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|Any Remark Found On Abstract Appeal Should Be Attributed Solely To Its Author|
MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?Three makes a chorus, no?
This case is not, as the majority's demeaning and dismissive analysis suggests, about sex or about sexual devices. It is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships. As Justice Brandeis stated in the now famous words of his dissent in Olmstead v. United States, 277 U.S. 438 (1928), when "[t]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness . . . [t]hey conferred, as against the government, the right to be let alone–the most comprehensive of rights and the right most valued by civilized men." 277 U.S. at 478 (Brandeis, J., dissenting) overruled by Berger v. State of New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 347 (1967).At the conclusion of the majority opinion, Judge Birch responded:
The dissent eloquently quotes Justice Brandeis in its opening passages. We find merit in the wisdom of Justice Felix Frankfurter in his concurring opinion in Dennis v. United States, 341 U.S. 494, 525, 71 S. Ct. 857, 875 (1951), when he observed:Well -- one more quote. It's the one that I assume will be reproduced in many papers today, and it comes from the end of the majority opinion, just before the excerpt quoted above:
Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. ... Their essential quality is detachment, founded in independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.
Hunting expeditions that seek trophy game in the fundamental-rights forest must heed the maxim "look before you shoot." Such excursions, if embarked upon recklessly, endanger the very ecosystem in which such liberties thrive—our republican democracy. Once elevated to constitutional status, a right is effectively removed from the hands of the people and placed into the guardianship of unelected judges. See Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267-68. We are particularly mindful of this fact in the delicate area of morals legislation. One of the virtues of the democratic process is that, unlike the judicial process, it need not take matters to their logical conclusion. If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter. On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases—including, for example, those involving adult incest, prostitution, obscenity, and the like.
I read with interest your remarks concerning the gay marriage lawsuit and the Full Faith and Credit Clause of Article IV of the Constitution. I wonder what might be your opinions regarding challenging the federal and/or state law based upon the Equal Protection and Due Process clauses of the Fourteenth Amendment, on the basis that the law(s) might fail the strict scrutiny test. I ask this because of the following from a U.S. Supreme Court decision:And here was my response:
"Since the right to marry is of fundamental importance, e. g., Loving v. Virginia, 388 U.S. 1 , and the statutory classification involved here significantly interferes with the exercise of that right, 'critical examination' of the state interests advanced in support of the classification is required. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312 , 314. Pp. 383-387."
ZABLOCKI v. REDHAIL, 434 U.S. 374 (1978)
Thanks for your very informative website.
The United States Supreme Court case law that speaks of the right to marry concerned marriages between single men and women. This leads to several questions on whether the right extends to additional contexts. I suspect that there is consensus in the legal community that the high court was not speaking in a manner that can reasonably be interpreted to include gay marriage, which is why we are not seeing claims that anti-gay marriage laws violate the constitutional right to marry. Instead, we are seeing less direct challenges, such as the Full Faith and Credit Clause federal challenge in Tampa, the state law equal protection clause challenge in Massachusetts, and the state law common benefits clause challenge in Vermont.This topic is terrifically interesting because it touches on a high profile area where the law is infused with a sizable dose of policy. Policies change, and some say that with those changes should come changes in overarching constitutional rights. We'll just have to wait and see if that's the way things wind up in the case of gay marriage and the validity of gay marriage prohibitions.
By the way, the constitutional right to marry, as I'm putting it, is a concept rooted in the Fourteenth Amendment's Due Process Clause. The same clause is ultimately the source of other rights recognized by the U.S. Supreme Court but not found within the Constitution's text, such as the right to terminate a nonviable pregnancy and the right not to be subject to limitless punitive damages.
You also mention a possible federal Equal Protection Clause challenge. Keep in mind that the analysis used to examine equal protection issues has multiple steps, the first of which is to determine whether the two persons being compared are "similarly situated." If they are, and if they are receiving unequal treatment, you next consider the context of the disparity, as the context will determine the level of scrutiny applied in the last step, which is to determine if the law is supported by a sufficient governmental interest and is sufficiently narrow. That's a simplistic recitation of what's going on, and the point is to show that unequal treatment is by no means prohibited in all instances -- to the contrary, our laws are full of entirely constitutional unequal treatments. I suspect we are not seeing federal equal protection challenges to anti-gay marriage laws because there is little or no belief that the judiciary will find an equal protection violation.
We remind counsel that all attorneys have a professional responsibility of candor toward the court. See R. Regulating Fla. Bar 4-3.3; Hays v. Johnson, 566 So.2d 260 (Fla. 5th DCA 1990), review denied, 576 So.2d 287 (Fla.1991). Just because the respondents have now agreed to produce all responsive documents, does not mean they are absolved from their professional responsibility. Part of this professional responsibility involves forbearance from unnecessary litigation and its concomitant increased costs. Had the respondents been more attuned to their duty of candor and their proper discovery duties as litigants, Scholer would not have incurred the unnecessary expense of seeking certiorari relief in this Court.Ouch. Note that, given the respondents' concession, there was no clear need for the appellate court to find a privilege waiver. But the court expressly found a waiver anyway, and that might prove meaningful as the case continues in the trial court.
To demonstrate the degree of acrimony, Ms. Barber’s counsel at the hearing made a major issue about the form of quit claim deed that Mr. Barber signed to convey title to the former marital home to Ms. Barber, normally a simple prepared form document. Mr. Barber’s attorney readily agreed to have his client sign whatever form of deed that was tendered that would fully effect the agreement of the parties. Conduct of this type ill fits the image of the bar or that of family lawyers, who should be problem-solvers and not problem creators.
WHERE THE EVIDENCE WOULD SUPPORT FINDINGS UNDER SECTION 775.086, FLORIDA STATUTES, THAT RESULT IN THE PENALTY FOR AGGRAVATED BATTERY BEING THE SAME AS FOR ATTEMPTED SECOND DEGREE MURDER, IS AGGRAVATED BATTERY A LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER?The court certified this question on a post-decision motion. The original decision can be found here.
Should the Lessee resort to the use of an attorney regarding any matter arising from this lease the Lessee shall be entitled to recover from the Lessor its reasonable attorney's fees, court costs and related expenses.Can you really do that? I'll post the not-so-surprising answer around 4:45 PM EDT today.
This amendment provides property tax relief to Florida home owners by increasing the homestead exemption on property assessments by an additional $25,000.The court held this language to be misleading because the amendment only affects how the taxable value of homestead property is calculated -- it does not necessarily provide "tax relief." The court mentioned that cities, counties, and special taxing districts may raise millage rates to make up for the decreased valuation in tax base, and since only 15 counties are at the 10-mill constitutional cap, 52 counties would be able to raise millage rates to some degree or another in an effort to restore tax income to pre-amendment levels.
Gov. Jeb Bush should write a thank-you note to Leon Circuit Judge Nikki Clark, but it's not likely he will think of that.I have enjoyed reading Morgan's columns for years, and she is a competent critic of Florida's political scene. But she is wrong here. I am not talking about her political musings on what Republicans should or should not do -- this web log does not concern such things -- but about her premise that the state's executive leaders should have ignored a law that, in her view, was plainly unconstitutional. That is not how Florida's government operates.
The judge just saved him from himself.
For several months Secretary of State Glenda Hood, a Bush appointee, has been refusing to cough up a list of 47,000 suspected felons who are registered to vote. Despite pleas from virtually all of the state's news media as well as CNN, Hood declared the list off-limits.
It would seem Florida election officials could use all the help they can get from those willing to wade through 47,000 names, but the governor and his minions disagreed.
Let's keep it secret, they said, relying on an arcane law that made voter lists off-limits to the general public. Almost everyone else could get the list, but news organizations that might actually check its accuracy couldn't get it.
CNN sued. Clark declared the law unconstitutional and ordered the immediate release of the list. The ruling may temporarily embarrass Republicans, but it is far better to have egg on their faces in July than to have a close election turn on a flawed list in November.
John Acosta was a bright young man, undoubtedly headed to college and a good future, when he chose to transform a verbal altercation into a fistfight. Thousands of teenage boys before him have engaged in similar, senseless fights without such tragic endings. On one hand, it seems such a waste of a human life to incarcerate him for nearly a decade at this critical time in his life. On the other hand, James Brier is dead. His family and loved ones will not have the opportunity to have him come home to them after a decade.
Sometimes we must remind ourselves that the primary purpose of sentencing is to punish the offender. See § 921.001(4)(a)(2), Fla. Stat. (2001). In that regard, the legislature has chosen to award 120 victim injury points for death in a manslaughter case, which virtually assures a defendant that he or she will spend approximately ten years in prison for the offense. See § 921.0024, Fla. Stat. (2001).
Likewise, criminal law was established to recognize the human desire for vengeance and to satisfy that craving in a way that helps preserve an orderly society. As best said by Oliver Wendell Holmes:
The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution.Oliver Wendell Holmes, The Common Law 36 (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881).
The students of Manatee High School will never benefit from the death of James Brier or the imprisonment of John Acosta. However, perhaps the loss suffered by these two teenagers and their loved ones will serve as a reminder to other teenagers that fistfights are not an acceptable extracurricular activity in high school and that the consequences of those fights can be permanent and long-lasting.
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