Sunshine State Shakeup: Is Florida's Drug Law Unconstitutional?

Sunshine State Shakeup: Is Florida's Drug Law Unconstitutional?

By Ashby Jones

You might think that, by now, the constitutionality of all 50 states’ drug laws would have long-been settled. After all, the drug laws have mostly been on the books for several decades, and there’s really never been a shortage of people who would have been well-served by seeing a drug law shot down.

But down in Florida, there’ve been a spate of challenges to one of the state’s key drug laws. And at least two of them have been successful. The result, as I write in Monday’s WSJ: confusion among lawyers and possibly thousands of convictions ultimately being overturned.

To win a conviction under the drug laws of most states, a prosecutor has to convince a jury that the defendant knew he owned or sold an illicit substance. But in 2002, Florida became the only state in the country to do away with the “knowledge requirement” in its main drug law.

A federal judge in Orlando was the first to strike a blow to the law late last month, ruling that a central part of Florida’s Drug Abuse Prevention and Control law violated the 14th Amendment’s Due Process Clause.

Then, last week, a state judge in Miami cited Judge Scriven’s opinion in overturning the drug-distribution convictions of 39 defendants. Judge Milton Hirsch acknowledged that the “overwhelming majority” of the 39 defendants “may have known perfectly well that their acts of possession or delivery were contrary to law.” Nevertheless, he shot down the law on grounds that it “reaches beyond those who willfully do wrong. . . and includes within its wingspan those who meant no wrong.”

The office of the Florida Attorney General, Pam Bondi, has filed notices of appeals in both cases. “This decision conflicts with binding state court precedent upholding Florida’s drug law,” said Bondi, shortly after Judge Hirsch issued his ruling on Wednesday. “This decision is flawed and it unduly hinders prosecutors’ efforts to keep criminals off our streets.”

The issue will likely be settled by a higher court—the Florida Supreme Court, the 11th U.S. Circuit Court of Appeals or, possibly, the U.S. Supreme Court. It is unlikely that Florida will see a mass exodus of its prison population until then.

But if the key part of the law is ultimately struck down, “it could get pretty chaotic,” said James Felman, the lawyer for Mackle Vincent Shelton, whose conviction Judge Scriven overturned.

According to the Florida Department of Corrections, nearly 94,000 people have been sent to state prisons for drug crimes since the start of 2002. Jo Ellyn Rackleff, a department spokeswoman, said most of them were convicted under the Drug Abuse Prevention and Control law.

American Bar Association urges Congress to reject birthright law

American Bar Association urges Congress to reject birthright law

TORONTO — The American Bar Association passed a resolution Tuesday urging the U.S. Congress to reject any changes to the Constitution that would eliminate automatic citizenship for anyone born in the United States.

About 400 members of the attorneys association, which is holding its annual meeting in Toronto, passed the resolution in a voice vote.

Some Republican lawmakers have called for legislation to repeal birthright citizenship and have proposed a constitutional amendment.

Outgoing American Bar Association President Stephen Zack said in an interview that racism is underlying the call to change the constitution. Zack, the first ABA president of Hispanic origin, said it was an important statement by the American Bar Association that the U.S. Constitution must be respected.

“This is something that should be avoided at all costs,” Zack said. “Certain issues are not really about what the words are about, but what the underlying concerns are about.”

The ABA debated the issue last week ahead of Tuesday’s vote.

John Eastman, a conservative law professor at Chapman University in Orange, California, argued that it’s an open question whether the citizenship clause of the Fourteenth Amendment allows for citizenship for anyone born in the U.S. and said it’s time for the U.S. Congress to clarify the issue.

Eastman challenged a claim before the Supreme Court that Yaser Esam Hamdi, who was seized by U.S. troops on the Afghanistan battlefield in 2001, was a citizen because he was born in Louisiana while his Saudi parents were in the U.S. on a temporary work visa.

Eastman called it odd that a man who had little connection to the U.S. could be considered a U.S. citizen. The Supreme Court ruled in 2004 that Hamdi had the right to use U.S. courts to challenge his detention.

Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which is based in Los Angeles, said the Latino community is most at issue in discussions about citizenship by birth and said it’s hard not to see that the reinvigorated debate is really about opposition to demographic changes.

Saenz said the issue is closely tied to the efforts by some states, such as Arizona, to limit immigration.

Overriding a Key Education Law

Overriding a Key Education Law

Secretary of Education Arne Duncan has announced that he will unilaterally override the centerpiece requirement of the No Child Left Behind school accountability law, that 100 percent of students be proficient in math and reading by 2014.

Mr. Duncan told reporters that he was acting because Congress had failed to rewrite the Bush-era law, which he called a “slow-motion train wreck.” He is waiving the law’s proficiency requirements for states that have adopted their own testing and accountability programs and are making other strides toward better schools, he said.

The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s.

Conservatives said it could inflame relations with Republicans in the House who want to reduce, not expand, the federal footprint in education. But Mr. Duncan and White House officials described their plan as offering crucial relief to state and local educators as the No Child law, which President George W. Bush signed in 2002, comes into increasing conflict with more recent efforts to raise academic standards.

The law made its focus the use of standardized test scores in schools, particularly those serving minority students.

“I can’t overemphasize how loud the outcry is for us to do something right now,” Mr. Duncan told reporters on Friday in a conference call that he said could not be reported until midnight Sunday.

Melody Barnes, director of President Obama’s White House Domestic Policy Council, who joined Mr. Duncan in the announcement, said that all states would be encouraged to apply for waivers from the law’s accountability provisions, but that only states the administration believed were carrying out ambitious school improvement initiatives would get them.

“This is not a pass on accountability,” Ms. Barnes said. “There will be a high bar for states seeking flexibility within the law.”

Under the current law, every school is given the equivalent of a pass-fail report card each year, an evaluation that administration officials say fails to differentiate among chaotic schools in chronic failure, schools that are helping low-scoring students improve, and high-performing suburban schools that nonetheless appear to be neglecting some low-scoring students.

About 38,000 of the nation’s 100,000 public schools fell short of their test-score targets under the federal law last year, and Mr. Duncan has predicted that number would rise to 80,000 this year.

Skeptics said Mr. Duncan’s predictions were exaggerated, but a huge number of schools are falling short under No Child’s school rating system. Eighty-nine percent of Florida’s public schools, for instance, missed federal testing targets, although 58 percent of Florida schools earned an A under the state’s own well-regarded grading system.

When Mr. Duncan sketched an outline of the administration’s waiver plan in June, Representative John Kline, the Minnesota Republican who is chairman of the House education committee, demanded that Mr. Duncan show by what legal authority he would override the federal law. Mr. Duncan responded by citing provisions of the No Child law itself that give the education secretary broad waiver powers.

On Friday, Mr. Kline said in a statement, “I remain concerned that temporary measures instituted by the department, such as conditional waivers, could undermine” efforts by Congress to rewrite the law.

Mr. Kline’s committee has completed three overhaul bills focusing on elimination of federal programs, financial flexibility for states, and charter schools. But the committee has not yet produced bills rewriting the law’s crucial school accountability and teacher effectiveness provisions.

Senator Tom Harkin, the Iowa Democrat who is chairman the Senate education committee, said he understood why Mr. Duncan was pursuing the waiver plan, since “it is undeniable that this Congress faces real challenges reaching bipartisan, bicameral agreement on anything.”The No Child Left Behind law is the latest version of the Elementary and Secondary Education Act, a 1965 law that over the years has become the main federal law on public schools. It has been rewritten in ways that have allowed nearly every president since its original architect, Lyndon B. Johnson, to put his policy stamp on it, usually in the first term. That has eluded President Obama so far, despite his campaign pledges to fix the law’s flaws.


In Friday’s conference call, Mr. Duncan and Ms. Barnes said theDepartment of Education would issue guidelines next month inviting states to apply for the waivers. For a waiver to be approved, they said, states would need to show that they were adopting higher standards under which high school students were “college- and career-ready” at graduation, were working to improve teacher effectiveness and evaluation systems based on student test scores and other measures, were overhauling the lowest-performing schools, and were adopting locally designed school accountability systems to replace No Child’s pass-fail system.

Those requirements match the criteria the administration used last year in picking winning states in its two-stage Race to the Top grant competition. Ms. Barnes said states would not be competing against one another with their waiver applications. But the similarity irked critics.

“It sounds like they’re trying to do a backdoor Round 3 of Race to the Top, and that’s astonishing,” said Frederick Hess of the American Enterprise Institute. He called Mr. Duncan’s plan “a dramatically broad reading of executive authority.”

The plan appears likely to gain broad support from state education officials, however. More than a dozen states have already asked the department for changes to their No Child school accountability plans, or are about to do so, said Gene Wilhoit, executive director of the Council of Chief State School Officers. “Many states feel that we need major changes in the law, because it’s identifying such an outlandish number of schools that it’s losing credibility,” he said.

The law allowed states to adopt local academic standards and determine their own passing scores on tests after it took effect in 2002. The requirement that 100 percent of students be proficient in math and reading by 2014 encouraged lower standards, which make it easier for more students to score as proficient. Since early 2010, however, more than 40 states have agreed to adopt higher standards, and the 2014 deadline is complicating their efforts, Mr. Duncan said.

In Tennessee, for instance, 91 percent of students scored at or above the proficient level in math under the state’s old standards, but under new, tougher standards adopted recently, the proportion plummeted to 34 percent.

“The current law serves as a disincentive to higher standards, rather than as an incentive,” Mr. Duncan said.

New York State Bar Prez Says Law Students Need Better Training

New York State Bar Prez Says Law Students Need Better Training

The debate about whether law schools should focus more on preparing their charges to actually practice law, rather than to merely think like lawyers, continues to rage.

At an American Bar Association meeting in Toronto, the New York State Bar Associationpresented the ABA with a resolution, urging the ABA to emphasize the importance of teaching practice skills to law students, according to this report in the New York Law Journal. (HT:  ABA Journal.)

The New York bar is asking the national bar to evaluate its legal education standards with a view toward “enhancing clinical work and supervised activities such as meeting with clients inside and outside the clinical setting and in court,” according to the NYLJ.

“Legal education should have more of an emphasis on making sure graduates are ready to practice law,” New York State Bar President Vincent E. Doyle III told the NYLJ. “It is something that has been de-emphasized, and it shows. Our research and our own experience show that graduates are less prepared to practice law.”

Here’s a WSJ report last month by our own Patrick Lee about how some law schools are answering the call to emphasize the practical over the theoretical.

Richard A. Matasar, dean and president of New York Law School, agrees with the view that graduates need to be more practice ready, the New York Law Journal reports.

“There is going to be a push toward more practice readiness at most law schools,” he said. “It is driven by the market. We need to send our graduates out in a way that makes them more effective, and the schools recognize that.”

ACLU might sue over law limiting teachers' Facebook use

ACLU might sue over law limiting teachers' Facebook use
By Brendan Sasso

The American Civil Liberties Union of Eastern Missouri is considering suing the state over a new law that prohibits teachers from sending private message to students on social-networking sites such as Facebook.

"I do think there are First Amendment issues with the law," said Tony Rothert, legal director for the ACLU of Eastern Missouri.The Amy Hestir Student Protection Act, signed into law last month by Gov. Jay Nixon (D), bans teachers from establishing an Internet site "which allows exclusive access with a current or former student."


GOP State Sen. Jane Cunningham, the author of the law, said it is designed to prevent teachers from having inappropriate contact with students. She also noted the law defines a "former student" as a person who is 18 years of age or younger, who has not graduated.


Cunningham told The Hill she wants to encourage teachers to help students outside of the classroom, but an epidemic of sexual misconduct by teachers in Missouri and around the country convinced her of the need to keep teacher-student communications public.

According to Cunningham, many inappropriate relationships between teachers and students begin with private electronic communications.

She said the law is not intended to prevent teachers from establishing social-media profiles or even from being "friends" with students on social sites — only from sending them private messages.

"A good teacher who is really working with a student in an appropriate way, they are going to welcome parents and department heads being able to see the good work they're doing," Cunningham said.

Rothert of the ACLU said the way the law is written, it might prevent teachers from even establishing Facebook accounts.

"The law is much broader than what it's supposed to do," Rothert said.

Even if the law is rewritten to ban only private communications between students and teachers, Rothert said he would still be concerned that it violates the First Amendment's free-speech protections.

"I think the people who wrote the law don’t understand how Facebook works, or more broadly, how the Internet works," Rothert said.

According to Rothert, any measure that curbs free speech must be narrowly tailored to address a problem.

"It's fairly easy to conceive of ways that this could be much more narrow," he said.

Facebook is also investigating the legality of the law.

"Every day, there are more stories of innovative teachers using social networks as a valuable educational tool — from answering simple homework questions online to helping identify bullying," a Facebook spokesman said. "It is imperative that this law does not limit schools' and teachers' ability to use technology in this way to educate Missouri's children, and we are working with the education and legal communities to investigate."

The law requires school districts to create rules for the use of other "electronic media" that are at as least as stringent as the rules for social-networking sites.

Rothert said this provision might ban emails or text messages between students and teachers.

Rothert said he hopes to convince the legislature to revise the law or to work with school districts to implement the requirements in ways that do not infringe upon the First Amendment rights of teachers and students.

But if those efforts fail, Rothert said, the ACLU is prepared to go to court over the issue.

Abortion foes target Romney's law

Abortion foes target Romney's law
Group aims to undo universal health care

By Michael Levenson


Mitt Romney, who has struggled to persuade some social conservatives that he is a committed opponent of abortion rights, could face a new headache from his home state’s leading antiabortion group, which is launching a ballot campaign to repeal the universal health care law that he signed in 2006.

Anne Fox, president of Massachusetts Citizens for Life, said yesterday that repealing the law is a “prolife’’ issue because the law could lead to what she said would be the rationing of prenatal care and other medical services.


“The way it’s constituted, they’re going to have to deny care,’’ Fox, standing with two members of the Citizens for Life board, told reporters outside the State House. “It could be care to the unborn, care to pregnant women, care to someone with disabilities, but they’re going to be denying care, and that’s the prolife concern.’’


If she succeeds in placing the question on the 2012 ballot, her campaign could complicate Romney’s efforts to persuade Republican primary voters that he is solidly aligned with activists who oppose abortion. Romney ran as an abortion rights supporter during his 1994 US Senate campaign and 2002 campaign for Massachusetts governor. But he changed positions in 2004, as he geared up for his 2008 presidential campaign.


Romney has walked a fine line on the health care issue, as well, defending his law as a state solution to a state problem, while calling for a repeal of the national law, which he has denounced as a power grab.


It is highly unusual for a group that opposes abortion rights to challenge a Republican presidential candidate who embraces its cause. But some abortion opponents have questioned the sincerity of Romney’s beliefs.


During the 2008 Republican primary, for example, antiabortion activists protested outside several of his campaign appearances, while another candidate, Senator Sam Brownback of Kansas attacked Romney’s shift on abortion.


Fox said her group is not trying to undercut Romney’s presidential campaign, merely one of the laws he signed.


“I have no problem with Mitt Romney,’’ she said. “If he is the nominee, we will back him to the hilt.’’


Even so, Citizens for Life, which is the state affiliate of the National Right to Life Committee, had a statement on its website yesterday, blasting the state law in much starker terms.


“RomneyCare covers abortions, and the mandate forces citizens to participate in a system which strives to make the murder of unborn children as cheap as $50,’’ the statement said. “There are, however, many more ways which this requirement offends against both the sanctity of human life, principles of ethical medicine and simple common sense.’’


Yesterday, Citizens for Life removed the statement from its website and immediately began distancing itself from that line of attack, after being contacted by Peter Flaherty, Romney’s liaison to social conservatives. Fox blamed the statement on a staff member at Citizens for Life, and said it did not reflect the group’s views.


“I was extremely upset,’’ she said. “He has removed it. I thought, ‘Where did this come from, because it had my name on it, and I never wrote it.’ ’’


The ballot question could repeal the mandate that requires all residents to have health insurance. That mandate is also the backbone of the national health care law that President Obama signed last year. Fox’s group opposed that law, as well, by running Internet and radio ads.


She said her organization is beginning to gather signatures and will launch a website, www.repeal-romneycare.com, in hope of placing the issue on the ballot in November 2012, when Romney hopes to be the Republican presidential nominee. To do so, Citizens for Life will need to gather 68,911 signatures by November and another 11,485 signatures by June.


Fox declined to discuss her budget, but said she would seek support from the group’s 200,000 members.


Romney’s spokeswoman, Andrea Saul, released a statement about the ballot campaign, saying: “Governor Romney shares with [Massachusetts] Citizens for Life a commitment to protecting human life. However, he signed the health care bill into law because he believes it was right for Massachusetts, and he continues to support it.’’


The referendum, even if it reaches the ballot, could face steep odds. In June, a poll by the Harvard School of Public Health and the Globe found that 63 percent of Massachusetts residents support the law, up 10 percentage points in the past two years. Only 21 percent said they were against the law. The state law has also had broad support from the state’s major business, labor, and advocacy organizations.


“We don’t see it having much chance of success,’’ said Brian Rosman, research director of Health Care for All, a group that supports universal health coverage. He said that, contrary to Fox’s assertion, the law has not rationed care. He pointed out that about 400,000 more people have obtained health insurance since the law was signed.


“Health care is rationed in the US by income, and what health reform did in Massachusetts is provide low-income people an opportunity to get affordable coverage, and the results have been dramatic in terms of improved health, more access to preventive care, and more people able to get health care services,’’ he said. “The public is benefiting dramatically.’’

Is It Time to Take Away My Right to Vote... For Judicial Candidates?

Is It Time to Take Away My Right to Vote... For Judicial Candidates?
By Jessica Levinson

According to an old adage, no one is above the law. But does that include a sitting judge? Apparently so. The fate of California Superior Court Judge Harvey Silberman is now in the hands of a Southern California jury.

Silberman is accused of trying to convince his former opponent, Deputy District Attorney Serena Murillo, to drop out of a 2008 judicial election for the seat Silberman ultimately won. Silberman is charged with offering -- through intermediaries -- to pay Murrillo's filing fees (totaling less than $1,800) if she agreed to drop out of the race. That move would have allowed Silberman to run unopposed. For this purported conduct, Silberman was charged with an elections code violation. The code prohibits the payment or solicitation of money in an effort to deter another from running for office.

Prosecutors also accused Silberman's consultants -- without Silberman's knowledge -- of later telling Murillo that Silberman would drop out of the race if Murillo would pay more than $80,000 to cover the cost of Silberman's ballot statement. Murillo, instead of accepting either alleged offer, went to the district attorney's public integrity division.

The sordid Silberman affair points to a larger question: should judges be elected? On the federal level, district court judges, court of appeals judges and Supreme Court justices are nominated by the president and confirmed by the U.S. Senate. U.S. bankruptcy judges are appointed to 14-year terms by U.S. court of appeals judges. U.S. magistrate judges are appointed to eight-year terms by district court judges.

Things are often different on the state level, where the voters directly weigh in on the composition of the state judiciary. In my home state of California, for instance, trial judges are elected, or appointed by the governor if there is a vacancy, to six-year terms. Every six years superior court judges stand for retention elections and may be challenged by otherwise qualified California attorneys. Justices of the California Supreme Court and Courts of Appeal are appointed to 12-year terms by the governor and confirmed by the California Commission on Judicial Appointments. Justices stand for retention elections at the end of their 12-year terms.

Does being a good jurist have anything to do with being a good judicial candidate? Would moving to a system where both trial and appellate court judges are appointed and confirmed, rather than elected, create a judicial branch with better-qualified, less political judges?

Since leaving the bench, former U.S. Supreme Court Justice Sandra Day O'Connor has advocated for the abolition of judicial elections. As Justice O'Connor once stated, "Judicial elections are just difficult to justify in a constitutional democracy in which even the majority is bound by the law's restraints."

Can we count on judges to be truly independent, to make decisions only based only on the law, and not based on politics and/or what is popular, if they must stand before the public every few years in order to keep their jobs?

Judicial elections may be increasingly problematic as the U.S. Supreme Court continues to dismantle campaign finance reforms. Judicial elections are therefore ever more susceptible to the influence of large inflows of money. Will it be any surprise when special interests pour large sums of money into judicial races?

The Silberman matter sheds light on troubling questions concerning the propriety of judicial elections. One thing that does seem clear is that voters will be loath to give up their ability to directly determine the composition of the judicial branch.

Florida Gov. Rick Scott Hosts Anti-Abortion Law Celebration

Florida Gov. Rick Scott Hosts Anti-Abortion Law Celebration

Gov. Rick Scott on Saturday hosted a celebration of the four new laws intended to limit access to abortion. Dozens of pro-life activists gathered at the manion for the event, along with several of the bill's sponsors and supporters , including representatives Matt Gaetz, Rachel Burgin, Dennis Baxley, Larry Ahern, Elizabeth Porter, Kelli Stargel and Keith Perry.

Asked why he held the bill-signing ceremony a month after the laws went into effect, Scott said: "A lot of people put a lot of effort into these things. I think they want to have an event to memorialize it. For these bills, a lot of these people have worked on these bills for years and years, and it's a way for them to celebrate the accomplishments."

Lawmakers passed five abortion-related bills in the 2011 session. One requires women to receive an ultrasound before undergoing an abortion and be offered the opportunity to have it described to her. Another tightens requiremens for parental notification when a minor seeks an abortion. A third prohibits insurance policies created through the federal health care law from covering abortions, and the fourth redirects proceeds from Choose Life license plates from counties to Choose Life, Inc., which counsels pregnant women. Lawmakers also passed a bill proposing a Constitutional amendment, which doesn't require the governor's signature, that would prohibit using tax dollars to pay for abortions."It would be hard to top this session for the pro-life cause. We had great success," Gaetz said.

Asked what his response it to those who say the laws limit choice for women, Gov. Scott referred to the ultrasound bill, passed by a previous Legislature but vetoed by then Gov. Charlie Crist. "You should have the opportunity to see see an ultrasound of your child," Scott said. "It's your choice. You don't have to. This creates choice. I think it's very positive."