Broward Judge Aleman dies at 52
Staff writer Paula McMahon reports:
Broward Circuit Judge Cheryl Alemán died early Thursday of lung cancer, friends and courthouse officials confirmed.
Her death came as a shock to many people in the county’s legal community because, friends said, she had chosen to keep her illness private. Her judicial term was scheduled to expire at the end of this year and she had chosen not to run for re-election.
Judge Alemán, 52, of Cooper City, was a controversial figure on the bench but earned respect from many who handled cases in her courtroom. She was a prosecutor before she was appointed to a newly created judgeship in January 2002 by then-Gov. Jeb Bush.
A committed Christian and member of the Calvary Chapel congregation, she is survived by her husband, Omar, a retired U.S. Drug Enforcement Administration agent. Funeral arrangements have not yet been made public.
What’s the rules? The Legislature will be the judge of that
The tug-of-war between legislators who pass the laws and bureaucrats who make the rules to enforce them has been an off-and-on sport in Tallahassee for years. But with its override of a Charlie Crist veto this week, the Legislature has now given itself the power to review any rule that might cost business more than $ 200,000 a year. Read Aaron Deslatte’s column about the likely consequences.
Central Florida Political Pulse – Orlando Sentinel
Judge Napolitano asks WikiLeaks’ employees, “What’s next?”
In an interview with Andrew Napolitano last night, two employees of WikiLeaks who declared that their endeavors are not going to be deterred even if their founder Julian Assange is arrested.
They even made an observation I couldn’t disagree with: the media also is complicit in the release of this information.
Judge Reinhardt’s Order Denying the Motion That Asked Him to Recuse Himself
(Eugene Volokh)
Judge Reinhardt has issued an order denying the motion that asked him to recuse himself; the order promises a longer explanation to come. For the text, see the update to my original post. If you’d like to comment, please comment on the original post.
Prop 8 Judge Tell H8ters to Get Lost; Denies Motion to Disqualify
Liberty & Justice by Mirko Ilic
As you know from my report Monday when the three member appellate panel in the 9th Circuit was announce for the Prop 8 case of Perry v. Schwarzenegger, one of the judges assigned was Judge Stephen Reinhardt. Steve Reinhardt is one of the finest judges you will find anywhere, and he is an old school principled and unabashed liberal whose veins carry the lifeblood of social justice, fundamental fairness and equal protection for all citizens.
So, of course the hating bigots that comprise the pro-Propositioin 8 Defendant-Intervenors filed a motion last night to disqualify Reinhardt. Here is the full motion to disqualify brief, it is only 18 pages (10 of text) long and gives a very good glimpse of just how the haters tried to attack Reinhardt here because – gasp! – his wife has spent her career at the ACLU who -gasp! – actually is in favor of marriage equality. In a nutshell, D-Is argue:
Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.
…
The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit…
…
The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit.
…
It is thus plain that Ms. Ripston has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding.
The D-I argument is, of course, ginned up baloney. Reinhardt’s wife, Ramona Ripston, was never an attorney of record in the case, has no pecuniary interest in the outcome, and the ACLU is not part of the appeal. But H8ters are gonna hate, and that is what these folks do best.
Steve Reinhardt wasted no time telling them where to place their hate. The D-I motion was filed early last night, and Reinhardt has already issued his order tersely denying the motion:
Filed order (STEPHEN R. REINHARDT) I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997). Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.
Well, that will take care of that. That is what the entire raison de etre of the D-I is though, if you are not like them and believe as they do, you are not equal, not worthy and biased; be it being gay, atheistic/agnostic or liberal you are just simply not fit. Judge Reinhardt told them where to go with that rubbish. It is interesting to note that although there are some very substantial questions that could be asked about the staunch conservative judge appointed to the Perry panel, N. Randy Smith, the appellees have not thrown up unsupported and scurrilous motions to disqualify Smith because, without substantial factual support to do so it would be wrong. That is the qualitative difference in the attorneys and people on the two respective sides.
Now here is where it gets interesting and we move away from silly hate and back to the merits of the appeal. When you hear stories about how the Supreme Court frowns on the liberal Ninth Circuit and takes glee in reversing decisions from the 9th, Steve Reinhardt is the poster child for that meme. An appeal to the Supremes on a decision authored by Reinhardt is like waving a red flag in front of a bull, you are going to get their attention.
And to double the fun here, the threshold question, and really a huge issue that many people discussing the Perry appeal still do not grant enough weight, is the issue of standing on the part of the appellants. Lyle Denniston at SCOTUSBlog has a post from back in August giving a very thorough and easy to understand discussion of the standing issue in Perry. The entire post is worth the read if you are not familiar with the standing issue, but the gist is this:
In both the Ninth Circuit and, if the case goes further, in the Supreme Court, it is now apparent that the resolution of the issue of standing to appeal will turn on how those courts interpret the Supreme Court’s 1997 decision in Arizona for Official English v. Arizona, casting doubt on whether initiative sponsors may appeal to defend a ballot measure when state officials refuse to do so, and the Court’s 1985 ruling in Karcher v. May, suggesting that state legislators may sometimes do so when other state officials refuse, provided state law allows for that. The proponents of the ban on gay marriage, in direct conflict with Judge Walker’s interpretation of California law, argue that state law does give them the right to be in court. California law, they said, makes their case different from the Arizona English initiative case.
And here is where the fun really starts. As I previously indicated, on the merits, you would expect a 2-1 decision upholding Walkers decision in favor og marriage equality and striking down the appeal of the Prop 8Haters. But, before you get to the merits, there is the problem of the standing issue and, as Denniston pointed out, the critical case for that determination will be the Supreme Court decision Arizona for Official English v. Arizona. Know who wrote the circuit court opinion in Arizona for Official English v. Arizona that the Supreme Court slapped down and reversed? Yep, Steve Reinhardt.
So, we have a Circuit Court judge predisposed to find standing in such cases, a Supreme Court predisposed to not care much for said judge’s opinion and a case that may, or may not, be able to be distinguished. Whatever the ruling is in the 9th, the opinion will almost certainly be written by either Reinhardt or Mike Hawkins. Reinhardt has the seniority over Hawkins and the lifetime of work on social justice opinions, if he wants to author the opinion, I think Hawkins will defer to him. The question is, might they decide to have Hawkins author the opinion to pull back on the red flag in front of the SCOTUS bull?
Get your popcorn, and remember that Emptywheel will be covering the oral argument in the 9th Circuit Monday morning December 6th at 10:00 am PST/FDL time and the proceedings will be carried live by CSPAN and other networks.
[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Mirko is an artist par ecellence in New York who also teaches illustration and design. Please visit Mirko and check out his stock of work, it is really superb.]
Related posts:
- Excellent Panel Announced for Perry Prop 8 Appeal
- Ballots and the Bench: The Iowa Judges
- Will SCOTUS Give Ashcroft Immunity in Ashcroft v. al-Kidd?
Open Thread: Judge Napolitano and Amb. Bolton Debate WikiLeaks
The libertarian truther vs. the hawkish former Bush official. Who gets the best of this debate?
Also, where do you stand on the central disagreement of this exchange? Does the physical defense of the nation take primacy over strict adherence to its laws given the chaotic nature of the international community?
NewsBusters.org – Exposing Liberal Media Bias
CALIFORNIA: Protect Marriage Files Request For Recusal Of Prop 8 Judge
Protect Marriage has filed a formal request for the recusal of Ninth Circuit Court of Appeals Judge Stephen Reindhardt, who is scheduled to be part of the three judge panel hearing the appeal of Proposition 8 on Monday. As I noted yesterday morning, at issue is Reinhardt’s wife and her involvement with the No On 8 campaign via her job with the ACLU.
In papers filed with the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for Proposition 8′s supporters said Judge Stephen Reinhardt’s “impartiality might reasonably be questioned” because his wife heads the Southern California chapter of the American Civil Liberties Union. In that role, the judge’s wife, Ramona Ripston, has been an outspoken opponent of Proposition 8 and taken part in legal proceedings to overturn the voter-approved law, the lawyers said. They cited the friend of the court brief the ACLU filed on behalf of the plaintiff’s in the case pending before her husband as an example.
According to the above-linked story, Reinhardt has recused himself from past cases involving the ACLU.
Judge Robert Chatigny’s Nomination To Second Circuit Court Of Appeals Is In Jeopardy; Postponed Yet Again
The long-running nomination of federal court Judge Robert Chatigny to the prestigious Second Circuit Court of Appeals in New York City is in jeopardy.
The Hartford Courant’s longtime court reporter, Edmund Mahony, has the details at http://www.courant.com/news/politics/hc-chatigny-hearing-1202-20101201,0,160877.story
Motion Asking Judge Reinhardt to Recuse Himself from the Prop. 8 Case
(Eugene Volokh)
Orin blogged yesterday about the suggestion that Judge Reinhardt recuse himself from the Prop. 8 case, so I thought it would be helpful to post the motion that was just filed with such a request. Here’s the Statement from the start of the motion (with most citations omitted), which summarizes the argument, though please read the whole thing if you’re interested in the issue:
On November 28, 2010, this Court identified Circuit Judges Reinhardt, Hawkins, and N.R. Smith as the members of the panel assigned to this case. Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California. ACLU/SC 2007–2008 Annual Report 24, at http://www.aclu-sc.org/downloads/9/204927.pdf. ACLU/SC represented several same-sex couples and organizations in In re Marriage Cases, in which the California Supreme Court held that California’s pre-Proposition 8 statutory definition of marriage as the union of a man and a woman violated the State Constitution.
Following that decision, ACLU/SC put Proposition 8 “at the forefront of [its] civil-rights agenda, sparing no effort to defeat Prop. 8 [and] challenge its passage.” ACLU/SC 2008–2009 Annual Report 8, at http://www.aclusc.org/documents/view/223. After Proposition 8’s passage ACLU/SC represented petitioners before the California Supreme Court in Strauss v. Horton, the unsuccessful state-law challenge to the validity of Proposition 8. The same day the California Supreme Court issued its decision in Strauss, Ms. Ripston issued a public statement on behalf of ACLU/SC, vowing that “[a] renewed effort to overturn Proposition 8 begins today.” Ms. Ripston later signed a letter on behalf of ACLU/SC explaining that as part of that effort, “LGBT people and our closest allies are first going to have to talk to close friends and family about … why this fight [for same-sex marriage] matters. Even if those people are already on our side, we need to talk to them to convince them to join the fight.”
ACLU/SC has taken an active role in this litigation. It appears that Plaintiffs’ attorneys engaged in “confidential discussions” with Ms. Ripston and ACLU/SC’s legal director before filing this lawsuit. See Chuleenan Svetvilas, Challenging Prop 8: The Hidden Story, CALIFORNIA LAWYER, Jan. 2010, at http://www.callawyer.com/story.cfm?eid=906575&evid=1. And ACLU/SC has been actively involved in this very case. Indeed, it represented, as counsel in the court below, parties seeking to intervene as plaintiffs, see Our Family Coalition et al. Motion to Intervene as Party Plaintiffs, Doc. No. 79 at 2 (July 8, 2009), and amici urging the court to decide the case in favor of Plaintiffs and to rule that Proposition 8 is unconstitutional. See Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 62 at 2 (June 25, 2009); Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 552 at 2 (Feb. 3, 2010). [footnote 3]
[Footnote 3:] Indeed, in the accompanying motions for leave to file these amicus briefs, the statement of amici interest specifically lists ACLU/SC as an affiliate of an amicus curiae. See Motion for Leave to File Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 61 at 3 (June 25, 2009) (identifying “the ACLU Foundation of Southern California” as one of “the three California affiliates of the ACLU”); Motion for Leave to File Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 551 at 3 (Feb. 3, 2010) (same).
When the district court issued the ruling under review in this Court, the ACLU issued a public statement praising the decision and emphasizing that the ACLU, along with two other groups, had “filed two friend-of-the-court briefs in the case supporting the argument that Proposition 8 is unconstitutional.” The press release quoted Ms. Ripston as “rejoic[ing]” in the decision striking down Proposition 8, asserting that it “affirms that in America we don’t treat people differently based on their sexual orientation.” Ms. Ripston’s statement was reported in the national media. At the same time, Ms. Ripston stated that the district court’s ruling was not the end of the matter, emphasizing that “it’s a long road ahead until final victory.” Specifically, as one of her colleagues put it in the same public statement, “[i]n order to give this case the best possible chance of success as it moves through the appeals courts, we need to show that America is ready for same-sex couples to marry by continuing to seek marriage and other relationship protections in states across the country” (emphasis added).
Naturally, if there’s a response filed (or some rebuttal published by someone who is not a party), I’d be delighted to link to it as well. I don’t have a fixed view on what the right result is, since I’m not an expert on this aspect of judicial recusal law, but I thought it was worth linking to the legal argument.
Federal Judge Dismisses Lawsuit Challenging Health Care Reform Law
The second ruling on the merits from a Federal Judge counts as another setback for opponents of the Affordable Care Act:
WASHINGTON — For the second time in two months, a federal judge has upheld the constitutionality of the new health care law, ruling on Tuesday that the requirement that most Americans obtain medical coverage falls within Congress’s authority to regulate interstate commerce.
The judge, Norman K. Moon of Federal District Court, who sits in Lynchburg, Va., issued a 54-page ruling that granted the government’s request to dismiss a lawsuit brought by Liberty University, the private Christian college founded by the Rev. Jerry Falwell. Last month, in a separate case, Judge George C. Steeh of Federal District Court in Detroit also upheld the law.
Like Judge Steeh, Judge Moon was appointed by President Bill Clinton, a Democrat.
Judge Moon’s ruling on the heart of the case, whether the insurance mandate is authorized under the Commerce Clause is entirely predictable given the state of the law in that area:
The conclusion that decisions to pay for health care without insurance are economic activities follows from the Supreme Court’s rulings in Wickard and Raich. Plaintiffs’ preference for paying for health care needs out of pocket rather than purchasing insurance on the market is much like the preference of the plaintiff farmer in Wickard for fulfilling his demand for wheat by growing his own rather than by purchasing it. Plaintiffs do not consider themselves to be engaging in commerce, but as in Wickard, economic activity subject to regulation under the Commerce Clause need not involve transacting business in the marketplace. See Wickard, 317 U.S. at 128 (“[T]he power to regulate commerce includes the power to regulate . . . the practices affecting” the prices of commodities in interstate commerce.) (emphasis added). In Wickard, the plaintiff argued that his production of wheat was “not intended in any part for commerce but wholly for consumption on the farm.” Id. at 118. The Court rejected that argument, stating that one effect of Congress’ regulation was to “forestall resort to the market by producing to meet [one’s] own needs.” Id. at 127. Because of the nature of supply and demand, Plaintiffs’ choices directly affect the price of insurance in the market, which Congress set out in the Act to control.
(…)
The conduct regulated by the individual coverage provision is also within the scope of Congress’ powers under the Commerce Clause because it is rational to believe the failure to regulate the uninsured would undercut the Act’s larger regulatory scheme for the interstate health care market. See id. at 18; cf. Wickard, 317 U.S. at 128-29 (“Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.”). The Act institutes a number of reforms of the interstate insurance market to increase the availability and affordability of health insurance, including the requirement that insurers guarantee coverage for all individuals, even those with preexisting medical conditions. As Congress stated in its findings, the individual coverage provision is “essential” to this larger regulatory scheme because without it, individuals would postpone health insurance until they need substantial care, at which point the Act would obligate insurers to cover them at the same cost as everyone else. This would increase the cost of health insurance and decrease the number of insured individuals—precisely the harms that Congress sought to address with the Act’s regulatory measures.
If nothing else, this case points out just how difficult it will be for any of the Plaintiffs involved in the lawsuits against the health care reform bill to convince any Court of Appeals of the unconstitutionality of the individual mandate, not to mention the Supreme Court. In order for the Courts to do so, they are going to have to find more than 60 years of Commerce Clause jurisprudence to have been wrongly decided, and the odds of that happening seem to be slim indeed, as Orin Kerr noted at The Volokh Conspiracy earlier this year:
In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9-0 (or possibly 8-1) vote to uphold the individual mandate.
Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.
But with all of these caveats, I’ll stand by my prediction. I just don’t see lower courts finding these issues difficult, and I don’t see the Supreme Court likely to take the case. I recognize there’s always the theoretical possibility of the Supreme Court doing something totally unexpected — a Bush v. Gore moment, if you will — but I think the realistic possibility of that happening is less than 1%.
I tend to agree with Kerr. There may be individual judges — such as Judge Hudson in Virginia or Judge Vinson in Florida — who issue a decision holding the individual mandate to be unconstitutional but, in the end, the conservative (and I don’t mean that in a political sense) nature of the judiciary and the pull of stare decisis will lead the appellate courts to side with the government here. If there is a defeat for ObamaCare, it will not happen in the courts.
Here’s the full text of Judge Moon’s decision:
Liberty University et al v. Geithner et al
Author of Oklahoma Sharia ban slams judge, appeal is “likely”
Indeed, the judge clearly has no clue what Sharia is. “Author of Okla.’s ban on Islamic law slams judge,” by Sean Murphy for the Associated Press, November 30:
[…] Former state Rep. Rex Duncan says the judge is exactly the kind of “liberal activist” his legislation intends to stop. The judge issued a temporary injunction Monday, blocking the law from taking effect. More than 70 percent of voters supported adding the ban in the state constitution.
Also Tuesday, the Oklahoma State Election Board voted to ask the state attorney general to appeal the court’s granting of the injunction. A spokesman for the attorney general says such an appeal is “likely.”
Good.
Federal judge upholds ObamaCare mandate
Warm-ups.
In the second such ruling, a federal judge in Virginia has declared the federal mandate to purchase insurance constitutional. Jude Norman Moon, a Clinton appointee as noted by The Hill, refused Liberty University’s challenge on the basis of ObamaCare funding for abortion, writing that since everyone at some time will seek health care services, the […]
Judge upholds constitutionality of Obamacare
A mockery Of The U.S. Constitution.
American Thinker Blog
A Second Federal Judge Holds That The Affordable Care Act Is Constitutional
Last month, the first judge ever to consider the issue reached the obviously correct conclusion that the Affordable Care Act is constitutional. Today, a second federal judge reached the same conclusion. The lengthy opinion by Judge Norman Moon of the Western District of Virginia gives several reasons why the Act’s provision requiring all Americans to either carry insurance or pay slightly higher income taxes easily fits within Congress’ broad authority to regulate the national economy, including the fact that striking down this provision would make it impossible to prevent insurance companies from denying coverage to persons with preexisting conditions:
The conduct regulated by the individual coverage provision is also within the scope of Congress’ power under the Commerce Clause because it is rational to believe the failure to regulate the uninsured would undercut the Act’s larger regulatory scheme for the interstate health care market. The Act institutes a number of reforms of the interstate insurance market to increase the availability and affordability of health insurance, including the requirement that insurers guarantee coverage for all individuals, even those with preexisting medical conditions. As Congress stated in its findings, the individual coverage provision is “essential” to this larger regulatory scheme because, without it, individuals would postpone health insurance until they need substantial care, at which point the Act would obligate insurers to cover them at the same cost as everyone else. This would increase the cost of health insurance and decrease the number of insured individuals—precisely the harms that Congress sought to address with the Act’s regulatory measures.
Today’s decision is just another nail in the coffin of the many meritless lawsuits challenging health reform. While conservatives have touted a pair of procedural victories they won in two high-profile lawsuits, the fact remains that every single judge to consider merits of these challenges has upheld the law. Indeed, even ultra-conservative Justice Antonin Scalia has indicated that he agrees with today’s decision. As Scalia wrote in Gonzales v. Raich, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
Judge Rejects Challenge to Health Care Law
A federal judge in Virginia dismissed a lawsuit challenging the Obama administration’s health-care overhaul, upholding key provisions that require health insurance coverage, Bloomberg reports.
Taegan Goddard’s Political Wire
