Judge William J. Zloch

By John R. Byrne

We're moving into the modern era of our portrait post series. Up this week is Judge William J. Zloch. 

I never tried a case before Judge Zloch but, when I was a prosecutor, I had a couple of cases in front of him where the defendants pled guilty. I remember him asking the defendants, "Why did you do it?" or some variation on that question. That led to some interesting moments and some close calls on getting through the colloquy! 

FBA write up below. 

*****

Judge William J. Zloch was nominated to the district court by President Reagan in 1985 and continues to serve as a senior judge in the district. A South Florida native, Judge Zloch attended the University of Notre Dame, where he had a successful football career, playing both as a wide receiver and quarterback. After college, Judge Zloch served in the U.S. Navy for three years, before returning to Notre Dame for law school. He then worked in private practice in Fort Lauderdale until his judicial appointment. From 2000 to 2007, Judge Zloch served as the chief judge of our district. He presided over several notable cases, including a 2016 class-action claim against the Democratic National Committee that the Committee had worked to tip the scales in primary elections in favor of certain candidates. Wilding, et al. v. DNC Servs. Corp., 2017 WL 6345492 (S.D. Fla. Aug. 25, 2017). 

Eleventh Circuit Upholds Injunction of Stop WOKE Act

By Jordi C. Martínez-Cid

The Stop Woke Act, also known as the Individual Freedom Act, seeks to restrict schools and businesses from promoting certain concepts related to race, gender, and social privilege. In an opinion by Judge Grant, joined by Judge Wilson, and with a dissent by Judge Lagoa, the Eleventh Circuit upheld an injunction blocking enforcement of the Stop WOKE Act as to universities.

The majority characterized the government's position as attempting to create a salary-for-speech rule and grappled with how to balance professors' First Amendment rights with the government's interest in regulating work-related communications. The majority argues that the dissent cherry-picks from Supreme Court precedent (as well as from a Third Circuit opinion drafted by then-Judge Alito). The majority instead ultimately finds that "managerial concerns are not at play here" and that "the law is a per se ban on speech the State disagrees with."

Judge Lagoa, in dissent, argues that precedent and the majority establish that the State can restrict a professor's speech and that the State's authority "is at its zenith in public classrooms[.]" She criticizes the majority as creating an unworkable judge-created test reflecting their policy preferences that overly relies on the relatively recent principle of academic freedom which is not enshrined in the First Amendment. Judge Lagoa concludes by saying that "the majority shifts that decision-making authority [to limit what can be taught] from the people to federal judges. The test now is: Does the presiding judge believe that the professor’s viewpoint is within the range of permissible views?"

It will be interesting to see if this one is heard en banc or if it makes its way to the U.S. Supreme Court. Full opinion here.

Court Celebrates America's 250th

By John R. Byrne

The blog turned 21 yesterday, and America turned 250 on Saturday. Two great institutions, just at different stages of life.

The Court celebrated America’s 250th in style last Wednesday in Judge Bloom’s packed courtroom. Judge Bloom opened with thoughtful remarks about what makes our Court so special, including the number of foreign-born judges who have served it, and about the vital role lawyers play in protecting the Constitution.

That set the stage perfectly for Judge Ruiz’s featured lecture on the so-called 18th Grievance in the Declaration of Independence: King George III’s deprivation of the colonists’ right to trial by jury. Judge Ruiz shared powerful quotes from the Founders about that right. Just as powerful, though, were the quotes he shared from real jurors reflecting on their own experiences serving on juries. Judge Ruiz sends a survey to jurors after their service, and their responses were a reminder that, while most people dread jury duty, their service often leaves a profound impact on them. 

All in all, it was a special day, and I’m grateful the Court marked this historic milestone in such a meaningful way. I hope one day future generations will gather to celebrate the blog turning 250, maybe from the comfort of an air-conditioned Mars.

And good luck to the US men’s national team tonight in the World Cup!

Happy Birthday to the Blog

By David Oscar Markus

21 years old!

We can drink now, woohooo! 

I started the blog on July 4 weekend in 2005, calling for the President to appoint a Floridian to the Court (we now have one!). 

Since then we've had 12,850,251views and over 5,000 posts, with over 20,000 comments.

Pretty remarkable, especially because not many blogs are still around. 

I am lucky that we've added some great writers -- John Byrne and Jordi Martinez-Cid.  And we are always lucky to have some great guest posts.

I am also thankful for all of the tips that you send -- from lawyers to judges to politicians.  The blog would not function without your help.

But most of all, thanks for reading.

Let's see if this thing will run for another 20 years!

Thank you,

David 

NY Times v. Sullivan Lives to Fight Another Day

By John R. Byrne

We've blogged several times about Alan Dershowitz's lawsuit against CNN. Judge Singhal granted summary judgment to CNN and the 11th Circuit affirmed. But in their opinions, both Judge Singhal and Judge Lagoa questioned the continuing vitality of the NY Times v. Sullivan standard. But it looks like the standard will live to see another day. This past Monday, the Supreme Court denied Dershowitz’s cert petition. But that denial came with a dissent from Justice Thomas, which was joined by Justice Gorsuch. Citing Judge Lagoa, among others, Justice Thomas wrote that "The actual malice' standard for public figures bears no relation to the text, history, or structure of the Constitution.” You can read the one-page dissent here. 

That sound you heard Monday was the sound of media outlets collectively exhaling!

NOT GUILTY

By Anonymous Court Watcher

Today brought a remarkable result and a hard-fought victory for one (former) criminal defendant and the Federal Public Defender’s Office: a jury returned a verdict of not guilty on all counts against Harun Abdul-Hamid Yener. 

Mr. Yener, a 30-year-old Coral Springs resident, had been charged in a superseding indictment in connection with an alleged plot to bomb the New York Stock Exchange. The charges were as serious as they come, including attempting to use a weapon of mass destruction; attempting to use an explosive device to damage or destroy a building used in interstate commerce; and threatening to murder federal law enforcement officers. A conviction on these charges would have carried life-altering consequences—and a guidelines life sentence.

The defense centered on a theory of entrapment. That’s the principle that the government cannot induce a person to commit a crime he was not otherwise predisposed to commit—and then turn around and prosecute him for it. The trial team made the case that the conduct at issue originated with the government, not with Mr. Yener.

Mr. Yener was represented at trial before Judge Bloom by Assistant Federal Public Defenders Abby Becker and Victor Van Dyke. Mr. Van Dyke delivered an extraordinarily powerful closing argument, and the jury seems to have agreed with his impassioned presentation. The verdict is a testament to their preparation, advocacy, and unwavering commitment to their client and to the Constitution. This is a particular special win for Mr. Van Dyke, as this trial marks the end of his tenure at the FPD. He's about to begin a new chapter at Schlesinger Law Offices in Fort Lauderdale. 

This outcome is a powerful reminder of why the work of the Federal Public Defender’s Office matters. The presumption of innocence and the right to a vigorous defense are not abstractions. They are the safeguards that produced a just result in this case. Congratulations to Mr. Yener, Abby Becker, Victor Van Dyke, and the entire defense team on a tremendous and well-earned win.

Florida AG and Governor Call for Judge De La O's Impeachment

By Jordi C. Martínez-Cid

Florida Attorney General Uthmeier called for the impeachment of Judge Miguel de la O, seemingly as the result of Judge De la O finding a defendant not guilty by reason of insanity. The call for impeachment was supported by Governor DeSantis and is at least the third threatened impeachment of a judge seemingly as the result of an unpopular or politically disfavored ruling.

Judge de la O has served as a circuit judge in Miami-Dade County since 2012 and is widely regarded as a fair, thoughtful, and principled jurist. He received the League of Prosecutors’ Justice Award in 2016, an award from the Florida Association of Criminal Defense Attorneys in 2020, and, more recently, The Florida Bar’s William M. Hoeveler Judicial Professionalism Award, given to judges who exemplify integrity, civility, and respect for everyone who appears before them. These honors reflect a broad, bipartisan consensus in the legal community that Judge de la O is exactly the kind of independent, even-handed judge our system of justice needs.

Quite frankly, however, Judge de la O's qualities have little relevance. He should not be threatened with impeachment for upholding his oath to follow the law (regardless of whether I agree with the ruling). If the problem lies with the law, that problem should be resolved by the Legislature. If the problem lies with the judge's interpretations of the law being deeply unpopular, that problem should be resolved by Floridians at the next election. If the Executive has a problem, those problems should be addressed in the appellate process, not through impeachment. To threaten impeachment because of disfavored rulings--instead of "misdemeanors in office" as contemplated by the Florida Constitution--erodes judicial independence.

As someone who pays close attention to the abuses occurring 90 miles from our shores, it is painfully clear how important judicial independence is to the proper functioning of a government. I have taken the liberty of drafting a letter in support of that bedrock of our legal system which I hope you support. It is below and, as mentioned in the letter, should you wish to sign, please email operations@cabaonline.com before 5:00 today with your name, Florida Bar number, and, if applicable, the firm or organization on whose behalf you are also signing.

As a final note, thank you David for allowing me to post on a more state-focused topic than is typical here.

The 4th Amendment is dead. God save the 4th Amendment.

It's very rare for the Supreme Court to take a 4th Amendment case because the law has been so gutted over the past 30 years.  So folks were a little nervous when the Court took the geo-fence case, Chatrie.  But what a pleasant surprise this morning -- the Court decided Chatrie v. United States in favor of the defense and the 4th Amendment.

Justice Kagan wrote for the Court, joined by the Chief, Sotomayor, Kavanaugh, and Jackson. The reasoning relies heavily on Carpenter v. United States, 585 U.S. 296 (2018). If cell-site data was a search, Location History is the easier call. It's more precise (within about 20 meters, versus cell-site sectors measured in square miles), it logs you hundreds of times a day, and it can tell which floor of the building you're on. The Court called it a personal journal of your movements. That's right.

The third-party doctrine didn't save the government. The Court wasn't buying the idea that you "volunteer" your whereabouts just by leaving Location History on. That's what happens when you use the phone in your pocket for what phones are for.

A few notes for the practitioners.

Gorsuch concurred only in the judgment. He'd toss Katz and decide these cases on property: your data is your "effect," full stop. 

Jackson, joined by Sotomayor, would have gone further and struck the warrant itself, which gave officers a roving commission to keep narrowing the list with no real criteria and no magistrate watching.

The Court decided only that a search happened. It sent the case back to the Fourth Circuit to sort out whether this odd multi-step warrant was any good, and Chatrie may still lose on good faith. Alito, dissenting (because he could never bring himself to rule for a criminal defendant), calls the whole thing advisory for that reason.