Budget-typo plaintiffs see long road ahead

With two judges ruling separately against constitutional challenges to the Deficit Reduction Act, attorneys in similar lawsuits may have to wait to have their cases resolved.

Several attorneys in pending cases said a decision about whether to appeal, and how far, should not be made prematurely, but others were more strident.

A district court is “not the court that gets to decide anything for anyone” in constitutional cases, remarked John Witmeyer, an attorney with Ford, Marrin, Esposito, Witmeyer & Gleser who is representing a company called OneSimpleLoan. Witmeyer said he knew from the beginning he would have to be prepared for a long haul.

Last month, Judge Richard Berman in the District Court for the Southern District of New York ruled against Witmeyer’s client; the case is now before the 2nd U.S. Circuit Court of Appeals.

Eleven House Democrats brought one of the other pending suits and are prepared to take the case as far as they have to, said a spokesman for Judiciary Committee ranking member Rep. John Conyers (D-Mich.).

James Zeigler, the attorney who filed the first lawsuit challenging the budget-reconciliation bill, in the District Court for the Southern District of Alabama, concurred.

“We thought from the start that this case was going to have to go up” to higher courts, Zeigler said. If the judge rules in his favor, he expects the government to appeal, he added.

Zeigler’s defiance may not be enough to see his case through. He has tried to raise $750,000 to pay for his suit, but with little success so far.

Public Citizen, which filed a suit in the federal District Court for the District of Columbia, will not decide on its next step until Judge John Bates rules, attorney Adina Rosenbaum said. At a hearing earlier this month, Bates said he expected to issue a decision before the end of the summer.

Judge Frank Damrell of the District Court for the Eastern District of California has also upheld the budget, bringing that element of this case to a close, said Marjorie Shelvy of the Legal Aid Foundation of Los Angeles, one of the plaintiff’s attorneys.

Shelvy’s client and the state of California were co-plaintiffs in the case. Neither would pursue the constitutional question further, Shelvy predicted.

If any of the other cases wins on appeal on the constitutional issues, they likely would be sent back to the district court. Plaintiffs’ attorneys and the government would then likely have to gather additional evidence, which could include depositions or testimony from lawmakers such Speaker Dennis Hastert (R-Ill.) and Senate President Pro Tem Ted Stevens (R-Alaska), congressional aides and clerks, and even White House officials, the attorneys said.

“I may have to take the deposition of the president,” Zeigler said.

These momentous steps would be necessary only if the government contested the facts of the case as presented by the plaintiffs, noted Murray Klein, the Reed Smith attorney, who represents a group of Tennessee hospitals in one of the cases before the District Court for the District of Columbia.

As in the California case, Klein’s clients did not sue the government over the budget bill. The issue became a part of other proceedings when the government tried to use provisions of the new law to get a federal court to overturn a $100 million ruling the hospitals won last year in a suit against Medicare. Klein said the hospitals are interested only in keeping their money and would abandon their constitutional arguments if Judge James Robertson allows this.

The judges in New York and California accepted the Department of Justice’s contention that an 1892 Supreme Court ruling, Marshall Field v. Clark, does not permit the judicial branch to question the validity of a bill that has been enrolled and certified by the Speaker of the House and president of the Senate. Congressional Republican leaders likewise maintain that certifications by Hastert and Stevens were adequate to rectify a typo in the bill.

The plaintiffs maintain that the bicameral clause of the Constitution was violated. They further argue that more recent Supreme Court rulings have affirmed the judicial branch’s authority to decide cases about legislative procedures.

Owing to clerical errors, the House and Senate passed slightly different versions of the Deficit Reduction Act, which reduced federal spending by $39 billion and barely passed each chamber. In February, President Bush signed the Senate version.

The judges in the two court decisions did not rule on whether that violated the Constitution, asserting that they do not have the authority to interfere.

Federal district court judges usually are not eager to tread on Supreme Court precedents, legal scholars said, but they are not forbidden from doing so.

“I’m surprised by the timid nature” of the two decisions issued to date, remarked Jonathan Turley, a professor at George Washington University Law School.

University of Richmond School of Law professor Carl Tobias said, “One has to always be reluctant when there is a century-old precedent that is [presented as] absolute.”

The courts have a responsibility to address whether the legislative branch violated the Constitution and its own rules, Turley said.