In an opinion piece published in the National Law Journal, Prof. Timothy Stoltzfus Jost of Washington and Lee University School of Law argues that the attorneys general lawsuit challenging the constitutionality of Patient Protection and Affordable Care Act is so frivolous, that the attorneys involved should be sanctioned, and made personally liable for paying the legal expenses of the federal government in defending itself.
This complaint not only represents shockingly shoddy lawyering but should be recognized by the courts for what it in fact is: A pleading whose key claims are without support in the law and the facts. The attorneys who brought this case — solely for political purposes — should have to bear personally the cost of defending this litigation that they are imposing on federal taxpayers.
Read the whole thing. Prof. Jost not only succinctly lays out the flaws in the attorneys’ constitutional arguments, but in their factual pleadings as well. The law simply doesn’t do what Rob McKenna and his cohorts claim it does. It’s kinda stunning.
But if the attorneys might be held liable for bearing the legal costs imposed on federal taxpayers, shouldn’t McKenna also be personally responsible for covering the legal costs he’s imposing on state taxpayers?
His office keeps trying to make the argument that the only cost to the state will be McKenna’s own time spent on the case… but of course it relentlessly makes this argument on the public dime. And now we learn that due to McKenna’s conflict of interest, the state will have to hire an outside attorney to represent Gov. Gregoire in her efforts on behalf of Washington citizens to oppose his lawsuit.
All this costs money. And if McKenna’s lawsuit is as legally frivolous as Prof. Jost says it is, I sure hope Gov. Gregoire has her attorney sue McKenna to recover the legal fees incurred.
Sounds good to me!
Yes!!! Bring on the lawsuit Robby!
so what happens if the lawsuit against the fed is successful?
will goldy be dining on crow for a week?
So is McKenna doing NOTHING for this suit on state time or resources? No email? No use of state telephone systems? No online research using state systems? He only works on this during his lunch hour on his own self-purchased internet and from home using a non-state purchased private computer system?
I know everyone enjoys getting their pound of flesh, but the Governor should just ignore this whole thing. There is no reason to spend state money to oppose this. It’ll be swatted down quickly enough without the Governor doing anything.
Cha-fucking-CHING!!!!
Put the cost of being a Teabagger loyalist on Robbie’s tab, fuckin’ lovin’ it.
Not only does this demonstrate the law is in fact Constitutional it also demonstrates how out of line and out of touch the AG’s participating really are.
I’m glad I’m a Democrat. On the right side of history, the right side of America and the right side of the LAW!!
re 5: It’s my understanding that McKenna is using state resources to proceed with this suit and is forcing the US to spend taxpayer $$$ defending themselves.
McKenna should be made to pay for this frivolous suit out of his own pocket.
Why don’t you bet Goldy on that dinner of crow, Vince?
I’m not sure where our Boy Attorney General went to law school, but he must have missed more than a few sessions of Con Law.
Down in Tacoma, Dave Engdahl taught us that Congress could do almost anything under the Commerce Clause and virtually everything if Federal spending was involved. Both of those concepts seem to come into play here. Did Legal boy fail to learn these basic concepts of Constitutional law or has politics overcome his good sense?
Robby boy got his parts caught in a wringer with this little fiasco.
I think he was attempting to manipulate the rubes (of which manipulation the master class of Republicans view with a wink and a nod)in order to garner more potential gubernatoriual votes.
This is cynical class warfare of the most despicable sort. What’s worse, he’s a panty-waiste.
Everybody knows that there are few things wingnuts hate more than attorneys who file frivolous lawsuits. Oh, wait… Er, my bad.
So who actually decides this (or any suit) “frivolous”? I know the professor’s definition is “A pleading whose key claims are without support in the law and the facts.”, but if you’d really be seeking to charge the individuals involved, it seems a finding of “frivolous” would be appealed and causing even more unnecessary costs.
I certainly don’t agree with McKenna, but I’d hate to set such a precedent. This could come back and bite you in ways unforeseen.
Of course, I’m interested in what the lawyer bunny thinks and defer to his expertise…
Regardless of who or what party passes a law this large and significant I personally feel better having it challenged. If he wins, fix the problem, if he looses it’s a good law. Checks and balances at work people. BTW the AG works for the people not the Governor.
@14…good post..somebody finally gets it.
14, 15- should Bush’s domestic security laws have been challenged by the same logic? Would you have supported that challenge?
@16..sure – I have no problem with that.
“But if the attorneys might be held liable for bearing the legal costs imposed on federal taxpayers, shouldn’t McKenna also be personally responsible for covering the legal costs he’s imposing on state taxpayers?”
You’re usually pretty accurate on legal stuff (for a non-lawyer), Goldy, but you missed the boat on this one. Civil Rule 11 (and the comparable federal rule) allow judges, at their discretion, to order frivolous filers to pay the defendant’s defense costs. In this case, the defendant is the federal government. There is nothing in CR 11 that would allow one branch of state government to pursue this sanction against another branch of state government or a state official to recover the state’s prosecution costs from that branch or official.
@3 “so what happens if the lawsuit against the fed is successful?”
Like asteroids and alien invaders, we’ll worry about it when it happens. (wink-wink) (Guys in white coats are standing by to take you away.)
I don’t have time to grab the links, but if you read the filed Florida, et al. v. HHS complaint, you might come to understand that Jost’s article is just the tip of the iceberg on the Rule 11 issues.
It is worth saying that by practice the 23 page original filing is not the final filing and is expected to change, no matter what.
The caveat here is that the original filing is such a POS, unworthy of a 2nd year law student, one wonders if the filers have any professional standards.
It is likely many of the most egregious flaws will be removed. Heck, most of the identification of the flaws are already available on the intertubes.
That being said, when one looks at what has been filed and the fact that the filers took advantage of the leniency taken to not submit a single case citation, it is relatively apparent that the filers don’t have a case. The thin and tentative case sailing against long precedent and recent concurrences by the conservative wing of the court quickly evaporates when its pillars are most easily demonstrated to be factually wrong.
The issue of the State of Washington’s and/or Bobby Mac’s culpability for cost associated to the filing is an interesting one.
There is an 11th dimensional chess game of probabilities to work to assess the potential costs, that I’ll get to (but not attempt to solve) below.
First, our AG, Bobby Mac is a WA State agent. The cost of his actions as our AG are ours. The defendant in this case, is the US Dept of Health & Human Services, and the cost of defending the law is a cost to its budget. While US D HHS has yet to counter file, expect that it shall, and that it shall also seek to recover its costs. NOP.
IF the ultimate decision finds with US D HHS, AND the finding awards US D HHS its costs, the State of WA shall either be liable for its share according to an agreement (yet TBD) between the plaintiffs, or we should expect to be sued for our share by the state of FL, which won’t simply eat it without asking/suing.
Secondly, under the provisions of the Federal Rules of Civil Procedure IF a judge finds a Rule 11 violation, the attorneys bringing the claim/counter claim can be sanctioned.
The Chess Game – – – –
McCollum (sp?) has already made a move which demonstrates that he either has a judicial strategy, or is physically lost in his state.
Rather than filing in Tallahassee where he and other FL AGs usually file, he shopped the case over to Ft Lauderdale. Whether he did this to avoid sanctions while making politically motivated Rule 11 and/or Rule 12 violations is up to you, but in either event the total costs increase at each level.
No matter the outcome at any earlier level, the loser at any point can appeal and expect to get cert all the way to SCOTUS. If you think of this as Hold ’em, US D HHS has a large stack of chips with cards. FL et al has what it thinks is an ace coming (a demonstrably fickle set of majority swinging SCOTUS justices) with the river card.
As I said, the original filing is a blatant suck a** POS, and at this point I can’t see it going anywhere. I can even guess it could be withdrawn. A sanction finding would be the death knell for McCollum’s gubernatorial campaign. If the FL AG pulls the rug out from under Bobby Mac, hilarity ensues.
With that critique of what we have, I’ll tell you there is a stronger and not as demonstrably flawed argument available to the plaintiffs. It is also tenuous, but it would be far more probable in terms of overcoming court precedent, but politically it would be highly probable to splinter the Republican party philosophically and geographically.
Therefore I can’t have enough popcorn.
Its as if the Republican party has accepted Michael Steele’s “I’m the cow on the tracks” as its motto and battle cry.
@13 “So who actually decides this (or any suit) “frivolous”?”
The judge the case is assigned to.*
* And if any trolls don’t like my grammar, fuck you! I can dangle my participles if I want to. Free speech, assholes.
@14 “Regardless of who or what party passes a law this large and significant I personally feel better having it challenged.”
A lawsuit requires certain things: Standing, a justiciable issue, etc. Certainly, with legislation as large and complex as health care reform, someone somewhere must have standing and a colorable argument. And CR 11 sanctions are always reluctantly applied; I can’t see the rule being used in this instance, despite the flimsiness of the AGs’ argument.
“If he wins, fix the problem,”
See #19.
“Checks and balances at work people.”
This really doesn’t have anything to do with checks and balances.
“BTW the AG works for the people not the Governor.”
And the Governor also works for the people. The question is who speaks for the people. The answer is that both do, and neither do. The AG and governor are both independently elected officials, so neither is the other’s boss, and neither can claim to be the exclusive representative of the people. Our state government simply doesn’t work that way. McKenna really is not subordinate to any other branch or official. But the legislature controls the appropriation for his office, and could prohibit him from expending state resources on this endeavor. The Governor lacks direct authority over either the AG office or its budget, but could (unless blocked by the legislature) authorize use of other state resources at her disposal to oppose McKenna’s lawsuit. Conceivably, you could have both state officials weighing in on opposite sides of the issue in federal court.
FRCP 11 certainly permits lawyers bringing frivolous lawsuits (which McKenna is truly pursuing) to be personally sanctioned. I believe, however, that government lawyers are indemnified by whomever might employ them (municipality, county, state) in this state. Ergo, Robbie has no personal pocketbook risk by joining in this nonsense. That is too bad.
It could end with the governor handpicking a lawyer out to kick Rob’s ass, replacing him as the AG in an election.
Rob is out of his current job and is left with having to run for governor as a damaged candidate. He is not likely to win at that point, but he has nothing to lose since he already lost it.
This is a loser all the way around for him, he wins the primary, and gets dumped out of office on his head.
if mckenna and the state attorneys general could block this, we all should pay them an incentive bonus; they could save us all the thousand of dollars of future debt by blocking this
i’d rather sue the state legistlature who stole our tax limits; that’s the real fraud going on
@25..amen.
Do the comments @25 & @26 show us that conservatives are now PRO activist court and PRO frivolous lawsuit?
What Is a Conservative Judge?
No, we aren’t pro re-interpretation of the constitution, which is why we typically oppose judicial activism, but with respect to the federal government grabbing powers reserved for the the states, heck that’s what the court is supposed to look at.
Sadly creeping socialism means an honest opinion on this and other federal takeovers will be hard.
Wow…clear attempt to intimidate McKenna.
It’s just like Gregoire, Lisa Brown and the Democrat Legislature attempted to do by threatening to cut McKenna’s Budget.
Far-left profs can say whatever.
Lisa Brown backed down quickly when it was clear she had crossed the line in attempting to chill this legal action.
It will all be over soon.
If Gregoire is wrong on this, it will be brutal. Businesses will be streaming outta here.
Army Court Martials ‘Birther’ Colonel
“The Army will court martial a lieutenant colonel who refuses to deploy to Afghanistan because he won’t accept orders from President Obama, whom he considers unqualified to be commander in chief, military officials said Wednesday.
“Army doctor Lt. Col. Terry Lakin believes Obama wasn’t born in the United States, and therefore does not meet the constitutional requirements to be president, NBC News reported.”
http://www.politicsdaily.com/2.....#c27155317
Roger Rabbit Commentary: Court-martial him, and throw his ass in Leavenworth! The issue of Obama’s birth has been taken to the U.S. Supreme Court in at least 3 separate cases, and this shithead has no right to supersede SCOTUS rulings with his personal opinion. When you’re in the Army, refusing a lawful order is a crime, and this idiot should suffer the same penalty any other soldier would.
Of course you are. As you are for rewriting the Bible.
Damned librul’ King James!
@28 righton 04/15/2010 at 7:28 am
Sorry, I’m not getting you.
Typically (when you agree with a situation) you oppose judicial activism, but now that your ox is being gored, judicial activism is just fine?
“we aren’t pro re-interpretation of the constitution”
ROTFLMAO. That’s just crazy. ALL language is interpreted. Words aren’t always precise, sentences are sometimes vague, intents aren’t always clear. The Constitution is very well written, but it’s not MAGIC. You’re just CUTE AND ADORABLE in thinking that every word/phrase has only one meaning and the intent is always clear. The Republicans and Democrats have BOTH argued meaning in the document at every level of court since the parties existed. I LOVE your anti-reality view that this simply isn’t true, it’s CUTE, but just not reality. AAAWWW! (pinches check and rustles hair). SO cute!
@30 This jackass threw away his career, his military pension and health benefits, and his personal freedom. And he didn’t just do that to himself, he did it to his family, if he has one. For what??? What in God’s name is wrong with these people?
I have a theory. Life has been getting increasingly difficult for the middle class since about 1970. The stresses of daily living seem to continually increase, while the rewards for striving, working hard, and playing by the rules steadily shrink.
I think Middle America is having a collective nervous breakdown. How else can you explain the irrational behavior we see every day?
Why would Mr. McKenna be “liable“? He’s only doing his job and challenging whether this “law” is Constitutional and legal or not. Simple huh? If this was some sort of “law” passed by the other side, or on an issue you didn’t like or support, then all off a sudden, with great hypocrisy, you Libtards would be shrieking and flailing around wanting the same to be determined.
I know I’m oh-so shocked. :)
@35 “Why would Mr. McKenna be “liable“? He’s only doing his job and challenging whether this “law” is Constitutional and legal or not. Simple huh?”
Typical insouciance from an ignorant wingnut simpleton. Attorneys are required by court rules to screen cases for legal merit before filing lawsuits. Attorneys who fail to do that can be held liable for the other parties’ litigation costs by the court. You really should leave legal matters to people (and rabbits) who know what they’re talking about, because on this subject, you’re a complete ass.
@35 Mark1 04/15/2010 at 8:43 am,
Some sort of law?
Well then I agree with you. Bobby Mac should file frivolous law suits against every sort of law the other side passes. It is only fair!
pfft
ALL “Legislation should be inscribed on vellum using a quill pen—the writing materials of the original Constitution.”
“Government-run health care should be replaced with leeches and bleeding ——the medical care provided to the writers of the original Constitution.”
h/t mistermix @BJ
Proud Leftist @ 23 said: “I believe, however, that government lawyers are indemnified by whomever might employ them (municipality, county, state) in this state. Ergo, Robbie has no personal pocketbook risk by joining in this nonsense. That is too bad.”
Actually, judges can, and sometimes do, impose sanctions personally against attorneys, and expressly prohibit them from billing their clients for those costs.
And it was only a few months ago that the birther lawyer/dentist, Orley Tate (sp?) was personally sanctioned by a judge for continuing to file lawsuits on the same issue after similar suits were dismissed by several other courts.
This was purely a political lawsuit on McKenna’s part…
1) He tagged along on a lawsuit filed by another state. This way he can say that he is filing suit, but lets the other state pay the majority of the costs up front. FL, however, could still come back and “bill” us for our portion.
2) He chose to appear at a demonstration in Olympia that was purely political in nature. He then did the circuit on all the local talk shows, often repeating on the ones that are more favorable to his position.
3) He’s clearing planning to run for governor, but he needs to secure his base to get through the primary, past Rossi.
Speaking of not believing everything you hear….
Sarah Palin made a big deal out of organizing her SarahPAC, ostensibly to fund Republican candidates and Conservative principles. Last quarter (1Q2010) a little over $400,000 has been raised, and $409,000 spent.
The spending reports ending Dec. ’09 are interesting. Lots of money spent on private airplanes, expensive hotels, and salaries to consultants. Among the salaries paid out are $10K per month to her spokesperson Peg Stapleton (who had actually resigned the previous quarter to spend more time with her family), and $10,000 per month to her consultant during her vice-presidential campaign. Another aid was paid $50,000 for three months of work. As for the stated purpose of her PAC, just $9,500 found it’s way into the hands of actual Republican candidates.
SarahPAC: Jets, hotels, consultants – little to candidates
So much for the “fiscal conservatism” which she espouses. Clearly, like the Tea Party senate candidate in Florida, the PAC is being used simply as a tool for a perpetual political campaign, but without contribution/spending limits which might be imposed if they were to actually declare a run for the office.
The United States of America is still a democracy. One vote each. This country can’t complain about congress or the president when our percentage of people who actually vote in elections is so small.
It’s easy rhetoric to say that the federal government is out of control and it taking away our rights, but when it comes down to it… what specific rights have you lost?
On the issue of taxes, what part of government do you not want to be funded? Social Security, Medicare and Defense are by far the three largest chunks of the budget. Others items in the budget are education, disaster relief, highways, farm subsidies, etc… Admittedly healthcare is going to be a new part of that budget, but we will actually end up spending more money in the long run on Iraq than on healthcare. At least healthcare is money spent in the US for the benefit of US citizens and not on a dubious invasion of another country.
The funny thing is that Republican politicians will not just stand up and go on the record to actually eliminate programs because they are too afraid to state what would be unpopular positions. Unpopular in that the majority of Americans really don’t want those programs to be eliminated!
To those who complain, show us actual numbers. The WA State and Federal Budgets are both available online. Give us something tangible to actually debate.
…..or I guess you can just show us how weak your argument really is and just resort back to calling us names.
@41 Good catch! Much like Tim Eyman, Palin has found a way to make a living off of politics. The interesting trend is for it to be conservatives who seem to fall for this type of scam.
(Ooops almost forgot, Rossi did the same thing with his “foundation”.)
So who really are the professional politicians?
@36 Rodent farts:
‘You really should leave legal matters to people (and rabbits) who know what they’re talking about….’
LOL. So being a retired Courthouse Janitor qualifies you for that in your tiny little mind? Sorry Rodent, no sale; but thanks for the laugh, you are always fun to kick around old timer. Try clicking your heels together several times and chant: “I wish I was a lawyer, I wish I was a lawyer!” (just be careful when you light up another smoke during this activity next to that oxygen tank of yours). Good luck, and good day all!
42: Yep, back in my day we used to laugh at politicians who would promise to increase services and lower taxes. But since Reagan the Republicans have held to a rather specific strategy of insisting that they are fighting for lower taxes (a generally popular goal), but leaving it up to the Democrats to deliver the bad news of which programs will have to be cut or eliminated.
Heck, within the past year they’ve even carried it further, by directly criticizing the Democrats for cutting services (Medicare) which the Republicans have never fully endorses, and which wasn’t going to be cut anyway.
It’s kind of like the divorced couple, when the father gets to see the kids every other weekend, and takes them out to the movies, ice cream, amusement parks, etc. But the mother can’t do any of that because the father is behind on paying child support. To the kids, the father looks kind and generous, but the mother looks like a spoil-sport and a cheapskate. At least in the real world most kids start to understand by the time they reach high school what’s really going on (in my example), but in reality not so much among the wingnut base.
I was wondering what happened to the KLOWN. Seeing as how Rasmussen shows a 5 point increase in the President’s daily tracking poll approval index over the last week, I imagine that we have a wingnut suicide watch going on this week. Oh well, that’s the price the KLOWN pays for hanging all of his hopes on some krazy wingnut poll. Lordy, it must suck to be a KLOWN.
rhp @ 39
That’s what I said about FRCP 11–judges can sanction lawyers personally for pursuing meritless claims. The sanctions can even exceed the amount of an opponent’s legal costs. I’m not sure, however, that government lawyers, like those in the AG’s office, don’t get indemnified for any such sanctions. Certainly, I have never heard of a state’s attorney general ever having to pay an opponent’s legal costs incurred in having to defend against a meritless claim. There might be a case out there, but I’m not aware of it.
re 15; You are simply an obstructionist.
Where were you when we were being lied into two wars, having our rights abrogated under the ‘patriot’ act, and putting the aforementioned wars off budget so that you can bitch about the national debt when an honest Democratic president puts it on the books?
re 44: I’m 61 and I bet I could still whip your ass at ‘rasslin’.
I alresdy know that I can work harder and faster than most people in their 20’s.
That’s the kind of shape I stayed in during the long slow Republican ride to this coutry’s financial ruin.
@48…..how am I an obstructionist? does it not matter to you whether or not something as big as this health care mess is constitutional or not?
I guess you dont care.
and I never supported the patriot act.
so take your assumptions and shove them up your ass.
@49…oh goody..anther internet tough guy.
..rolls eyes….
Maxie @ 48
You just don’t get it, do you? There is no question that the healthcare legislation is constitutional. Litigating the question is pointless. The challenge to the legislation is purely political. Republicans are pushing a frivolous lawsuit that could win only through an incredible act of judicial activism. Can you say “hypocrisy”?
@52….wrong, it is your opinion that the legislation is constitutional…
the court will decide, not you.
I am guessing that they know a tad bit more than you or I when it comes to deciding these things.
Actually, I’m pretty sure I understand constitutional law a bit better than you, Maxie, having taken numerous constitutional law courses and having practiced in that area. I also understand very well that a lawyer has an obligation to consider the factual and legal merits of a matter, and the probability of winning, before filing a lawsuit. Not liking legislation for political reasons is not an adequate basis for challenging such legislation in court. The vast majority of legislation is never challenged in court; it’s not like every piece of legislation has to get judicial approval. This lawsuit is frivolous on its face. Since when did you conservatives desire that the judiciary become a legislative body?
@54…perhaps you do…but I will trust the AG’s expertise over yours, if you dont mind.
I dont desire the judiciary to become a legislative body, like you progressives have used it for…however, when they are asked to review a piece of legislation to see if it is constitutional, well then that is part of their duty.
what are you afraid of? let them decide, and let the chips fall where they may…
55
I’m not “afraid,” it’s just that this lawsuit is a complete waste of time and resources. Moreover, McKenna is clearly not representing his constituency–the liberal state of Washington–in pursuing this suit. He needs to remember who his client is, and his client is not his own political ambitions.
@55…LMFAO
If the AG feels that a piece of legislation is un-constitutional, it is his job to pursue it, regardless of what the constituency feels.
and speaking of representing constituency, I sure didnt hear you get all up in arms when the state legislature overturned I-960…which was voted on by a majority of THEIR CONSTITUENCY.
so in other words, you support govt when it acts against its constituency as long as it lines up with your beliefs…
hypocrisy owned…
57
I’m not a fan of unconstitutional laws, even if those laws have popular support. We are a nation of laws, not people. That’s why we have judicial review. I do not believe Robbie has a good faith belief that the healthcare bill is unconstitutional. I believe he is pursuing this case purely for his own political reasons.
@58 Bingo.
Sue his ass.
Make the judgment part of his “campaign costs” or something.
When he couldn’t find one single right wing law professor at UW to defend his position what does that tell you? If you are a realist a lot. If you are a wingnut, nothing tells you anything except Obama is bad and conservatives and jeezus iz good.
I think if I sued McKenna for wasting MY tax payer money on this frivolous law suit, my suit would have far more merit than his….