Pro Bono Barrister for July 13, 2012

July 12, 2012 Brooklyn Eagle Staff

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Many here stunned by Roberts’ vote for the health care act

“I was stunned, absolutely stunned,” a Kings jurist said after the announcement that Supreme Court Chief Justice John Roberts joined four left-of-center colleagues in finding the controversial Health Care Act constitutional.

This measure, often described by some detractors — with knowing, conspiratorial, winks of the eye — as Obamacare, seemed doomed to defeat, which would likely have shattered the re-election campaign hopes of President Barack Obama in the bargain.

Why did he do it? Chief Justice Roberts may lean politically far to the right. But he’s not an ideological zealot.

Our confidential source suggested Roberts probably wanted to preserve the court’s integrity: “He had to be concerned that the reputation of the Supreme Court was at stake since the right wing of this court was responsible for saving the George Bush candidacy in 2000, more recently opened the gates to unlimited, secret campaign financing by billionaires and delivered a number of decisions calculated to cripple organized labor,” the jurist confided.

Sitting jurists may not comment on the record on such decisions, but what our discussions with a dozen or so jurists and barristers revealed that the issue was so hot that very few would say anything for publication. Republican, Democratic and conservative lawyers alike, however, invariably admitted they were “shocked,” “stunned” or “I have no idea why he [Roberts] did it!”

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Does the ACA contain a ‘poison pill’ for Democrats?

One attorney, a Republican, didn’t like the decision but said he could “live with it.” He offered, however, a novel theory positing that the most talked-about part of the Roberts decision — which holds that the fee assessed non-payers under the mandate is a tax, not a penalty — will ultimately do serious harm to Democratic office-seekers.

“This was a way to get the [Supreme] Court off the hook and kick the can back into the House of Representatives,” he opined. “Call it a poison pill or a Trojan Horse — whatever you want,” he added. “But, by calling it a tax, Roberts opened the door for Republicans to attack the health bill from now until the [presidential] elections in November.”

“Even though the ACA may not be the biggest factor in the presidential race, the main goal of the GOP is to gain a super-majority in the House and to take over the Senate,” he said.

“Obamacare is still a bad word in most of these state and local battles.” he maintained.

Abbate sees good ACA; Grimm condemns ‘Obamacare’

Even Democratic elected officials who favored the ACA carefully chose their words. Typical were opposing op-eds in Bay Ridge neighborhood newspapers – one by Democratic Assemblyman Peter Abbate, the other written by Republican Congressman Mike Grimm.

Bensonhurst-based Assemblyman Abbate, long regarded as a solid representative of his moderate constituency, came out strongly for the ACA stating the Supreme Court decision is “a major win for New York and its residents.”

Abbate, who started his political career as an anti-Vietnam reformer, said “Health care will benefit New Yorkers from all walks of life.”

He noted, for instance, that it will assist senior citizens who are “victims” of the dreaded “donut hole” penalty because they will receive a $250 rebate this year.

Showing the sensitivity that still cloaks the legislation, Abbate’s carefully crafted piece never once referred to the ACA as “Obamacare.”

Going directly against right-wing claims that local businesses would be harmed by the ACA, Abbate pointed out that it will actually benefit small businesses.

“Businesses in our community will have the chance for tax credits while [their employees] have access to health coverage,” he added.

The 11-term state legislator emphasized that businesses with 50 or fewer employees will now qualify for insurance at “fair market value from the soon-to-be created health care exchange.”

Grimm takes dim view of Roberts’ ACA approval

Meanwhile Grimm, a Tea Party favorite, headlined his anti-ACA polemic in his opposing op-ed on the same page with this line: “Obamacare is another tax that U.S. can’t afford.”

Astutely, Grimm never mentions Chief Justice Roberts in his article and instead directs his guns on the White House. “President Obama has misled the nation. He has pulled the wool over the eyes of the American people and broke a fundamental promise by imposing on us one of the largest middle-class tax increases in the history of the country,” the freshmen legislator stated.

“In light of this decision,” he continued, “I am more resolute than ever in my commitment to repeal fully this tax on our nation’s hard-working families and the small businesses that we need to grow and create jobs.”

Grimm beat Democratic incumbent Mike McMahon in 2010 even though McMahon bucked his boss, then House Speaker Nancy Pelosi by voting “nay” on the ACA.

Neither of them backed down in their heated, one-on-one television debate held just a week before election where tempers often flared. Some observers believe it was that Channel One confrontation, which helped the telegenic Grimm get an edge in the final outcome defeating McMahon by a few percentage points.

Grimm is much more conservative than Molinari’s charismatic daughter, Susan, who held this bi-borough seat in the 1990s. Viewed as a moderate — even on hot-button issue such as abortion — she was very popular in the 13th C.D. which includes all of right-leaning Staten Island and extends across the Narrows into the heart of Abbate’s home district and neighboring Bay Ridge.

Succeeding Ms. Molinari, who left congress to raise a family and become a much-in-demand TV commentator, was another protege of her dad — Congressman Vito Fossella, who didn’t seek a fourth term due to a DWI incident which revealed a deep domestic crisis.

Most people agree that Grimm will be very hard to beat in this congressional district that was notably anti-Obama in 2008, then went for Grimm in 2010 and is likely to remain so in the upcoming November election, even though he faces a very competent opponent.

His Democratic foe is Mark Murphy, son of one-time Staten Island Congressman Jack Murphy, who looks and sounds like a solid candidate but hasn’t had enough exposure in the 13th C.D. to reach the electorate. With President Obama at the top of the Democratic ticket, Grimm remains the odds-on favorite.

Dittenhoefer brings wit, skills to Inn presidency

The Kings County America Inn of Court saluted outgoing president Ross D’Apice at its recent gala and welcomed to its top post another outstanding trial lawyer, Marc Dittenhoefer. Like former President D’Apice, the new Inns chief has been serving this modern-day homage to the 800-year-old Inns of Court in England since it was founded in 2000.

Each man has delivered superb courtroom performances at a number of trial re-enactment skits presented at each Inn CLE-accredited session. (It’s only fair to mention some other outstanding, often bold Inn performers — Justice Gerard Rosenberg, complete with red suspenders, as Larry King; Judge Miriam Cyrulnik as a little girl in love with her teddy bear; Melissa Bonaldes as “Li’l Bo Peep”; Appellate Division Judge Cheryl Chambers as the provocative “Judge Manley”; Justice Abe Gerges as “Chicken Little”; Justice Marsha Steinhardt as “Little Red Riding Hood”; and Joe Rosato as “The Big Bad Wolf.”

Moving up in the Inn chairs were President-elect Justice Ellen Spodek, Counselor David Chidekel, Treasurer Justice Arthur Schack and new Secretary Judge Miriam Cyrulnik.

A partner in the firm of Blank, Goolnick and Dittenhoefer, he has been a litigator since 1978, when he joined the legal staff at the Manhattan & Bronx Surface Transit Operating Authority. (New lawyers often incorrectly assume MABSTOA is the same as New York City Transit Authority but it’s long been a separate legal authority and its tort staff, headed in those days by the dapper Lafayette Poindexter, was an excellent starting point in Marc’s stellar career.)

Interestingly, Marc switched over to the NYCTA Torts Division in 1980 where he rose to Assistant General Counsel in 1982 before moving over to one of the city’s top private firms — Schneider, Kleinick & Weitz — for a few years before founding his own firm.

Gifted with a sharp but kindly wit, President Dittenhoefer is sure to make each meeting interesting as well as informative. Not only is he a natural-born showman-scholar, but the beautiful Helene Blank, his wife and a past Inn president, will be sitting every session in the jury box!

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PRO BONO BARRISTER is a weekly column dedicated to telling about the good that lawyers do. Send your comments or suggestions to this writer care of this newspaper or to [email protected].

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