Ninth Circuit Court of Appeals declares Proposition 8 to be Unconstitutional

By: Charles Press

On February 7, the Ninth Circuit Court of Appeals declared Proposition 8 to be unconstitutional because the court ruled that it violated the equal protection clause.  The court’s ruling was narrow and did not address the broader question of whether or not same-sex couples have the constitutional right to marry.  Rather, the court pointed to the fact that proposition 8 rescinded a right that was held and exercised by California residents when many of them legally married.   The court ruled 2-1 on the issue, and the lone dissenter, N.R. Smith, expressed the possibility of voters believing that there might have been a rational basis in passing the law to promote “responsible procreation”.  Justice Scalia, however, in Lawrence v. Texas, dismissed this idea when he asked “what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising [t]he liberty protected by the Constitution? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”

The case could very well find its way to the Supreme Court, as it will likely be appealed. 

Further reading:

http://www.washingtonpost.com/politics/calif-same-sex-marriage-ban-ruled-%20unconstitutional/2012/02/07/gIQAMNwkwQ_story.html

Social Media and Public Records

By: Graham I. Rabinowitsch

With the increase in use of social media by government agencies and public officials, questions about the public record status of social media posts, comments, tweets, etc. have risen and will likely continue to persist. Laws pertaining to public meetings and records are referred to as Sunshine Laws. Under sunshine laws, typically, government agencies must conduct all business at open, public meetings, officials may not discuss any business which may come before their body with other members of the body outside of such meetings, and all records pertaining to public business must be made available to the public. Social media, an interactive part of the lives of many Americans (especially the younger generations), can complicate matters.

For traditional public records (ex. paper documents, email, etc), a designated custodian of records maintains copies of the records for the official file. Facebook posts and comments and tweets and direct messages are not saved to the file servers of government agencies. Should the public official manually archive such data and transmit it to their agency’s designated custodian? It becomes an issue when public officials blend their personal and official social media presences. If it relates to public business or is an official page or feed, the information should be available to the public and maintained as a record just as traditional paper documents and emails are. The public has a right to know how their officials make decisions that affect their lives. Where is the line drawn? Should public officials have separate accounts for their private life and their official role, making sure they do not post anything that could be interpreted as a public record on their private accounts? In a world like today, can public officials afford to avoid social media entirely?

Further Reading

·       Best Practices for Social Media Usage in North Carolina http://www.records.ncdcr.gov/guides/best_practices_socialmedia_usage_20091217.pdf

·       Naples Daily News – School district officials Twittering cautiously to avoid violating open records laws http://www.naplesnews.com/news/2009/jun/25/school-district-officials-twittering-cautiously-av/

·       National Council of State Legislatures – Examples of Policies Related to Legislative Use of Social Media http://www.ncsl.org/issues-research/telecommunications-information-technology/policies-for-legislative-social-media-social-net.aspx

·       News Service of Florida – Open Records Challenged by Social Networking http://www.jaxobserver.com/2010/02/23/open-records-challenged-by-social-networking/

·       Sun-Sentinel – Tweets, postings trigger public records rules for officials http://www.sun-sentinel.com/news/palm-beach/fl-social-media-government-20120206,0,3353953.story

Affordable Care Act: Helpful or Harmful?

November 30^th, 2011

Giulia Stavropoulos

One of the biggest, and possibly most obvious, issues with health insurance is that many Americans are unable to afford it. On November 14^th, 2011, the Supreme Court granted a writ of certiorari, reviewing a prior decision that was made by the United States Court of Appeals to declare a mandate in the Affordable Care Act (ACA) unconstitutional. This specific mandate required all people to have at least the minimal coverage requirement for heath insurance.

In addition to reviewing this decision, the Supreme Court specifically decided to review the Medicaid expansion that was incorporated in the ACA. The ACA proposed to add Medicaid expansions to cover qualified adults under the age of sixty-five and would supposedly add an addition sixteen million Americans to Medicaid’s policy. The government would pay for the first three years of expansion, but would then rely on states’ share that would grow to ten percent. The states originally challenged this expansion believing that it was unwarranted due to the possibility of Medicaid losing all its funding, consequently negatively affecting the states for which Medicaid holds the largest source of federal funding. This case will be argued in front of the Supreme Court in mid-2012 and will be decided in the summer.

There are numerous opinions on the proper healthcare coverage and insurance plan mostly due to the fact that being covered with health insurance is an important issue to all Americans, especially in today’s economic crisis. It is possible that this case will bring positive changes to the Affordable Care Act, and hopefully positive changes to all Americans who are at risk of losing all of their income from unpredictable illnesses. But will it make all Americans sufficiently content? Probably not.

Is it beneficial for Medicaid to implement this expansion? Could this specific case bring us any closer to satisfying everyone’s needs?

Further reading:

Care And Cost:

http://careandcost.com/2011/11/16/high-court-to-review-acas-minimum-coverage-requirement-medicaid-expansion/

The New York Times:

http://economix.blogs.nytimes.com/2011/11/25/the-supreme-court-and-health-care-2/?scp=2&sq=supreme%20court&st=cse

Why Should One Obey the Law?

November 14, 2011

Hannah Grill

Why would a rational being obey an unjust law? One cannot argue that unjust laws have not been implemented or that such laws are never obeyed. In fact, numerous examples of the opposite exist. For example, slavery existed as a legal institution in the United States from the 1600s until 1865 and the passing of the thirteenth amendment. It was also illegal for women to vote in the United States prior to the passing of the Nineteenth Amendment to the Constitution. Rape was not technically illegal until the 20th century. It is obvious now how wrong or lacking these laws were, but they were most often obeyed. Why were these laws obeyed? Is it ever moral not to obey the law? 

The question to be addressed here is: why should one obey the law, even sometimes in cases where the law is unjust? What responsibility does a person have to uphold the law? I do not want to pay tax on the income I make, yet I do it, and will continue to do so because it is an obligation. John Rawls argues that “the moral obligation to obey the law is a special case of the prima facie duty of fair play” (Shauer and Sinnott-Armstrong, 231). Rawls assumes that a moral obligation to obey the law exists in societies such as our own, but that this obligation can be overridden when greater “all-things-considered” factors arise. Rawls also works under the assumption that this obligation must offer some sort of benefit to participants and incur a sacrifice from every person in order for that benefit to exist. The principle of fair play works within the framework of a just system in which advantages are “only obtained if everyone, or nearly everyone cooperates” (235). According to this principle of fair play, if one accepts the benefits of the justice system and plans to continue to accept the benefits, he or she becomes bound to the system and therefore has a prima facie moral obligation to obey the laws of this system. Rawls explains this moral obligation as the duty of fair play: since one accepts the benefits of a just system, one has to obey all of the laws under that system and avoid free-riding.

Do you think this is why, morally, one should obey the law? Or are there alternative, moral, prima facie duties to uphold the law, even under unjust legislation?

 

Further Reading:

Schauer, Frederick F., and Walter Sinnott-Armstrong. The Philosophy of Law: Classic and Contemporary Readings with Commentary. Fort Worth: Harcourt Brace College Publishers, 1996. Print.

http://www.iep.utm.edu/rawls/

The Right to Be Forgotten: Social Networking Sites and Privacy

November 9, 2011

Stephanie Funk

There is currently a discussion taking place in the European Commission about adding sanctions regarding Internet privacy to Europe's Data Protection Directive. Viviane Reding, the European justice commissioner, believes we should restrict the amount of personal information that business can obtain from social networking sites such as Facebook and search engines such as Google. Furthermore, Reding wishes to include an addendum about “the right to be forgotten” that would allow individuals to permanently delete information.

One of the difficulties in enacting these changes is the issue of jurisdiction. There is little precedent for internet privacy laws because it is a borderless entity. Some legal experts are unsure about how the European Commission will enforce their privacy laws on U.S. based companies. Others believe that these privacy restrictions will lead to monitoring of the Internet and limit the free flow of information.

Do you think that these sanctions promoted by Mrs. Reding will protect our privacy by allowing us to permanently delete information about ourselves, or that the proposed addenda will infringe on the right to freely share and access information?

Further Reading:

http://www.nytimes.com/2011/11/10/technology/eu-to-tighten-web-privacy-law-risking-trans-atlantic-dispute.html?_r=1&ref=world

Substantive Policy Changes in Budget Bills

End of 2011 session on May 7, 2011; Ruling on September 30, 2011; State appeal on October 31, 2011

Graham I. Rabinowitsch

During the 2011 regular session, the Florida Legislature included the privatization of prisons in eighteen counties in the southern part of the state as a proviso in General Appropriations Act. The Florida Police Benevolent Association and others sued the Secretary of the Department of Corrections contending that the provision was unconstitutional and did not follow existing law. On September 30, 2011, 2^nd District Circuit Court Judge Jackie L. Fulford ruled in favor of the plaintiffs in Florida PBA v. Tucker. The Governor declined to appeal the decision; however, the Legislature subsequently requested that the Attorney General proceed with an appeal.

The privatization of prisons across eighteen counties in Florida, the largest of such programs in the United States, is a major policy decision. Such decisions should occur through transparent processes and via regular legislation. The privatization was not at the request of the Department of Corrections, nor did it follow the existing process under Florida statutes for contracting with private providers. Fla. Const. art. III §6 states “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title,” and Fla. Const. art. III §12 states “Laws making appropriations for salaries of public officers and other current expenses of the state shall contain provisions on no other subject.” The budget bill dealt with more than one subject. Rather than determining where funding was to be directed, the proviso called for the Department of Corrections to take specific actions. These series of action are policy provisions.

Florida PBA v. Tucker brought to the light the concern of passing substantive revisions to law in budget bills. The budget bill and its conforming bills came out of a conference between the two houses. Conforming bills do not go through the process of discussion in multiple committees in the public view before moving forward. During the 2011 session, legislators had little time to review them before voting. Budget conforming bills in Florida were lengthy this year, following a trend over the past few years where the number of bills and the provisions tucked into the bills have increased. Where is the line drawn between policy and budget? With this case on appeal and another legislative session beginning in January, the issue is not likely to fade away.  

Further Reading:

• Palm Beach Post – 'Back-door' deals, 'silly games' mess up end of 2011 legislative session: http://www.palmbeachpost.com/news/state/back-door-deals-silly-games-mess-up-end-1461553.html?printArticle=y
• Politifact Florida – Senator rails against growing conforming budget bills: http://www.politifact.com/florida/statements/2011/may/07/jack-latvala/senator-rails-against-growing-conforming-budget-bi/
• St. Petersburg Times – Florida judge rules prison privatization procedure unconstitutional: http://www.tampabay.com/news/politics/stateroundup/florida-judge-calls-prison-outsourcing-unconstitutional/1194507
• St. Petersburg Times – Florida appeals judge's decision to block prison privatization plan: http://www.tampabay.com/news/publicsafety/crime/florida-appeals-judges-decision-to-block-prison-privatization-plan/1199418
• Palm Beach Post – Judge rules prison privatization plan unconstitutional: http://www.postonpolitics.com/2011/09/judge-rules-prison-privatization-plan-unconstitutional/
• PBA v. Tucker. (Fla. 2nd Cir. Ct. 2011) http://www.postonpolitics.com/wp-content/uploads/2011/09/0930PRISONSRULING.pdf

The Increasing Use of GPS Technology

November 8, 2011

Giulia Stavropoulos

On Tuesday November 8^th the Supreme Court debated whether or not tracking cars with the use of global positioning systems (GPS) goes against the Fourth Amendment, which specifically bans unreasonable or unwarranted searches and seizures. The debate stemmed from a specific case concerning a man named Antoine Jones who was suspected of selling cocaine. Through the use of GPS technology that was placed on his car without a warrant, Jones was convicted and sentenced to life in prison. His sentence has since been overturned due to the belief that the Fourth Amendment had been violated. This controversy brings the ethics of the advancement of technology into question—is modern technology being used for good, for evil, or for both? I believe in cases regarding the safety of others and the sentencing of criminals, modern technology is being used for the good of the people. If the GPS was attached with a warrant, or had the warrant been denied, it is possible that Jones would never have been caught. Is it unethical? In many respects, yes. But why would the placement of GPS technology be questioned if the person in question had nothing to hide?

Do you think the Fourth Amendment should apply to the tracking of cars or clothing etc.?

Further Reading: 

http://www.nytimes.com/2011/11/09/us/supreme-court-casts-a-wary-eye-on-tracking-by-gps.html?_r=1&scp=2&sq=US%20supreme%20court&st=cse