Ninth Circuit: San Francisco Health Care Law Not ERISA Preempted

Sanfran In a first in the health care reform context, and in opposition to the Fourth Circuit’s holding in the Wal-Mart Bill case of RILA v. Felder, the Ninth Circuit has ruled in Golden Gate Rest. Ass’n v. San Francisco, No. 07-17372 (9th Cir. 9/30/08), that the San Francisco health care law is not preempted by ERISA.

From the BNA Daily Labor Report this morning:

The Employee Retirement Income Security Act does not preempt a San Francisco ordinance that requires medium and large employers in the city to make minimum health care expenditures on behalf of covered employees, either by paying into their own employee benefits plans or into a fund maintained and administered by the city, the Ninth Circuit holds . . . .

Writing for the court, Judge Fletcher says ERISA preemption is limited in areas that historically are matters of local concern, that employers subject to the city ordinance law lacked the sort of discretion that would render the program an ERISA plan, and that the ordinance does not “relate to” a benefit plan covered by ERISA.

The case has been watched closely by employer representatives and employee groups, which predicted the decision could have wide-ranging implications for the future of health care funding. San Francisco Mayor Gavin Newsom in a statement calls the ruling ”a huge victory for this city and the 46 million Americans who don’t have health insurance.” Business groups, however, call the decision “devastating” for small business owners.

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Responding to Racial Disparities in the Criminal Justice System

The Sentencing Project has just published a new edition of Reducing Racial Disparity in the Criminal Justice System, a manual for policymakers that describes numerous best practices for addressing disparities.  This publication should be of particular interest in Milwaukee and Wisconsin, which have some of the worst criminal justice disparities in the nation.  As The Sentencing Project described in a May publication, blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense, the second-highest such disparity among the forty-three major American cities analyzed.  Similarly, a state-level analysis by Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction, the highest such disparity among the thirty-four states studied.

Of course, to say that there are racial disparities is not to say the disparities are necessarily unwarranted.  For instance, if it turned out that blacks committed serious drug crimes more frequently than whites, then at least some of statistical disparities might be warranted.  Still, the magnitude of the racial disparities in Milwaukee and Wisconsin is so high, particularly in comparison to national norms, that there is good reason to believe we do indeed have a serious problem.

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Attorney General Cancels Stay in Matter of R-A-, the Case of a Guatemalan Woman Seeking Asylum From Severe Domestic Violence

Some of my former students will remember the domestic-violence asylum case, Matter of R-A-, which had been pending in a sort of limbo state since January 2001.  The R-A- case presents the issue of whether an immigrant may obtain asylum in the United States on the basis of her well-founded fear that she will suffer severe domestic violence if she is returned to her country, violence from which her country will not protect her.  This week, Attorney General Michael Mukasey issued a decision directing the Board of Immigration Appeals to reconsider the case.

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