This is a guest blog post on SCOTUS' historic and extensive judicial review of the health care legislation.  Now that the dust is settling after oral arguments in March, we here at the Law Blogger have enlisted Wayne State University Law Professor Robert Sedler, who teaches Constitutional Law, to provide his expert analysis on this topic.  Professor Sedler has commented widely on this issue currently pending before the U.S. Supreme Court.

The constitutional challenge made to the health care statutes has been to the so-called “individual mandate” in PPACA as being beyond the constitutional power of Congress under the commerce clause. The opponents contend that this provision is unconstitutional and that the rest of the act cannot be severed from this provision, so that the entire Act fails.

The High Court took the unusual step of reserving three days in March for oral arguments in review of the case; normally advocates get an hour to present their arguments and attempt to convince the bench.

Sometimes in oral argument, the position of judges on the issue in question is clear; sometimes it is not; and sometimes, there are surprises both ways.

In the arguments in this case, the questions of six Justices were so one-sided that their position was clear, and this coincided with their ideological disposition.  For example, Justices Scalia and Alito sharply questioned the government's lawyer [the Solicitor General; the petitioner in this case] and either didn't ask questions, or asked only soft questions of the respondents’ lawyers. Justice Thomas never asks questions, but he is certain to vote with Scalia and Alito.

Scalia and Alito made it clear that they consider the individual mandate unconstitutional and are disposed to invalidate the entire law.  Justices Ginsburg, Breyer, Sotomayor and Kagen did just the reverse, strongly questioning the respondents’ lawyers and using the questions to make their points, just as Scalia and Alito did in their questioning of the government's lawyer. The liberal bloc will doubtless vote to uphold the individual mandate.

Justice Roberts was tougher on the Solicitor General, although he asked some questions of the challengers’ lawyers.  For his part, Justice Kennedy asked hard questions of the lawyers on both sides. and, as is so often the case, may be the swing Justice.

The possible outcomes are as follows:

        The individual mandate is constitutional. Kennedy joins the four liberals. Roberts joins the three conservatives in dissent, or may concur with Kennedy to make it 6-3 rather than 5-4.

        Justices Kennedy and Roberts join the three conservatives to hold the individual mandate unconstitutional and that the rest of the act cannot be severed, so that the entire act falls.

        Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that all of the rest of the act is severable. This is what the Eleventh Circuit held.

        Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that the rest of the act can be severed except for the requirement that the insurance companies insure everyone despite a pre-existing condition, and that ratings for individual policies be community wide. This was the government's position.

Predictions as to what the High Court will do - and there have been many- are completely speculative and unnecessary. The Court will decide the case by the end of June, with several of the Justices reading their concurring or dissenting opinions from the bench in the Chamber of the Supreme Court.  At that time, on that date, we will know the fate of the federal health care statutes.

Law Blogger Note:  although the preliminary voting among the Justices in conference took place at the end of March, the Justices sometimes change their minds, and thus their vote.  No one but the Justices themselves attend these case conferences.  Also, leaks among the law clerks and court staffers are  exceedingly rare.  We will all have to stay tuned.

 

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Our good friend and colleague out here in Clarkston, David Shook, provides another bankruptcy-related guest blog post.

Many debtors imagine repo men descending on their homes to loot and pillage their estate seconds after the bankruptcy papers are filed in federal bankruptcy court.

While this makes for great television, the facts could not be further from the truth.  While there are cases where assets need to be sold for the benefit of creditors, there is a process to be followed, and the opportunity for hearing before a judge, prior to the sale of anything in a case.

Debtors are allowed to retain up to fixed amount of value in assets through a process of exemptions, which are written into the Bankruptcy Code.  Exemptions allow for the first dollars of any asset to remain in the debtors possession throughout the bankruptcy process.  If for some reason the Chapter 7 Trustee should choose to sell an asset for the benefit of the creditors (which is very rare) the Debtor would receive the exemption amount from the sale proceeds, prior to creditors seeing a dime.

Keep in mind the system focuses on the debtor’s value in the property, not the value of the asset.  I receive many a creditor phone call to inform me that “Bob” filed bankruptcy, but got to keep his Corvette, ski boat, etc.   If the Corvette is worth $25,000 but subject to a creditor lien of $23,000, Bob has only $2,000 in equity in the car.  Given The Code, allows the debtor an exemption of up to $3,450 in an automobile, there is no benefit to creditors in selling the car.  Thus the bankruptcy Trustee has no interest in the selling the Corvette, if “Bob” continues to pay the creditor on his car loan, he may retain it after bankruptcy.

On the other hand if the Corvette does not have a creditor lien, or the lien is small enough to warrant the sale of the asset, the exemption must be paid to the debtor from the sale proceeds.  In our example the Corvette is worth $25,000, but the creditor lien is only $5,000.   Here the Trustee might very well sell the car, pay off the creditor lien, and all expenses of sale, and retain $18,000.   The Trustee must give the Debtor the exempt amount from the sale proceeds.

While $3,450 might not sound like a good deal, depending on the amount of debt this may be a great deal.  In effect the debtor has traded the Corvette for $3,400 in cash and wiping clean all creditor claims.

If upon review, it is determined a debtor may have assets that cannot normally be retained in bankruptcy, Chapter 13 of the Bankruptcy Code may very well help.  One of the benefits of Chapter 13, which focuses on the repayment of debts over a 3 to 5 year period, is a debtor is allowed to “buy back” assets from the estate. 

In this example the Debtor is allowed to pay creditors the value of the Corvette ($25,000), less the lien and exemption ($5000 + $3,400 = $8,400) over the life of the plan.  Again depending on the amount of debt involved, paying $16,400 over a 36 to 60 month period may very well be a great deal.

So what can you keep in a bankruptcy?  One of the few clear benefits for the debtor in the 2005 bankruptcy reforms relates to retirement accounts. 

The vast majority of tax deferred retirement accounts, IRA’s, 401(k), 403(b), etc., are exempt from the bankruptcy estate.  While the probations against transfers discuss in my last post apply, and it is not advisable to move a $10,000 CD into a IRA on the eve of bankruptcy, normal contributions are exempt regardless of the balance in the account.  A debtor, who puts 6% of his gross pay into a 401(k) or contributes the maximum deductible amount to his IRA each year, has an unlimited exemption in the account.  As I tell clients, the difference between your case, and a case with $100,000 in an IRA, is the money you have after bankruptcy.

I have seen several cases over the years where the Debtor has hundreds of thousands of dollars in an IRA or 401(k).  In one example the Debtor had close to two million dollars in his IRA’s.  All of these funds where retained free of claims by creditors or the Trustee.

For all of the energy invested in wealth retention, the best protection is also the simplest.  Everyone with a paycheck should have some type of retirement account, and deposit as much as possible into the account, up to the deposit limit’s set by the IRS.

Great advice Dave.  Any of our readers with questions are encouraged to contact Mr. Shook for answers.

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Our cell phones have been described as the biographer of our daily lives.  If deconstructed, a cell phone can tell an awful lot about its owner.

Increasingly, cell phone carriers are being subpoenaed in high-conflict, or fault-based divorce cases.  The cell phone records identify the persons with whom an individual communicates throughout the day, and where that communication occurred.

The information contained in cell phones is also important in the law enforcement context.  Formerly reserved for federal agents, local law enforcement is now getting in on this information bonanza thanks to a smorgasboard of services provided by cell phone carriers.

The legal question posed by the practice is whether local police departments must obtain a probable cause-based warrant prior to securing our cell phone information from our carrier.  The answer is unclear.

Recently, SCOTUS decided United States v Jones, requiring a warrant prior to installing a GPS tracking device on a drug suspect's vehicle.  The decision in Jones did not address whether a warrant is needed in the case of obtaining cell phone records; including the geographic information in the now-ubiquitous GPS navigation systems embedded in cell phones.

In addition to geo-tracking data, there is also "cloning": having a cell phone, for example, download [to police] copies of sent and received texts.

This information is deemed so important to law enforcement agencies, some are by-passing the cell phone carriers altogether, purchasing their own cell phone tracking equipment in order to avoid the cost and delay of dealing directly with the various carriers.  In February, police in Grand Rapids, for example, were able to track a cell phone call placed by a stabbing victim who had been secreted away in a basement.

At present, however, there are few guidelines for cell carriers and the disparate local police agencies as to what information can be provided, and what evidentiary standard must be met in such disclosures.

With the SCOTUS decision in Jones less than clear, and with the federal circuit courts of appeal divided on the issue, Congress and the state legislatures are looking at the issue.  Privacy law is going to be a growing branch of our jurisprudence in the next few decades.

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Well, the day is here; or, at least it's getting here.  Lexis/Nexis, the huge legal data base firm [and a charter member of the "Big Data" club], reports that some courts in several Commonwealth countries are allowing alternative service of legal papers via, well, er, Facebook, and other electronic means designed to achieve delivery -in fact- of legal papers.

In the UK, the High Court allowed an injunction to be served via Facebook on an anonymous [and abusive] commenter to Donal Blaney's conservative blog.  Imagine that...

In Australia, a foreclosure notice was ordered to be sent to the delinquent homeowners via Facebook.  Under Canada's rules of alternate service, notice of a claim was sent to the defendant both through his employer, and via Facebook. And in New Zealand, a the initial complaint in a business dispute was allowed to be served on the missing defendant through a company Facebook page.

No reported cases here in the US folks, but it won't be long.  These days, perhaps the most sure-fire way to get someone, at least a person that has a FB account, is by posting on their wall or sending a message.

Texas lawyer John G. Browning addresses the issue in an excellent article published in the Texas Bar Journal.  More on this to come, for sure...

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Waterford Judge Jodi Debbrecht

This is a guest blog post from 51st District Judge Jodi Debbrecht in Waterford, MI. 

Dickie Sanders was a relatively normal teenager – interested in BMX bikes, student, goals, dreams. However, Dickie died from using bath salts.

While at home he had a psychotic episode as a result of using bath salts and was “seeing” fire engines and police cars in multitude arrive at his home.  He was screaming to his father who was in the kitchen of their home with Dickie.

Suddenly, as Dickie was counting cars, he reached down and grabbed a butcher knife and slit his throat open.

Dickie’s parents are both doctors; doctors who knew nothing about Spice, K2 or bath salts. They rushed him to the hospital after triaging him themselves where he was treated and sent home for care.

Less than 24 hours later, while in his bedroom, Dickie suffered another psychotic episode as a result of using bath salts and killed himself.

Many, many more stories just like this one abound.  And many, many stories similar to this one have occurred in our local communities.

Every day in my courtroom, young adults are admitting to using spice/K2, bath salts or other synthetic substances. No matter what you call them, they are killing our youth and the parents who appear to support their children are left with no answers, just left to wonder, what is this stuff?

Spice/K2, bath salts are essentially materials that are infused with chemical compounds that cause hallucinations, erratic behavior, disorientation, nausea, and even death. The symptoms are not limited to these noted here. Spice/K2 and bath salts (or similar substances) are technically illegal in Michigan.  However, they continue to be sold because as soon as the legislature identifies a chemical compound as a controlled substance thereby making it illegal, the individuals making the chemical change the compound.

The new compound is not listed as one that is illegal because it no longer fits the definition as defined in the statute for an illegal substance. Furthermore, Spice/K2 and bath salt use is on the rise because it becomes increasingly difficult to test for, is relatively inexpensive and easily accessible.

An immediate and viable way to stop the use of this new drug is to get people to stop selling it. In order to get people to stop selling it, we must raise awareness of the critical nature of this issue. Together we can stop the use and sale of this insidious substance.

Only together can we win the war against synthetic drugs – or any drugs. Informational meetings are being held throughout your community to provide you with information about this toxic substance.

Get the answers. Get the facts. Get armed to save our youth. Saying I didn’t know will not bring our young adults back from potentially irreparable damage, even death.

For more information, please see the links contained on my website: www.JudgeJodi2012.com.

Thanks Judge Jodi for putting the spotlight on this issue that has cropped-up among our children and their friends.

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Attorney Henry S. Gornbein

This post is from the Huffington Post's Divorce Blog.  The author is Henry S. Gornbein, a colleague of ours from Oakland County that specializes in divorce and family law and a regular contributor to the Huffington Post.  In this post, Henry really captures the critical elements of a good family court judge.

Here is what Henry had to say on the subject:

In over forty years of practicing family law, I have appeared before hundreds of different judges. I have found that some are rude, arrogant, and suffer from what is known as black robe syndrome. This means that they have forgotten -- or never knew -- what it was like to practice law, and have a holier than thou attitude. Most judges are considerate, will listen, and will try to resolve issues in cases.

Here are some of my thoughts on the attributes of a good judge in family law:

1.       A judge should remember that he or she may also be divorced. I have represented judges in their divorces before, and they are human just like everybody else.

2.       A good judge should listen to the arguments of attorneys and show compassion.

3.       A good judge should not lose control of his or her court room.

4.       A judge should not let arguments go on endlessly, and give everyone a chance to speak. The judge should also know when to cut arguments off in court.

5.       A good judge should be fair and not biased.

6.       A good judge should be decisive. One of the most frustrating things for attorneys are judges who will take matters under advisement, or fail to come up with a ruling. People need rulings so that they can go on with their lives. Even if an attorney or client disagrees with the ruling, it is better to have a ruling than not to have any decision made by the court.

7.       Judges should be on time. If court is set for 8:30 or 9:00 a.m., judges should be prompt. One of the most frustrating things for litigants and their attorneys is to sit around for hours on end waiting for a judge who does not start court promptly.

8.      Some judges will refuse to talk to attorneys in chambers about a case. I think that is wrong. I feel very strongly that a meeting with attorneys through a pre-trial, where a judge will listen to some of the key issues and then send a signal, can lead to a settlement. I also believe that a good judge will set up meetings in order to settle cases rather than just saying, "if you can't settle, then call your first witness." Trials should be a last resort, not a first resort. A good judge knows that.

9.       A good judge should always be in control of his or her court room and docket, but also should not be punitive or refuse to allow people to have their day in court. There is an old saying that justice delayed is justice denied. Cases that are set for trial which are continually adjourned because of court docket conflicts or other reasons, help no one. While I believe that there should be reasonable adjournments granted when an attorney requests one, there should not be unlimited adjournments of a hearing or trial of a case.

10.   I have found over the years that if the judge will start a trial, listen to the parties, allow some evidence, and permit the litigants to get whatever he or she has off his or her chest -- the case can often be settled. Getting that day in court, getting a chance to speak and feeling that a litigant is heard can often lead to a resolution of a case without the need to go through an entire trial. I have had judges over the years who would give people a chance to speak in an informal manner, and then get down to try and settle the case. Letting someone be heard, letting someone feel that his or her thoughts and wishes are important, is a good way to lead to a resolution of a case.

11.    A good judge should show respect for the attorneys and for the litigants, and a good judge should expect respect in return.

12.    In our multi-cultural, social and ethnic society, a judge should be sensitive to religious, ethnic, racial, and cultural differences. I have had judges tell me that certain cultures act in certain ways, and allowing these cultural differences to be recognized in a respectful manner can lead to a resolution of a case.

13.    In making a ruling, a good judge should be clear and concise, and explain what he or she is doing and why. Too many times I have had attorneys and litigants walking out of a court room shaking their heads and wondering what the judge did and clearly not understanding what the ruling was based upon. This is not good for anyone.

14.    Last, but not least, just like a good lawyer understands that a trial before a stranger should be the last resort, not the first, a good judge should understand that also. A judge should leave plenty of opportunity for resolution of a case short of trial either through mediation, negotiations or sometimes, arm-twisting by the judge.

Well put Henry; we could not have stated the matter any better.  Clearly, four-decades of practicing family law has given you some very valuable insight.  Thanks for sharing your thougts.

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