As I’ve said in prior posts, I firmly believe Americans can no longer claim we’re “a government of laws not of men” as John Adams, our 2nd US President once pronounced. Adams’ words came to epitomize the venerable “rule of law” in America. In his era, the critical debate was “rule of law” vs. “rule of man.” The prospect that America might become “a government of men not of laws,” is exactly what Adams and our founders feared most, and warned us to stay away from. In their day, “rule of man” referred to the British King George III, who . . . well, just take a look for yourself:
In 1776, the year of our Declaration of Independence, Thomas Paine anonymously wrote a pamphlet titled Common Sense which stated: “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” Adams, a contemporary of Paine, expounded on Paine’s Common Sense, and made sure the Massachusetts Constitution of 1780 included the words “a government of laws not of men.”
In Adams’ and Paine’s day, the King was law, and he served no one except himself. Today, billionaire monopolies are the “King makers.” By purchasing our legislatures, individual judges and elected officials, they bastardize “the rule of law.” Their aim is make America a government of men, not law. This is what happens every day in Latin America, and why we call them “third world.” If we acquiesce, and accept their bastardization of America’s founding premise, we’re right back where we started in 1776. Put another way:
we cannot let this ↓ become this ↓
A couple of days ago Mississippi ruled that the 5th Circuit’s blanket validation of the ACC clause in Leonard v. Nationwide was erroneous, and not the law in Mississippi. (Corban v. USAA) The ruling came one thousand five hundred (1,500) days after Katrina hit on August 29, 2005. The 1,500 day journey to get an ACC ruling traveled this 4 year timeline:
- August 2005 – Katrina
- August 2006 – Leonard trial (District Court)
- August 2007 – Leonard opinion (5th Circuit)
- October 2009 – Corban opinion (Ms Sup Ct)
In the first 13 months, Katrina claims in three beachfront counties alone totaled $4,831,869,515.00. That works out to $400,273,214.00 in claims per month, or $13,254,079.00 per day, just in those three counties. So, until Corban, decided October 8, 2009, State Farm, Allstate, Nationwide applied the ACC as a take-it-or-leave-it settlement tool. During this entire period there was no legal opinion invalidating the “in any sequence” language of the ACC. Nor did any legal opinion make it clear that the ACC was solely applicable in one narrow situation: where “indivisible, contemporaneously converging” wind and water caused the loss, which the insurer had the burden to prove.
There’s really no accurate way to calculate how many millions of dollars in claims were falsely underpaid, and fraudulently settled during this time. Then, in 2007 when Edith Jones decreed that water effectively washed out accrued wind loss, no matter when it arrived, the insurance monopolies figured “game, set, match.” It took another 2 years before Corban reached the Mississippi Supreme Court, and the hideous Jones opinion was overturned.
All this time, every $13 million day, there was a simple way to get the ACC question up to the court it belonged in – the Mississippi Supreme Court. It’s called “certifying.” For decades, federal courts have deferred purely state law questions to state supreme courts. Mississippi has had a certification rule as far back as 1983. In pertinent part, the rule says: “When . . . there are no clear controlling precedents in the decisions of the Mississippi Supreme Court . . . the federal court may certify such questions or propositions . . . to the Mississippi Supreme Court for rendition of a written opinion . . . .” (MRAP, Rule 20). This is a lot of fancy rhetoric effectively saying “when in doubt, go ask the experts,” but the idea is to keep federal courts – the playgrounds of predator corporations – from freelancing into state law.
So why didn’t this happen with Katrina? Why didn’t the 5th Circuit “certify” the ACC question to the Mississippi Supreme Court, instead of flippantly condemning a third of Mississippi’s citizens to utter financial ruin? Did Sheila Birnbaum know something about the 5th Circuit we didn’t? What’s behind her remark in a recent speech: “I think we always knew that we had to get the cases up to the Fifth Circuit . . . .”
Curious, I checked into the 5th Circuit’s history on certification. Here’s what the Mother Court (US Sup Ct) said about the 5th Circuit as far back as 1974: “The Fifth Circuit’s willingness to certify is in part a product of frequent state court repudiation of its interpretations of state law. See the cases summarized in United Services Life Ins. Co. v. Delaney, 328 F.2d 483, 486-487 (CA5 1964) (Brown, C.J., concurring).” See Lehman Brothers v. Schein, 416 U.S. 386 (1974). So as long ago as 1974 the 5th Circuit’s reputation for state law interpretation was one of “frequent repudiation.” This makes it even more egregious that the ACC wasn’t timely certified to our Supreme Court.I’d sure like to know the cumulative salary we taxpayers are paying these judges who thought nothing of destroying people’s entire life savings, and economically condemning one third of our state just so some racketeering monopoly could preserve its record profits. The 5th Circuit currently has 21 judges on its payroll. You do the math, if the value of their annual pay packages, considering vested health insurance, pension benefits, etc. totals out to even $300,000 a year, conservatively estimated, that’s $6,300,000.00 a year we’re paying these people to dispense impartial justice.
It’s time to put a stop to endemic corruption. I advocate that we pressure Congress to apply the honest services doctrine to every federal judge and court staff member. Is there any good reason why we the people – the ones funding these sworn government servants – shouldn’t be entitled to honest services from them? The alternative is simply unacceptable – scrap the rule of law, and acquiesce that our government is now third world. The definition of honest services as it’s used in the federal mail fraud statute, 18 USC 1346 reads: “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”
Senator Patrick Leahy has repeatedly tried to get an honest services bill which would apply to members of Congress. Why not do the same thing with our judicial system? How else are we going to stop the corruption and save the rule of law?