(The Return of) Ignatz, by Sam Heldman

Saturday, November 30, 2002

Supreme Court (II)

Tues 12/3 brings a case arising under the Fair Housing Act, 42 U.S.C. § 3601 et seq. The case is Meyer v. Holley, and the Ninth Circuit's decision (pdf) is here. The question is, who is liable for race discrimination in real estate sales? Just the racist agent who directly committed the discriminatory act? The Ninth Circuit, relying on a HUD regulation, said that liability goes beyond that agent, and attaches not only to the corporation that employed the agent but also to the agent's boss, because he owned the corporation and had the authority to control the agent's actions. The boss as Petitioner – along with the United States as amicus – says that allowing the imposition of liability on an individual corporate officer/supervisor goes beyond the intent and language of the statute, beyond the intent and language of the regulations, and beyond the normal boundaries of what the law usually allows. I'm predicting that the Court will agree and REVERSE for one simple reason: they wouldn't have taken the case unless they wanted to reverse. There's no split in the Circuits as far as I can tell – quite the contrary, in fact, it seems from reading the Ninth Circuit's opinion and the government's amicus brief – and no real burning need throughout the nation to have this issue addressed by the Supreme Court, so there's no reason why the Court should have taken the case except that it has "liberal Ninth Circuit, let's reverse 'em again!" written all over it. You could say, I suppose, that it only takes four to grant cert so this only proves that there are four who wanted to reverse (or maybe three and one who went along for the ride) and that Justice O'Connor might provide a fifth vote for affirmance; but I think that these Justices have been working together long enough and are good enough at counting each other's noses that they don't tend to grant cases without a Circuit split unless the Justices who want to reverse are sure that they can get the votes to do so. This is the same dynamic I've talked about before as to the juvenile death penalty issue; you don't provide the fourth vote for cert unless you're pretty confident that your view will prevail on the merits, because (at least where there's no split in the Circuits) a Supreme Court decision with which you disagree is usually worse than no Supreme Court decision at all.

By the way, for those millions of you following this case closely, the U.S. does say – even though it disagrees with the Ninth Circuit's theory – that a remand would be appropriate to allow plaintiffs to pursue a theory of "piercing the corporate veil". Thus the U.S. styles itself as being on Respondents' side and asks for "affirmance" of the Ninth Circuit decision to remand the case. I doubt that the Court will address the "piercing" point, and certainly guess that – even if the Court wants to allow further proceedings on that – it will call itself "vacating" or "reversing" the Ninth Circuit's decision rather than "affirming" as the U.S. would have it.

* * * * * * *

The second case for Tues 12/3, Wash. State Dep't of Soc. & Health Svcs. v. Guardianship of Keffeler comes from the Supreme Court of the State of Washington. The case involves kids who are receiving Social Security benefits who are in foster care. More precisely, the state agency sometimes gets itself appointed as "representative payee" for those benefits – i.e., it receives the check on behalf of the kid when no one else has gotten appointed to do so – and then the agency pays itself back, out of the kid's benefits, for the payments it gives the kid's foster parents. The Wash. S.Ct. said that this violates the federal Social Security law, which says (in paraphrase) that a kid's creditors can't take his benefit payments. The State (supported by the U.S. as amicus), on the other hand, says "That doesn't make any sense. If a kid's natural and custodial parent was the representative payee, the parent could use the kid's benefits to pay for her food, clothes, and whatnot. We're just doing the exact same thing!"

This is a hard case, I think – hard mostly because the state agency isn't really using each kid's benefits to pay for that kid's favorite cereal, or shoes with pictures of Bob the Builder on them; instead, it's reimbursing itself according to an across-the-board schedule. So the State's analogy of itself to a parent is far from perfect, even leaving aside the emotional factors. And whichever way the case comes out, it seems like there will be some inequality in how various kids are treated; some foster kids' benefits will be gobbled up to pay for necessities, and other foster kids' won't, depending on who their "representative payee" is. A mess.

A total shot in the dark: the Court will REVERSE.

posted by sam 6:09 AM 0 comments


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