarely does it rise to the level that it is worthy of a lawsuit.  The allegations of this Count appear reasonably well presented.

Count X: Whistleblower retaliation:  I honestly do not know enough about this cause of action to analyze.

 Count XI: Skipped.

Count XII: Claims against the Office of Special Counsel:  Perhaps I am missing something, but this seems like a rehash of previous Counts.

Count XIII: Writ of Mandate: I have read this section and can not explain it.  I know of no civil cause of action to require a matter be referred to the Attorney General of Virginia.

Damages sought:

$100 million in compensatory damages.

$100 million in punitive damages.  (limited by Virginia law)

$2 million in out of pocket expenses.

Injunctions etc.

Why file in Fairfax County?

I do not know.  Most of the Complaint contains Federal causes of action.  The Defendants will likely remove the case to Federal Court in Alexandria.  Until it is removed I will do my best to follow the case and relate the proceedings, especially if national figures become involved.  One reason to file in state court is that it moves slower than the Federal Court in Alexandria.  Unfortunately for the Plaintiff, Fairfax County Circuit Court takes great pride in moving very quickly as well.

Status of the case

The Complaint appears unfinished.  There are blanks on pages 14, 16, 18, 20, and 33 all of which suggest that this was not the final version of the Complaint.  Even though it was filed on April 26, it is the only item filed in the case.  Service has not been sought.  There are a few good reasons to file and not seek service: 1. you want to preserve the statute of limitations while you gather more information; 2. you are not sure if you wish to proceed; 3. some other reason known only to the filing party.  It does not appear as of May 16, 2011 that the Plaintiffs are ready to push this matter.  If they do, I hope it stays local.

Virginia redistricting lawsuits about to be dismissed, will they be refiled?

There are three existing federal lawsuits challenging the 2001 redistricting plans.  Now that a redistricting plan has passed the General Assembly, and the Governor has signed it, what happens to those lawsuits?  More importantly, will new lawsuits take their place?

What happens to the existing federal lawsuits?

They will be dismissed.

There are three pending federal lawsuits challenging the 2001 redistricting plans.  I described those lawsuits here, and here.  To understand why the lawsuits are challenging a ten year old law, you can refer back to my post Is Virginia headed toward a Constitutional crisis over redistricting?  To understand what happens to the existing federal lawsuits the reader needs to understand mootness, ripeness, and the broader concept of justiciability.  Justiciability is explained in my post regarding the DC healthcare case.  Mootness is the concept that one can only challenge an apparent wrong to force that wrong to be changed while the wrong is ongoing.  For example, one can only challenge an unconstitutional law while the government is attempting to enforce that law.  Ripeness is discussed in my post regarding the first 2011 redistricting lawsuit dismissed back in February.  In short ripeness is a doctrine that requires that a party actually be injured before bringing a lawsuit.

Lawsuit number one - to be dismissed

This lawsuit only challenges apportionment for the senate 2001 plan.  The 2001 plan has now been superseded by a plan passed by the General Assembly and signed into law.  The claims in this lawsuit arise from malapportionment under the Federal and state Constitutions, and not a lack of compactness.  Hence, the claims do not automatically transfer to legislation passed a decade after the original 2001 plan, as apportionment under the two plans is not remotely similar.  This makes the challenges distinct.  This case is now moot and should be dismissed without any further pleadings.

Lawsuit number two - to be dismissed

This lawsuit challenges Virginia House and Senate, and congressional redistricting under the 2001 plan on the basis of malapportionment under both state and federal law.  It was filed in federal Court.  The state Court claims should be dismissed for mootness under the same analysis as lawsuit one.  The challenge to congressional malapportionment should be dismissed as the claim is not ripe.  It has not been shown that the General Assembly will fail to pass a new Congressional redistricting plan and so this case should be dismissed as not yet causing harm, i.e. not ripe.  With no federal claim there is no basis to be in Federal Court, and the case will be dismissed even if there are state law claims, as the case was originally filed in Federal Court, and can not be sent to state court directly from Federal Court under these circumstances.

Lawsuit Number three - to be dismissed?

This lawsuit follows all the same reasoning as lawsuit two with a major exception.  This case was filed in state court and was removed to Federal Court by the Commonwealth of Virginia.  To the extent there are still state law claims against the 2011 plan, the Plaintiffs may argue their compactness and contiguousness claims should transfer to the 2011 plan and the matter should be sent back to Hanover County Circuit Court.  The Plaintiffs if the want to challenge the 2011 plan might be better off allowing this case to be dismissed without prejudice, and simply filing a new case in state court.

When will we learn about new state court actions?

I regret to say that we will learn about any redistricting cases in state court via word of mouth and the main stream media.  Virginia is making great strides in technology in its court system, but it is still difficult to search for cases at the state level in an efficient manner online.  If anyone hears of a 2011 Virginia Circuit Court case let me know, I will see if I can obtain the pleadings.

For other redistricting posts, primary sources, and other information regarding the Virginia Redistricting process in 2011 please see The Road to Redistricting Litigation in Virginia.

(active) Virginia redistricting lawsuit number three makes its way into Federal Court

As discussed on April 20, 2011 there are two active (i.e., not dismissed) redistricting lawsuits filed in Federal Court.  

On April 19, 2011 I discussed the mechanics of a redistricting lawsuit if the legislature fails to successfully pass redistricting plan for the Virginia House, Virginia Senate, or the House of Representatives.  As part of that discussion I indicated how unlikely it is that any such lawsuit will successfully be litigated in the Courts of the Commonwealth.  Essentially, if a case involves interpretation or enforcement of Federal law, which includes the Federal Constitution, the Commonwealth of Virginia has the power to remove the case from state court into Federal Court.

On Friday April 22, the Commonwealth of Virginia removed such a case from the Circuit Court for Hanover County to the U.S. District Court for the Eastern District of Virginia.  So now we have three . . .

Lawsuit number 3 - How did we get here?

It appears that on March 25, 2011 three Plaintiffs filed a lawsuit in Hanover County Circuit Court alleging the 2001 apportionment plans for the House, Senate, and U.S. Congress violate the Plaintiff’s Virginia Constitutional, and, in some instances, Federal Constitutional rights.  The case does not appear to have been served until last week.  Apparently, as the case was being served the Plaintiff’s returned to Court and were granted relief to file an Amended Complaint.  The Commonwealth of Virginia, as this case involves interpretation and enforcement of the Federal Constitution, removed the case to Federal Court.

The portions of the Complaints addressing legislative apportionment at the state level do not mention the Federal Constitution within the “Count.”  This may have been an attempt to suggest the Federal Courts do not have jurisdiction over the case, thereby preventing removal.  Nonetheless, the Federal Constitution is invoked throughout the remainder of the Complaint, and the likelihood of having the case sent back to Hanover Circuit Court is quite low.

The Plaintiffs are Raymond J. Klotz, Jr., Edward Fleischer, and Gerald Burch, Jr.  Raymond J. Klotz, Jr. appears to be a minor ($2700 plus $1000 donated to a PAC with no partisan denomination) Republican donor.  Edward Fleischer appears to be a minor ($215) Republican donor.  Gerald Burch, Jr. appears to be a minor republican donor and former primary candidate for a House race in 2009.  If I understand correctly Gerald Burch and Jana Burch (a Plaintiff in the other redistricting lawsuit in the Eastern District of Virginia) appear to be married.  I guess they could not agree on which lawyer to hire . . .  Counsel, R. Craig Evans appears to be a minor Democratic donor. 

Procedural issues

This lawsuit has some procedural problems, all of which seem to have been worked out without harm to the Plaintiffs. 

For example:

A. As the case was filed before commencement of the special session it should have been dismissed if filed in Federal Court just like Carter v. SBE I.

B. Filing this case in state court meant it will be delayed, and likely removed to Federal Court anyway.  Essentially it is a waste of time in most instances.

C. The Plaintiffs did not serve the lawsuit for nearly a month, and then served the original Complaint and the Amended Complaint almost simultaneously.  If the lawsuit was meant to be vigorously pursued, service should have been sought earlier.

D. The Plaintiffs moved to include AG Cuccinelli and the “Commonwealth of Virginia” as parties.  These appear to be the only changes in the Amended Complaint.  Neither entity is a necessary party, and certainly the inclusion of these entities did not require an additional Motion and Court appearance, and duplicative service of the Amended Complaint within day of service of the first Complaint.

BUT, as I indicated, none of this appears to have any long term negative consequences.  In fact, had the case been served and removed to Federal Court in early April, the case might have been dismissed just like Carter v. SBE I.

What does the inclusion of this case mean?

It means we have a few more Plaintiffs and attorneys involved in redistricting litigation in the Eastern District of Virginia.  Welcome to the party.

For other redistricting posts, primary sources, and other information regarding the Virginia Redistricting process in 2011 please see The Road to Redistricting Litigation in Virginia.