Thursday, February 3, 2011


Cuccinelli to seek immediate Supreme Court review in Virginia health-care suit

By Rosalind S. Helderman
Rosalind S. Helderman

Virginia Attorney General Ken T. Cuccinelli II (R) announced Thursday that will seek immediate review by the U.S. Supreme Court of the state's constitutional challenge to the federal health-care overhaul, a rare legal request to bypass the appellate court and ask for early intervention from the nation's highest court.

A U.S. District Court judge in Virginia ruled in December that it is unconstitutional to require individuals to purchase health insurance, as envisioned in the law. The federal government appealed and the 4th Circuit Court of Appeals is scheduled to hear the case in May. Lawyers for the Justice Department will likely fight Cuccinelli's motion to skip appellate review.

Earlier this week, a federal judge in Florida followed suit, ruling the law unconstitutional in a suit filed jointly by 26 states. In other cases, two other federal judges have said the law is constitutional.

"Given the uncertainty caused by the divergent rulings of the various district courts on the constitutionality of the Patient Protection and Affordable Care Act, we feel that it is necessary to seek resolution of this issue as quickly as possible," Cuccinelli said in a statement.

Rule 11 of U.S. Supreme Court procedure allows parties to skip lower courts and ask for immediate Supreme Court review, but the court grants such requests only upon a showing that the case is of "such imperative public importance" that it requires changing normal procedures.

A spokeswoman for the U.S. Justice Department said its lawyers believe the case should be heard first by the appellate court.

"The Department continues to believe this case should follow the ordinary course of allowing the court of appeals to hear it first so the issues and arguments concerning the Affordable Care Act can be fully developed before the Supreme Court decides whether to consider it," said spokeswoman Tracy Schamler in a statement. "Virginia's suit is based on a state statute that is not applicable nationwide."

Cuccinelli has indicated for several months that he was considering filing a petition for certiorari with the court. He originally requested that the U.S. Justice Department join in the motion, citing uncertainty surrounding the massive law's implementation after conflicting lower-court rulings on its constitutionality.

But he said Thursday that he will make the motion even without agreement from his federal opponents.

A number of legal experts have said they believe the court is unlikely to grant Virginia's action because the justices generally want to review the opinions of as many lower-court judges as possible before acting.

Additionally, Cuccinelli's action might be perceived as an attempt to maintain the head-start Virginia's case has had over the separate case filed jointly by other states in Florida and ensure his is the case used by the Supreme Court to decide the constitutionality of the sweeping law.

In his statement, however, Cuccinelli said he did not make the decision to seek high court review lightly but was instead prompted in part by requests from Republican leadership in Virginia, including Gov. Robert F. McDonnell (R), who have said they are concerned about the costs of implementing the law.

"Currently, state governments and private businesses are being forced to expend enormous amounts of resources to prepare to implement a law that, in the end, may be declared unconstitutional," Cuccinelli said. "Regardless of whether you believe the law is constitutional or not, we should all agree that a prompt resolution of this issue is in everyone's best interest," he said.

But Schamler noted the Fourth Circuit has already expedited review of the Virginia case.

"This case is one of two that are already scheduled for argument in the Fourth Circuit this May, so going through the usual process would make little difference in timing as to when the Supreme Court could hear it, while allowing the appellate court to thoroughly evaluate the issues," she said. "As [the Virginia judge] noted in denying an injunction, the individual responsibility provision does not go into effect until 2014, so there is more than sufficient time for this case to proceed first in the court of appeals."

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