Thursday, November 03, 2005

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:”

* 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*

MacMillan Law Library Electronic Reference Desk. Good for background research.

* American Judicial and Legal Corruption Blog.

* Equal Justice Foundation
* End Alimony Now. Another website joining the crusade.