Justice for the Rich; Slapdown for the Rest of Us

In a September 30, 2016 decision, Price v. Medicaid Director, 838 F.3d 739 (6th Cir. 2016), The U.S. Sixth Circuit Court showed its lack of compassion and understanding of those who have limited income and modest net worth. The court held that while nursing home residents may have their eligibility for care paid by the state backdated up to three months before they apply for Medicaid, assisted-living residents, whose benefits are generally much lower, may not. The court took pains to resolve ambiguities against the impoverished assisted-living residents in contrast to the court’s willingness to find loopholes that favor wealthy taxpayers in a very recent tax case.

The key ruling in Price is that federal law prohibits the state from extending eligibility for Medicaid assisted-living services under the Home and Community-Based Services Waiver, or simply “Waiver,” that are rendered before a beneficiary’s “service plan” is approved. The Medicaid application for nursing home residents is effectively a one-step process because they are determined eligible for the services when admitted. Application for Waiver benefits has two steps – financial eligibility determined by the Medicaid agency and physical need evaluated by a “Waiver Agent,” typically the Area Agency on Aging, which develops the service plan. Depending on the region, applicants might wait six months or more on a waiting list for the Waiver Agent to get around to evaluating them.

While nursing home applications can languish for months on a Medicaid worker’s desk, on approval the eligibility begins with the application date if the applicant was then factually eligible. It is even possible to apply for three months of benefits preceding the original application. Waiver applicants get no such treatment. According to the Price decision, eligibility for benefits begins, if at all, when the Waiver Agent signs the service plan.

Price and the other plaintiffs sued the Ohio Medicaid director, complaining that Waiver beneficiaries should be eligible for retroactive benefits the same as nursing home Medicaid beneficiaries. The operant provision in the Social Security Act reads, in part, as follows:

[S]tates must offer Medicaid assistance to all beneficiaries for care and services included under the [Medicaid] plan and furnished in or after the third month before the month in which [the beneficiary] made application … for such assistance if such [beneficiary] was (or upon application would have been) eligible for such assistance at the time such care and services were furnished. 42 U.S.C.A. § 1396a(a)(34).

According to the court’s rationale, the plaintiffs would have been entitled to Waiver reimbursement during the three months prior to their applications only if those services were provided, under 42 U.S.C.A. § 1396n(c)(1), “pursuant to a written plan of care.” “Pursuant” means “after,” in the court’s view. Thus, a prospective Medicaid beneficiary is eligible only after the service plan is signed. Price v. Medicaid Dir., 838 F.3d 739, 747-49 (6th Cir. 2016).

The court could have reached the opposite result if it had based its rationale on “or upon application would have been” eligible, which would relate backward, rather than its dubious reliance on the temporal aspect of “pursuant to.”

To buttress its holding, the court observed that a prospective applicant could request an evaluation and service plan in advance of applying for Medicaid. This is asinine. There would seldom be such an opportunity.

In the first place, the family would have no way of knowing that it would be necessary to ask for an evaluation that early unless they have an elder-law attorney on retainer and consult him or her almost constantly. Secondly, the need to apply for Waiver services generally comes close on the heels of the need for care.

Comparing this decision to a tax decision, Summa Holdings v. Commissioner, No. 16-1712, Slip Op. at 5 (6th Cir. Feb. 16, 2017), it is clear that the court cares deeply about preserving rich families’ millions and not a all about preserving poor families’ pittances.

The tax attorneys for the Benensons, a wealthy family near Cleveland, Ohio, concocted an ingenious tax strategy involving a “domestic international sales corporation” (DISC) and Roth IRAs. According to the decision:

Summa Holdings is the parent corporation of a group of companies that manufacture a variety of industrial products. Its two largest shareholders are James Benenson, Jr. (who owned 23.18% of the company in 2008) and the James Benenson III and Clement Benenson Trust (which owned 76.05% of the company in 2008). James Benenson, Jr. and his wife serve as the trustees, and their children, James III and Clement, are the beneficiaries of the Trust.

In 2001, James III and Clement each established a Roth IRA and contributed $3,500 apiece. Just weeks after the Benensons set up their accounts, each Roth IRA paid $1,500 for 1,500 shares of stock in JC Export, a newly formed DISC. The Commissioner did not challenge the valuation of these shares then and has not challenged them since. To prevent the Roth IRAs from incurring any tax-reporting or shareholder obligations by owning JC Export directly, the Benensons formed another corporation, JC Holding, which purchased the shares of JC Export from the Roth IRAs. From January 31, 2002 to December 31, 2008, each Roth IRA owned a 50% share of JC Holding, which was the sole owner of JC Export.

With this chain of ownership in place, the family, trust, and company were a few clicks away from the possibility of considerable future tax savings. Summa Holdings paid commissions to JC Export, which distributed the money as a dividend to JC Holding, its sole shareholder. JC Holding paid a 33% income tax on the dividends, then distributed the balance as a dividend to its shareholders, the Benensons’ two Roth IRAs. From 2002 to 2008, the Benensons transferred $5,182,314 from Summa Holdings to the Roth IRAs in this way, including $1,477,028 in 2008. By 2008, each Roth IRA had accumulated over $3 million.  Summa Holdings, Slip Op. at 5 (Feb. 16, 2017).

Each of these cases turned on subtle legal principles that could have been resolved either for or against the appellants. It is not coincidence or simple luck that the wealthy litigants won and the poor ones lost.

This is not to say that federal courts never issue decisions that disadvantage the rich or help the poor. However, studies clearly show that the courts have a marked proclivity to favor wealthy litigants over poor ones. Michele Benedetto Neitz, “Socioeconomic Bias in the Judiciary,” 61 Cleveland State L. Rev. 137 (2013); see also Ga. Supreme Court Comm’n on Racial & Ethnic Bias in the Court Sys., “Let Justice be Done: Equally, Fairly, and Impartially,” 42 Ga. St. U. L. Rev. 687 (1996).

Occasionally, a jurist is perceptive enough to comment on the disparity. Dissenting from the court’s decision in United States v. Pineda-Moreno, 591 F.3d 1120 (9th Cir. 2010), Chief Judge Alex Kosinski stated,“No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity, or sex, are selected from the class of people who don’t live in trailers or urban ghettos.” He termed this “unselfconscious cultural elitism” and observed that for him and his colleagues “the everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live.” Pineda-Moreno at 1123.

There was a time when lawyers and judges were socially and economically closer to their clients and litigants. Abraham Lincoln, who attended school for less than a year was a case in point. In 50 years, the law has changed from a reasonable career choice for those on the lower rungs of the economic latter to all but unreachable even for the lower middle class. Prior to World War II, legal education in the United States was more haphazard. In Michigan, only two years of college were required before law school. By the 1970s, admission to law school in Michigan and most other states required a bachelor’s degree. Law school tuition was relatively affordable up until the 1990s. Since then, tuition has skyrocketed. The legal profession has become the province of the affluent.

We in the elder law and disability rights community cannot reverse decades of elitist self-selection in our profession. However, we must become aware of the “unselfconscious cultural elitism” in ourselves and the hearing officers and judges we practice before.

We can relate socially with most of the judiciary because we speak their language. Our kids go to school with their kids. We see them at PTSA meetings and civic events. What we must do is learn to relate to those who live in trailer parks and ghettos and truly accept their humanity. Then, perhaps, we can communicate what we have learned to the hearing officers and judges making crucial decisions about their liberty and property.

John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200

©2016 John B. Payne, Attorney

Why Men Need Women

The lead article in the New York Times Sunday Review is “Why Men Need Women.”  Do you think they will follow up with “Why Women Need Men?”  That would set the the Guinness record for the world’s shortest article.


Why would I say such a thing?  Consider Exhibit A, to the left, and Exhibit B, to the right.







John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2013 John B. Payne, Attorney

Religious Liberty and Conscience Protection Act

The Religious Liberty and Conscience Protection Act has been reintroduced in the Michigan Senate as SB-0136.  See my prior post, “Michigan Senate’s Religious Supremacy Bill,” for discussion.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2013 John B. Payne, Attorney

Obamacare Individual Mandate Tax Compliance Form Hoax

A client told me today that his wife received an “Obamacare Individual Mandate Tax Compliance Form” that the IRS is now requiring. I told him that I found that hard to believe and asked him to fax it to me.

When I received the form pictured here, obamacare hoax I found that it was a hoax perpetrated by anti-health-care activists to incite opposition to the Affordable Care Act. If you look carefully at the bottom of the first page and the upper right corner of the second page, it states that this is not a real IRS form.

The perpetrators of this scam clearly find the facts insufficiently persuasive in supporting their position. Since the facts of the Affordable Care Act do not support repeal, they find it necessary to resort to mendacious stunts intended to fool the unsuspecting.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2013 John B. Payne, Attorney

The Elephant in the Gunroom

Although it is difficult to enter a conflict as contentious and publicly debated as gun control without repeating well worn arguments of the pundits, talk-show callers, Fox News talking heads and anti-gun activists, there is still an elephant in the gunroom. Neither the National Rifle Association nor the Brady Center to Prevent Gun Violence explicitly discusses the rationale for permitting private citizens to own semi-automatic military-style rifles with 30-round magazines – armed insurrection.

A middle-aged woman in a private conversation stated that the purpose of owning an AK-47 or Bushmaster AR-15 is for defense against the government! This was a stunning assertion from someone who does not own any firearms. It also betrayed a profound lack of insight into the issue.

Second Amendment fanatics prattle about comprising a “militia,” and preach protection against “government excess,” but this is never explained in plain terms. Certainly the ramifications are not explored. Anyone who critically examines the NRA’s reasons for permitting the ownership of assault weapons must realize that they are absurd.

As a veteran of the ‘60s, I have given much thought to the possibility of armed revolution in the United States. Seeing tanks on the streets of Detroit and police officers and sheriff’s deputies lining streets in Ann Arbor nearly shoulder to shoulder, it would be difficult not to imagine that a revolution might be starting. Friends who were politically aligned with the Students for a Democratic Society and the Weathermen sometimes told me that when the revolution started they would put in a good word for me. They were only half joking.
Wounded Knee 1973

This country has seen many armed confrontations between citizens and the government, from the Whiskey Rebellion to the Civil War, to Wounded Knee, 1890 and 1973, to MOVE, and to Waco. They have always ended badly for the insurrectionists due to the overwhelming force that the U.S. government is able to bear on the situation. Federal agents may be reluctant to use force due to public-relations concerns – concerns that are not shared by governments in Syria, North Korea, Algeria, and other countries – but the end point is always the same. The insurrectionists are subdued or dead.

Back in the day, surrounded by angry Aquarians, it was possible to imagine that real change was on the horizon. We would topple the regime and destroy the “military-industrial complex.” However, that was a dope dream. Not only would we be confronting the massive police and military might of the government, a huge majority of our fellow citizens would actively oppose our insurrection. This country is too diverse for a revolution and most of the population has too great an investment in the status quo to support radical change. Groups who would support a change in one direction are counter-balanced by opposing groups.

As a member of the Viet Nam-era anti-war movement, it was easy to lose perspective. We were able to muster five-figure crowds for protest marches, but we were still a minority, as were the ardent pro-war activists. We would never have succeeded by bombing recruitment offices or shooting at police. Violence is counter-productive, as the real leaders of the civil-rights movement demonstrated. The most important violent act for the anti-war movement was when the Ohio National Guard killed four Kent State students on May 4, 1970. This incident inspired previously-uncommitted citizens to oppose the war much more effectively than marches and draft card burning.


What would have been the result if the Branch Davidians or the MOVE activists had been better armed? Only greater bloodshed. The government would not throw in the towel. The Black Panthers were very well armed, but Fred Hampton and Mark Clark were killed in an early morning assault on their home, without the opportunity to defend themselves. The Michigan Militia is allowed to play war games in the woods, but if it became apparent that they were trying to create an independent republic or that they were defying the legally constituted government in a significant way, they would be rounded up like Patty Hearst and the Symbionese Liberation Army.


Unfortunately, fanatics get caught up in a spiral of more and more outlandish rhetoric. As their claims get more bizarre, they and their followers stretch their own credulity and come to believe their own exaggerations. The result is that they drink the Kool-Aid or barricade themselves in a booby-trapped compound. The NRA is no exception.

Second Amendmentaries have a strange idea that at some point it might be necessary for Real Americans to throw off the yoke of oppression by armed rebellion. Timothy McVeigh or Anders Breivik might believe that a few thousand well-armed and determined patriots might overthrow the government, but no one who is at least as sane as Nicki Minaj would harbor such a delusion.

As a legitimate rationale for opposing a ban on military-style weapons with high-capacity magazines, defending our liberties fails the scratch-and-sniff test. If you scratch the surface of the argument, you immediately smell bovine manure. The firearms industry and Second Amendment fanatics are trying to convince the gullible and paranoid that it is patriotic to maintain an arsenal to defend against the government. If there is logic to this position, it escapes me. However, it sells Bushmasters.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2013 John B. Payne, Attorney

Fiscal Cliff or Economic Pothole?

Once again, the Big News is that we are about to crash and burn. Is the cataclysm a week away, or did the Mayans just forget to get on Amazon and order a new calendar? Are we really at the edge of a fiscal cliff, or are we about to hit an economic pothole? What we have is a hyper-, super-, mega-conspiracy of The Mayans and The Media. They got together and decided that we are well and truly at The End of Time. At least that is what we are told. The real story behind the Mayan Armageddon is more prosaic.

The Chief Prognostication Officer of the Mayan Empire was in a bad mood one day and said, “Enough with the questions, already! I am ganze krank of your ‘What next, Oh Great Quetzl-Schmetzl (Feather-on-the-Anus-of-the-Sun-Bird)?’

“I predicted the Norman Conquest, the Magna Carta, the Italian Invasion of our land, Francis Bacon’s authorship of the works of Shakespeare, the fall of the Alamo, World War I, World War II, the most beautiful car ever (1957 Chevy), Jimmy Hoffa’s disappearance, AIDS, a Polish pope, Michael Jackson’s death by propofol overdose, and Hurricane Sandy, but is that enough? Noooooo! It’s always ‘What next, Oh Great Quetzl-Schmetzl?, What next, Oh Great Quetzl-Schmetzl?’

“So here’s one for you: The world will end on December 21, 2012! Oi vey! Are you gescheftig happy, now?”

That is the real, true story behind The End of the World according to the Mayan Calendar. The Fiscal Cliff has a similar origin. President Obama and Mitch McConnell got together and the conversation went something like this:

“Look, Mitch,” the President said, “We really need to do something about this budget stalemate. Now, I know that we need to make some cuts in social programs, but I have to keep the Democratic pinko fringe happy. I can’t just agree to cuts.”

“I know what you mean, Barry. I have to cover my butt crack against the TEA Party wing nuts on the right.”

“How about this, Mitch? The Democrats agree to reductions in everything and the Republicans agree to end the Bush-era tax cuts unless Congress gets its act together in the next year and works out a realistic compromise.”

“Sure, Barry, that’ll happen. Right after the Lock Ness Monster gives a press conference and Jimmy Hoffa is rescued from the basement of Andiamo’s, where he has been held prisoner for the last 37 years.”

“No, look, Mitch, neither one of us wants to take the blame here. We need to set it up so it looks as if we came up a reasonable plan, but it is out of our hands if it doesn’t work. We should give this plan a scary name and pretend it will really happen. How about the Monetary Miscarriage?”

“It might work. How about Budget Breakdown? Capital Catastrophe?”

“I’ve got it, Mitch. We’ll call it the Fiscal Cliff.”

“Forget that Barry, the first letters don’t match. Economic Earthquake? Financial Fiasco?”

“ We’ll think of something. Do you have any cigarettes?”

Fast forward to December 2012. John Boehner and the President are meeting:

“OK, John, we are agreed that we won’t do anything until after the first of the year. We know that the Fiscal Cliff is really a speedbump. So we let things go and on January 1 we start running around screaming ‘The sky is falling! The sky is falling!’ I agree to some shrinkage in social programs and you agree to let tax rates for the top 2% go up. But what if someone tells the American People that the Fiscal Cliff is a hoax?”

“Get real, Barry! It is in everyone’s interest to keep the myth alive. The Democrats and the Republicans both want to keep their lunatic fringes thinking their parties are taking them seriously. The media love the Fiscal Cliff. Otherwise, they’d have to try to find real news to talk about. Nobody is about to blow the whistle. Are we all set here?”

“We’d better not break up too soon here. We want to give the impression that we are involved in tough negotiations. Do you want a beer? If you have some cigarettes, I’m dying for a smoke.”

Relax, America. The world is not ending on December 21 or December 31. Enjoy the holidays and get a chuckle out of watching the Doomsday Prophets. There are times when they are as funny as the Cable Guy.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2012 John B. Payne, Attorney

More Taxes, More Prosperity

The conservative lobby is trying to shrink government at all levels to reduce taxes and shrink deficits. There is often some budgetary waste that can be cut, but state and local government budgets have been stripped to the bone by falling tax receipts. The drop in real property values and the curtailment of consumer spending have already strangled governments at all levels causing layoffs of essential civil servants like police officers, fire fighters, licensing and regulation field workers, department of motor vehicle clerks, teachers, and others. Despite current austerity, there is a hard-core cadre of small-government fanatics who continue to press for further tax reductions and civil service layoffs. There is no government function they would not cut and no government position they would not eliminate. Small-government zealots are under the misperception that business was unregulated and the civil service was an insignificant part of the work force back in the “good old days.”

Contrary to anti-government TEA Party claims, until the 21st Century, one of the driving forces of the burgeoning economy and rising middle class was the civil service. Reasonable pay, job security and liberal fringe benefits made civil service an avenue for poor and under-privileged workers to move up the economic ladder. From the Byzantine Empire to the industrial revolution – up to the latter part of the 20th Century – government employment was considered an essential component of the economy.

Patronage, the awarding of civil service jobs, was a major force in local politics prior to the development of the “merit system” in the 19th Century. Poor, uneducated Irish, Italians and other minorities could parley their votes and service to the party for employment in the police, fire and sanitation departments, and other government jobs. However, the rising political influence of these immigrant populations prompted the established upper and middle class to institute the “merit system,” which excluded those who lacked adequate education. Just as tests of “scholastic aptitude” designed by the dominant culture have been used to screen out minorities with different cultural norms and experiences, civil service examinations were created as a bar to Irish, German, Polish, Black and other job candidates who lacked English facility and cultural literacy. The merit system, in short, was a way to prevent the under class from gaining advantage from their one political asset: the vote.

Now the wealthy – referred to as “job creators” by the Right Wing – are once again eliminating civil service jobs to forestall upward economic mobility. Federal deficits have never dampened economic growth in the manner claimed by TEA Partiers and conservative pundits. A vigorous civil service and spending on infrastructure bring down unemployment and strengthen the nation. Taxpayers, particularly the wealthy, must be prepared to shoulder the cost of adequate government, a proposition that voters endorsed heartily on November 6, 2012.

On Sunday, November 4, 2012, in a New York Times opinion, “America’s Leftward Tilt?,” Drew Westen stated the following:

Indeed, one of the most powerful messages the Democrats chose not to use in the 2010 midterm elections — which would have supported a policy that was extremely popular then and remains as popular now — was a simple message on taxes I tested nationally, which won in every region and with every demographic, including TEA Partyers: “In tough times like these, millionaires ought to be giving to charity, not getting it.” Once that position (and other populist appeals) became central to Mr. Obama’s presidential campaign, the election looked like it would be a rout.


In today’s message on the economy, President Obama reiterated his determination to raise taxes on the top 2% – those with more than $250K annual income. He must not back down. It would be a mistake to kowtow to Grover Norquist, John Boehner and the Anti-Government Wrecking Crew.

Taxes are not a burden, they are an opportunity. We should listen to Oliver Wendell Holmes, Jr. He said, “I like to pay taxes. With them, I buy civilization.” They also buy prosperity for the civil servant and economic security for the nation.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2012 John B. Payne, Attorney

The American Aristocracy

In an opinion in the October 14, 2012 Sunday New York Times, “The Self-Destruction of the One Per Cent,” Chrystia Freeland describes the collapse of one of the world’s richest economies. She draws a parallel between 14th Century Venice and 21st Century United States that might be taken as a lesson in class warfare.

Venice became rich and powerful because her middle- and merchant-class citizens were able to invest in ventures alongside the city-state’s elite. This egalitarian participation in risk and reward benefitted everyone. However, in 1315 the upper class published an official register of the nobility – the Libro d’Oro, or Book of Gold. No one who was not in the Book could join the ruling oligarchy. This change, called The Closure, or La Serrata in Italian, resulted in cutting off commercial opportunities for new entrants. The nobility became entrenched and commerce was stifled, resulting in an ever-widening gap between the one percent and the rest of society.

We can see the seeds of our own decline in the ever-widening gap between the one percent and the rest of us. Our plutocrats cry “class warfare” if a tax increase on the wealthy is proposed. However, the war is being waged by our plutocrats on our middle class. The financial starvation of our public school systems and legacy admissions to elite colleges are turning education into a “gated community” reserved for the American aristocracy.

The incestuous, nepotistic nature of corporate governance and the flagrant rape of corporate treasuries by CEOs and directors has been described in “Bank Piggies” and “‘Get Your Boot off My Neck’ is Class Warfare?” Ms. Freeman’s column shows that the recent Recession may have been triggered by a real estate bubble and poorly regulated financial institutions, but the cause was a more prolonged fiscal malaise that is reflected in the stagnation of lower- and middle-class earnings. The unrestrained accumulation of the nation’s wealth by the super-rich is pushing the rest of us deeper and deeper into debt and despair.

It is not just the exportation of manufacturing jobs to other countries that forces so many of us to work for lower wages and no benefits. It is also the American version of La Serrata and elimination of the progressive income tax. In the Eisenhower Administration, income tax rates ran as high as 90%, yet we were in a period of economic expansion that created the Interstate Highway System, put human beings on the moon, built a massive nuclear weapon system, established Medicare and Medicaid, and fought a devastating series of wars in Indochina.

What brought us down? Perhaps it was relieving the wealthy of responsibility for paying their fair share of the cost of government and allowing them to establish themselves as oligarchs and aristocrats.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2012 John B. Payne, Attorney

Don’t Stop: You’re Killing Me!

Scott Graham’s September 17, 2012 article, “Killer of Three Who Wanted To Die May Get His Wish,” in “The Recorder” reflects the absurdity of capital punishment as it is practiced in the United States. Ronald Deere killed his girlfriend’s brother-in-law and two children in 1982. Contrary to the expression “Runs like a Deere,” he plead guilty and requested execution, but Deere’s criminal prosecution is still going on. On Monday, September 15, 2012, Deere’s attorneys were arguing for Deere’s life against the state of California, in the U.S. Ninth Circuit Court.

Michael Satris, a Bolinas-based sole practioner, argued that Deere is compelled by a mental disorder to self-mutilate and seek his own destruction. He wants to die for his crimes; so let him have his wish. In the twisted logic of capital punishment jurisprudence, Deere was competent enough to refuse examination by the prosecutor’s forensic psychologist, which prevented the trial judge from having enough evidence to rule him competent. This is like the insane prisoner on death row who cannot be executed until he has been treated and rendered sane. What is the point? Croak him while he is crazy. It would be added cruelty to bring him to sanity only to give him the needle.

This is not to say that capital punishment is the rational response of a just society to commission of a crime. There is no reason to have capital punishment, but a few hundred unjust deaths a year is negligible. This country sends thousands of young adults off to die in foreign wars. Thousands die of food poisoning because the government is too cheap to inspect our food supply properly and thousands more die because our society does not insist on proper health care for all. So why do we have this myopic, irrational approach to the death penalty? More to the point, why have the death penalty at all?

It is not cost-effective. Look at the Deere case. Even without a trial, tens of thousands of billable hours have been expended on litigation over whether to execute or imprison for life. If the sentence had been life with no parole, the prosecution would have been over within a year.

I represented hundreds of prisoners under life sentence as their appointed appellate attorney. Seldom is there more than one round of meaningful appeals. Occasionally there is a second trial. Legal costs for the prosecution is unlikely to exceed $100,000. That sounds like a lot, but death penalty cases go up and down the appellate ladder over and over. One million in prosecution costs is cheap for a capital case. It is much cheaper to house a murderer for life than it is to prosecute a capital case to execution.

No studies support the argument that capital punishment is more of a deterrent than a life sentence. In the first place, offenders do not want to go to prison, anyway. Secondly, a person who commits a murder is assuming that he or she will get away with it.

Apart from a crime of passion by someone who does not care whether he or she is caught, offenders expect to get away with their deeds. No one would decide to commit a particular murder simply because the state has no capital punishment. That decision would only occur if the offender expected to be prosecuted and had no aversion to life in prison. Would someone stick a hand in a meat grinder if assured that only the fingers would be lost and not the whole hand?

Ronald Deere’s case illustrates the insanity of capital punishment. Hopefully, in a few years we will look back on this era and wonder why we ever interpreted the Eighth Amendment to allow the state to commit murder.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2012 John B. Payne, Attorney

The New Pennsylvania Photo ID Voting Law – “Say Cheese.”

Today’s post is presented with the permission of Prof. Larry Frolick. Since I could not improve on his comments, I decided to offer them:

In March 0f this year, Pennsylvania enacted a law requiring voters to present one of several forms of photo identification in order to be allowed to vote. In May, four organizations, including the League of Women Voters and the NAACP, along with several individuals represented by the ACLU, brought suit in the Commonwealth Court seeking relief in the form of a preliminary injunction to enjoin the enforcement of the new law. The petition alleged, inter alia, that the new law would disenfranchise and deter qualified voters from exercising their fundamental right to vote.

The petitioners claimed that the act violates the Pennsylvania Constitution in three respects. First, it unduly burdens the fundamental right to vote guaranteed in Article I, Section 5 of the Pennsylvania Constitution, which states that “Elections shall be free and equal. . .” Second, the act imposes burdens on the right to vote that are borne unequally by the voters in violation of the equal protection guarantees of the Pennsylvania Constitution. Third, it imposes an additional qualification on the right to vote in violation of Article VII, Section I of the Pennsylvania Constitution, which provides that individuals are qualified to vote if they:

• Are age 18 or old,

• Are citizens of the United States,

• Resided in the state for 90 days prior to election, and

• Resided in the election district where voting for 60 days prior to the election

On August 15, 2012, Commonwealth Court Judge Robert Simpson refused to issue injunctive relief, holding the law’s burdens on registered voters did not amount to an unconstitutional inference with the right to vote.

Under the new law, in order to vote, a registered voter must show:

• A Pennsylvania driver’s license that is currently valid or will expire in less than 12 months at the time of the vote,

• An ID issued by PennDOT that is currently valid or will expire in less than 12 months at the time of the vote,

• A U.S. passport with an expiration date after the date of the election,

• An active duty or retired U.S. military ID, including ID for members of the Pennsylvania National Guard,

• A military dependent’s ID that has an expiration date,

• An ID issued by an accredited Pennsylvania university, etc. that has an expiration date,

• An ID issued by a Pennsylvania care facility, such as a nursing home, that has an expiration date, or

• For those with religious objections to being photographed, a non-photo ID issued by PennDOT.
Interestingly, the address on the photo ID need not match the address where you are registered to vote.

If you don’t have a proper ID, you can get one at a PennDOT Drivers’ License Center, which are located throughout the state. But there are only a limited number of such Centers. For example, the PennDOT website lists four Photo ID centers in Allegheny County, four in Philadelphia County, two in Bucks County and none in Forest County. It is not clear whether an AAA office that takes photographs and helps folks to obtain a driver’s license can similarly help them obtain an ID for voting.

The PennDOT photo ID is supposed to be free, but it is not easy to get. Applicants must provide: (1) a social security card; (2) an official birth certificate with a raised seal or a valid U.S. passport; and (3) two proofs of residency such as a lease agreement, bank statement (with address) or a W-2 form.

As I looked over the requirements, I wondered if my mother, when still alive, might have been able to vote. For the last 20 years of her life she did not have driver’s license, did not have valid passport, and had none of the other forms of acceptable identification. If she were alive and living in Pennsylvania today, I guess I could drive her down to a PennDOT ID Center, but that supposes I could find a proper copy of her birth certificate and locate her social security card assuming that she hadn’t lost it (as I have lost mine). In short, it would be a real hassle to qualify my mother to vote. My guess is that, in the face of these requirements, many, many “mothers” won’t bother.

And contrary to what some assert, there are many eligible, registered voters who don’t have a driver’s license, valid passport or University issued photo ID. Most Americans do not need a photo ID in their daily lives. They don’t fly, they are old enough not to be carded at a bar or a State Store, they use debit rather than credit cards and so are not occasionally asked for a photo ID, and they don’t rent a car or stay in a hotel that demands a photo ID. I realize that this does not describe the world of the Pitt Law Alum, but trust me, those folks exist, and they shouldn’t lose the right to vote merely because they are without a photo ID.

The right to vote is the most fundamental democratic right. It should be promoted and protected. The legislature has the obligation to establish laws that protect both the right to vote and the integrity of the vote, but the photo ID law fails to balance those two concerns as it wildly over emphasizes the integrity of the vote at the expense of the right to vote.

Now I am strong believer in judicial forbearance. Our courts are not the third branch of the legislature and should exercise considerable restraint before declaring a statute to be unconstitutional. And just because a law is a “bad” law doesn’t mean it is unconstitutional. But when a law impinges on a fundamental right, the courts should view it with a gimlet eye.

When, in his opinion, Judge Simmons, ruled that “strict scrutiny” was not the proper standard for judging the law’s constitutionality, you knew that that the plaintiffs had lost. To pass strict scrutiny, the law would have to be justified by a compelling governmental interest, be narrowly tailored, and be the least restrictive means needed to achieve that goal. Given the lack of any compelling proof of the need for a photo ID, it is hard to see how the law could survive that test. But the rejection of strict scrutiny permitted the Judge to rule that the law’s burdens, such as they are, do not need much justification.

The Judge cited the U.S. Supreme Court holding in the 2008 case of Crawford v. Marion County Election Board, 553 U.S. 181, in which the Court upheld the constitutionality of an Indiana law that required voters to produce a photo ID. The Supreme Court ruled the requirements of Indian’s ID law to be “eminently reasonable” and met the minimum burden of not being a “significant increase over the usual burdens of voting.”

Judge Simmons followed the lead of the Supreme Court’s and held that, “I am not convinced any qualified elector need be disenfranchised by [the act].” He also noted that the photo ID requirements do “not qualify as a substantial burden on the vast supermajority of registered voters.” He did concede that the act does place “a somewhat heavier burden on certain individuals,” such as those born out-of-state who may have difficulty obtaining a birth certificate, and “the elderly and infirm who have difficulty traveling to PennDOT Drivers’ License Centers, and homeless persons, also face a somewhat heavier burden.”

Well duh, as they say. That was the point of the lawsuit – the constitutionality of a law that imposes a heavier burden to exercise the right to vote upon a minority of voters.

We are not at the end of the game, however. The ACLU is appealing the decision to the Pennsylvania Supreme Court. In addition, the Justice Department is investigating the Pennsylvania’s voter ID law under Section 2 of the Voting Rights Act, which prohibits discriminatory voting practices. No word yet from the Feds.

Election fraud is real. If you don’t think so, read Robert Caro’s account in his book “Means of Ascent” about Lyndon Johnson’s first election to the U.S. Senate in 1948. It’s very clear that Johnson “won” the Texas Democratic primary by 87 votes only when late reporting districts conveniently provided him with just enough votes to procure the victory.

I have no doubt other elections have been won because of fraud in the reporting of votes or merely because of mistakes by incompetent election officials who miscount, lose or fail to report votes. But the new photo ID requirement does nothing to lessen that kind of fraud or mistake. It only serves to discourage or bar eligible registered voters from voting.

If you are like me, you have stood before a voting machine and wondered if your vote was actually going to be counted. You push some buttons and walk away trusting that someone, somehow, will see to it that your vote is tallied and added to the millions of other votes. But have you ever stood in a voting line and wondered if the person in front of you, Adam Adams, was actually Adam Adams and not an impersonator?

No? I thought not. Do we really believe that there are hundreds or thousands of folks out there who are impersonating others and “stealing” their votes. Think about it. If I want to illegally vote as John Burkoff, I have to know where John is registered to vote and get to the polling place before John does in order to claim his vote, or else hope or know that John is not going to vote that day. Is that plausible? Could I, and my vote-stealing colleagues, really pull this off in sufficient numbers to change the outcome of an election?

Of course not. There have been only 10 confirmed cases nationwide of voter impersonation since 2000. A photo ID law to bar voter impersonation is a solution in search of a problem. To swing an election would require hundreds or thousands acts of voter impersonation by scores or hundreds of voters. Try to imagine a mastermind determined to create fraudulent votes, who rounds up, pays, and trains hundreds of bad guys and gals to engage in voter impersonation, and not have this conspiracy become known. Conceivable yes. Realistically possible – no.

If voter impersonation fraud is not the reason for the photo ID requirement, what is? State Representative Mike Turzai gave away the game when he bragged to the Republican State Committee on June 23, 2012, that Pennsylvania’s new voter ID law would “allow Governor Romney to win the state of Pennsylvania,” – nothing like a little suppression of the vote to give your candidate a boost.
Still, I am willing to believe that not all who support the photo ID law are as cynical as Mr. Turzai. Many sincerely believe that the law will ensure fairer elections. Unfortunately, they are mistaken.

Estimates of how many eligible, registered voters who will not be able to vote vary widely – but all must concede that the number disenfranchised will far exceed the number of false votes that would occur if the ID law did not exist. Put it this way – we know that hundreds or thousands will be denied the vote because of the ID law, and, even if you think those who can’t vote are mostly to blame for failing to get the proper identification, other than your disgust at their incompetence, there is no justification for denying them the right to vote. Being reasonably competent or knowledgeable is not a prerequisite to having the right to vote. If we allow folks to vote who believe that President Obama is not an American citizen, surely we can allow folks to vote who lack a “proper” photo ID.

Voter suppression has a long and inglorious history in American. At various times, “We the people” has not included those who didn’t own property, who couldn’t pay a poll tax, and who couldn’t pass a test about American history or its Constitution.

Fortunately, those crude tactics have passed away. Unfortunately, the requirement of a mandatory photo ID, which appears to have voter suppression as it primary purpose, will bring back those days of old. We can only hope that the Pennsylvania Supreme Court perceives the pernicious nature of the new law and enjoins it, so that all Pennsylvanians can exercise their most fundamental democratic right – the right to vote.

© 2012 Professor Lawrence A. Frolik*
Distinguished Faculty Scholar
University of Pittsburgh School of Law

*These remarks do not necessarily represent the views of the School of Law.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2012 John B. Payne, Attorney