The Legal Conservative

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.

Investors.com – Another Radical Judge.  Interesting and troubling  editorial about a candidate for the 7th  Circuit Court of Appeals.

Supreme Court Justices debate, draw laughs at Tucson event | www.azstarnet.com ®.

Interesting brief article discussing Justices Scalia and Breyer’s debate on how to interpret a constitution.

One of the biggest economic concerns in Florida continues to be the decreased prices in the real property markets, both residential and more recently commercial.  Any time this type of financial upheaval occurs, important legal cases will result, although sometime the maxim that difficult facts can result in bad law holds true.  The classic example of this in the foreclosure context is the case that started it all, the case the gutted the impairment of contracts clause in the U.S. Constitution, Home Building & Loan Association v. Blaisdell, 290 U. S. 398 (1934).  In Blaisdell, the state, basically concerned about all the homes that would be in foreclosure, enacted a moratorium on foreclosing, if certain minimum payments were made, and so on, clearly impairing the rights of mortgage holders, and the held that  this did not violate the constitutional impairment of contracts provision.  An awful decision, since the impairment of contracts clause was explicitly added to keep states from doing debt relief in such a fashion.

Which brings us to the current day, and a case from the 3rd DCA  in which the court said it was sending a message to the trial judges and laying down a rule that granting a motion for an extension of time in a foreclosure case out of benevolence and compassion (empathy)  was an abuse of discretion.  http://www.3dca.flcourts.org/Opinions/3D09-2405.pdf  If Justice is to  be blind, this is a correct decision; rulings are to be made without respect to the parties.  Interesting as well were further comments in the Daily Business Review as to the facts of the case, and finding out that the home at issue is a multi-million dollar home, and that the defendants had already filed bankruptcy to stay the foreclosure action, which bankruptcy was dismissed with a six month bar on filing a new one, a bar which would have kept the defendant from filing a new petition before the originally scheduled sale.

The whole area of the pending foreclosure cases is a troubled one, troubling from a human perspective because these are real people involved, but perhaps even more troubling because of the derogation of  contract law in the context of foreclosures.  Is it even ethical for attorneys to attempt to delay the process of foreclosure for the sake of delaying the displacement of foreclosed families?  Should not the question be if the homeowner is in default under the terms of the mortgage, and if so, foreclosure is granted.  Attempting to have the parties work out a solution is fine if both parties agree, but forcing dispute resolution- this is definitely a beast of a different coat.  Up to two years to foreclose is a breakdown of the court system.

In this same vein, the Eleventh Circuit has just issued an opinion on whether the Interstate Land Sales Full Disclosure Act, better known as ILSA, applies to certain condo sales. 11th Circuit ISLA Decision Slight context, ILSA is not to apply if the sale is for a condo the developer has agreed to deliver within 2 years.  If ILSA applies, then it is often a basis to get out of a contract and recover a deposit. In the case at the Eleventh Circuit, the buyers had put a deposit down on a condo in 2005, probably at the peak of the market.  The condo was completed  within the 2 years, but the buyers sued for their deposit back, arguing that it was subject to ILSA, because the  Force Majeure  contract clause  meant that the claim of delivery within 2 years was illusory, even though delivery had occurred.

The court described the case as thus:

In a market-based economy the price of housing, like other goods, is subject
to swings. There was a sharp upward swing in housing prices between late 2000
and the end of 2005, and the resulting bubble was bigger in Florida than it was in
most other states. Home prices there rose eighty-two percent in absolute terms
during that short period, outstripping the fifty-one percent national increase. See
Gabriel Montes Rojas et al., The Florida Housing Boom, 3 Fla. Focus 1, 2 (2007).
All bubbles eventually burst, as this one did. The bigger the bubble, the bigger the
pop. The bigger the pop, the bigger the losses. And the bigger the losses, the more
likely litigation will ensue. Hence this case.

There may be a conflict with this decision and some Florida Supreme Court decisions, so the final chapter may not be written.

The Trial |Judge Issued his ruling to day on the Sansom official misconduct charges, and dismissed them, leaving only a perjury charge based on Sansom stating that the College had requested the increase in funds and the state contradicting that testimony.Sansom Order Dismissing Official Misconduct.  As we previously noted, the arguments to dismiss were not frivolous, and the likelihood of this order of dismissal being reversed on appeal should be slim. Public outrage does not a crime make.  On the Perjury charge, it will be interesting to see if that testimony before the Grand Jury meets the test of materiality, since the substantive charges have now been dismissed.  The Trial Court held that it was material, since the grand jury had jurisdiction to investigate official misconduct, even if no charge were brought.

See e.g. Kungys v. United States, 485 U.S. 759, 770 (1988) ” A false statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.” 

Well, the Supreme Court issued its order list  of cases it granted Cert in last week after its first long conference, and Frazier was not among the cases Cert was granted in, but as of today Cert has now been denied.  For those of you not familiar with this case, a case I had the privilege of arguing at the trial level in the Southern District, this is a case that is referred to as being about reciting the pledge, but it is really a case that is important in the context of parental rights.

Basically, this case was about the facial constitutionality of the Florida Statute that allows students not to participate in saying the pledge, but that required a parent’s written permission for a student to opt out of saying the pledge.  There was a issue as to another portion of the statute and all civilians being required to stand, but that was always a side issue, because the State consistently said that if a student is excused from saying the pledge, he is excused from everything, including standing.  The Eleventh Circuit held that it was constitutional to require a parents permission in writing before a student was excused from a pledge, and that this requirement did not violate the Student’s First Amendment rights, but protected the parental right in the upbringing of their minor child.

This should not have been a particularly surprising outcome, tut Judge Barkett had a vehement dissent from the the denial of the rehearing en banc, and a law review article from UM took a similarly dismissive view. (opinions and article to be posted later).

In the educational context, don’t forget that the parents have the right to choose what courses a minor child will take, what extra- curricular activities the child will engage in, and even, as established by the Supreme Court in Wisconsin v. Yoder, whether if for religious reasons a child will not be educated beyond the 8^th grade.  When it comes to minor children, they need a parent’s permission for almost everything, even exercising fundamental rights, such as the right to marry. The only real area of legal exception is the abortion context, and some related sexual heath issues.

The assumption has always been that the parents control whether or not a child would participate in the pledge – interestingly enough, in the Barnett case on the right not to say the pledge, the statute struck in that case would have imprisoned the parents if their child refused to say the pledge- an implicit acknowledgement that the parents control whether a child participates in the pledge.  And, of course, there are potential consequences for parents today in regard to a child participating in the pledge- it would be perfectly lawful in most cases for a private business to fire a parent because it became public that they allowed their child to refuse to participate in the pledge.

More analysis of this case hopefully to follow.