(The Return of) Ignatz, by Sam Heldman

Saturday, December 07, 2002

Supreme Court

The second case to be argued Monday 12/9 is Washington Legal Foundation v. Legal Foundation of Washington (make your own joke about the parties' names). On the surface, this case is about the Fifth Amendment's "takings" clause, and property rights, and some narrow questions in that field. Just below the surface is that this is an ideologically- and politically-driven attack on funding for poor peoples' access to legal services, as well as being more generally a part of the ideologically- and politically-driven "property rights movement", which is a right-wing effort to have judges override the decisions of elected officials based on one part of the Constitution (its protection of "property") even when they decry the exercise of judicial power based on other parts of the Constitution. Read more from law.com if you're interested in the politics behind the case.

It has to do with IOLTA: in many states, the Interest on Lawyers' Trust Accounts (the accounts in which lawyers briefly put the money that is going to their clients) is sent to the Bar Association or similar entity and then used for designated purposes, often for legal services for poor people. Some people think that this amounts to an unconstitutional "taking" of that interest that would violate the Fifth Amendment. The Supreme Court heard a case in this field a few years ago, deciding that the interest did indeed constitute "property"; but it did not decide, then, whether this meant that funneling the interest to the state constituted a "taking" or whether there could be a remedy for it. Now these remaining questions are presented for the Court's decision.

The Ninth Circuit rejected the attack (i.e., ruled in favor of the program) in this opinion (pdf). What will the Court do? You can't predict this one, I think, based on a hunch as to who's right and who's wrong; there are plausible arguments on both sides so it comes down to those darn intangibles and could very well be a close decision. Here's the pro's and con's:

* In favor of reversal is the fact that this was a decision of the Ninth Circuit, and one that is generally categorizable as "liberal." Such decisions don't tend to be affirmed by this Court. (But see counter-example in next para. below). Also in favor of reversal is the fact that the Court (these same 9 Justices) ruled in favor of the IOLTA-haters last time, and (remember the quote I mentioned a few weeks ago from Chief Justice Hughes about predilections) this tends to suggest, other things being equal (which they never are), that they'd do the same again this time.

* But in favor of affirmance is this crucial fact: when push comes to shove, this Court is sometimes reluctant to accept the arguments of the "property rights movement" folks. Here's an example, and sort of a funny one, I think: In his dissent in this case, the very smart pro-"property" Judge Kozinski accused the Ninth Circuit majority of once again "ignoring" Supreme Court property-rights precedent; the other example of such "ignoring", he claimed, was a then-recent case about development at Lake Tahoe, which he described as also quite obviously contrary to the Supreme Court majority's view. But shortly after Judge Kozinksi made that rather harsh accusation, the Supreme Court agreed with the Ninth Circuit in the Tahoe Case, and rejected Judge Kozinski's reading of precedent. Maybe they’ll do the same in this case.

* Finally – and here I'm either saying something clever or something stupid, I don't know which – I can't figure out a reliable limiting principle by which the Court could rule for the IOLTA-haters in this case yet allow such things as sales taxes (which amount to a taking of my property!) and income taxes (which amount to a taking of my property!). Sure, one could argue that IOLTA interest is in some metaphysical sense "identifiable" money while taxes are "undifferentiated" money – but money is money is money, I think, and so a "takings" jurisprudence that forbids the government from taking private money for public purposes would be a monster hard to contain. Maybe that's the IOLTA-haters' real goal – to unleash that monster?

How does this come out? It's close. I'm saying "AFFIRM."

posted by sam 7:07 AM 0 comments


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