Meet the Massachusetts man who teed up the healthcare challenge

By Alison Frankel
April 2, 2012

George Fountas, an out-of-work accountant from Lynn, Massachusetts, profoundly mistrusts the healthcare system. Get him started, and he’ll reel off stories about how death rates decline when doctors go on strike and burial societies are the biggest fans of hospitals. Before 2007, according to Fountas, he had never paid a penny for healthcare coverage. He saw no reason why he should start, despite a then-new law in Massachusetts that said he’d be subject to a fine if he refused to join a health insurance plan. He refused to join a health plan, and refused to report that information on his 2007 tax return.

Fountas has no more regard for lawyers than doctors — “I’m kind of antisocial,” he told me — but he’s a U.S. Constitution buff. So instead of simply surrendering his $60 tax refund to the state as a penalty for failing to comply with the new law (and also giving up the right to claim a personal tax exemption worth about $219), Fountas filed a complaint in Essex County Superior Court claiming that the Massachusetts mandate violated his due process rights under both the state and federal constitutions.

Fountas’ amended suit was a scant five pages, but it raised some of the same fundamental questions that the U.S. Supreme Court weighed last week in an unprecedented three days of oral arguments on President Barack Obama’s nationwide healthcare law. Does a legislative body have the power to compel an individual to purchase health insurance? And does it have the power to impose a penalty on anyone who refuses to comply with that directive?

Here’s what Fountas said in his 2007 complaint:

It is [my] belief that any laws passed by the state government to punish [me] for observing a principle described in the Constitution of the Commonwealth as ‘absolutely necessary to preserve the advantage of liberty and to maintain a free government’ are contrary to that Constitution and are therefore null and void… Punishing residents who observe a principle stated in such forceful language can in no way be taken as an observance of that principle by agents of those same residents.

Arguments at the U.S. Supreme Court centered on whether Congress exceeded its power to regulate interstate commerce under the Commerce Clause when it passed the nationwide healthcare mandate, rather than on the due process arguments Fountas put forth and the state Supreme Court ultimately rejected. The Commerce Clause obviously has no bearing on the power of the Massachusetts state legislature, so even if the justices strike down the nationwide law, the Massachusetts mandate is expected to remain in place. That could create quite an interesting political conundrum for Mitt Romney, who signed the Massachusetts mandate into law. Fountas said he’ll be glad to see Romney held accountable for the Massachusetts law. “He’s a white Obama,” he said.

Nevertheless, as we wait for the U.S. Supreme Court to decide the fate of the nationwide law, it’s worth considering what happened with Fountas’ case, which was the first to test the Massachusetts mandate. In February 2009, Essex County Superior Court Judge Kathe Tuttman dismissed Fountas’ suit against the commissioner of the state revenue department. The judge concluded that the Massachusetts legislature was within its rights when it enacted a requirement that residents purchase health insurance:

As a rational basis of fact can reasonably be conceived to sustain it, the Act is a proper exercise of [the legislature's] police power. Because proper exercises of police power do not offend either the Massachusetts Declaration of Rights or the Contracts Clause of the U.S. Constitution, Fountas’s claims … must be dismissed.

Tuttman also found that the cost of compliance with the healthcare mandate was too minimal to be considered an unconstitutional “taking” under the Fifth Amendment, and that the penalty imposed on Fountas for failing to comply was not excessive under the Eighth Amendment.

Fountas was convinced he’d been unfairly denied his right to a jury trial. “Under Massachusetts law, they are required to provide me a trial by jury in a dispute over my property,” he said. By the time his original suit was dismissed, he said, the state had “seized money from my bank account,” to pay his fine. He argued the seized money was his property, and appealed the dismissal of his suit. “I put a number of questions to the appeals court,” Fountas said. “The appeals court refused to answer.

Fountas made his own 15-minute argument at the Appeals Court of Massachusetts. (I was surprised that he hadn’t received offers of counsel from public interest groups opposed to healthcare mandates, but he said the only lawyer who reached out to him was a Californian interested in the U.S. constitutional issues; I tried to track down that lawyer but couldn’t find him.) In March 2010, a three-judge appellate panel affirmed the dismissal of Fountas’ suit, without adding any analysis to Tuttman’s consideration of the state and federal constitutional questions. The two-page opinion by Judge James McHugh did address Fountas’ assertion that he was due a jury trial. The right to a jury applies only when facts are disputed, which they weren’t in Fountas’ case, the judge said. In dismissing the complaint, the appeals court said, the superior court judge simply applied the law.

In April 2010, the Supreme Judicial Court of Massachusetts denied Fountas’s request for review, leaving the two lower-court rulings as the final word on Fountas’s constitutional arguments.

Fountas, meanwhile, still fervently believes that the state law violates his rights. He hasn’t joined a healthcare plan, but said he wasn’t penalized because in the last few years he didn’t earn enough money to have to file a tax return. (That’s how the state tracks residents’ compliance with the healthcare law.) “Every judge who was involved with my case should be in prison,” Fountas told me. “They put up obstacles to interfere with my due process rights.”

Fountas said he didn’t follow last week’s U.S. Supreme Court arguments closely, but he’s rooting for the Obama law to be tossed. I asked whether he was disappointed the federal case turns on a constitutional argument other than his Fifth and Eighth amendment assertions. “No,” he said. “I’ll be happy if they get rid of it for any reason altogether.”

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