Category Archives: Law: Everything Else

Boy’s Club?

Over at ACS Blog, my brother notes that of the 29 people Trump has nominated for U.S. attorney positions, 28 are men.  And 25 are white.

Makes for a nice collage:

Posted in Dan Froomkin, Law: Everything Else, Trump | Leave a comment

Mayor Mich Landrieu Gives the Speech of His Life

I do not often recommend long serious videos; I tend to short and/or funny.

But please consider taking 23 minutes of your life to listen to this speech by New Orleans Mayor Mitch Landrieu on the removal of four confederate statues.

Spotted via Tom Sullivan at digby’s blog, who links to a transcript at The Pulse and makes a link to the US Supreme Court’s recent 5-3 decision Cooper v. Harris that struck down two racially gerrymandered districts in North Carolina.

Contrast this speech to the despicable bills passed in the last few days by the Louisiana House to protect confederate monuments statewide and the bill passed by both houses of the Alabama legislature to prohibit “the relocation, removal, alteration, renaming, or other disturbance of any architecturally significant building, memorial building, memorial street, or monument” that have stood for more than 40 years on public property. The bill also prohibits renaming schools named after people.

I confess that I don’t know much about Mich Landrieu, but if this is typical of the man, I hope he has a long future in politics.

Posted in Law: Everything Else, Politics: US | 1 Comment

The Comey Firing (Updated)

I have to agree with almost everything in the letter from Deputy Attorney General Rod Rosenstein. Comey botched the Clinton email disclosures and deserves to be fired for it.

Of course, this being Trump’s World, and given the suggestive timing of the firing, one cannot help but suspect an ulterior motive.  Unwillingness to share raw investigatory data relating to counter-intelligence regarding Russia?

Update: Of course the whole world has known about the issues about Comey’s treatment of Clinton. It is hard to believe it took over 100 days to decide to fire him over that. CNN says Trump decided Comey had to go a week ago and told Justice to come up with a reason. What was happening a week ago? Why, this. Sounds like enough to set Trump off, doesn’t it?

And, of course, it’s the coverup (or appearance of one) that gets you more than the crime. People in DC are already seeing a rerun of the Saturday Night Massacre, and calling for a special prosecutor. The law is different these days, so special prosecutors have less formal independence than they did in the post-Nixon reforms. Indeed, their independence is just about what it was in the Nixon years: not enough to prevent their firing, but enough to cause a crisis if it happens.

Posted in Law: Everything Else, Trump | 5 Comments

Miami-Dade County Court Election Guide – Aug 30, 2016

Downballot recommendations may be the most important thing I do on this blog these days. This post is about the four County Court races. Please see my previous post, 11th Circuit Court Judicial Election Guide – Aug 30, 2016 Ballot, for full disclosure on how I came to these decisions, and for my recommendations in the five Circuit Court elections.

Summary of County Court recommendations

Group 5: Milena Abreu (line 94)
Group 7: Ed Newman (line 97)
Group 15: Linda Luce (line 99)
Group 35: Wendell Graham (line 100)

County Court Judges

Group 5

Judge Fred Seraphin (FSU Law) is being challenged by Milena Abreu (Loyola Law School, New Orleans). Judge Seraphim is notable for being the first Haitian-American Judge in Miami-Dade County; he’s also notable for being the judge who wouldn’t let an assistant public defender take a 15 minute break every few hours during a trial to pump breast milk. I find that pretty incredible, although in an interview with the Daily Business Review (now behind a paywall), Judge Seraphin claimed that this was simply a “miscommunication.” Ms. Abreu is a fairly credible opponent, with 15 years experience split between the PD’s office and private practice.

Despite several stories of being inconsiderate about lawyers’ lives or illnesses, Judge Seraphim’s bar poll numbers were good (42% exceptionally qualified, 47% qualified). Ms. Abreau only managed 23% and 54%, which isn’t bad either, but isn’t as good.

Judge Seraphim has a striking personal story, which he features on his web page; being the victim of injustice, he says, has helped him understand justice. It’s a powerful pitch.

A spokesman for the Caribbean Bar Association told the Daily Business Review on Dec 4, 2015 that,

“One of our purposes is to have more Caribbean judges, so it is a concern,” said Devona Reynolds-Perez, president-elect of the Caribbean Bar Association. “It impacts the current diversity on the bench, which is in a sorry state. So we’re sorry to hear that he drew opposition. His appointment to the bench was a historic landmark, so it would be very sad and disappointing to see him lose that seat.

Yet could it be that he deserves to lose? The Herald, unsurprisingly, endorsed the incumbent. I’m not so sure – if a judge who wasn’t an historic first had behaved like that, would we retain him? What does it mean to ‘understand justice’ if you are cruel or unfeeling to advocates in the courtroom?

I can see why a reasonable person would go with experience and a compelling life story, and vote to keep Judge Seraphim – and it is a close call – but I think I’m voting Milena Abreu (line 94) even though it will contribute to the narrative that ‘Hispanic names,’ and especially women with Hispanic names, win judicial elections in Miami-Dade.

Group 7

Incumbent Ed Newman (J.D. UM) (38% exceptionally qualified, 46% qualified) is being challenged by Lizzet Martinez (J.D. Drake University) (13% exceptionally qualified, 43% qualified). For a puff piece about Judge Newman, see this Herald article about his former Dolphin teammate and baliff, Tony Nathan. I also endorsed Judge Newman when he was last up for election in 2010.

I’ve seen Judge Newman in action, and I liked what I saw. I would not call him a brilliant Judge, just a careful and fair one who ran a good courtroom. I’m voting to retain him. (Line 97.)

Group 15

This is an open seat.

The candidates are Ruben Alcoba [Warning: LOUD video will start automatically] (J.D. U.M, LL.M in Tax, Thomas Jefferson School of Law) and Linda Luce (J.D. U. Puerto Rico).

Mr. Alcoba is a sole practitioner who focuses mainly on patent, trademark and immigration law. Ms. Luce has worked for Department of Children & Families juvenile delinquency unit and is now in private practice doing civil and family law. She has experience as a mediator.

The response rate on the bar poll for Mr. Alcoa was so low as to make his otherwise low score of 9% exceptionally qualified and 28% qualified almost meaningless. Ms. Luce got more respectable scores (22% and 55%) but that also was on a quite small response rate.

I confess to being less informed about this race than I’d like, but on paper Ms. Luce (line 99) has more, and more relevant, experience. That the Herald said the same thing in its endorsement of Ms. Luce makes me nervous, but there it is.

Group 35

Judge Wendell Graham (J.D. UM) is being challenged, by Antonio Jimenez (J.D. Stetson).

Mr. Jimenez is a Navy veteran; his bio states that he has a couple of Masters degrees (Master of Forensic Science Degree from National University which I never heard of before, and a Master of Criminal Justice from Boston University–-I’ve heard of that).

The 35-year-old challenger only has about ten years practice experience, two and a half the Herald says as an ASA, and eight in private practice. Even though his web site boasts that “his unique background has given Mr. Jimenez the unique opportunity to understand every legal matter” (yes, every legal matter!), I don’t see why I’d prefer him to an experienced judge with good ratings from the bar (39% exceptionally qualified, 49% qualified). If the Herald is right about the two and a half years as an ASA I’d also like to know why he didn’t finish out the three years which is the ordinary commitment for an ASA. Did he jump or was he pushed? Neither is a great answer.

In any event, the case for re-electing Judge Wendell Graham (line 100) seems overwhelming.

Posted in 2016 Election, Law: Everything Else, Miami | 3 Comments

11th Circuit Court Judicial Election Guide – Aug 30, 2016 Ballot

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).

Posted in Law: Everything Else, Miami | 13 Comments

Catnip for (Judicial) Voting Theory Jurisprudes

David Post, Wild voting paradox case in the 3rd Circuit. Just. Go. Read. It.

Posted in Law: Everything Else, Legal Philosophy | Leave a comment