State and Local Legal Blog

Fees for fire service?

Last fall, the Supreme Court considered the question whether residents in an unincorporated area of a county, served by a fire protection district, were illegally taxed because of the monthly fee imposed by the fire protection district.  The residents claimed that the district did not provide a “service” unless there was a fire, and that they had paid months and months of fees but the fire district had never rendered them any services.  These residents alleged a number of grounds, including extortion.

The Supreme Court determined that the fee was permissible because “services” of a fire protection district was far broader than simply fire-fighting.  Among other things, a reduction in fees would cause the district to reduce staff and, likely, the Rating of Six, currently held, would be reduced to a Ten, which would cause an additional $4,000 to be added to the basic home general liability insurance policies of each homeowner.

The import of the case (Alfonso v. Diamondhead Fire Protection District, Mississippi Supreme Court, issued 8/1/2013) is the valuable discussion on how public entities and taxpayers should consider the meaning of “services” for which fees could be justified.

A case to follow…

On February 27, 2014, the Mississippi Supreme Court rendered an opinion sending a case back to the Jackson County Circuit Court for a reassessment of facts.  The case is quite interesting and its ultimate resolution may have an impact not only on school districts (Moss Point School District was the defendant in this case) but on other governmental entities.  (Moss Point School District v. Stennis)

Here’s the deal:  the school district had a student handbook which, in addition to providing student regulations and duties, may have imposed affirmative duties on the school district.  (This is where the facts are a little vague in the lower court record.)

The Supreme Court remanded for more information about the student handbook.  In addressing the remand, the Court said that it had never addressed whether a student handbook could impose a ministerial duty upon a school.  But state law is clear that if a school chooses to establish regulations for its operation the school should use ordinary care in the execution and performance of positive duties which the school imposes upon itself.

While we will have to wait for an ultimate decision, were I a governmental entity, I would closely consider this case and what it might potentially mean to any student or employee handbook that I provided to my students or employees.

Just a tip.

Do corporations have religious liberty rights?

There are about 50 lawsuits currently challenging the Patient Protection and Affordable Care Act by raising an explicit question:  must a corporation be forced to support abortion drugs, contraception and sterilization?  These plaintiffs are contending that, just as corporations have a right to free speech (remember Citizens United?), they also have religious liberty rights and, resultingly, should be able to deny medical services to their employees if these services are objectionable to the corporate owner’s religious beliefs.

Clay Calvert, a 1st Amendment expert employed by the University of Florida, was quoted in the June 2013 ABA Journal:  “The raft of ACA cases raises the specter of doctrinal inconsistency within First Amendment jurisprudence between freedom of expression and freedom of religion….If Citizens United means that secular, for-profit corporations possess the right to freely express political points of view by spending money, then at first glance it seems to follow that such corporations also possess the right to freely exercise religious beliefs by refraining from spending money….[but] there is nothing historically that would require merging or blending the free speech and free exercise clauses on the question of whether corporations are treated like human beings.”

There are any number of cases being followed:  Korte & Luitjohan Contractors Inc.; Grote Industries; Hobby Lobby, to name a few.

Korte attorney says: “The 7th Circuit…determined that the corporate form did not prevent the Kortes and their company from asserting their free-exercise claim under the Religious Freedom Restoration Act…Collectively, I hope the courts will find RFRA at a minimum applies and that for-profit companies who can establish a substantial burden of their religious freedom rights shall prevail.  It is the public policy of the State of Illinois that individuals and corporations have rights of conscience.”  (K&J is a corporation operating in Highland, Illinois.)

What does the other side say?  Tune in on Thursday.

Corporate Free Exercise of Religion

On Monday I talked about corporations that desire to raise their free exercise rights in order to abstain from providing services required by the ACA.  Judge Ilana Diamond Rovner, a 7th Circuit dissenter, said:  “…it is the corporation, rather than the Kortes individually which will pay for the insurance coverage….the corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless:  It does separate the Kortes, in some real measure, from the actions of their company….”  She is also quoted as noting in her dissent in Grote:  “the obligation to cover controceptives falls not on the Grotes personally but on Grote Industries’ health care plan.”

Leslie Griffin, a constitutional law professor at UNLV says:  “Secular, for-profit corporations cannot exercise religion….Running a business is not the exercise of religion.  Providing insurance coverage is not the exercise of religion.  It is a mistake to think of every moral belief as an exercise of religion.  [Using the RFRA] to advantage religious, secular, for-profit companies violates the establishment clause by giving religious businesses a leg up in commercial competition.  It is not protecting religious liberty in any way.  Griffin is joined by Marci Hamilton, a professor at Cardozo School of Law, who opines:  “Whatever their beliefs, the federal law did not impose a substantial burden…if anything, it is an indirect burden several times removed.  These businesses are not going to prevail and they shouldn’t.”

How do you feel about all of this?

Guns, guns, guns…

If you are not already obsessed with the gun culture that is sweeping the nation, even in light of school shootings and rising homicide rates, consider this:  An Idaho legislative committee had been considering whether to support a bill which would give students, staff and visitors to carry guns on college campuses.  The bill came out of committee and is on its way to the statehouse for a vote.

The bill passed the Idaho Senate last month and moved through the House committee with a 11-3 party-line vote Friday, despite objections from students, multiple police chiefs and leaders of all eight of the state’s public colleges, the Associated Press reports.

If Idaho passes the bill, it will join six other states that allow concealed weapons on campuses, including Colorado, Kansas, Mississippi, Oregon, Utah, and Wisconsin.

Do guns protect us?  Or do they endanger us?

Short Post

This will be a short post, but it will be leading you to a long article from the Washington Post that is definitely worth a read!  Don’t miss it!

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http://www.washingtonpost.com/news/the-watch/wp/2014/02/28/the-fifth-circuit-turns-its-back-on-a-huge-forensics-scandal-in-mississippi/

Want to read about something disgusting which happened in the State of Georgia?

Something disgusting happened in the Georgia state courts recently.  Disgusting and believable if you happen to follow issues that deal with justice to women.  Take a look at my personal blog on women’s issues to  see the story.  Just paste this address in your browser:

http://wpfllc.wordpress.com/2014/02/28/disgusting-justice/

or go to my website, www.onlywhenpigsfly.com and scroll down to my blogs on the lower right.

I am a David Blount fan

There is a lot of hoopla going on about SB 2681.  If you believe the “news bite” this bill added “In God We Trust” to our state seal.  But the bill did much more, including possibly opening the way for businesses and governmental entities to discriminate on legal grounds, particularly against the GLBT community.

This comes on the heels of Starkville, Mississippi, the home of Mississippi State University, adopting a resolution which would add “gender and gender identification issues” to the list of characteristics that the City of Starkville will not discriminate upon in making employment or appointment choices.  Starkville was the first city to take that step; it has been followed by Hattiesburg, home of the University of Southern Mississippi.  (Unfortunately, the same week someone in Oxford, home of the University of Mississippi — Ole Miss — put an actual noose around the neck of the large James Meredith statute on campus.)

So now you are asking why I am a David Blount fan. Here’s why:  Senator Blount had the character and self-actualization to come out in public and suggest that our legislators (including himself) may not read everything as carefully as they should before they cast that ballot.  He is working with the Mississippi House committee to jettison that language before the House votes.  The House subcommittee to which it was assigned has done so.  It now goes to the larger committee for consideration.  The Judiciary B committee is chaired by the moving force behind recent gun legislation, Representative Andy Gipson, who has a conservative voting record.  Blake Wilson, executive director of the Mississippi Economic Council, gave praise and credit to Representative Joey Hood and Gipson for working hard to resolve this issue in a positive way.  (Wilson’s son, Nicholas, is an employee of the Stennis Institute of Government at MSU.)

If David Blount had not stepped forward, this language may not have been noticed to be rectified before it was challenged.  It takes a big man to say he’s not doing the job as well as he should.  I think all Mississippians owe him a debt of thanks.

Blount knows what Bill Clinton didn’t realize.  Step up, admit the mistake, say you’re sorry, find ways to rectify it, do better next time around.

(Interestingly, and almost as a sideline, Alderman Ben Carver, who is a conservative Christian member of the Starkville Board, attempted to wiggle out of his affirmative vote on the gender and gender identification resolution by talking about “family values” at the very next meeting. His suggestion that the Board reconsider the implications of the resolution to family values seems to have fallen on deaf ears, but considering the makeup of the Board, an attempt to finagle out of such a resolution may come again.)

So, in closing:  THANK YOU SENATOR DAVID BLOUNT.  I am a fan!