Are Federal Courts Growing Increasingly Partisan?

As the ten year anniversary of Bush v. Gore is recalled, not especially fondly (or worse -- ok, somebody likes it), an interesting debate is emerging over whether the federal courts -- on key politically charged issues -- are simply breaking down along partisan lines:

"The constitutionality of health care reform has gone from a fairly obscure and almost frivolous issue to a litmus test for what judges stand for," Toobin says.

For decades, and with few exceptions, he notes, the commerce clause has been more or less understood as a blank check for Congress. The health care row changed all that.

Says Toobin, "it's an example of how the center has shifted to the right in judicial politics." 

I would say in addition to health care and the Commerce Clause, we've seen some strange preemption arguments over Proposition 8, the federal government's right to set immigration policy,and DADT that have turned traditional conservative/liberal notions of jurisprudence on its head.

You could probably add that case about plausibility in pleading standards to the list, though who the hail gives a hoot about that dumb issue?

"There's Gambling Going On Here"?

Jennifer Love Hewitt - New Music - More Music Videos

I'm feeling pretty morose over the general political, economic, and legal climate we find ourselves in nowadays.

We may soon have Scott as our Governator and Rubio our Senator.

That's depressing enough.

Meanwhile the judicial vacancy crisis rages on, with real-life negative effects for litigants seeking justice:

Since March 2007, Middle Tennessee has been short one of its four U.S. District Court judges. Then, as now, Middle Tennessee should have four federal district court judges to share the responsibilities of adjudicating all of the civil actions and federal criminal matters filed in our 32-county region. With the fourth position vacant, more than 1,400 civil cases and more than 300 criminal cases involving over 550 criminal defendants must now be handled by the remaining three federal judges, taxing the judges and the federal court system.

Senior judges work part-time to assist in managing that caseload, and four magistrate judges conduct preliminary hearings on criminal matters and some of the civil trials by agreement of the parties. The vacancy of one of the four seats renders it difficult for the judges to handle the escalating caseload effectively. Placing this burden on the remaining judges can lead to a serious delay in the administration of justice in the Middle District of Tennessee.

President Barack Obama has had fewer judges confirmed to the bench than any president at this point in his tenure since Richard Nixon nearly 40 years ago.

With our do-nothing Congress, is there any reason to expect some confirmations before it adjourns?

Maybe we don't need courts anymore, depending on how the Supremes handle the arbitration issues raised in the important AT&T Mobility v. Concepcion case, due to be argued before the Wise Ones on November 9th.

Same with the widening question of preemption, also due to be argued before the Supremes this term.

Here's one reason vesting all power in the feds may not be a good idea:

The agency responded by releasing a detailed report last year that found that the agency’s scientific reviewers had repeatedly and unanimously over many years declared Menaflex unworthy of approval, but that they had been overruled by agency managers after political pressure from four Democrats from New Jersey — Senators Robert Menendez and Frank R. Lautenberg and Representatives Frank Pallone Jr. and Steven R. Rothman. The report also concluded that Dr. Andrew C. von Eschenbach, then the agency’s commissioner, had become inappropriately involved in the decision, and that agency procedures had been bypassed.

All four lawmakers made their inquiries about Menaflex after receiving significant campaign contributions from ReGen, which is based in Hackensack, N.J. Dr. von Eschenbach and the four lawmakers said they acted properly.

God I'm beginning to sound like an ass.

What to do, what to do......

Ok, I feel better now.

David O. Markus Elected King of Jamaica!

 Well, not quite but pretty close:

Famous legal trials have produced some unlikely partnerships: Clarence Darrow and John Scopes, Johnnie Cochran and O. J. Simpson.

Add Buju Banton and David Oscar Markus to that mix.

Hmm, I'm not sure which pairing is more intriguing -- Scopes, OJ, and Banton, or Darrow, Cochran and Markus?

Actually, Darrow Cochran & Markus LLP -- that has a really nice ring to it!

In other news, the NYT weighs in on the Supreme Court's preemption-heavy docket:

In four cases, the court will address an obscure but significant debate on federal pre-emption of state law. The pro-pre-emption view is often pro-business, because it interferes with state efforts to protect citizens against corporate misconduct. Pre-emption can also protect against state interference with the national economy.

In AT&T Mobility v. Concepcion, the cellphone provider claims that California contract law has been used to frustrate the Federal Arbitration Act. If the company wins, it will likely force unhappy customers to rely on an arbitrator to resolve their differences with the company. If the respondents win, they will likely be able to bring AT&T Mobility to court — to answer accusations of fraud for promising “free” phones, then charging for the tax on their retail value. That would be good for consumers. 

 It's interesting how this year the preemption doctrine -- normally a obscure battle between big business and consumers -- is entwined with heavy duty political overtones, as two different federal courts have used the doctrine in opposite ways  --  one employing "states' rights" to invalidate the Defense of Marriage Act; and the other finding the AZ immigration law to be preempted by federal statutes.

Oh yeah -- happy Monday!

Jerry Borbon's Wife is Terrified.

Like many of you, I get ready for work in the morning the old-fashioned way: by downing two raw eggs dropped into a shot of whiskey.

Then I jump in my mint-green Dodge Dart, turn up the Terry Jacks, and head downtown.

But some of these new-fangled fancy-pants tree-huggers, however, want to "save" the "environment."

And isn't that always how trouble starts?

For example, take foreclosure defense attorney Jerry Borbon, whose wife drives an (allegedly) scary yet environmentally safe car:

"My wife has been worried about it for a while. She's eight months pregnant and she's terrified to drive the car now," said Jerry Borbon, a Miami lawyer who is still driving his 2008 Toyota Prius and is a plaintiff in a potential class-action lawsuit.

"We thought about trying to get rid of it, but we're stuck with it," he said, adding Toyota's damaged reputation has made it hard to sell the vehicle. "I don't feel secure in the car and I don't want my wife driving it."

Jerry, here's what you need to do.

You need to let regulators like NHTSA and the Transportation Department handle it. The government has proven it knows how to deal with this stuff and they have a lot of experienced people there:

A Washington Post analysis shows that as many as 33 former National Highway Traffic Safety Administration employees and Transportation Department appointees left those jobs in recent years and now work for automakers as lawyers, consultants and lobbyists and in other jobs that deal with government safety probes, recalls and regulations.

Oy.

On second thought, better call Mike Eidson?

3d DCA Watch -- Ding Dong Ding Dong

Hi kids it's almost New Year's and the Resplendently Robed Ones have brought out the noisemakers, the legal-in-three-States fireworks, and the heavily swilled, heavily spiked coffee as we launch into this very special holiday edition of 3d DCA Watch:

Morrissette v. NCL:

This case involves someone who may or may not be related to Alanis Morissette.

Nothing else about this opinion is notable.

Valdes v. Optimist Club:

We're finally seeing some pull-back in the expansion of the preemption doctrine during the Bush Years. This well-reasoned opinion by Judge Ramirez seeks to align Florida law with the Supreme Court's recent Wyeth decision.

(Added one more New Year's resolution -- stay away from Tylenol Cold.)

Laquer v. Convergency Plaza:

Hey, once you waive arbitration, you waive it forever.

Industrial Affiliates v. Fish:

"For reasons unknown" Judge Schwartz seems a little ticked at Circuit Court Appellate Division Judges Scott Bernstein, Mindy Glazer, and Maria Espinoza Dennis:

For reasons unknown, the circuit court, appellate division, per curiam denied review of a final order of the Miami-Dade County Equal Opportunity Board awarding damages to the employee, Ms. Fish, in an alleged employment discrimination case.

I know, I hate it when appellate courts just enter per curiams, I mean what kind of lazy slackers do that on a regular basis.....oh, never mind.

Judge Schwartz concludes:

The decision under review therefore represents a clear departure from the essential requirements of the law resulting in a miscarriage of justice and is therefore quashed.

He added, "auld lang syne and Happy New Year!"

Dear NFL, Welcome To State Court!

So I understand some football was played this weekend?

And some more will be played tonight, it seems.

Meanwhile the NFL is reeling from this 8th Circuit opinion released last week that allows players to challenge drug tests under their own state laws.

Preemption is great! (Unless it's bad).

Other sports are affected too:

Meanwhile, the 8th Circuit's precedent allows players to use state laws to challenge their sport's drug-testing policies, which could have broader implications for the NFL, the NBA, MLB and the NHL.

"The integrity of competition in any league hinges on uniform enforcement of rules, policies and procedures," said Deputy NHL Commissioner Bill Daly. "The integrity of any collectively bargained, league-wide drug-testing program hinges on the same uniform application.

"If allowed to stand, this ruling would compromise the stability of competition and undermine the public's confidence — a result that benefits no one."

I totally agree -- wait a minute, the NHL?

Are they still in business?

Come on, at least use a sport that matters.

You might as well consider an amicus from the peewee junior beach tennis association or the National Darts League or the Toy Train Aficionados as well.

Overworked And Underpaid Thursday.

Ever come into the office and just get hacked off?

No particular reason, but you feel like all the crap -- cases, clients, colleagues, judges, opposing counsel, upcoming hearings, trips etc. -- builds up and you need an outlet for the hostility and aggression.

No, me neither.

So let's see, those into the craft of law can watch the Pleus v. Crist oral argument on the 5th DCA JNC dispute, where the great bow-tied one, Sandy D'Alemberte, delivers a classic and tangles (intellectually) with Justices Pariente, Polston, Canady and Quince. He even references Joseph Heller!

Preemption junkies (hi federal law clerks!) may enjoy this new change in preemption policy from The White House:

The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

Federalism -- what a concept.

Aren't you glad you voted for him?

Oh oh -- our friends at the now-closed The Forge write in to the Herald to defend the late-night email firing without notice or severance of their staff:

For the past 40 years of business we have accepted the industry standard in laying off employees. In fact, almost all past employees leaving our employ have never given us notice.

It works both ways. Because of the industry's standard practices, we don't expect notice and our employees don't expect notice either.

I have not received one single complaint from an employee other than to wish us luck and speed in reopening and to thank us for the financial security we have always provided them.

Until now. So you offered not one ounce more than what industry practice requires -- how nice.

Does industry practice require that you fire your staff by email, and offer no severance? That's some industry.

Also, has it occurred to you that no one is complaining to your face because, in this bleak job market, some are hopeful you may rehire them after the purported $5 million renovation?

Speaking of firings, my old friend Normie Kent goes to bat for the always-embattled Neil Rogers:

''It's a mess that WQAM has to deal with, and basically they're just giving Neil three days off with pay because of their own snafu,'' said Norman Kent, the attorney.

Ironically, Rogers has mostly quit taking listeners' calls during his midday show because too many pranksters were unleashing long, obscenity-ridden tirades that had to be bleeped out. Instead, he encourages them to send e-mail that he reads on the air.

It was one of those e-mails, complaining about WQAM's dismissal of Rogers' longtime producer last week, that got him into trouble.

Rogers was reciting it aloud, relishing the insults it heaped on WQAM general manager Joe Bell, when he inadvertently included a line that said, ``[Bleep] Joe Bell.''

''Neil immediately hit the dump button, the button you use to cut out stuff during the seven-second delay,'' Kent said. ``But WQAM is moving into new studios, and Neil's dump button wasn't connected yet.''

They fired Jorge?

That sucks. I sure hope he received exactly what the industry standard requires.

Concurrence By Justice Thomas?

Major new preemption decision by the Supremes -- sanity has been (somewhat) restored:

WYETH v. LEVINE

CERTIORARI TO THE SUPREME COURT OF VERMONT

No. 06–1249. Argued November 3, 2008—Decided March 4, 2009

Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the “IVpush” method, whereby a drug is injected directly into a patient’s vein, the drug entered Levine’s artery, she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phenergan by the IV-push method. The Vermont jury determined that Levine’s injury would not have occurred if Phenergan’s label includedan adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as aprofessional musician. Declining to overturn the verdict, the trial court rejected Wyeth’s argument that Levine’s failure-to-warn claimswere pre-empted by federal law because Phenergan’s labeling hadbeen approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed.

Held: Federal law does not pre-empt Levine’s claim that Phenergan’slabel did not contain an adequate warning about the IV-push method of administration. Pp. 6–25.

(a) The argument that Levine’s state-law claims are pre-empted because it is impossible for Wyeth to comply with both the state-lawduties underlying those claims and its federal labeling duties is rejected. Although a manufacturer generally may change a drug labelonly after the FDA approves a supplemental application, the agency’s“changes being effected” (CBE) regulation permits certain preapproval labeling changes that add or strengthen a warning to improve drug safety. Pursuant to the CBE regulation, Wyeth could have unilaterally added a stronger warning about IV-push administration,and there is no evidence that the FDA would ultimately have rejected 2 WYETH v. LEVINE

Syllabus

such a labeling change. Wyeth’s cramped reading of the CBE regulation and its broad assertion that unilaterally changing the Phenerganlabel would have violated federal law governing unauthorized distribution and misbranding of drugs are based on the fundamental misunderstanding that the FDA, rather than the manufacturer, bearsprimary responsibility for drug labeling. It is a central premise of theFood, Drug, and Cosmetic Act (FDCA) and the FDA’s regulationsthat the manufacturer bears responsibility for the content of its labelat all times. Pp. 11–16.

(b) Wyeth’s argument that requiring it to comply with a state-lawduty to provide a stronger warning would interfere with Congress’ purpose of entrusting an expert agency with drug labeling decisions is meritless because it relies on an untenable interpretation of congressional intent and an overbroad view of an agency’s power to preempt state law. The history of the FDCA shows that Congress didnot intend to pre-empt state-law failure-to-warn actions. In advancing the argument that the FDA must be presumed to have established a specific labeling standard that leaves no room for different state-law judgments, Wyeth relies not on any statement by Congress but on the preamble to a 2006 FDA regulation declaring that statelaw failure-to-warn claims threaten the FDA’s statutorily prescribed role. Although an agency regulation with the force of law can preempt conflicting state requirements, this case involves no such regulation but merely an agency’s assertion that state law is an obstacleto achieving its statutory objectives. Where, as here, Congress has not authorized a federal agency to pre-empt state law directly, theweight this Court accords the agency’s explanation of state law’s impact on the federal scheme depends on its thoroughness, consistency,and persuasiveness. Cf., e.g., Skidmore v. Swift & Co., 323 U. S. 134. Under this standard, the FDA’s 2006 preamble does not merit deference: It is inherently suspect in light of the FDA’s failure to offer interested parties notice or opportunity for comment on the preemption question; it is at odds with the available evidence of Congress’ purposes; and it reverses the FDA’s own longstanding positionthat state law is a complementary form of drug regulation without providing a reasoned explanation. Geier v. American Honda Motor Co., 529 U. S. 861, is distinguished. Pp. 17–25.

___ Vt. ___, 944 A. 2d 179, affirmed.

STEVENS, J., delivered the opinion of the Court, in which KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA, J., joined.

Wow -- I never thought I would see the day I would find myself agreeing with something Justice Thomas said:

Because such a sweeping approach to pre-emption leads to the illegitimate—and thus, unconstitutional—invalidation of state laws, I can no longer assent to a doctrine that preempts state laws merely because they “stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives” of federal law.

Justice Thomas, a serious legal scholar on preemption?

I better read the opinion again.

Fla Supremes: Uniform Statutes Aren't

In Phantom of Brevard v. Brevard County, the Fla. Supreme Court put home rule over legislative authority by upholding a line of cases requiring the Legislature to use ridiculously specific magic words in order to preempt local authority.

A statute governing the regulation of fireworks that has as its purpose and intent section the following:

This chapter shall be applied uniformly throughout the state. Enforcement of
this chapter shall remain with local law enforcement departments and officials
charged with the enforcement of the laws of the state.

The Supreme Court held that this does not prevent local governments from adopting additional provisions that add regulatory requirements or restrictions to the statutory framework with this language:

However, focusing on potential differences caused by varying local requirements
confuses the issue. Because chapter 791 does not include an insurance coverage
standard or requirement, chapter 791 is not being applied disparately. In other
words, a state statute is not being applied in a non-uniform manner when a
locality enacts a regulation on a particular matter that is not addressed in the
statute. The statute is being applied uniformly. It is the local ordinance that
is creating any variance between counties.

In other words, the statutory requirement for uniform application is totally superfluous and ineffectual. It is a matter of fundamental " law that a local government could not modify the statute itself. The idea that a statute providing for uniform laws, or uniform application, does not evidence legislative intent to preempt the subject matter from local standards is a slap in the face to the legislature and makes a fetish out of home rule. While local government have home rule under the constitution, the constitution also clearly provides for the supremacy of the state legislature and the courts seem to have forgotten it - or at least have developed an unreasoning hostility to it.

LESSON: Legislative draftspeople simply need to start adding the phrase: "all regulation or setting of regulatory standards is hereby preempted and local government shall have no authority to adopt different standards" to pretty much every piece of environmental, land use, and business regulation that goes through their doors.

The Second DCA and Preemption – Home Rule over Legislative Intent

Sec. of State Kurt Browning, et. al. v. Muntz, et. al., 32 Fla. L. Weekly D2573a (Fla. 2d DCA October 31, 2007).

The Second DCA determined that amendments to the Sarasota County Charter that included provisions for the auditing and counting of ballots, were preempted by the Florida Election Code. Right enough. What’s distressing is how long it took the Court to get there, and the arguments raised by the dissent.

The Florida Constitution directs the Legislature regulate elections, and this has been held mandatory. The purpose of the Florida Election Code (Chapters 97 through 106, Florida Statutes) is to “obtain and maintain uniformity in the interpretation and implementation of the election laws.”

I don’t know how much more the Legislature ought to have to say in order to preempt an area from local regulation. If the Legislature intends uniform laws, then local regulation on the same subject is clearly inconsistent with that intent. But the Second District several years ago, in Phantom of Clearwater v. Pinellas County, allowed local regulation in an area where the Legislature had dictated uniform laws, finding that such an intent was insufficient to create express preemption. In this case, the Court required pages of analysis to determine that the Election Code was such a “pervasive” regulation that the Court would apply doctrines of “implied preemption” to hold the charter amendment inconsistent with state law. Moreover, the dissent complains that under Phantom, the Court should have upheld the charter amendment.

The dissent may be right, and it indicates the dismal state of preemption law in Florida, that gives more credence to home rule than to reasonable interpretation of legislative intent to preempt it. The Legislature should not have to use “magic words” to preempt local regulation. The Legsilature is the supreme law and the courts should pay more heed to legislative intent than murky concepts of home rule. The courts should go back to the old doctrines that local governments may not proscribe what the state expressly permits and that when the Legislature provides a process for taking action, that process must be followed and respected.
Either that, or the Legislature should adopt broad language preempting wholesale areas of regulation to itself and limiting the scope of local home rule. Touche’.

NOTE - This case has been accepted for review by the Florida Supreme Court. Briefs are due on December 26? and oral argument will be held in May. Wish I'd had time to request permission to file an amicus brief.