Separation of Powers – Part 5

Where you find the laws most numerous, there you will find also the greatest injustice. --Arcesilaus

---------------------------

Legal Arguments:

2. Unbridled Authority Improperly Given to the Judiciary

A legislative delegation of power to another branch of government without proper standards and guidelines violates Florida's separation-of-powers prohibition because it permits the other branch the discretion to decide what the law shall be. See Askew 372 So.2d at 913; Conner 216 So. 2d. This concept is so fundamental and universally accepted that the Florida Supreme Court considers it "hornbook law." Lewis v. Bank of Pasco County, 346 So.2d 53 (Fla.1976).

The Florida Supreme Court Gender Bias Study Commission in their (1990) Report as an authoritative body acknowledges the judiciary is granted almost unlimited discretion to apply § 61.08 Fla. Stat. ( See infra G.)

The Separation of Powers test is noted in State v . Griffin, 239 So. 2d 577 (Fla. 1970),

“The test then became twofold: first, was a transfer of authority possible; second, if so, was it sufficiently restrictive? We quote from Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789 (1919):

‘In order to justify the courts in declaring invalid as a delegation of legislative power a statute conferring particular duties or authority upon administrative officers it must clearly appear beyond a reasonable doubt that the duty or authority so conferred is a power that appertains exclusively to the legislative department, and the conferring of it is not warranted by the provisions of the Constitution.

‘The Legislature may not delegate the power to enact a law, or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law; but it may enact a law complete in itself, designed to accomplish a general purpose, and may expressly authorize designated officials within valid limitations to provide rules for the complete operation and enforcement of the law within its expressed general purpose.’”

Smith v. Portante, 212 So.2d 298, 299 (Fla.1968) (cited in Schiavo v. Bush, No. 03-008212-CI-20, 6th Judicial Circuit Florida, (2004))states,

“A statute which delegates power to the executive [here we argue to the judiciary] must so clearly define that power that the executive [judiciary] is precluded from acting through whim, showing favoritism, or exercising unbridled discretion. Id at 56. ‘No matter how laudable a piece of legislation may be in the minds of its sponsors, objective guidelines and standards should appear expressly in the act or be within the realm of reasonable inference from the language of the act where a delegation of power is involved and especially so where the legislation contemplates a delegation of power to intrude into the privacy of citizens.’”

Standards and guidelines are also necessary to accommodate the right to judicial review.

A critical point demonstrating the alimony provisions violation of the separation of powers is the inability of the courts to determine the intent of the legislation. Whether the courts find the intent and provisions ambiguous or simply chose not to follow the myriad of factors in § 61.08 Fla. Stat. is unclear. The fact is they do not follow the factors. The alimony provisions fail the test outlined in Askew, 372 So.2d at 918,

"When legislation is so lacking in guidelines that neither the agency nor the courts can determine whether the agency [judiciary] is carrying out the intent of the Legislature in its conduct, then, in fact, the agency [judiciary] becomes the lawgiver rather than the administrator [interpreter] of the law."

INTERESTING READING:
* Facts about marriage the Governor of California doesn’t want you to know. Some of this could apply to you whether or not you live in California.
* Feminism and Motherhood

LEGAL INFORMATION AND RESEARCH CORNER:
* The State and Local Government Internet directory provides convenient one-stop access to the websites of thousands of state agencies and city and county governments.

EXAMPLES OF A JUDICIAL SYSTEM AND JUDGES GONE AWRY:
* Panel Finds Nassau Judge Abused Judicial Contempt Power
* Examiner Editorial - Another judge, another screw up. And, an example of gender bias against women.

WOMEN RULE: MORE ON THE SUBJECT:
* More women are starting their own businesses.
* A gender comparison of sole proprietorship businesses
* Self-Employed Business Ownership Rates in the United States: 1979-2003

CASUALTIES OF STATE SPONSORED VIOLENCE
* Randall Couch

Separation of Powers - Part 4

Scholar Raoul Berger asks the rhetorical question: "How long can public respect for the Court, on which its power ultimately depends, survive if the people become aware that the tribunal which condemns the acts of others as unconstitutional is itself acting unconstitutionally? Respect for the limits on power are the essence of a democratic society; without it the entire democratic structure is undermined."
--(Berger, Government by Judiciary (2d ed. 1997) pp. 459-460.)

----------------------------------

Legal Arguments:

D. § 61.08 Fla. Stat.-Unauthorized Delegation-Uncertain in Implementation

The flaws in the alimony statute which create the unauthorized delegation of authority, and the unbridled decision making authority to the judiciary are the multiplicity of factors in the statute that “shall” be weighed and the closing statement in § 61.08 (2) Fla. Stat. which creates unbridled authority. Further, the improper authority given to the judicial to make a decision of whether and how much alimony will be given cannot even be discerned by the judiciary---even they cannot figure out the statute. By its own admission the Florida judiciary does not even know how to implement the statute.

E. § 61.08 Fla. Stat.

The highlighted areas in the provision below represent the improper unbridled authority delegated to the judiciary to create law. The line of code concluding § 61.08 (2) Fla. Stat. , i.e. “The court may consider any other factor necessary to do equity and justice between the parties.” Represents this unauthorized delegation of authority without restraints or limits. The provision violates the Separation of Powers Fl. Const. directive. Further the provision is non severable.

61.08 Alimony.--
(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be rehabilitative or permanent in nature. In any award of alimony, the court may order
periodic payments or payments in lump sum or both. The court may
consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.
(2) In determining a proper award of alimony or maintenance,
the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

(3) To the extent necessary to protect an award of alimony, the court
may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure
such alimony award with any other assets which
may be suitable for that purpose.

History.--ss. 7, 12, Oct. 31, 1828; RS 1484; GS 1932; RGS 3195; CGL 4987; s. 1, ch. 23894, 1947; s. 1, ch. 63-145; s. 16, ch. 67-254; s. 10, ch. 71-241; s. 1, ch. 78-339; s. 1, ch. 84-110; s. 115, ch. 86-220; s. 2. ch. 88-98; s. 3, ch. 91-246.
Note.--Former s. 65.08. Despite the newly added statutory provision that a dissolution order contain a narrative of the factors in § 61.08 (2) is it impossible to ever determine which factors result in the rulings. ( See
Hillier v. Iglesais 901 So. 2d. 947, (Fla 4th DCA 2005)(Judge Farmer concurring expresses opinion that trial courts do not weigh factors properly, e.g. entitlement to lifestyle of the marriage.)

WOMEN RULE: MORE ON THE SUBJECT:
* U.S. Senate Reauthorizes Feminist Man Hating Bill. Violence Against Women Act funds sexism and not the prevention of domestic violence.
* Florida Teacher Accused of Having Sex With a 14-Year-Old Student Pleads Guilty in Deal to Avoid Prison. This is a blatant example of the double standard that exists in the court where “women rule.”

MARRIAGE STRIKE: DESTROYING THE VERY FABRIC AND BUILDING BLOCK OF OUR SOCIETY AND NATION
* The general male population is going on a massive “Marriage Strike! Unsettling statistics.

CASUALTIES OF STATE SPONSORED VIOLENCE
* Father’s Suicide

EXAMPLES OF A JUDICIAL SYSTEM GONE AWRY:
* Judicial Tenure Commission boss: Remove Bradfield from bench
* Self-Regulation Of Judicial Misconduct Could Be Mis-Regulation

HOW THINGS ARE HANDLED IN OTHER COUNTRIES:
* India: It's all about money, honey!

RELATED WEBSITES OF INTEREST:
* Wanted Posters Reality TV. A modern version of the post office wanted poster bulletin board.

LEGAL INFORMATION AND RESEARCH CORNER:
* Library of Congress

Separation of Powers - Part 3

“How noble the law, in its majestic equality, that both the rich and poor are equally prohibited from peeing in the streets, sleeping under bridges, and stealing bread!” -- Anatole France

------------------------

Legal Arguments:

C. Caselaw on Separation of Powers

Most case law on Florida Separation of Powers deals with legislatively improper delegation of authority, authority without proper restrictions, or authority in a constitutionally prohibited zone to the executive and executive agencies. This case focuses on these improper delegations of authority from the legislature to the judiciary to affect the purposes of Chapter 61 “Dissolution of Marriage” Fla. Stat. alimony provisions.

The Florida Legislature is vested with the plenary authority to enact laws, subject only to limitation by the state constitution. (Art. III, § 1, Fla. Const.; Bd. of Pub. Instruction v. Wright, 76 So. 2d 863, 864 (Fla. 1955) (en banc).

The legislative branch bears the responsibility to protect the rights of citizens, Satz v. Perlmutter, 379 So. 2d 359, 361 (Fla. 1980). It has the exclusive obligation to enact social policy. Krischer v. McIver, 697 So. 2d 97, 104 (Fla. 1997). Most importantly for present purposes, the legislature defines and administers the regulation of dissolution of marriage. See, e.g., Chapter 61 Part I (2003) Fla. Stat. The judicial branch, by contrast, enjoys the exclusive power to “administer justice and resolve disputes within the common law and the laws established by the legislature.” Art. V, § 3, Fla. Const. (citings generally from Bush 885 So.2d)

There are essentially two ways in which the principle of separation of powers can be violated: (1) if one branch encroaches upon or nullifies the powers of another; or (2) if one branch improperly delegates its own, or another branch’s, constitutionally assigned authority to a separate branch of government. Chiles v. Children, 589 So. 2d 260, 264 (Fla. 1991).

To determine whether a given power is exclusive to one branch, one must consider the constitutional text and history, along with the nature of the activity in question. Simms v. State, 641 So. 2d 957, 961 (Fla. 3d DCA 1994).

The legislature is constitutionally prohibited from assigning its own exclusively held power to other branches through excessive delegation. See Askew v. Cross Key Waterways, 372 So. 2d 913, 918-19 (Fla. 1978). To be sure, legislatures may, and routinely do, delegate authority to the executive branch to administer a statutory scheme; in so doing they often times provide to the relevant agency a measure of discretion to flesh out the underlying law’s contours. Id. at 924. To pass constitutional muster,
however, such authority may not be utterly open-ended and must provide “some minimal standards and guidelines ascertainable by reference to the [underlying] enactment.” Id . at 925. In short, the executive official must be given guidance as to the intention of the act itself, so as not to cede the “discretion as to What the law shall be,” which, of course, is the province of the legislature alone. Conner v. Joe Hatton, Inc., 216 So. 2d 209, 211 (Fla. 1968).

Does the Dissolution of Marriage statute and its alimony provisions vest in the judiciary powers that are exclusively reposed in the legislative branch? Yes. To answer the question, one must “consider the essential nature and effect of the governmental activity to be performed.” Simms 641 So. 2d at 961. In fact, Art. I. § 23, Fla. Const, Right of Privacy, prevents any branch of government from imposing undue burdens on the right of privacy of citizens to dissolve their Marriage. Littlejohn v. Rose 786 F.2d 785, 786 (6th Cir. 1985) (Given the "associational interests that surround the establishment and dissolution of [the marital] relationship", such "adjustments" as divorce and separation are naturally included within the umbrella of protection accorded to the right of privacy.).

N. Fla.. Women’s Health 866 So.2d at 658,
“As has so often been said, it is not the role of the courts to set policy or to engage in judicial legislation. We have long recognized that it is not this Court's ‘function to substitute its judgment for that of the Legislature as to the wisdom or policy of a particular statute.’ State v. Rife, 789 So. 2d 288, 292 (Fla. 2001). However, this Court does not ‘violate the separation of powers doctrine by determining whether a legislative enactment was constitutionally adopted.’ Chiles v. Phelps, 714 So. 2d 453, 456 (Fla. 1998).”

INTERESTING READING:
* National Center On Children In Poverty - A rapidly changing portrait of fatherhood in America and how the states are responding to it. There are interesting statistics relating to the change in family structure.
* Divorce And Child Support Are Eviscerating Military Recruitment

LEGAL INFORMATION AND RESEARCH CORNER:
* State Constitutions

EXAMPLES OF A JUDICIAL SYSTEM GONE AWRY:
* Judicial Conduct Commission Targets Contempt Abuse
* Beware: The Dog Law. Just when you thought you had a reason not to be held in contempt, they ignore the reason of law and change the rules.

WOMEN RULE: MORE ON THE SUBJECT:
* Gender propaganda couched as fact or science is the traditional method radical feminist organizations have used for decades to seize control of family and the trappings of society.

HOW THINGS ARE HANDLED IN OTHER COUNTRIES:
* Italy: Ciao, dear: party time is legal right

Separation Of Powers – Part 2

“The future depends on what we do in the present.”
-- Mahatma Gandhi

-----------------------------

Legal Arguments

II. The Alimony Statute Impermissibly Infringes the Separation of Powers

A. The legislature in § 61.08 Fla. Stat. improperly delegates authority to the judicial branch without proper restrictions. The improper delegation of unbridled authority is further compounded because the authority delegated takes place in the constitutionally protected zone of the right of privacy, namely the privacy protected right of citizens to exercise their personal decisions relating to their marriage, i.e. to dissolve it. The legislature lacks the authority to delegate power it wrongfully grants to the judiciary. Both legislative actions violate the Separation of Powers.

B. Separation of Powers Article II § 3 Fla. Const.

The Florida Constitution Separation of Powers provision is a safeguard designed precisely to prevent the concentration of power in the hands of one branch. In re Advisory Opinion to the Governor, 276 So.2d 25 (Fla.1973).

Bush v. Schiavo, 885 So.2d 321, (Fla. 2004) is the most recent culmination of Florida law related to Separation of Powers. Bush 885 So.2d states,

“The cornerstone of American democracy known as separation of powers recognizes three separate branches of government--the executive, the legislative, and the judicial--each with its own powers and responsibilities. In Florida, the constitutional doctrine has been expressly codified in article II, section 3 of the Florida Constitution, which not only divides state government into three branches but also expressly prohibits one branch from exercising the powers of the other two branches:

Branches of Government.--The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

‘This Court . . . has traditionally applied a strict separation of powers doctrine," State v. Cotton, 769 So. 2d 345, 353 (Fla. 2000), and has explained that this doctrine "encompasses two fundamental prohibitions. The first is that no branch may encroach upon the powers of another. [*19] The second is that no branch may delegate to another branch its constitutionally assigned power’ Chiles v. Children A, B, C, D, E, & F, 589 So. 2d 260, 264 (Fla. 1991) (citation omitted).”

The danger sought to be remedied is best captured by Daniel Webster (1782-1852), who is widely credited with observing:

“Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.”

INTERESTING READING:
* Proposed House Bill H.R. 4861 to make failure to pay alimony a Federal crime.

LEGAL INFORMATION AND RESEARCH CORNER:
* Covering Private Companies. Places to seek information on private firms.

EXAMPLES OF A JUDICIAL SYSTEM GONE AWRY:
* Fla. Federal Judges Slammed for Secret Docketing
* JQC's disconcerting silence

HOW THINGS ARE HANDLED IN OTHER COUNTRIES:
* India: Wives, beware! Husbands can now seek alimony

CASUALTIES OF STATE SPONSORED VIOLENCE
* Father Blames Justice System As The Reason For His Suicide
* Fiancee says little about Cornett's motives

Separation Of Powers – Part 1

"Difficult times such as these have always tested our fidelity to the core democratic values of openness, government accountability, and the rule of law.
The Court fully understands and appreciates that the first priority of the executive branch in a time of crisis is to ensure the physical security of its citizens. By the same token, the first priority of the judicial branch must be to ensure that our Government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship."
-- recent opinion in Center For Nat. Security Studies v. U.S. Dept. of Justice, 2002 WL 1773067 D.D.C.,2002. Aug. 2, 2002

-----------------------------------

Lawyers are lifetime members of the Judiciary. They retain that position unless they are disbarred. When a lawyer becomes a member of the legislative or executive branch, the individual is either still related to some law firm or can become part of some law firm.

As lawyers in the legislatures they belong to and also constitute the Legislative Branch of the Government. In seeking to be in a second branch of Government such as the Judiciary or Executive branch they have a conflict of interest. In doing so, they violate the principal of the separation of powers of the different branches. Legislatures are comprised to a large degree of lawyers. They in turn confirm the judges who are appointed to the Judiciary who rule on the law. The lawyers can then practice law before the very judges they confirmed. So now, lawyers, confirm judges, who then as judges, confirm the laws constitutionality that the confirming lawyers pass in the legislature. And around we go again.

Lawyers and the law firms all benefit from laws that are passed by the Legislatures. The more laws passed, the more income they make by representing parties who are affected by these laws. And since the justices are elected in partisan races, their campaigns largely funded by law firms that practice before the court. In essence, they are buying favoritism with judges.

Historically, lawyers publicly show support for all judges. It's not a good employment move to challenge the person who is going to make that ruling you live and breathe for.

The following series of articles will present a comprehensive argument of why the present alimony laws violate the separation of powers.

INTERESTING READING
* Female Murderers Seen in a Different Light: Society Prefers to View Violent Women as Victims By Glenn Sacks
* Here’s a slick tactic you might want to consider using when asked questions in a court hearing or trial.

LEGAL INFORMATION AND RESEARCH CORNER:
* Barrister Books. Legal textbooks for the more legal minded.

CASE LAW USED IN SUPPORT OF ABOLISHING ALIMONY
* Bush v. Schiavo, 885 So. 2d 321, (Fla. 2004) - A law permitting the governor to stay the court-ordered removal of a feeding tube enacted after the order had been rendered was an unconstitutional invasion of the separation of powers.

EXAMPLES OF A JUDICIAL SYSTEM GONE AWRY:
* Bad Judges And What To Do About Them

HOW THINGS ARE HANDLED IN OTHER COUNTRIES:
* India: Wife to pay alimony
* Israel: Same gender bias as the U.S.

RELATED WEBSITES OF INTEREST:
* Divorce Source: Divorce Research Center - Alimony

ASSET PROTECTION FROM ALIMONY PROCEEDINGS:
* Offshore Trust Accounts

Right To Privacy – Part 7

The best way to get a bad law repealed is to enforce it strictly.
-- Abraham Lincoln

------------------------------

Legal Arguments:

A. Coverture to Partnership to Independent Self Reliance-- The Abrogation of the Doctrine of Necessaries

“It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” O.W. Holmes. The Path of the Law. 10 Harvard Law Review 457 (1897)

The original rational for the obligation of spousal support has long since passed. The obligation began in a time, and because of the principle of coverture.

“At common law, a woman’s legal identity merged with that of her husband; she could not own property, enter into contracts, or receive credit as an individual. This condition, known as coverture, created a need for the doctrine of necessaries because a married woman was dependent upon her husband for maintenance and support.” Abrogating the Doctrine of Necessaries in Florida: The Future of Spousal Liability for Necessary Expenses After Connor v. Southwest Regional Medical Center, Inc. Shawn M. Wilson. Florida State Law Review 24:1031. 1997 at 1032.

Coverture died with art. XI § 2 Fla. Const., § 708 Fla. Stat. (Married Women’s Property), and Merchant’s v. Cain, 9 So. 2d 373, 375 (Fla. 1942).

Whatever remnants of the tattered economic partnership model that remained after the Florida Constitution and Florida Statutes gave women equal property rights with men were further frayed when the legislature was compelled to make the dissolution of marriage statute and alimony provisions gender neutral as to not violate constitutional equal protection rights. Any shred of basis for an economic partnership model of marriage was torn asunder by the abrogation of the doctrine of necessaries in Connor v. Southwest Florida Regional Medical Center, Inc., 668 So. 2d 175 (Fla. 1995).

In Connor 668 So.2d , the Florida Supreme Court, when given the option of applying the doctrine of necessaries (the responsibility of the husband for the debts of the wife to third parties) equally to husbands and wives or abrogating the doctrine chose the latter. The Court determined it should abolish the doctrine. It determined it was the duty of the legislature, if it so chose, to create public policy by deciding whether to apply the doctrine equally to husbands and wives.

The final demise of economic partnership and the firm establishment of the model of economic independent parties in a marriage was cemented when the legislature, in 1996, with two different bills tried unsuccessfully to reinstate the doctrine. See Fla. HB 1211 (1996); Fla. SB 906 (1996).

Judge Overton’s dissenting cry did not prevail in the Connor 668 So.2d opinion. We do not need to interpret the consequences of the Connor 668 So.2d opinion, Judge Overton himself tells us the effect and meaning of the decision. ..“In this day and age, we should not weaken the obligation of marriage by eliminating the spousal duty to care for one another.” He also tells us…“The majority’s decision to abrogate the common law doctrine of necessaries departs from the partnership theory of marriage...”

Critically important is the clarion significance Judge Overton recognized the Connor 668 So.2d opinion to be…

“The majority’s abrogation of the doctrine of necessaries appears to shift the policy of the State by, in effect, requiring each spouse to take care of himself or herself. It also reduces the legal obligations of the marriage contract.”

Overton recognized the Connor 668 So.2d opinion eliminated the spousal duty to care for one another. He recognized the opinion departed from the partnership theory of marriage. He recognized the opinion changed the policy of the State to require each spouse to care for himself or herself. He recognized the reduction of the legal economic obligations of the marriage contract. This Court must do the same.

The Florida Supreme Court has declared the parties within a marriage economically independent. After dissolution of the marriage § 61.08 Fla. Stat., contrary to Connor 668 So.2d, makes the prior economically independent parties economically dependent.

INTERESTING READING:
* The Great Divorce by Stephen Baskerville
* Equal Marriage NOW: Talking Points. Point of view from the feminine side. They too agree that government has no business intruding in our personal lives.
* Lawsuit seeks to bolster state law on shared parenting. The suit claims Ohio is violating the constitutional rights of more than 900,000 parents and their children, and seeks damages of more than $2.7 trillion.

EXAMPLES OF A JUDICIAL SYSTEM GONE AWRY:
* Mid-Moraine Municipal Court Judge Daryl Laatsch, now under scrutiny by the state Supreme Court after an ethics complaint was filed against him by the state’Judicial Commission.
* Appeals Court Dismisses Spargo's Judicial Commission Challenge. Spargo claimed that the commission itself is unconstitutional and is enforcing the Rules in a discriminatory manner, and find them to be equally without merit.

LEGAL INFORMATION AND RESEARCH CORNER
* FindLaw for the Public

WOMEN RULE: MORE ON THE SUBJECT:
* Men Step Aside, The Rad-Fems Are Set To Win the Culture War. There is little about contemporary feminism that can legitimately be viewed as promoting gender equality.
* New Record Set for Women's Political Representation in New Jersey

Right to Privacy - Part 6

Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy
.-- Louis D. Brandeis (part of his dissent in the case "Olmstead v. United States", 277 U.S. 438, 485 (1928))

------------------------------------

Legal Arguments:

F. The Search for a Compelling State Interest

In Public Policy

What public policy rises to the level of a compelling state interest to permit the state to invade the privacy area of marriage? Whatever the compelling interest, if it were compelling, all dissolution of marriages should be examined whether contested or uncontested to assure the policy was fostered. If there is a compelling state interest there should be no difference in how the courts treat parties of a marriage regardless of the length of the marriage. The compelling interest should be determinative as to permanent spousal support, not the length of the marriage, not whether the dissolution is contested, not the 217 factors in § 61.08, and the public policy interest should be called compelling and be contained in the purposes provision of the statute.

Any concern for "keeping the spouse off the public dole" undoubtedly originated at the time of coverture. Such thinking is not realistic today in light of Federal and State legislation, State judicial rulings, the equal employment opportunities available in the marketplace and Connor 668 So.2d. If indeed this was or is a public policy, why then is it not applied uniformly to all marriages regardless of length? Also the logical extension of the reasoning approaches absurdity because the reasoning flows that all a party need do to avert a life of poverty is to enter marriage for a long enough period of time dissolve his/her marriage and thus be afforded legislative and judicial protection from poverty for life-even as here if it puts the paying spouse into poverty.

Another concept offered as the reason for permanent spousal support is that a former spouse should not be placed in peril of poverty if a supporting former spouse can pay, Pimm v. Pimm, 601 So.2d 534 (Fla.1992). This is not a compelling State interest. If a spouse avoiding poverty was a purpose of Chapter 61 Fla. Stat. alimony provisions it was not listed in the purposes of the statute. There is further evidence the legislature does not have a strong concern for spouses being placed in peril of poverty. It has not consistently legislated the public policy. One example is the repealed motorcycle headgear protective law, § 316.211 (b) Fla. Stat. The State permits one older than twenty-one years who carries only $10,000 of health insurance to ride a motorcycle without a helmet. It makes no provisions for spouses or minor children whose breadwinner may die or be permanently disabled from an accident. The legislature does not require a married supporting spouse who rides a motorcycle without a helmet to carry life insurance for his spouse or mandate he must wear a helmet. If the State does not impose the duty of a life insurance policy on a married motorcyclist to protect spousal support during marriage, how can the State have a compelling reason to require him to carry life insurance for the spouse after dissolution of marriage? Under the current unconstitutional support laws it is not hard to conceive that in a court somewhere in Florida there is a dissolution proceeding pending where a supported spouse is petitioning the Court that because the supporting spouse rides a motorcycle he should be compelled to wear a helmet or purchase life insurance to assure lifelong spousal support. If the economic survival and betterment of the married parties was a legislative concern it seems that it would have been addressed when §316.211 (b) was passed.

INTERESTING READING:
* Time to Defund Feminist Pork - the Hate-Men Law by Phyllis Schafly

LEGAL INFORMATION AND RESEARCH CORNER:
* Law.com Dictionary: Find out the meaning of legal terms.
* Statutory Exemptions and Garnishments

EXAMPLES OF A JUDICIAL SYSTEM GONE AWRY:
* Judges On Recess-Part 1
* Judges On Recess-Part 2

WOMEN RULE: MORE ON THE SUBJECT
* Strong, married women rule. How the media shows the trend of how men are portrayed in society. The new trend elevates wives and relegates husbands to playing second fiddle, particularly in prime-time dramas. They say that it is a result of the maturing of a medium that mirrors changes in society.

RELATED WEBSITES:
* BAD JUDGES And What to Do About Them

Right To Privacy - Part 5

"This is a court of law, young man, not a court of justice." -- Oliver Wendell

--------------------------

Legal Arguments:

F. The Search for a Compelling State Interest

In the Law

After Connor 668 So.2d, and independent of Connor 668

So.2d, there is no legal doctrine supporting a compelling State interest for
lifetime support of one spouse to another. The above noted legal origins of
spousal support provide no legal basis, let alone a legal doctrine, for
statutorily mandated lifetime spousal support after the dissolution of marriage.

Certainly the State cannot articulate a compelling reason to require permanent
postdissolution spousal support, let alone set a standard of support to a former
spouse to be at the level of the lifestyle of the marriage as held in
Canakaris 383 So.2d 1197 (Fla.1980). There is no evidence in the opinion
that the Canakaris standard was anything but an arbitrary choice made to resolve
the conflict of a multiplicity of standards established by district courts
prior. There is no statement of public policy or expression why that standard
was chosen over the others. More important, the ruling now violates the Privacy
Amendment and conflicts with Connor 688 So.2d.

The Supreme Court in Canakaris 383 So.2d changed the standard it
established only six years earlier in Kennedy v. Kennedy, 303 So.2d 629,
631 (Fla. 1974) when it interpreted the public policy of the State to be if a
spouse had the capacity to make her own way through the remainder of her life
without her spouse's assistance the courts could not require alimony other than
for rehabilitative purposes.

In six short years, in Canakaris 383 So.2d, the court ratcheted up the
standard to the lifestyle of the marriage. In light of the Privacy Amendment and
Connor 688 So. 2d it is not the place of the State, and especially the judicial
branch, to determine and assume whether a former spouse can make her own way
through the remainder of her life. Now with the subsequent passage of the
Privacy Amendment and the Connor 668 So.2d opinion such rulings and the statutes
upon which they are based do not muster to a compelling State interest. The
rulings and the Statutes fail the compelling State interest test and are
therefore unconstitutional.

All dissolution proceedings are to be in Chancery with the mandate the doctrine
of equity be applied. (See § 61.011 Fla. Stat., § 61.08 (2) Fla. Stat.) Equity
is not a compelling State interest.

INTERESTING READING:
* Navigating The Former Spouse Protection Act. What happens to military
pensions in a dissolution of marriage?
* The Criminalization of Fatherhood: Family Court Most Powerful Branch of the
Judiciary by Stephen Baskerville

LEGAL INFORMATION AND RESEARCH CORNER:
* Harvard Law School Library

EXAMPLES OF A JUDICIAL SYSTEM GONE ASTRAY:
* A System of Injustice America Locked Up
* Judge under scrutiny again
* Judge is accused of bias in Allen affair

RELATED WEBSITES OF INTEREST:
* Mens Activism News Network

Right To Privacy – Part 4

“Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.” -- Theodore Roosevelt (1858 - 1919)

------------------------------------

Legal Argument:

D. No Compelling State Interest

N. Fla.. Women's Health 866 So.2d, 650,

"Thus, it is not sufficient for the State to merely offer important interests as
justification for state interference with a protected fundamental right. The
State must also establish that an actual and substantial connection exists
between the statute and the interests advanced. See, e.g., Shaktman, 553 So. 2d
at 152"

1. Consistency in Legislation of the Interest
Any interest offered by the state as “compelling” must demonstrate legislative consistency, must be minimally applied and must be proven to be further by the alimony statute.

An important judicial criterion for whether a state interest reaches the lofty threshold of compelling is consistency by the legislature in all legislation put forth that implicates that interest. N. Fla. Women’s Health 866 So.2d, n76 and Lewis concurring,

“n79 I note that we have at least twice relied on legislative consistency in upholding statutes against claims of invasion of
minors' privacy under strict scrutiny analysis. See Jones v. State, 640 So. 2d 1084, 1085 (Fla. 1994) J.A.S. v. State, 705 So. 2d 1381, 1386 (Fla. 1998)…… Thus, Justice Wells' concern that legislation will be unable to meet the "exacting test" of legislative consistency is belied by our own precedent…… Thus, the legislative justification for the privacy intrusion based upon the "uniqueness" of the abortion decision is undermined by the failure of the Legislature to consistently legislate in the area.”

“Lewis concurring;
I am compelled to concur in the result attained today only upon application of the principle originally constructed by the majority in In re T.W., 551 So. 2d 1186 (Fla. 1989), requiring legislative consistency as an essential element in the "compelling interest" constitutional analysis.”

If a compelling state interest exists it must encompass and be applicable to a statement cited in 3 DCA opinions, “Similarly, a receiving spouse can squander alimony payments on gambling and liquor without these acts resulting in a downward modification [of alimony]”. See Phillippi v. Phillippi, 148 Fla. 393, 4 So. 465 (1941); Horner v. Horner, 222 So. 2d 791 (Fla.2d DCA 1969)” Springstead v. Springstead, 717 So. 2d 203, 204 (Fla. 5th DCA 1998). No conceivable state interest can exist, let alone a compelling state interest to encompass the concept expresses by these three appellate courts.

2. Purposes of § 61.08 Fla. Stat., i.e. § 61.001 Fla. Stat.
The courts lack the authority to add words to a statute or in the absence of an ambiguity to go beyond the plain meaning of the words.
Richardson 766 So. 2d states,

“We are also wary of actually judicially amending the statute by adding language that the Legislature so clearly did not intend to use. If this Court were to construe the statute narrowly by inserting… we would in effect be rewriting the statute and changing it in a manner not intended by the Legislature. As we have previously explained, courts should refrain from reading elements into a statute that plainly lacks such additional elements. See Schmitt, 590 So. 2d at 414.”

Chapter 61 Fla. Stat. contains a specific provision of the purposes of Chapter 61 Fla. Stat. § 61.001 Fla. Stat. limits the scope of judicial inquiry as to the purposes of all of Chapter 61 Fla. Stat. In the “Dissolution of Marriage” statute the legislature, as in N. Fla. Women’s Health 866 So. 2d did not label the state interest as important and compelling when it specifically crafted its purposes in § 61.001 Fla. Stat. N. Fla. Women’s Health 866 So,2d, n76,

“n76 . The Legislature also identified the following purposes in enacting the parental notification statute, but did not label them as ‘important and compelling’ state interests:”

INTERESTING READING:
* Section 1983 Litigation: Fundamental issues that arise in litigation under 42 U.S.C. § 1983, the statute for redressing constitutional and federal statutory violations, and the case law interpreting those issues.
* Jeb Bush, Governor of the State of Florida, letter to Glenda Hood, Secretary of State regarding his approval of the co-habitation Senate Bill 152*

LEGAL INFORMATION AND RESEARCH CORNER:
* MacMillan Law Library Electronic Reference Desk. Good for background research.

EXAMPLES SHOWING THAT JUDGES CAN MAKE MISTAKES TOO:
* American Judicial and Legal Corruption Blog.

RELATED WEBSITES OF INTEREST:
* Equal Justice Foundation
* End Alimony Now. Another website joining the crusade.

Right To Privacy – Part 3

“I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law.”
-- Martin Luther King Jr.

-----------------------------------------------

Legal Argument:

C. Standard of Analysis—Strict Scrutiny

The Right of Privacy having attached to the alimony provisions, § 61.08 et al. Fla. Stat., they are presumptively unconstitutional, and require strict scrutiny review.

N. Fla.. Women’s Health, 866 So.2d, n16 reiterates the oft cited standard of analysis that must be applied when a challenge is raised that a statute infringes a fundamental right, here the Right of Privacy,

“Under ‘strict’ scrutiny, which applies inter alia to certain classifications and fundamental rights, a court must review the legislation to ensure that it furthers a compelling State interest through the least intrusive means. The legislation is presumptively unconstitutional. The standard of proof is as follows: the State must prove that the legislation furthers a compelling State interest through the least intrusive means. See generally In re T.W., 551So. 2d 1186, 1193 (Fla. 1989).”

Florida High School Activities Ass'n. v. Thomas, 434 So. 2d 306, 308 (Fla. 1983) (stating that the strict scrutiny is a "harsh standard [which] imposes a heavy burden of justification upon the state")
N. Fla.. Women’s Health, 866 So.2d, 647 and n75 says,

“Moreover, under strict scrutiny review, the State cannot meet
its heavy burden simply by stating that the interests are compelling without proof from the State that the compelling interests are in fact furthered by the statutory intrusion into the protected fundamental rights, and that the statutory intrusion is the least intrusive means to achieve that goal.” [Emphasis added]

“n75 . Although case law from this Court applying the strict scrutiny standard articulates the first prong of the strict scrutiny review as a single inquiry, see, e.g., T.W., 551 So. 2d at 1193; Von Eiff v. Azicri, 720 So. 2d 510 (Fla. 1998), in reality the first prong involves two interrelated inquiries: (a) whether the State has carried its "heavy" burden of establishing a compelling interest; and (b) whether the State has carried its "heavy" burden of establishing that the statutory scheme in fact serves or furthers that compelling state interest.”

And other quotes in N. Fla. Women’s Health 866 So.2d, 647,

“We have found no cases in which this Court applied . . . a narrowing construction to a statute challenged solely on the basis that its clear provisions violate a substantive constitutional right. The likely reason for this result is that the constitutionality of the statute, depending on the substantive right involved, depends solely on whether the statute passes the . . . strict scrutiny test[]. . . . Such a statute is unconstitutional under any circumstance unless the State satisfies its burden of establishing a compelling state interest.” Richardson v. Richardson, 766 So. 2d 1036, 1041 (Fla. 2000)

“Just as our obligation to exercise restraint when reviewing statutes is paramount under rational basis review, our obligation to protect fundamental rights is paramount under strict scrutiny. Indeed, the United States Supreme Court has specifically held that ‘when we are reviewing [**93] statutes which deny some residents [a fundamental right], the general presumption of
constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a 'rational basis' . . . are not applicable.’” Kramer v. Union Free School District, 395 U.S. 621, 627-28, 23 L. Ed. 2d 583, 89 S. Ct. 1886 (1969).

“The very basis of a strict scrutiny analysis is that this is the one level of review that cannot allow for deference. This Court is ‘bound’ to construe constitutional rights, which ‘operate[] in favor of the individual, against government,’ so as to ‘achieve the primary goal of individual freedom and autonomy.’” Traylor v. State, 596 So. 2d 957, 963 (Fla. 1992).

GOOD READS:
* "Those Whom God Hath Joined Together Let No Man Put Asunder"
* PBS Portrays Known Child Abuser as Hero. An example of how myths are perpetuated by media distortion.

LEGAL INFORMATION AND RESEARCH CORNER:
* List of states Attorney Generals. After selecting your state, you can then search on a subject to see what opinions the AG has issued related to the statutes. These are citable in your motions and pleadings.

* EXAMPLES SHOWING THAT JUDGES CAN MAKE MISTAKES TOO:
* Judicial Accountability Reform Needed. Follow the link in the article for more behind the reform movement.
* Olive Town Justices Censured For Refusing To Enforce Speed Limit.