Monthly Archives: August 2016

There’s a big election coming up on Aug. 30th involving primaries, judicial elections, and some other important matters. Everyone focuses on the big ticket races – the Florida Senate primaries, key Congressional elections and the Mayor’s race. This post, however, is about a key (and lengthy!) part of downballot – the judicial elections. Most voters don’t focus on these, and indeed information is very hard to come by. There are nine judicial elections on the August 30, 2016 ballot in Miami-Dade (see your sample ballot here). This post covers the five 11th Circuit Court races; my next post Real Soon Now (TM) will cover the County Court.

Summary of Circuit Court recommendations

Group 9: Jason Edward Bloch (line 80)
Group 34: Renee Gordon (line 83)
Group 52: Carol “Jodie” Breece (line 87)
Group 66: Robert Joshua Luck (line 90)
Group 74: George “Jorge” A Sarduy (line 93)

Unlike most law professors I know, I support the idea of judicial elections at the state level as a reasonable democratic check on what I believe should be the expansive power of judges to interpret the state and federal constitutions.

As I’ve said before, if it were up to me, I’d have the executive branch pick judges with legislative confirmation, followed by a California-style retention election every few years in which there would be an up or down vote on the incumbent. If the vote was down, the executive would pick a new judge. It seems to me that the right question is “has this judge done a good (enough) job” — something voters might be able to figure out — rather than asking voters to try to guess from electoral statements which of two or more candidates might be the best judge.

Florida’s system uses appointment plus retention elections for Supreme Court Justices and District Court of Appeal Judges, but not for trial courts. The Governor can appoint judges to fill vacancies between elections, but otherwise those jobs are straight up elected, so this election pits one or more challengers against the incumbent unless, lacking opposition, the incumbent wins reelection automatically; some trial judges were indeed unopposed this year. There are also open seats when the incumbent retires.

Here’s what my recommendations are based on:

• My personal view is that I will vote for an incumbent judge unless there’s reason to believe they’re doing a bad job. Fortunately, that only happens occasionally.
• After supporting incumbents, my other rule of thumb in sizing up candidates before even getting to the details of biography and practice experience is that in all but the rarest cases of other important life experience we ought to require at least ten years of legal experience from our lawyers before even considering them as judges. Fifteen years is better. I will very rarely support a judicial candidate fewer than ten years out of law school. It just isn’t enough to get the experience and practical wisdom it takes to be a judge.
• I look to see if the candidate filed a voluntary self-disclosure form with the state. Most don’t. After that I look at the Dade County Bar Association Poll in which lawyers rate the candidates’ qualifications. The response rate is not that great on this poll, but I do think that if there’s a large majority one way or the other that tells me something. Sometimes, I’ll also look at the Cuban Bar Association poll also, although again the turnout isn’t amazing. I look out for endorsements by SAVE Dade (a small plus, despite their support for Gimmenez) and Focus on the Family (a small minus). If all else fails, I look at the Miami Herald’s view, although frankly I think the decision-makers there are so terrified of annoying establishment candidates that their endorsement only means something if they buck an incumbent. And when did that last happen?
• And oh yes, I read local blogs and listen to gossip too.

So off we go. There are five Circuit Court elections and four County Court elections in Miami-Dade. Both are trial courts, but the County Courts have a more limited jurisdiction, comprising Misdemeanors, small claims up to $5,000, civil disputes up to $15,000, and traffic court. Circuit Courts also hear some appeals from County Courts, while others go straight to the DCA’s, the District Courts of Appeal.

Circuit Courts, 11th Judicial District

Group 9

This one is pretty easy although candidate Bloch hasn’t helped matters. Judge Jason Bloch, the incumbent was an assistant county attorney for 20 years before being appointed in 2014. His ratings are good (51% exceptionally qualified, 40% qualified). That should be enough surely, even if there’s the occasional rumbling about him?

Challenger Marcia Del Ray, she of the big billboard on LeJeune, highly exaggerated her qualifications in her campaign literature – I would say well to the point of mis-statement. Right there, I can’t see her as a judge. That’s before noting that the bar poll on her is BAD (78% unqualified!) or dealing with the issue that some people also seem concerned about, namely that she, and/or her family, may have some unsavory ties to ‘erotic themed’ hotels. And let’s not even get into the more-smoke-than-fire ballot fraud allegation against her agent or supporter. So a slam-dunk for Bloch, right?

Unfortunately, Judge Bloch had the bright idea to sue Ms. Del Ray for failing to disclose her financial interests (Herald coverage at Lawsuit aims to boot erotic hotel-owning judicial candidate off ballot ). I’m not awed by the complaint, either, which has a certain feel of trying to get more publicity for the erotic motel issue more than really expecting to win. Even, so…

Vote Bloch (Line 80).

Group 34

There are four candidates for this open seat. At least two of them look pretty good. I do have to caution that the bar poll results had a very low response rate for all of the candidates so take with more salt than usual.

Renee Gordon (J.D. University of Connecticut) is an former Public Defender who has been litigating for 20+ years, of which twelve were in private practice. She also has a long resume of working with troubled children in various managerial and legal capacities. This is a great background for a Judge – in the trenches and there for a long time. I’m leaning towards her. Only possible negative – while the bar poll results were good (39% Exceptionally qualified, 49% qualified), the number of respondents was very small.

Mark Blumstein (J.D. Nova Southeastern University Shepard Broad Law Center) is a former Surfside Commissioner now in private practice. Blumstein’s poll results are a bit below Gordon’s (25% & 50%), but also with a small response rate. He’s a JAG in the Naval Reserve, which is a good credential indeed…except maybe he is making too much of it. The controversy about Lt. Cmdr. Blumstein, as he would have it, concerns his very prominent use of photos of him in Navy Uniform in his mailers and on his web page. Under DoD regulations that apply equally to reservists there are strict restrictions on the use of such photos:

Members not on active duty who are nominees or candidates for covered offices may, in their campaign literature (including Web sites, videos, television, and conventional print advertisements):
a. Use or mention their military rank or grade and military service affiliation, but they must clearly indicate their retired or reserve status;
b. Include their current or former specific military duty, title, or position, or photographs in military uniform, when displayed with other non-military biological details. This must be accompanied by a clearly displayed disclaimer that the information or photographs do not imply official endorsement;
c. Use of photographs, drawings, and other similar media formats of the member in uniform cannot be the primary graphic representation in any campaign material. Depictions of the member in uniform cannot misrepresent their actual performance of duty.

(Source: Political Activities Ethic Counselor’s Deskbook (Oct. 2015); see also DoD Directive 1344.10, Political Activities by Members of the Armed Forces sec. 4.3 (2008) (same).)

I didn’t get the mailer that got people the most excited about this (see Anchors Aweigh for some reactions), but one recently retired senior military lawyer who I very much respect told me that he thought the multiple uses of the photos in uniform crossed a line. I’m going to defer to that opinion; we don’t always get the choice in Miami, but ideally we want our judges, however well qualified, to also not push ethical rules. And this is one bracket where we have a lot of choices.

The Herald endorsed Denise Martinez-Scanziani (J.D. U. Fl.), 15 years private practice experience, based on her having an AV rating of “Preeminent”. I personally don’t put much stock in that; I note also that the bar poll results, again on a small sample, give her the same numbers as Blumstein (22%, 52%), ie a bit below Gordon. Ms. Martinez-Scanziani (aka Ms. Scanziani), ran before, in 2008, at which time some people made a fuss about her hyphenated name. I thought she dealt with that pretty well although the naivete her reply showed about elections was a little stunning. Eight years later, she’s more experienced as a lawyer and as a candidate, and could be a plausible choice, but I’m still leaning to Gordon.

Luis Perez-Medina has a web page that opens up with blaring audio when you go to it. Be warned. Some people I know think that ought to disqualify you from any office of public trust, but I’m not one of them. (He also can’t spell “ad,” as in advertisement, on his website – he spells it “add”.) He’s an FIU night program law grad with ten years experience as a prosecutor, although Mr. Perez-Medina is older than that makes him sound since he was previously an Insurance agent. I have a lot of time for people who go through night school to be lawyers while working a full time job. It shows a lot of grit and determination. Bar poll results are 18%, 47%, like the two above, again with low response rate. When it’s available, I’d prefer a candidate who’s got more experience as a lawyer, and this group has them. Plus, Mr. Perez-Median trumpets the fact that he is endorsed by Commissioner Bovo, who is surely one of the worst Commissioners we’ve got. That is a big negative.

I’m voting Gordon (line 83)

Group 52

There are three candidates for this open seat.

Dismiss Rosy Aponte (Nova), a sole practitioner with only eight years experience (that’s enough reason to dismiss her right there) and–allegedly–an an unfortunate history (please note that I have not been able to confirm these allegations; I will update here if I learn more). [UPDATE 8/23/16: It’s possible that these allegations relate to this trial transcript.] [UPDATE2 8/26/16: Thanks to an intrepid law librarian, I’ve learned that  a bar complaint was filed against Ms. Aponte, but the case was closed on January 12, 2016 by the bar’s grievance committee, as no probable cause was found.] She has a 60% UNqualified rating from the bar poll – again, though, on a very low response rate.

The race is between Carol “Jodie” Breece (U.Md. Law) the ethics counsel for the Broward County Inspector General’s Office [yes, not an oxymoron], a former trial attorney and Miami-Dade assistant state attorney and Oscar Rodriguez-Fonts (J.D. UM), a former Miami city attorney and Miami-Dade public defender.

Bar poll gives Ms. Breece 33% exceptionally qualified, 57% qualified; Mr. Rodriguez-Fonts gets 20% and 61%, so a slight edge to Breece there.

Both candidates have exactly the right sorts of experience, although Breece has 25 years to Rodriguez-Fonts’s 15 years. Breece has the SaveDade endorsement, and several unions; unsurprisingly the police endorsed the prosecutor over the PD. Breece’s web site states that, “When elected, Jodie will be the first Asian American trial judge in Miami in 40 years and the first female Asian American judge in Miami’s history” because her mother is Korean. I found the word “when” rather arresting.

Both appear on paper to be very credible candidates. The Herald endorsed Breece. Local legal legend H.T. Smith endorsed Rodriguez-Fonts.

Either Breece or Rodriguez-Fonts would seem a fine choice, although I find an edge for Breece (Line 87) unless you are a very strong UM law partisan.

Group 66

This is an easy one. Judge Robert Luck (J.D. U.Fla.) was appointed in 2013 by Rick Scott after five years as an assistant U.S. attorney. In his first contested election he is being challenged by Yolly Roberson (J.D. New England School of Law), a former member of the Florida House of Representatives (D-104) in which she served until being term limited, ending up as a Democratic Whip. She was also an unsuccessful candidate for the US House of Representatives (FL-17). In that race Ms. Robertson ran against not only Frederica Wilson but also against her former husband and law partner.

Being a Rick Scott appointee is a mixed blessing, but Luck has a nice resume, starting with being EIC of the Florida Review, a prestigious clerkship with Chief Judge Edward Carnes of the 11th Circuit; he was an AUSA and Deputy Chief of the Major Crimes section. He’s apparently a good, thorough, if perhaps sometimes somewhat imperious, judge.

Ms. Robertson served as PD in Boston, and is by what few accounts I have a more plausible candidate for a trial judgeship than you might expect given that much of her experience is in politics rather than the courtroom.

Nevertheless, Judge Luck (Line 90) seems a very clear choice for re-election.

Group 74

Incumbent Judge George “Jorge” Sarduy has been on the Circuit Court since 2008. Judge Sarduy is opposed by Elena Ortega-Tauler (J.D. UM), a lawyer in private practice for almost 30 years.

Judge Sarduy’s bar poll ratings are fine (44% exceptionally qualified, 46% qualified) but there’s more than the usual muttering about his courtroom demeanor, which the Herald summarized as follows:

Judge Sarduy has a good record on the bench, but we offer a note of caution: Credible courtroom observers told the Editorial Board that he can be rude at times, particularly to African-American defendants.

Yes, that’s a red flag. But wait. You should vote for him anyway because the alternative is far worse.

Ms. Orteg-Tauler’s bar poll numbers are terrible (9% and 21%), but the sample size is minuscule; for whatever reasons respondents did not seem to know anything about her. (Her CABA poll numbers, again with few respondents, were also terrible.)

According to the Justice Building Blog Elena Tauler also has a pretty troubled history of being sued repeatedly for debt between 1982 and 2007; worse yet, the Florida Supreme Court, after a contested hearing, suspended her for three years, see 775 So.2d 944 (Fl. 2000), citing misappropriation of client funds albeit with some mitigating circumstances.

Don’t let Elana Orteg-Tauler on the bench. Vote Sarduy (93).