11th Circuit in 2-1 decision saves Rick Scott on clemency decision for now (with UPDATE on make-up of 11th Circuit)

Last week, Judge Marcus wrote this opinion (joined by William Pryor) backing Gov. Scott on the process for convicted felons who have served their time to be re-enfranchised. Judge Beverly Martin dissented. The AP summarizes here:

With time running out, a federal appeals court late Wednesday sided with Florida in an escalating battle over the state’s process for restoring voting rights for former prisoners.

U.S. District Judge Mark Walker had given Florida until Thursday to create a new process after ruling in February that the state’s current system is unconstitutional and arbitrary, with decisions possibly swayed by politics and racial factors.

But a three judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals blocked Walker’s ruling while it considers an appeal from Gov. Rick Scott and other Florida Republican officials.
***
Walker’s ruling had kept the ban intact, but he had challenged the current system that requires a former prisoner to wait between five and seven years before they can even ask to have their voting rights back. The governor and the three elected Cabinet members then decide each request individually, subject to the governor’s unilateral veto.

It wasn’t always this way. Shortly after taking office in 2007, then-Republican Gov. Charlie Crist convinced two of the state’s three Cabinet members to approve rules allowing the parole commission to restore voting rights for nonviolent felons without hearings, and ultimately more than 100,000 felons were allowed to vote again.

Scott and state officials changed the process in 2011, and since then fewer than 3,000 have had their rights restored. The governor has defended the change, saying that former prisoners should have to demonstrate they can remain out of trouble before their voting rights are returned.

Last year, however, a group of former prisoners who had their applications turned down sued the state.

In its split ruling, the federal appeals court concluded that Florida has a good chance of prevailing in its appeal and questioned Walker’s decision to order the state put in place a new process. U.S. Circuit Judge Stanley Marcus wrote that there should not be a “rushed decision-making process created on an artificial deadline.”

“There is wisdom in preserving the status quo ante until a panel of this court, on an expedited basis, has had an opportunity on full briefing to come to grips with the many constitutional and equitable issues that have been raised,” Marcus wrote.

UPDATE -- A few readers have emailed me expressing surprise that with this panel, Marcus ended up siding with Gov. Scott.  But that's really no surprise.  Former President Bill Clinton appointed 4 judges to the 11th Circuit -- Rosemary Barkett, Frank Hull, Stanley Marcus, and Charles Wilson.  Marcus and Hull have been two of the most conservative members of the Court since that time (over 20 years).  Judge Hull just took senior status, and Judge Barkett no longer serves on the Court, so that leaves Charles Wilson and Stanley Marcus as two members of the "old" guard.

There are 12 active members of the 11th Circuit:

Chief Judge Ed Carnes (Bush)
Gerald Tjoflat (Ford)
Stanley Marcus (Clinton)
Charles Wilson (Clinton)
William Pryor (Bush)
Beverly Martin (Obama)
Adalberto Jordan (Obama)
Robin Rosenbaum (Obama)
Julie Carnes (Obama, taking senior status in June; Trump has nominated Britt Grant)
Jill Pryor (Obama)
Kevin Newsom (Trump)
Elizabeth Branch (Trump)

So that makes 6 Republican appointments (including Grant) and 6 Democratic appointments. But practitioners know that the 6 Dem appointments are not all "liberal" leaning.  And some of them, like Marcus, are extremely conservative, especially on criminal justice issues.  It's too early to tell how the Trump appointees are going to line up.

RIP Alan Ross

Damn, this is a really sad one. Alan Ross passed away last night after battling pancreaticcancer. He was a really good guy. Here are the funeral arrangements:

Funeral Sunday 3:15pm
Star of David Memorial Gardens Cemetery and Funeral Chapel
7701 Bailey Road
North Lauderdale, FL 33068
Shiva immediately following at the home of Adam & Jessica Ross
10292 Sweet Bay Manor
Parkland, FL 33076

BREAKING -- President Trump nominates three to SDFLA bench

Congratulations to Roy Altman, Rudy Ruiz, and Rodney Smith for being officially nominated to the U.S. District Bench for the Southern District of Florida. Here is the White House press release:

If confirmed, Roy K. Altman of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Roy Altman is a partner at Podhurst Orseck P.A., where his practice has focused on aviation and commercial litigation since 2014. Before entering private practice, Mr. Altman served for six years as an Assistant United States Attorney for the Southern District of Florida, where he prosecuted hundreds of cases covering the full range of Federal criminal conduct. Over this period, Mr. Altman tried more than 20 cases to jury verdict and argued several of these before the U.S. Court of Appeals for the Eleventh Circuit. During his service as a Federal prosecutor, Mr. Altman won a number of awards including the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Team” in United States v. Mentor (first-degree murder), the Director of the Executive Office of U.S. Attorneys Award for “Superior Litigation Performance” in United States v. Flanders (human trafficking), the Federal Bar Association Young Federal Lawyer Award (one of five attorneys under 37 nationwide), and the “Federal Prosecutor of the Year” award from the Miami-Dade County Association of Chiefs of Police and the Law Enforcement Officers Charitable Foundation. Upon graduation from law school, Mr. Altman served as a law clerk to Miami-based Circuit Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit. Mr. Altman earned his B.A., cum laude, from Columbia University, where he played baseball and football, and his J.D. from Yale Law School, where he served as the projects editor of the Yale Law Journal.

If confirmed, Rodolfo “Rudy” Ruiz II of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rudy Ruiz currently serves as a Circuit Judge in the Eleventh Judicial Circuit of Florida since his appointment by the Governor in 2014. As a Circuit Judge, Judge Ruiz has presided over both civil and criminal divisions. He previously served for two years as a County Court Judge in the Eleventh Judicial Circuit, where he handled a full range of civil and criminal cases. Before ascending to the bench, Judge Ruiz served for three years as an Assistant County Attorney in the Miami-Dade County Attorney’s Office, where he handled a wide range of civil defense matters in Federal and State court at both trial and appellate levels. Before joining the County Attorney’s Office, Judge Ruiz practiced corporate law in the Miami office of White & Case LLP. Upon graduation from law school, Judge Ruiz served as a law clerk to Judge Federico A. Moreno of the U.S. District Court for the Southern District of Florida. Judge Ruiz earned his B.S. from Duke University and his J.D. from Georgetown University, where he was an articles editor of the American Criminal Law Review.

If confirmed, Rodney Smith of Florida will serve as a District Judge on the U.S. District Court for the Southern District of Florida. Rodney Smith serves as a Circuit Judge in the civil and felony criminal divisions of the Eleventh Judicial Circuit, where he has served since his appointment by the Governor in 2012. In this capacity, he also serves as co-chair of the Diversity Committee of the Florida Conference of Circuit Judges. He previously served for four years as a Miami-Dade County Court Judge of the Eleventh Judicial Circuit, where he handled both civil and criminal cases. Before ascending to the bench, Judge Smith served as a senior assistant city attorney in the Office of the City Attorney for Miami Beach, where he handled a broad range of civil defense matters. Before joining the City Attorney’s office, Judge Smith practiced insurance defense law at a number of private Miami firms. Upon graduation from law school, Judge Smith served for four years as an Assistant State Attorney in the Miami-Dade County State Attorney’s Office. Judge Smith earned his B.S., cum laude, from Florida Agricultural and Mechanical University, and his J.D., cum laude, from the Michigan State University College of Law.

This still leaves two open spots on the court. No word on whether the JNC will forward new names or whether the White House is going to pick different people.

News & Notes

1. Congrats to Judge Wilson for being recognized by the Green Bag for exemplary legal writing for his dissent in U.S. v. Vail-Balon (en banc).

2. It's only a matter of time before Judge Rosenbaum is also recognized. Although this opinion From Monday is unsigned, it sure looks like she wrote it. From the conclusion of this pro-se litigation about 1983 suits: "We conclude that Heck and its progeny, including Balisok, do not bar this lawsuit. On the contrary, Dyer requires that the suit be allowed to proceed through the threshold gates of Heck. We therefore vacate the judgment of the District Court and remand for further proceedings not inconsistent with this opinion."

3. The Federal Bar is putting together this timely symposium on sexual harassment in the workplace. The panel, moderated by Celeste Higgins, includes: Honorable United States Magistrate Lauren Fleischer Louis, J.J. Piskadlo Jr., Legislative Assistant to Senator Lauren F. Book, Robert Weisberg from EEOC Miami, Grissel Seijo from Restaurant Brands International, and John Byrne, Esq., partner at Leon Cosgrove, LLP. When: Thursday, May 17, 2018, 11:30am – 1:30pm Register here.

Should judges be appointed or elected?

After reading the Justice Building Blog about Broward Judge Merrillee Ehrlich, I started thinking about this question again. I think the appointment process leads to more qualified judges. But elections, at least in theory, hold judges accountable for bad behavior. Perhaps judges should be appointed but not for life. What about having a committee that evaluates judges every 5 years to decide whether they get re-upped or not?

From Rumpole:

2:37: Yells at defendant who responds to question not to talk.
3:04: Yells at lawyer to keep quiet defendant

3:53: Yells at defendant- "I'm not here to talk to you about breathing treatment."

Reflect on that for a moment. This is a misdemeanor case. The defendant is obviously not well. She's in a wheel chair. We learned later that she had chronic obstructive pulmonary disease and in fact died within a few days of being released. The defendant indicates that she needs treatment to breathe. Not for pain. But to perform the basic function all humans need to perform to live. And the response of a member of the Broward Judiciary was that she didn't want to talk about it. Yes, this is the Broward Judiciary on full display for the world to see. They abuse defendants and lawyers all the time. However most of them have enough self control not to do it on video in this fashion.

4:10: "I’m not going to spend all day with her interrupting me."
4:50: Judge yells again
5:55 : "You’ve already said too much."
6:10 Judge Throws a fit and waves arms: "Don’t even say yes..."

6:35: And here's what a kind and decent judge says to a handicapped person in a wheel chair that they've just ordered to go to pre-trial services: "Arrange for someone to carry you if you can’t get there."

Jane and Marty Raskin join President Trump's legal team

There is always a Miami connection.

From McClatchy:

A husband-and-wife legal team from Miami is joining President Donald Trump’s personal legal team in the special counsel's Russia investigation.

Jane Serene Raskin and Marty Raskin, two former federal prosecutors and veteran defense lawyers who have a private practice in Coral Gables, are joining Trump’s team along with former New York City Mayor Rudy Giuliani.

“Jane and Marty are highly respected former federal prosecutors with decades of experience. They have a nationwide practice and reputation for excellence and integrity,” Trump’s personal attorney, Jay Sekulow, said in a statement Thursday.

The big debate among criminal lawyers for the past few months has been — would you take that case if he called... the Raskins have said yes. They are well-respected lawyers down here, who are apparently Trump supporters.  Their website is here. And they are joining Rudy Guliani.

Congrats to Judge Lauren Louis

The investiture of Magistrate Judge Lauren Louis was wonderful. She gave a heartfelt speech that was one of the best investiture talks I have seen. It's easy to see that she will be a great judge. Congrats!

News & Notes

1.  Gorsuch is channeling his inner-Scalia.  The opinion is Dimaya v. Sessions.  District judges should get ready for the ensuing litigation.  It shows again that the trial and appellate courts are so law-and-rder conservative with its rulings that it takes a slightly less conservative Supreme Court to stop the get-away conviction train every now and then. This time it took Justice Gorsuch. From SCOTUSBlog:

Gorsuch concurred in part and concurred in the judgment. He emphasized at the outset that “[v]ague laws invite arbitrary power.” He defended the originalist foundations for vagueness challenges that Justice Clarence Thomas questioned at length in his dissent, tracing the history of those challenges back to Blackstone’s condemnation of vague statutes and the “tradition of courts refusing to apply vague statutes.” He further noted that the concern with vague statutes was not “confined to the most serious offenses like capital crimes.” Addressing the government’s argument that a more lenient standard of review should apply in civil cases, Gorsuch would have gone even further than the plurality. He suggested that provisions of civil laws should be scrutinized closely for vagueness even outside the deportation context: “Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home?”

2.  Sotomayor broke her shoulder.

3.  RIP Harry Anderson.  When I was growing up, I thought that every judge should be like him (with a little Judge Wapner).  He was the best.  From the LA Times:

"Night Court" and "Dave's World" star Harry Anderson received a tip of the hat from costars and fellow magicians sending out heartfelt tributes to the late sitcom star.

The actor, who died on Monday at age 65, began his lengthy career in stand-up and magic, then notably played judge Harry T. Stone on the Emmy-winning NBC sitcom "Night Court."

Costar John B. Larroquette and several others fondly remembered the actor — and his iconic fedora — with messages honoring Anderson's memory.

"He was wicked smart. He was wicked funny. He had a big laugh. He had a big heart. He delighted in legerdemain especially when he caused someone to scratch their head and proclaim; How the hell did you do that? And he could eat a hamster like no one I ever knew," the actor tweeted late Monday, describing their work on the show as "a carnival fun ride with Harry."