Category Archives: Law: Everything Else

Gotta Love It

Those federal judges on the Southern District of Texas have a sense of humor — and a couple of them can really belt it out:

Posted in Completely Different, Law: Everything Else | 1 Comment

Voters’ Guide to the November 2020 Miami-Dade Ballot, Part III: State Constitutional and Charter Amendments

This is the last installment of my three-part Miami-Dade voters’ guide for the November 2020 election. This part concerns the very important proposed amendments to the Florida Constitution, and also three Miami-Dade charter Amendments. It follows on the heels of my Voters’ Guide to the November 2020 Miami-Dade Ballot, Part I — The Easy Part and Voters’ Guide to the November 2020 Miami-Dade Ballot, Part II: Judicial Retention Elections. There’s also a handy summary.

Florida Constitutional Amendments

There are six Florida Constitutional Amendments on our November 2020 ballot. They run the range from cynical to evil and then (in one case) back to good. I’ve taken them in the order they appear on the ballot; links are to the full text of the Amendments, not the ballot summaries:

Amendment 1

Amendment 1 – Citizenship & Age – NO – line 201

This amendment changes two words in the state Constitution: “Every citizen” over 18 may vote is replaced with “Only a” citizen over 18 may vote in a Florida election. There are two problems with Amendment 1. The first is that it is solving a non-problem: that is already the law, and there are no plans that I know of at either the state or local level in Florida to change it. The entire purpose of the amendment is a cynical ploy to get nativists to the polls. This should not be encouraged, and that’s why we should vote NO. Just to be clear here: a NO vote will not make the requirement to vote anything other than what it is already: 18 years old and a citizen. Amendment 1–whether it passes or fails–will have no effect on current law whatsoever.

All that said, there is another subtler reason to vote against this amendment. Some jurisdictions around the world are experimenting with letting 16-year-olds vote, either in municipal elections or more generally. There have been some suggestions in Congress and elsewhere that maybe if you are old enough to drive a death machine – a car – then maybe we should trust you to vote also. I don’t see why we should strangle those ideas before they have a chance to be debated. The old wording would permit such experiments; the new wording will not.

Amendment 2

Amendment 2 – Raise Minimum Wage – YES – line 202

Amendment 2 raises the state minimum wage to $10 effective about a year from now, and a dollar a year thereafter until it hits $15 a year. It is currently $8.56 at the state level, which is higher than the federal minimum.

In principle I don’t think this is the sort of thing we should put in the State Constitution. Suppose, for example, there were a major depression and the entire price and wage level cratered. Having the minimum wage be this inflexible, beyond legislative adjustment in economic emergencies, doesn’t seem like a smart move. On the other hand, our legislature is so hopelessly gerrymandered that even though Florida is the classic 50/50 state, both houses have large GOP majorities, and they have no interest at all in helping working people. So if we are going to get a living wage, it’s this or federal action. Since we can’t count on federal action, it’s this.

We don’t live in a perfect world, and given its imperfections amendments like this are pretty much the only way we get anything progressive at the state level in Florida these days. So I’m voting YES.

Amendment 3

Amendment 3 – Jungle Primary – NO – line 205.

Amendment 3 would abolish the primary system as we know it for races for Governor, Cabinet, and both houses of the legislature. Currently, we are a ‘closed primary’ state: voters have until about a month before the election to register and (optionally) select a party affiliation. If already registered, voters can change party affiliation any time before the close of the registration period. Everyone votes the same in the general election, and also for ‘non-partisan’ offices such as Miami-Dade County Mayor. But for Governor and legislature, only Democrats vote in the Democratic primary, and only Republicans vote in the Republican primary, and so too for any other qualifying party.

The (alleged) case for Amendment 3 is that it fixes the following problem: In many legislative districts—particularly in this age of gerrymandering–the real battle is in a party primary and whoever wins the nomination in the party that dominates the area then cruises to victory, and that disenfranchises independent (no-party) registrants, who only get to vote in the less meaningful general election. A stronger form of the argument says that even for statewide offices, it’s wrong to keep non-party members from having a say as to who ends up on the general election ballot. Why not let everyone vote in one big (so-called “jungle” primary)?

To begin with, let me point out that the amendment isn’t even congruent with the problem it most plausibly claims to solve, as it covers “all elections for the Florida legislature, governor and cabinet”. To the extent the biggest problem exists, it’s legislative and local, not statewide. Why then undermine the parties at the state level?
To ask the question is to answer it: this is an attempt to undermine parties—especially the Democratic party—at the state level. An ‘open,’ ‘single’, or ‘jungle’ (as it’s best known) primary means that it is easier to split the vote for less organized parties – like Democrats. Worse—much worse—the jungle primary empowers extremists.

Another point: it is very easy to change one’s party registration tactically, up to a month before the election. If non-party voters strongly want to support a candidate in a primary, it’s quite easy to join the party to vote in it, and then change one’s registration back afterwards. There is no limit, in fact, on the number of switches a voter is allowed. So the plight of the no-party voter is actually within that voter’s power to cure, with only a little effort.

As I’ve argued previously, the best solution to all these problems would be to use ‘instant run-off voting’, but alas that’s not on offer. Meanwhile, no point in making things worse!

Not convinced yet? Here’s another very serious problem with the proposal. Under this plan, the two candidates with the highest vote totals go to a run-off. That opens the door to extremist candidates in a multi-candidate election. Let’s suppose, for the sake of the argument that there are four credible Democrats, and four credible republicans in the race, but that 15% of the electorate that supports an extremist – think of it as the Q-Anon, Trotskyite, or Proud Boys candidate as you wish. Assume also that all the Democrats voting would prefer any of their four candidates to any of the five others, and assume the same thing about the Republicans. Assume also that all non-extremist voters prefer anyone to the extremist.

Depending on how the votes fall out among either of the parties, it’s possible that each of their candidates will get less than 15% personally – opening the door for the extremist to go into the run-off against one of the major party candidates, when the electorate would have much rather had a choice between two of them. Indeed if we assume that one of the major parties is bigger than the other, but the smaller party is less disunited, it’s possible that the smaller party candidate ends up facing the extremist in the run-off, when in fact a majority of the electorate would have preferred any of the candidates from the more splintered (read, usually, “Democratic”) party.

So – NO – on Amendment 3.

Amendment 4

Amendment 4 – Require 2 ballots for future amendments – NO – line 207

The secret to decoding what is going on here is to understand that although the people of Florida are pretty much 50/50 in terms of party preference, on a number of individual issues – like health care, marijuana decriminalization, felon rights, or the minimum wage – the state skews strongly towards the so-called ‘liberal’ position (I’m actually not sure that’s a correct description of voting rights or decriminalization in theoretical terms, that’s how politicians see the issues since they are supported by the Democratic party and opposed by Republicans.)

Our legislature, however, is expertly gerrymandered to bake in a large, strong, Republican majority. And, to be fair, the state democratic party is in the main spineless and deeply incompetent. The one way that we get anything progressive in this state – like the small class-size rule, or the felon enfranchisement, or (this year) an increase in the minimum wage – is by getting it on the ballot for a Florida Constitutional Amendment. That is far from ideal, but needs must. The state already raised the requirements for getting amendments passed a few years ago, but that only dented and did not extinguish the progressive use this last-ditch method of achieving popular social goals. So here comes the state GOP again with another proposal to make popular change even more difficult.

Amendment 4 would require an issue (such as restoration of felons rights) to be on the ballot twice and get 60% of all Floridians to vote “yes” in two separate elections in order to pass. As each ballot campaign takes years and a lot of money this will inevitably undermine grassroots initiatives by increasing the amount of effort and money needed to pass a constitutional amendment. In effect, it will mean that groups with a lot of money would be able to amend the Florida Constitution. And it will make progressive change like the small class size requirement and former felon voting rights that much harder to achieve.

Vote NO on Amendment 4.

Amendment 5

Amendment 5 – Extend time for ‘Save-our-homes’ carryover – Yes – line 208 (corrected)

This is, frankly, a low-stakes amendment. In normal times I’d be against it on the grounds that its goals could be achieved by legislation. I wouldn’t blame anyone who voted against this minor raid on local government tax revenues. But in a year of COIVD, where everything is difficult, it’s hard to be against a rule that extends the time for rolling over homestead exemptions.

I’m voting YES on Amendment 5 (but feel free to vote NO if you are a purist).

Amendment 6

Amendment 6 – Extend homestead exemption for spouses of deceased disabled veterans – NO – line 211

This one is just silly. We’re talking about a tiny group of people—widows and widowers of disabled veterans. There just isn’t any point to putting this sort of thing in the Florida Constitution. It belongs in legislation.

Vote NO on Amendment 6. But go ahead and vote for it if you want to encourage the legislature to push more stuff like this in front of voters.

Miami-Dade Charter Amendments

Referendum 1 – Create office of Inspector General – Yes – line 212

Given the Augean Stables of corruption that is Miami-Dade, having an independent Inspector General cannot hurt, although I’m not deeply optimistic about how much it will help, either. I’m voting YES.

Referendum 2 – Delay elections to replace ‘resign to run’ officials to general election – Yes – line 214

There really are two sides to this one. The case for Ref 2 is that when politicians resign to run for other office, as required by Florida state law, the resulting special election to fill their seats is costly, participation is often poor, and the resulting term is usually quite short. So it’s not value for money.

The case against Ref 2 is that it means the office(s) in question will be vacant longer, leaving the constituency without the representation to which it is entitled.

You really could go either way on this one. On balance, I think the savings outweigh the democratic gains, especially given the fact that turnout is often very light in special elections. So I’m voting Yes; I wouldn’t blame anyone who voted No.

Referendum 3 – Nonpartisan election of Sheriff, Appraiser, etc – No – 217

This is, to me, the most important of the three referendum questions. Basically, what it does is force the equivalent of a jungle primary (see discussion of Constitutional Amendment 3 above) on major local offices not covered by the Amendment. The only practical difference is that while the Amendment would allow parties to endorse and candidates to state party affiliations on the ballot, this charter amendment would not even do that.

Again, I would be fine with a ‘non-partisan’ ballot if it were organized in a way that didn’t open the door to fringe candidates squeaking through to the run-off or various other machinations that could fail to reflect what people actually want. The way to do that is to follow the State of Maine’s example and use ranked-choice voting. But this is a step backwards, not forwards.

Posted in 2020 Election, Law: Everything Else, Miami | 11 Comments

MiamiLaw Zoom Teach-In Tomorrow

MiamiLaw Zoom Teach-In: Racist Police Brutality and the Role of Law, Lawyers, and Law Enforcement in the Problem and its Solutions

Tuesday, June 2nd, 12:30 to 2 pm

Hosted by:
Dean Tony Varona & BLSA President Ronnie Graham.

Prof. Donna Coker, Miami Law
Prof. Charlton Copeland, Miami Law
Prof. Angela J. Davis, American University Washington College of Law (author/editor of Policing the Black Man)
Prof. Osamudia James, Miami Law
Prof. Donald M. Jones, Miami Law

To register for free, click here.

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MiamiLaw COVID-19 Webinar Now Available Online

You can now get the whole COVID-19 and the law webinar, and it’s free as in beer.

They did have a couple minor technical glitches in the original, but I gather they edited them out to make this a seamless production.

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Our New Normal


UM Law put on a good one today about Law and Cornavirus.  Announced only a few days ago, it drew over 500 viewers. They’re likely to do a sequel. Meanwhile, I gather a recorded version should be online Real Soon Now.™

Posted in COVID-19, Law: Everything Else, Talks & Conferences | Comments Off on Our New Normal

Judge John F. Grady (1929-2019)

Judge John F. Grady c. 2014

Judge John F. Grady of the Northern District of Illinois died on Monday at the age of 90. I had the privilege of clerking for then-Chief Judge Grady just after graduating from law school in 1987. In his chambers and in his court room I saw the best that the U.S. legal system has to offer.

Judge Grady had a number of defining qualities, including fairness, decency, intelligence, and a deeply rooted sense of right and wrong. He was a very smart man; unlike a lot of the people you meet on law faculties his intellect focused primarily on things with practical payoffs. He put that bent to good use not just in the courthouse but in state and national rule-writing projects for which he was drafted, not least as Chairman of the Judicial Conference Advisory Committee on the Federal Rules of Civil Procedure. He had acquired a national reputation as a good judge by the time I clerked for him, although not as the sort of ‘feeder’ judge whose clerks went on to the Supreme Court or the academy. In part this was because the very large majority of the Judge’s clerks graduated from Chicago law schools, especially Northwestern of which he was very fond, and wanted to stay in Chicago. I can see why: I learned to love Chicago and its neighborhoods, although not its winter winds nor, despite a delightful afternoon at Judge Grady’s annual trip to Wrigley Field with his clerks, the Cubs.

Judge Grady was not political; he was appointed in the Ford administration and his politics, at least as visible to his clerks, consisted mostly of a conviction that most people were capable of being good, everyone had a duty to be, and those who weren’t deserved (measured) sanctions. This view was reflected in Judge Grady’s enormous faith in juries.

Judge Grady was a product of the Chicago outskirts, not the city. As a former Assistant U.S. Attorney (AUSA) and then sole practitioner he had no particular love for big firms and especially their billing practices. We clerks thought his only fault as a judge was that he was both slow to decide and sometimes a bit harsh when it came to fee petitions. Judge Grady would only allow that he had a duty to be thorough. (One clerk joked to me that the Judge couldn’t see how anyone could fairly charge more than he would have 20 years earlier — which was a little unfair but close enough to be funny.) That said, Judge Grady’s “Order Concerning Format of Fee Petitions,” Cristancho v. Nat’l Broad. Co., 117 F.R.D. 609 (N.D. Ill. 1987), is a model of good sense. I’ve always been puzzled that it didn’t become a national standard.

Judge Grady was a courageous judge and an innovator. He allowed jurors to take notes back when that was unheard-of, and allowed jurors in civil trials to ask questions when that was almost heretical. He’d have allowed it in criminal trials too if only the lawyers would have agreed, but he told me regretfully that they never did.

Judge Grady was in most ways a humble man, and certainly very modest about his considerable achievements. I once asked him if he minded being reversed, and I believed him when he said it did not trouble him: he did his thing, the court of appeal or the Supreme Court did theirs, and he was fine with that, he just moved on.

That said, Judge Grady ran a tight ship in court. I will never forget a pretrial status conference in a long-running patent case (for some reason Judge Grady loved trying complicated patent cases) that was finally nearing trial. The attorneys had submitted their proposed witness lists and Judge Grady was reviewing them in order to determine how long the trial might be. “Who is Mr. [name]?” Judge Grady asked the lawyer for one of the parties. “Judge, that’s our law expert,” answered the advocate. “Law expert? There’s only one law expert in this court,” Judge Grady growled as he drew a line through that name on the printed list before him. And we never heard of that witness again. I learned much later that in state courts, perhaps especially in places like Florida where state court trial judges don’t have clerks to do research for them, it’s a routine practice in cases with uncommon legal issues to bring in a professor to testify as to the relevant law as a way of educating the judge, and the judges appreciate the practice. But not in federal court.

Judge Grady did his own research, or he asked us to do it and then personally checked anything that seemed the least bit debatable. For motion practice the Judge would read the papers and the leading cases and then tell us how he was “leaning” and ask us to write a draft opinion. The “leaning” almost always struck me as the right answer and I was proud that within a month I was able to write drafts that attracted at most minor corrections; the one or two times over the clerkship that the “leaning” seemed at odds with precedent, the judge asked me to provide the cases on which I based the contrary conclusion so he could mull them over. In one for-this-reason-only memorable technical case about jurisdiction in admiralty I even persuaded the Judge to adopt a view he had not considered, although he clearly thought the controlling precedents on the “saving to suitors” clause, 28 U.S.C. § 1333(1), were more than a bit weird. Certainly the lawyers, neither of whom had briefed the jurisdictional issue (lack of federal jurisdiction is a matter that federal courts may raise sua sponte) looked a bit pole-axed at the prospect of being sent to state court when he gave them the ruling from the bench. I thought he sympathized.

Judge Grady was no bleeding heart, and was not shy of the tough sentence when he thought it deserved. But he was also a very firm believer in defendants’ rights, and in the Bill of Rights in general. As Chief Judge he handled all grand jury matters, most of which were kept tightly under wraps and in which we law clerks were rarely involved. But one case raised an issue that did make it into open court. It seems the local cops (or the FBI, I forget) had raided an Asian gambling den, and handed out subpoenas to appear before the grand jury to everyone in the room. At the appointed time for one of the appearances, an Asian gentleman appeared before the jury and was asked by the AUSA to state his name. The gentleman refused, pleading the Fifth Amendment.

The AUSA sought an order compelling an answer to that initial question. The defendant’s lawyer argued that forcing the defendant to state his name would potentially incriminate him as tying the body present before the jury to the one served with the subpoena (or, I suppose, outing him as an impostor but if I recall that wasn’t argued). The AUSA replied that the name itself wasn’t incriminating, just a standard procedure to ensure the subpoena was being complied with, a matter for which the government was entitled to the Court’s assistance. One got the feeling, however, that for some reason (all Asians looked alike to Chicago cops?) if the government didn’t have the name, they’d be unable to prove that the person who turned up wasn’t the one named on the paper.

Unusually, Judge Grady asked both his clerks to work on the matter, and he didn’t tell us how he was ‘leaning’ so as, he said, not to prejudice us. We looked hard, but as I recall didn’t find a lot of law on the subject. What we did find seemed to lean somewhat in the direction of not compelling the person to testify. I confess that I feared that the Judge, who had been in the Criminal Division of the U.S. Attorney’s office himself, might not find this a congenial conclusion, and to be fair it didn’t seem exactly compelled by any decision we could find. To my surprise, the Judge adopted that view happily, saying it was what he’d been thinking. It wasn’t the Court’s job to do the prosecution’s work for it, that was part of what the Fifth Amendment was about. And so, to the AUSA’s poorly camouflaged shock and disgust, it was.

The Judge appreciated good lawyering and was saddened by shoddy work. As an experienced judge by the time I arrived, Judge Grady did not feel the need to have law clerks in court to be prepared to research issues for him and comfortably ruled on evidentiary issues from the bench. Generally the law clerks toiled in the back office, writing draft rulings on motions to dismiss and summary judgment motions, while the Judge held court. We emerged mostly on motion days and on the rare occasion when the Judge thought we might learn by watching a master lawyer at work. Thus it was that I got to see a cross-examination right out of the movies in which the defendant company’s lawyer destroyed the plaintiff company’s expert witness in a couple of hours of withering cross-examination. It was clear that the lawyer understood that facts (and the math!) better than the ‘expert’ who was reduced to a nearly incoherent wreck by the time it was mercifully over. The case settled shortly afterwards for a couple pennies on the dollar. (“They could have had that two years ago,” was the defense lawyer’s parting shot as he went out the door.) It was a valuable lesson in the value of preparation and, I later came to see, the need to stress test your experts.

Judge Grady taught primarily by example, and he taught well. I cannot think of anything I’ve done before or, sadly, since his clerkship that has given me more confidence in the U.S. legal system. A world where Judge Grady clones decided the cases as a matter of first instance — Judge Grady occasionally sat on courts of appeal by designation, but I gathered he much preferred trying cases on his own — might not be a perfect one, but it would be a lot better than the world we got.

The 7th Circuit Bar Association’s Journal did a good interview with Judge Grady in 2011, when he’d taken senior status after 39 (!) years on the bench, although he was still hearing cases until his retirement in 2014. The interview captures his voice, but since it is his voice it undersells his achievements.

Posted in Law: Everything Else | 1 Comment