Issued last week by the MS Supreme Court was an interesting ruling, 2006-SA-00358-SCT, concerning the CON (Certificate of Need) process in Mississippi. For a slight bit of background I will say that to run a hospital or medical center of some sort in Mississippi you need a CON which is has many, many hoops to jump through and red tape to be crossed. I beleive they all have to start as legislation and the hoops and tape are administered by the MDOH. In this case it appears that the legislature passed a bill in 2004 that would allow a MRI system and a linear accelerator (I think they are similiar but different, but I'm no doctor) to be placed in Starkville with the condition that 2/3 of its operable time be allowed to the University for research purposes and 1/3 of its operable time could be for private use. With this bill the normal CON procedures were waved. The Oktibbeha Co. Hospital (OCH) objected to this, a suit followed and last week the MS Supreme Court ruled on it, saying that this bill was not unconstitutional and that use of these systems through Mississippi State is acceptable.
Now I will provide a bit of my take on this.
OCH was the only game in town for things like a MRI and with this bill they lose their local monopoly. I'm sure they are more upset by the 1/3 time that Premier Radiology is getting than the 2/3 research component for MSU.
I think MSU and more especially Premier pulled a bit of a fast one as Premier used the cover of a research university (really the research university in the state) to get access to machines that can exponentially expand their business without jumping through the hoops and redtape of a CON process.
Finally, I think OCH is pretty unhappy with their lawyers at this point. While the Court didn't completely blast the lawyers for not filing this constitutional challenge with the MS Attorney General's Office, as is required, they did make a remark and strike that entire part of the argument (one of the three issues). The Court didn't buy the argument that because MSU was served and technically the head lawyer at MSU is an AG attorney proper notice was given. This strikes me as a piece of bad lawyering as service and notice are one of the few things that is easy to get right and they didn't do so in this case.
Monday, May 21, 2007
Tuesday, May 15, 2007
Mississippi Legal News of Note
Couple of items I wanted to make sure and pass along in case you had missed them
- Ann Hannaford Lamar of Senatobia was appointed to the Mississippi Supreme Court by Governor Haley Barbour to fill departing Justice Kay Cobb's Northern District post. Lamar is a former Circuit Court Judge for the 17th district and former District Attorney. I know very little about Lamar but she looks qualified and has stayed out of the news for anything that might be considered "bad". On a personal not I would like to say I am glad Barbour appointed a female to replace the only female that was on the Court. I'm not a huge feminist supporter but females make up half of the population of the State there should be at least one on the State's Supreme Court.
- former Court of Appeals Judge and current nominee to the 5th Circuit, Leslie Southwick, has had his confirmation process started with the often contentious questioning before the Senate Judiciary Committee. According to some news articles opposite has arisen due to votes Southwick made while on the Court of Appeals. Southwick responded with [paraphrasing] I voted with an opinion that accurately reflected what the law in Mississippi states. I understand the groups that disagree with what these cases held and don't like Southwick's voting (not authoring) these opinions but a Judge's job is to rule on what is the law, not to make the law and if the law is not unconstitutional then there is not much the judge can do; and further if the law is not challenged as being unconstitutional they shouldn't even consider that. I'm not sure of the background on these complaints but what I have seen looks like certain groups are trying to make a problem where there is none to be made. For more discussion on this nomination I recommend googling Judge Southwick's name and there are many articles and blogs out there this week.
- Ann Hannaford Lamar of Senatobia was appointed to the Mississippi Supreme Court by Governor Haley Barbour to fill departing Justice Kay Cobb's Northern District post. Lamar is a former Circuit Court Judge for the 17th district and former District Attorney. I know very little about Lamar but she looks qualified and has stayed out of the news for anything that might be considered "bad". On a personal not I would like to say I am glad Barbour appointed a female to replace the only female that was on the Court. I'm not a huge feminist supporter but females make up half of the population of the State there should be at least one on the State's Supreme Court.
- former Court of Appeals Judge and current nominee to the 5th Circuit, Leslie Southwick, has had his confirmation process started with the often contentious questioning before the Senate Judiciary Committee. According to some news articles opposite has arisen due to votes Southwick made while on the Court of Appeals. Southwick responded with [paraphrasing] I voted with an opinion that accurately reflected what the law in Mississippi states. I understand the groups that disagree with what these cases held and don't like Southwick's voting (not authoring) these opinions but a Judge's job is to rule on what is the law, not to make the law and if the law is not unconstitutional then there is not much the judge can do; and further if the law is not challenged as being unconstitutional they shouldn't even consider that. I'm not sure of the background on these complaints but what I have seen looks like certain groups are trying to make a problem where there is none to be made. For more discussion on this nomination I recommend googling Judge Southwick's name and there are many articles and blogs out there this week.
Tuesday, May 1, 2007
Mississippi and the Line-Item Veto
There currently is a debate brewing in Mississippi legal/political circles as Governor Barbour has used a line-item veto to eliminate a 5.5 million dollar expenditure that was passed this past legislative session and Attorney General Jim Hood had objected to this. For articles/editorials regarding the veto see here,Clarion Ledger Editorial, and here, Hattiesburg American Article. The appropriate sections of the Mississippi Constitution appear to be Section 73, Section 72, and Section 69 presented below.
The lines seem to be drawn with Barbour relying on Section 73 of the MS Constitution and Hood relying on the the decision in Barbour v. Delta Correctional Facility Authority, 871 So.2d 703 in which the MS Supreme Court ruled a line-item veto as unconstitutional. My reading of this opinion is it was narrowly tailored to address what appears to be a rather unusual situation with correctional appropriations. I found the dissent by (soon to be departing the Court) Justice Cobb more persuasive and helpful to show that there is also case law supporting the ability to use a line-item veto in certain circumstances. What these cases seem to turn on is whether the bill is an appropriations bill (see Sec. 69) or not. Theoretically all appropriations are supposed to be done only in appropriations bills but bleedover is not that uncommon where legislating is combined with funding. If it is an appropriation then the governor can line-item veto, if not then no line-item option. The bills in question here are HB 1681 and HB 1689 both of which appear to be appropriations bill to me and therefore able to be line-item vetoed.
Section 73. Veto of parts of appropriations bills.
The Governor may veto parts of any appropriation bill, and approve parts of the same, and the portions approved shall be law.
Section 72. Approval or disapproval of bill by Governor; veto override process.
Every Bill which shall pass both Houses shall be presented to the Governor of the state. If he approve, he shall sign it; but if he does not approve, he shall return it, with his objections, to the House in which it originated, which shall enter the objections at large upon its Journal, and proceed to reconsider it. If after such reconsideration two-thirds (2/3) of that House shall agree to pass the Bill, it shall be sent, with the objections, to the other House, by which, likewise, it shall be reconsidered; and if approved by two-thirds (2/3) of that House, it shall become a law; but in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the Governor within five (5) days (Sundays excepted) after it has been presented to him, it shall become a law in like manner as if he had signed it, unless the Legislature, by adjournment, prevented its return, in which case such Bill shall be a law unless the Governor shall; veto it within fifteen (15) days (Sundays excepted) after it is presented to him, and such Bill shall be returned to the Legislature, with his objections, within three (3) days after the beginning of the next session of the Legislature.
Section 69. Contents of appropriations bills.
General appropriation bills shall contain only the appropriations to defray the ordinary expenses of the executive, legislative, and judicial departments of the government; to pay interest on state bonds, and to support the common schools. All other appropriations shall be made by separate bills, each embracing but one subject. Legislation shall not be engrafted on the appropriation bills, but the same may prescribe the conditions on which the money may be drawn, and for what purposes paid.
The lines seem to be drawn with Barbour relying on Section 73 of the MS Constitution and Hood relying on the the decision in Barbour v. Delta Correctional Facility Authority, 871 So.2d 703 in which the MS Supreme Court ruled a line-item veto as unconstitutional. My reading of this opinion is it was narrowly tailored to address what appears to be a rather unusual situation with correctional appropriations. I found the dissent by (soon to be departing the Court) Justice Cobb more persuasive and helpful to show that there is also case law supporting the ability to use a line-item veto in certain circumstances. What these cases seem to turn on is whether the bill is an appropriations bill (see Sec. 69) or not. Theoretically all appropriations are supposed to be done only in appropriations bills but bleedover is not that uncommon where legislating is combined with funding. If it is an appropriation then the governor can line-item veto, if not then no line-item option. The bills in question here are HB 1681 and HB 1689 both of which appear to be appropriations bill to me and therefore able to be line-item vetoed.
Section 73. Veto of parts of appropriations bills.
The Governor may veto parts of any appropriation bill, and approve parts of the same, and the portions approved shall be law.
Section 72. Approval or disapproval of bill by Governor; veto override process.
Every Bill which shall pass both Houses shall be presented to the Governor of the state. If he approve, he shall sign it; but if he does not approve, he shall return it, with his objections, to the House in which it originated, which shall enter the objections at large upon its Journal, and proceed to reconsider it. If after such reconsideration two-thirds (2/3) of that House shall agree to pass the Bill, it shall be sent, with the objections, to the other House, by which, likewise, it shall be reconsidered; and if approved by two-thirds (2/3) of that House, it shall become a law; but in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the Governor within five (5) days (Sundays excepted) after it has been presented to him, it shall become a law in like manner as if he had signed it, unless the Legislature, by adjournment, prevented its return, in which case such Bill shall be a law unless the Governor shall; veto it within fifteen (15) days (Sundays excepted) after it is presented to him, and such Bill shall be returned to the Legislature, with his objections, within three (3) days after the beginning of the next session of the Legislature.
Section 69. Contents of appropriations bills.
General appropriation bills shall contain only the appropriations to defray the ordinary expenses of the executive, legislative, and judicial departments of the government; to pay interest on state bonds, and to support the common schools. All other appropriations shall be made by separate bills, each embracing but one subject. Legislation shall not be engrafted on the appropriation bills, but the same may prescribe the conditions on which the money may be drawn, and for what purposes paid.
link to the blog of the cartoonist who did the below cartoon.
Monday, April 30, 2007
National Article regarding MS Governor's race
This isn't a home for promoting certain campaigns but I saw this article regarding John Arthur Eaves, Democratic Gubanatorial candidate, in the Washington Post. It is rare that MS gets national press that isn't derogatory in some manner so when I see an article that isn't taking a swipe at MS I thought I might pass it along.
Link to the article here.
Link to the article here.
Tuesday, April 24, 2007
Camera's in the Courtroom
As I watch the news tonight I can't help but think back 6 or 7 years to a speech I heard in undergrad. The speaker was (then) Mississippi Supreme Court Chief Justice Ed Pittman and the speech was about putting camera's in the courtrooms to help make the courts more transparent. This seemed to be very important for Chief Justice Pittman and has become one of his most notable pieces of his legacy on the bench.
This speech has revisted me with the most recent trial of Frank Melton where a camera in the courtroom has been fed to the Jackson television stations and is live streaming on their websites for anyone to view when court is in session. Additionally, most oral arguments before the Mississippi Supreme Court and Court of Appeals are broadcast on the Supreme Courts website. Back in 2001 I though Justice Pittman's idea of the camera's was good but now it seems as they are actually working as he planned it seems like a terrific idea, allowing us a look into trials ranging from Edgar Ray Killen to Frank Melton to Haley Barbour v. the Partnership for a Healthy Mississippi, all of which were streamed across the state for those who wanted to watch.
For live videos feeds of the Supreme Court & the Court of Appeals see here
For the statement released by the Court when camera's were first allowed see here
For the most recent streaming involving the mayor of our state capital you can go to WLBT, WAPT or WJTV and catch their streams.
This speech has revisted me with the most recent trial of Frank Melton where a camera in the courtroom has been fed to the Jackson television stations and is live streaming on their websites for anyone to view when court is in session. Additionally, most oral arguments before the Mississippi Supreme Court and Court of Appeals are broadcast on the Supreme Courts website. Back in 2001 I though Justice Pittman's idea of the camera's was good but now it seems as they are actually working as he planned it seems like a terrific idea, allowing us a look into trials ranging from Edgar Ray Killen to Frank Melton to Haley Barbour v. the Partnership for a Healthy Mississippi, all of which were streamed across the state for those who wanted to watch.
For live videos feeds of the Supreme Court & the Court of Appeals see here
For the statement released by the Court when camera's were first allowed see here
For the most recent streaming involving the mayor of our state capital you can go to WLBT, WAPT or WJTV and catch their streams.
Wednesday, April 18, 2007
Clarion Ledger doin the hard work
Wanted to make sure and pass along this good compilation. The CL has compiled the Senate voting records for SB - 2391 (Abortion clarifications), 2764 (Disbanding the Board of Health), 2375 (Toll Roads), 3215 (Economic Development), 2470 (felony firearm possession); HB 238 (Education Funding), 423 (Deer Baiting), 1500 (Windstorm, Insurance Law Changes); SCR 621 (food/cigarette tax swap). I encourage you to follow the above links to read the bills for yourselves.
Link
Link
Friday, April 13, 2007
New Laws - SB 2369 - Phys Ed for K-8 Students
The Mississippi Healthy Students Act, SB 2369, was passed this past session requiring Kindergarten through 8th grade students to get 150 minutes of exercise per week and 45 minutes of health per week. Additionally high school students are required to get a .5 credit in phys ed or physical activity. This also appears to create local school health councils with members appointed from parents, teachers, students, administrators and about anyone else you can think of.
For the actual logistics dealing with this new law it looks like in Section 2 paragraph 3 the legislature is supposed to appropriate money to hire a "physical activity coordinator" and the schools must adopt a Wellness Plan by the beginning of the 2006-07 school year (which is almost over) and beginning with the 2008-09 school year the "plan shall also promote increased physical activity, healthy eating habits and abstinence from the use of tobacco and illegal drugs through programs that incorporate healthy lifestyle choices ..." The entire act is effect on July 1, 2007.
The couple of questions I had when reading this is when do schools have to be compliant?, and why wait until 08-09 to put physical activity in the Wellness Plan if the Act is effective July 2007? This bill, SB 2369, looks so bare that you can't really tell what is going on. It makes a blanket statement of more minutes for Phys Ed and Health but no start date because, at least to me, it doesn't appear to be an actual part of a Wellness Plan that doesn't go into effect until 2008 and even if it did what looks like the Wellness Plan seems to be the same thing people have been wanting for years.
My assumptions are that the more Phys Ed starts this August (of 2007) and these magical plans don't have to incorporate Phys Ed until 2008 (which will actually be after they are already in effect).
If anyone can provide clarity on this for me, please do so. I think I agree with the premise but this appears to be a prime example of legislative confusion.
For the actual logistics dealing with this new law it looks like in Section 2 paragraph 3 the legislature is supposed to appropriate money to hire a "physical activity coordinator" and the schools must adopt a Wellness Plan by the beginning of the 2006-07 school year (which is almost over) and beginning with the 2008-09 school year the "plan shall also promote increased physical activity, healthy eating habits and abstinence from the use of tobacco and illegal drugs through programs that incorporate healthy lifestyle choices ..." The entire act is effect on July 1, 2007.
The couple of questions I had when reading this is when do schools have to be compliant?, and why wait until 08-09 to put physical activity in the Wellness Plan if the Act is effective July 2007? This bill, SB 2369, looks so bare that you can't really tell what is going on. It makes a blanket statement of more minutes for Phys Ed and Health but no start date because, at least to me, it doesn't appear to be an actual part of a Wellness Plan that doesn't go into effect until 2008 and even if it did what looks like the Wellness Plan seems to be the same thing people have been wanting for years.
My assumptions are that the more Phys Ed starts this August (of 2007) and these magical plans don't have to incorporate Phys Ed until 2008 (which will actually be after they are already in effect).
If anyone can provide clarity on this for me, please do so. I think I agree with the premise but this appears to be a prime example of legislative confusion.
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