Legal Conservative Blog

Having just read this decision, and the evolution of the evolving standards of decency and proportionality review, in addition to the first ever time that I remember the court completing a social study that was cited  by a party, and using it to justify the holding in the case- all I can say is wow- second time in about 20 years I have been rendered speechless by the tortured logic of a U.S.C.T. decision.

08-7412.pdf application/pdf Object.

This really does deserve a fuller review, so more analysis to follow.

Here it is – weekend reading, the amended complaint filed by Attorney General Bill McCollum in the challenge to the constitutionality of the health care act.  Analysis to follow.   AMENDED COMPLAINT FINAL Date Stamped 051410

Experts Split on State Lawsuits Over Health Care Law – NYTimes.com.

Will have to give the times their due, this is a more reasoned explanation of the key issues in the case then most analysis I have seen by the Times.

Attached is a copy of the suit just filed challenging the constitutionality of President Obama’s Health Care Legislation. Analysis to follow, but wanted to get the suit up immediately, it has been filed in Federal Court in the Northern District of Florida.  Healthcare Unconstitutional COMPLAINT (03-23)

Ok, having had time to review the complaint, the basic arguments are summarized below:

1. Congress has no Constitutional authority to pass this healthcare act, not authority under Art I, or specifically the commerce clause or the taxing and spending clause.
2. Congress, by depriving the states of control over their budget processes because of  the unfunded mandates in this bill, has deprived the states of their sovereignty and the right to a republican form of government guaranteed under Art IV, Sec. 4 of the constitution.
3. Congress has violated the states’ 10^th amendment rights by requiring that states and state employees be agents of the Federal Government to enforce Federal Regulation, without federal payment.
4. Congress imposing a tax penalty for failure to have insurance is a violation of Art I, Sections 2 and 9, in that this is a direct that is not apportioned among the states according to a census, and is unrelated to any taxable activity or income.
5. Congress imposing a tax penalty for inactivity or a failure to engage in an activity is in violation of the powers reserved to the States or the people under the 10^th amendment, and is not predicated on any constitutional grant of authority to congress.

Some of you may have wondered whether there would be anymore updates, and the answer is yes- there are plenty of interesting matters to cover. For the past two months I just was caught up in some major client projects- do have to pay the bills after all, and as the father of 4 month old twins, adorable but demanding. look for new posts shortly, and don’t forget to send me suggestions of cases to cover, thanks.

Well if you remember the October 15th Post on the Motion to Dismiss charges against Sansom and Odom, we predicted the odds of a reversal on appeal would be slim, and the IST DCA has just turned down the appeal as to Sansom and Odom as one that that State had no jurisdiction to file.  Sansom09-5158 T he Rationale: “Plainly, the circuit court’s order here does not dismiss an indictment or any count thereof, and because there is otherwise no statutory authority for the state to appeal in this circumstance, we are without jurisdiction.” Interestingly, they have yet to rule on the Richburg  appeal, because the trial judge in that order did dismiss a count in the indictment and so the State did have jurisdiction to appeal.

Well, as a practical matter, this means that the SA has a greatly weakened case against Sansom and Odom, (as noted earlier, probably not without reason) and if there is an acquittal in the remaining portion of the case, suspect it is unlikely that an appeal of these initial matters will be taken at that time.  SA now has to decide whether the case is even worth bringing on the remaining grounds.

This morning the First DCA  issued its decision in 08-4713 COUNCIL FOR SECULAR HUMANSIM, INC., RICHARD HULL and ELAINE HULL, v. WALTER A. MCNEIL, in his official capacity as Secretary of Corrections of Florida: PRISONERS OF CHRIST, INC., a Florida corporation; and LAMB OF GOD MINISTRIES, INC., Florida corporation. The Court basically reversed the trial courts dismissal of the complaint and under its prior ruling in Bush v. Holmes said that plaintiffs had stated a cause of action under Article I, section III of the Florida Constitution.

Count 0ne of the Complaint alleged that Count I of the amended petition alleged that ” payments to these organizations [faith-based substance abuse transitional housing programs of appellees Prisoners of Christ, Inc. (Prisoners) and Lamb of God Ministries, Inc. (Lamb of God)} constituted payments to churches, sects, religious sects, religious denominations or sectarian institutions contrary to the so-called “no-aid” provision in Article I, section 3 of the Florida Constitution.

As to this count, the Court held that  “In the case under review, the trial court was erroneously persuaded by appellees that this court’s decision in Holmes I was limited explicitly to the school context.”  This holding by the court is not suprising, since the logic of Holmes I was never limited to just the education context- the State Defendants in that case had strenuously argued the Court logic would apply to a host of other programs, although the Plaintiffs in Holmes argued that was not the case.

So, under the Court’s holding today, what programs are at jeopardy under Article 1, section 3?  Well, the Court hedges a bit by referring to some Georgia cases, but says the case is being sent back, and “the inquiry here is whether the programs funded by sections 944.473 and 944.4731 and provided by Prisoners and Lamb of God are predominantly religious in nature and whether the programs promote the religious mission of the organizations receiving the funds.”

The court does this in spite of dropping a footnote, in which they say that  “We recognize that, as asserted by appellees, the services received by the state under the programs here serve legitimate penological goals.”

So, taken together, this decision could fairly be read to be saying that even in a competitive state procurement process, in which the services received by the state would serve legitimate secular purposes, if the organization that is providing the services is genuinely a religious organization- Sectarian has traditionally been considered a religious slur when used to refer to an institution- and if the provisions of services furthers the religious institutions mission, the state must discriminate against that religious entity.

So, once again, a group such as FSU’s Methodist and Very Religious College Students, Inc- formed for the purpose of  funding missionaries and providing for the homeless, could not bid on a state contract they were other wise qualified for to, for example, distribute surplus state blankets to the homeless and collect current data on recipients.

If this is really true, while the court made a passing reference to the USCT decision in Locke, this may very well run afoul of the Establishment of Religion and Free Exercise Clause of the Federal Constitution- Locke is distinguishable on several grounds, and appears to have been narrowly written, but is probably incorrectly decided as well.

It appears that we will now have judges weighing how religious is too religious- perhaps a new scale with degrees of religiosity.

Selective Empathy – Opinionator Blog – NYTimes.com.

Greenhouse has some interesting thoughts about a very unusual per curiam opinion that was issued by the U. S. Supreme Court in a Florida ineffective assistance of counsel  capital case, Porter, this week.  Basically, the court said that failure to present evidence at the sentencing portion of the trial about his military service during the Korean War, even though he had twice been AWOL during the War as well, was ineffective assistance of counsel – creating almost a per se rule  of ineffectiveness in case where someone has military services, and doing this in a case in which they never even entertained full briefing or oral argument.

Landowners along Florida beaches ask Supreme Court to examine taking of private property – washingtonpost.com.   Good high level analysis of the takings case that will be heard by the Supreme Court December 2- I will be in DC that Day but am speaking during the OA and unfortunately will not be able to attend- it should be an interesting OA if it focuses on the concept of judicial taking, Scott Makar will be doing the  argument for the State.

An  issue that has been pending before the Florida Supreme Court since February, when the Court declined to Follow the Florida Bar’s suggestions on new ruled for regulating web content has now come to a resolution that is somewhat messy and curiously intertwined with the resolution  of a federal case on web advertising that was stipulated to be dismissed in the Southern District last week.  What will happen next?   On November 13, the Florida Bar – represented by Barry Richard, and Joel Rothman -represented by Bruce Rogow, agreed to a stipulated motion to dismiss, in a federal case Rothman Complaint Final challenging the Constitutionality of  the Bar limiting the use of testimonials on Avvo, with the Bar stipulating that it was reviewing all the Bar’s advertising rules, and that while it was reviewing the rules, it would consider information on sites such as Avvo, information provided at a clients request- consequentially not subject to the restrictions on testimonials, etc. Stipulated Dismissal Rothman The Court approved this stipulated dismissal on November 16th.  The Daily Business Review published an article on the 18th, stating that the Bar had agreed to Exempt Online sites such as Avvo from its requirements.  On November 19th, the Florida Supreme Court issued its revised opinion in sc08-1181, ruling that as of January 2010, all web content, including third party sites such as Avvo, and law firm web homepages, will be considered advertising material, and subject to all advertising  requirements except being submitted for approval, and would not be considered information received pursuant to a client’s request.

Very interesting, but one has to suspect that Rogow was not aware that the relief his client agreed to would be so short lived, or he would not have so agreed, and and it appears the Bar may even have been surprised  that the SCT granted its request for rehearing, – since the stipulation entered into appears to contemplate further study by the Bar.

Bottom line though, the Florida Supreme Court’s decision is going to create a world of problems for all law firm websites, particularly for those firms with multi- state offices.  It appears that listing cases handled and results, which  many firms do, including it appears Barry Richard’s firm, would run afoul of the Florida Bar’s restrictions as of January.  Additionally, it does appear that with this broad of a sweep, that the Bar may be running afoul of the First Amendment in a few respects.  Members of the Florida Bar have probably made a serious mistake in not being more involved in this discussion of regulation because of its broad consequences.