6th Circuit finds health care mandate constitutional

The Sixth Circuit affirmed the U.S. District Court judge’s finding that the health care mandate of the Patient Protection and Affordable Care Act is constitutional under the Commerce Clause.

U.S. District Court judge George Steeh had found the mandate falls within the Commerce Clause because:

(1) the provision regulates economic decisions regarding how to pay for health care that have substantial effects on the interstate health care market; and (2) the provision is essential to the Act’s larger regulation of the interstate market for health insurance.  Because the district court found the provision to be authorized by the Commerce Clause, it declined to address whether it was a permissible tax under the General Welfare Clause.

In Thomas More Law Center v Obama, a 6th Circuit panel consisting of Judges Boyce Martin, Jeffrey Sutton and U.S. District Court Judge James Graham (Ohio) agreed.

Writing for the majority opinion, Martin said the law falls within the Commerce Clause because it

There is debate over whether the provision regulates activity in the market of health insurance or in the market of health care.  In the most literal, narrow sense, the provision might be said to regulate conduct in the health insurance market by requiring individuals to maintain a minimum level of coverage.  However, Congress’s intent and the broader statutory scheme may help to illuminate the class of activities that a provision regulates.  The Act considered as a whole makes clear that Congress was concerned that individuals maintain minimum coverage not as an end in itself, but because of the economic implications on the broader health care market.  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.  Through the practice of self-insuring, individuals make an assessment of their own risk and to what extent they must set aside funds or arrange their affairs to compensate for probable future health care needs.
Thus, set against the Act’s broader statutory scheme, the minimum coverage provision reveals itself as a regulation on the activity of participating in the national market for health care delivery, and specifically the activity of self-insuring for the cost of these services. 

By regulating the practice of self-insuring for the cost of health care delivery, the minimum coverage provision is facially constitutional under the Commerce Clause for two independent reasons.  First, the provision regulates economic activity that Congress had a rational basis to believe has substantial effects on interstate commerce.  In addition, Congress had a rational basis to believe that the provision was essential to its larger economic scheme reforming the interstate markets in health care and health insurance.

Martin also said that, even if the mandate wasn’t economic activity under the Commerce Clause, it would still be constitutional because it’s part of a larger regulatory scheme for interstate health insurance markets.

Martin also shot down the challenge based on the idea that Congress can’t regulate inactivity by fining those that choose not to buy insurance:

Similarly, this Court has also refused to focus on imprecise labels when determining whether a statute falls within Congress’s Commerce Power.  For example, we rejected the argument that the Child Support Recovery Act is unconstitutional because it regulates an individual’s failure to place an item in commerce.  Instead, we held that Congress had a rational basis for concluding that a non-custodial spouse’s failure to send court-ordered child support payments across state lines substantially affects interstate commerce. Here, too, the constitutionality of the minimum coverage provision cannot be resolved with a myopic focus on a malleable
label.  Congress had a rational basis for concluding that the practice of self-insuring for the cost of health care has a substantial effect on interstate commerce, and that the minimum coverage provision is an essential part of a broader economic scheme.  Thus, the provision is constitutional notwithstanding the fact that it could be
labeled as regulating inactivity.

Graham dissented from Martin’s Commerce Clause analysis, arguing the law doesn’t regulate “the commercial activity of obtaining health care,” but “the status of remaining uninsured.” His dissent ends like many do, with the slippery slope argument.

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be.  What aspect of human activity would escape federal power?  The ultimate issue in this case is this: Does the notion of federalism still have vitality?  To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. …  Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people.  A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

MSC revamps jury rules

Beginning Sept. 1, juries can become more actively involved in the trial process under a wholesale revision of jury rules approved by the Michigan Supreme Court.

The changes will give “jurors the tools they need for their very demanding job: seeking the truth,” said Chief Justice Robert P. Young, Jr.

Some procedures, such as providing a jury with preliminary instructions before the trial begins, are required. Other procedures, such as juror note-taking and submitting questions through the judge, are left to the trial judge’s discretion.

According to a statement the Court released with its order that adopted the rule changes:

• Jurors can, with the judge’s permission, submit questions to witnesses through the judge. Criminal procedure rules already contained such a provision, but the new rule includes jurors in civil cases as well.
• Jurors can, if permitted by the judge, take notes during trial and use those notes during the jury’s deliberations.
• The jury can request to view “property or … a place where a material event [such as a crime scene] occurred.”
• In civil cases, the judge “may instruct the jurors that they are permitted to discuss the evidence among themselves in the jury room during trial recesses,” as long as all jurors are present.
• After the jury is sworn, the judge “shall provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case,” covering “the duties of the jury, trial, procedure, and the law applicable to the case ….” The rule also requires the court to give jurors copies of the instructions.
• The judge may “authorize or require” attorneys to provide jurors with “a reference document or notebook,” which would include a list of witnesses, relevant provisions in statutes, and copies of any documents at issue, such as a contract. Other items, such as preliminary jury instructions, trial exhibits, “and other admissible information,” can also be added to the notebook.
• The judge may require attorneys to prepare “concise, written summaries of depositions” for the jury instead of having the full deposition read aloud. In addition to making opening and closing statements, attorneys may, “in the court’s discretion, present interim commentary at appropriate junctures of the trial.”
• The Court can schedule expert testimony to assist jurors’ understanding of the issues – for example, by having expert witnesses testify sequentially. Another option is to allow each expert to be present for the opposing expert’s testimony, so that the expert can “aid counsel in formulating questions to be asked of the testifying expert on cross-examination.”
• Judges may “fairly and impartially sum up the evidence” after closing arguments, while also reminding jurors that they must decide fact issues for themselves. The rule bars judges from commenting on a witness’s credibility or stating a conclusion “on the ultimate issue of fact before the jury.”
• Judges are required to give the jury a copy of the final jury instructions to take into the jury room for final deliberations. In addition, judges must invite jurors to ask any questions they may have to clarify the instructions. In addition to jurors’ notes and final jury instructions, the judge “may permit the jurors to take into the jury room the reference document … as well as any exhibits and writings admitted into evidence.”
• The judge “may not refuse a reasonable request” from jurors to review evidence or testimony as they deliberate.
• If the jury appears to reach an impasse during deliberations, the judge “may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.”

Justice Diane M. Hathaway dissented. She acknowledged that expanded juror note-taking and giving jurors the ability to ask questions during trial, “if properly used, have a valid place in our judicial system.”

However, she said, the new rules

contain multiple procedures that are highly controversial and are likely to prove problematic, particularly when litigants are forced to use them by a trial judge. The new rules include controversial procedures such as using deposition summaries in lieu of testimony, interim jury deliberations, and interim commentary by attorneys.

Hathaway also complained that there was insufficient information collected from the courts participating in the pilot program to make an informed decision about some the changes and procedures adopted.

The new rules were adopted after a two-year pilot program in 12 courts.

According to the MSC, 91 percent of jurors surveyed in the pilot programs “agreed that being able to discuss the evidence before final deliberations helped them understand the case, focus on and recall the evidence, and reach a correct verdict.”

The court rules affected by the changes are MCR 2.512, 2.513, 2.514, 2.515, 2.516 and 6.414.

The MSC will review the revisions in 2014.

AG: No marijuana growers’ cooperatives

Michigan Attorney General Bill Schuette has taken a narrow view of how marijuana can be legally cultivated under the Michigan Medical Marihuana Act.

The act authorizes licensed caregivers to grow up to 12 plants for each of five patients.

Schuette has issued Opinion 7259, which states:

The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, prohibits the joint cooperative cultivation or sharing of marihuana plants because each patient’s plants must be grown and maintained in a separate enclosed, locked facility that is only accessible to the registered patient or the patient’s registered primary caregiver.

Schuette’s opinion was issued in connection with Rep. John Walsh’s (R-Livonia) announcement of a package of bills “that will ensure public safety by clarifying the many ambiguities in the Medical Marihuana Act.”

All of this comes on the heels of the Michigan Supreme Court’s decision to take up several issues regarding affirmative defenses provided by the MMA. See “MSC will hear medical marijuana appeals.”

MSC: McCormick lives, for now

In our current issue, we have a 25-year retrospective look at the Michigan No-fault Act, a large part of which was dedicated to the instability in third-party injury threshold. All of the attorneys we spoke with mentioned the instability as being severely detrimental. Some questioned, considering the reemergence of Republican control over the Michigan Supreme Court, whether another change would be coming.

This morning, in an order denying leave to hear Wiedyk v. Poisson and Brown v. Blouir the Court declined to consider whether its 2010 decision in McCormick v. Carrier, which ushered in the most recent change in the threshold inquiry, was correctly decided.

In a concurring opinion, Chief Justice Robert P. Young Jr. seemed to acknowledge the futility in playing legal tennis with the threshold inquiry and asked the Legislature to choose between McCormick and its predecessor, Kreiner v. Fischer.

We have reached the point again where the Legislature must speak if it wishes to preserve the no-fault act’s  compromise between the provision of quick, generous insurance benefits without proof of fault and the act’s restrictions on access to additional tort recovery.  No one actually attempts  to justify having both the most generous automobile insurance benefits in the nation  and a tort system where virtually any auto injury would satisfy the noneconomic damages exception to no-fault.  Yet, while Kreiner v. Fischer  preserved that distinction, McCormick v Carrier ignored and eliminated it.

Even though I joined and continue to subscribe to Justice MARKMAN’s dissenting opinion in McCormick, I concur in this Court’s decision to deny defendant’s motion for
reconsideration from our order remanding this case in light of McCormick, wherein defendant asks this Court to reconsider whether McCormick was correctly decided.

Young compared the current situation to those of the mid-1990s, when the Court’s decision in DiFranco v. Pickard led the Legislature to pass a law to codify DiFranco’s predecessor, Cassidy v. McGovern.

It is a particularly unfortunate development when the Legislature must act to countermand a decision of the Supreme Court where this Court refused to enforce the unambiguous language used in the no-fault statute after a  prior corrective legislative amendment.  The deconstruction of the Legislature’s work product that took place in McCormick is strikingly similar to the deconstruction DiFranco achieved in the past that also necessitated a legislative correction.  Demonstrating that history truly does repeat itself, I find it difficult to improve on what this Court stated nearly 30 years ago: “If every
case is subject to the potential of litigation  on the question of noneconomic loss, for which recovery is still predicated on negligence, perhaps little has been gained by granting benefits for economic loss without regard to fault.”

Justice Stephen J. Markman concurred, essentially saying that now is not the time to reconsider McCormick, thus leaving open the idea that it might not be the case in the future.

Justice Michael F. Cavanagh also concurred, arguing that McCormick shouldn’t be reconsidered because it was correctly decided. This shouldn’t surprise anyone considering Cavanagh wrote the McCormick decision.

Are Michigan’s improved parole numbers an illusion?

Per The Detroit News, some critics allege Michigan’s improved parole system may simply be the result of creative statistics.

Michigan’s Prisoner Re-entry Initiative has won national acclaim for helping ex-convicts stay out of trouble, but critics say the state is undercounting lapsed parolees to make the program appear more successful than it is.

The criticism comes amid an audit of the 6-year-old Department of Corrections program that found other shortcomings, including overcharging vendors for services and allowing conflicts of interest between contractors and subcontractors.

Jim Chihak, a former parole and probation officer who was part of a panel that evaluated the program this spring, said the program’s intent — to keep prisoners from returning to prison — is admirable, but “the way it’s being handled is a disaster.”

“If you worked in a bank that was wasting money and not monitoring where it was going, why would you keep putting money into it?” said Chihak, a Marquette County commissioner.

According to the story, statistics show a marked improvement in parollee recidivism, but parole officers say many parollees are in fact being hidden from the statistics by being herded into alternative programs, house arrest and in county jails rather than being returned to prison.

Michigan has created a “straddle cell” category in which repeat offenders might get GPS tethers and treatment or counseling to help them get their lives on track rather than be put back behind bars. About 43 percent of offenders in Michigan fall into that classification.

Critics are so flustered they’re hurling such well known legal terminology as “malarkey.”

They were not considered repeat offenders, even though they had committed a crime,” Hankey said.Corrections Department spokesman Russell Marlan calls the idea that the state is misrepresenting the numbers “malarkey.” “People who violate the law go back to prison,” he said.

Marlan confirmed parolees who do not go back to prison are not counted as recidivists, but added “judges have discretion in Michigan and may consider alternative sentences (to prison).”

MSC will hear medical marijuana appeals

Portions of Michigan’s medical marijuana law will be tested for the first time in the Michigan Supreme Court.

The MSC has granted leave in two cases, People v. King (COA majority opinion) (COA dissent) (MSC grant order), and People v. Kolanek (COA opinion) (MSC grant orders – 142712 and 142695).

In King, the defendant had a valid medical marijuana card and a statutorily approved amount of marijuana but was charged with manufacturing marijuana on the theory that he was not growing it in an “enclosed, locked facility.”

In Kolanek, the defendant was arrested for a marijuana offense, and then obtained a doctor’s authorization for a medical marijuana card. The doctor testified that Kolanek would have qualified for a card before his arrest. The defendant also had a discussion with the doctor about whether marijuana would be an appropriate treatment for him but this discussion took place before the medical marijuana act became law.

The Court will decide whether the act’s affirmative defense are available to these defendants.

A third medical marijuana case, People v. Walburg, was held in abeyance pending the outcomes in King and Kolanek.

‘Get that suit out of here!’ says NBA owner

Last May, following another playoff disappointment, a minority owner of the Dallas Mavericks had filed a lawsuit to remove majority owner Mark Cuban as controlling owner, alleging Cuban had run the team into the ground. In particular, the suit alleged Cuban had made “a litany of questionable business, financial and personnel decisions.” (But enough about Erick Dampier!)

Of course, last week Cuban’s Mavericks won their first ever NBA championship, beating the favored and much hyped Miami Heat in six games.

So today, Cuban’s management company, appropriately named Radical Mavericks Management, LLC, filed a motion for summary judgment, and it’s loaded with new evidence.

View this document on Scribd

[Scribd via Dallas Observer]

That’s pretty compelling evidence, I’d say.

New law overrides effects of Woodman v. Kera (Bounce Party)

LANSING, Mich. – Gov. Rick Snyder today signed legislation allowing parents to waive their right to sue if their child is injured while playing organized sports or participating in other recreational activities.

House Bill 4231, sponsored by state Rep. John Walsh, is needed because the Michigan Court of Appeals recently ruled that current state law does not allow parents to give up the right to sue on behalf of an injured child, even if a parent signed a liability waiver.  In making the ruling, the court asked lawmakers to address the issue with legislation.

“When parents give their children permission to play organized sports, they understand that there is an inherent risk involved.  Without this protection, community organizations and coaches have no way of defending themselves from lawsuits that may results from normal activity,” the governor said.

A parent who signs a liability waiver may still sue for negligence.

H.B. 4231 is now Public Act 61 of 2011.

Source: Governor Snyder’s office

6th Circuit nixes Western District’s early plea ‘incentive’

Eleventh-hour guilty pleas are a fact of life in the criminal justice system.

On the defense side, waiting is a good strategy. You might get a better offer from the government. Favorable evidence may surface. Witnesses may get cold feet.

On the prosecution side, a last-minute plea means months of marshaling evidence and witnesses are all for naught.

And judges dislike reshuffling their calendars on a moment’s notice.

The Western District of Michigan, up until a few days ago, had a policy to discourage all of this.

The policy was typified in a final pretrial and trial order Judge Robert J. Jonker issued in United States v. Mackety:

A defendant who waits until the time set for the final pretrial conference to plead guilty may not receive the one-level reduction in offense level described in U.S.S.G. § 3E1.1(b), even if the government is prepared to move for it.

In other words, even if a defendant accepts responsibility for his wrongdoing, and even if the government agrees that the defendant’s contrition is sincere and his assistance to avoid trial was helpful, the defendant won’t get a break on his sentencing guidelines score to which he might otherwise be entitled.

This is not a good policy, no matter what the motivation, ruled the 6th Circuit after Mackety challenged his sentence following his plea-based conviction.

The record supports the argument that the district court’s policy influenced the Government not to move for a § 3E1.1(b) reduction and, in doing so, usurped the Government’s discretion to move for the § 3E1.1(b) reduction. …

[T]he Government stated that it had not addressed the § 3E1.1(b) reduction in the Plea Agreement because of the district court’s rule and that it would not oppose a third-level reduction.

A similar understanding of the district court’s policy also affected the Probation Officer’s calculation of the advisory Guidelines range. Specifically, the PSR [presentence report] did not recommend a § 3E1.1(b) reduction because Mackety’s plea was “untimely” under the district courts policy … .

The policy runs afoul of what Congress had in mind when it authorized a break for defendants who accept responsibility:

[T]he Government’s prerogative and discretion to move for the § 3E1.1(b) reduction was affected throughout the proceedings by the district court’s policy, a policy that contravenes the Congressional finding expressly stated in § 3E1.1(b) that “the Government is in the best position to determine whether the defendant has assisted authorities in a manner that avoids preparing for trial.” …

We take this opportunity to advise that such policies should be discontinued immediately because they are inconsistent with Congress’ intent that the Government make the decision whether to move for the additional one-level reduction under § 3E1.1(b).

The 6th Circuit held that Mackety would have to be resentenced because his existing sentence was procedurally unreasonable.

Two judges appointed for Barry County

LANSING — Gov. Rick Snyder announced the appointments of Amy McDowell to the 5th Circuit Court in Barry County and Michael Schipper to the 56-B District Court in Barry County. 

McDowell, of Hastings, fills the vacancy created by the retirement of Judge James H. Fisher effective June 30, and will need to run in November 2012 for the remainder of Fisher’s term ending Dec. 31, 2014.

She spent five and a half years with the Barry County Prosecutor’s Office before entering private practice in 2001. She founded the law firm McPhillips and McDowell in 2003.  

Schipper, of Middleville, fills the vacancy created by the retirement of Judge Gary R. Holman and will serve the remainder of Holman’s term through Jan. 1, 2013.

He began his law practice with the Grand Rapids law firm Clary Nantz before joining the U.S. Attorney’s Office in 1990, where he worked for 20 years with the civil and criminal divisions. He has most recently served as director of compliance for A.D. Maxim & Associates, a health care consulting firm.

Source: State of Michigan