Thursday, October 2, 2008

Ninth Circuit Does It Again

San Francisco Decision Will be Reversed

By Greg Scandlen

Categories: California

The Ninth Circuit has issued another ruling that is certain to be overturned by the Supreme Court, keeping intact its record as the most reversed appeals court in the United States.

A three judge panel of the court ruled that San Francisco’s play-or-pay mandate on employers does not violate ERISA, “because it does not require the creation of an "employee welfare benefit plan" within the meaning of that federal law,” according to an article by Joanne Wojcik in Business Insurance.

But ERISA does not apply only to laws “creating” an employee welfare benefit plan, but laws “relating to” such a plan. There is no question that this law “relates to” these plans, and so shall be overturned by the Supreme Court just as every other similar attempt has been over the past 30 years.

As Chris Reed put it in a San Diego Tribune blog, “The 9th is rewriting plainly written law. No employer mandate has ever withstood a federal court challenge until now. That's because ERISA says states can't tell employers what benefits to provide. I repeat my promise to eat a printout of this blog item if the Supreme Court upholds the San Francisco law. This is a slow-motion farce.”