The Affordable Care Act requires for-profit corporations to provide contraception coverage in the health insurance plans they offer. The Obama administration has exempted certain Catholic and other religious groups from the rule.
The case joins challenges by Hobby Lobby and Conestoga Wood Specialities Corp, a business owned by Pennsylvania Mennonites.
At issue is the Religious Freedom Restoration Act, which keeps the government from imposing on a person's exercise of religion. In ruling for Hobby Lobby, the 10th Circuit Court of Appeals said that corporations fit the definition of a "person" under the law. Based on the Citizens United decision, the odds of the Supreme Court agreeing seem high.
In court papers, Solicitor General Donald Verrilli said such a decision "would transform RFRA from a shield for individuals and religious institutions into a sword used to deny employees of for-profit commercial enterprises the benefits and protections of generally applicable laws.”
A law professor writes in an op-ed in the New York Times today about a potentially stronger approach to challenge the proliferation of laws, including voter ID, being passed by Republican legislatures to suppress Democratic-leaning voters. The laws have a disparate impact on black people, which is the point.
But the Supreme Court has indicated in a ruling that cleared the way for vote suppression laws and also in many other areas, that the conservative majority doesn't have much sympathy with legal arguments based on racial discrimination. We are post-racial in America today. Just ask Samuel Alito, Antonin Scalia, John Roberts, Clarence Thomas and Anthony Kennedy.
But Richard Hasen writes that the laws are also written with partisan intent and this notion, combined with the general restrictions they bring to the right to vote, are potentially winning legal arguments. He notes Texas' bald justification of its vote suppression laws:
Says Texas: “It is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates.”
Leaving aside that whopper — laws that dilute black and Hispanic voting power have more than an “incidental” impact — the statement, part of a court filing in August, was pretty brazen. Minority voters, in Texas and elsewhere, tend to support Democrats. So Republican officials, especially but not only in the South, want to reduce early voting; impose voter-identification requirements; restrict voter registration; and, critically, draw districts either to crowd as many minority voters into as few districts as possible, or dilute concentrations of minority voters by dispersing them into as many white-controlled districts as possible.
Hasen cites examples in other states. He says that it should be easy, not hard, for all eligible people to register and to vote. The Republican states say they've done so to prevent fraud. He comments
Federal judges should see through these cynical pretexts. They should hold that when a state passes a law that burdens voters, it must demonstrate, with credible evidence, that the burdens are justified by a good reason and that the laws are tailored to their intended purpose. When North Carolina says it needs a strict voter-ID law to prevent fraud, courts should be skeptical, both because such laws haven’t been found to stop much impersonation fraud (there isn’t a lot) and because the same law eased absentee voting, which increases the risk of fraud.
Arkansas is front-and-center in discouraging voting and also discouraging participation in the initiative and referendum process. A lawsuit is currently underway — sponsored by the Arkansas Public Law Center and the ACLU — to challenge the limits placed on petitioners. Arkansas has a strong Constitution that should prohibit limitations meant to discourage grassroots efforts. The Public Law Center and ACLU also are at work on a lawsuit challenging the new voter restrictions. The Constitution couldn't be clearer that the legislature is barred from placing additional restrictions on the franchise. If Republicans are to argue these restrictions are a vital and permissible extension of the state's regulatory power, it must prove that it is necessary. There is no such proof.
Federal Judge Bill Wilson today denied an injunction for Dr. Lonnie Joseph Parker, a Hope physician targeted by a new state law prohibiting participation in the Medicaid program by a sex offender.
Parker was convicted of possession of child pornography in a case Mara Leveritt has written about extensively. He's proclaimed his innocence throughout unsuccessful appeals and a 57-month prison sentence. Despite his record, the state Medical Board licensed him to practice and he has done so for several years. A large portion of his practice consists of Medicaid patients. Legislative Audit targeted Parker in a specially requested report as a recipient of Medicaid. Sen. David Sanders soon followed up with a law to prohibit Medicaid participation by sex offenders. That law affected one person — Parker. He and two of his patients sued the state to stop enforcement of the law.
Judge Wilson restated the graphic nature of the photos Parker had been convicted of possessing and rejected his continued plea of innocence "out of hand." He rejected, too, the argument that the law amounted to ex post facto punishment because it didn't deprive Parker of employment in general and is relevant to the state's police power. He said the law requiring Medicaid recipients to have free choice of providers referred to "qualified" providers and that the state can properly make that determination.
Wilson noted the absence of further complaints about Wilson, who's been practicing since 2006 and making about $75,000 a year from Medicaid payments, but commented:
While the probability of a non-contact sex offender committing a sexual-contact crime may be low, an appreciable chance of exposing a child of tender years to sexual abuse outweighs any financial harms or inconvenience Act 1504 may cause. I am going to err, if I am going to err at all, on the side of the children of tender years.
Because State authorities have classified Parker as a Level 1 sex offender and have given him a license to practice medicine, at first blush, it appears that a federal district judge should defer to state authorities, which is the usual practice. After considerable reflection, however, I cannot agree with this classification. The nature of some of his child pornographic photos (described above) and the fact that he would be working with young children if his motion were granted is too strong for me.
Here's Wilson's order.
Parker's lawyer, John Hardy, said he was surprised by the ruling and said he would prepare for a final hearing on the case with a fuller presentation of evidence that he says lends credence to Parker's claim that he was wrongly convicted.
Carl Tobias, a law professor at the University of Richmond who follows the federal judiciary, sends word that the Senate Judiciary Committee this morning approved the nomination of Circuit Judge Jay Moody to a seat on the federal bench in Little Rock. Approval came by voice vote without debate, which Tobias says means Moody should be easily confirmed. The question is when. Floor votes are complicated by other Senate disputes. Tobias guesses early next year.
The vote is critical in positioning among candidates for the circuit court bench. If Moody is confirmed in time, a vacancy in his existing state judgeship could create an additional option for a couple of candidates who otherwise might face each other for the one judgeship currently on the ballot.
Gabriel Coker sued the Arkansas State Police and Trooper Brad Cartwright. He claimed that Cartwright used excessive force by hitting Coker's motorcycle with his car, kicking Coker in the face, and breaking bones in Coker's face by hitting with a flashlight.
The 8th Circuit said the district court correctly found that the State Police was immune from suit under the 11th Amendment's grant of sovereign immunity and no injunctive relief could be ordered against Cartwright in his official capacity.
But, the court said, "Coker does, however, present several genuine disputes of material fact regarding Cartwright's conduct that, if true, preclude a grant of qualified immunity."
The chase occurred in February 2009 after Cartwright clocked Coker at 102 mph on divided Highway 67-167. He said the chase reached speeds of 150 mph. The action being challenged mostly occurred out of view of the trooper's dash camera, after the chase ended. Cartwright said he used only the force necessary to make an arrest of a resisting suspect and that, if he struck Coker with a flashlight, it was inadvertent. Coker alleged that he was compliant and beaten after lying down to submit to arrest. Said the opinion:
When drawing all reasonable inferences in the light most favorable to Coker, we cannot conclude that Cartwright's use of force once out of view of the dash camera was objectively reasonable as a matter of law. Rather, a reasonable jury could find that the severity of Coker's injuries demonstrates excessive force, particularly Cartwright's decision to strike Coker using a metal flashlight after Coker was already on the ground and allegedly complying with Cartwright's demands. ... Without the aid of video or an understandable audio recording, it is impossible to determine what happened that night after Coker ran out of view of the camera without weighing Cartwright's version of events against Coker's story. Making credibility determinations or weighing evidence in this manner is improper at the summary judgment stage, and "it is not our function to remove the credibility assessment from the jury."
The 8th U.S. Circuit Court of Appealstoday upheld a district court judge's dismissal of Circuit Judge L.T. Simes lawsuit against the Arkansas Judicial Discipline and Disability Commission on one of the occasions it ultimately disciplined him for misconduct.
The 8th Circuit said the lower court opinion against the Phillips County judge, who was suspended once for ethical breaches, was "well-reasoned" and it affirmed it. Among other things, he continued in private business, made personal solictations for campaign contributions and appeared in judicial robes on a gospel CD cover. Simes contended he was targeted on account of his race.
The opinion sharply rejects every argument raised, including that he faced potential future disciplinary actions.
Simes offers no reason to expect the commission (now chaired by the Honorable Joyce Williams Warren, “the first black female judge in Arkansas” ) will target Simes on the basis of race. Nor is there reason to think such an implausible action by the commission would evade Arkansas and Supreme Court judicial review.
To think otherwise would require us to assume (1) judicial complaints will be filed against Simes, (2) the commission’s executive director—now no longer Stewart—will decide to pursue at least one of those complaints, (3) the executive
director will do so on the basis of Simes’ race, (4) the commission will determine further action is warranted, (5) the commission will make that determination on the basis of Simes’ race, (6) the commission will recommend sanctions against Simes, (7) the commission will make that recommendation on the basis of Simes’ race, and (8) the Arkansas Supreme Court will accept that recommendation. Although Simes’past behavior might suggest new complaints against him are possible, the remaining assumptions are several “steps removed from reality”—“so remote and speculative that . . . there [is] a want of a subject matter on which any judgment of this Court could operate.”
Simes is embroiled in another legal dispute before the Arkansas Supreme Court, a murder case in which he's taken th unprecedented step of disqualifying a prosecutor and appointing one himself to prosecute a case the regular prosecutor wants to nolle prosse for lack of evidence.
* DEATH ROW: The court said Judge Barry Sims should have held a hearing and not summarily dismissed a petition for post-conviction relief by Andrew Engram, sentenced to die for the 1999 rape and slaying of a Sears security guard in North Little Rock. He wanted to raise issues about ineffective counsel and his mental retardation. The court said he should get a hearing on his argument that he had a good reason for filing a belated appeal.
* EVIDENCE REINSTATED: The court, with two justices dissenting, reversedCircuit Judge Wendell Griffen's suppression of evidence — including a baseball cap, rifle and ammunition — gathered in a search of the home of Kendrick Robinson, a suspect in a gas station obbery. Robinson argued that Sherwood police weren't authorized to make the search because his home was in North Little Rock. The court said it was not unreasonable for a Sherwood office to execute a search authorized by a district court with countywide jurisdiction and interagency approval was not required.
Carl Tobias at the University of Richmond, a law professor who monitors the judicial selection process closely, sends word that Timothy Brooks of Fayetteville was approved by a voice vote today by the Senate Judiciary Committee for a federal judgeship in the western district of Arkansas. A couple of nominees were opposed by Republican members in roll call votes. His confirmation by the Senate is expected to be non-controversial, though the Senate could be gummed up by unrelated issues.
* LITTLE ROCK IN COURT II: Federal Judge Brian Miller yesterday dismissed Police Chief Stuart Thomas and the police from a lawsuit over the shooting death of an elderly man in his apartment after police officers, Tabitha McCrillis and Donna Lesher, working off-duty security entered the apartment to check on him. The suit against the officers was allowed to go to trial. I've asked City Attorney Tom Carpenter why the city is continuing to represent the officers and asserting an immunity claim for them in private off-duty work. in appealing the order keeping them in the case along with the apartment complex owner who hired them. Here's Miller's order Here's Carpenter's response on continued defense of the officers in a private job:
While they were off-duty, they could not work the job without our permission, and only subject to our policies. They are never employees of the entity, but always LRPD. They are subject to discipline, and we have found out they are subject to our workers comoros and several other things.
So, if something happens off duty in police related work, and we find they acted in accordance with our policies, we defend them and AML basically covers them.
* STATE IN COURT: Federal Judge Billy Roy Wilson has informed parties in a case over a state law that prevents a Hope doctor from the Medicaid program that he'd been working daily on a request for a temporary injunction against the law. He wrote that he'd hoped to rule in the week just ended, but said, "I will enter the order as soon as I can be satisfied with what I should rule." The lawsuit is by Dr. Lonnie Joseph Parker. He was singled out by the legislature for loss of a significant part of his practice serving Medicaid patients because he served a federal sentence for possession of child pornography. The state Medical Board approved his ability to enter a full medical practice.
* MARRIAGE EQUALITY/ANOTHER SETBACK: The attorney general yesterday again rejected the form of one of the proposals circulating to undo the state constitutional ban on same-sex marriage or civil union.
* A CONSERVATIVE PUSH FOR IMMIGRATION LAW: The New York Times reports here on a Washington lobbying push by conservatives and evangelicals for immigration reform legislation, including some compassion for illegal students. It highlights a Republican Party rift on the subject, with opponents in the House likely strong enough to kill any reform legislation for at least another year.
Some Arkansans are participating in the push, including state Rep. Mark Lowery of Maumelle, representatives of the Little Rock and Arkansas chambers of commerce and Mike Roberts, a member of the Arkansas Economic Development Commission.
A criminal justice reform group, the Center for Prosecutor Integrity, says it will be monitoring the hearing next Monday in Little River County on allegations of prosecutorial misconduct in the 1999 murder case that sent Timothy Howard to Death Row in the slayings of Brian and Shannon Day.
The Arkansas Supreme Court ordered the hearing after finding merit in Howard's argument about problems with DNA analysis that had been concealed from the defense.
Mara plans to cover the hearing. Among other criminal justice issues she's advocated over the years is creating a permanent video record of suspect interviews and court proceedings. As we know now, the decision of a circuit judge to allow filming of the West Memphis Three murder trial provided valuable footage in the eventually successful fight to free the men convicted.
Leveritt had asked for permission to make a video record of Howard's hearing. His attorney, Patrick Benca, agreed. The prosecutor, Bryan Chesshir of Nashville objected. (Chessir was not the original prosecutor.)
The reform group's news release on the case follows:
Circuit Judge Wendell Griffen has recused from hearing the lawsuit challenging the new state law that imposes additional burdens on petition campaigns for initiatives and referendums. He said he'd worked with one of the plaintiffs, Neil Sealy, on social justice initiatives. (Just last week, they participated in a group that visited U.S. Rep. Tim Griffin's office to encourage to stop backing the government shutdown as he tried to kill the Affordable Care Act.)
When the United States Court of Appeals for the 7th Circuit in Chicago issued a critical 2007 ruling defending the constitutionality of Voter ID laws, Judge Richard Posner authored the decision.
The arguments Judge Posner made for upholding Indiana's Voter ID law framed out some of the essential underpinnings for the 2008 determination of the US Supreme Court — in the case of Crawford v. Marion County Election Board — that has since served as a justification for the enactment of ever harsher laws in states across the country.
... So it should count for something that Judge Posner now says that he was mistaken in his 2007 decision.
Indeed, the judge's rethink ought to inspire a national rethink — about not just Voter ID laws but the broader issue of voter rights.
I'm afraid this is in the crying-over-spilled-milk category. Though perhaps the U.S. Supreme Court will take judicial notice of Posner's change of heart, as the originalists are sometimes prone to do when it suits their purposes.
In a new book, Posner writes that it's now generally accepted that the rash of Voter ID laws — in Arkansas and many other states— are Republican vote suppression tools.
The Arkansas Supreme Court today reversed a lower court and said a lawsuit by the remote Deer-Mount Judea School District should not be dismissed. The tiny mountain school district contends that the state funding formula is inadequate and unequal, particular when it comes to a remote district where students must travel long distances.
The Supreme Court accepted the district's argument that the legislature has a continuing responsibility to review compliance with the Lakeview school funding case and that the district was entitled to present a case that the legislature's reviews of compliance had been inadequate.
The court said the school district could argue specifically that the state made spending increases based on available funds, not the amount needed for an equal and adequate education; that the state had no rational basis for how it computed transportation funding; that the state had provided inadequate support for construction. The court did say that Deer-Mount Judea's argument about isolated school funding had already been addressed by the Supreme Court and that it was precluded from challenging the use of money given to school districts based on the number of poor students (as measure by subsidized lunch enrollment). It also rejected a challenge to state implementation of professional development.
The majority opinion, written by Justice Karen Baker, said it must treat the undecided questions as true for purposes of keeping the suit alive and the lower court had abused discretion by dismissing them. The court, however, did uphold Circuit Judge Chris Piazza's dismissal of a substantial amendment complaint with voluminous new allegations.
KATV tonight aired an interview with Kenneth Norman, a juror in last week's manslaughter trial of former cop Josh Hastings for the fatal shooting of Bobby Moore III, 15, during his response to a car burglary at an apartment complex last year.
Norman said the jury ultimate deadlocked 11-1 in favor of a not guilty verdict, after splitting 9-3 originally on the first day of deliberation. Additional deliberation couldn't shake the one juror, who favored conviction. I'd heard earlier that a white female juror was a holdout.
Norman said a key was whether the car was moving toward Hastings when he fired. Hastings didn't testify and the defense offered no direct testimony to counter prosecution testimony that the car was stopped or going backward when Hastings fired. But defense attorney Bill James worked on the veracity of Moore's companions that night. The prosecution's failure to call an expert on accident reconstruction who testified in the first trial — holding him for rebuttal to Hastings' expected testimony that never came — might have been important.
"Everybody that voted not guilty, we went around the room and we said, you know, everybody tell why they thought he was not guilty," said Norman. "Every time we did that, [they] would come back and say, ‘Well, I can't see it that a way. I can't see it that way'."
Norman said even in the jury box, the 12 members could feel the emotion surrounding this trial.
"There's people that's grieving because of the murder. Then, there's a guy sitting there that thinks he done the right thing by shooting him," Norman said about the Moore and Hastings families.
"There's quite a bit of emotion going on because, hey...he's had a whole year of this, and we'd like to say he's not guilty."
Hastings first trial, by an all-white jury, ended hung with a vote reportedly 9-3 in favor of conviction. This one, with a jury with two blacks, split 11-1 for acquittal. The outcome followed Judge Wendell Griffen's takeover of jury selection questioning to be sure it wasn't tainted by racial bias. Hastings is white; the victim black. Griffen is also black. A retrial is scheduled May 5.
The New York Times reports today that the U.S. Justice Department will sue to challenge new North Carolina legislation aimed at suppressing the vote of Democratic-friendly voting blocs. The Republicans in control in that state want to discourage early voting (a boon to working people); to make registration drives difficult, and to impose some of the most onerous Voter ID provisions in the country (no college or even state welfare agency IDs will be accepted).
With Republican judges in control of the U.S. Supreme Court, this challenge might prove an uphill battle, even if worth fighting.
On the Arkansas front, the outlook is more promising. A lawsuit is in the works here that will challenge the Republican vote suppression law passed by the 2013 Arkansas legislature on state constitutional grounds. Our foundation document puts clear limits on imposing new bars to voter access. But the lawyers better move fast. Republicans are working hard to pack our Supreme Court with ideologues, too.
I'm told the Arkansas lawsuit could be filed by the end of this week.
Take this with a heaping of salt, but Politico reports on a poll from conservative group Citizens United Political Victory Fund showing Rep. Tom Cotton up 48 percent to 41 percent in his challenge to incumbent Sen. Mark Pryor.
Former Bro. Gov. Mike Huckabee returns to Little Rock on Friday to serve as the keynote speaker at an extremist evangelical conference at the Statehouse Convention Center. Pastors from Iowa and South Carolina plan to meet with Huckabee to talk about him running for president in 2016
Juanita's, the venerable Tex-Mex restaurant and music venue, is leaving the South Main Street location it's called home since 1986 for the River Market and the former home of Bill St., 614 President Clinton Ave.