En banc 11th Circuit rules in gender discrimination case

Knowing the makeup of the court, you know how this one came out already.  Summary judgment for the company, Kia Motors, affirmed.  Judge Branch writes the majority opinion.  There are six separate opinions in all:

BRANCH, Circuit Judge, delivered the opinion of the Court, in which WILLIAM PRYOR, Chief Judge, GRANT, TJOFLAT, ED CARNES, MARCUS, and JULIE CARNES, Circuit Judges, joined.

WILLIAM PRYOR, Chief Judge, filed a concurring opinion.

JORDAN, Circuit Judge, filed an opinion concurring in the judgment.

WILSON, Circuit Judge, filed an opinion concurring in part and dissenting in part.

MARTIN, Circuit Judge, filed a dissenting opinion, in which ROSENBAUM and JILL PRYOR, Circuit Judges, joined.

ROSENBAUM, Circuit Judge, filed a dissenting opinion, in which MARTIN and JILL PRYOR, Circuit Judges, joined.

Interestingly, 4 senior judges elected to participate in the case, and all of them voted with the majority.  Had they not participated, it looks like there would have been a 3 judge plurality.

Aileen Cannon nomination hearing is tomorrow (UPDATED)

You can watch, Wednesday at 10am, at this link.

She's up for the Fort Pierce seat.

Good luck!

UPDATE -- in other news, Judges Luck and Lagoa denied a motion to recuse in the felon voting rights case.  Here is an article covering the motion and order.

Two of President Donald Trump’s appointees to a federal appeals court have refused calls to recuse from a case that advocates say would affect the right of approximately 750,000 Florida residents with previous felony convictions to vote.

Voting rights advocates are challenging a Florida law that requires former felons to pay any outstanding legal financial obligations before they can vote, even if they can’t afford it. These obligations include the several hundred dollars in court fees and costs that are imposed in felony cases, as well as fines and restitution orders that can run in the thousands or even millions of dollars. Challengers argue a “pay-to-vote” policy is unconstitutional and the same as a prohibited poll tax.

The challengers argued Judges Barbara Lagoa and Robert Luck of the US Court of Appeals for the 11th Circuit should disqualify because they were involved in a related legal fight as state supreme court justices. In an opinion released Monday morning, Lagoa and Luck disagreed and said they would stay on.

The Florida case is one of the biggest voting rights fights pending in federal court with less than 100 days until the November presidential election. A federal district judge in Tallahassee ruled in May that the state could not condition voting rights on fines and fees that people with past convictions could not pay. The full bench of the 11th Circuit is scheduled to hear arguments on Aug. 18, the same day as Florida’s primary election.

Federal judge rightly upset over wrongful jailing of Michael Cohen

That's the title of my latest piece in the Hill.  Please click on the link for the whole article and let me know your thoughts.  Here's the intro:

Federal district judge Alvin Hellerstein was rightly outraged that a probation officer acting on behalf of the Bureau of Prisons had Michael Cohen arrested because he was writing a book about President Donald Trump and because Cohen would not agree to give up his First Amendment rights as part of his supervised release. The judge found that “the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others."
It is almost unheard of to see a federal judge get upset with a probation officer or the Bureau of Prisons. That’s because there is a fiction in the criminal justice system that a probation officer is an “arm of the court.” Criminal law practitioners, however, know the truth about probation officers — they often are advocates for the executive branch (prosecutors) and can push harder than even prosecutors do for draconian prison sentences.
Look at what happened with Cohen — he was arrested without approval from a judge and without his lawyers having the ability to argue his position with a judge before the arrest. And what was the supposed justification by the arresting officer? Cohen was “antagonistic” and did not want to sign a document outlining conditions of his ongoing release.
DOJ tried to come to the defense of the prison system and probation, arguing that Cohen’s lawyer was trying to “haggle” with the probation officer about wearing an ankle monitor. The judge made quick work of that argument: “What’s an attorney for if he is not going to negotiate an agreement with his client?”
You might be thinking that it is outrageous for a probation or prison officer to have this much power. If so, it’s even worse than you think. Although prosecutors and defense lawyers are not permitted to speak to the judge without the other side present, probation officers typically meet with judges alone, making their recommendations in secret without the parties getting a chance to be heard. And judges often defer to prison officials.

Judge finds Michael Cohen’s detention was wrong and orders him released

Good for Judge Alvin Hellerstein. The probation officer had Cohen detained when he wouldn’t agree to a gag order (because he was writing a book about President Trump). Cohen sued and said the arrest was retaliatory and violated the First Amendment. The judge agreed. From the Washington Post:

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others,” Hellerstein said in a scathing ruling issued Thursday morning. “In 21 years of being a judge and sentencing people and looking at the terms and conditions of supervised release, I have never seen such a clause.”

 The judge also made quick work of Cohen’s lawyer fighting for various conditions:

Assistant U.S. Attorney Allison Rovner argued that Cohen’s lawyer Jeffrey Levine tried to haggle with the probation officer on his requirement that Cohen wear an ankle monitor, saying it was a condition reserved for “violent” convicts. There was nothing wrong with Levine trying to negotiate for his client, the judge said, and the attempt to debate the terms should not have been cause to imprison him.
“What’s an attorney for if he is not going to negotiate an agreement with his client?” the judge said.
A spokesman for the U.S. attorney’s office declined to comment on whether prosecutors intend to appeal.
Danya Perry, one of Cohen’s attorneys, called the ruling a victory for the First Amendment. “This principle transcends politics and we are gratified that the rule of law prevails,” Perry said.
Cohen’s legal team also includes lawyers from the American Civil Liberties Union.

"Alabama’s history of enacting laws designed to suppress people of color is well-documented."

That's Judge Gayles, sitting by designation in the 11th Circuit, in dissent in this voting rights case:

Alabama’s history of enacting laws designed to suppress people of color is well-documented. See Lynch v. Alabama, No. 08-S-450-NE, 2011 WL 13186739, at *12–18 (N.D. Ala. Nov. 7, 2011) (detailing Alabama’s extensive history of legislation designed to disenfranchise and limit the power and influence of its Black citizens), aff’d in part, vacated in part, remanded sub nom., I.L., 739 F.3d 1273. The majority opinion essentially argues that we should not penalize Alabama’s legislators for Alabama’s past; rather, we should start with a clean slate when reviewing the Photo ID Law. But this is not what the law commands us to do. Alabama’s history of voter suppression is relevant here and provides a wealth of direct and circumstantial evidence that should be considered at trial.14
For these reasons, I respectfully dissent. 

Judge Branch wrote the majority opinion, joined by Judge Carnes:

At the end of 2015, advocacy groups and individual Plaintiffs filed this lawsuit against Alabama’s Secretary of State, John Merrill, challenging Alabama’s 2011 Photo Voter Identification Law (hereinafter, the “voter ID law”), passed by the Alabama legislature as House Bill 19 and codified at Ala. Code § 17-9-30. The voter ID law took effect in June 2014 and requires all Alabama voters to present a photo ID when casting in-person or absentee votes. Plaintiffs allege the law has a racially discriminatory purpose and effect that violates the United States Constitution and the Voting Rights Act (the “VRA”). Specifically, Plaintiffs claim the law violates the Fourteenth and Fifteenth Amendments of the Constitution; Section 2 of the VRA, 52 U.S.C. § 10301; and Section 201 of the VRA, 52 U.S.C. § 10501. Based on these allegations, Plaintiffs seek declaratory and injunctive relief to prevent the enforcement of Alabama’s voter ID Law. Secretary Merrill denies that the law is discriminatory, arguing that Alabama accepts so many types of acceptable IDs that most Alabamians already possess photo ID and voters who do not have one can obtain one easily.
Secretary Merrill filed a motion for summary judgment on all counts, while Plaintiffs moved for partial summary judgment on one claim and one issue.1 The district court granted Secretary Merrill’s motion and Plaintiffs-Appellants timely appealed.
Because Plaintiffs have failed to identify any genuine disputes of material facts and because no reasonable factfinder could find, based on the evidence presented, that Alabama’s voter ID law is discriminatory, we affirm the district court’s order granting summary judgment in favor of the Secretary of State for the State of Alabama.

Judge Federico Moreno is now senior status

As of July 17, Judge Moreno took senior status.  He served the District for 30 years.  A big thank you and congratulations to one of the longest (THE longest?) active serving judges in our District.  In addition to his service, he will also be remembered for his legacy of championing his clerks and having them appointed as judges and other important positions.  His judging tree (like Belichick's coaching tree) is extremely impressive. 

Although we do not yet have an official nominee for Judge Moreno's seat, it is widely known that David Leibowitz is being vetted for that slot.  Leibowitz is a great and very smart guy, so hopefully that process can move forward. 

Will Florida felons be permitted to vote?

It's a huge fight.

Even though Florida voters passed a Constitutional Amendment saying felons get to vote, there has been a lot of wrangling to stop this from happening.  A district judge said that the State was putting up too many hurdles for voting.  So all looked okay... but then the 11th Circuit stayed that order. Up to the Supreme Court it went.  And, shocker, Justice Thomas, denied the motion to vacate the stay.

There were three dissenters (Sotomayor, Ginsburg, and Kagan; we need more women on the Court).

So the likelihood is that the 11th Circuit won't get to this one before the November election and 1.4 million people won't be allowed to vote, which is a tragedy.  But there is still hope for the next election.

And there is still quite a bit of litigation to follow.  The latest is this motion to recuse Judges Luck, Lagoa, and Brasher. 

Reminds me of Omar Little:

Miami is new epicenter of corona

That’s the headline everywhere this morning.
Getting much less attention is how that affects the jails and prisons in South Florida.
Criminal defense lawyers know that the local facilities are a true disaster right now.
Clients are on 24-hour lockdown, unable to see family or counsel.
They are locked in their small cells with two other inmates and not permitted to leave.
There is extremely limited testing.
There are no masks.
It’s like being in a Super-Max while the virus creeps around the building.
Here’s one article that at least is covering the issue:

"The virus has already spread inside," Troitino said. "I am highly concerned for public safety. Our facility is in the middle of a community, a very vibrant community."

Internal documents NBC 6 obtained showed that on Tuesday, 11 inmates had the virus. Troitino says there was a big jump, indicating trouble.

"Yesterday alone we discovered in one area that held 60 inmates over 22 tested positive and that’s only after testing 28," he said. "We don’t know where this is going to lead but it looks catastrophic at the moment."

Troitino said officers were given inferior PPE gear. Warden Sylvester Jenkins denied that claim in an email.

Our judges have let a few folks out for compassionate release, but a lot more needs to be done. And Judges Williams and Cooke tried to deal with state and immigration facilities. But how about granting bail? Or contested CR motions? Waiving the 30-day administrative waiting requirement? And so on.

This was not a liberal Supreme Court Term

There's been a lot of commentary that the Supreme Court has shifted to the left with some decisions by Justices Roberts and Gorsuch.  But as Leah Litman points out in this Washington Post commentary, that is wrong.  Here's a portion of her piece:

The conservative legal movement obtained equally significant wins in a series of decisions involving religious freedom, simultaneously requiring that government treat religious institutions equally with nonsectarian ones and exempting religious entities or those with religious concerns from otherwise applicable rules, such as anti-discrimination laws.In one case, Our Lady of Guadalupe School v. Morrissey-Berru, the court ruled that anti-discrimination statutes such as Title VII and the Americans With Disabilities Act do not apply to religious teachers at religiously affiliated schools — dramatically broadening an exemption that had previously applied to those in the role of “ministers.” In another case involving access to contraceptive coverage, Little Sisters of the Poor v. Pennsylvania, the court held that the Trump administration could exempt employers with religious or even moral objections from the minor requirement that they notify their insurance providers about their objections to providing coverage.The court’s approach augured future wins to conservatives that will limit the scope of civil rights protections. For example, the court this year held that Title VII’s prohibition on job discrimination because of sex extends to gay and transgender workers. But the other rulings strongly indicate that the court will be wary about extending that protection in situations where employers claim religious objections.Even as the court expanded religious entities’ ability to opt out of anti-discrimination legislation, it widened the government’s obligation to provide public support for religious entities. In Espinoza v. Montana Department of Revenue, the court, again in an opinion by Roberts, ruled that a program that provided scholarships for private schools had to make those scholarships equally available to religious schools.Previously, the court had held that a government program that provided help to private schools for playground resurfacing had to be made available to religious schools as well. The Montana case represented a dramatic expansion of requirements for direct funding of religious education, which the court said was mandated by the constitutional protection for free exercise of religion. The combined effect of the religion decisions is to require government support for institutions that are not required to comply with legal prohibitions on discrimination.Even in cases where the conservative argument lost, Republican politicians won. The court’s seemingly progressive decisions on social issues were electoral gifts to Republican politicians up for reelection. The public largely supports women’s ability to have an abortion, protection against deportation for the young immigrants known as “dreamers” and anti-discrimination rights for LGBTQ employees. The Supreme Court’s decisions on these issues prevent Republican politicians from having to defend unpopular rulings by Republican-appointed justices in the lead-up to the election.

Big day at SCOTUS

And I'm not talking about the tax return cases.  It's the "Indian country" case where Justice Gorsuch wrote in a 5-4 opinion that most of Oklahoma is mostly "Indian country," meaning that Oklahoma could not prosecute Jimcy McGirt for raping a child. 

Justice Gorsuch's conclusion:

The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes towithdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.The judgment of the Court of Criminal Appeals of Oklahoma is
Reversed.

 And Chief Justice Roberts' dissent intro:

In 1997, the State of Oklahoma convicted petitioner Jimcy McGirt of molesting, raping, and forcibly sodomizing a four-year-old girl, his wife’s granddaughter. McGirt was sentenced to 1,000 years plus life in prison.  Today, the Court holds that Oklahoma lacked jurisdiction to prosecute McGirt — on the improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation, on which the State may not prosecute serious crimes committed by Indians like McGirt.  Not only does the Court discover a Creek reservation that spans three million acres and includes most of the city of Tulsa, but the Court’s reasoning portends that there are four more such reservations in Oklahoma.  The rediscovered reservations encompass the entire eastern half of the State — 19 million acres that are home to 1.8 million people, only 10%–15% of whom are Indians.
Across this vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.  On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.  The decision today creates significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.
None of this is warranted. What has gone unquestioned for a century remains true today: A huge portion of Oklahoma is not a Creek Indian reservation. Congress disestablished any reservation in a series of statutes leading up to Oklahoma statehood at the turn of the 19th century. The Court reaches the opposite conclusion only by disregarding the “well settled” approach required by our precedents. Nebraska v. Parker, 577 U. S. 481, ___ (2016) (slip op., at 5).

Chief Justice Roberts got a few stitches last month...

... and people are freaking out even though he is fine. From the WP:

Chief Justice John G. Roberts Jr. suffered a fall at a Maryland country club last month that required an overnight stay in the hospital, a Supreme Court spokeswoman confirmed Tuesday night.

The 65-year-old chief justice was taken by ambulance to a hospital after the June 21 incident at the Chevy Chase Club, which was serious enough to require sutures. He stayed at the hospital overnight for observation and was released the next morning.

Roberts has twice experienced seizures, in 1993 and in 2007, but Supreme Court spokeswoman Kathleen Arberg said doctors ruled out that possibility in the latest incident. Doctors believe he was dehydrated, she said.

Roberts did not publicly disclose the matter, and the court’s confirmation came in response to an inquiry from The Washington Post, which received a tip.

I'm sure the conspiracy theorists who are disappointed in his recent rulings will blame the fall for his joining the moderate justices in June Medical and others.

Meantime, in the 11th Circuit, new Chief Judge William Pryor issued this order concerning oral arguments, which includes the possibility of video oral arguments being streamed. Good stuff!

Burying documents

Prosecutors are in trouble again, this time in SDNY.  But this time, at least they dismissed the case -- even after trial (something most prosecutors, including in this District, refuse to do after misconduct has been proven).  Even though they have agreed to dismiss, the judge wants answers and strangely, the prosecutors are saying that their actions weren't all that bad.  From NPR:

Federal prosecutors under scrutiny for failing to turn over favorable evidence to a defendant told a judge they didn't act in bad faith, even as they disclosed internal emails in which they discussed whether they might try to "bury" a document they were giving to defense lawyers in a stack of other papers.

Prosecutors in the Manhattan U.S. Attorney's Office made the disclosure in a letter to Judge Alison Nathan, who had demanded answers about the prosecution's failings and whether she had the power to impose sanctions against them.

The newly revealed email message described how one of the prosecutors found out that an important document hadn't been turned over to the defense, suggesting: "I'm wondering if we should wait until tomorrow and bury it in some other documents."

Prosecutors now say the document was not, in fact, "buried" because they turned it over less than 24 hours after the email discussion.

Their July 2 letter said the prosecutor who wrote the email was "endlessly chagrined about this chat" and added that "we believe it would go too far to condemn her for a Friday night lapse in thinking regarding a document that was in fact disclosed Saturday afternoon."

Defense lawyers for Ali Sadr Hashemi Nejad, who was charged with violating American sanctions laws against Iran, told the court they are "surprised and disappointed."

Attorney Brian Heberlig accused the prosecutors, and an official in the U.S. attorney's office who's tasked with promoting professional responsibility, of trying "to minimize, deflect, and deny, avoiding any acknowledgment or acceptance of responsibility for the government's obvious, repeated failures and its notable lack of candor," in his own letter to the court.

Squabbles over turning over documents, known as discovery, are common in federal criminal cases. But it's rare for a judge to demand that the government identify lawyers and supervisors involved in evidence-sharing lapses.

And it's even more rare for prosecutors to acknowledge such serious faults that they moved to dismiss a case they had already won.

"Any new trial would necessarily require a new team of (assistant U.S. attorneys) who would have to become familiar with every aspect of the investigation — not an easy task, particularly in a case that has already suffered from multiple breakdowns in communication that contributed to significant disclosure failures," prosecutors wrote to explain their rationale for abandoning the conviction.

Aside from the discussion of whether to "bury" a government exhibit, Sadr's lawyers said the prosecution team had engaged in even more "egregious wrongdoing" by misrepresenting a search of emails before the March 2020 trial began.

If a defendant had engaged in this behavior, a prosecutor would have no qualms charging him and seeking an enhancement for obstruction, and a judge would give it in a heartbeat.

Happy 4th! (UPDATED -- and happy birthday to the blog!)

UPDATE -- I almost forgot! The blog turns 15 this weekend. The first post of the longest running Florida legal blog was way back on July 4th weekend, 2005 (calling for a Floridian to be appointed to the Supreme Court, which still hasn't happened!). HowAppealing and SCOTUSblog started things off and are still kicking, but most legal blogs have folded in favor of Twitter and other social media.  The blog has had over 3800 posts and over 4.6 million page views. I'm not sure how much longer I'll do this, but it's been a fun ride! Thanks to all the tipsters and readers over the years.  I really appreciate it.

ORIGINAL POST: For your reading pleasure, here's an article about judges behaving badly.  None of our judges made the list.  Here's my favorite one:

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

Some sad stats:

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Is Justice Alito going to retire?

The rumor mill is in high gear right now.  Check out this article suggesting that the retirement is coming.

And it's July 1, and we don't have all of the Court's opinions yet.  The poor dears can't start their summer vacay yet because there is still work to do.  More opinions on Monday, but in the meantime, the Court granted cert today on whether the Mueller report would be released in total... after the election.  Via Scotusblog:

This morning the Supreme Court issued orders from the justices’ private conference yesterday. The justices added another high-profile case to their docket for the fall, involving a dispute over efforts by members of Congress to obtain secret materials from the investigation by Special Counsel Robert Mueller. Mueller submitted a report last year to Attorney General William Barr on possible Russian interference in the 2016 election, and Barr released a redacted version of that report in April 2019. In July 2019, the House Judiciary Committee went to federal court in Washington, D.C., seeking an order that would require the disclosure of the redacted portions of the Mueller report, as well as grand jury transcripts and materials that had been kept secret, for use in its impeachment investigation. The committee relied on a provision in a federal rule of criminal procedure that allows a court to authorize the disclosure of grand jury materials that would otherwise be kept secret “in connection with a judicial proceeding.”

The 11th Circuit, though, is working hard — cranking out opinions every day.  And it just granted en banc review in the very big felon voting rights case.