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Legal Update: From The US Supreme Court To Happy Meal Toys

Audio

Aired 12/21/10

From the deadly serious subject of overcrowding in California prisons to the banning of toys in Happy Meals: there's no subject too big or too small for our Legal Update. We'll examine the arguments the Supreme Court heard about the order to release California prisoners; how a Federal court ruling on health care reform might affect us here in California; and then, on to the case of the Happy Meals.

From the deadly serious subject of overcrowding in California prisons to the banning of toys in Happy Meals: there's no subject too big or too small for our Legal Update. We'll examine the arguments the Supreme Court heard about the order to release California prisoners; how a Federal court ruling on health care reform might affect us here in California; and then, on to the case of the Happy Meals.

GUEST:

San Diego attorney and These Days legal analyst, Dan Eaton

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This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

MAUREEN CAVANAUGH: What do your kids want for Christmas? Lots of parents are feeling the holiday pressure to spend too much. I'm Maureen Cavanaugh, coming up on These Days, in these last days before Christmas, the pressure to please your kids and other family members by getting expensive presents often overwhelms the best laid holiday budget plans of we'll take your calls about the spending pressure, and offer some advice. But first, from the U.S. Supreme Court to happy meals, we'll discuss some of the most intriguing recent let me cases on our legal up indicate of that's all ahead this hour on These Days. First the news.

I'm Maureen Cavanaugh and you're listening to These Days on KPBS. From the today he serious subject of overcrowding in California prisons to the banning of toys in happy meals, there is no subject too big or too small for our legal update. We'll examine the arguments that the Supreme Court heard about the order to release California prisoners, how a federal court ruling on healthcare reform might affect us here in California, and then onto the case of the happy meals of joining us for this eclectic legal update is San Diego attorney, These Days legal analyst, Dan Eaton.

EATON: Good morning, Maureen.

MAUREEN CAVANAUGH: Before we get to the merrier subjects, some very important legal cases are moving forward. Late last month, the U.S. Supreme Court heard oral argument, in the case that challenges the extent of federal intervention in California's prison system. You first talked about this case in June. Remind us what it's about.

EATON: This is a challenge of an August 2009 special three judge federal court panel here in California that said not necessarily that there was prison release, but that there had to be a reduction in the prison population. So how do you do that without releasing prisoners? Well, some of the possibilities are out of state transfer, and other sorts of things. But the bottom line is the Court said that the prison population had to be reduced by -- to a hundred and 37.5 percent of capacity. And that means that up to 50000 prisoners would be released. This was a very, very hotly contested issue. Why? Because there is concern that releasing that many prisoners ultimately will affect the public safety of California.

MAUREEN CAVANAUGH: Now, why did this thee judge panel come to that conclusion? What did the people who brought this lawsuit contend was happening in California's prisons that warranted that kind of remedy?

EATON: [CHECK AUDIO] they said they were being deprived of their constitutional right to adequate medical care, particular he mental healthcare, and also that they were increasingly being subjected to a heightened risk of infectious diseases of those were the issues that were before the Court. And they said, look, this case has been pending. There was actually two cases that have been consolidated, but one of them had been pending for 20 years, and this is ridiculous. They said ultimately we're going to have to take this last step, which is to order a reduction in the over all prison population.

MAUREEN CAVANAUGH: What is the issue that the U.S. Supreme Court will have to address.

EATON: The issue, Maureen, is whether the three panel judge [CHECK AUDIO] here in California exceeded its authority, [CHECK AUDIO] without trying other measures that are last drastic. In 1996, Maureen, Congress enacted a law called the prison litigation reform act, which essentially restricted the power of federal courts to order a prison release, unless all less drastic -- unless a variety of less drastic means proved singularly ineffective. So the federal courts didn't take the broad discretion they otherwise would have to release state prisons to say nothing else is working. And the question is whether they had reached that point in the prison system, which a receiver was appointed to oversee before they ordered this release of so many prisoners.

MAUREEN CAVANAUGH: So the question before the Supreme Court is really about whether or not the federal government has the -- they went over and above their existing authority in ordering this release. Nobody is necessarily contesting the fact that the prisons in California are over crowded.

EATON: No, that's right. And of course, the question is whether the federal court which is part of the federal government went over board. But no, everyone concedes that the prisons are over crowded. And also everybody concedes that there is a deprivation of constitutional rights to mental healthcare and to over exposure to infectious diseases. [CHECK AUDIO] whether it's caused by a past culture of disregard for prisons, which is what the people arguing on behalf of the state contend. And then the other issue of course is whether this reduction order really is necessary, give that the receiver is in place, it's offer seeing the state prison system, and that real progress has been made. And ultimately, the question that the Supreme Court will have to answer is whether the federal court in ordering the prison population reduction went too far too quickly.

MAUREEN CAVANAUGH: So as you said, the reason we're talking about it is that oral arguments have been heard in this case. What kind of questions did the justices ask the lawyers.

EATON: Well, the questions the justices asked the lawyers deciding whether the federal court order, which ordered by the way this reduction to take place in two years, by December of 2011, focused on how much more time are we supposed to wait? Three of the more liberal justices, Justice Ginsburg, Sotomayor, Briar, and to a lesser extent, the swing vote, Kennedy, said, what are you waiting for? How much more patient do we have to be to procure these violations that everybody concedes exist? Justice Sotomayor was especially aggressive in her questioning. She said, and I'm going to quite here in her question, which is really a rhetorical question, she asked the attorney arguing on behalf of the state against the federal court order, quote, when are you going to avoid the needless deaths that were report indeed this record? When are you going to avoid or get around to people sitting in their feces for days in a dazed state? When are you going to get to a point that you're going to deliver care that is going to be adequate? Closed quote, she's clearly not hiding her cards on this. She clearly thinks the three judge public got it about right in saying enough is enough. It is time to start this process of reducing over crowding and that they didn't get it wrong in saying that over crowding was responsible for the constitutional deprivations of which the prisoners were complaining.

MAUREEN CAVANAUGH: So did any of the justices indicate with their questions that they were sympathetic to California's argument that the hoer court panel's prison release order was drastic and premature?

EATON: Actually, yes, Maureen. Justices Alito and the chief justice John Roberts said, look, we're not sure that's quite order when you start ordering a release of prisoners, most of whom have not been deprived of mental healthcare to deal with this problem. They also, both Justice Alito and Chief Justice Roberts, expressed concerned about public safety on such a drastic release order. What Justice Alito asked in his question, he asked the attorney for the prisoners, he said, why should an order releasing and benefitting prisoners, many, maybe most of whom, had not been deprived of adequate healthcare be issued instead are, quote, ordering the revision of the facilities of medical care, facilities to treat mental illness, hiring of staff to treat mental illness, close quote, in other words, he wanted to know why not treat the problem of healthcare deprivation directly rather than this indirect route of ordering prisoner release?

MAUREEN CAVANAUGH: That's fascinating. So how did the attorney representing the prisoners respond -- how did they respond to that question?

EATON: Well, he said, first, this is not a prison release order necessarily. He said this is a reduction in over crowding and you can accomplish it, at least in part by out of state transfers. But obviously that's not gonna cure the entire problem. Of secondly, he pointed to experts in the testimony in other states, such as Texas, who have dealt with prison over crowding, which say that, look, if the system does not relieve the prison over crowding, nothing else matters. For one thing according to the lawyer, when the prison overcrowding is addressed, and I'm quoting from the lawyer in oral argument, quote, doctors will have room to be able to working which they don't have now. Officers will be able to take them from one place to another to get treatment. There won't be so many lock downs which inhibit care, close quote. So that was his response. He said, look, unless you reduce the problem of over crowding, everything else is academic. So we have got to get the prison population under control, otherwise the constitutional deprivation will persist.

MAUREEN CAVANAUGH: And okay, we have to get, I suppose, a final word for the attorney for the State of California. Did these attorneys use the concerns the justices expressed at the release of prisoners to advance their argument?

EATON: Yes, Maureen. On rebuttal, the attorney for the state did what all good appellate advocates do and took advantage0 of a concern that the justices expressed. And the attorney for the state said, quote, the reality is that any time you say you're gonna release 30,000 inmates in a very compressed period of time, I guarantee you that there's going to be more crime, and that people are going to die on the streets of California, close quotes. He was arguing that, hook, two years is just too fast to make this happen. We can get this problem under control within five years without the impact to public safety without this unnecessary he compressed time table that the three judge panel ordered.

MAUREEN CAVANAUGH: And just to be clear, [CHECK AUDIO] then that order to reduce the prison population is null and void; is that right?

EATON: Well, it will -- it'll go back to the three judge panel.

MAUREEN CAVANAUGH: I see.

EATON: To say, take another look, and see whether there were other steps that can be taken, take a look at the order again. Buff one of the problems that one of the newest justices, [CHECK AUDIO] reweigh facts that the three judge panel obviously took a lot of time in care and considering, and we just don't do that. The question is whether they exceeded their authority. Thought as Kegan suggested, maybe not. But it'll be interesting to see how the nine member court comes out some time this spring when they're expected to issue the ruling.

MAUREEN CAVANAUGH: It is fascinating of thank you for 2345. Another really fascinating and important case that is moving along is this ruling that from federal judge harry Henry Hudson in Richmond Virginia that actually struck down part of the healthcare reform law. The two other federal district court judges, including a different federal court judge in Virginia upheld the constitutionality of this new law. Sole what is this new challenge? Who brought it? What part of the law was contested.

EATON: Maureen, this was a challenge brought by the attorney general of the People's Commonwealth of Virginia, his name is Ken Cuccinelli, and he challenged the provision in the federal healthcare law that requires every United States citizen to maintain a minimal level of healthcare coverage or pay a penalty, the penalty of which is included in the taxpayer's annual return. The request was whether judge Hudson exceeded his authority under article one of the U.S. constitution to regulate commerce between the several states in enacting this provision. Specifically, Maureen, what the judge had to consider was whether that provision, called the minimum essential coverage provision, was within Congress' powers to regulate commerce or to tax. The critical question being whether a person's decision not to purchase health experience constituted economic activity that Congress has the power to regulate. In other words, this is nonaction, this passive inaction or a decision not to purchase health insurance, does that constitute economic activity or does it not?

MAUREEN CAVANAUGH: So what did federal district judge Hudson hold about the constitutional -- I'm sorry, constitutionality of that man date? That man date that's coming up in this health reform law that would require people to buy health insurance?

EATON: What he said was, and I look at the past decision of the United States Supreme Court and federal courts of appeals, he said economic activity generally is understood to mean some type of self initiated activity. Such as, for example, California growing marijuana for medical purposes that the United States Supreme Court in a 2005-case was subject to congressional regulation. Of he said, and this is not it. He said, that, quote, to compel an individual to involuntarily enter the stream of commerce, by purchasing a commodity in the private market, close quote, is beyond the power of Congress to regulate commerce. Judge Hudson concluded that if Congress may regulate a person's decision not to purchase a product, there would be essentially no [CHECK AUDIO] regulating the business of insurance, or crafting a scheme of universal health coverage, it's about an individual's right to choose to participate, chose quote. And it's important to note, Maureen, by the way, that we're talking about a decision that could have a potentially vast effect on a lot of San Diegans, according to a report that I actually found on KPBS a own website that was done by a UCLA group, 650000 San Diegans as of 2009 hacked health insurance.

MAUREEN CAVANAUGH: Yeah, it is a very important issue for a lot of people. But I know that this was a very controversial part of the healthcare reform law across the political spectrum. Now, the federal government also contended that the minimal essential coverage provision, that's the part of the law that requires people to buy health insurance issue was a legitimate exercise of Congress's power to tax rather than its more limited power to impose penalties. So how did judge Hudson rule on that argument.

EATON: He said, first of all, there is a difference between taxing and penalties, so let's just be clearly about that. [CHECK AUDIO] he said I'm not buying this, this idea that this penalty that they have to pay if they don't get health insurance was a means of raising revenue was merely an afterthought. That was the term that judge Hudson used. Of in fact, it was a transparent afterthought, quote, the legislation purpose underlying this provision was purely regulation of what Congress misperceived to be economic activity. The only revenue generated under the provision is incidental to a citizen's failure to obey the law by [CHECK AUDIO] it was nonvalid unless it was in furtherance of a valid congressional power. One of its enumerated powers, and it wasn't, said judge Hudson.

MAUREEN CAVANAUGH: So the judge struck down this provision of the healthcare law. What about the entire healthcare law.

EATON: Right, and we talked about this a little bit off air, Maureen. The issue is severance, what's called severance, whether he should take out this offending provision, or whether the entire healthcare bill falls like a house of cards because it's not in there. Congress didn't have what's called a severability clause in this particular law, saying that if one part of the law is found unconstitutional, the rest stands. Both sides Maureen agree that this particular provision was the, quote, linchpin of the entire law, close quote. None the less, judge Hudson said performing the initial analysis that judges did in deciding whether this could be taken out, while maintaining the integrity of the entire law would be too difficult under the circumstances. I can't tell for example, whether Congress would have enacted this law, but for this offending provision. Therefore I'm going to exercise the general restraint is that judges exercise and take out this offending provision while leaving the rest of the healthcare bill -- the healthcare measure in tact.

MAUREEN CAVANAUGH: So even though Congress did not put in a severability clause, the judge gave the law basically the benefit of the doubt.

EATON: That's right.

MAUREEN CAVANAUGH: And said that usually these laws are severable, and so that's what I'm going to do? Centric this part down and keep the rest.

EATON: That's exactly right, and the benefit of the doubt is actually a very good phrase, Maureen, because it plays into another aspect of it, are the [CHECK AUDIO] that the federal government be blocked from implementing it, and he said, no, this doesn't go into effect until the earliest 2013, I will trust that the federal government in light of this declaration is not going to start enacting at least until this is resolve. And this is colorful not the last word on this.

MAUREEN CAVANAUGH: Tell us where this goes from here.

EATON: This goes to the fourth circuit court of appeals, [CHECK AUDIO] so it goes there, interestingly, they're gonna have to resolve two diametrically opposed rulings on this same law, [CHECK AUDIO] from there, Maureen, within about two years, you can expect that the Supreme Court will ultimately weigh in and decide the constitutionality of this measure.

MAUREEN CAVANAUGH: Well, from the very important to what some people would think of ridiculous, though certainly not everyone.

EATON: Michelle Obama wouldn't think it's ridiculous.

MAUREEN CAVANAUGH: San Francisco [CHECK AUDIO] mayoral veto to enact a law called the healthy food incentives ordinance that some way would force MacDonald's to take the happy out of happy meals. Tell us about this one.

EATON: This is actually kind of a fun one. On September 3rd, [CHECK AUDIO] bar restaurants such as MacDonald's from giving away any toy or other, quote, incentive item, close quote, [CHECK AUDIO] in connection with a meal for a single price unless it meets certain nutritional standards concerning fat and calories and so on. It became the first major city to enact this kind of a law.

MAUREEN CAVANAUGH: Why was this ordinance passed? What was the rationale.

EATON: It was passed to support parents in their efforts to curb this growing epidemic of childhood obesity. And it was designed to fight childhood obesity. They said by passing this law, we are going to make it easier for parents to say no.

MAUREEN CAVANAUGH: And just to be clear, what this new requirement would do, a certain meal if it was offered to kids would have to meet a certain nutritional value in order to have a --

EATON: A free toy, that's exactly right. So it would say, look, you can't do it unless these certain nutritional standards are met. So that is why the law was passed.

MAUREEN CAVANAUGH: So if the kid wanted the toy, they'd have to get the healthy meal.

EATON: And that's exactly right. And maybe gets the toy and throws out the healthy meal. And orders from the adult menu.

MAUREEN CAVANAUGH: We don't even want to think about that. Now, the supervisors had to override a veto, as I said, by San Francisco Mayor, Gavin Newsom. Why did mayor Newsom decide to veto this ordinance?

EATON: This is mayor Newsom speaking as more of a libertarian, his libertarian impulses, and he said, quote, parents issue not politicians should decide what their children eat, especially when it comes to spending their own money, despite its good intentions, said mayor Newsom. I cannot otherwise support this unwise governmental intrusion into parental responsibility at private choices, close quote, but none the less, the board of supervisors by a rather large majority overrode that veto.

MAUREEN CAVANAUGH: And so when does this go into effect in San Francisco?

EATON: Not until next year, actually, it doesn't go into effect until December 1st of 2011.

MAUREEN CAVANAUGH: Okay, so you can kind of save up your happy meal toys.

EATON: Gotta stock up.

MAUREEN CAVANAUGH: Even this ordinance against toys with happy meals or nonnutritional meals for children is not the end of the story. Because we have a lawsuit that has been against happy meal toys. Tell us about that.

EATON: On December 15th, just last week, Maureen, the group that was largely behind this ordinance, the center for science in the public interests, filed a lawsuit on behalf of a San Francisco mother, who also happens to know, I understand, a state worker dealing in child nutrition. But filed a late, a potential class action saying it was unfair practice to include happy meals with nonnutritional meals. Of why? Because the result of including them is to create this in fact between parents and children, it's to deceive children eight and under who lack the cognitive ability to tell what's behind commercial advertising, and it's designed to reinforce this pester power that causes parents to buy the -- these unhealthful meals after their kids keep nagging them.

MAUREEN CAVANAUGH: Now, we're gonna be talking more about the pressure of pester power in just a few minutes.

EATON: That's by the way is used in the complaint itself, which I read, so --

MAUREEN CAVANAUGH: When it comes to the whole spectrum of holiday gifts. But what does this lawsuit actually ask the Court to do.

EATON: What this lawsuit asks the Court to do it says, stop MacDonald's to, quote, continue advising happy meals to California children featuring toys issue close quote. That is where the problem is in this bombarding children with these messages. Of course, they have a big first amendment hurdle that they're going to have to clear in this lawsuit. And MacDonald's has made it cheer that they're going to fight this lawsuit very, very vigorously.

MAUREEN CAVANAUGH: If this lawsuit was actually won, then they would have to stop it across the entire State of California; is that right.

EATON: Well, that's right. It's not just in San Francisco, presumably if the San Francisco judge issues the order, it would be a state wide injunction or bar saying you can't advertise this anywhere in the State of California. But it's going to be a while before this is resolved and it may very well be dismissed, depending on how successful MacDonald's is in this litigation.

MAUREEN CAVANAUGH: And I want to apologize to anyone who's taking this very seriously, because we've been a little bit light hearted.

EATON: It is a serious issue. Child nutrition and childhood obesity is a very serious problem. It's just when you start talking about Happy Meals, you can't say that phrase without smiling. Especially not this time of year, Maureen.

MAUREEN CAVANAUGH: Absolutely right, Dan. And I want to thank you for all the great legal stories and great legal analysis that you brought us throughout this year, and I hope you get all the happy meals you want for Christmas.

EATON: Thank you, I'm gonna stock up, Maureen, have a very happy holiday.

MAUREEN CAVANAUGH: Thank you so much. If you would like to comment, please go on-line, KPBS.org/These Days. Now coming up, how do with stand the pressure to buy too much this holiday season. We'll talk about that as These Days continues here on KPBS.

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