11th Circuit panel not happy about the new “panel published order” rule created by another panel

So the Johnson litigation produced lots of angry opinions back and forth by various wings of the 11th Circuit. One wing got the upper hand by quickly publishing a bunch of orders within 30 days days (based on pro-se pleadings under 100 words, without government responses, and without oral argument). And in those orders, the right wing of the court said that they are binding on future panels. Judges Wilson, Martin, and Jill Pryor are rightfully not happy about it. And said so in two concurrences in this order.

From Judge Wilson’s concurrence:

These applications are often decided without counseled argument from the petitioner, and are always decided without an opposing brief from the government, except for death-penalty-related applications. We also rarely have access to the whole record. See generally Jordan, 485 F.3d at 1357–58 (describing the limitations we face when deciding these applications). When making these determinations, therefore, the panel typically races to issue an unappealable order based solely on the arguments of a pro se prisoner constrained to a little over one page per ground.
Conversely, when we decide a merits appeal, we have essentially unlimited time to decide the case, there are usually attorneys on both sides, we have extensive briefing, and we have the entire record in front of us (including an order from the court below). And the large majority of our published merits opinions come from our oral argument calendar, where attorneys for each party argue for at least fifteen minutes. Of course, after a merits opinion issues, aggrieved parties may petition for panel rehearing, for rehearing en banc, or for a writ of certiorari.
Despite this stark contrast in process, published panel orders and published opinions now enjoy the same precedential heft, equally binding future panels of this court unless and until overruled by the court sitting en banc. In fact, published panel orders perhaps have greater weight, because they may not be appealed to the Supreme Court and they may not be the subject of a petition for rehearing en banc. We should not elevate these hurriedly-written and uncontested orders in this manner.

RIP John Hogan

Sad day for the Miami legal community as it says goodbye to John Hogan. From the Miami Herald obit:

John Hogan — an influential lawyer who prosecuted racially charged police shootings during an era of riots in Miami and also advised Janet Reno during her tenures as Miami-Dade state attorney and U.S. attorney general — has died at age 68.

Hogan — who after his career in public service went on to lead the litigation section at Holland & Knight, one of Florida’s biggest law firms — died on Saturday from complications of a bone-marrow transplant at a Houston hospital.

Holland & Knight’s Miami office notified employees of his death on Monday morning, describing Hogan as a “lawyer’s lawyer” who devoted his life to putting others before himself.


“His exemplary public service was a testament to his selfless approach throughout his professional career,” the firm’s managing partner, Steven Sonberg, wrote to Holland & Knight’s employees. “Wherever he worked, John was recognized as a ‘lawyer’s lawyer,’ that is, he was known both for his keen intellect and for his ability to offer practical solutions to complex problems.

Electronics in court

The Manafort trial is starting up, and the lawyers involved in the case are filing motions requesting the ability to bring in their laptops (apparently they won’t be able to bring in their phones). Jurors, witnesses, reporters, and observers won’t be able to bring their phones into the proceedings. The electronics policy is just absurd. At least lawyers can bring in their phones here in the Southern District of Florida. But the public should be able to bring their phones as well. It denies the public access to the courts and it also is more unsafe to deny people their phones in case of emergency. Phones are permitted in state court and the sky hasn’t fallen.

The Highest Court in the Land

That's the title to this very fun piece in Sports Illustrated about the basketball court above the courtroom in the Supreme Court.  Here's a cool story from the article:

Directly above the nation's most important tribunal is another type of court, where victors emerge not with five votes and a majority opinion but with 21 points and a margin of at least two. Yes, on the fifth and top floor of the glorious, neoclassical edifice on First Street NE is a basketball court. A pair of plexiglass backboards (wood until 1984) hang from the ceiling, which is just 14 feet and four inches above the playing surface, a pristine hardwood installed during a 2015 renovation. At roughly 78 feet long and 37 feet wide, the court is smaller than the regulation 94-by-50 feet, with walls hugging the sidelines and the eagle of the Supreme Court seal spreading its wings across midcourt. Near the entrance a sign warns: PLAYING BASKETBALL AND WEIGHT LIFTING ARE PROHIBITED WHILE THE COURT IS IN SESSION.
If the gym seems an afterthought, that's because it was: The building's architect, Cass Gilbert, designed the room for storage. At an unknown point in the 1940s—the building opened in 1935—an unknown person transformed it into a gym. According to the 1965 book Equal Justice Under Law: The Supreme Court in American Life, Cass Gilbert Jr. suggested the makeover, but the Supreme Court curator's office hasn't verified that account. Early on, Justice Hugo Black used the room as a makeshift tennis court, but basketball has become the house game. Security guards, cafeteria workers, clerks, librarians and the occasional justice head upstairs for ragged games of pickup. The original floor was concrete and unforgiving, the room cramped and the ceiling far too low—but that has only added to the quirky charm of what's known as the Highest Court in the Land.
As a clerk Tilleman was thrilled to have easy access to hoops. He started playing regularly with his fellow clerks and others, even though the low ceiling neutralized his long-range shooting. But more than anything, he wanted to run with Thomas. For months he badgered the justice to no avail.
Finally, in April, Thomas agreed to a game with his clerks, who included future Fox News host Laura Ingraham (of "shut up and dribble" fame). They were thrilled, especially after the justice showed he could ball. Thomas, who joined the Court in 1991, was 44 at the time, and Tilleman was struck by the skill of the most junior member. But after a half hour of hooping Thomas grabbed his left leg and fell to the ground, writhing on the floor. This is not happening, Tilleman thought in horror.
Thomas had torn an Achilles tendon. He underwent surgery, and the following week he was hobbling around the building on crutches. As the term came to an end, Thomas and Tilleman had a picture taken together. The justice told the photographer to make it a full body shot, so that it would include his walking cast.
"Karl," he whispered to his clerk with a smile, "I want you to remember for the rest of your life what you did to me." Tilleman, now a partner at a law firm in Phoenix, has the portrait hanging in his office, above his computer—next to a picture of himself being guarded by Michael Jordan.

GUEST POST: Ruling by Court Fits Legal & Political Pattern of Favoring Property Rights of Original Owners of Antiquities

Ruling by Court Fits Legal & Political Pattern of Favoring Property Rights of Original Owners of Antiquities

 

Guest Post By: Lindsey Lazopoulos Friedman

Finders are not keepers when it comes to state property. A District Court in the Middle District of Florida held that France is entitled to claim ownership to a French ship that sunk off of Florida’s coast nearly 500 years ago, even though a Tampa-based marine exploration company found the shipwreck.

Global Marine Exploration, Inc., discovered a shipwreck off the coast of Cape Canaveral and brought suit in the Middle District of Florida seeking possessory and ownership claims pursuant to the archaic “law of finds” and also sought declaratory and injunctive relief to establish its ownership claim. The Republic of France argued that the subject ship was La Trinite, the flagship of the French Royal Fleet sunk in 1565 by a hurricane, and that it had never abandoned its sovereignty over the ship.  

The State of Florida also claimed an ownership interest in the ship, arguing that it supported France’s claim, but added that it had a subordinate claim because the ship lay in Florida’s submerged territory.

After several years of legal warfare between Global Marine, Florida, and France, the Middle District sunk Global Marine Exploration’s ability to establish ownership over its find. The Court reasoned that it lacked subject matter jurisdiction to grant relief to Global Marine Exploration because the ship is indeed La Trinite, and thus, is sovereign and immune from Global Marine Exploration’s claims.  Global Marine Exploration’s deadline to appeal the Court’s decisions to the Eleventh Circuit was July 25, 2018. 

The Court’s findings fall into a recent array of decisions by U.S. and International courts favoring original ownership or property interest over claims such as good-faith purchaser, found-in-the-ground, or abandonment.  For example, an Italian Court ruled last month that the J. Paul Getty Museum must return its most-prized antiquities, the Greek bronze “Statue of a Victorious Youth,” which was found off of the coast of Italy in 1964.  The New York Supreme Court ruled this week that an ancient Persian sculpture, valued at $1.2 million, must be returned to Iran from good-faith purchasers unaware that the sculpture had been stolen in 1936.  And, the Metropolitan Museum of Art was ordered to return a 2,300-year-old vase after evidence was presented that the vase had been illegally excavated.  While legal precedent favoring original owners of works of art has become well-developed due in large part to restitution of Nazi-era looted art, the cases mentioned above and others demonstrate a new pattern of substantive legal decisions favoring original property interests in antiquities.  Similarly, political policies have followed suit; President Emmanuel Macron of France recently announced that he plans to repatriate African artifacts in French museums to their origin nations.

The case is Global Marine Exploration, Inc. v. The Unidentified, Wrecked and (For Finders-Right Purposes) Abandoned Sailing Vessel, No. 6:16-cv-01742-KRS (M.D. Fla.)

So you want to be a magistrate judge?

The Judicial Conference of the United States has authorized the appointment of two full-time United States Magistrate Judges for the Southern District of Florida at Miami.  The term of office is eight years.

A full public notice for the magistrate judge positions is posted on the Courts Internet website at: http://www.flsd.uscourts.gov.   One position initially will be assigned for a period not to exceed three years to supervise the Court's Pro Se Prisoner Division.  

Interested persons may contact the Clerk of the District Court for additional information and application forms.  The application form is also available on the Courts website http://www.flsd.uscourts.gov. Applications must be submitted only by applicants personally to: Flsd_magistratejudgerecruitment@flsd.uscourts.gov by 5:00 p.m. on Wednesday, August 22, 2018.

Why aren't there more written decisions on sentencing?

For as long as I can remember, the culture in this District is for sentencing decisions to be announced and discussed in open court at sentencing. This isn't the case in other Districts, where judges frequently write lengthy orders explaining their decisions.

 Here is a recent example from the District of Colorado where the judge rejected the prosecutor's request for a 15-year sentence for a person who wrote a $300 check intended for a terrorist organization. The judge also rejected the guidelines and sentenced the defendant to time-served (which was a significant amount of time). He had some interesting lines in the Order:

In over forty years of judging I have never imposed a harsher sentence because a defendant asserted his right to trial by jury or to testify at that trial. I am not about to do so now or in the future. I consider any trial “tax” or penalty to be contrary to the ages-long values and standards of our legal system. It is more closely associated with the jurisprudence of Russia, as described by Dostoyevsky, than our own tradition as described by Benjamin Cardozo. In that vein, application of the Obstruction of Justice Enhancement here would be a violation of the concepts of justice and of ordered liberty.

Kudos to Judge Kane for this thoughtful order.  After all, the judiciary is meant to be a check on the executive branch, who never requests a sentence under the guidelines except in cooperation cases.  Section 3553 calls for the guidelines to be just one factor at sentencing. But prosecutors, all these years after Booker, still see that as the only factor. 

Nominations of Judges Ruiz, Altman, and Grant moving forward

Each one had a different vote out of the judiciary committee. Justice Grant (nominated to the 11th Circuit) moved forward with a vote of 11-10 on party lines. Rudy Ruiz (SDFLA) moved forward with a unanimous yes vote. And Roy Altman (SDFLA) had a 17-4 vote to go ahead. From Courthouse News:

Roy Altman, a partner at the Miami firm Podhurst Orseck who is up for a seat on the U.S. District Court for the Southern District of Florida, was the only federal district court nominee to receive any opposition from senators on Thursday.

In questions submitted in writing after his nomination hearing, Altman faced questions about public statements he made and articles he published regarding hot-button political and legal issues from the Fourth Amendment to the Iran nuclear deal.

In one article, Altman argued a cell phone should not be treated differently than a briefcase when a court considers whether a search was appropriate, “simply as a result of the amount of information they are capable of storing.” When Feinstein asked him about the article, Altman said a recent Supreme Court decisions showed him he was wrong.

“After the Supreme court’s decision in Riley [v. California], it is now clear that the amount of information stored by a cellphone is relevant to a determination of how much protection is afforded by the Fourth Amendment,” Altman wrote. “If I were fortunate enough to be confirmed, I would fairly and faithfully apply this precedent.”

Altman cleared the committee 17-4 on Thursday.

The committee also unanimously approved Jude Rodolfo Ruiz, who is nominated to a seat on the U.S. District Court for the Southern District of Florida, and Raul Arias-Marxuach, who is up for a seat on the U.S. District Court for the District of Puerto Rico.

All of the judges the committee approved on Thursday must still be voted on by the full Senate before they are confirmed.