Deliberate Indifference, Medical Malpractice, and Independent Judicial Research

The 7th Circuit Court of Appeals has a fascinating (to me) opinion that involves dueling visions of what sort of independent research by appellate court judges is appropriate in the context of a pro se claim of 8th Amendment cruel and unusual punishment due to inadequate medical care while in prison. (h/t Indiana Law Blog).

Some background information:
1. Mostly judges are supposed to decide a case based on facts established through properly designated evidence. In the context of motions for summary judgment, the judge is supposed to resolve factual disputes in favor of the non-movant. Some limited factual information is permitted to be admitted through “judicial notice.” Judicial notice is usually reserved for things that can’t reasonably be disputed (e.g. sunrise, sunset times; the authenticity of government records (though not necessarily the veracity of their contents)).

2. In the Eighth Amendment context, prisoners have a Constitutional claim if prison officials demonstrate “deliberate indifference to a serious medical need.” It is a higher standard than medical malpractice.

In this case, an inmate suffered from esophagitis. The prison doctor prescribed him Zantac but the inmate complained about the times he was able to get it (not close enough to meal times) and that he was restricted in his ability to get it from the prison pharmacy for periods of time, told that if he wanted it, he would have to get it from the commissary with his own money. The defendants submitted evidence from the prison doctor that giving him Zantac twice a day, regardless of the times, was appropriate. According to the dissent, the record established the following:

On Rowe’s claim that the timing of his Zantac doses showed deliberate indifference to his health, the evidence in the record consists of two items. First, plaintiff Rowe asserts in his verified complaint and in several affidavits that he believes the prison’s schedule for giving him two 150 mg Zantac pills each day left him in unnecessary and avoidable pain for hours every day after meals. Second, defendants filed an affidavit from defendant Dr. William Wolfe, who was a career physician in the United States Air Force and is now a contract physician for the Indiana Department of Correction. Dr. Wolfe testified: “It does not matter what time of day Mr. Rowe receives his Zantac prescription. Each Zantac pill is fully effective for twelve hour increments. Zantac does not have to be taken before or with a meal to be effective. Providing Mr. Rowe with Zantac twice daily as the nursing staff makes their medication rounds, whatever time that may be, is sufficient and appropriate to treat his heart burn symptoms.”

The District Court judge, based on the record before it, entered summary judgment in favor of the defendants, concluding there was not a substantial issue of material fact which, if the jury credited the inmate, would provide a basis for concluding that the prison staff acted with deliberate indifference to a serious medical need (which, remember, is something beyond mere medical malpractice.)

The majority decision, written by Judge Posner, includes a great deal of information obtained by the Court of Appeals from internet websites. It then, however, says that this information is not the basis of its decision to reverse the District Court. The majority decision says that the information is neither the result of evidence presented under the normal rules of evidence or as a matter of judicial notice. It characterizes the information as falling “somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice.” Additionally, it cites the inmate’s inability to afford or locate an expert medical witness to contradict the expert testimony provided by the jail doctor as a basis for reversing.

Judge Hamilton, writing a dissent, complains that this is not how the judicial process works. He is very skeptical of the majority’s assertion that Internet research did not play a critical role in the Court of Appeals’ decision. If it didn’t matter, why spend all that time on information located online? Such independent research by District Court judges or juries, Judge Hamilton observes, is the basis for the Court of Appeals reversing the lower court. The Court of Appeals should not engage in such extrajudicial fact finding itself. Judge Hamilton observes that “the issue on summary judgment is whether the evidence in the record would allow a reasonable jury to find in favor of the non-moving party. (emphasis in the original). By reversing the district court, the majority is necessarily concluding that this record is sufficient to sustain a jury finding of deliberate indifference. By extension, this dramatically lowers the bar for establishing deliberate indifference under the 8th Amendment. (The majority seems pretty clearly to intend that, at trial, a more complete record be established — but, under traditional principles of the federal Court of Appeals’ role in reviewing an order granting summary judgment, giving the non-movant a second bite at the apple is not an option. The unsuccessful non-movant can’t protest that he or she was going to show the jury more than he or she submitted at the summary judgment stage.)

I was amused by this critique offered by Judge Hamilton:

To justify this venture, the majority asks a number of rhetorical questions and invokes the courage of the barons at Runnymede in 1215. Ante at 14. With respect, we are an intermediate appellate court. The Federal Rules of Evidence and Federal Rules of Civil Procedure that we apply are adopted and amended through processes established by the Rules Enabling Act, 28 U.S.C. § 2071 et seq. We simply do not have authority on our own to take the law into this unknown territory.

He then expands on the practical mess this creates for other cases — litigants will have to anticipate and respond to, not just the evidence presented by their adversaries, but by outside research the judiciary might do. There is also the issue of who has to pay for the expert witnesses the indigent inmate might want or demand. The courts don’t have the resources to pay for much of that. It is unfair to make the defendants incur such expenses, not just for themselves, but for the indigent inmates, in those cases when they’ve done nothing wrong.

As is probably obvious from the way I have framed this blog post, I agree with Judge Hamilton. I don’t have much problem concluding that there was a good chance that the prison doctor exercised inadequate medical judgment. But that’s a medical malpractice claim, and if the inmate is going to make such a claim, he should bring it under that theory. (With respect to the deliberate indifference necessary to sustain a Constitutional claim, Judge Hamilton notes that even the extra-judicial information cited by the majority does not establish that “Dr. Wolfe was so thoroughly and obviously wrong that a jury could infer that prison staff were deliberately indifferent to Rowe’s health needs.” (emphasis in the original)).

That the judicial process presents difficulties for people without financial resources is beyond dispute, but this ad hoc decision by the majority is unworkable on the scale that will be necessary if this decision stands as precedent for other cases. My hope is that the 7th Circuit reviews this en banc and determines that the record is insufficient to permit a jury to conclude something more than medical malpractice took place.

Supreme Court Decides in Favor of Marriage Equality

In a 5-4 opinion, the United States Supreme Court has decided, in Obergefell v. Hodges (pdf), that prohibitions against same sex marriages violate the Equal Protection and Due Process clauses of the United States Constitution. I’m happy with the result, but, after an initial read of the opinion, I don’t think it is a great model of legal writing – more high minded rhetoric than clinical analysis of the facts and law before the court. (In my mind, Judge Posner’s opinion in Baskin v. Bogan (pdf) was much better as a legal document.) Chief Justice Roberts’ dissent has a lot to work with in that regard.

That said, after all the critical noise about the deficiencies in the majority opinion, Roberts’ dissent is remarkably thin where all of these efforts to justify a same-sex marriage bans have been thin: the rational basis for such prohibitions. If you strip away his critiques of why the majority opinion is deficient, the following seems to be the sum of his explanation of why such bans are constitutionally permissible:

In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ legitimate state interest in preserving the traditional institution of marriage.

“We’ve always done it this way,” is cited as a sufficient state interest. I’d enjoy seeing John Roberts, as an attorney, argue that position to Judge Posner. I’m guessing he would not fare any better than Indiana’s Solicitor General did in front of the 7th Circuit.

In Indiana, when analyzing the state’s “defense of marriage act,” the rationale had to do with procreation. My post back in 2005 after the Indiana Court of Appeals decision:

[T]he Court of Appeals found that the legislature could enact such legislation to further its goal of encouraging procreation. And, since gay couples can’t procreate, they can be deprived of the benefits conferred on married couples. . . . The reasoning of the court seems specious. I would love to see how the Court reacted to legislation that prohibited barren or post-menopausal women from getting married or remaining married.

There is a tone of indifference in that 2005 post of mine of which I am not proud. I had more gay friends than I knew back then, and even more now. And they love as deeply as anybody. Mere tradition is an insufficient reason for barring them from forming the same sorts of legally recognized family units that society affords opposite sex couples. The rationales for maintaining such prohibitions, to the extent any are offered, so often seem like post hoc affairs — after the fact rationalizations where the real reason has more to do with habit than utility.

In any event, I’m happy about this decision on a number of levels — but especially for those gay friends of mine who were not allowed to get married yesterday but who are now free to do so.

Happy Birthday, Magna Carta!

Magna Carta, the charter agreed to by King John as a concession to some rebel barons, is 800 years old today. John put his seal on the document on June 15, 1215. As a practical matter, the document seems to have been mostly ignored by John and his successors. And, in any event, it primarily protected only the rich and powerful.

Despite the somewhat unimpressive practical reality of the charter, the mythology that grew up around it has been quite influential. Based on a badly flawed view of history, English jurists came to view the document as codifying to some extent the freedoms of Englishmen prior to the invasion of William the Conqueror in 1066. The belief in these freedoms as an ancient birthright – even if their predecessors did not, in fact, enjoy their protections – contributed to a cultural narrative where those freedoms became a reality. Magna Carta also served as a tangible bulwark against claims by the Stuart Kings that their rights were divine and absolute, perhaps partially explaining why they never enjoyed the level of power amassed elsewhere during that era (Louis XIV comes to mind).

The political myth of Magna Carta and its protection of ancient personal liberties persisted after the Glorious Revolution of 1688 until well into the 19th century. It influenced the early American colonists in the Thirteen Colonies and the formation of the American Constitution in 1789, which became the supreme law of the land in the new republic of the United States. Research by Victorian historians showed that the original 1215 charter had concerned the medieval relationship between the monarch and the barons, rather than the rights of ordinary people, but the charter remained a powerful, iconic document, even after almost all of its content was repealed from the statute books in the 19th and 20th centuries. Magna Carta still forms an important symbol of liberty today, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities, Lord Denning describing it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”

The document contained a great deal of discussion about various mechanisms the Crown used to extract money from the nobility, but in modern times, its most important contributions to our legal system surround the concepts of the Church’s independence from the State and the general notion that people are entitled to due process of law. Not too shabby!

Seventh Circuit Upholds Highland Park Semi-Automatic Weapons Ban

In a 2-1 decision, a panel of the 7th Circuit upheld a ban on “assault weapons” by the City of Highland Park, Illinois. Judges Easterbrook and Williams upheld the ordinance. Judge Manion dissented and would have struck down the ordinance as violating the Second Amendment.

The City of Highland Park has an ordinance (§136.005 of the City Code) that prohibits possession of assault weapons or large?capacity magazines (those that can accept more than ten rounds). The ordinance defines an assault weapon as any semi?automatic gun that can accept a large?capacity magazine and has one of five other features: a pistol grip without a stock (for semiautomatic pistols, the capacity to accept a magazine outside the pistol grip); a folding, telescoping, or thumbhole stock; a grip for the non?trigger hand; a barrel shroud; or a muzzle brake or compensator.

The Seventh Circuit indicated that the Supreme Court had not indicated the level of scrutiny under which a law implicating the Second Amendment must be analyzed. It could not be mere “rational basis” scrutiny. All laws must have a rational basis and, if that were the low bar set for Second Amendment cases, the Second Amendment would not do anything. Having noted that, however, the Seventh Circuit declined to articulate a level of scrutiny and, instead, announced:

But instead of trying to decide what “level” of scrutiny applies, and how it works, inquiries that do not resolve any concrete dispute, we think it better to ask whether a regulation bans weapons that were common at the time of ratification or those that have “some reasonable relationship to the preservation or efficiency of a well regulated militia,” see Heller, 554 U.S. at 622–25; Miller, 307 U.S. at 178–79, and whether law?abiding citizens retain adequate means of self?defense.

The court then noted that the banned features were not common in 1791. And, while the court noted a potential relationship to a well-regulated militia, the court thought that, since it was up to the states to regulate their militias, it was not a violation if state authority was used to ban this sort of weapon. (The court elided the question of whether it made a difference that this was an ordinance rather than a statute by observing that Plaintiffs contend that the same law would be a constitutional violation if imposed by the state instead of local government.)

With respect to self-defense, the court engages in some petard hoisting. When plaintiffs argue that the ban will leave citizens with insufficient options for self-defense, the court looks at the plaintiff’s argument that the ban will not stop crime. Part of that argument, apparently, was that criminals would simply turn to firearms not regulated by the ban to commit crime and, therefore, the ordinance was not rationally calculated as a crime prevention mechanism. If criminals can commit their crimes with other weapons, the court reasoned, then so too could citizens protect themselves with permitted firearms.

The court concludes:

McDonald holds that the Second Amendment creates individual rights that can be asserted against state and local governments. But neither it nor Heller attempts to define the
entire scope of the Second Amendment—to take all questions about which weapons are appropriate for self?defense out of the people’s hands. Heller and McDonald set limits on
the regulation of firearms; but within those limits, they leave matters open. The best way to evaluate the relation among assault weapons, crime, and self?defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court’s opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process. See McCulloch v. Maryland, 17 U.S. 316, 407 (1819).

Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a
search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices.

Judge Manion disagreed, regarding the Court’s holding as contrary to the relatively recent Supreme Court holdings in Heller and McDonald. In his view, those decisions largely read the status of weapons at the time of the 1791 ratification and consideration of militias out of Second Amendment analysis. Because the Supreme Court determined that weapon ownership was an individual right, Judge Manion regarded the self-defense analysis as the only part of the majority analysis with some relevance.

To be sure, assault rifles and large capacity magazines are dangerous. But their ability to project large amounts of force accurately is exactly why they are an attractive means of self-defense. While most persons do not require extraordinary means to defend their homes, the fact remains that some do. Ultimately, it is up to the lawful gun owner and not the government to decide these matters. To limit self-defense to only those methods acceptable to the government is to effect an enormous transfer of authority from the citizens of this country to the government—a result directly contrary to our constitution and to our political tradition. The rights contained in the Second Amendment are “fundamental” and “necessary to our system of ordered liberty.” McDonald, 561 U.S. at 778. The government recognizes these rights; it does not confer them.

In his analysis, Judge Manion engages in some parsing of which weapons are covered by the Second Amendment and which are not that strikes me as somewhat dubious. Using hand grenades as an example, he says that the question of whether a particular weapon is covered by the Second Amendment turns on whether the weapon has ever been “commonly used by law-abiding citizens.” Perhaps grenades have not been commonly used by law-abiding citizens because they have been illegal.

But, there is much more to his dissent, and it, too, is worth a read.

SCOTUSblog on Legal Maneuvering in Same Sex Marriage Proceedings

Tom Goldstein has a post at SCOTUSblog entitled “Lawyers as heroes or goats in fight over same-sex marriage.” He talks about how strategic decisions by lawyers in the same sex marriage lawsuits could have ramifications for the rights of gay people for the next couple of decades.

I’m a proponent of marriage equality, and I’m hopeful that the Supreme Court will side with the bulk of Circuit Courts that bans on marriage equality are unconstitutional. But, my opinion as an armchair lawyer is that the more strategically sound course of action would have been to take the 6th Circuit panel opinion – which upheld same sex marriage bans – to the 6th Circuit en banc. First of all, there is a decent chance the full court would have reversed the panel. Secondly, I think time is on the side of marriage equality proponents. In my opinion, the longer it takes to get to the Supreme Court, the more likely a favorable outcome.

But, I suppose it’s easy for me to sit back and advocate for a more gradual pace. There were no legal impediments to me marrying the person I love.

Indiana Appeals Marriage Equality Decision to the U.S. Supreme Court

Via the Indiana Law Blog, Indiana’s Attorney General Greg Zoeller has filed a petition for certiorari with the United States Supreme Court asking for review of the 7th Circuit’s blistering opinion holding that Indiana’s “marriage protection” law violated the Equal Protection Clause of the 14th Amendment to the United States Constitution.

The respondent same sex couples seem to have filed their response almost at once. They agree that the U.S. Supreme Court should consider the case. They state the question as:

Whether a statute violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution by prohibiting same-sex couples from marrying and by refusing to recognize their lawful, out-of-state marriages.

versus the State’s characterization of the issue presented:

1. Whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment permit States to define marriage as a legal union between one man and one woman.

2. Whether the Due Process and Equal Protection Clauses permit States to treat as void same-sex marriages from other jurisdictions.

The State’s characterization of the issue is slightly disingenuous. Nobody is saying that the State can’t define marriage as a legal union between one man and one woman; only that the definition violates the Equal Protection Clause if it also excludes same sex couples from inclusion in the definition.

As to the timing, I suspect there was collaboration between the Plaintiffs and the State to get their filings into the Supreme Court by the deadline for the Supreme Court to consider the case during this session. The Attorney General’s press release notes that:

Today was the deadline for Indiana to file its cert petition in order to be considered along with the Utah, Oklahoma and Virginia petitions during the Supreme Court’s first conference Sept. 29 where justices will to decide which cases to hear early in their next term, which begins in October and lasts through June 2015.

In fact, that was probably one reason for the 7th Circuit panel’s rapid turn around time between hearing oral argument and issuing its opinion.

Just browsing, I see that the State cites a 1997 law review article from Judge Posner entitled, “Should there be homosexual marriage and, if so, who should decide?” 95 Mich. L. Rev. 1578 (1997). However, one of the citations to this piece by the State, at least, is misleading. They quote a bit by Posner where he says that there is formal equality inasmuch as gays are allowed to marry opposite sex partners just like heterosexual couples but somehow manage to miss the next sentence where he says that the practical effect is to “exclude homosexuals from a fundamental social institution.”

Posner’s 1997 article is a review of a piece by Prof. William Eskridge entitled “The Case for Same Sex Marriage.” Posner is generally respectful of Prof. Eskridge’s work but takes issue with Eskridge’s historical accounts of gay couples. Posner offers speculation that the rise of intolerance against gays in the West corresponds with the rise of “companionate marriage” — marriage where the couples are supposed to be companions instead of the woman being chiefly a breeder for the man. (My unstudied notion was that marriage was more of an evolution from a property-centered arrangement to romantic relationships, emulating such relationships as they became fashionable in the royal courts.) In any event, Posner suggested that companionate relationships had the effect of outing the gay people who didn’t share such companionship and thereby provoking increased hostility against them.

In the law review article, Posner observes that public opinion in favor of same sex marriages had shifted from unthinkable to slight. (The last 17 years has, of course, seen a quantum leap in that public support.) And public support seems to be at the crux of his disagreement with Eskridge about whether the Supreme Court should recognize a constitutional right being violated if same sex marriage is illegal. He says that Eskridge’s arguments were fine legal arguments but, based on the lack of public support, such arguments would be “usurpative” if adopted by the Supreme Court. It’s an interesting question whether public support ever had a legally had a role to play (as a practical matter, it often does — see for example, the Supreme Court’s internment of Japanese during World War II). But, if it does, public support is now on the side of same sex marriage along with those technical legal arguments. And, in 1997, Posner said that before the Supreme Court found a right to same sex marriage in the Constitution, public opinion would have to shift, a state court or state legislature should adopt same sex marriage as a policy, and the rest of the nation should learn from exercise.

This post has been a little unstructured, but that’s all I have time for at the moment, so here you go.

Oral Arguments in 7th Circuit Marriage Equality Lawsuits – Posner, Williams, and Hamilton Panel Judges

The 7th Circuit is conducting oral arguments today in combined Indiana and Wisconsin cases considering the constitutionality of laws prohibiting same sex marriages. The panel drawn to hear the cases are Judges Posner, Williams, and Hamilton. Posner is a Reagan appointee, Williams is a Clinton appointee, and Hamilton is an Obama appointee. This is not a good draw for the Attorney Generals of the states seeking to have their laws prohibiting same sex marriages upheld.

Posner who, just from a two-dimensional political analysis, might be expected to be the most sympathetic to the marriage laws on the books is not a reliable enthusiast for socially conservative positions. Looking at his Wikipedia page (how is that for legal analysis!) he has expressed opinions sympathetic to abortion rights and skeptical of the drug war. With respect to gay marriage in particular, Judge Posner offered a discussion at his blog with Gary Becker. He believes the available evidence suggests that homosexuality is innate and, as such, “if homosexuality is innate, it becomes difficult to see why it should be thought to require regulation.” He concludes:

It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. Many devout Christians, Jews, and Muslims are strongly opposed to homosexual marriage, and to homosexuality more generally. Why they are is unclear. If as appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God’s will? Stated differently, why has sex come to play such a large role in the Abrahamic religions? I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.

(emphasis added).

I can’t imagine the chances of the State attorneys general gets any better with Judges Williams and Hamilton. Ian Millhiser, writing for Think Progress, says of the panel draw, “Marriage equality supporters just won the lottery.”

Ferguson & Tennesse v. Gardner

After the police released a statement about Mike Brown supposedly committing robbery and stealing some cigars before being killed by a police officer while running away, I couldn’t help but notice the similarity in facts to a prominent Supreme Court case about the use of deadly force. The case was Tennessee v. Garner, 471 U.S. 1 (1985). Per the Wikipedia entry:

At about 10:45 p.m. on October 3, 1974, Memphis Police Department Officers Leslie Wright and Elton Hymon were dispatched to answer a burglary call next door. Officer Hymon went behind the house as his partner radioed back to the station. Hymon witnessed someone running across the yard. The fleeing suspect, Edward Garner, stopped at a 6-foot-high (1.8 m) chain-link fence. Using his flashlight, Hymon could see Garner’s face and hands, and was reasonably sure that Garner was unarmed. The police testified that they believed Garner was 17 or 18 years old; Garner was in fact 15 years old. After Hymon ordered Garner to halt, Garner began to climb the fence. Believing that Garner would certainly flee if he made it over the fence, Hymon shot him. The bullet struck Garner in the back of the head, and he died shortly after an ambulance took him to a nearby hospital. Ten dollars and a purse taken from the burglarized house were found on his body.

Hymon acted according to a Tennessee state statute and official Memphis Police Department policy authorizing deadly force against a fleeing suspect. The statute provided that “if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.”

The United States Supreme Court decided that the officer’s actions violated the decedent’s Fourth Amendment rights. This was, apparently, a departure from the common law where deadly force was permitted against a suspected felon who, given the opportunity to submit to the police, nevertheless attempted to flee. The Supreme Court in Garner reasoned:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.
. . .
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

For those interested in such things, Graham v. Connor, 490 U.S. 386 (1989) is another landmark Fourth Amendment case concerning police use of force — more generally and not just the use of deadly force:

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

An interesting wrinkle to this objective reasonableness test is that it attempts to assess the use of force from the perspective of an “objectively reasonable” officer. The upshot is that constitutionally permitted use of force isn’t rendered unconstitutional due to the subjective malice of the actual officer and constitutionally prohibited use of force isn’t rendered permissible due to the subjective good faith intentions of the officer.

Do Corporations Have Religious Beliefs?

I don’t know the legal answer to that question – if it has been squarely addressed before, but the Hobby Lobby case was argued to the Supreme Court today and the question came to mind again. The ACA requires that if a corporation provides compensation to its employees in the form of health insurance benefits that the insurance include, among other things, coverage for contraception. The owners of the shares in Hobby Lobby Stores, Inc. oppose on religious grounds certain IUDs and pills that prevent impregnation of a fertilized egg into the uterus.

In my mind, corporations are incapable of belief and the religious beliefs of individuals are distinct from the religious beliefs of the corporations in which they have an ownership interest.

Corporations are a government created legal fiction designed to limit personal responsibility. There is obviously utility to the corporate structure. But, I don’t understand how religious beliefs can get through the corporate shield but personal liability cannot.

I could probably get behind allowing individual owners to abandon the corporate form and exercise their religious beliefs to avoid the contraception mandate if they felt that strongly about it. Or, better yet, go single payer and disassociate insurance and employment altogether.


Judge Posner Is Not Amused

A March 12, 2014 decision by the 7th Circuit Court of Appeals must have been gratifying for the plaintiff-appellee in the case of Central States v. Lewis. Judge Posner gave the defendant-appellants a beat down – their lawyer in particular.

Plaintiff was a health plan. Defendant had been injured in a motor vehicle accident. The health plan paid for defendant’s medical bills to the tune of about $180,000 following a motor vehicle accident. Defendant (through her Georgia attorney — the accident took place in Georgia.) turned around and sued the person who caused the accident. So far, so good. The motorist’s insurance company paid defendant $500,000. The health plan has a lien against that settlement. The defendant is supposed to pay back her health plan the $180,000 because the wrongdoer has now paid for the injury. You can’t double dip. But her attorney just ignored the lien, paid his client $200,000 and pocketed the remaining 60%. (Awfully high as a contingency fee as Judge Posner notes).

The health plan filed suit to enforce the lien and get their $180k back. The District Court entered a preliminary injunction ordering the attorney to put at least $180k in his client trust account on behalf of his client until the lien issue was resolved. He ignored the order. When pressed, the lawyer proclaimed that his client had already spent her money and that none of the money in his firm’s account was from that settlement. When pressed for an accounting, their documentation was skeletal. The District Court entered a finding of civil contempt which was what was on appeal here.

The only supporting evidence cited (it is not discussed) is an affidavit by Lewis saying that she and her husband had spent her entire share of the settlement proceeds on a new house, a vehicle, and “repayment of personal loans, medical expenses, prescriptions, living expenses, and other expenses”; a pair of affidavits by Lashgari stating that neither he nor his law firm is “in possession of funds that could be used to” restore $180,000 to a client trust account; and a bank statement dated June 2011 for a trust account maintained by Lashgari’s law firm, Lashgari & Associates, P.C., (visited March 12, 2014). The bank statement shows the $500,000 deposit of the settlement proceeds and a subsequent withdrawal of $202,000, representing Lashgari’s disbursement to Lewis of her share of the settlement. The share he retained—$298,000, a shade short of 60 percent of the settlement proceeds—seems too high for a contingent fee, but he argues that Lewis owed him for unspecified “advances” that he had made to her. The latest entry in the statement is for June 30, 2011— fewer than three weeks before this lawsuit was filed—and shows a balance of $341,000.

These documents—the only evidence cited in the defendants’ brief—show that Lewis and Lashgari willfully ignored the plan’s lien against the settlement proceeds. Lewis’s statement does not indicate the value of her assets; even if she has spent every last cent of the settlement proceeds that she received, it doesn’t follow that she’s assetless— presumably she still has the vehicle and the house, and she has not indicated their value. And though her statement was not notarized until December 2012, it purports to state her financial situation as of May 2012; there is no subsequent information about her finances. As with Lewis, so with Lashgari: one of his affidavits states that the money in the trust account from Lewis’s settlement has been spent, but there is no information about the account’s current balance or the assets of his law firm.

. . .

The defendants’ conduct has been outrageous. After resolving the merits of the underlying suit, the district court should give serious consideration to transmitting copies of this opinion and the record to the Department of Justice and to the General Counsel of the Georgia Bar. In the meantime, we direct the district court to determine whether the defendants should be jailed (a standard remedy for civil contempt, see, e.g., Turner v. Rogers, 131 S. Ct. 2507, 2512–13 (2011); In re Grand Jury Proceedings, 280 F.3d 1103, 1107–08 (7th Cir. 2002)), until they comply with the order to deposit the settlement proceeds in a trust account.

Judge Posner described the defendants’ behavior as “contumacious effrontery.” He also questions why the District Court has been so slow to deal with this case.