Thursday, January 22, 2015

“No one is buying a judge for $500. But it could buy you a continuance down the road.”

That was one Florida Judge running for re-election back in 2002 (see par. 46). The Supreme Court heard argument this week on whether judges running for election in Florida should be able to personally solicit campaign contributions.  From SCOTUSBlog:
If there is one thing that the Roberts Court seems consistently willing to protect, it’s speech – even controversial or unpopular speech like violent video games, protests at the funeral of a fallen soldier, lies about receiving military medals, and dog-fighting videos. And for the Court’s five more conservative Justices, this enthusiasm for the First Amendment extends to the campaign-finance arena. In recent years, a closely divided Court has struck down a ban on independent campaign spending by corporations and unions as well as the overall caps on how much one person can contribute to campaigns for federal office. But yesterday’s oral argument in Williams-Yulee v. The Florida Bar, a Tampa lawyer’s challenge to a Florida rule that prohibited her from personally contacting would-be donors to ask them to contribute to her campaign for a job as a trial judge, hinted that, when it comes to the First Amendment, judges might be different. After all, some Justices suggested, it would be undignified for judges – who, Justice Ruth Bader Ginsburg said, are supposed to be “above the fray” – to go around asking people for money.
Arguing on behalf of Lanell Williams-Yulee, attorney Andrew Pincus told the nine Justices that Florida had punished his client for sending out form letters asking for contributions that were “completely” legal in Florida. And if the Florida rule prohibiting personal solicitations by potential judges is really intended to protect the would-be donors from feeling coerced to contribute, Pincus argued, then at the very least there should be no ban for mass mailings like the one at issue in this case, which are so impersonal that they don’t place any pressure on the people who receive them. But Justice Anthony Kennedy countered that Pincus’s proposed rule would make it difficult for courts to draw a line between what is and is not allowed. There are “all sorts of gradations,” he told Pincus. What about a letter from a potential judge to one person? What about a letter to five people?
Other Justices, such as Justice Antonin Scalia, suggested that there was more to the rule than just preventing coercion – for example, an interest in judges being dignified. Scalia observed that “there’s stuff we don’t let judges do” – such as publish op-eds in newspapers to respond to criticisms of their decisions.
Pincus may have found more success with his argument that the overall scheme of the Florida rule doesn’t make sense. After all, for example, although would-be judges can’t contact potential donors to ask for money, they can send notes directly to donors to thank them for their contributions, and their campaign committees can reach out on their behalf. The additional step of banning personal solicitations by judges, he contended, doesn’t actually make any difference. Some of the Court’s more liberal Justices were skeptical, arguing that the extra personal touch does make a difference when you are asking for money. Justice Sonia Sotomayor noted that it’s “very, very, very rare” for a lawyer to turn her down when she makes a request. Getting a signed letter or personal phone call from a judge, she suggested, would be more likely to lead to a contribution than a letter signed by the judge’s campaign committee. Justice Stephen Breyer echoed these concerns, telling Pincus that his “instinct is” that when someone else writes the letter, it doesn’t have the same effect.
But that argument seemed to find more traction with some of the Court’s more conservative Justices. When Barry Richard, arguing on behalf of the Florida Bar, emphasized that the Florida rule was designed to cut the direct link between a would-be judge and donor that creates corruption when a donor expects to receive something for his contribution, Justice Scalia rejected that premise. Once you can send a thank-you note directly to a donor to thank him for the campaign contribution, Scalia insisted, that’s no longer true, because there is a direct link. And Justice Samuel Alito asked Richard (somewhat rhetorically) to explain what additional damage would result from Williams-Yulee’s direct contact with would-be donors, compared with having a campaign committee send out fundraising letters which specifically say that the judge gave the committee the donor’s name, that the committee will let the judge know if a contribution is made, and that the judge will then write a thank-you note.
 Meantime, there were protestors in the High Court yesterday:
A handful of spectators disrupted the opening of Wednesday morning’s Supreme Court session by rising one by one from their seats to shout protests over the Citizens United decision and other populist themes on the fifth anniversary of the controversial ruling.
Just after the Justices had taken the bench at 10 a.m., and as they were about to announce opinions, a woman stood from her seat near the back of the courtroom and said, “I rise on behalf of democracy.” She continued with a mention of Citizens United, the 2010 ruling that removed limits on independent political expenditures by corporations and unions. Three Supreme Court police officers quickly converged on her, causing a loud commotion as they pushed through an area of the courtroom where single wooden chairs are in use, forcefully subdued her, and then removed her from the courtroom.
As what at first seemed like the lone demonstrator was removed, Chief Justice John G. Roberts Jr. quipped, “Our second order of business this morning …” to laughs from the crowded courtroom.
But before he could finish that thought, a second demonstrators stood and said, “One person, one vote.” It was perhaps a continuation of the Citizens United theme, or a reference to a key phrase from the Court’s voting rights jurisprudence. As the second protestor was being approached by officers, a third and a fourth one stood and uttered similar lines.
The Chief Justice was heard to mutter, “Oh, please.”
As more officers entered the courtroom to deal with those protestors, a man in a back corner stood and said, “We are the ninety-nine percent,” a populist slogan referring to those not in the wealthiest one percent of the nation. After he delivered the line, this protestor looked around nervously as there were no police officers immediately near him.
As another protestor rose near the same corner, the Chief Justice felt obliged to come to the aid of the police force. “We have a couple of more over here,” Roberts said, pointing to the corner.
After six or seven demonstrators had said their lines and were removed, which had taken several minutes, it appeared the protest was over.
“We will now continue with our tradition of having open court in the Supreme Court,” Chief Justice Roberts said. He announced that Justice Sonia Sotomayor would deliver the first opinion of the day, and the rhythms of the courtroom soon settled back to normalcy.

Wednesday, January 21, 2015

Judge Jose Gonzalez celebrates 50 years on the bench

Wow, what an accomplishment for such a good and nice man.  Last week the Court recognized Judge Gonzalez at the Ft. Lauderdale courthouse (good thing it wasn't raining!).  Lots of law clerks, friends and family attended, including good friend Justice Stevens.  Pretty neat.  Here's a picture of Judge Gonzalez with his law clerks:

Monday, January 19, 2015

Return of the Jedi

Guy Lewis and Michael Tein, along with Dexter Lehtinen, just blew up the Death Star.  It was a long war, but they have finally won to the tune of over $1 million in sanctions against the Tribe's lawyers.  Kudos to Lewis and Tein's lawyers Paul Calli, Chas Short, and Yolanda Strader for this big win.

Judge Marcia Cooke found:
  •  “The history of this action, along with the attendant state actions … indicate that a sizeable monetary sanction, in addition to the … recommendation to the Florida Bar for ethical violations, may be the only deterrence that resonates with [the Tribe] and its counsel.”  
  • “Roman could not, or did not, cite one instance where Defendants Lewis Tein’s billing actually was fake or fraudulent.” 
  • “Roman disregarded the fact that other lawyers, including himself, had invoices for similar amounts. … Roman testified that he charges the Tribe $300,000 per month, or $3 million a year.”  
  • “Roman initiated the investigation with a conclusion in mind and searched for facts to accommodate his presupposed conclusion.”
  • “Roman’s failure to investigate, or rely upon the facts revealed in his investigation, are inexcusable and merit sanctioning, especially given that there is no justifiable reason for an ignorant filing.” 
  • The Tribe's lawyer, Bernardo Roman III, should be referred to the Florida Bar and the S.D. Fla. professional committee for investigation and appropriate disciplinary action.
  •  “I decline the invitation to refer Roman to the United States Attorney’s Office for inquiry into whether he should be criminally charged with any violations of the law. His behavior is egregious and abhorrent, but I will not interfere with the determination of whether it constitutes criminality.”


Obi-wan Pacenti's last article at the DBR was fittingly on this:

A federal judge ordered more than $1 million in sanctions Friday against Miami attorney Bernardo Roman III, who represented the Miccosukee tribe in its feverish pursuit of a federal racketeering suit against its former legal counsel.
The Miccosukee tribe's "internal feud blinded its counsel, Bernardo Roman III, from adhering to the ethical tenants of our profession," U.S. District Judge Marcia Cooke in Miami wrote. She called his conduct "egregious and abhorrent" more than a year after finding no basis for the lawsuit.
The sanctions order flows from the highly contentious complaint in 2012 against the tribe's former attorneys: Guy Lewis and Michael Tein of Lewis Tein and Dexter Lehtinen of Lehtinen Schultz Riedi Catalano de la Fuente.
Lehtinen and Lewis are former U.S. attorneys in Miami. Cooke ordered Roman to pay Lewis Tein $975,750 and Lehtinen $95,640.
The lawsuit claimed the lawyers helped former Miccosukee chairman Billy Cypress embezzle $26 million. It also claimed Lewis Tein billed the tribe for work never performed and Lehtinen's tax advice to a $170 million Internal Revenue Service lien against the tribe and its members for failing to report gambling profits.
Cooke dismissed the lawsuit in September 2013.
"The wrongful conduct is the filing of the complaints with no reasonable factual basis to support their allegations," she wrote.
Cooke's 27-page order referred Roman to the Florida Bar, where he already faces an ethics investigation, and the Southern District of Florida professional committee for possible disciplinary action.
The judge declined to refer the case to the U.S. attorney's office for criminal prosecution as requested. She also declined to sanction Roman's associates, Yesenia Lara and Yinet Pino.
In response, Lewis Tein attorney Paul Calli of Carlton Fields Jorden Burt in Miami accused Roman of filing a "cowardly series of drive-by-shooting-like lawsuits," including the federal "lawsuit devoid of any merit."
Roman did not respond to a request for comment by deadline.

Thursday, January 15, 2015

A few news and notes

1.  The Justices seemed annoyed that the U.S. would deport someone over a sock.  From USA Today:

The Supreme Court had a suggestion Wednesday for one of the more extreme reasons used by the Obama administration to deport documented immigrants on drug charges: Stick a sock in it.
The justices appeared fed up by the latest in a series of cases they have reversed over the past decade — cases in which immigrants have been deported or threatened with deportation because of minor drug offenses.
This time, the offender was convicted of possessing "drug paraphernalia" — a sock used to conceal four tablets of Adderall, a stimulant used to treat attention deficit hyperactivity disorder.
"If he had cocaine in his sock, he would probably be convicted of possession of cocaine," a clearly miffed Justice Elena Kagan said.
"He was convicted of paraphernalia here because he had four pills of Adderall, which if you go to half the colleges in America ... and just randomly pick somebody, there would be a decent chance..." the former Harvard Law School dean said, her voice trailing off.
Nearly all the justices appeared convinced that the government had gone too far in deporting Moones Mellouli, a Tunisian who came to the USA on a student visa in 2004 and went on to earn two master's degrees, work as an actuary and teach mathematics at the University of Missouri-Columbia.
Mellouli was deported under a federal law that permits the government to remove non-citizens "convicted of a violation of ... any law or regulation of a state, the United States or a foreign country relating to a controlled substance." First offenses for minor amounts of marijuana are exempt.
Much of the hour-long argument dealt with the literal and practical interpretations of those words. Does the drug have to be on the federal list, or is the Kansas list enough? Is it the violation that matters or only the conviction? What does "relating to" refer to — the violation or the law?
It wasn't long before the justices socked it to the government, and the case began to unravel.
"Is a sock considered drug paraphernalia under federal law?" Justice Ruth Bader Ginsburg asked Mellouli's lawyer, Jon Laramore.
"Do you think a sock is more than tenuously related to these federal drugs?" Justice Antonin Scalia asked the government's lawyer, Assistant Solicitor General Rachel Kovner.

2.  Feds grab man selling black rhino horn.  From the Sun-Sentinel:
The president of a luxury Boynton Beach auction house pleaded guilty Wednesday to conspiring to smuggle rhinoceros horns, coral and elephant ivory to China.
Christopher Hayes, president of Elite Estate Buyers, admitted to participating in a complex conspiracy to falsify shipping documents and use third-party shippers to help slip the illegal items out of the country to foreign buyers. In one case, federal prosecutors say, he sold two horns of the endangered black rhinoceros to a Texas resident and who was smuggling them to China....
Hayes' lawyer, Benedict Kuehne, said his client was "deeply apologetic" about violating the law protecting endangered species.
"He is distraught that he even in a slight way may have contributed to the harm of the environment and endangered species," he said. "Through his established business, he hopes to become an educator and leader in informing the profession about the concerns with endangered species items."
Hayes, 55, of Wellington, faces up to five years in prison and a fine of up to $250,000. A sentencing date has not been set. The company, which does business under the name Elite Decorative Arts, will pay a fine of $1.5 million. The company deals in high-end goods such as Chinese jade jewelry, oil paintings and antique porcelain.
The horns of the black rhinoceros, a critically endangered African species, command high prices in Asia for their use in traditional medicine. The investigation involved undercover officers of the U.S. Fish and Wildlife Service, who posed as buyers.

3.   Dersh's op-ed about the false accusations against him is pretty powerful:

I now stand accused of crimes I did not commit, by an unnamed woman who I don’t know and never met. I am also being sued for defaming my accusers. I still have no opportunity to respond in court to the false charges, though I am now seeking to intervene in the lawsuit in which the accusation was filed. I have submitted a sworn statement denying the accusations with great specificity. The court has not yet decided whether to accept my motion.
I feel like a victim of a drive-by shooting or the object of scribbled graffiti on the wall of a bathroom stall. I may never have the opportunity to prove my innocence, or to have my accusers prove the false charges, in any court of law. But because I am relatively well known—a double-edge sword in these situations—I can at least fight back in the court of public opinion, though at the very high cost—in legal fees, loss of insurance coverage and the possibility of a large monetary judgment against me.
Imagine the same thing happening to a person who did not have the resources to fight back.
There is a gaping hole in our legal system that allows lawyers to bring irrelevant accusations against innocent nonparties in court papers that insulate them from any consequences, and to deny the falsely accused any opportunity to respond.
The law must be changed to shatter this hall of mirrors I face and others might. There must be consequences for those who file accusations with no offer to prove them and no legal responsibility if they are categorically—and disprovably—false.
I will not rest until this gaping hole is filled with reasonable safeguards, so that what is happening to me can never happen to another innocent person.