State and Local Legal Blog

A case to follow…

March 31, 2014
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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.


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Do corporations have religious liberty rights?

March 13, 2014
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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.

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Corporate Free Exercise of Religion

March 10, 2014
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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?

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Guns, guns, guns…

March 6, 2014
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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?

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Short Post

March 5, 2014
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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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