Going to the Source of the Flood

A recent ruling by a federal appeals court has left Katrina victims essentially homeless nearly two years after a hurricane ravaged the Gulf Coast.

The ruling overturns a decision by a district court judge which said that insurance companies were responsible for covering damages that ensued from the flooding that occurred after the levees gave way in 2005. The insurance policy language, the district court judge ruled, was ambiguous in that it did not distinguish between naturally occuring floods and those resulting from faulty levees or human error.

However, the federal appeals court declared that although ambiguous the policy is very clear about excluding homeowners from protection against any sort of flooding. Obviously there is disagreement among the judges about how to interpret this insurance policy.

But apparently the policy and the text of the policy is quite clear. The text of the appeals court decision by Judge King reads:

"Each plaintiff in this case is a policyholder with homeowners, renters, or commercial-property insurance whose property was damaged during the New Orleans flooding. Despite exclusions in their policies providing that damage caused by “flood” is not covered, the plaintiffs seek recovery of their losses from their insurers. Their primary contention is that the massive inundation of water into the city was the result of the negligent design, construction, and maintenance of the levees and that the policies’ flood exclusions in this context are ambiguous because they do not clearly exclude coverage for an inundation of water induced by negligence. The plaintiffs maintain that because their policies are ambiguous, we must construe them in their favor to effect coverage for their losses."

Therefore the jurisprudence is sound. But justice does not seem to have been served. The people at fault should be the ones paying for the damage to these houses--not those victims of the hurricane who are now left with more worries than fears allayed nearly two years after they lost their homes and way of life.

For more, read the NY Times article here.

Communication Between the Branches Sometimes Lacking

The recent ruling of a VA judge striking down driving fees as unconstitutional since they only apply to VA residents and not all who use the VA roads is illustrative of the sometimes lack of communication between the legislative and judicial branches of government--even at the state level.

The law which was created in order to finance a transportation bill that the VA legislature had passed violated the equal protection clause of the US Constitution since it only applied to state residents and not all who used VA roads. The ruling is a clear indication of what the judge believes to be constitutional: a law which applies to everyone using VA roads--not only VA residents. It is a simple change in language which could have been quickly remedied while drawing up the bill instead of dragging the bill through a hefty legal process, wasting time and resources of government that could better be spent elsewhere.

Going Beyond Unreasonable Searches & Seizures

The new law that Bush signed has violations of the 4th Amendment written all over it. According to an article by the NY Times, the new law both expands the definition of "electronic surveillance" and clarified the FISA act of 1978 to allow for warrantless searches.

The article reads:

“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States.

By changing the legal definition of what is considered “electronic surveillance,” the new law allows the government to eavesdrop on those conversations without warrants — latching on to those giant switches — as long as the target of the government’s surveillance is “reasonably believed” to be overseas."

Bush's decision goes against the general prevailing jurisprudence on this issue in the lower courts which have reviewed this matter. Recall that nearly a year ago on August 16, 2006 a Detroit district judge, Anna Diggs Taylor, ruled that the NSA terrorist surveillance program violated the 4th Amendment. The 6th Circuit Court of Appeals failed to rule on the issue throwing it out on the justiciability doctrine of standing and thus refused to rule on the actual merits of the case.

Will Immigration Become a National Issue in the Courts?

The National Journal is calling attention to a District Court ruling in PA regarding an ordinance against illegal immigrants which may make its way up to the USSC. The PA District Court ruled that the ordinance which deals with housing and employment of illegal immigrants falls outside the jurisdiction of the municipal government of the states. A 1986 act called the Immigration Reform and Control Act stipulates that only the federal government--not the states--are allowed to regulate these matters.

Media Inflating Roberts' Medical Episode

Yesterday, CJ Roberts was treated at a hospital in Maine for his second seizure in 14 years. The first seizure apparently occurred while he was going through his confirmation hearings for the DC Circuit Court of Appeals. Some have pointed to stress as a triggering factor for Roberts' first seizure. This time, Roberts was on vacation when the second seizure occurred.

Because of Roberts' two seizures, medical doctors now consider Roberts to have epilepsy. Among some of the options for treatment are medication (which apparently can have some unpleasant side effects) or doing nothing and waiting. Some states prohibit sufferers of epilepsy from driving until they can prove that their condition is under control.

Admittedly the Justice is not in the best of health. However, it appears that the media and in specific, Linda Greenhouse of the NY Times in an article, takes a rather extreme view of what has happened. A man in his early 50s has visited the hospital for a condition which medicine can treat. There's nothing more and nothing less. Greehouse seems to imply that the legal world will now face great changes using almost hyperbolic language. She says:

"In October, when he returns to his seat at the center of the Supreme Court bench, will colleagues and courtroom spectators see the same golden youth whose trajectory was unmarked by setback or sorrow? Or will they see someone suddenly vulnerable, with a medical condition that, while treatable and shared by millions, can still inspire fear?

Or to dig deeper, might this encounter with illness even change the way John Roberts sees himself, his job or the world?"

She continues:

"Nearly two years ago, after Chief Justice Roberts took the oath of office, he was accompanied down the steps of the court by Justice John Paul Stevens, 35 years his senior. Justice Stevens stumbled slightly, and the waiting crowd held its breath as the new young justice helped him regain his balance. Justice Stevens is still playing golf and tennis. It is John Roberts for whom the country now holds its breath."

Greenhouse draws a contrast between Stevens who is the oldest justice sitting on the bench and Roberts, the youngest justice currently presiding over the Court. It is highly unlikely the majority of the country is even giving a second thought to Roberts and his more than likely 30 year stint to come on the Court.

Greenhouse and the rest of the media need to calm down, relax, and instead of holding their breath for an obviously in-good-health justice, take a deep breath. Perhaps even take a chill pill.