The Expansion of States' Rights and Federal Preemption Arguments at the U.S. Supreme Court

Admittedly, when I first hear the phrase "states' rights" I immediately think of Gone With the Wind.  Maybe you'll remember that scene early in the film, where in the smokey front parlor of Twelve Oaks,  Charles Hamilton challenges Rhett Butler to a duel after a heated debate amidst the gentlemen over whether or not the South can win a war against the Northern States. 

Yes, yes, it does apply:  today, we think of the Civil War as a fight over slavery but at the time, freedom of the individual wasn't the sole focus.  For many, the War Between the States was fought over states' rights and the South's stance that the federal government should not have the legal power to dictate whether or not an individual state had the right to condone ownership of slaves. 

We all know how that turned out.  However, states' rights survives today and I'm wondering how intense this round of states' rights assertions are going to get.  After all, Texas Governor Rick Perry's already written a best-selling book on it.  It's a hot topic. 

So, it's with some serious interest that I'm following the federal preemption decisions that are being made now by the United States Supreme Court in four (4) cases:  Bruesewitz v. Wyeth; Williamson v. Mazda Motors; U.S. Chamber of Commerce v. Whiting; and AT&T Mobility LLC v. Concepcion.

On their face, these cases don't seem to have much in common with each other - until you get the idea that ribboning through all of them is a fight over power to control something: state or federal.   In legal terms, they are federal preemption cases and the High Court will be opining on the Supremacy Clause of the U.S. Constitution as it applies in some very different scenarios. 

Isn't it interesting that writ was granted on these four matters? Is the U.S. Supreme Court about to tell all of us ordinary folk something about how big the Federal Government is, and will be?

1.  Wyeth: the Power of Pennsylvania Personal Injury Law

Bruesewitz v. Wyeth comes to the Supreme Court after the petitioners lost their fight at the U.S. Court of Appeals for the Third Circuit: the lower federal appellate court ruled that parents could not seek legal damages under state law for the damages allegedly sustained by their daughter from a vaccine manufactured by Wyeth because their claim was barred by federal statute.

2.  Williamson: the Power of Utah's Wrongful Death State Law

In Williamson, a wrongful death action was filed under Utah state law by the grieving husband of Thanh Williamson, who died from injuries sustained from the lap seat belt she was wearing when their Mazda minivan crashed back in 2002.  Mazda's successful defense thus far is that it followed the federal safety regulations in place at the time (enacted by the National Highway Traffic Safety Administration), therefore Mazda met the minimum safety standards.  Federal law therefore preempts the state wrongful death case based upon Mazda being negligent in placing a lap belt in the rear passenger seat. There's no causation.  (In 2007, NHTSA upped its requirements, and now shoulder-strapped belts are required for these passengers.) 

3.  U.S. Chamber of Commerce: Arizona's Ability to Regulate Hiring Illegal Immigrants 

In U.S. Chamber of Commerce, a specific state statute passed into law by the Arizona legislature is at issue: the Arizona state law imposes sanctions on companies that hire illegal immigrants and additionally requires the employer to undertake a federal employment verification program that is voluntary under federal law.  Is the regulation of any activity dealing with sanctioning illegal immigration going to held as exclusively the federal government's?

4.  AT&T Mobility: the Power of California's State Sales Tax Regulation

In AT&T Mobility, the issue is whether or not the Federal Arbitration Act takes precedence over a state law passed in California that prohibits a phone company from giving away free phones to those who contract for the company's phone service and still charging the customer a sales tax for the freebie.   The case arguably could result in dooming consumer class action lawsuits.

These Cases Will Be Supreme Court Expansion of States' Rights -- or Affirming Federal Power

Big deal?  Yes. These cases are big deals.  Lots of folk in lots of places are watching these preemption cases, and wondering what the impact of the High Court's decisions will be.  Each of them will be used to apply in all sorts of matters where states' rights are at issue -- arguably, none can be read to their four corners, at least lots of assumptions are already being made that these will be far-reaching precedents.

I Voted and I Prayed - Did You?

I voted absentee last week, over at my branch library. You would have thought from the parking lot (I got the last slot) that there would be a long wait, a line of folk winding between the stacks.  Nope. 

When I went inside, there was no line at all.  No one knew, and several people were puzzled, about where those cars came from.  Political hijinks?  Who knows, it's been a crazy year here in San Antonio, election-wise.  Not to mention, nationally.

I do know that I don't remember an election where more was at issue, where voting was more important.  Some are disgusted, some are disappointed, some are disillusioned.  All responses to be respected given the realities we face today. 

If there were easy answers, if there were a Cavalry to be called or a wand to be waved, we'd do it.  We'd be there.  It's a bad time for all of us. 

Me? I studied the law at one of the best law schools in the country.  I practiced law in one of the most litigious states in the United States for over 20 years.  I write about the law and legal affairs professionally today. 

It is from this background of education and experience that I find I remain respectful of the system without being enamoured with it.  You're right: my vote isn't much at all, numbers-wise, but it's proactive. It's a tiny light, but it's what I've got, what I've been given. 

I know that evil can triumph only if the good do nothing - what Burke wrote is true, in my experience. 

And your voice needs to be heard.  You need to participate because you are important here.  Please go vote today.  And then, please join me in praying for our United States of America - our country's in trouble, and I think this is one thing that all of us - Independent, Liberatarian, Republican, Green, Democrat - can agree upon. 

Texas Judge Suzanne Wooten Indicted for Bribery - But Is She the Evildoer Here? Do We Have A Witch Hunt?

It's always nice when the gray clears into black and white, and we find ourselves with a clear case of right and wrong.  And that looks to be exactly what's happening up in the Dallas metroplex. 

Specifically, in a North Dallas suburb and Republican stronghold (last Democratic Presidential candidate to carry the county was LBJ in 1964), where a district judge and the local district attorney are squaring off like a Wild West gunfight at High Noon.

Judge Suzanne Wooten v. DA John Roach

Officially, we're talking  Collin County, Texas -- McKinney is the county seat, if you've been there -- and the big story revolves around State District Judge Suzanne Wooten who was suspended with pay this Monday after being indicted by a grand jury last week on 6 counts of bribery along with 1 count of organized criminal activity. 

You read that right:  a Texas judge has been indicted on 7 felony counts -- of import, the single organized crime count alone carries a life sentence. 

Along with Judge Wooten, facing the same charges are two of her backers, David and Stacy Cary, along with her campaign manager, James Stephen Spencer. 

Is this a Political Agenda or a Crusading District Attorney?  We're Gonna Find Out ....

Judge Suzanne Wooten claimed victory in 2008 over Charles Sandoval, who had presided over the 380th Judicial District Court for the past twelve years.  Wooten is a Republican and the first opponent that had challenged Sandoval in an election since 1996. 

A Republican won in a recognized Republican stronghold.  An officeholder loses the first time he's faced with an opponent.  No big news yet, right?

July 2010: Judge Wooten Seeks Special Prosecutor to Investigate Possible Criminal Wrongdoing by DA Roach

According to papers filed of record in July 2010 by Judge Wooten, the morning after Election Day Charles Sandoval was over at the office of John Roach, Collin County District Attorney, voicing his belief that Wooten had cheated to get elected. 

Two and a half years later, Wooten is filing papers alleging that Roach was trying to force her resignation, that he was "intimidating and harassing her," and that she was requesting the state Attorney General appoint a special prosecutor to look into the goings-on in Collin County for possible criminal wrongdoing by the District Attorney's Office. 

October 2010:  DA Roach Gets Grand Jury Indictment Against Judge Wooten - Felony Charges

DA Roach's follow up has culminated in the October 2010 grand jury indictments that claim the Carys handed over $150,000 to Wooten's campaign manager via a series of payments (listed in the indictment) with the intent that Wooten would rule in their favor once she took the bench.  (No details on what cases, if any, the Carys had/have pending before the 380th.)

Someone is Doing Bad Things Here, Folks

Well, well, well.  Isn't this scenario fascinating?  First of all, I'm really interested to know what imminent danger the Carys were facing that needed alleged judicial sway worth $150,000 to them. 

After all, the general idea that political contributions of any size carry with them the hope that maybe the judge will be swayed when the time comes isn't big news.  Tell it to the plantiffs' bar as they contribute millions to political campaigns.  Tell it to any lobbyist. 

I want to know what was so special about the Carys' situation.  If they're just political benefactors without any specific case or claim that had the potential to come across the judge's bench, then these bribery charges are gonna start stinking with the big ugly smell of "trumped up." 

I'm not buying "organized criminal activity" here already -- alhtough I'm no criminal lawyer, that sounds like a charge that's gonna get dropped.  Please, this isn't the Mafia here.

Defense Bar Publicly Supports Judge Wooten With Standing Ovation

Meanwhile, I'm reading that a big bunch of defense attorneys strode en masse into Judge Wooten's courtroom bright and early Monday morning led by the president of the local Criminal Defense Lawyers' Association.  After their standing ovation, the association president stood to speak, telling Judge Wooten that she had their support and publicly voicing the attorneys' collective opinion that this is a "witch hunt."

Interesting.  Very interesting.  Because these folk work in this courtroom all day long, going against the prosecutors in the District Attorney's Office.  They know the skinny.  Their action here makes me think that Judge Wooten isn't the bad apple in this barrel. 

Commission Suspended Wooten With Pay

Another thing to consider:  the State Commission on Judicial Conduct DID suspend Judge Wooten this week.  But they did it with pay, which they didn't have to do.  I'm betting that they were forced to suspend her since she was indicted.  No option on their part to suspend, but they gave her as much of a break as they could.

Falcon Lake Killing of Colorado Tourist - a Mystery Playing Out on the Texas Mexico Border

I've lived in San Antonio for most of my life - and my family has been in Texas for the past seven generations, with ties to various communities from the Killeen/Belton area (now Fort Hood) over to Hallettsville (nearer to Houston) and down to Corpus Christi. 

Lots of family stories about lots of Texas sites, along with the usual folklore.  Pecos Bill, the Donkey Lady, the Indian lovers who threw themselves off the cliff near Floresville, the ghosts of the school bus kids who push your car over the tracks near Mission Road.

Suddenly, we're all hearing about Falcon Lake

No one ever talked about Falcon Lake, much less went there to fish for bass.  I never, ever heard about Falcon Lake until I started doing research on the drug cartels for a writing project.  Falcon Lake is big, and it sets there on the Texas-Mexican border, a big bubble of the Rio Grande - 60 miles long.  Part of the lake is in Mexico, and part of the lake is Texan.

Which all goes to provide backstory to my following of this news story: the couple from Colorado, down on Falcon Lake having fun when some Mexican pirates shot the husband in the head - and now his body is missing and Governor Perry is getting lotsa press coverage, demanding that Mexico help find the victim's remains. 

Within the past hour, there's been a press conference where the Zavala County Sheriff is reporting that  blood evidence supports a belief that members of the Zeta drug cartel were the mysterious pirates that shot at the vacationing couple, presumably to enforce their borders in an ongoing cartel drug war. 

Wow.

Falcon Lake? Really?  FoxNews is reporting that search teams continue to look for David Michael Hartley, 30, in the Mexican part of Falcon Lake, based upon the information provided by Tiffany Hartley, 29, who has told authorities that her husband was shot in the head by one or more men from two boats that accosted them as the couple were riding the lake on Jet Skis. 

The Texas Department of Public Safety (DPS) has notified the public that David Hartley's encounter is the 5th report of Americans crossing paths with Mexican pirates on the waters of Falcon Lake.  From the DPS news release, these prior incidents are (quoting from the DPS release):

1. April 30, 2010: Four heavily armed men boarded two boats near the Old Guerrero area demanding money. The bandits were given $200 in cash and tried to follow the U.S. boats as they sped back to U.S. waters. The bandits stopped once they reached the United States boundary.
2. May 6, 2010: Two armed men approached a boat near Marker 14 on the north side of Salado Island on top of the ruins at Old Guerrero. The men demanded money, which the fishermen gave them.
3. May 16, 2010: Five armed men boarded a boat on the United States side of the lake near Marker 7. Investigators have no further information on the incident.
4. Aug 31, 2010: Falcon Lake pirates, using a small boat marked “Game Wardin” using duct-taped letters to possibly mimic Texas Parks and Wildlife vessels operating in Texas waters, attempted to stop a Texas fisherman. His knowledge of previous DPS safety warnings about Falcon Lake and the misspelling of the word “Warden” alerted the fisherman that something was wrong and he outran the Mexican vessel to safety.

Here's what I think.  I think that this couple did cross a line in the water that day, and two boats did chase them down, shooting guns in what must have been a terrifying experience for the poor woman who survived this encounter.  

Calling these shooters "pirates," however gives them a romantic label that isn't appropriate, though.  These aren't colleagues of Captain Jack Sparrow we're talking about here. 

I doubt that the couple looked like they were running drugs, poaching business from the drug professionals.  And, illegal drugs - along with guns, ammo, and human trafficking - is big business in my part of the world.  It's not legal, and it's not advertised on TV, but it's here. 

The big elephant in the room.  The 800 pound gorilla. 

When I follow this story, what I read is that the Zetas are claiming Falcon Lake as their own.  This isn't a big surprise here in Texas -- we stopped Christmas shopping in Nuevo Laredo several years back, so this is just another spot we're savvy to avoid. 

What I'm wondering is when the rest of the country is going to get up to speed here.  And, what's going to be the solution to this growing violence? 

It's nice to think that there's a big, bold border between Texas and Mexico - but that's only on maps.  Here in San Antonio, we know it's a murky co-mingling of cultures that starts somewhere south of town.  And, it's getting closer to our city limits every day. 

San Antonio Named Most-Recession Proof City in America (other than Washington D.C.) - But What About the Drug Money?

Derek Thompson of The Atlantic has named San Antonio, Texas, as the most recession proof city in America. If you don't consider the nation's capitol, of course.

Mr. Thompson's provided lots of support for his position. He even came down here and looked around. That's good - we love people to come and visit our fair city.

However, I'm pondering that there's a huge economic cushion here in my town that isn't getting considered in the analysis here: that's all the drug money that flows through our area.  Now, I'm not sure how you'd gather numbers for any real comparisons, but I do know it's here and it's huge.

How do I know?  Well, the fact that there's a lot of drug money around here isn't news to those of us who live in the Alamo City.  However, the extent to which my beloved hometown is a business hub for the transportation of illegal goods became clear to me during the three years that I was active in the Bexar County Children's Court, representing abused and neglected kids in CPS cases.  Sometimes, yes, I represented the parents who were being threatened with their parental rights being terminated, too. 

From these clients, as well as CPS Investigators, and various members of law enforcement (Border Patrol, Texas Rangers) I came to learn how the drug business is just like any other: it's a profit-oriented enterprise, and it has distribution and transportation concerns as well as manufacturing and marketing. 

Interstate 35 and Interstate 10 intersect smack-dab in the middle of San Antonio.  Last I heard, a lot of heroin was being moved along these routes by the cartels up and through the rest of the nation.  From Mexico, San Antonio is an important link in the distribution chain.

Which brings lots of money into our economy, whether we like it or not.  Not to mention the human trafficking (I learned about the coyote business during my CPS representations, too) and gun-running. 

Is this illegal stuff a true cornerstone of our local economy?  I don't know, because I have no idea how much we're truly talking about here.  However, from what I gleaned from all the people that shared their information with me, it's big numbers.  Millions, billions.

And that I think may be the real reason that San Antonio isn't hurting economically as much as other parts of the country right now.