I'm baaaaaaacck

Big thanks to the the guest bloggers and posts while I was away.  Entertaining, informative and a little different than what you usually get from me, so that's really great.

Lots of complaints about prisons in the press, but not much action.  Here's the L.A. Times on the Supermax, and the Washington Post on solitary confinement. When will the Supremes take up the issue?

Former Broward Teachers Union President Pat Santeramo was indicted.  Paula McMahon is covering the story and Ben Kuehne is defending.

The 11th Circuit finally decided to dump one of the most ridiculous procedural rules ever. Now if the Supreme Court decides an issue after you've filed your initial brief, you can still raise the issue in a supplemental filing. 

Looks like the 4th Circuit in Graham created a Circuit split with the en banc 11th in Quartavious Davis on the cell-site data issue.  Hopefully the Supreme Court will take it (I'm biased as I am counsel of record for Davis).  My co-counsel, the ACLU, covers the story here.

Line spacing

Thanks to each of you who participated in last week’s poll on citing document numbers. You overwhelmingly chose “D.E.” over the other options.

In the comments to the post, a reader writes: “My goodness, this is boring. What’s next, a cutting analysis of whether 1.5 of 2.0 spacing is more effective???”

Perhaps there’s some sarcasm there. But the comment touches on a serious topic. Given each lawyer’s style and the challenge of adequately making arguments within the page limit, the question whether we should use 1.5 or 2.0 line spacing for our documents arises with some frequency.

First of all, when it comes to line spacing, do we—lawyers practicing in the Southern District of Florida—have a choice? And if we do, how to choose?

The local rules say we have a choice. Local Rule 5.1(a)(4) permits court documents to “have not less than one and one-half (1 ½) spaces between lines.” But some judges require documents to be double-spaced. So how we space our documents may be governed by the judge we’re appearing before.

Assuming we have a choice, what, then, should it be? There’s no easy answer. According to the Internet, many people think that 1.5 line spacing is easier to read. Others tout the environmental benefits of 1.5 line spacing; all things being equal, you use fewer pages. And there’s good precedent for it. When he was on the Southern District of Florida, Judge Jordan was a well-known 1.5 spacer.

But double spacing seems to be standard in the law. Most judges double space their own documents. And certain style guides—such as the Chicago Manual of Style—say documents should be double-spaced.

There are also practical considerations. You may prefer double-spacing, but opt for 1.5 spacing when you need more space.

Here’s this week’s poll:

What line spacing do you use in court documents?

Always 2.0

Always 1.5, unless the judge requires otherwise

1.5, but only if I need extra space

Other

 

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Eleventh Circuit Changes Precedent

Justice Scalia's opinion in Johnson v. United States is a significant opinion that received little coverage when it came out. In Johnson, the Supreme Court concluded that the Armed Career Criminal Act's residual clause was unconstitutionally vague. Johnson's ripples are reaching the circuit courts.

Thanks to Johnson, the Eleventh Circuit changed long-standing precedent. Wayne Durham was found to be an Armed Career Criminal under ACCA, and he appealed his sentence. In his opening brief, he did not challenge the ACCA's constitutionality. (In 2013, the Eleventh Circuit, in a published opinion, found that ACCA's residual clause was not unconstitutionally vague.) Under Eleventh Circuit precedent, the failure to raise the issue barred Mr. Durham's attempts to raise it in supplemental briefing. This rule applied despite intervening Supreme Court law.

But not anymore. In United States v. Durham, the Eleventh Circuit, en banc, overturned its precedent. It framed the issue like this:

Should this Court overturn its precedent barring an appellant from asserting an issue that was not raised in his opening brief where the issue is based on an intervening Supreme Court decision that changes the law?

The Eleventh Circuit overturned its precedent and allowed Mr. Durham to brief ACCA's constitutionality. (Every other circuit, apparently, disagreed with the Eleventh Circuit's old rule.) The Eleventh Circuit held:

[W]here there is an intervening decision of the Supreme Court on an issue that overrules either a decision of that Court or a published decision of this Court that was on the books when the appellant's opening brief was filed, and that provides the appellant with a new claim or theory, the appellant will be allowed to raise that new claim or theory in a supplemental or substitute brief provided that he files a motion to do so in a timely fashion after (or, as in this case, before) the new decision is issued.

Johnson is not affecting just the Eleventh Circuit. The Seventh Circuit recently held that Johnson applies retroactively: "Johnson announces a new substantive rule of constitutional law that the Supreme Court has categorically made retroactive to final convictions."

S.D. Fla. celebrates LGBT achievement

From left to right: Judge Hunt, Judge Olson, and Judge Gayles

Last Wednesday, prosecutors, public defenders, private lawyers, and law clerks packed into the media room of the U.S. Attorney’s Office to listen to District Judge Darrin Gayles, Magistrate Judge Patrick Hunt, and Bankruptcy Judge John Olson—gay men—talk about their experiences becoming and serving as federal judges. The panel discussion Road to the Bench, produced jointly by the U.S. Attorney’s Office and the Federal Public Defender’s Office, was, U.S. Attorney Wifredo Ferrer said in his opening remarks, “historic” (not, he said, to laughs, to show that the two offices could successfully work together). It was historic, he said, in light of this year’s legal and social progress. AUSA Karen Gilbert, who moderated, agreed, saying that she never thought she’d see in her lifetime three out federal judges discuss their experiences in a panel discussion.

Each judge began by discussing his journey to the bench. For Judge Gayles, a former AUSA, the first time he could be Darrin Gayles “without reservation” was when Governor Bush appointed him to serve as a state-court judge. It was “liberating to a great extent,” he said. “I can be who I am and it will not hold me back professionally.” As a judge, he said he has “felt responsible” to be out and open, and to serve as an example.

Judge Hunt’s experience was different because becoming a magistrate judge “wasn’t in the public,” Judge Hunt, a former AFPD, said. For Judge Hunt, who has two gay older brothers, being gay was the “most natural thing in the world.” The “bottom line,” he concluded about his process of becoming a judge, is that “no one cared and it didn’t make a difference. Here I am.”

Judge Olson didn’t start in public service. Judge Olson, who was once married to a woman and has two children, practiced law for many years as a bankruptcy lawyer. “Only after I was on the bench did I come to grips with my reality,” Judge Olson said. So he asked himself, “How do I live my life now in a way that’s faithful to myself and others?” To do that, Judge Olson came out “as noisily as I could”: by sending out a “frank” Christmas letter designed to take advantage of the bankruptcy bar’s “really effective gossip network,” he said, to laughs. “I outed myself as effectively as I could.”

The judges felt that they have largely been accepted and treated equally. No one has questioned Judge Hunt’s impartiality. Judge Olson said he “never felt anything but good things from his colleagues.” When, as a new district judge, Judge Gayles and his partner traveled to the Supreme Court to meet the justices, Justice Scalia said to his partner, “Nice to meet you. Welcome to the Supreme Court.”

The discussion—which lasted over an hour—was informative, inspirational, and, at times, really funny (Judge Olson and Gilbert joked about the pressure to have “fabulous” chambers; Gilbert said that Ferrer, because he’s a great dancer, is sometimes mistaken as being gay). But the judges recalled a difficult not-to-distant past, and said that many challenges lie ahead. Judge Hunt recalled when he was an AFPD having to explain to judges the difference between HIV and AIDS, and how that affected when defendants must be sentenced. It is “absolutely frightening” what is happening in other parts of the world, Judge Olson said, where being gay is “a dangerous thing.” Suicide is a serious problem among young gay people, he continued, and it may be worse for transgender youth. “We as a society have to do more to help,” he said.

But the judges were overwhelmingly positive about the future. “Our being in these positions makes it easier for those coming after us,” Judge Gayles said. Judge Hunt is “very optimistic. Now we can name names, whether it is an African American president or a gay judge. To actually be able to name names is important.” To Judge Olson, “being aggressively out helps solidify change. To make it a normal part of life.”

Special thanks to AUSA Robert Watson for suggesting that the Blog cover this fantastic event.

"Keep calm and support LGBT"

The Great Dissenters

I don't always agree with Justice Scalia's dissent, but, usually, I find them entertaining. In a recent Washington Post op-ed, however, former Justice O'Connor clerk David Kravitz takes me to task. Mr. Kravitz believes that Justice Scalia's dissents lately ignore compelling arguments and rely, instead, on insults. In honor of the amicable dissent, I've listed four of my favorite dissents. None are antagonistic, but all make great, compelling arguments.

Here's my list (in no particular order):

1. Justice Holmes, Lochner v. New York: Short but effective. In one sentence, Justice Holmes makes his point and guts the majority opinion: "The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not."

2. Justice Kagan, Arizona Free Enterprise Club's Freedom Club Pac v. Bennett: Justice Kagan's introduction is concise and persuasive in ways most legal writing is not. It turns an amorphous constitutional issue into a concrete example.

3. Justice Jackson, Korematsu v. United States: In plain English and with plain logic, Justice Jackson explains why Korematsu's encampment was unconstitutional and dangerous.

4. Justice Harlan, Roth v. United States: Technically concurring in part and dissenting in part, Justice Harlan persuasively explains why the federal government should not have unbounded discretion to outlaw obscenity. And he simply yet powerfully explains why free speech is not a popularity contest: "Many juries might find that Joyce's 'Ulysses' or Bocaccio's 'Decameron' was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are 'utterly without redeeming social importance.'"

So, what other dissents should go on this list?

DOM wins big in the Eleventh Circuit

Today, the Eleventh Circuit handed down a major victory to David Markus's client Dr. Vanja Abreu. In a lengthy opinion, the court reversed Dr. Abreu's conviction on a conspiracy charge, holding that the district court erred in denying her motion for judgment of acquittal. Congrats, David.

Update -- David tells me his wife and law partner, Mona, did the briefs. Congrats, Mona.

Citing document numbers

How do you cite document numbers? Before you answer, let me explain what I’m talking about.

The federal judiciary has a system that allows users to file documents in cases electronically—the Case Management/Electronic Case Files (CM/ECF) system. Each document filed in the CM/ECF system is given a document number, which is placed at the top of each page of the document. In the Southern District of Florida, the document number is blue. Some lawyers might refer to a document number as a docket-entry number; others might refer to it as an ECF number.

In any given filing, you may choose to refer to a document number for a particular reason. For example, in your motion for an extension of time to file a response to the amended complaint, you might refer to the document number of the amended complaint, to assist the reader to quickly and easily find the amended complaint on the docket.

If you’re citing the document number, how do you do that?

There are three main contenders:

The first is “D.E.” or some variant thereof, such as “DE”. (For present purposes, let’s put to the side what comes after the D.E.—e.g., “No.” or “#”. Let’s also put to the side whether you enclose “D.E.” in parentheses or brackets, or not at all. That’s a debate for another day.) This is the most well-established way of citing document numbers in the Southern District of Florida. If you cite document numbers this way, everybody will know what you’re talking about.

The second is “ECF”. If you meticulously follow the Bluebook, this is your choice.

Last is “Dkt.” I’d refer to this as “New York style,” because many judges in New York seem to cite document numbers using this method. If you’re into abbreviations, perhaps New York style is for you. In the Southern District of Florida, however, you’d be in a strong minority.

How do you cite document numbers?

D.E.

ECF

Dkt.

 

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Throwback Thursday: en banc edition

Let’s first throw back to Freddy’s post on the Wollschlaeger v. Florida decision, which held constitutional a law restricting what doctors can say to their patients about guns. Yesterday First Amendment scholar Eugene Volokh wrote a lengthy post about the Eleventh Circuit’s 2-to-1 decision on his influential blog. Volokh concludes that “the court is mistaken, and the law should have been held to violate the First Amendment.” He goes on:

[E]ven intermediate scrutiny—if that’s the right test—requires some serious justification for a speech restriction. Among other things, it requires that there be a “reasonable fit” between the speech restriction and the supposedly important reasons justifying the restriction. And here … there’s no such fit.

In the comments to Freddy’s post, someone expressed displeasure with the decision, writing that this is “another important case” where—and I’m editorializing slightly—the deciding vote on appeal was made by a district judge sitting by designation. This raises a question, irrespective of the merits of this undoubtedly important case: Should the fact that there was only one active Eleventh Circuit judge in the majority be considered in deciding whether to rehear the case en banc?

My initial inclination is that it shouldn’t be. Federal Rule of Appellate Procedure 35, which sets forth the standard for when rehearing en banc should be had, says nothing about it. Considering the composition of the judges in the majority may lead to more rehearings en banc. And treating differently decisions in which visiting judges are in the majority just doesn’t seem appropriate.

But it’s an interesting question, and others think that where a dispositive vote is made by a district judge sitting by designation, “experience teaches that the case has a better than average chance of rehearing en banc.”

***

Remember United States v. Davis, the en banc decision on the constitutionality of obtaining without a warrant cell-site information that we covered a few months ago?

Yesterday, Judge Koh of the U.S. District Court for the Northern District of California issued a lengthy order affirming the denial of the government’s application for historical cell-site location information, stating that where “an individual has not voluntarily conveyed information to a third party, her expectation of privacy in that information is not defeated under the third-party doctrine.” Judge Koh said her decision was “not at odds” with Davis, which she said, citing Judge Jordan’s concurrence, was “limited by its facts.” Judge Koh also quoted Judge Martin’s dissent in concluding that the government must “secure a warrant supported by probable cause in order to obtain a cell phone user’s historical [cell-site location information].”