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Georgia’s immortal tort juries, sick taxes and death penalties

Highlights and low lights of the current legislative session and all things Georgia law and politics from Gamecock’s Stone Mountain Roost

Georgia and ObamaCare

Attorney General Thurbert Baker, the elected Democratic currently holding a state-wide office in the Peach State, had no duty to join other states in a lawsuit challenging the constitutionality of the individual and state mandates included in ObamaDems’ health care bill. 

DeVine Law favors Republican Governor Sonny Perdue’s decision to engage pro bono counsel to bring the case on behalf of the State of Georgia even if we are pessimistic about the ultimate outcomes after the inevitable many years of appeals.

No doubt that the mandate that individuals purchase Acme Blue Cross and Shield is unconstitutional, but I fear its is easily fixable via the income tax code. In fact, the only explicit mechanism for enforcement of the mandate in the current law is withholding of tax refunds.

As to the unfunded Medicaid mandates, I fear that a challenge is futile give the ongoing option for states to opt-out of the Medicaid program. The Catch-22 is akin to accepting highway funds and 55mph; and probably even the recent edict of King Obama that all states must allow the partners of same-sex couples visit them in the hospital. No word yet on whether patients would be entitled to conjugal visits from opposite sex partners in between surgeries, but I digress. Finally, that the opt-out provisions are quite relevant is illustrated by Insurance Commissioner and GOP gubernatorial candidate John Oxendine’s decision keep Georgia from committing to the 2014-promised Obama-promised “high risk insurance pool.”

But even if the prospects for success were high, it still wouldn’t be an attorney general’s duty to bring such a lawsuit on the threat of impeachment. The discretion to file affirmative lawsuits is inherent in the office.

Moreover, Thurbert Baker is as good a Democrat as there is in this country. He has been an advocate for law enforcement and color blind justice. Gamecock expects to support him for governor even over former Governor Roy Barnes, who we think did a good job despite his failed re-election bid eight years ago, as well as all of the other announced candidates in all parties.

Regretfully, a constitutional amendment (HB 1086) introduced by Senator Calvin Hill (R-Canton) that would have rendered ObamaCare mandate penalties null and void in Georgia, failed in the House (111-61) to garner the two-thirds majority required to amend the Georgia Constitution. However, a regular bill (SB 317) with similar language, has passed the Senate.

Highlights of the 2010 Georgia Assembly

We join others in praising the hospital bed or “sick” tax (HB 307) to close a Medicaid funding shortfall, but that it was made the alternative to needed education cuts of paper-pushing administrators saddens us as we see the GOP caving to the Education Lobby just like Democrats. When will bleeding-heart liberal university professors ever bled their own wallets lest poor people be priced out of a good college education? I’m thinking, never.

One of the fees increased to meet the massive state budget shortfall is the cost of filing fees in the state’s courts. Bravo, as this also serves to deter frivolous lawsuits.

Unnatural tanning is now regulated in Georgia thanks to District 86/Avondale Estates’ Karla Drenner, whose HB 853 was one of only two Democrat-sponsored bill to survive Crossover Day.

After all the discontenting winter Legislator-Lobbyist scandals, the resulting ”ethics” bill was a joke, and gamecock, for one is glad. I favor greater use of the ”vote” ethic and booting the bums out, rather than penny-wise and pound-foolish scrutiny of golf trips and Cabernet Sauvignon lunches.

Low lights

The introduction of a bill (SB 529) to make actions with the ”intent” to secure race-based abortions, a crime. Killing is fine, so long as its within the race!

The death of Stephanie Stuckey Benfield’s criminal record expungement bill that would have prevented prospective employers from seeing most records of arrests, the result of which never resulted in a conviction of the applicant.

The puny ”JOBS” bill (HB 1023) that also shares a bad aspect of the Obama non-stimulus and former President Jimmy Carter’s  new jobs tax credit.

Georgia Supreme Court decisions

 DeVine Law regretfully had to agree with a unanimous court that struck down medical malpractice non-economic damage caps tort reform as violative the “inviolate” right to a jury trial granted in the State Constitution. The $350K cap was disgracefully low, but as the court pointed out, if a legislature can set such a cap, it could also set a $1 cap, thus rendering the right to a jury trial an irrelevancy. But it would appear that unless Americans are ready to embrace “loser pays” (and this American does not), our ability to effect real tort reform is going to be limited absent constitutional amendment majorities.

Thankfully, the tougher ”clear and convincing” evidentiary standard in emergency room medical malpractice cases portion of Tort Reform was upheld on a 4-3 vote.

Finally, we vehemently disagreed with the court’s decision in Weis v State, which held that years-long delays due to death penalty indigent defense budget shortfalls did not violate one’s right to a speedy trial. The court would not compel the state to try the accused for life without parole, which they were financially able to secure now.

Mike DeVine’s Charlotte Observer, Atlanta Journal-Constitution and Minority Report columns

“One man with courage makes a majority.” – Andrew Jackson

Originally published at The Minority Report

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