G-LtE™: Challenges in Public Education
As the new President of the board of Education in a State intervened county school system, I wish to share some thoughts on the state of our public schools and on some of the challenges we face now and in the years ahead.
The dynamics of any school system are extremely complex with many constituencies involved and many policy and legal constraints. You have probably noted in recent news releases that West Virginia has one of the most regulated and constrained public school systems in the country. With all the complexities in place plus the need to reach the students with the best educational experience we can provide, under the best circumstances we remain challenged to fulfill the needs of our public schools.
Hopefully, most of Gilmer County’s major issues will be identified and resolved in the near future. In the State’s Audit Report which triggered state intervention there were several citations which the state-appointed Superintendent is in the process of addressing. Additionally, the State Board of Education is looking to approve an Exit Management Plan for all intervened counties which will help clarify tasks which need to be completed for both the state and the counties involved. Perhaps Gilmer County will have part of its governance restored in the near future and we can get on with the business of administering our schools.
As a new President, I am committed to the need to move forward to provide a quality educational experience for the -students in the county. To do this, a vision for the future of our schools needs to be formulated, agreed upon, and understood by school officials and the general public. Better communication is an essential element in this important process. Superintendent Blankenship and I agree that we should hold town hall Board meetings in different locations in the county to let the public hear from the Board and the Board hear from the public. Quite often the information that circulates is the result of rumor, speculation and erroneous assumptions. It is not always possible to keep everyone accurately informed, but this Board will strive to have transparency with the public on school matters.
Our most immediate challenges involve getting governance of our schools back to the County Board of Education. We will work with the State Department of Education and the State Board of Education to accomplish this as expeditiously as possible. Also, we have a time line until November 01, 2012 to select the most suitable site for a new elementary school which will house approximately 400 students. While not a certainty, we will work with the School Building Authority to see if a health clinic could be a part of this project. The other facilities related issue is the inter-county school to be built at a Linn site. It is obvious that new governance procedures need to be placed in West Virginia code to make a fair and equal partnership of inter-county and multi-county schools. Before the new school opens at Linn, officials of Lewis and Gilmer County will need to agree on a new set of provisions.
As I am sure you are aware, public school systems across the country are facing financial challenges. In California systems are closing schools, consolidating schools and cutting up to twenty days off the school year. While the situation is not as grave in West Virginia, we are not exempt from the need to develop strategies to live within our budgets. Because of the loss of population in several rural counties in West Virginia there are school closures, school consolidations and reductions in staff under consideration. For example, the Harrison County Board while located in a fairly strong and healthy appearing economy is dealing with some of these difficult decisions.
Rural counties in our state have some of the most difficult challenges in dealing with lost student population. Here in Gilmer County we have lost significant student population over the last ten or so years. The geography of the county, however, remains the same. With the diminished numbers and shrinking funds, hard decisions are brought to those who have to manage this kind of situation. The Legislature has given counties like Gilmer a floor in student funding to allow time for the counties to develop management strategies to operate within the average funding levels for public schools throughout the state. While Gilmer County has approximately 931 students, we receive funding for 1400. With the financial challenges the state is facing they cannot continue this type of subsidy and therefore have notified counties that there will be a phase-out of these extra dollars over the next three or four years.
What does this mean for Gilmer County? It means that a plan has to be implemented to manage our schools with the funding generated by actual student enrollment in the near future. Not all schools can remain and streamlining must occur all around.
It will be imperative that the Board of Education, the Superintendent and the State Board of Education be totally transparent and forthright with parents, taxpayers and the general public as we all work through this necessary transition.
As counties face financial problems, there is also the need to be mindful of the need to improve qualifications of teaching and administrative personnel and raise our academic expectations for students as well.
Like growing a garden or creating a new structure the transition will not happen overnight. Gilmer County will get our facilities issues in order, our County back from the State and create a plan for the future and ultimately emerge with an improved educational program for our students. I encourage your support and participation as we move forward.
William K. Simmons
G-otcha™: Sutton Man Sentenced for Federal Supervised Release and Probation Violations
JEREMY DEAL, age 33, of Sutton, West Virginia, was sentenced on July 03, 2012, to 6 months imprisonment for possession and use of a controlled substance; failure to follow instructions of probation officer; and, associating with individuals engaged in criminal activity.
DEAL was originally sentenced on August 18, 2010, to 14 months imprisonment and two years of supervised release for providing a False Declaration Before a Grand Jury.
DEAL was remanded to the custody of the United States Marshal pending designation to a Federal institution.
G-otcha™: Three FCI-Gilmer Federal Inmates Enter Pleas and are Sentenced in Federal Court
Three FCI Gilmer inmates entered pleas of guilty and were sentenced on July 31, 2012, in United States District Court in Clarksburg before Judge Irene M. Keeley.
• CESAR LEDESMA-CARRILLO, age 34, entered a plea of guilty to Assault of an Inmate with Dangerous Weapons with Intent to do Bodily Harm on February 08, 2011, when LEDESMA-CARRILLO beat his cellmate with combination locks inflicting several lacerations to the victim’s head.
LEDESMA-CARRILLO was sentenced to 24 months imprisonment to be served consecutively with is current 75-month sentence.
• OREANDA HALL, age 38, entered a plea of guilty to Possession of Marijuana on December 17, 2011, at FCI Gilmer.
HUNT was sentenced to 4 months imprisonment to be served consecutively with his current 360-month sentence.
• ADAM ORTIZ, age 35, entered a plea of guilty to Possession of Marijuana on November 12, 2011, at FCI Gilmer.
ORTIZ was sentenced to 4 months imprisonment to be served consecutively with his current 96-month sentence.
These cases were prosecuted by Assistant United States Attorney Brandon S. Flower and investigated by the Federal Bureau of Investigation and the Special Investigative Services at FCI Gilmer.
WV Election Officials Defend PAC Contribution Cap
West Virginia’s elections chief is urging a federal judge against striking down one of the state’s campaign contribution limits.
Secretary of State Natalie Tennant is defending the $1,000 cap on contributions to independent-expenditure political action committees.
Stay the Course West Virginia is such a PAC. It has sued to overturn that cap as unconstitutional.
Until that lawsuit is resolved, Stay the Course wants U.S. District Court Judge Thomas Johnston to block the cap.
Johnston has set an August 01, 2012 hearing for this preliminary injunction request.
But Tennant’s response filing says the cap serves the public interest by limiting the perceived influence of campaign cash.
Tennant also cites the U.S. Supreme Court ruling that required the recusal of state Justice Brent Benjamin because of an independent group’s campaign spending.
WV Justice Benjamin Explains Dissent on Redistricting
A West Virginia Supreme Court justice is explaining why he dissented when the court upheld legislative redistricting.
A 4-1 ruling in in November rejected multiple challenges to the redrawing of state Senate and House of Delegates districts.
The majority later explained that ruling in a February opinion.
Justice Brent Benjamin issued his dissent Friday.
It says he did not disagree with the majority regarding the new Senate districts.
But his dissent slams the new House districts as constitutionally unacceptable.
The new map increases the number of single-member districts.
But it also includes districts with between two and five members.
Benjamin called that result a strange mix that dilutes the voting power of citizens.
The 2010 Census prompted the redistricting.
Still pending is a federal lawsuit challenging the redrawn congressional districts.
Ripley Woman Denies Abuse Charges against Husband
Shown numerous photos of her wounds in court, a West Virginia woman whose husband is accused of torturing and abusing her for years denied the allegations Friday, offering different explanations for each injury.
Stephanie Lizon’s testimony conflicted with what she previously told a domestic violence worker, but a magistrate refused a defense motion to dismiss a malicious wounding charge against her husband, Peter Lizon. The judge found probable cause to send the case to circuit court.
When Stephanie Lizon looked at photos of wounds on her back and breast taken by a domestic violence shelter manager, she testified they came from the same frying pan.
“It was an accident,“ Stephanie Lizon said. “My husband and I were arguing over breakfast. We often get very passionate in our arguments. I often am without a shirt in my own home because I think it’s my right. We collided with each other.“
Similar answers came with other injuries — her husband either wasn’t involved or didn’t intentionally inflict them.
A bruise on her side? “That was when my goat gored me,“ she said.
A knee bruise? “I skinned my knee. I tripped.“
A photo of her swollen left foot?
“It was caused by an accident that we had with the tractor and the front-end loader attachment,“ Stephanie Lizon said. “My husband was trying to lower the attachment and he didn’t realize that I was so close. He dropped the loader on my feet.“
A domestic violence shelter manager said Stephanie Lizon told her the back burns occurred because the wife didn’t prepare a meal correctly and got hit intentionally with a hot pan. The manager also said after Peter Lizon allegedly dropped the hay bailer on her feet, and over time, he stepped on her feet to reinjure them.
Prosecutor Katie Casto said the bruises were obvious.
“It is plain to a reasonable person that this was intentional,“ Casto said. “It’s not an accident.“
Peter Lizon, who is being held in jail on bond, sat next to his attorneys at the preliminary hearing in Jackson County Magistrate Court.
“What we have established is that this is a mess,“ said his attorney, Shawn Bayliss.
Stephanie Lizon testified she fled June 18 after an argument with her husband at a heavy equipment rental store about 50 miles north of their home in Leroy near the Ohio border. She said she did not want to argue in front of the couple’s 13-month-old child and went to the domestic violence shelter for two days.
She told another woman at the shelter of the abuse, a criminal complaint said.
An employee of the Bosley Rental & Supply store previously told The Associated Press Stephanie Lizon entered told the staff she was trying to hide from her husband when she entered a different part of the store.
The employee declined to give her name, citing concern for her safety and that of her co-workers at the rental shop.
Stephanie Lizon said then she didn’t want to involve police but accepted the number for the shelter and called it, the store employee said. She also called family to ask for money, and the employees gave her cash and called her a cab.
She was limping and had appeared to have some sort of injury, the store employee said.
The shelter manager testified Stephanie Lizon showed up at the shelter under an assumed name and was afraid of her husband. A bus ticket was arranged for the wife to travel to her parents’ home in Alexandria, Va., but she never got on the bus because her young son was with her husband and she wanted to go get him.
Investigators said they had 45 photographs showing burns on the wife’s back and breasts from irons and frying pans, and scars on her wrists and ankles. When she was shown a picture of her foot injury, she said farming was dangerous.
She sought medical treatment on June 20, but when asked why she didn’t previously, “I didn’t think it warranted it,“ she testified.
The couple has raised goats and chickens on their property since 2005.
West Virginia University law professor Marjorie McDiarmid, who specializes in domestic violence and family law, said successful prosecution of such cases depends on evidence that supports the allegations.
Despite her denial of abuse, it’s common for prosecutors to have to build a case based on third-party evidence, McDiarmid said.
“It is a very fraught period in anyone’s life when they are making these kind of allegations,“ she said. “If in fact she is the victim of violence, there’s a lot of danger and a lot of fear and a lot of mixed emotions that go into being in that kind of situation.“
WV Supreme Court OKs 3-Year Pilot Program To Help Lawyers With Addiction, Other Conditions
The West Virginia Supreme Court has approved a three-year pilot program to help attorneys who have addictions, or physical or mental health conditions, that impact their ability to practice law.
Officials say the purposes of the program are to protect the public and assist attorneys who need help to begin and continue recovery.
The program also will be used to educate the judges, attorneys, and the public about the causes of impairment, and develop prevention programs to help attorneys.
The West Virginia State Bar is required to file a report with the court after the first two years of the program so that it can be evaluated.
It will be funded through the West Virginia State Bar. The total costs of the program may not exceed $60,000 per year.
Roane County Man Files FOIA Suit to Get Answers to Daughter’s Death, Disappearance
The WV Record Reports:
A Roane County man whose teenage daughter went missing for seven years before her body was finally discovered near the Wirt/Roane county line is seeking answers as to why her disappearance, and death remain unsolved.
Jesse Starcher on June 27 filed suit against the West Virginia State Police, the Roane County 911 Center and the city of Spencer in Kanawha Circuit Court.
In his complaint, Starcher, 49, of Spencer, seeks an order compelling them to release under the state Freedom of Information Act documents in their possession relating to his daughter, Christian Dawn Starcher Seabolt who, then 18-years-old, went missing nearly a decade ago, and whose remains were later discovered in 2009.
In his 26-page complaint, Starcher details how he attempted to get answers from the State Police’s Roane County detachment, the city of Spencer and the 911 Center about Christian’s disappearance on Aug. 31, 2002.
Records show requests he made starting in 2004 were denied on the grounds that information he was requesting were part of an on-going investigation.
Shortly after Christian’s skeletal remains were discovered on Groundhog Ridge near Creston on Dec. 16, 2009, Starcher again made requests for information, including an emergency call Christian made to the 911 Center the day before she went missing.
All his requests, which were made as late as August were denied either on the grounds of, again, a pending investigation or his failure to state with specificity the information he was requesting.
In his suit, Starcher openly accuses Hueston M. Eads, a Spencer police officer, of either having knowledge of or being complicit in Christian’s disappearance.
At his suggestion, Starcher says Christian spoke with Eads about information she had relating to the murder of Ronnie Stag.
According to Starcher, Christian “implicated several Clay County law enforcement officers in drug-related activity.“
Also, Starcher maintains that sometime after Christian went missing, Judd Reed, who accompanied her on several occasions to speak with Eads, was murdered.
Though he was “dismissive of Christian’s story,“ Starcher says Eads was “successful in involving himself into both the handling of Christian Starcher’s disappearance and the investigation of the murder of Judd Reed, in spite of the fact that the murder unquestionably occurred outside his jurisdiction, namely, outside Spencer and in rural Roane County.“
In his suit, Starcher says that the excuse offered by the State Police, the 911 Center and the city of Spencer in denying his FOIA requests on the grounds “that a genuine investigation of the matter was ongoing” is “a sham.“
Instead, he says “the report of investigation and the contents of the tape are being withheld from him primarily to protect law-enforcement personnel who may have had some level of responsibility in [Christian’s] disappearance.“
Along with one compelling release of the information he’s requested, Starcher seeks another ordering the State Registrar of Vital Statistics to issue a death certificate for Christian so he can qualify as administrator of her estate in order to file a wrongful death lawsuit.
Also, he seeks recovery of court costs, and attorneys fees.
Starcher is represented by Charleston attorney David R. Karr Jr.
The case is assigned to Judge Paul Zakaib.
Kanawha Circuit Court case number 12-C-1204
~~ Lawrence Smith - WV Record ~~
G-otcha™: Weston Resident Sentenced for Possession of Child Pornography
A 45-year old Weston, West Virginia, resident was sentenced on July 12, 2012, in United States District Court in Wheeling by Chief Judge John Preston Bailey.
United States Attorney William J. Ihlenfeld, II, announced that:
LARRY ALLEN THOMPSON was sentenced to 78 months imprisonment to be followed by 15 years of supervised release.
THOMPSON entered a plea of guilty on April 20, 2012, to one count of Possession of Child Pornography on December 02, 2010, in Weston, WV.
THOMPSON was remanded to the custody of the United States Marshal pending designation to a Federal institution.
The case was prosecuted by Assistant United States Attorney David J. Perri and was investigated by the West Virginia State Police Crimes Against Children Unit.
This case was prosecuted as part of Project Safe Childhood, a nationwide initiative to combat the growing epidemic of child sexual exploitation and abuse, launched in May 2006 by the Department of Justice. Led by United States Attorneys’ Offices and the Criminal Division’s Child Exploitation and Obscenity Section, Project Safe Childhood marshals federal, state, and local resources to better locate, apprehend, and prosecute individuals who exploit children via the Internet, as well as to identify and rescue victims. For more information about Project Safe Childhood, please visit www.projectsafechildhood.gov.
Gilmer County Circuit Court Report – 07.09.12
On Monday, July 09, 2012 Chief Judge Alsop appeared for his regular monthly motion day and ran through a 2 page docket and left Gilmer County before Noon.
Five juvenile cases were heard and reset as follows:
• Thursday, August 09, 2012 at 11:00 AM
• Monday, August 13, 2012 at 9:25, 9:45 and 11:45 AM
• Tuesday, October 09, 2012 at 9:15 and 9:30 AM
• State of West Virginia vs. Joshua Hoover
He was sentenced to 1-5 in the pen for forgery, 1-10 for uttering, and 1-5 for conspiracy running consecutively for 3-25 years.
However, the Judge suspended the sentence and placed him on home confinement to allow him to continue working and supporting his infant child.
He was fined $2,000.00 and must pay home confinement fees and court costs.
All court costs and fine must be paid within 3-12 months.
Probation was denied and he also must pay $750.00 restitution.
Hoover was represented by David Karickhoff of Sutton, WV.
• One name change was granted.
• One adoption was finalized.
• State of West Virginia vs. Patrick Collins
Sentencing was reset for Tuesday, August 14, 2012 at 1:00 PM.
He is represented by Kevin Duffy of Clay, WV.
• State of West Virginia vs. Catherine McGhee
She was set for the bonding company to appear and explain why she failed to appear at the last scheduled hearing.
However, they had asked for a continuance and it is now reset for Monday, August 13, 2012 at 9:00 AM.
On Tuesday, July 10, 2012, Judge Richard A. Facemire appearing and indoctrinated the petit/magistrate jurors for the July term.
• Several cases set for July 03 and 05, 2012 were heard on this day due to the Courthouse being closed for the entire week due to the storm.
• At 8:55 AM Judge Facemire indoctrinated the petit/magistrate jury and excused them to report back as directed by letter from the Circuit Clerk.
Several jury trials are already scheduled to be tried by Judge Alsop:
• State of West Virginia vs. A juvenile - Thursday, August 16, 2012 Alsop
• State of West Virginia vs. John Carder - Tuesday, August 21, 2012
• Civil case - Murphy vs. Mitchell, et al - Thursday, August 23, 2012
• State of West Virginia vs. A juvenile - Wednesday, August 29, 2012
• Civil Case - Langford vs. Bush - Tuesday, October 16, 2012
Several jury trials are already scheduled to be tried by Judge Facemire:
• 1st - State of West Virginia vs. Charles Emerson - Tuesday, August 28, 2012
• 2nd - State of West Virginia vs. Tonya Ramsey - Tuesday, August 28, 2012
• 3rd - State of West Virginia vs. Jimmie G. Stewart - Tuesday, August 28, 2012
• State of West Virginia vs. Gary Farrell - Tuesday, September 18, 2012
• When magistrate trials are set jurors will receive a letter regarding those trials.
• Four juvenile matters were heard, 2 were disposed of, 1 was taken under advisement, and one reset for Friday, August 24, 2012 at 9:00 AM.
• State of West Virginia vs. Sundee Honaker
She pled to delivery of Schedule I controlled substance and will be sentenced at 9:30 AM on Monday, September 24, 2012.
She was represented by David Karickhoff of Sutton, WV.
• State of West Virginia vs. Alicia Wine
She pled to 1 count of forgery and had 1 counts of her indictment dismissed.
She will also be sentenced on Monday, September 24, 2012 at 9:45 AM.
She was represented by Clinton Bischoff of Summersville, WV.
Two criminal cases were rescheduled for pretrial and motions to be heard:
• State of West Virginia vs. Jimmie Stewart
This case will be heard on Tuesday, August 07, 2012 at 9:00 AM.
• State of West Virginia vs. Catherine McGhee
This case will have a pretrial hearing on Tuesday, July 17, 2012 at 9:00 AM.
She is represented by Daniel Grindo of Gassaway, WV.
It Is about Time: West Virginia PSC Developing Electric Reliability Targets
West Virginia Public Service Commission and electric utilities are wrangling over proposed service reliability targets that the companies would have to meet.
The proposed targets stem from a Public Service Commission investigation of widespread power outages during a major snowstorm in December 2009.
They are based on three indices that grade how frequently electrical systems go down, how long those systems are down, and how long customers are without power.
The utilities say the targets proposed by the PSC’s staff are too stringent and could not be achieved.
In a recent filing, Mon Power and Potomac Edison say the PSC staff’s proposal contains several references to requiring individual circuits to meet the targets.
The companies say that would require major changes to their system that would cost hundreds of millions of dollars, including new substations and rebuilding existing circuits.
“We’re still working our way through that proceeding to try to reach a point of agreement,“ said Appalachian Power spokeswoman Jeri Matheney told the Charleston Gazette, “We need targets that, if not achieved now, are achievable at some point.“
PSC staff and the Consumer Advocate Division say little, if any improvements would result from the utilities’ proposals, which are less stringent that the PSC staff’s targets.
“Very little, if any improvement over the current issues causing outages will change and the infrastructure will continue to deteriorate,“ Donald E. Walker, a technical analyst with the PSC staff’s engineering division, wrote in a recent filing.
Another filing by David A. Sade, the Consumer Advocate Division’s attorney, noted Walker’s report.
“Maintenance of, if not simply catching up to the status quo, should not be the ‘target’ which satisfies the requirements of the commission’s ‘electric rules’ and best protects utility customers from the disaster which befell them in the winter of 2009-2010,“ Sade wrote.
The filings were submitted before the June 29, 2012 storm and smaller subsequent storms that knocked out thousands of customers’ power across the state.
Lewis County Grand Jury Presents 16 Indictments – July 2012
The Lewis County Grand Jury has returned indictments against 16 people in July 2012 term:
• Derick Eugene Ables, age 20 of Jane Lew, WV was indicted on two count of sexual assault in the first degree.
• Thomas William Bonnell, Jr. , age 37 of Weston, WV was indicted on one count of fleeing from an officer, one count of breaking and entering, one count of grand larceny and one count of conspiracy.
• Dezarae Nalani Bowyer, age 25 of Weston, WV was indicted on two counts of fraudulent use of assess device.
• Angela Jean Burkhart, age 43 of Weston, WV was indicted on four counts of welfare fraud.
• Eric Justin Cash, age 31 of Jane Lew, WV was indicted on seven counts of refusing to provide accurate sex offender registration information.
• Ethan C. Goldsborough, age 20 of Adrian, WV was indicted on one count of breaking and entering and one count of malicious wounding.
• Catherine Michelle Hayhurst, age 20 of Weston, WV was indicted on two counts of fraudulent use of assess device.
• Michael Meadows, age late 20s of Rosedale, WV was indicted on one count of breaking and entering, one count of grand larceny and one count of conspiracy.
• Bernard Lee Metz, age 22 of Jane Lew, WV was indicted on one count of breaking and entering, one count of destruction of property and one count of conspiracy.
• Alex S. Parker, age 19 of Weston, WV was indicted on one count of breaking and entering, one count of grand larceny and one count of conspiracy.
• Shane Daniel Posey, age 38 of Burnsville, WV was indicted on two counts of refusing to provide accurate sex offender registration information.
• Amanda D. Pullin, age 25 of Orlando, WV was indicted on one count of breaking and entering, one count of grand larceny and one count of conspiracy.
• Jimmy Richards, age 67 of Jane Lew, WV was indicted on three counts of sexual assault in the first degree and three counts of display to a minor of obscene matter.
• Tracy Linn Riffle, age 33 of Buckhannon, WV was indicted on one count of welfare fraud.
• Joshua T. Wilson, age 27 of Frametown, WV was indicted on one count of breaking and entering, one count of grand larceny and one count of conspiracy.
• Marcus W. Wilt, age 20 of Weston, WV was indicted on one count of breaking and entering, one count of destruction of property and one count of conspiracy.
Doddridge County Grand Jury Indictments – July 2012
The Doddridge County grand jury has returned indictments against nine people in the July 2012 term:
• James America, age 55 of West Union, WV was indicted on one count of third or subsequent offense driving while license suspended or revoked for driving under the influence of alcohol.
• Tonalea Lahneen Chapman, age 52 of Salem, WV was indicted on one count of transporting a controlled substance onto the grounds of the North Central Regional Jail.
• Justin Travis Flesher, age 23 of West Union, WV was indicted on one count of breaking and entering, one count of conspiracy to commit breaking and entering and one count of petit larceny.
• Shane Michael Gray, age 38 of Greenwood, WV was indicted on one count of escape.
• Ryan P. Lavoie, age 27 of Salem, WV was indicted on two counts of delivery of a controlled substance.
• Thomas Jay Smith, age 41 of West Union, WV was indicted on one count of accessory after the fact.
• Amy Stickle, age 34 of Clarksburg, WV was indicted on one count of transporting a controlled substance onto the grounds of the North Central Regional Jail.
• James Blair Strahin, Jr. , age 42 of Salem, WV was indicted on one count of burglary and one count of breaking and entering.
• Alicia Williams, age 29 of Salem, WV was indicted on one count of entering without breaking and one count of petit larceny.
Analysis: Legal Eagles Redefine Healthcare Winners, Losers
By saying the Commerce Clause of the U.S. Constitution does not allow Congress to penalize people for “inactivity” - such as someone’s decision not to purchase health insurance - the thinking went, the court opened the door to challenges to laws that might attempt to do the same.
But over the past few days a more nuanced interpretation of the ruling’s impact has begun to emerge in discussions on legal blogs, among lawyers and in the country’s ivory towers. In this conversation, voices on the left and right are saying the ruling on the Commerce Clause issue, no matter how important, is largely academic. It won’t affect any current laws, won’t have an impact on any pending lawsuits, and in the unlikely event that the opinion spurs any immediate legal challenges, those challenges will likely fail.
“I’ve yet to see a list of vulnerable statutes, and I don’t think there are any,“ said Jonathan Adler, a self-described libertarian and professor at Case Western Reserve University School of Law, who on Thursday characterized the decision as “losing the battle but winning the war.“ In Adler’s view, imposing a new limit on Congress’ Commerce Clause powers is a victory, even if it isn’t “the first step toward reversing the New Deal.“
The conservatives’ about-face echoes the experience of liberals who initially feared that the Commerce Clause was the healthcare law’s ticking time bomb, which could unleash legal attacks on both existing and future legislation. Instead, in recent days, progressives are coming to realize the Commerce Clause section is no slam dunk for the right.
The day the ruling came down, Neal Katyal, the former acting U.S. Solicitor General, warned in an op-ed article in the New York Times that the Commerce Clause holding could jeopardize some future federal legislation. The opinion was only the third time in 80 years that the high court struck down a federal law for violating the Commerce Clause, he noted. But by Tuesday, in an interview with Reuters, Katyal acknowledged that the effect may be delayed and that he didn’t see any litigation coming out of the holding in the near term.
Geoffrey Stone, a professor at the University of Chicago Law School and a member of the National Advisory Council for the American Civil Liberties Union, had a similar reading. “The practical impact is, it won’t have much impact,“ said Stone. The conservatives “won an argument, but it’s not an argument that’s likely to occur very often. And when it can, it’ll be circumvented like it was here,“ he said.
It is fairly unusual for a ruling to have a delayed dramatic effect. The best example that Yale Law School professor Akhil Reed Amar could come up with was Marbury v. Madison in 1803. In that ruling, the high court established the concept of judicial review - the practice that allows courts to uphold or invalidate legislative and executive action - but it took 60 years for the court to ever use that power, said Amar.
COMMERCE CLAUSE: A BETE NOIRE
Long before the Affordable Care Act made its divisive national debut, the Commerce Clause had been a source of friction between the left and right. Starting in the 1820s, Congress had relied on the provision to pass laws addressing issues ranging from interstate transportation to worker safety to civil rights. But while liberals celebrated the use of the Commerce Clause to expand protections for citizens, the provision became a bete noire for conservatives, who viewed it as an instrument for government overreach. In the 1930s and ‘40s, Congress relied on the Commerce Clause to bulletproof everything from federal labor laws to milk price regulations.
Although conservatives tried many times after the New Deal to narrow the reach of the Commerce Clause, it wasn’t until 1995, in U.S. v. Lopez, that they were successful. In that case, the court ruled that the Commerce Clause did not give Congress the right to ban the carrying of guns in school zones. There have been a handful of cases since then seeking to rein in the Commerce Clause, though none as definitive as the healthcare ruling.
Challengers conceivably could bring lawsuits under the newly redefined provision, but experts say it’s unlikely they would hold up in court.
David Driesen, a law professor at Syracuse University College of Law, writes for an environmental blog run by the Center for Progressive Reform. In a post on Friday, he raised the prospect of challenges brought under the Clean Air Act, which gives the government the authority to require companies to install pollution control devices. Asked Driesen: What would happen if a business argued that the Clean Air Act was forcing it to purchase a product in violation of the healthcare ruling?
Not much, he concluded. Such a challenge would be unlikely to topple environmental regulations because the pollution-control requirement would not be the same as regulating inactivity. Rather, it would regulate an ongoing activity -pollution-generating production - even as it required companies to purchase a product, Driesen wrote.
In a slightly more fanciful scenario, Andrew Koppelman, a liberal law professor at Northwestern University, posited an example of a deadbeat dad who could mount a creative legal argument to dodge child-support payments under interstate enforcement laws. The dad could challenge the federal enforcement laws on grounds that they penalize him for failing to pay for something.
That argument, too, would likely fail, suggested Andrew Pincus, a partner with the national law firm Mayer Brown who has argued in front of the Supreme Court many times. The deadbeat dad already had a legal obligation to support the child, and the court would simply be enforcing an obligation that already existed.
DICTA OR NOT
Meanwhile, yet another group of legal thinkers pontificating in the blogosphere has pronounced the will-it-or-won’t-it prognostication a waste of time. In this view, the debate is moot because the Commerce Clause section is not legally binding.
Under the concept of precedent, the reasoning and comments in legal opinions fall into two categories: material that’s critical to the outcome, which is precedent-setting, and material that is ancillary, which isn’t precedent-setting. Identifying the ancillary bits, referred to as dicta, can be a guessing game, and debates often arise among lawyers and judges over whether portions of decisions qualify as dicta.
In the healthcare opinion, a majority of the court found that Congress could require people to purchase health insurance under its power to tax. Roberts, who wrote the majority opinion upholding the healthcare law, also wrote that the Commerce Clause couldn’t be used to pass the individual mandate. Now, scholars are debating whether his Commerce Clause statements are dicta or not.
Some, such as Georgetown University Law Center professor Randy Barnett - one of the main legal architects of the healthcare challenge - say Roberts tried to couch his Commerce Clause finding as essential to the outcome and not dicta. He points to one clause in particular in the chief justice’s opinion: “Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction” under the tax power, Roberts wrote.
That rhetorical move does not necessarily make the Commerce Clause part of the ruling binding precedent, said Deborah Pearlstein, a professor at the Benjamin N. Cardozo School of Law. “That part of Roberts’ opinion was completely unnecessary to the holding of the court,“ she said.
What’s more, the language may not be precedent without the backing of a majority of the justices, according to common law. In the 5-4 ruling upholding the law, none of the other justices signed onto the section of Roberts’ opinion dealing with the Commerce Clause.
The four conservative justices found that the Commerce Clause would not apply, but they had a different reasoning than Roberts. So it’s unclear whether the dissenting votes could even count toward a binding holding of the court.
That would give Roberts’ Commerce Clause comments even less weight under a strict legal analysis, said Steven Schwinn, a constitutional law professor at the John Marshall Law School.
“He really was out there on his own,“ Schwinn said.
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