"We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment..."

Whether or not you agree with Judge Carnes, he's an excellent writer and a lot of fun to read. Check out his opinion today in Friends of the Everglades v. So. Fla. Water Mgmt. Hat Tip Curt Anderson. The text below in italics is Carnes'.

Here's the issue: This appeal turns on whether the transfer of a pollutant from one navigable
body of water to another is a “discharge of a pollutant” within the meaning of the
Clean Water Act, 33 U.S.C. § 1362(12).

No way to turn that into a fun opinion to read, right? Wrong. Right up front he's quoting a country singer: “But progress came and took its toll, and in the name of flood control, they made their plans and they drained the land.” John Anderson, “Seminole Wind,” on Seminole Wind (BMG Records 1992).

How's the water in those canals around the Lake? The area south of Lake Okeechobee’s shoreline was designated the Everglades Agricultural Area. The Corps dug canals there to collect rainwater and runoff from the sugar fields and the surrounding industrial and residential areas. Not surprisingly, those canals contain a loathsome concoction of chemical contaminants including nitrogen, phosphorous, and un-ionized ammonia.

Not the impression you want to make at oral argument: We begin with the cross-appeal, which contests the dismissal of the Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all.

The supplement filed after oral argument wasn't much better. A "sic" and getting mocked for using the third person: Two-and-a-half weeks after oral argument, however, we received a supplemental letter from attorney Nutt in which, referring to himself in the third person, he stated: “The Executive Director’s counsel did not have an opportunity to address the Court’s question, posed at the very end, whether the remedies available against the Executive Director through the fiction of Young are the same as the remedies available as [sic] against the District were it not immune. They are not.” The belated letter is not helpful.

More fun stuff: To decide questions that do not matter to the disposition of a case is to separate Lady Justice’s scales from her sword. That we will not do. Cf. George E. Allen, The Law as a Way of Life, 27 (1969) (“The scales of justice without the sword is the impotence of law.”).

What's an opinion if there aren't some baseball references: The unitary waters theory has a low batting average. In fact, it has struck out in every court of appeals where it has come up to the plate. … The Court has not, however, called the theory out yet. … The Friends of the Everglades, arguing against ambiguity, pitch us other decisions. … Deciding how best to construe statutory language is not the same thing as deciding whether a particular construction is within the ballpark of reasonableness. … None of the decisions the parties have thrown our way helps either side much.

Have you lost your marbles yet? Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting “any addition of any marbles to buckets by any person.” A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marblemover “add[ed] any marbles to buckets”? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other of the issue, we cannot say that either side is unreasonable.

Dore Louis is tall.

Here are the pictures from the FACDL banquet which took place a few weeks back, where Judge Hoeveler was honored. (So were the Liberty City lawyers and Ben Brummer). Hector Flores is the new president. And at the link, you'll see pictures of Judges Hoeveler and Graham, Magistrates Garber and O'Sullivan, former Florida Supreme Court Justice Kogan, FPD Kathy Williams and soon-to-be former USA Alex Acosta. And Dore Louis, who is very tall.

There is only one good thing about the summer:

The traffic.

Okay, maybe it's not that good.

Just saying.

"Do letters from the public — often or ever — influence sentencing judges?"

That's the question raised by sentencing guru Doug Berman. In his post, he discusses the Mary McCarty case and the "flood" of letters being filed with Judge Middlebrooks. Here's the Palm Beach Post coverage:

They're hailing Mary McCarty and flailing her.

With the fallen county commissioner set to be sentenced Thursday, U.S. District Judge Donald Middlebrooks is receiving a welter of missives from the public - some urging the maximum five-year sentence spelled out in her plea deal, some advocating no more than community service.

McCarty, 54, a Delray Beach commissioner and then an 18-year county commissioner, pleaded guilty in March to misdeeds that included votes on bond deals that benefited herself and her underwriter husband, Kevin. That made her the third county commissioner to fall since 2006 in a federal probe of what a state grand jury recently dubbed "Corruption County."

Dozens of people have written to Middlebrooks to weigh in on McCarty's fate, with many expressing anger at the extent of public officials' crimes.

U.S. Attorney's Office still keeping cooperation secret from public

Although Chief Judge Moreno and the rest of the SDFLA court have made plea agreements public again by allowing them to be accessed by PACER, the government is still attempting to keep cooperation agreements secret and off-line.

A number of AUSAs and AFPDs have emailed me the new government policy when a defendant is cooperating: Just delete those sections* from the plea agreement and include them in a letter agreement, NOT FILED WITH THE COURT. This new policy certainly circumvents the spirit of making deals open to the public. From what I understand, the prosecutors ask the court to go over the cooperation letter agreement with the defendant, but then ask for the letter not to be filed in the court record. I suspect that most judges will not abide by this request, especially because technically the letter is a matter of public record if reviewed in open court -- so why not file it...

But we'll have to see how this plays out.

*Those cooperation agreements never say anything anyway, so I'm not sure what the big deal is about including it in the open record.

Killing your Friday afternoon...

And more fun Friday afternoon stuff here.

Ruining summer vacation

No one respects childhood anymore, you know? Nowadays, it's all about pushing and prodding the kids to get ahead of the brats next door or the Chinese or whomever. And now we're doing that to our incoming batch of UM 1Ls. This showed up in my inbox just about the time my SDFla blogging wrapped up:

This summer we plan to use our orientation blog to begin to explore some ideas about the law through books and films. ... Each week we will have by Monday some discussion questions posted on the blog, and we will see where the conversations take us.

The idea seems to be to use a blog as a diabolical weapon that targets summer fun. Needless to say, I hit "delete" as fast as I could—which is what I gather just about all of my colleagues did because a couple of weeks ago we started getting phone calls. Long story short, I was prevailed upon, as they say, to do this for a little while.

Now, my being a team player doesn't mean I'm not going to do everything my way. I obviously can't work in an oppressive password-protected website cut off from the outside world that doesn't even allow people to post their coarsest thoughts and pejoratives anonymously. As my grandmother says, "Me fuí de Cuba por menos." So, I'm hijacking the kids over to an unofficial open forum called umbricks.com. What's the point of having tenure if you never color outside the lines? (Or sentence below the guidelines?) This way all you members of the Innominate D.O.M.inati—particularly those who are UMSoL alums—can share your comment-space insights on life and law with the wide-eyed eager pups. Go check it out and engage the future of SDFla.

Justice Scalia and Rumpole

Rumpole is getting all hot and bothered by Justice Scalia's recent decision in Montejo v. Louisiana, overruling Michigan v. Jackson. I don't agree with the result either, but I have taken issue with Rumpole's attack on Scalia as a "dangerous" Justice and with Rumpole's defense of stare decisis.

As an initial matter, as a criminal defense lawyer, Rumpole should be cheering Scalia, who is by far the most friendly Justice to criminal defendants. I'm sure I'm forgetting some of his recent defense friendly opinions, but to name a few:

• Crawford v. Washington -- Justice Scalia breathed life back into the Confrontation Clause and did away with some really bad cases allowing prosecutors to get away with convictions based on hearsay.
• Blakely v. Washington (Apprendi, Booker, etc) -- criminal practitioners rejoiced when Scalia started the revolt against the mandatory federal sentencing guidelines.
• Arizona v. Gant -- Scalia rules in favor of criminal defendant on 4th amendment issue concerning a car search, overruling NY v. Belton.
• Begay v. United States -- finding in a concurring opinion that DUI was not a violent felony based on the rule of lenity.
• United States v. Gonzalez-Lopez -- Scalia finds (5-4) that a criminal defendant has a right to counsel of his choice. This was his quote at oral argument: “I don’t want a ‘competent’ lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.”
• United States v. Santos -- Scalia finds that the money laundering statute is ambiguous and rules for criminal defendant that it means proceeds, not profits.
• I'll end with Sorich v. United States in which Scalia dissents from denial of cert on honest services case. Here's part of his opinion:

[T]his Court has long recognized the“basic principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Bouie v. City ofColumbia, 378 U. S. 347, 350 (1964). There is a serious argument that §1346 is nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct. But "the notion of a common-law crime is utterly anathema today," Rogers v. Tennessee, 532 U. S. 451, 476 (2001) (SCALIA, J., dissenting), and for good reason. It is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail. “How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” Rybicki, supra, at 160 (Jacobs, J., dissenting). . . . It may be true that petitioners here, like the defendants in other “honest services” cases, have acted improperly. But “[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law.” Green v. United States, 365 U. S. 301, 309 (1961) (Black, J., dissenting). In light of the conflicts among the Circuits; the longstanding confusion over the scope of the statute; and the serious due process and federalism interests affected by the expansion of criminal liability that this case exemplifies, I would grant the petition for certiorari and squarely confront both the meaning and the constitutionality of §1346. Indeed, it seems to me quite irresponsible to let the current chaos prevail.

(A couple weeks after Scalia wrote this dissent, the Court granted cert in the Conrad Black case to figure out the reach of the honest services statute. I'd bet Rumpole that Scalia will rule for Black, but he still hasn't paid me on the last $100...)

And these are just a few off the top of my head in the last few years. I'm happy when Justice Scalia isn't a prisoner to stare decisis. If he was, we wouldn't have Crawford, Blakely, Gant, etc. I'm glad he's questioning cases that have been on the books for years because the law is more pro-government right now than it has ever been. The pendulum has started swinging back the other way, and it's due in part to Justice Scalia. Yes, criminal defendants are going to lose some too -- like Michican v. Jackson -- but I'll take the above cases with that one. (Has any lawyer ever even filed a Jackson motion to suppress?)

If I had to rank the Justices in order of defense friendly, here's my list:

Scalia, Stevens, Souter (for another couple weeks), Ginsburg, Breyer, Kennedy, Thomas, Roberts, Alito.