Author Archives: Michael Froomkin

Hiding in Plain View? No: Not Hiding at All

Via TPM, a link to this 2018(!) video by Yale philosophy professor Jason Stanley on whether Trump is a fascist:

Posted in Trump | Leave a comment

You’ll Need a Strong Stomach for this One

NYT, For Trump, a Lifetime of Scandals Heads Toward a Moment of Judgment

Sometimes lost amid all the shouting of a high-octane campaign heading into its final couple of weeks is that simple if mind-bending fact. America for the first time in its history may send a criminal to the Oval Office and entrust him with the nuclear codes. What would once have been automatically disqualifying barely seems to slow Mr. Trump down in his comeback march for a second term that he says will be devoted to “retribution.”

In all the different ways that Mr. Trump has upended the traditional rules of American politics, that may be one of the most striking. He has survived more scandals than any major party presidential candidate, much less president, in the life of the republic. Not only survived but thrived. He has turned them on their head, making allegations against him into an argument for him by casting himself as a serial victim rather than a serial violator.

…and it then details the scandals for two full newsprint pages.

Vote, already.

Posted in The Scandals | Leave a comment

Election 2024 Summary & Downballot Voter’s Guide

[This post will remain on top of the blog until after polls close in Florida on Nov. 5.]

This is a critical election.  You really should vote, and soon. Early voting has begun, so why wait.

Here’s a crib sheet with some suggestions about the downballot, plus links to the posts that explain them.

County Offices

Clerk of Court: Annette Taddeo (Line 71)
Sheriff: James Reys (Line 73)
Property Appraiser: Marisol Zenteno (Line 75)
Tax Collector: David Richardson (Line 77)
Supervisor of Elections: “J.C.” Planas (Line 79)

Judicial Retention Elections

Justices of the Supreme Court
Justice Renatha Francis: NO (Line 81)
Justice Meredith Sasso: NO (Line 83)

3rd DCA
Judge Kevin Emas: YES (Line 84)
Judges Ivan Fernandez: YES (Line 86)
Judge Norma Shepard Lindsey: YES (Line 88)

County Court
Christopher Benjamin (Line 90)

Miami-Dade Commission, District 7
Cindy Lerner (Line 92)

Constitutional Amendments
NO on Amendment 1. (Line 251)
NO on Amendment 2. (Line 253)
YES on Amendment 3. (Line 254)
YES on Amendment 4. (Line 256)
YES on Amendment 5. (Line 258)
NO on Amendment 6. (Line 261)

Reasoned comments are always welcome.

Posted in 2024 Election, Florida, Miami | 1 Comment

Time to Show We Mean it About the Environment

In many ways Rachel Regalado, the incumbent District 7 Miami-Dade Commissioner, has not been as bad as I expected when she got elected. To give her her due, in some ways she’s even been good.

But in one way she has been absolutely terrible, and I think it’s important for voters to make it clear that some things are just not acceptable. As explained at FloridaPolitics.com,

Regalado … voted in November 2022 to override Miami-Dade Mayor Daniella Levine Cava’s veto of legislation expanding the Urban Development Boundary (UDB) so a 379-acre industrial complex could be built just west of Biscayne Bay near Homestead.

It marked the first expansion in nearly a decade of the UDB, which is meant to safeguard agricultural and vulnerable lands from residential and commercial encroachment. Regalado originally opposed the move, but switched her vote after developers increased the amount of wetlands they would buy and donate to offset the project’s impacts.

The UDB needs to be a bright line.  Some developer is always pushing to nibble a piece here, a piece there; pretty soon we don’t have any Everglades. It’s a really big deal to slice off even a small chunk as it sets a terrible precedent.

Regalado’s defenders might say that other than this blemish she has a decent environmental record. Not so. She also supported the attempt to build homes on top of de facto bird sanctuary at the Calusa Golf course. A court put a stop to that, although in typical Miami fashion the bulldozers rolled on for a bit longer.

I’m not quite a single-issue voter on the UDB, but I’m close. As we have a very qualified alternative, former Mayor of Pinecrest Cindy Lerner, I have no doubt that I’m voting Line 92 Cindy Lerner.

Posted in 2024 Election, Miami | Leave a comment

Some Thoughts about the Downballot (Voters’ Guide Part III: Florida Constitutional Amendments)

There are six proposed constitutional amendments on the ballot this year. Two–Amendments 3 and 4–are a really big deal and deserve your support despite the highly misleading campaign against them. Three others–Amendments 1, 2 and 6–are well worth voting against for their subtle negative qualities. Amendments 5 is small beer, but at worst harmless and maybe helpful.

Amendment 1

Amendment 1 would change School Board races from their current formally non-partisan structure to an overtly partisan one. The downside here is that candidates would be selected via partisan primaries, which recent experience suggests tends to push candidates towards partisan extremes. Especially in the current moment, in which forces are trying to hijack school boards in service of MAGA-style culture wars, I don’t see how this does us any good. Again, my claim is not that one system is inherently more representative; rather it’s that School Board elections don’t need to be any more partisan than they already are. Primary supporters of Amendment 1 include the notorious book-banning librarian-witch-hunters known as ‘Moms for Liberty’.  Fortunately, polls suggest this one is doomed. Vote NO on Amendment 1. (Line 251)

Amendment 2

Amendment 2 sounds innocuous. It probably isn’t. It says in part that it “preserves forever the right to fishing and hunting, including by the use of traditional methods, as a public right and preferred means of responsibly managing and controlling fish and wildlife.” The Fish and Wildlife Conservation Commission’s authority is explicitly preserved–but not that of environmental agencies.

Ostensibly designed to protect the right to hunt and fish, the amendment is worded in a way that an activist state Supreme Court (we have one, in case you had not heard) could use this measure to block various conservation and environmental programs.  Vote NO on Amendment 2. (Line 253)

Amendment 3

Amendment 3 would legalize possession of small amount of marijuana–under state law. Federal law criminalizing possession would remain in place. Personally I think the world probably would be a better place if we had less drinking and smoking. But that doesn’t mean they should be crimes. And I think we’d be much better off if we took the anti-pot laws off the books. At present we have managed the odd feat of creating contempt for the law by allowing it to be under-enforced and indeed routinely ignored while at the same time creating more contempt for the law by allowing it to be enforced in a racial (and class-based) manner.

There is a plausible issue as to whether this amendment will allow the legislature to permit people to grow their own or if it might entrench the cannabis dispensary industry. I’m not sure. But even if it does that, this is a step forward. Vote YES on Amendment 3. (Line 254)

Amendment 4

This is the big one. Amendment 4 would carve out a right to abortion in Florida up until viability (no, no post-birth infanticide, thank you very much).

The amount of lying and dirty trickery and sheer illegality deployed against Amendment 4 is enough to make you sick. There’s a really slick commercial on TV in which a woman claims to be pro-choice but says she’s voting against Amendment 4 because it would give her underage daughter an independent right to control her body. In fact, whatever the merits of that stance, nothing in Amendment 4 undermines parental rights.

Meanwhile Governor DeSantis has been pulling out all the stops to undermine the democratic process. He’s committed at least $16 million of public money to buy ads attacking Amendment 4 as bad for public health, even though the idea of public money being used to influence the democratic amendment of the sate constitution is deeply unsavory. And he–or his minions–have caused letters threatening criminal prosecution to TV stations running a particularly effective pro-4 TV commercial. (See TPM, Ex-Health Dept Lawyer Says DeSantis’ Office Directed Him To Send Letters Threatening TV Stations.)  This act is clearly illegal, and last week a federal court granted a temporary restraining order blocking the DeSantis administration “from taking any further actions to coerce, threaten, or intimate repercussions directly or indirectly to television stations, broadcasters, or other parties for airing” the ads.

DeSantis has no shame. But it could work: although polls are clear that a majority will support Amendment 4 it’s not looking good for it to get the 60% approval needed to be adopted.

Failure of Amendment 4 would leave current six-week abortion ban in place–one of the strictest in the U.S. (most women don’t even know they are pregnant by the time the ban takes effect.) Women will die. Vote YES on Amendment 4. (Line 256)

Amendment 5

Florida home owner-occupiers get a homestead exemption of $25,000 from all property taxes and another $25,000 ex  emption on the value of property between $50,000 and $75,000, except on taxes levied for schools. Amendment 5 would index that second $25,000 exemption to the rate of inflation. On balance this seems fine, although because there is a cap on the annual rate of increase in property taxes, it’s not actually the case that large numbers of people are being priced out of their homes by increases in property tax.  (Tax rates get re-adjusted if a home is sold.) The downside of an inflation adjustment is that localities collect a bit less tax needed to keep up with inflation, but they can adjust the millage rate if they need to. This one is going to pass however you vote, but I suppose I will go along with the herd and vote YES on Amendment 5. (Line 258)

Amendment 6

Amendment 6 would repeal a previous constitutional amendment allowing taxpayer money to provide matching funds to candidates running for top state offices, including governor. The program is far from perfect–Rick Scott gets to spend what he likes from his ill-gotten gains, and that’s not matched–but it’s better than nothing.

A yes vote on 6 s a vote to further entrench the role of big money in campaign finance.  No thanks. Vote NO on Amendment 6. (Line 261)

Previously:

Posted in 2024 Election, Florida, Law: Constitutional Law | Leave a comment

Some Thoughts about the Downballot (Voters’ Guide Part II: Judicial Retention Elections)

This got long, so the Florida constitutional amendments will be in Part III. Previously: Some Thoughts about the Downballot (Voters’ Guide Part I: County-Wide Elected Offices).

As long-time readers know, 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 often 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.

This year we have two retention elections for (sadly, manifestly unqualified) Supreme Court Justices, three slots on the 3rd District Court of Appeals, and one County Judge. Both are trial courts, but the County Courts have a more limited jurisdiction.

For the Supreme Court Justices, I will give you my own views, based on reading key decisions and my more than thirty years teaching law.  As with the local judges, I do think that there should be a presumption of retention. But that presumption can be overcome for good cause.

For the local races, this year 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 and the challenger would do better.
  • 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. Many don’t.
  • I’ve become decreasingly reliant on third party sources. I used to rely a lot on the Dade County Bar Association Poll in which lawyers rate the candidates’ qualifications. But the response rate is low enough that I’ve come to wonder about it. Similarly, I’ve soured on the reliability of endorsements. Where once SAVE Dade seemed like a fairly reliable guide, now rebadged as SAVE, it doesn’t seem to me to be as reliable as I used to think it was, in light of a string of, I thought, erroneous endorsements.
  • The Miami Herald makes endorsements. In the case of elected officials, 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? But in the case of judicial races, I’ve come to think maybe they do a better job.

Justices of the Supreme Court

Once upon a time, not so very long ago in fact, the State of Florida had a Supreme Court it could be proud of. I would have easily placed it among the top ten nationally, and you could have made a case for top five. But those days have passed. Mandatory retirement created an opportunity for a near-complete turnover on the court.  Quality has suffered.  (The FLSCT is also much much more conservative. But that alone is no reason, I think, to vote not to retain a Justice (or a Judge). What matters is the quality of their work.)

This year we’re asked whether to retain Justice Renatha Francis and Justice Meredith Sasso. Both of the Justices up for retention this year are recent appointments by Gov. DeSantis. But even more than his earlier appointments these two Justices cross a line into partisanship that has produced judicial opinions that simply fail to meet a basic threshold of fairness and quality. Neither deserves to be retained.

Florida law sets out a process for the approval of ballot provisions seeking to amend the state constitution. In it, the Florida Supreme Courts gets to rule as to whether the amendment is limited to a single subject, and whether its ballot summary is fair or misleading. It does not get to opine on the merits. In the case of the two most contentious proposals this year, Amendment 3 decriminalizing marijuana, and Amendment 4 protecting some rights to abortion, Court majorities (5-2 and 4-3, respectively) approved the proposed summary ballot proposals.

Both Justice Renatha Francis and Justice Meredith Sasso were in the minority both times. In other words, they voted to keep both amendments off the ballot—something devoutly wished by Republicans who feared the inclusion of the amendments would bring Democratic voters to the polls.

What did they say was wrong with the amendments?  Brace yourself. (Full text of decisions on Amendment 3 and Amendment 4).

Justice Francis’s dissent called Amendment 4’s summary “overwhelmingly vague and ambiguous,” centering much of her criticism on the term “healthcare provider” a term she claimed would be unclear to voters.  Yes, really. [See p. 74.]

And she added that it was “highly unlikely that voters will understand the true ramifications of this amendment” because the “title fails to communicate to the voters that the purpose of the proposed amendment is ending (as opposed to “limiting”) legislative and executive action on abortion, while inviting limitless and protracted litigation in the courts because of its use of vague and undefined terms.” And, “the summary hides the ball as to the chief purpose of the proposed amendment: which, ultimately, is to—for the first time in Florida history—grant an almost unrestricted right to abortion.” [P..53].  Even the conservative majority couldn’t swallow that, holding that “the broad sweep of this proposed amendment is obvious in the language of the summary,” [p.19] and that “[t]he ballot title’s inclusion of the word ‘limit’ is . . . not misleading but accurately explains that the Legislature will retain authority to ‘interfere[] with’ abortions under certain circumstances. [P. 21.]

In addition to suggesting that voters would be fooled, Justice Sasso claimed that despite long-standing precedents to the contrary the Court had a right to object to the content of the proposed amendment: “our review in ballot initiative cases is narrow, [but] this case is different because abortion is different. Dobbs, 597 U.S. at 218 (Syllabus) (“Abortion is different because it destroys what Roe termed ‘potential life’ . . . . None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion.”).” [P. 59.] I take this to mean that basically no pro-choice amendment would ever pass muster with this Justice.  Ever.

I find that outrageous.

Similarly, Justice Sasso claimed that Amendment 4 was “a proposal with no readily discernable meaning.” [P. 66.] To get there, she had to deny that ““viability,” “healthcare provider,” and “patient’s health” all “have clear meanings that are obvious to voters” [P. 74.] but rather “[n]one of those terms have any sort of widely shared meaning.” [P. 74.] Again, even the conservative majority was unpersuaded.

This is, to my eye, results-oriented jurisprudence; when it comes in the context of the constitutional amendment process, it’s particularly inappropriate.

On Amendment 3, Justices Sasso and Francis were the only dissenters.

Justice Sasso complained that the amendment summary said it “allows” state-licensed entities to sell pot, when in fact all it did was remove legal obstacles to future legislation permitting those sales. [P. 43.]

Justice Francis alone agreed with Justice Sasso, but added that she thought Amendment 3 violated the single-subject rule because it not only decriminalized marijuana but also allowed for it to be commercialized (er, isn’t that what happens under capitalism when something is legal?).  No one else on the court bought into that.

I could go on, but this post is long enough.

(Incidentally, if you need more reasons to vote against Justice Francis, there are many reasons to think she was never qualified for the job to begin with. Indeed, the Florida Supreme Court found that Gov. DeSantis’s first attempt to appoint her was invalid because she had not been a member of the Florida Bar for the required ten years.  Didn’t stop him from trying again once she was.  In addition to her lack of legal experience, there is the ethics question….)

These Justices don’t deserve retention. Amazingly even the Miami Herald agrees.

Third DCA

One easy and two less easy ones. The easy one is to retain Judge Kevin Emas (Retain-Line 84). He was appointed by Governor Charlie Crist in 2010, back when Crist was a Republican, so he’s no liberal, but I have no reason to doubt he merits retention.

As to the others, Judges Ivan Fernandez and Norma Shepard Lindsey, I feel less-well informed. (Incidentally, here’s a nice profile of Judge Fernandez, showcasing his experience on SWAT teams before becoming a lawyer.) Third-party groups break on partisan lines: some local democratic clubs advise against retention; some local far-right groups endorse them (and oppose Emas).  Folks I know are a bit all over the map, but I’ve heard nothing specific enough to overcome my presumption that Judges should be retained unless there’s a clear reason not to.

County Court

I like Christopher Benjamin. Here’s a fun profile of Benjamin. Benjamin has been a lawyer for 22 years with quite varied experience (see the profile). FWIW the bar survey had him at 77% of “qualified” or “exceptionally qualified,” while only 57% said the same about his opponent, Alina Restrepo who has 25 years experience in private practice. Over 42% said Restropo was “unqualified”; only 23% rated Benjamin that poorly.  That said, the turnout was so low as to make the results rather dubious…

Coming up Real Soon Now™ the Constitutional Amendments.

Posted in 2024 Election, Law: Constitutional Law, Law: Elections, Miami | 2 Comments