Many of my post ideas come from issues covered by the local press and this is no exception. Relatively recently, the Ledger ran a fantastic article about prayer at government meetings in Polk County. The article focused primarily on the school board. The article includes opinions from several learned legal authorities , as well as comments from religious and community leaders.
The legal authorities who questioned the legality of the practice were exactly correct, but no explanation was given as to why. The religious leaders who supported it had interesting things to say about religion and why they they think prayers are OK, but displayed no insight into the state of the law or why it is the way that it is (at least not in the article.)
It’s clear to me that there is a disconnect between the law and public opinion. More people need to have a clear understanding of exactly what the law is on this particular topic and how we got here. Only then can we have a serious discussion about what, if anything, needs to change, who needs to change it, and how.
The question posed is simple: our local school board opens each meeting with a prayer offered by a member. The prayers often invoke the name of Jesus Christ. Do these prayers violate the law?
This will be an article in two parts. We’ll work our way about half-way through the establishment and free exercises clauses in Part I, and wrap it up in Part II.
Read more…
Kemp Brinson Legal Commentary first amendment, polk county school board, religion
With the recent purchase of Cypress Gardens by Merlin Entertainments Group there are a lot of questions concerning what the plans for the property might be. This article will review the legal documents that protect Cypress Gardens and discuss what Merlin’s options might be. I conclude that the existing easement leaves them plenty of room to make some major changes. Read more…
Kemp Brinson Community News & Views, Legal Commentary cypress gardens
With recent news about a DNA test suggesting that James Bain, a Polk County man, is innocent of the rape he has served 35 years in prison for, I thought it would be helpful to look more deeply at what happened in Mr. Bain’s case. From skimming the headlines, one would get the impression that Mr. Bain filed a motion for DNA testing, the State Attorney did not oppose it, the judge granted it, and here we are. That is most definitely not what happened. The truth is that Mr. Bain’s struggle has been a long and uphill battle. That he made it this far is nothing short of miraculous. Though the story is far from complete, we can glean a lot of information just from what is available on the internet about Mr. Bain’s case. Read more…
Kemp Brinson Anatomy of a Lawsuit bain, dna
The transcript of the oral argument in Florida v. Powell, a Miranda case closely related to Polk County’s Rigterink case, has been posted on the Supreme Court website. Initial coverage of the proceeds is available from the L.A. Times and numerous others via the associated press.
I read the transcript, and I think local assistant public defender Deborah Brueckheimer did an outstanding job. She represented the local bar well.
Kemp Brinson Legal Commentary
Florida v. Powell (a case very similar to the Rigterink case that I blogged about previously) is being argued before the U.S. Supreme Court on Monday (at around 11am, I think.) The defendant was arrested in Tampa, but the case involves the Polk County public defender. The defendant was given the following Miranda warning:
You have the right to remain silent. If you give up this right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.
The question before the court is whether this warning is sufficient to advise him of the right to counsel during questioning (it only says he can speak to counsel “before” questioning).
Scotuswiki has all the details and links to downloadable briefs on the case. Last I heard, local assistant public defender Deborah Brueckheimer will be arguing the case, an extremely neat thing for a local attorney to be doing, though that may have changed. I had the pleasure of making a mock argument on this very case at an Inn of Court meeting recently and very much enjoyed it. I’ll update this post to reflect how oral arguments went as soon as I can find out something.
EDIT 12/7/09: A helpful reader (not sure if he wants to be identified) pointed out that the local public defender handles all appeals for the entire 2nd District Court of Appeals, which is based in Lakeland. That is why the local public defender is handling this case – it came from Hillsborough County which falls within the territory of the 2nd District.
Kemp Brinson Legal Commentary miranda, powell, rigterink, supreme court
The text of the newly proposed bill to enable the state to move forward on the purchase of rail from CSX for Sunrail has finally been posted! (EDIT: Here is the house page for its version, with analysis.)
During the last go around, I had a nagging desire to dig up the CSX agreement and look at the language myself to try to figure out who to believe, but I never did. Now, dear readers, I’ve bitten the bullet. What follows is my analysis of the CSX liability issue in as unbiased and layman-friendly way as I can possibly present it. If you want to see the documents yourself, they are available on the Sunrail site. Look for “Contract Agreements.”
The Really, Really Short Version
Liability is just a red herring. This debate should really be about the money. Read more…
Kemp Brinson Legal Commentary alexander, csx, dockery, ilc, legislature, rail, sunrail, trains
In a move that is bound to have Lexis and Westlaw a little concerned, Google has announced the availability of federal court opinions through Google Scholar. Lexis and Westlaw are not done for – they do provide very valuable analysis and indexing, as well as a much larger variety of materials – but this is still a pretty big breakthrough. If I were them, I’d be looking at the newspaper industry and making sure my long term business models were sound.
I did a few quick searches for some pretty obscure stuff (unpublished district court opinions) and was impressed with the coverage of the database.
When they announce that state court opinions are similarly available, I’m throwing a party. Seriously.
Kemp Brinson Legal Commentary legal research, lexis, westlaw
A group of Kathleen High School football fans and/or parents filed a complaint in Circuit Court in Bartow today seeking to have the Florida High School Athletic Association permit Kathleen to participate in the playoffs. As reported in the Ledger, the FHSAA decided to have Kathleen forfeit six games it had won, blemishing its perfect record, because of a problem involving the grades of one of the players. The Ledger does not provide a copy of the complaint, so I thought I would post one here for the curious. The Plaintiffs seek an immediate injunction to permit them to play their playoff game on Friday.
Needless to say this is an unusual case. It has been assigned to Judge Curry. According to the docket, there will be a hearing on the matter on Wednesday at 1:15pm. Here’s my take on this: Read more…
Kemp Brinson Anatomy of a Lawsuit fhsaa, football, kathleen
For employers, don’t forget to post the new EEOC poster regarding discrimination laws. The new poster must be up by November 21, 2009 and includes changes related to the ADA Amendments Act and the Genetic Information Non-discrimination Act. The poster is available for free from the EEOC.
Hat tip: Connecticut Employment Law Blog
Kemp Brinson Legal Commentary eeoc, employment law, poster
The Ledger is running a story this morning about the arrest of an individual accused of stealing about $200,000 from an elderly woman she was hired to care for.
Unfortunately, this is not an uncommon occurrence in Polk County. I have been involved in dozens of contested guardianship proceedings and many of them were instituted because something of exactly this sort was going on. These cases are not rare – it is rare for enough of a case to be built that someone is actually arrested and charged. Hired caregivers are often the culprit, but children of the victim are more often the perpetrators of these crimes.
On the hired caregiver side of the equation, I’ve never seen or heard of a case where a licensed or degreed professional (such as a trained geriatric care manager) was involved. More often, a friend or neighbor who works their way into the person’s life before the dementia gets too bad. They help out, gain the victim’s trust, get access to the money to “help out” with paying bills, and then funny things start to happen as the victim sinks into dementia.
I suspect that those who commit these crimes sort of ease into them. They probably begin with a sense that they are doing something nice for a friend, and temptation, financial need, and the lack of anyone looking over their shoulder combine to overcome their better judgment.
Being able to help make situations like this right is why I became a lawyer. It saddens me that so many elderly people are taken advantage of in this way.
Kemp Brinson Legal Commentary elder abuse, guardianship
