In an interview last month, Mr. Stern, the Florida lawyer, accused Mr. McCollum, who is standing for re-election as attorney general, of political motives in opening the inquiry into his firm and others.
Come home Glenn, we're sorry, you were right about Nixon and the Half Hour New Hour, just come on home.....
It's clear that the District Court of Appeal decision is of statewide application, and it will be binding on all trial courts across the state,'' Sheldon said.
As of last week, the state had exhausted the time to challenge the Gill adoption, and so, regardless of the law's status, the two children will remain Gill's adoptive children, Sheldon said.
Sheldon said he had discussed the case with Florida Attorney General Bill McCollum as early as Tuesday morning, and informed the state's top law enforcer of his decision. He said he does not know whether McCollum will choose to exercise his authority to appeal to the Florida Supreme Court in defense of the state statute.
Add to that recent federal district court rulings on DADT, DOMA, and Prop 8 and it's evident there's something happening, and you don't know what it is, do you Mr. Jones?
I have been to the bunker by the highway many times and I can assure you there is no wood in that building anywhere -- literally there is nothing organic or derived from the earth anywhere inside that place unless you count "concrete" as an all-natural substance.
I'm proud of the 3d DCA for ruling correctly and quite reasonably yesterday.
In a well-written decision, the boys in the bunker have dramatically improved the lives of Florida children and future parents for generations to come -- in innumerable, unknowable ways.
Appellate guru Barbara Green put it best, as she often does, in the Herald this morning (article apparently not online):
"It's really judges doing what judges are supposed to do. They're not ruling from any agenda."
And what a great way for Judge Cope to end a superlative judicial career!
But what is the mystery over whether or not the opinion will be appealed?
Governor Crist, last I checked, is the head of our state government and he said"his administration will immediately cease enforcing the statute."
That seems pretty clear.
The DCF, under Crist's control, has said "the department will no longer enforce the ban."
That also seems pretty clear.
Bill McCollum, who had taxpayers fork over $120k to rentboy Doc Revers, is only counsel to DCF and accordingly has to follow the department's wishes, even if that will result in Big Bill finally doing something good for the state (albeit inadvertently).
So who else would have standing to appeal -- Anita Bryant?
When you think of it, we're in an interesting place regarding gay equality.
This has led courts to take up the slack, much as they did decades ago when there was little political will to desegregate schools or repeal anti-miscegenation laws:
The district court judges are reflecting an increasingly obvious shift in public opinion, said Andrew Koppelman, a professor of law at Northwestern University. “The gay rights movement has been a spectacularly successful movement for cultural change,” he said. “A few decades ago these people were cultural pariahs. It was taken for granted that gay people are mentally ill, contaminated and unclean. Now the cultural valence has flipped — it is that view of gay people which is itself stigmatized.”
As life-tenured appointees, judges can look beyond politics to posterity, Professor Koppelman said. “Right now it seems like a good bet that if you are friendly to gay rights claims,” he said, “future generations will honor you for that.”
Regardless of where you stand on this issue, given the history of civil rights movements generally, I would have to say that's a fair bet.
Well I'm off to find some cool, cleansing waters to windsurf, but before I go I wanted to mention this dispiriting report on the EPIC FAIL of getting Obama's judicial nominees on the bench:
Judicial confirmations slowed to a trickle on the day President Barack Obama took office. Filibusters, anonymous holds, and other obstructionary tactics have become the rule. Uncontroversial nominees wait months for a floor vote, and even district court nominees—low-ranking judges whose confirmations have never been controversial in the past—are routinely filibustered into oblivion. Nominations grind to a halt in many cases even after the Senate Judiciary Committee has unanimously endorsed a nominee.
Such tactics are completely unprecedented, and so are their results. Fewer than 43 percent of President Obama’s judicial nominees have so far been confirmed, while past presidents have enjoyed confirmation rates as high as 93 percent. And President Obama’s nominees have been confirmed at a much slower rate than those of his predecessor—nearly 87 percent of President George W. Bush’s judicial nominees were confirmed.
Bork Bork Bork Bork I know, but this is not very healthy is it?
We agree with the district court that Davis requires Florida to justify its excess spending subsidy by reference to the anticorruption interest, but conclude that Florida cannot satisfy its burden of establishing that its subsidy furthers that interest in the least restrictive manner possible. We reverse the judgment of the district court and preliminarily enjoin the Secretary of State of Florida from releasing funds to McCollum under the excess spending provision.
This means Scott can spend almost as much as a huge corporation (thank you, Citizens United).
It also means Big Bad Bill will have to rely solely on his charisma.
(He's screwed.)
Have a great weekend!
UPDATE: I'm advised that I apparently posted a photograph of a different Rick Scott. My apologies to the wacky children's singer.
I've mediated before Kenneth Feinberg, and he's a big-shot, very expensive guy who happens to be exceptionally good at what he does.
That's why I was a bit puzzled by this Herald story on how he intends to interpret claims by Floridians under the new $20 billion compensation fund:
Feinberg said he'll come up with ``an expansive'' definition in the coming weeks. But when he appeared before the U.S. House Committee on Small Business last week, Feinberg said he would use ``Florida law'' as one measure of eligibility.
When asked about whether Florida businesses could make a claim based on the ``the public misperception of tar balls on beaches,'' Feinberg testified that it was a ``tough'' issue.
``Clearly, under Florida law, I think it's fair to say that it's not compensable. If there's no physical damage to the beaches and it's a public perception, I venture to say that it is not compensable,'' Feinberg said, noting ``that's in this area where some discretion's going to have to be exercised.''
Those are fighting words for McCollum.
McCollum said Tuesday that Feinberg was wrong on two counts. First, McCollum said, Feinberg shouldn't use Florida state law to decide how he'll pay claims under the federal Oil Pollution Act. Second, McCollum said, Feinberg misunderstood the strictness of state law.
For instance, McCollum said, a Key West hotel that is losing business because of the misperception of oily water and beaches could still get damages.
``I believe what Mr. Feinberg was saying was under Florida's law, you couldn't get any damages or recovery from that. In fact, we believe he's quite wrong about that.''
It's unclear the context of Feinberg's remarks on Florida law, but I doubt he is suggesting that claims under the federal oil pollution act should be construed pursuant to Florida common law.
So that whole issue is a red herring.
On state tort and statutory claims brought solely under Florida law, however, I think McCollum has a point with respect to "misperception" claims. Also, by the time these claims are heard there will in fact be some oil dispersion along Florida's beaches (there already is).
You can read the entirety of McCollum's halfway-decent letter to Feinberg here.
In the spirit of goodwill and universal peace and understanding, I offer this polite correspondence to our Attorney General -- with a related note to our beloved 3d DCA entirely in Esperanto, the language of love (and Star Trek):
To Professor Gillers, Mr. McCollum is now obligated both as a lawyer and as a public official to alert the appellate court. “It is not enough for the attorney general simply to refrain from relying on the testimony in his brief and argument,” he said. “He has an affirmative duty to speak up.”
Ms. Wiggins, the spokeswoman for Mr. McCollum, said she could not comment further on pending litigation.
Could not comment -- that's it? Could you imagine a private litigant getting away with that?
Ok, here's the part in Esperanto to the 3d DCA:
Ĉu kosta *bunkeriza kaf-*swil vestitoj de la pompaj vestaĵoj vi estas aŭskultanta?
Attorney General Bill McCollum Tuesday defended his personal intervention into the selection of an antigay expert witness in the case defending the state's gay adoption ban, saying his office "searched a long time" for someone and that George Rekers was the only one of two they could find.
Records show that McCollum personally requested that the state's Department of Children & Families hire Rekers at $300 an hour to help the state defend the case. When the agency balked at the price tag, McCollum's office persisted, ultimately leading to DCF paying pay him $120,000 over two years.
McCollum said that while he would not hire Rekers again knowing what he knows now -- that Rekers vacationed for two weeks in Europe with a gay male escort from Miami and received sexual massages from him -- he suggested that without Rekers the agency would not have been successful.
Note to Big Bill: the agency was not successful, and Judge Lederman found your $120k man to be thoroughly not credible (incredible?) as an "expert."
Also, if you can only find two "experts" -- total -- in the whole country willing to defend your position, maybe your position is insupportable?
Because of this, the Florida GLBT Democratic Caucus calls on McCollum to immediately refund the state of Florida $120,000 whether it’s from his campaign account or his own pocket.“Bill McCollum showed incredibly poor judgment when he hired Dr. George Rekers to spew hate-filled propaganda on the stand,” said Phillip Perry, spokesman for the Florida GLBT Democratic Caucus. “The only way that McCollum can make this right is if he immediately apologizes and pays back taxpayers for this egregious mistake. Floridians expect their leaders to spend taxpayer dollars wisely during these tough times, not waste it on hiring quacks posing as scientists to pursue a narrow, hate-inspired political agenda.”
You know what I always say: any stroke worth doing is worth doing slow, long, and well.
But three years before Florida hired Rekers, an Arkansas judge in 2004 denounced him during a similar state adoption case.
"The Arkansas judge, Timothy Fox, said Rekers’ testimony was worthless as evidence because it was only his personal view," according to an editorial this week in The Arkansas Leader.
The Arkansas Supreme Court also concluded Rekers’ testimony "was pointless'' and declared the state’s antigay adoption rule unconstitutional, the editorial continued.
Sheesh, how do you prep an expert for a cross on something like?
BP told members of Congress the rate could be much, much higher:
In a closed-door briefing for members of Congress, a senior BP executive conceded Tuesday that the ruptured oil well could conceivably spill as much as 60,000 barrels a day of oil, more than 10 times the estimate of the current flow.
A barrel of crude oil contains roughly 42 gallons. In a follow-up story, the Times talked to a BP spokesman for more on the estimate:
"The rate could go up to that," Mr. Suttles of BP said, when asked to verify a report in The Times. "It's not the situation we have at this moment, but it's not impossible."
What are we doing about it? They're working on a "top-hat" maneuver that I admit got me a little bit excited:
the ``top hat'' will be warmed with hot water and injected with methanol....
Sounds intriguing but kids, don't try that at home.
In related news, Governor Crist has appointed former AGs Bob Butterworth and Jim Smith to head up a legal team, presumably to sue the pants off culpable parties:
Gov. Charlie Crist and Attorney General Bill McCollum announced Monday that the state is assembling a special legal team to give free legal counsel on the situation.
The team is to be led by former attorneys general Bob Butterworth, who led the state’s lawsuit against tobacco companies in the late 1990s, and Jim Smith, who was attorney general from 1979 to 1987.
“We would hope at the end of the day that there would be no litigation,” Butterworthsnickered (oops!) said in a brief afternoon press conference. “But we have to be prepared.”
The state’s Northern District includes a courthouse in Tallahassee, six blocks from Mr. McCollum’s office. But Mr. McCollum instead filed the case 200 miles away in Pensacola, bypassing a Tallahassee judge who was named by President Bill Clinton and ensuring that the judge would be a Republican appointee.
"Dr. Rekers' testimony was far from a neutral and unbiased recitation of the relevant scientific evidence. Dr. Rekers' beliefs are motivated by his strong ideological and theological convictions that are not consistent with the science. Based on his testimony and demeanor at trial, the court can not consider his testimony to be credible nor worthy of forming the basis of public policy.''
The Florida Attorney General's Office has appealed Lederman's ruling, and a decision is expected anytime.
Not bad, Judge, but I would have added:
"Further, based on his preposterous mustache and absurd comb-over, this man is either a buffoon or a closeted self-hating homosexual, or possibly both."
Wait a second, who is our dummkopf attorney general again?
This NYT profile of him and Virginia AG Kenneth T. Cuccinelli II, who along with partner-in-crime Bill McCollum have launched the ND FL lawsuit seeking to have the health care bill declared unconstitutional, is pretty fascinating:
Outspoken and unwavering in his opposition to abortion and homosexuality and in support of property and gun rights, Mr. Cuccinelli is a purist among pragmatists. He stands out as a pugnacious culture warrior in a party more eager to court moderate and fiscal conservatives, and in a state whose governor hopes to portray himself as a consensus builder.
“Ken was a tea partier before there was a Tea Party,” said David B. Albo, a Republican delegate from Fairfax County and close friend of the attorney general. “I tend to take my job responsibility as doing what a majority of my constituents want me to do. Ken sees his job as setting a path and trying to explain to his constituents that this is the way we want to go.”
In recent weeks, though, some of Mr. Cuccinelli’s hard stands have become a headache for Governor McDonnell.
Last week, the governor was left to respond to questions about his attorney general after an audio clip surfaced on the Web in which Mr. Cuccinelli, in a recorded telephone conversation offered a legal strategy for testing the notion, popular among certain conservatives, that Mr. Obama was not born in the United States and therefore lacked eligibility to run for president. It was “possible,” Mr. Cuccinelli said, that a person could “challenge” a federal law as illegitimate because “someone qualified to be president didn’t sign it.”
Oy -- this is who you joined in with?
The DBR has a story today in which various legal scholars declare the suit to be more or less bunk:
Bruce Jacob, a Stetson University law professor who teaches constitutional law, said there is always a chance the conservative-leaning U.S. Supreme Court could side with McCollum. But he said arguments cited by McCollum make it sound “like they are grasping at straws.” “It bothers me they are wasting the time of the country with this kind of lawsuit,’’ he said. Barry Richard, a Greenberg Traurig shareholder in Tallahassee who was part of the team that represented George W. Bush in the 2000 presidential election recount, said he read the lawsuit and doesn’t think the high court will go along with it. “I don’t see any basis for the United States Supreme Court to say that Congress can’t do this,’’ he said. “This would severely emasculate the power of Congress.’’
See Bill, that's what you get for not hiring Barry!
BTW, you can sign a letter to Mr. McCollum asking him to dismiss his facacta suit here.
It's a hodgepodge of overheated rhetoric for the most part, though buried in there is a somewhat plausible 10th Amendment and Commerce Clause challenge.
As noted barrister Vincent Gambini once asked, "does this argument hold water"?
If Congress were to invoke its Commerce Clause authority to support legislation mandating individual health insurance coverage, such an action would have to contend with recent Supreme Court precedent limiting unfettered use of Commerce Clause authority to police individual behavior that does not constitute interstate commerce: United States v. Lopez,10 invalidating the application of the Gun Free School Zones Act of 1990 to individuals and United States v. Morrison,11 invalidating certain portions of the Violence Against Women Act. In the case of a mandate to purchase health insurance or face a tax or penalty, Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.
While most health care insurers and health care providers may engage in interstate commerce and may be regulated accordingly under the Commerce Clause, it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction. The decision not to engage in affirmative conduct is arguably distinguishable from cases in which Commerce Clause regulatory authority was recognized over intra-state activity: growing wheat (Wickard v. Filmore)12 or, more recently, growing marijuana (Gonzales v. Raich).13 Reliance on the Commerce Clause to justify the constitutionality of an individual mandate might be susceptible to an “as applied” challenge from individuals who (1) never access the health care system or (2) are able to pay for their health care without using insurance, because the government could not claim an impact on interstate commerce of providers and insurers as a result of uncompensated care.
An individual mandate also presents issues under the First Amendment’s Free Exercise Clause and the Fifth Amendment’s Taking Clause. Given the uncertainty with how an individual mandate would comport with religious beliefs regarding health care choices, the Senate Finance Committee policy outline suggests creating an exception to the health insurance mandate for “religious reasons.” It still leaves open, however, the question of whether the compelled purchase of health insurance constitutes the “taking” of private property under the Fifth Amendment. Given the novel nature of the individual health insurance mandate, a Fifth Amendment challenge can be expected. Requiring a citizen to devote a percent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances could be considered an arbitrary and capricious “taking” no matter how many hardship exemptions the federal government might dispense.
Opponents' arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress' interstate commerce authority: the practical impact of the mandate on commerce or the public welfare or the welfare of affected individuals, or the rationality of Congress' judgments about its impact on statutory goals. No doubt, in some quarters, opponents' libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law. But their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the Court's ideological spectrum.
Given that the individual mandate does not kick in until 2014, is there a ripeness problem as well?
Rothstein, now disbarred from practicing law, has already said through Nurik that he thinks Nurik has no potential conflict of interest and he is willing to give up his right to appeal any conviction or sentence on those grounds.
But U.S. District Judge James Cohn scheduled the 9:30 a.m. hearing for a full airing of any concerns. Rothstein is expected to formally waive the possible conflict of interest.
"Scott will enter a waiver, and I expect that will be the end of it," Nurik said. "I have no conflicts of interest."
In other news, principled conservative and Florida AG Bill McCollum thinks Big Gov should get out of the way and let market forces set prices -- except when it comes to attorneys fees -- which of course need to be arbitrarily limited by the state:
"It's been my observation that there's been a lot of abuse around the country" by law firms that run up excessive fees working on government cases, McCollum said.
It's dark and rainy and everybody seems to be working.
Bah humbug.
Oh this is exciting -- all you broker/dealer securities litigators may get a boost from this proposed FINRA revision:
The Financial Industry Regulatory Authority, or Finra, is requesting comment on whether it should file a rule proposal with the Securities and Exchange Commission that could expand existing suitability obligations for brokers. They would all encompass recommendations of products, services and strategies regardless of whether they involve securities.
The proposal is part of Finra's consolidation of rulebooks from its predecessor organizations, the National Association of Securities Dealers and the member regulation functions of the New York Stock Exchange.
Investor attorneys say arbitration panels often interpret suitability rules to apply only to the purchase, sale or exchange of securities. That leaves many investors without recourse when they follow advice, such as a "hold" recommendation, in which no transaction occurs.
William Jacobson, director of the securities law clinic at Cornell University Law School, says the new rules, if adopted, would be "huge" for investors. "It would clearly encompass asset allocation and issues that go beyond a specific transaction," he said.
Crank up the advertising boys (you know who you are).
In other news, when is Neil Young going to re-release his film and soundtrack recording of this long-lost legendary project?
A financial storm was beginning to brew. In May 2000, McCollum was vice chairman of the banking committee and his panel held day-long hearings into mortgage issues, including rising defaults rates and subprime lending practices.
But hours of testimony resulted in little action. ''It was very hard to convince anyone it was epidemic,'' said Cathy Lesser Mansfield, a Drake University law professor who testified before the committee.
McCollum could not recall the details, but said there was nowhere near the concern then as there has been in recent years and linking the two would be out of context.
''It's great to look back in 40/40 hindsight,'' McCollum said.
It is great, isn't it -- it's called trying to understand what happened so it doesn't happen again.
But seriously -- the panel you vice-chaired held day-long hearings on mortgage issues but you "could not recall the details"?
Any? Not one? How about what you had for lunch that day (maybe ask Senator Graham)?
