Legal Briefing: 13 States Sue to Halt Health Care Reform


A daily look at legal news and the business of law:

State Attorneys General Health Care Lawsuit Update

So far the multistate suit has grown to 13 states, spearheaded by Florida. (The other 12 are South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho and South Dakota). The complaint included the expected Commerce Clause claim; asserted a Tenth Amendment (all other powers to the states) sovereignty violation for the way it forces states, among other things, to expand Medicaid coverage; a "direct tax" violation for the one-size-fits all penalty if a person doesn't buy health insurance; and -- this is my favorite, I can't tell if it's Freudian or not: "the Act deprives [the States] of ... their right to a republican form of government, in violation of Article 4, Section 4 of the Constitution" (italics added). I mean, 12 of the 13 Attorneys General are Republicans, and the outrage over the bill in Congress is a Republican phenomenon...

Seriously though, the Supreme Court hasn't issued many rulings relating to this section of the Constitution; in the main case on what constituted a "republican" form of government, the Court found it to be a "political question" not for the courts to decide. Although the facts of the case aren't at all similar to the health care law challenge, the novelty of the Attorneys General's approach is apparent from another source. A 2008 Congressional Research Service report on "Federalism, State Sovereignty and the Constitution: the Basis and Limits of Congressional Power" never mentions Article 4, Section 4, although it does touch on other sections of Article 4. I wonder what the courts will make of the claim.

Should the Owners Have Known the City Took Their Property?

In 1997, Edward and Nancy Klummp sought permits to build on their vacant beachfront property, and were not only told "No" by the Town of Avalon, they were told they no longer owned the property. The Klummps sued, seeking just compensation, as would have been due under an eminent domain condemnation. Two levels of lower courts ruled against the Klummps, and the case was just heard by the New Jersey Supreme Court.

1962, a massive storm wiped out homes in Avalon, New Jersey, including the Klummp's. The town responded by clearing away the debris, imposing shoreline protection regulations, abandoning access roads, building dunes, and changing the assessment of the property to $100, with an annual tax bill of 46 cents. In 1979 the town changed the zoning to be open space. Meanwhile, the Klummps paid their 46 cent property bill, and periodically asked the town about the land's status, getting no answer; neither a condemnation case nor a notice of taking was filed.

The city asserts the taking occurred in 1962, starting a six year statute of limitations clock for the Klummps to sue for compensation. One of the lower courts found the 1979 rezoning also constituted a taking; in that case, the statute of limitations would have expired in 1985. According to the New Jersey Law Journal's reporting, the Justices were skeptical of both sides.

And in the Business of Law...

18 partners from Hartson and Hogan are leaving as part of a shake-up driven by its merger with Lovells.

If you're an associate at a firm making layoff decisions, keeping your job depends on how long you've been at the firm and whether or not any partners went to your school, more than whether your degree comes from a top tier law school.