by Ricardo Jerome | Mar 1, 2022 | Moot Court Mondays
The Establishment Clause is a clause that comes from the First Amendment of the United States. The First Amendment states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.[1]
In a recent Supreme Court decision, Town of Greece v. Galloway, it highlights the struggle between the Establishment Clause and the Free Exercise Clause, which embodies the issues most justices have struggled to come to terms with: whether the law is promoting a religious affiliation, whether the law is infringing on religious beliefs, and where to draw the line when deciding how Establishment Clause violations should be tested. The central question in the case was whether a town in New York called Greece, was in violation of the Establishment clause by allowing town meetings to hold prayers which respondents claimed to favor the Christian religion. There was never any reviews of the prayers that were given in these town meetings due to the belief that trying to exercise any control of these prayers would violate the free exercise and free speech rights that the minister had as they would give these prayers.[2] Eventually, there were several citizens who filed a suit against these prayers claiming the Establishment Clause was being violated because they felt that the Christian faith was being favored over other faiths in the prayers.[3] In Town of Greece v. Galloway, the court ruled that these prayers which were invocated in the meetings were not unconstitutional and relied on the fact that these so called legislative prayers were ongoing and uninterrupted for years before there was any claim against them. Town of Greece v. Galloway in essence relied on a historical analysis to determine that the Establishment Clause was not being violated by the town. This is not truly a standard held by the Lemon Test which is the widely held Establishment Clause test. It is a three-prong test meant to prove that law or legislation violates the Establishment clause if it does not have a secular legislative purpose, if its primary effect advances or inhibits religion, and if it fosters excessive government entanglement with religion. Town of Greece v. Galloway begs the question of whether a historical use of specific religious practices in certain areas should be analyzed while applying the Lemon Test as an aid to determine whether there has been a violation.
[1] See U.S. CONST. amend. I.
[2] See Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 571 (2014).
[3] See Town of Greece, N.Y, 572 U.S. at 565 (stating “respondents, citizens who attend meetings to speak on local issues, filed suit, alleging that the town violated the First Amendment’s Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers.”).
Links:
- https://www.law.cornell.edu/constitution/first_amendment
- https://plus.lexis.com/document/?pdmfid=1530671&crid=595b8826-d727-44cf-8107-02a0f5e2472c&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A58FW-XXV1-F04K-F00J-00000-00&pdcontentcomponentid=6443&pdteaserkey=&pdislpamode=false&pdworkfolderlocatorid=NOT_SAVED_IN_WORKFOLDER&ecomp=ff4k&earg=sr10&prid=ca586865-251e-4e92-b03e-218de6eeb15d
by Emily Chahede | Feb 21, 2022 | Moot Court Mondays
Covid has brought about many changes in the United States legal system, specifically in the context of incarceration. In this recent opinion the Defendant, Mr. Jones (“Mr. Jones”), was convicted pursuant to Criminal Punishment Code Scoresheet, Florida Rule of Criminal Procedure 9.992. The lowest sentencing that was provided to Mr. Jones was twenty-one months in state prison. Due to the onset of COVID the sentencing was delayed, and Mr. Jones sought an alternative sentencing of two years in community control followed by a three-year probation. Ms. Jones was ultimately asking the Court to allow for a longer sentencing outside of prison to prevent contracting COVID-19. At the time of his sentencing the current statistics provided that over 31,000 Floridians had tested positive for COVID-19 including over 1,000 deaths. Mr. Jones was also fifty years old at the time of his sentencing and the sole medical issue he pointed to be the testimony of father that claimed he had high blood pressure. However, the basis of the argument was not on the medical condition itself, but on the global pandemic.
On appeal, the court analyzed Section 921.0026, Florida Statutes (2013), which considers “Mitigating Circumstances” to Florida’s Criminal Punishment Code. The statute provides a non-exhaustive list for circumstances that allow the downward departure of a sentencing. To support a claim under this statute the defendant must provide competent substantial evidence to succeed on the stated basis. See State v. Hodges, 151 So. 3d 531 (Fla. 3d DCA 2014); State v. Bowman, 123 So. 3d 107 (Fla. 1st DCA 2013).
As noted by the Florida Supreme Court, the analysis a court must take is a two-part test:
“First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1). . . . This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.
Second, where the step 1 requirements are met, the trial court further must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case. In making this determination (step 2), the court must weigh the totality of the circumstances in the case, including aggravating and mitigating factors. This second aspect of the decision to depart is a judgment call within the sound discretion of the court and will be sustained on review absent an abuse of discretion.”
Banks v. State, 732 So. 2d 1065 (Fla. 1999).
Following jurisprudence established by the Second District Court of Appeal, in State v. Saunders, 322 So. 3d 763, 767 (Fla. 2d DCA 2021). The same issue was placed before the court, whether the trial court improperly imposed a downward sentence on the basis of overcrowding of prisons due to COVID-19. The Second District held that the generalized concerns of the trial court for overcrowding could not serve as valid grounds because it was not consistent with legislative sentencing policy and there was no caselaw to supports its contention. Second, in that case the defendant failed to present substantial evidence of his request for a departure sentence, and it was not clear if a previous release the defendant had was based on overcrowding or the pandemic, the court ultimately held that the evidence was insufficient.
Here, the Court agreed with the sister court, although Mr. Jones had been in a pretrial house arrest while awaiting his trial, this was not enough to support cause for legislative sentencing. Second, as noted by the Court “the Covid virus is so rampant and continues to be so rampant in the county jail and in the prison.” Therefore, because Mr. Jones failed to provide substantial evidence that he had any underlying medical condition which placed him at greater risk for contracting COVID-19 his claim for a departure sentence fails.
SOURCES:
- https://www.3dca.flcourts.org/content/download/828097/opinion/201220_DC13_02092022_100138_i.pdf
- State v. Saunders, 322 So. 3d 763, 767 (Fla. 2d DCA 2021.
by Crystal Barranco Garcia | Feb 14, 2022 | Moot Court Mondays
On February 3, 2022 the Supreme Court of Florida approved proposed amendments to the Florida Rules of Juvenile Procedure; and it seems more change is coming from the legislature. The new trend is showing a broadening of rights and protections for juveniles. Among the rules that were amended and/or added are, 8.217, 8.305, and 8.345. Although there were many important changes approved these are some of the most important ones. First, rule 8.217 now adds the words “attorney for the child” when the caregiver has objected to “a change in the child’s physical custody placement.”2 This differs from the previous rule which only required the child have attorney ad litem.3 Another amended rule is 8.305 which now prioritizes “out-of-home placements, including fictive kin, or nonrelatives.” Lastly, rule 8.345 which focuses on Post-Disposition Relief has been amended so that it now provides that “a hearing must be held if any party or the current caregiver denies the need for a change [to custody placement] and creates a rebuttable presumption that it is in the child’s best interest to remain permanently in the current physical placement if certain conditions are present.”
It seems that these newly proposed amendments are just some in the new era of juvenile procedural change. The Florida Senate approved this same week a juvenile expungement bill. This bill would “broaden a juvenile’s ability to expunge their arrest record in Florida.”4 This would favor the juvenile clients that want to continue a life free of the bitter reminder of their conviction. Now more than ever Florida attorneys need to keep a close eye to the changes coming to juvenile law. Time to shepardize the law.
Sources:
1 https://www.jmcdowelllaw.com/juvenile-law-common-misconceptions/
2 https://www.floridasupremecourt.org/content/download/826484/opinion/sC21-1681.pdf
3 An attorney ad litem is a court-appointed lawyer who represents a child during the course of a legal action, such as a divorce, termination, or child-abuse case. The attorney owes to the child the duties of loyalty, confidentiality, and competent representation. https://www.law.cornell.edu/wex/ad_litem
4 https://floridapolitics.com/archives/495260-juvenile-expunction-bill-advances-through-final-senate-committee-stop/
by Elise Nuevo | Nov 8, 2021 | Moot Court Mondays
Elise Nuevo
New business is a key factor to any attorney’s success—and finding unique ways to reach potential new clients is essential. When it comes to advertising, however, attorneys must follow the rules provided by the Florida Bar. Specifically, Rule 4-7.19.
New and transformative digital technologies are rapidly taking over and enabling organizations to innovate and thrive in a progressively digital world. COVID-19 put a full-stop on business as usual and created a launching pad for organizations to become virtual—all while doing it at lightning-fast speed. The Florida Bar is keeping up-to-date and advancing to fit in with this technology that is becoming more integrated with every aspect of our lives each day.
The Florida Supreme Court has just adopted amendments to rule 4-7.19 to allow the Florida Bar to post on the Bar website the location for submission of advertisements for review. Advertisements must be filed with The Florida Bar in the manner that is specified on the Florida Bar website. What does this mean? The adopted amendment will now potentially allow the Bar to implement procedures for online submission of advertisements.
An electronic submission system may be more efficient and effective in comparison to the traditional mailing processes that have been set in stone for years. Advertisements by lawyers are at an all-time high. These rapid developments are not only providing innovative solutions that attorneys need to improve their workflow but are also providing them with a much faster way to submit their advertisements that will, in return, help their businesses—with just the click of a finger.
Sources:
Florida Supreme Court Case: IN RE: AMENDMENTS TO RULE REGULATING the FLORIDA BAR 4-7.19
The Florida Bar News: BAR REVIEWING MORE LAWYER ADS
by Alexa Zamora | Nov 1, 2021 | Moot Court Mondays
Alexa Zamora
The Florida Bar’s Special Committee on Examination of Judicial Referral Process was assigned to create the most effective and efficient process to address judicial referrals of lawyer misconduct.
Rule 3-7.18 of the Rules Regulating the Florida Bar was amended to address judge’s long history of dissatisfaction of never being informed of the outcome of their complaint or inquiry to the Florida Bar regarding lawyer misconduct. When a judicial complaint is made, many times, the Florida Bar Committees’ decision does not require the filing of formal grievance charges. The Committees’ decision not to pursue an inquiry, dismiss a case, find no probable cause, issue a letter of advice, recommend a diversion, or recommend an admonishment for minor misconduct are all dispositions that do not require a filing of formal charges. Consequently, judges are not being informed of the Florida Bar Committees’ decision nor informed of the outcome of their complaint.
Rule 3-7.18 creates a process of review and approval by the Board of Governors of the Florida Bar and the Court regarding all dispositions of judicial referrals. First, the Bar’s Disciplinary Review Committee will review all inquiries or complaints that do not require filing formal charges and recommend a disposition to the full Board of Governors. Thereafter, the Board of Governors have one of two options, either they accept the committee’s recommended disposition or reject it. Suppose the board decides to reject the recommended disposition. In that case, the Board of Governors either can refer the matter to a grievance committee for additional investigation or review; find probable cause, and the case would proceed accordingly; or recommend a different disposition to the Supreme Court of Florida.
The Florida Supreme Court may review the board’s recommendation for approval of dispositions of judicial referrals and may take one of the following actions, either approve the board’s recommended disposition; reject the Board’s recommendation, refer the matter back to the Board for further review, or request that the bar provide additional information.
The new rule will become effective on December 20, 2021.
Sources:
by Claudia Martinez | Oct 25, 2021 | Moot Court Mondays
Claudia Martinez
The State of Florida is well-known for its Stand Your Ground law. The essence of the Florida law is recited throughout the country as the controversy on the topic continues to grow. The procedural limitations of Florida’s Stand Your Ground law, however, are not as popular. In a recent opinion, the Florida Supreme Court addressed what happens when the wrong burden of proof is used during an immunity hearing consisting of a Stand Your Ground defense.
In 2017 the Florida Legislature amended Florida Statute Section 776.032, which took effect on June 9, 2017, to include the necessary burden of proof of clear and convincing evidence. This was in direct response to a previous holding from the Florida Supreme Court in 2015, asserting that “[a] defendant bears the burden of proof, by a preponderance of the evidence, to demonstrate entitlement to Stand Your Ground immunity at [a] pretrial evidentiary hearing.” Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015).
A retroactive application of this new burden of proof had not been adjudicated until recently. In Boston v. State, 296 So. 3d 580 (Fla. 1st DCA 2020), a defendant was charged with aggravated battery with a deadly weapon from an altercation taking place in 2016, which was before the legislative amendment went into effect. The defendant claimed immunity under the Stand Your Ground law. The trial court ultimately decided that the pre-amendment standard of a preponderance of the evidence should be applied, since the altercation had taken place in 2016. The defendant was subsequently found guilty of a lesser-included offense, after both his immunity hearing and his self-defense claim failed.
On appeal, the issue before the Court was whether this retroactive application of the pre-amendment standard of proof had affected the outcome of the defendant’s case. In reaching its conclusion, the Florida Supreme Court placed special emphasis on the hierarchy of the standards of proof. Proof beyond a reasonable doubt is the highest and most burdensome standard to meet. Once the State has met this burden, it seems reasonable to conclude that a lower standard – such as a preponderance of the evidence or clear and convincing evidence – has been satisfied. A retroactive application of the preponderance of the evidence standard is therefore a harmless error bearing no significant change in the outcome of the case.
CITES
