Degrees of Separation
The alarm siren that this news sets off should be audible as distantly as Hawaii:
Superior Court Judge Netti Vogel last week issued a permanent injunction blocking the state’s three-year agreement with United. United rival Blue Cross & Blue Shield of Rhode Island had sought the injunction, claiming the state’s handling of the bids was unfair. Vogel agreed, saying it was riddled with errors and that the state must seek new bids.
The Carcieri administration appealed Vogel’s decision to the Supreme Court on Monday, and sought an immediate suspension of the injunction and quick consideration of its appeal.
Note that I’m calling for an alarm — not action. I lack the background to know what is and isn’t legitimate practice in the contract bidding process, and I lack the time to research the relevant law. One way or another, something just is not right in this sequence of events.
I trust the governor when he says that, even “if the allegations contained in the judge’s decision were true, United HealthCare’s bid would still be superior to the bid submitted by Blue Cross.” Furthermore, I’m not impressed with Vogel’s decision (PDF). Somewhere between the phrases “the lame excuse” on page four and “a feeble effort” on page ten, I began to wonder what legal purpose the adjectives were meant to serve. Nonetheless, my personal impressions are not the main reason for concern.
The problem is that we live in a state in which the legislature consents to tacking a provision on to the state budget that removes the executive branch from the handling of budget requests from the judiciary… and then overrides the governor’s veto. Where the guy running Blue Cross & Blue Shield of Rhode Island was, until the last election, the father of a state representative.
Vogel leverages the State Purchases Act, which became law in 1989, a period during which the state senate was under the “effective control” of John Bevilacqua. John is the son of Joseph Bevilacqua, who had (at that time) recently resigned his position as Supreme Court Chief Justice “amidst revelations about links to organized crime figures,” and brother of Joseph Jr., also a man with interesting connections as well as the apparent source of the videotape whom the ailing Jim Taricani has (according to Taricani) risked prison to protect.
According to the language of the law, it “shall be liberally construed and applied to promote its underlying purposes and policies.” At first, I wondered whether “liberally construed and applied” might be meant to give the executive branch room in which to conduct smart business maneuvers. Then I read Governor Carcieri’s press release stating that even “Blue Cross admitted that United HealthCare’s bid was more favorable to the taxpayers,” and it occurred to me that Vogel’s rhetoric is mainly concerned, not with the taxpayers, but with “fairness” to Blue Cross & Blue Shield:
Whether due to ignorance of the law, their own flawed sense of fairness, or some other less innocent motive, [the executive] skewed the process in favor of United and denied BCBSRI fair and equitable treatment mandated by law.
Now, I’m not asserting any form of wrongdoing on either side. I’m merely suggesting that we ought to keep a very close eye on the judicial overruling of executive processes on the basis of ensuring fair treatment for a healthcare monopolist with questionable connections throughout the state and its government.
Let me tack on, here, a tangential curiosity that I stumbled upon while skimming this ruling. Vogel writes that “the Court does not require a ‘smoking gun’ to draw a reasonable inference that favoritism was present and that Defendant acted so unreasonably, arbitrarily and capriciously as to be guilty of a palpable abuse of discretion.” The phrase “smoking gun” is footnoted as follows:
On August 5, 1973, President Nixon released transcripts of taped conversations he had had six days after the Watergate break-in. Those transcripts became known as “The Smoking Gun” because they disclosed how early Nixon learned that his staff and re-election campaign had been involved in the break-in and also revealed his own participation in the cover-up. Following release of those tapes, it became clear that Nixon would be impeached and convicted in the Senate.
Is it common for judges to indulge in political history (involving Republican scandals) in order to explain extremely common phrases?