Georgia Politics, Campaigns, and Elections for June 26, 2012


Georgia Politics, Campaigns, and Elections for June 26, 2012

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Georgia Politics, Campaigns, and Elections

Yesterday was Supreme Court day, with the United States Supreme Court handing down a decision on Arizona’s immigration reform statue, and denying certiorari for the Tri-State water case involving Georgia, Florida, and Alabama. A lot of attention was paid to a decision by the Georgia Supreme Court involving payouts for diminished value of buildings after insurance payouts, and Governor Deal’s appointment of a new Justice of the Georgia Supreme Court.

Shortly after 10 AM yesterday, the US Supreme Court released an opinion in Arizona v. United States, involving the state’s immigration reform law, to which Georgia’s HB 87 is often compared.

Click Here

SCOTUSblog has a plain English analysis of the arguments in the Arizona case, which happens to have been argued by Paul Clement, who also argued for Georgia in the Obamacare case. SCOTUSblog also has a plain English analysis of the decision. Please excuse the extended excerpt:

while the Court acknowledged that Arizona had valid concerns about the effects of illegal immigration, the Court explained that the federal government’s power to regulate immigration is “extensive and complex.”  Among other things, the Court emphasized that it is “fundamental” that foreign countries be able to communicate with just one government – the federal government – about immigration issues; equally important is the “broad discretion” that the federal government has when it decides whether and how to enforce immigration laws.

the Court then turned to the four provisions of S.B. 1070 at issue in this case.  First up was Section 3, which makes it a crime to fail to carry valid immigration papers while in Arizona.  The state had argued that this provision should survive because it essentially does the same thing as federal law, which also requires immigrants to carry valid papers.

the Court explained that Congress had already made clear that it would provide the full (and only) set of standards to govern when and how immigrants must register with the federal government – a concept known as “field preemption.”   When Congress has provided this full set of standards, the Court continued, state efforts to govern the same thing cannot be valid, even if the state laws and regulations are identical to the federal ones.

The Court next turned to Section 5(C) of S.B. 1070, which would make it a crime to apply for or hold a job in Arizona unless you have valid immigration papers.  Unlike Section 3, Section 5(C) has no counterpart in federal law.  But the Court again relied on the concept of “field preemption” to hold Section 5(C) invalid. [The court] explained, Congress made a “deliberate choice” not to criminalize the very conduct that Arizona now seeks to make a crime.

The third and final provision that the Court struck down was Section 6 of S.B. 1070, which … would allow police officers to arrest someone without a warrant if the police officer has probable cause to believe that the individual has done something that would justify his deportation from the United States. Because Section 6 would give state law enforcement officials a much broader power to make arrests than under the federal system, the Court concluded, it cannot stand.

Section 2(B) of S.B. 1070, which requires police officers to check the immigration status of anyone whom they arrest or detain and allows them to stop and arrest someone if they believe that he is an undocumented immigrant [was upheld for the time being]. The Court relied heavily on the fact that Section 2(B) requires police officers to contact the federal government to verify an individual’s immigration status….

The Supreme Court made quite clear that the key to the provision surviving in the future will be whether it is interpreted in a way that does not prolong detentions of people who are stopped by police.

Governor Nathan Deal, who signed House Bill 87, was cautiously optimistic about the impact of the Arizona case on Georgia’s law:

“We’ll have to wait to see how the ruling on the Arizona immigration law will affect our state’s enforcement reforms because Georgia’s law is not identical to Arizona’s. That said, it appears the court has upheld the major thrust of our state’s statute: That states have the right to assist in enforcing federal immigration law.”

Attorney General Sam Olens said:

“I am pleased that the Supreme Court recognizes that states have an important role to play in upholding the law.  I look forward to further proceedings in the Eleventh Circuit regarding Georgia’s immigration reform law in the light of this decision.”

Further analysis of the impact of the Arizona decision on Georgia’s law is likely to trickle out over the coming days, as lawyers and commentators get a handle on what the case said.

According to the Marietta Daily Journal:

State Rep. Rich Golick (R-Smyrna) said the provisions in the Arizona law that the Supreme Court struck down are not in the Georgia law he helped write last year.

Moreover, Golick said, “the Arizona provision the Court upheld goes further than the Georgia law, so it seems as if the Georgia law had a good day at the Supreme Court, and it seems to validate the measured approach taken by (state Rep. Matt Ramsey, a Peachtree City Republican) and myself.”

State Sen. Judson Hill (R-east Cobb) said…. “Today’s ruling confirms our belief that not only was Georgia’s House Bill 87 an important step in protecting taxpayers from the social and economic consequences of illegal immigration, but the statute was also drafted to withstand constitutional scrutiny. At the state level, we must continue to create laws and provisions which protect those who are here legally.”

Immigration reformer D.A. King of the Dustin Inman Society called the ruling “a huge loss for the anti-enforcement coalition here and in the White House and a victory for the majority of Georgians who are pro-enforcement.”

King said, “[w]e know that attrition of the illegal alien population through enforcement of the law works where elected officials have the courage to move forward.”

Atlanta immigration lawyer Charles Kuck suggests that HB 87 supporters are celebrating too early. Kuck suggests that Georgia’s implementation of immigration status checks will determine whether it is upheld by the Eleventh Circuit Court of Appeals.

For Georgia to avoid having that law overturned based on arguments that such checks amount to racial profiling, officers would have to investigate the immigration status of every person they detain, said Kuck. He said it was a mistake for supporters of the law to interpret the high court’s ruling as a victory.

“This is a massive defeat for those who believe states can regulate immigration,” Kuck said. “I think it’s funny that anybody could read that decision and come to any other conclusion.”

“I don’t think this is a total victory for our side by any stretch of the imagination,” said Mary Bauer, legal director of the Montgomery-based Southern Poverty Law Center, which is challenging Alabama’s law. “But I think it’s a blow to other states that would think about going down this road.”

State Rep. Matt Ramsey, (R-Peachtree City), who wrote House Bill 87, disagrees with Kuck:

Ramsey doesn’t see the court’s ruling the way Kuck does.

He says that’s because three Arizona provisions, the court struck down, do not mirror any part of Georgia’s law.

He says the part that does was upheld by the justices, “allows state and local law enforcement officers the ability to check immigration status of criminal suspects.”

Immigration attorney Charles Kuck and state representative Matt Ramsey differ on which provisions matter the most.

But both agree the Supreme Court’s ruling lays the foundation for a possible decision on a challenge to Georgia’s immigration law.

Kuck is optimistic the law will be ruled unconstitutional.

However Representative Ramsey maintains, “not only was HB 87 a good step for protecting Georgia taxpayers from bearing the costs of illegal immigration it was also drafted to withstand constitutional scrutiny.”

On his blog, State Rep. Ramsey wrote:

“I look forward to reading the opinion in its entirety, but I am pleased that the United States Supreme Court has recognized that the states do clearly have a role in enforcing our nation’s immigration laws. By upholding an Arizona provision that is similar to a provision in Georgia’s law, which allows state and local law enforcement officers to check the immigration status of criminal suspects, the Supreme Court has confirmed that states can implement this common-sense and important public safety measure. Today’s ruling confirms our belief that not only was Georgia’s H.B. 87 an important step in protecting taxpayers from the social and economic consequences of illegal immigration, but the statute was also drafted to withstand constitutional scrutiny.”

The second major decision by the U.S. Supreme Court that will affect Georgia was announced with no fanfare, but simply noted that the cases involving the water dispute between Georgia, Florida, and Alabama were denied certiorari, meaning the Court will not hear the case and the lower court decision stands. (If you hit that link, the disposition is on page 9 of the .pdf). Florida flew a pair of jean shorts at half staff from their state capitol.

WABE reviews the process of the case:

In 2009, a federal judge ruled Congress never intended for Lake Lanier to supply drinking water for Metro Atlanta. Alabama and Florida liked that ruling because they don’t want the Atlanta area sucking up water that could be going to their states.

Georgia appealed that ruling to the federal appeals court in Atlanta and won last year. In other words, Metro Atlanta can use water from Lake Lanier. In response, Alabama, Florida and others asked the U-S Supreme Court to step in. In its announcement, the nation’s highest court said it will not step in.

Now that we know Metro Atlanta can drink from Lake Lanier, the next question is how much? Chattahoochee River Keeper Executive Director Sally Bethea says the Army Corps of Engineers has been working on an answer to that question.

“Once they have done that, then the three states should be able to sit down and have a lot of the facts at their disposal to come up with some water sharing agreement,” said Bethea.

Jeremy King, a spokesman for Alabama Governor Robert Bentley, told WABE Alabama is disappointed will continue to fight. Lane Wright, a spokesman for Florida Governor Rick Scott, told WABE Florida is also disappointed and Governor Scott is exploring all options to ensure Florida’s needs are met.

In Metro Atlanta, the decision was widely hailed as a victory:

governors from the three states must reconvene negotiations over water rights — and it means Georgia will be in a much stronger position when that occurs. All three states are also eagerly awaiting a decision, expected later this week, by the Corps on the allocation of water from the man-made reservoir.

Monday, however, was a time of celebration for Georgia government and business leaders.

Shortly after the high court made its announcement, Sam Williams, president of the Metro Atlanta Chamber, took the stage at a Rotary Club of Atlanta meeting wearing a broad smile.

“We can legally drink the water of Lake Lanier,” Williams said to booming applause throughout the banquet hall.

The much-anticipated decision could have monumental ramifications for economic development across the state and growth of the metro region.

Some companies have been hesitant to move to or expand in Atlanta, given the uncertainty of water supply, Williams said.

Georgia must not only negotiate with its neighboring states, it must also satisfy a number of federal regulators, including the U.S. Fish and Wildlife Service, the Environmental Protection Agency, the National Marine Fisheries Service and the Corps.

The 11th Circuit’s ruling tasked the Corps with deciding how much water metro Atlanta can use from Lake Lanier.

Gwinnett County Commission Chair Charlotte Nash told the Gwinnett Daily Post:

“This is great news for Gwinnett and the state of Georgia. We are very pleased that the arguments for the authorization of water supply are now over, and we’re grateful for the state’s efforts and leadership during this litigation. We understand the Corps of Engineers is working to determine how much of the storage in Lake Lanier can be used for water supply, and we eagerly await their results.”

Attorney General Sam Olens released a statement:

“I am pleased that the U.S. Supreme Court has denied certiorari and the excellent decision by the Eleventh Circuit is the law – making clear that Lake Lanier can indeed be used for water supply for Georgia. It is my hope that we can finally put this decades-long legal dispute to rest and work together with our sister states – in meeting rooms, not courtrooms — to develop a fair and equitable water sharing plan and promote a strong and vibrant Southeastern region.”

The Columbus Ledger-Enquirer notes that downstream communities in Georgia may have interests closer to those our neighbors.

Columbus Mayor Teresa Tomlinson said she hopes the competing entities can reach an agreement suitable to all involved.

“Hopefully they can get together and work something out,” Tomlinson said. “The whole state depends on the prosperity of Atlanta, but those of us downstream also depend on the river for our prosperity.

“Hopefully they can reach an agreement fair to all three and balances the interests within the state of Georgia.”

During this decades-old dispute, Columbus’ interests have more closely aligned with Alabama and Florida rather than Georgia. The governors of neighboring Alabama and Florida were not ready to concede. While the last ruling strengthened Atlanta’s hand, it did not by itself address all the issues in a dispute that dates to 1990.

Georgia has spent $18.7 million on outside counsel in the water case, not including approximately 1000 hours by state-employed lawyers.

A third case handed down by the Supremes will have a limited direct effect in Georgia, affecting only 31 Georgia prisoners who were sentenced to life without parole for crimes committed when they were 17 or younger. In Miller v. Alabama, the Court held that a life without parole sentence cannot be mandatory for minors who are convicted, and sent two Alabama cases back to state courts for “individualized” sentencing.

The AJC writes:

Georgia Attorney General Sam Olens’ office and the state Board of Pardons and Paroles said they were reviewing the decision and those 31 cases to determine what — if anything — to do next.

“The impact in Georgia will depend on each individual case,” said Olens spokeswoman Lauren Kane.

Stephen Bright, executive director of the Southern Center for Human Rights, said an assessment of Georgia’s cases, even though the sentence was not mandatory, “would be the prudent thing to do.” Monday’s ruling addressed mandatory sentencing, which isn’t how those a life without the possibility of parole sentence is handed down to juveniles in Georgia.

In this state, a sentence of life without the possibility of parole has been given to juvenile convicts, in most cases, as an alternative to death.

Political consultants everywhere rejoiced as the feeding trough right of free speech upheld in the Citizens United ruling was upheld. From SCOTUSblog again:

Leaving no doubt that the Supreme Court has no intention of putting new restraints on political campaign spending, despite the huge outflow of cash this year, a five-Justice majority on Monday seized on a new case from Montana to solidify the controversial ruling two years ago in Citizens United v. Federal Election Commission.   Only two potential developments might make a difference in the future: if the Court were persuaded to crack down on secrecy in such spending, or if the Court’s own membership changes.  With complete freedom for donors to spend tens of millions, the disclosure of their identities now looms as the next major issue on campaign finance.

The Court was split 5-4 in striking down — without full briefing or oral argument — a 100-year-old Montana state law that banned corporations in that state from spending any of their corporate cash to support or oppose a candidate or a political party.

John Oxendine’s back!

Former Georgia Insurance Commissioner John Oxendine returned to the news with a headline that did not include the words “ethics” or “violation,” as a decision released by the Georgia Supreme Court nearly a month ago could mean changes in the insurance industry.

Bryan Tyson of Strickland Brockington Lewis reviewed the decision on SCOGblog, which covers the Georgia Supreme Court.

Writing for the Court, Justice Thompson explained that the rule in Georgia that required automobile insurers to pay for diminution in a car’s value was based on the idea that the loss of value is an element of loss to the insured. The Court found there was no reason to limit that principle to automobile policies and found the diminution in value applies to the insurance contract at issue in this case.

Here’s how it works: if your car is damaged and the insurance company pays for repairs, it may also include 15 to 20 percent “juice” to cover the fact that you will receive less for the car when you sell it later. This “diminution of value” has been held to be part of the damage you suffered, and is covered by automotive insurance. That principle has now been extended to buildings that are damaged in insurable events.

“This is a big deal for homeowners,” said former Insurance Commissioner John Oxendine, who supported the rule change. “It’s a major sweeping case that’s going to give a lot more rights to the insurance consumer. It’s one of the biggest cases for consumers that’s come down in years.”

The ruling stems from the construction of The Streets of Buckhead development. David Davoudpour, a restaurant chain owner and investor, claimed in 2008 that the severe shaking and vibration on the development site caused structural damage and cracked the foundation of his company’s eight-story property next door, leading to other problems.

His company, Royal Capital Development, received about $1.1 million from his insurer, Maryland Casualty, to cover the damage. But Royal Capital filed a lawsuit seeking up to an additional $5.6 million to make up for the lost property value.

I’m pretty sure this is completely coincidental, but in 2010, I attended a fundraiser in that very building, at the Capitol Grille, which was hosted by the owner to benefit Oxendine’s gubernatorial campaign. I also met George “Call me George” McKerrow at that fundraiser.

Oxendine, who was Georgia’s insurance commissioner at the time of the lawsuit, issued a directive to insurers in April 2010 urging them to consider diminution or face disciplinary action.

“In some cases, even with repair of the property, it is possible that the property may be worth less after the loss than it was prior to the loss,” the directive said.

Experts said many insurance companies didn’t follow the directive, which was rescinded in January 2011 after Ralph Hudgens became insurance commissioner.

Georgia Supreme Court Appointment

Rounding out yesterday’s “State and National Supreme Court Day,” Governor Deal appointed Judge Keith Blackwell of the Georgia Court of Appeals to fill the Georgia Supreme Court seat being vacated by Justice Carley. Announcing the appointment, Deal said

“The Supreme Court will benefit from Judge Blackwell’s experience on both sides of the bench,” said Deal. “His intelligence, many years of experience and dedicated commitment to public service will serve Georgians well in his new role on our state’s highest court.”

Blackwell is a graduate of Cherokee High School, and graduated from the University of Georgia as a Political Science major in 1996 and from the University of Georgia School of Law in 1999. He graduated first in his class both times at UGA.

Gwinnett County Judicial Forum last night

Candidates for open seats on the Gwinnett Superior Court and State Court, as well as for Clerk of Courts, met in a forum sponsored by the Gwinnett County Republican Party last night.

All five touted varied experience — Tracey Mason Blasi, who promises to continue a family legacy that dates back to the 1820s of serving Gwinnett honorably, Chris McClurg, an attorney who once worked as a CFO for a major company, Schrader who [sat] on the Governors Office of Children and Families board, Giles Sexton, who has handled varying types of cases, all the way up to murder, and Robert Walker, a former military lawyer who now serves as a full-time Magistrate judge.

“Isn’t Gwinnett County so lucky to have the quality of campaigns and candidates that have been before you tonight?” one candidate Kathy Schrader said.

“This is a historic time in Gwinnett County,” Schrader said, pointing out that the July 31 election will replace three judges, including retiring Probate Court Judge Jim Clarke. “This is a great opportunity for innovative leadership in Gwinnett County.”

The fireworks came in the State Court race, where Richard Winegarden, who served previously on Gwinnett’s State and Superior Courts, seeks a return to the bench after losing his 2008 reelection campaign.

“If we follow (Winegarden’s) logic, everybody in this room will vote for Obama because Gov. Romney has no presidential experience,” Brantley said, drawing whispers from the mostly Republican audience.

Pam Britt, a defense attorney and Girl Scout volunteer, also pointed out Winegarden’s past loss.

“I won seven elections and I’m proud of that,” Winegarden countered, adding that a comparison to Democrat Barack Obama is “a stretch,” since he is a conservative who had some of the toughest sentencing in the courthouse.

Gwinnett County’s legal community remembered Trey Phillips yesterday, an Army veteran and trial lawyer who died Friday after being hit by a car while riding his motorcycle.

A formal motion was filed in Phillips’s name and Judge Michael Clark issued an order recognizing the man McClurg called “the most zealous advocate for his clients.”

“He was so ferocious in the courtroom,” McClurg said, “but outside of the courtroom he was the nicest fella. He was the best of both worlds.”

Added attorney Bob Giannini: “He 100 percent put his clients’ interest first, and worried about where the chips would fall personally afterward.”

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