Rick Scott's Suspicion-Less Drug Testing: It's Back! (Sorta)

Well the 11th Circuit has muddied the waters somewhat by sending back to Judge Ungaro the colossally stupid drug-testing of state employees' scheme that Rick Scott came up with a few years ago.

The reasons have mostly to do with the convoluted boundaries between a facial attack on a statute vs. an "as applied" analysis, and whether the judge used the right analytical framework (to me she did):

To date, the parties’ litigation strategies in this case seem to have focused on avoiding the kind of job-category-by-category balancing that Skinner and its progeny teach us is the proper modality for evaluating the constitutionality of a suspicionless drug testing policy. The Union originally sought, and ultimately received, facial relief that cannot be sustained in light of the Executive Order’s constitutional applications. Meanwhile, the State has resisted providing the district court with any specific special-needs showings that apply to individual job categories and instead has insisted that a few broad, abstract reasons can justify the EO across the board. Admittedly, providing job-category-specific reasons and evidence -- which the district court must have in order to conduct the proper analysis -- is a substantial, even onerous, task. Nonetheless, convenience cannot override the commands of the Constitution.

This is Florida -- are you sure about that last sentence?

Attention, Judicial Applicants: Can You Make a Nice Bowl of Pasta?

Just curious is all.

In all seriousness, what a great pick and very well-deserved!

(h/t The Captain)

Ha Ha -- Florida Can't Have Its Own Foreign Policy!

You know that red-meat "law" that Rick Scott (pictured above) signed, barring companies from bidding on state or local contracts if they have ties to Cuba?

Well you may have heard that Judge Moore found it only violated a slew of major constitutional provisions:  the Supremacy Clause, the Foreign Affairs Power, the Foreign Commerce Clause, plus it is inoperative on its own terms.

On the other hand, Judge Moore found that the law did not in fact violate the prohibition against quartering troops in private homes!

So sort of a split decision.

Nice win for Raoul Cantero and James Moye out of Maitland.

You can read the preliminary injunction order here.

Now let's get back to other important election year legislation, like banning Sharia law (a personal favorite).

Magistrate Judge Torres Bonks Governor Scott on Intrusive Subpoena on ACLU.

Usually when you serve a subpoena to depose opposing counsel that means there is at least a fair chance you are a d$@k of a lawyer.

That's especially true when there's not even an arguable basis for how such a deposition fits within the broad discovery parameters of Rule 26.

But hey, that's our Governor:

We agree with the ACLU that the ACLU’s “knowledge and position” on employer drug testing, the prevalence of drug use, public opinion polls, and the effects of workplace drug use, have almost nothing to do with the claims or defenses in this case. Whatever the ACLU knows or believes about the frequency or propriety of employer drug testing or drug use simply has no relevance to the constitutional claim at issue – whether drug testing of these state employees in executive agencies is permissible under the Fourth Amendment. Neither does the ACLU’s knowledge or belief have any bearing on the Defendant’s affirmative defenses.

Oh yeah, one other thing -- the ACLU is counsel of record in the suit challenging the Governor's insipid drug-testing policy:

Finally, the most troubling aspect of these subpoenas is their impact on the ACLU’s role as counsel in the case on behalf of the Plaintiff. Obviously, such requests are generally disfavored. “Discovery was hardly intended to enable a learned profession to perfonn its functions . . . on wits borrowed from the adversary.” Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, J., concurring). Both the attorney-client privilege and the work-product doctrine are implicated when an attorney deposes his or her adversary. If clients fear that their counsel may be deposed and forced to answer questions about the case, a chilling effect on clients’ candor with counsel may result. Similarly, knowing that they eventually may be deposed about their knowledge of documents and other facts connected with a case may lead attorneys to shield themselves from relevant facts, thereby resulting in less effective representation. 

Good thing we have the Governor to protect our constitutional liberties from the big bad ACLU.....

Rick Scott's War on "Evidence-Based" Policymaking.

It's a bad day for social policymakers in Tally, as Rick Scott's signature "test the welfare deadbeats for drugs" policy initiative takes a blow thanks to MD FL Judge Scriven, who entered an injunction and found the policy unconstitutional.

One big problem, she noted, was that Rick Scott's evidence-free belief that drug use is "much higher" among welfare recipients than the population at large just wasn't true:

However, these stated goals can be found nowhere in the legislation, and with good reason: the State’s commissioned study undercuts each of these rationales as a likely feature of the proposed legislation. As noted, researchers found a lower rate of drug usage among TANF applicants than among current estimates of the population of Florida as a whole.This would suggest that TANF funds are no more likely to be diverted to drug use or used in a manner that would expose children to drugs or fund the “drug epidemic” than funds provided to any other recipient of government benefits. The researchers also found no evidence that TANF recipients who screened and tested positive for the use of illicit substances were any less likely to find work than those who screened and tested negative.The Florida Legislature, in fact, enacted the Section 414.0652 over the express recommendation of its own researchers not to expand the Demonstration Project statewide because it was not shown to meet these goals.

So empirical evidence does not support Rick Scott's personal "belief" about deadbeat welfare drug users, that's not surprising.

But what does it say about the intellectual honesty of a public servant when those "beliefs" are seemingly immutable and his position on this remains unchanged in the face of that evidence?

"We Have a Supreme Court that wants to decide what the law is."

That is everyone's favorite village idiot, Rick Scott, in comments to Bob Harden on Monday, according to the DBR (story not online).

When can this guy go away?

It appears Scott is evading compliance with the Florida Supreme Court's ruling anyways:

Less than two months after the Florida Supreme Court ruled that Gov. Rick Scott could not require agencies to get his formal approval for rules they wanted to enact, a spokesperson said Wednesday the office is still reviewing the proposals — informally.

But a few House Democrats said such action may violate at least the spirit of justices’ 5-2 decision.

“Isn’t this like an end run around the court decision, that you”re subverting the court ruling?” Rep. Franklin Sands, D-Weston, asked Patricia Nelson, deputy director of Scott’s Office of Fiscal Accountability and Regulatory Reform.

 Also, Big Rick has absolutely no contingency plans for Florida in the event the US Supreme Court does not "repeal" Obamacare:

Do you have a plan for the state if the Supreme Court says Obamacare is constitutional?
I am hopeful it will get repealed. If it doesn’t get repealed, it will devastate jobs in our state. Our biggest businesses are hospitality and agriculture, and neither of those industries can afford it. It would also devastate small employers.

 That's comforting!

Judge Cooke Denies NRA's Motion to Intervene!

You know how tea partiers want the government to get out of their lives, except when they want the government to get in the middle of the relationship between a doctor and patient, and dictate via government fiat what doctors can and can't discuss with their patients when it comes to firearms?

Well the NRA has a point of view on this (guess!) and thus want to do a little intervening of themselves, this time in the lawsuit brought by doctors over the "Firearm Owner's Privacy Law" signed into law by Governor Scott and pending before Judge Cooke.

But Judge Cooke says file an amicus, thank you very much:

The NRA seeks to defend the constitutionality of the Firearms Owner’s Privacy Law.  Governor Scott, in his official capacity, has the same objective. The NRA has not presented any evidence to suggest that Governor Scott may not adequately represent its interests.

Come on, let's have an evidentiary hearing on that!

Charlie Crist, Plaintiffs' Lawyer!

Oh heavily tanned one, you could have picked a better time what with all these silly legislative proposals your successor is kicking around, but welcome back anyways to the profession of law.

(h/t here)

Judge Gold Blasts Governor Scott on Everglades Restoration!

Judge Gold unleashes both barrels and rips Governor Scott (though he's not alone) for the State's destruction degradation "restoration" efforts to save the Everglades:

There is no possibility of reversing the damage that has been done to the Everglades, and there is only the chance to preserve what remains in its current state. This is nothing new to the parties. I have set forth the extensive procedural history of this case and litigation over the Everglades, the utmost importance of the Everglades as a national treasure, and the dire need to act immediately in my prior orders. See e.g., [ECF Nos. 323, 404]. I take this opportunity now to once again reiterate and incorporate by reference the significant efforts made in those orders to emphasize just how imperative it is for the parties to focus their efforts on making real and actual steps and act on their promises and representations. In order to effectuate this Court's prior and final orders, and to avoid allowing the parties to frustrate any opportunities to do so, I have determined that a key component of this matter through the means of the permitting procedure, must now be a focus of the EPA. To not find in this manner will simply amount to sanctioning the repeated failures of non-action by the parties.

 Order here.

Oh Rick Scott, you are truly our King Midas in Reverse.

3d DCA and 2d DCA in Conflict -- Who Shall Prevail?

Everyone loves a good conflict.  Especially a "direct conflict."

And that's just what happened when the 2d DCA got right in the grill house of the 3d, challenging the 3d's determination that you can't get fees in a wrongful death case under section 768.26 unless you file a case first.

Let's see what the Florida Supreme Court said:

Thank you, Governor Scott!  Please sir, can I have another?

Oops, that was how the Supremes groveled their way into functioning at half-staff for another couple weeks.

Boy that Scott sure is one nice fellow!

Here's how they actually ruled on the fee issue:

[W]e agree with the Second District that section 768.26 applies even in those circumstances where a wrongful death claim is settled pre-suit and disapprove the Third District’s decision in Perez to the extent that it holds that the statute does not apply where no action for wrongful death has been filed or litigated.

 Kaboom!

And here's their reasoning:

This application of the statute is consistent with the stated legislative intent that the Act be “liberally construed.” § 768.17, Fla. Stat. (2005). Additionally, this furthers the public policy favoring settlement of disputes without litigation where possible.

Who knew?

I sense heightened, nay furious activity in the gym/mechanical room as news filters down to the bunker.  Good thing those toilets are bolted down tight.

And people, please -- don't fight over the freshly donated, pre-owned Thighmaster!

Should the Florida Supreme Court Be Broken in Two?

I'd have to say my favorite period in American history is the 1930s.

You know, widespread and endemic depression, dust bowls, abject poverty, Nazi mistresses in black face, rising tensions in Europe leading to global catastrophe -- those were all good times.

Oh yeah, you also had that whole Roosevelt court-packing thing.

So that's why I'm just thrilled to see the boys in Tally growing nostalgic for those nonglory days gone by:

Rep. Cannon and his House minions want to place on the 2012 ballot a constitutional amendment that would break up the seven-member court and create two five-member high courts - one for civil cases and one for criminal cases. The court system needs lots of things, but a two-headed supreme court is not one of them. As with other big decisions, though, those who run Tallahassee are using high-minded arguments to conceal low-minded motivations.

According to the speaker's office, the change would create courts with specialists in both main areas of the law, making the system "better able to resolve cases more expeditiously."  Except that the real barriers to resolving civil cases "more expeditiously" are not at the highest level. They are at the trial level, where the increase in lawsuits and foreclosures (bad economy) and staff cuts (budget/bad economy) have jammed up the circuit and county courts. Indeed, in 2010 the Legislature appropriated $9.6 million just to deal with the foreclosure backlog.

If he really wanted to resolve civil cases "more expeditiously," Rep. Cannon, a lawyer, would not be touting a new supreme court. He would be finding money for the 80 judges statewide - five in the Palm Beach County circuit and three in the circuit that serves Martin, St. Lucie, Okeechobee and Indian River counties - that Florida Supreme Court Chief Justice Charles Canady says the system needs.

So the idea seems to be to starve the courts at the trial and appellate levels, but add more seats at the Supreme Court level (which in a stroke of luck would be appointed by the Governor)?

If the reasoning were true, why not break up the DCAs into specialized civil/crim courts as well?  Maybe we should do that with the United States Supreme Court as well, all for "efficiency's sake."

I may be mistaken, but this session seems to be producing some of the absolutely worst legislative proposals I can remember, and it's just starting.

Happy Monday!

Governor Scott Starts Returning Federal Health Care Money!

For those of you looking for a silver lining in Judge Vinson's recent health care ruling, here you go:

In the wake of U.S. District Judge Roger Vinson's ruling that the federal health care legislation is unconstitutional, Florida insurance commissioner Kevin McCarty returned a $1 million federal grant awarded to the state to assist with reforms. The money would have paid for a system to provide information to consumers on the rates of large-group insurers.

"The purpose of this letter is to inform you that after deliberate consideration, I hereby rescind the acceptance of the above-referenced $1 million rate review grant, which occurred in a letter to you dated September 15, 2010. No drawdown of any of the $1 million will occur," McCarty wrote in a letter to the director of the U.S. Department of Health and Human Services' Center for Consumer Information and Oversight. 

This is pathetic.

The court's ruling was vague as to enforcement, perhaps intentionally so.  

And it's obviously an issue in legal flux.

Why not wait for the dust to settle before you start returning monies provided pursuant to a federal statute?

This feels like cheap political theatrics at the expense of underinsured Florida consumers.

Oh hail this is way too depressing for a Friday afternoon, but I have to follow my muse, peoples (I'm paraphrasing Woody....)

Let me get some windsurfing in and see what it does to improve things, and I'll check back in later.

Williams and Connolly Attorney to Head Rick Scott Transition Team.

Are you wondering who the players are on Rick Scott's transition team?

According to Sunshine News, here they are:

On the actual committee, Floridians will find familiar names like Rep. Bill Galvano, R-Bradenton; former Lt. Gov. Toni Jennings; Sen. Paula Dockery, R-Lakeland; U.S. Sen. George LeMieux and Kathleen Shanahan from the Department of Education.

Former Miami Mayor Maurice Ferre is the only Democrat on the transition team.

Boy that's some murderer's row interesting and diverse group of fresh faces!

The transition team is headed up by Williams & Connolly attorney Enu Mainigi, a Big Pharma defense litigator based in DC.

Note to Enu -- traveling to Tally from DC can be a real pain.

Rick Scott: Fifth Amendment Warrior!

After his insanely demogogic "Obama's Mosque" ad, I thought Rick Scott had given up on the Constitution, First Amendment, hail on the Bill of Rights entirely.
 
Turns out I was wrong -- he likes adores the 5th Amendment.

I don't think even "adores" cuts it.

Seriously, the dude LOVES IT.  And LOVES IT.  And LOVES IT again the next morning.

Slavishly devoted?

Fifth Amendment automaton?

I'd like to answer, but upon advice of counsel, I respectfully decline to answer the question by asserting my rights and privileges under the Fifth Amendment of the U.S. Constitution.

(repeat 400 more times)
rickscott5thamendment

SFL Friday -- Rick Scott Can Spend As Much As He Wants!

 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?

In other news, Rick Scott gets his very own 11th Circuit opinion:

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.

(Sheesh, I'm starting to act like the Herald).