Weekly Roundup: Courts, Personnel Decisions Dominate the Week

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Tallahassee, FL -- August 12, 2011 --

It was a week full of legal maneuverings, from a major ruling in the battle over the landmark health-care law passed last year to a series of controversies over attorneys leaving the attorney general's office.

And that wasnt all the courtroom- and lawyer-related drama. The Department of Justice approved parts of the state's controversial elections law, while the quasi-judicial Public Service Commission took up a rate case that could end with almost $200 million being passed on to FPL consumers.

Meanwhile, Gov. Rick Scott made ripples with a personnel decision while two long-time figures on the political scene bowed of their high-profile jobs.

APPEALS COURT NIXES HEALTH-CARE MANDATE, BUT UPHOLDS LAW

The appeals court's ruling on the health-care law had something for almost everyone to like and many people to hate. The court called the law's requirement that all Americans buy health insurance an "unprecedented exercise of congressional power" that ran afoul of the U.S. Constitution.

But while the divided three-judge panel struck down the linchpin of the health-care overhaul that President Barack Obama and congressional Democrats pushed through in 2010, it allowed the rest of the law to stand.

That overturned part of the findings of Pensacola federal judge Roger Vinson, who ruled that the entire health-care law should be tossed out because the individual mandate could not be separate from the other changes approved by Congress.

"This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," Chief Judge Joel Dubina and Judge Frank M. Hull wrote in the 207-page majority opinion.

But Judge Stanley Marcus mocked that reasoning, siding with the Obama administration's argument that the mandate is allowed under the constitution's Commerce Clause, saying the law "portends no such impending doom."
The appeals court ruling was just one more step on the road to a ruling by the U.S. Supreme Court on the law, but Republicans still hailed the decision.

"It is critical that this case be expedited to the United States Supreme Court so that we can put this job-killing federal government mandate behind us and begin making the meaningful improvements our healthcare system needs without infringing on the liberties of Americans,'' said Gov. Rick Scott, who has made opposition to the law one of his signature issues.

But advocates for the law, like health-advocacy group Florida CHAIN, focused on the next stages of the fight.

"Implementation of the (law) is critical to the health and well-being of Floridians," Florida CHAIN said in a statement.

COMING AND GOING IN THE ATTORNEY GENERAL'S OFFICE

When the state's attention wasn't riveted on the outcome of the court case, it was instead focused on the lawyers who argued the cases. It was getting harder and harder to keep up with the organizational chart in Attorney General Pam Bondi's office, or at least to track who was leaving and why.

Assistant Attorney General Andrew Spark quit Wednesday as Bondi was threatening to put him on administrative leave. Spark wrote a 16-page memo outlining what he saw as shortcomings in the office's effort to go after fraud, and accused two fellow employees of trying to block his efforts to initiate investigations. But Bondi said the memo divulged information about ongoing investigations -- and "failed to include that [Sparks] was the subject of an ongoing investigation for using the services of a business he was investigating."

Or maybe it did. Spark wrote about a case in which he was investigating a health club chain of which he was a member.

But conflict-of-interest accusations surrounding AG employees were all too common. Joe Jacquot, who left the attorney general's office earlier this year, defended his work at the office before he took a job with Jacksonville-based Lender Processing Services, which was under investigation during his time with the state. But Jacquot said he was careful to wall himself off from any discussions about the firm once he knew he might take a job there. (Incidentally, Jacquot spent much of his time working on the health-care lawsuit.)

Jacquot's departure in May and his landing at LPS was scrutinized in part because Bondi has been under the microscope for the firing of two attorneys who worked in the economic crimes unit on the fraud cases. Critics alleged that the attorney general's office has gone soft on the firms, and claimed also that there's a revolving door culture between the agency and the firms.

And two other former McCollum attorneys have ties to firms that were under investigation -- one who quit when Bondi took over and another who was fired by Bondi.

It wasn't long before politicians entered the fray, with Reps. Darren Soto, D-Kissimmee and Ron Saunders, D-Key West, and Sen. Eleanor Sobel, D-Hollywood, announcing they were working on legislation to prevent lawyers who leave the attorney general's office or certain other agencies from going to work for a company that had been under investigation while they were there.

"It is bad policy for the integrity of the investigation, and the perception," Soto said Wednesday in an interview.

DOJ: VOTING LAW LOOKS OKAY TO US. WELL, PART OF IT

The federal Department of Justice also had its day in the news, when Secretary of State Kurt Browning announced that he had gotten the go-ahead from U.S. Attorney General Eric Holder to enforce the state's controversial elections law in the five Florida counties that require preclearance under the Voting Rights Act.

Or at least that he had gotten the go-ahead to enforce the uncontroversial parts of the state's controversial elections law in those counties.

The rest of preclearance process -- required for areas that have a history of racial discrimination in voting -- was moved recently to the federal appeals court in Washington, D.C., apparently paving the way for this week's announcement.

"I am appreciative of the work the DOJ has done to approve Florida's new election laws," Browning said in a statement released by his office. "Their decision confirms what we already know, that Florida's new election laws are fair and not discriminatory."

Not so fast, opponents said.

"As the Secretary should know well, the State stopped the Department of Justice from reviewing the most discriminatory portions of the law and, moreover, the Department of Justice is only reviewing these changes for compliance with the federal Voting Rights Act -- not their legality or fairness overall," said Howard Simon, executive director of the ACLU of Florida. "To suggest otherwise is dishonest."

HEARINGS ON FPL RATE CASE

It might have taken the DOJ weeks to consider the state's election changes, but it took the Public Service Commission almost no time at all to finish up a hearing on Florida Power & Light's proposal to collect $196 million next year to pay for nuclear-power projects. A ruling is scheduled for Oct. 24.

The PSC had set aside all or parts of three weeks to hear about FPL's plans and a request by Progress Energy Florida to pass along about $141 million in nuclear costs to customers in 2012.

But the hearing on FPL's request started Wednesday and ended Thursday, and Deputy Public Counsel Charles Rehwinkel said negotiations on the number of witnesses in the Progress case could allow it to be wrapped up in a day or two.

At the hearing, attorneys for consumers and business and environmental groups questioned whether FPL will ever build two new nuclear reactors and whether the company increased costs by trying to do an upgrade project quickly and told the PSC that the utility used out-of-date information during a similar 2009 hearing about the upgrade project.

Joe McGlothlin, an attorney for the Office of Public Counsel, accused the company of "willful withholding" of information that would have shown higher project costs.

But FPL denied wrongdoing. "Let me be very clear,'' company President and CEO Armando Olivera said in written testimony. "FPL did not willfully withhold information that the commission needed to make an informed decision during the September 2009 hearing."

COMINGS AND GOINGS

Meanwhile, Gov. Rick Scott made waves by hiring tea party activist Robin Stublen as a new "deputy director of public liaison" at $70,000 a year. The state Democratic Party said Scott was offering his "Tea Party cronies" jobs.

"It looks like Rick Scott only believes in less government when it means slashing jobs for hardworking Floridians," the statement said.

But Scott said he didn't hire Stublen because he was a tea party activist.

"I hired him because he's good -- and don't worry, I'll hold him accountable," Scott said.

Meanwhile, Barney Bishop said he would resign as president and CEO of Associated Industries of Florida at the end of the year, saying there are "other things in life -- other passions" that he wants to pursue. And Rod Petrey resigned as head of the Tallahassee-based LeRoy Collins Center, according to the Tallahassee Democrat, but said he was bound by a confidentiality agreement from discussing the circumstances surrounding his departure. The newspaper reported that four board members quit last month over concerns about the organization's cash flow.

STORY OF THE WEEK: A federal appeals court sides with Florida and 25 other states, ruling the health-care mandate approved by President Barack Obama and congressional Democrats is unconstitutional.

QUOTE OF THE WEEK: "There is a less of a chance that an individual will go through his entire life without ever consuming health-care services than there is that he will win the Irish Sweepstakes at the very moment he is struck by lightning," wrote federal Judge Stanley Marcus in a dissent to the health care ruling.



 
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