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.