CT Blue

Every once in a while a case comes along that reveals a lot about the Supreme Court’s priorities. Such a case was argued yesterday.

The case pits states rights against corporate interest. Which will win? And should it even be close?

The case involves a class action brought by a California couple who are suing AT&T for fraud. Buried in the fine print of their contract with AT&T is a provision that requires them to arbitrate any dispute they may have against AT&T. The provision also states that they must bring their claim individually, and cannot bring it as a class action. This is a typical provision buried in the boilerplate of thousands of consumer contracts.

The purpose of such provisions is fairly clear. They allow the corporations to engage in profitable small scale consumer fraud while depriving the affected consumers any meaningful remedy. In this case, AT&T told its customers it would give them a free cell phone if they signed a contract, then charged them a $30.00 sales tax for the phone. Only a lawyer could argue that it’s still a free cell phone that way, but that doesn’t mean that every judge will agree.

Federal law encourages arbitration, but there is no law that says you can’t bring an arbitration claim as a class action. AT&T argues:

In its main brief in the case, AT&T Mobility v. Concepcion, 09-893, the company said “no rational business will agree” to class-wide arbitration, which it called “a lose-lose proposition” with all the cost and risk of litigation but none of the procedural protections and appellate oversight.

Let me translate. AT&T is saying that they would have no incentive to arbitrate a class action because they can’t game the system. They like the system that makes it utterly impracticable for a consumer to bring a claim, which that consumer will likely lose in arbitration anyway. Right now they have a “win-win” situation, with them on both sides of the dash.

Now, California courts have ruled that restricting the class action remedy in a consumer contract is unconscionable as a matter of state law. Unconscionable clauses are non-enforceable. The California courts have not declared arbitration clauses in consumer contracts to be unconscionable (which they are) because that would run afoul of a federal statute passed at the behest of the AT&Ts of the world by a compliant Congress, which “favors” arbitration. But the corporations didn’t think to legalize contract clauses that limit class actions. Since there is no federal law on that subject, state law should apply.

So, the California couple argued (and have so far prevailed) that the class action restriction voided the entire clause, and they were free to go to court and bring a class action, which they did.

Now, it should be a non-controversial principle of law that a state court, absent explicit federal legislation pre-empting the question, has the right to determine what is and what is not unconscionable. A real fan of states rights and “limited federal government” would do all he or she could to protect the state’s right to determine its own laws. In other words, the “conservative”, “strict constructionist” response to this case should be clear. AT&T should lose. That happens to also be the liberal response, but of course, we don’t count.

But what if the state’s laws interfere with a corporation’s desire to cheat the American public? Ah! There’s the rub. Many members of the court feel AT&T’s pain, particularly Alito and Scalia, who were, after all, appointed for their pro-corporate, and not their anti-abortion, credentials. So now we will see. When conservative theory conflicts with corporate interests, which wins? Once again, it will likely be all up to Kennedy, because I’m fairly certain we’ll see the true stripes of the other four when this one gets decided.

Not being an election law specialist, I have been somewhat at a loss to conceive of the legal strategy Foley is thinking of employing to get the results of the election reversed. However, I have, from a secret source from my many contacts in the upper echelons of the Republican party, come into possession (if you choose to believe it) of what appears to be a first draft of the brief Foley’s lawyers are thinking of presenting to the court in hopes of overturning the election. I’m advised this is a work in progress; brainstorming, so to speak, so it’s entirely possible that they’ll come up with some additional grounds. But, for the moment, this is what they’ve come up with, and I have to admit, the legal reasoning is novel.:

Facts: Petitoner Thomas Foley (hereafter “plaintiff”) was the Republican Candidate for Governor at an election that took place on November 2, 2010. On the night of the election he was ahead in the vote tally, as reported by various news media, until the very end, when the votes from Bridgeport were added to the tally. These votes were added at the very last minute, and are subject to dispute herein because a) many voters in the heavily Democratic City were discouraged from voting due to the fact that the ballots ran out and b) the secretary of state made a lot of mistakes in the course of announcing the results. The plaintiff requests that the certified results of the election be set aside, and a declaratory judgment be entered declaring him the winner of the election, for the reasons more fully set forth below.

I It would be inequitable to permit the voters of Bridgeport to decide the election in light of the plaintiff’s legitimate expectations of victory given his early lead in the returns

As set forth above, the plaintiff was leading in the election returns throughout election night. He and his supporters thereby developed a reasonable expectation of victory. The voters in Bridgeport upset these expectations because their votes were reported late, and in some cases those votes were cast on xeroxed ballots. This unexpectedly high turnout, combined with the time at which it was reported, unreasonably dashed the expectations of the plaintiff. In addition, while those turned away due to ballot problems would not in a million years have voted for the plaintiff, the theoretical possibility exists that a once in a billion year event may have taken place, and those votes not cast might have gone unanimously for the plaintiff. While his vote total would still have been less than his opponent, it would have been much closer, thereby giving this court additional cover to rule in plaintiff’s favor in this case.

II. The votes totals in Bridgeport and other areas in the state should be revised to reflect the value of the voters involved.

It should be observed here that many, if not most, of the Bridgeport voters, as well as voters in other large Connecticut municipalities, have skin that is of a distinctly dark hue. Our founding fathers wisely decided that such persons should count as only three-fifths of a person. Applying that fraction to the total number of votes cast by such persons yields vote totals more in line with the plaintiff’s desires. It follows, therefore, that this methodology should be used in counting the votes.

III. The courts have inherent power to name the winner in an election when the person chosen by the public is a Democrat.

There is ample precedent for the proposition that courts have inherent power to substitute their own preferences for those of the public when the public chooses a Democrat for high office. See, e.g. Bush v. Gore. Courts should not exercise this power lightly. It should be exercised only when circumstances are such that the court can plausibly claim that the result it has reached is impelled by some newly created legal principle that can never be invoked again, at least not by a Democrat. The plaintiff submits that this threshold has been reached here because 1) all election night he was ahead and therefore a lot of people expected that he would win; 2) the Secretary of State made some mistakes that, while irrelevant to the outcome, are still sufficient to act as a smokescreen for a reversal of the election, and 3) as a Republican the plaintiff has a vested right to office, regardless of the views of “voters”, particularly voters who live in cities. Should the courts fail to intercede when the voters fail to elect the proper Republican, a situation might arise in which the government, albeit in this case the state government, might attempt to address the actual problems facing the state, rather than continuing our hallowed national tradition of transferring our dwindling national wealth to the rich while ignoring the economic and environmental trends that are hastening our decline.

For the foregoing reasons, the plaintiff requests that the court grant the requested relief.

As I said, I’m no expert, but my initial reaction is that this reasoning, while sufficient to convince Scalia, Roberts, et. al., may not work with our humble Connecticut jurists, many of whom still cling to outmoded jurisprudential philosophies.