Legal Conservative Blog

David B. Rivkin Jr. and Lee A. Casey: Mandatory Insurance Is Unconstitutional – WSJ.com.

Newest article from WSJ discussing constitutionality of  mandatory insurance.

The briefs filed in this case at the First DCA will be attached as received.  We understand that oral argument has already been set for Friday morning the 25th in this case. We have now been sent copies of all the briefs in this case but the reply brief. Initial NCAA Brief; Answer Brief of Press Appellees;Answer Brief of Appellee FSU;  NCAA Reply Brief.

First, I will have to say that the FSU brief takes the prize for being the shortest brief without substantive authority filed urging  affirmance of a trial court that that did not just join another party’s brief that I have ever seen out of probably 5,000 briefs, and is worth reading only for that point. Its lack of argument highlights FSU’s dilemma; if the courts ultimately side with the press, all that will mean is that all the public universities in Florida will no longer be able to sign confidentiality agreements and review underlying documents in sanction cases. So, even if the Press wins this case, ultimately neither the universities nor the Press will gain anything, and all state universities will lose.  T.K. probably has not wanted to highlight this aspect, considering that he may have to lead a university legislative charge to create a public records exemption if this is the result, if he is still at FSU at that point.

As to the other arguments in the briefs, several constitutional claims are raised under the  commerce clause and first amendment, but under the principle of not reaching a constitutional claim if the case can be decided on a statutory ground, it appears the courts would not have to reach the Con Law questions. This case could probably be decided on plain statutory language.  The statute (1006.52)on the confidentiality of student records was changed just this year to incorporate the FERPA definitions, and appears to exempt documents containing student information from the public records laws. It is interesting that the records at issue in this case have been redacted by agreement to remove student information, because the mere redaction seems to admit that they are covered under this exemption. If these records are not student educational records, there would appear to be no basis to require the redaction of student information, and if the information can’t be released without redaction, then under the Florida exemption, it would appear that the entire record is exempt.  Will be interesting to see how the courts handle this interpretation.

Another interesting point in the case that is not really briefed is the trial court’s voiding of the confidential agreements, where the university had agreed as a condition of receiving access to the documents not to release them. Have not read the precise terms of the agreements, but it appears that the agreements only allowed access if the agreement was entered into, and if the agreement is void, it would appear that the university no longer has any access to viewing these documents. I have not researched, but it would seem to violate a fundamental concept of contract law to void the contract and let the university still receive the benefit of the contract, and if the university no longer has the benefit of the contract, then perhaps the issue of whether these contested documents were “received’ should be moot – could the parties be presumed to be at a pre contract status, and no documents received?  Even the Press would admit that they have no claim of public records if the university never “received” the records.

Andrew Napolitano: Health-Care Reform and the Constitution – WSJ.com.

One of the core tenets of a legal conservative’s philosophy is understanding that Congress is a body of enumerated powers, and in this column Congressman James Clyburn from South Carolina demonstrates classic incomprehension on that point.  Wickard v. Filburn also gets dishonorable mention.  Wickard of course is the Supreme Court case saying that Congress can forbid you from growing wheat in your backyard to feed your milk cow or horses, because that might have an impact on interstate commerce.

In an opinion issued today in  Abbey v. Patrick, the First District denied a cert petition request from a doctor who claimed he had a valid statute of limitations defense against a medical negligence suit.  The Court held that this was not an extraordinary case deserving of cert review, and did not reach the merits of whether there was a valid statute of limitations defense.  The Court may have been correct that this was not an extraordinary case that cannot be corrected on direct appeal,  but one wonders whether the legislature may want to visit this type of case.  The practical result of this ruling, assuming there is a valid statute of limitations defense, will be either putting the defense to the cost of a full trial, a cost they will probably never recover even if they later prevail on appeal, or raising the cost and risk of proceeding so much that a settlement is reached because of the plaintiff’s renewed leverage.  Perhaps, particularly in cases in which there are no material facts in dispute, so that the case is ripe for summary judgment, it would be much more efficient to allow a direct interlocutory appeal from a denial of a motion for summary judgment.

Nahmias adds conservative voice to Ga. high court | ajc.com.

A good profile of the newest appointed Justice to the Georgia Supreme Court, a Justice who interestingly enough worked for Judge Silberman, Justice Scalia, and Justice Roberts at different points in his career.  His philosophy is contrasted with that of former Justice Sears, who was described as being so far to the left you could not find someone more to the left.

Supreme Court Transcript in the Hillary movie case here. It appears as though this decision will probably include one or more discussions of Stare Decisis when it is released, based on the lines of questioning  from the court.

Judge Terry Lewis of the Leon County Circuit Court indicated on Sept. 2 that he might have a decision ready tomorrow on whether to dismiss charges against former House Speaker Ray Sansom and his co-defendants, developer Jay Odom and former Northwest Florida State College President Bob Richburg.

It was a tight time-frame, however, since Lewis also set tomorrow as the deadline for attorneys on both sides of the case to amend their motions and responses.

This afternoon, Lewis’ office confirmed that he will not make that ruling at tomorrow’s 10 a.m. pre-trial hearing. While attorneys for the defense and prosecution will appear before Lewis on motions pertaining to “case management,” the judge does not expect to rule on the defendants’ motion for dismissal.

via March On Politics: No ruling expected on dismissal at Sansom’s hearing tomorrow – from TBO.com Breaking News.

The motion to dismiss arguments in this case are not frivolous, and it will be interesting to discuss when the trial judge finally rules.

Its been a while in production but the new Woodring Law Firm website and Legal Conservative Blog are live!  Now it is just a matter of having time to write on good topics.

Several important cases up this fall bear notice, and will be more commented upon later. The first is the Hillary movie case (Citizens United v. FEC, 08-205), up for a special oral argument before the U.S Supreme Court. It is a hugely important case dealing with the underlying constitutionality of the McCain-Feingold Campaign Finance Act. It may be the vehicle the Court uses to strike down under the First Amendment restrictions on corporate contribution limits.  For further discussion from a conservative perspective is what the reach of the First Amendment is to be, since it was not even applied against the states until 1931, and initially was held not to protect corporations at all.  Link for discussion of OA

Another interesting case to watch is the beach renourishment case from Florida (Stop the Beach Renourishment v. Florida Department of Environmental Protection)that U.S. Supreme Court is reviewing this fall term on takings grounds. More information on the issues in this case to follow. A good discussion of this case is found here.

Locally,  it has been interesting to watch the NCAA litigation over public records issues. There are some significant issues to be resolved in this case as to the preemptive effect of federal statutory and constitutional law on Florida public records requirements, and even some interesting contractual issues so more discussion  to follow as this case is briefed – deadline for briefing is the 21st.

Still to come is a look back at some FL Supreme Court cases of this past year, including the judicial appointment case, and the Strand decision. I think it is ripe to discuss Stare Decisis in the context of Strand.

Welcome to the Web’s newest legal blog, The Legal Conservative!

This blog can be bookmarked by bookmarking www.legalconservative.com The hope is to note developments in Florida and Federal law, with perhaps brief forays into other states such as Georgia, and in depth commentary on truly note-worthy opinions from any state.  The goal is for this blog to  provide an honest forum for analyzing legal opinions and topics from a legally conservative perspective, but well thought out contributions from any perspective that add to the debate will be welcome.  It will also be a great service if any readers bring to our attention cases that should be discussed about which they are aware.   Any suggestions for improvements are welcome, including helpful links that should be added.  Thanks for reading this initial post and don’t forget to read the “What is a Legal Conservative Page?”