What happens when judges, appointed for life, are too old?

 Pauline Newman, 96, was suspended for a year.

Colleagues of Pauline Newman, a 96-year-old federal appeals judge, have suspended her from hearing cases as part of a clash over her mental fitness.

The U.S. Court of Appeals for the Federal Circuit’s active judges on Wednesday barred Newman from hearing cases for one year unless she complies with their demand to submit to medical testing.

“We are acutely aware that this is not a fitting capstone to Judge Newman’s exemplary and storied career,” according to the order.

“We all would prefer a different outcome for our friend and colleague,” it continued. “However, we have a solemn obligation under the Act and an obligation to the litigants before our Court and court staff to take action—and not to simply look the other way—when it appears that a judge of this Court is no longer capable of performing the duties of her judicial office.”

The ruling is the latest development in a bitter battle over Newman’s fitness to continue serving on the Federal Circuit, an appeals court that hears patent cases and other specialized disputes.

We've had some wonderful judges who had to confront the issue in our district over the years, including one during a high profile case dealing with the Everglades cleanup.

Congratulations to Florida's new lawyers

Congratulations to everyone who passed the Florida Bar. 

Here’s how lawyers were notified back before there was the Internet. This is my Dad’s notification back in 1958. 

A telegram!

 

Opponents of Florida Sports Betting To Seek SCOTUS Review

By John R. Byrne

If you're wondering when you're going to be able to lock in your parlay bet on Dolphins winning the Super Bowl and Tua the MVP award, the answer is not anytime soon. We blogged a while back about the Seminole Hard Rock's big win in the U.S. Circuit Court of Appeals for the District of Columbia. The three-judge panel held that the Secretary of the Interior did not violate the Administrative Procedures Act when she allowed the gaming compact between the Seminole Tribe and Florida to go into effect.

Though the DC Court of Appeals denied en banc review, opponents of the compact say they plan to pursue SCOTUS review. From their lawyers:

“[The Court] held that a tribe and state may use the process set forth in IGRA (the Indian Gaming Regulatory Act) to grant exclusive statewide internet gaming franchises to Indian tribes. This understanding contradicted Congress’ clear intent in enacting IGRA which was to provide for gaming ‘on Indian lands,’ not to provide a means to introduce internet gaming statewide."

So, the case is "under further review." You can read the Tampa Bay Times's coverage here.

Parallels in Statutory Interpretation

By John R. Byrne

Interesting dissent from Judge Rosenbaum in an order denying rehearing en banc. At issue was the American Rescue Plan Act of 2021, which gave the states over 200 billion dollars to deal with the coronavirus pandemic. But the federal government argued there were strings attached to that funding, strings that 13 different states (including Florida) challenged. The original panel held that the feds could not enforce those conditions, relying on precedent that required such conditions to be expressed "unambiguously" and "with a clear voice."

In her dissent, Judge Rosenbaum criticized the majority for not following the US Supreme Court's approach to statutory interpretation. She wrote that "The Supreme Court has told us that 'before concluding that a [statute] is genuinely ambiguous, a court must exhaust all the traditional tools of construction'" and stressed the need to consider "the statutory context" and the "statutory structure." In response to her criticism, Judge Brasher faulted the feds for not presenting these statutory interpretation arguments in the first place.

The commentary on statutory interpretation by Judge Rosenbaum is strikingly similar to language recently used by the Florida Supreme Court. In Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022), Florida Supreme Court Justice Muniz wrote that, when interpreting a statute, a court must consider “the [statutory] language itself, the specific context in which that language is used, and the broader context of the statute as a whole” and that "the traditional canons of statutory interpretation can aid the interpretive process from beginning to end."

Order below.

American Rescue Plan Act Case by John Byrne on Scribd

Should prosecutors who commit crimes be permitted to continue as prosecutors?

 AP's Joshua Goodman has this report about Tampa AUSA Joe Ruddy:

When police arrived at his house to investigate a hit-and-run, Joseph Ruddy, one of the nation’s most prolific federal narcotics prosecutors, looked so drunk he could barely stand up straight, leaning on the tailgate of his pickup to keep his balance.

But he apparently was under control enough to be waiting with his U.S. Justice Department business card in hand.

“What are you trying to hand me?” an officer asked. “You realize when they pull my body-worn camera footage and they see this, this is going to go really bad.”

You can watch the video of the stop and encounter at this tweet:

.

"You realize when they pull my body-worn camera footage and they see this, this is going to go really bad"

Veteran federal prosecutor in Tampa hands police officer his @TheJusticeDept business card after drunkenly leaving scene of hit-and-run on July 4

w/ @JimMustian pic.twitter.com/v8tkHq4TwF

— Joshua Goodman (@APjoshgoodman) September 8, 2023

For the Defense, Season Finale

 

pictured: Margot Moss (left), Andrew Gillum and his family (center), and David Markus (right)
 

FOR THE DEFENSE, SEASON 5 FINALE:
MARGOT MOSS (AND I) FOR MAYOR ANDREW GILLUM

Season 5 has been a blast. Thank you all so much for listening and for your supportive emails.  I really appreciate it.

The season finale is a special episode for me as I got to sit down with my partner Margot Moss and discuss a recent trial we finished a few months ago involving Mayor Andrew Gillum.  (Our team also included Katie Miller and Todd Yoder). You'll enjoy hearing Margot's passion for criminal defense and how she won this case in her opening statement. 

As always, you can catch this and other episodes on every podcast platform including Apple, Spotify and Google,  All other platforms can be accessed on this website. 

This season's Florida CLE code is listed at the end of this episode. If you're a Florida lawyer, you'll get 9.5 general credits, 2.5 ethics credits, and 1.5 technology credits.  Not bad for a free podcast.  All that I ask in return is that you spread the word, leave reviews, and subscribe.  It will take you 30 seconds. THANK YOU.

The podcast continues to make news. Most recently, the interview of John Lauro was discussed in the New York Times, and was previously cited in in the Wall Street Journal, Politico, Salon, CBS, and other outlets. If you missed it, you can check it out on audio and YouTube.

I also want to thank our other awesome guests this season:  Milton Hirsch, Todd Blanche, Gerry Lefcourt, Lisa Wayne, Matt Menchel, Barry Scheck, and Craig Albee.  Their trials and stories were inspiring. 

There are also a few Markus/Moss updates from the last few months while we're here:

• Since it's all Trump all the time, I've been making the rounds on various news shows to discuss recent developments, including Kaitlin Collins (here), Erin Burnett (here and here), Jim Acosta (here), Greta Van Susteren (here, here, and here) and Glenna Milberg (here). It's been a lot of fun.
• 
• Margot Moss was named the Criminal Justice Act Representative for the Southern District of Florida, which is a huge responsibility and honor. She also appeared on the wonderful Athena Rising podcast with Vanessa Johannes and Marissel Descalzo. 
• 

 

• We are currently fighting the government's efforts to freeze all of our client's assets pretrial.  Although its early, this ruling -- covered by the Miami Herald -- was favorable and is of interest.  The team includes Lauren Doyle.
• One of our biggest wins this year was a decision from the government (memorialized in a letter) not to prosecute our client, the CEO of a publicly traded company after we made a number of presentations along with wonderful co-counsel.
• The Firm and its lawyers continues to be recognized in Chambers and Best Lawyers.  Chambers named David a "Star Lawyer" and Best Lawyers awarded him "Lawyer of the Year."  Margot and Mona were recognized as well.

We love trials, criminal defense, and speaking to the lawyers. We hope you are enjoying this podcast as much as we are doing it. Please stay in touch with your suggestions and comments.  If you have a friend that would like to receive these updates, please have them sign up here.

Thank you! --David

 

Hosted by David Oscar Markus and produced by rakontur

 

CONTACT: info@rakontur.com, dmarkus@markuslaw.com

Bench and Bar (cont.)

By John R. Byrne

After a long hiatus, the Court held its semi-annual Bench and Bar Conference last Friday at the Miami Beach Convention Center. The event enjoyed record attendance, with over 1000 members of the bar attending. 

The decision to have fewer panels to ensure robust attendance at each panel was smart and the App allowed the moderators to ask questions from the audience in real time (and *mostly* avoided audience members hijacking the discussions with lectures masquerading as questions!)

I know there were complaints about the Gideon panel composition from the criminal defense bar. Still, Judge Williams and Judge Scola made powerful cases for the dire need for more federal funding for indigent representation. 

A really nice event put on by Chief Judge Altonaga and Judge Altman. Some pictures below. 

Panel on multi-district litigation with Judge Moreno, Judge Ruiz, Judge Rosenberg, Judge Singhal, and Podhurst partner Peter Prieto.

Afternoon plenary session on Gideon v. Wainwright with Judge Williams, Akhil Amar, Judge Scola, and David Howard.

Panel on criminal trials with Judge Marra, Judge Dimitrouleas, Chief Judge Altonaga, Judge Altman, Judge Cohn, and Judge Torres.

Supreme Court Roundup with Neal Katyal and Miguel Estrada.

Panel on civil jury trials with Judge Middlebrooks, Chief Judge Altonaga, Judge Bloom, Judge Altman, and Kozyak partner Ben Widlanski.

Bench & Bar conference

The big SDFLA conference is today.  It's a huge event and looks to be very successful.  If you are there, take some pictures and I will post them. (email them to me at dmarkus at markuslaw dot com)

One bit of controversy -- it's also the 60th anniversary of Gideon and there's a Gideon panel at the conference.  However, there is no public defender on the panel (the panel does include Judge Kathy Williams, the former FPD and David Howard, a criminal defense lawyer).  The local criminal defense listserv was fired up about it last night.  

In other news, prosecutors are pushing forward with charges against Hunter Biden, including possession of a firearm while being an addict.  The problem -- right wing judges have already struck down this statute as unconstitutional.