Big First Amendment and Voting Map Orders

By John R. Byrne

Happy Monday!

We're suffering through the dog days of summer. But at least we just had some big legal orders to keep things interesting.

First, Trump is in the news again but this time it's about a civil lawsuit. He had sued CNN for defamation, claiming that CNN defamed him by comparing him to Hitler and the Nazi regime. On Friday, Judge Singhal dismissed his complaint.

The Court explained that the fatal flaw was that the complained of statements were opinions, not factually false statements. Comparing a Trump quote to a quote from Nazi propagandist Joseph Goebbels may be "bad rhetoric," the Court wrote, but it's "not defamation when it does not include false statements of fact." This is the second big order from Judge Singhal on the First Amendment, having previously granted summary judgment to CNN in Alan Dershowitz's defamation lawsuit against the company. 

The opinion is a good and quick (11 pages) read. You can find it below.

Trump v. CNN by John Byrne

Second, Judge Moore rejected the City of Miami's recent gerrymandering efforts, holding that its various redistricting plans were unconstitutional. The Court had previously enjoined the City's 2022 redistricting plan, adopting Magistrate Judge Louis's finding that "race predominated in the drawing of each of the five commission districts." The City then went back to the drawing board, proposing a "Remedial Plan" to the Court. But Judge Moore ruled that circumstantial evidence supported a finding that race motivated the Remedial Plan as well. The Court ultimately adopted a redistricting plan proposed by the Plaintiff, noting that the City hadn't even bothered to challenge the Plaintiff's proposal, instead "proffer[ing] a variety of grievances about potential political outcomes that would result from its implementation." 

The order is very thorough and technical (excerpting it below). 

Unsurprisingly, the City plans to appeal. City Attorney Victoria Méndez released the statement below:

“We appreciate the Court’s valuable insight into the City’s Redistricting process, but the Court waited to [sic] long in making this determination pursuant to case law,” Méndez said. “The Court did not truly give the City Commission the presumption of good faith with regard to their legislative functions.”

Looks like Joe Carollo is going to need to move. In the new map, his home is outside his district. 

Judge Moore Order by John Byrne on Scribd

More judicial nominees...

 ...just not here.  

The latest includes 7th and 10th Circuits.

The 10th Circuit nominee caught my eye as a former defender.  We need more!

Rich Federico joined the Federal Public Defender for the District of Kansas in Topeka in 2017. He has served as the Senior Litigator since 2020 and previously served as an Assistant Federal Public Defender from 2018 to 2020 and as a Research and Writing Specialist from 2017 to 2018. Mr. Federico also serves as a Captain in the United States Navy Reserve, Judge Advocate General’s Corps. He has been a Military Judge for the Navy Reserve Trial Judiciary since 2019, and he served as an Appellate Defense Counsel from 2015 to 2019. Mr. Federico was an Assistant Federal Public Defender for the District of Oregon in Portland from 2015 to 2017. Before that, Mr. Federico served on active duty in the U.S. Navy JAG Corps as a prosecutor from 2002 to 2008 and as a defense counsel from 2008 to 2015. In his last duty station on active duty, he served as Officer in Charge of two defense offices. He received his LL.M., highest distinction, from Georgetown University Law Center in 2012, his J.D. from the University of Kansas School of Law in 2002, and his B.A.J. from Indiana University in 1999.

Meantime, some prosecutors continue to behave badly.  From Reuters:

A former high-level U.S. prosecutor in Florida was sentenced on Wednesday to six months of probation for a criminal ethics charge in which authorities said she approved contracts in her office for companies that financially benefited her husband.

Prosecutors said Kathryn Drey, who served from 2019 to 2021 as chief of the civil division of the U.S. attorney's office for the Northern District of Florida, did not request or receive a waiver for what the government called an "inherent conflict."

Drey, licensed to practice law in Florida since 1998, pleaded guilty in March. Prosecutors had asked U.S. District Judge M. Casey Rodgers to impose a sentence of two years of probation.

"The significant collateral consequences she has suffered — retirement from public service and impending loss of her license to practice law — provide a sufficient deterrent to promote respect for the law," prosecutors told Rodgers in a court filing last week.

I typically see the govt say that collateral consequences don't matter... so judges, please start taking this into account in all cases, not just prosecutors who get into trouble.

One Text is Enough....

By John R. Byrne

If you don't like getting unsolicited text messages, the Eleventh Circuit just invited you to federal court. In a unanimous, en banc decision, the Court held that receiving a single, unwanted illegal text message gives rise to Article III standing under the Telephone Consumer Protection Act. 

The opinion, authored by Judge Rosenbaum, noted that, when an intangible harm like receiving an unwanted text message is at issue, courts must ask whether that harm has a "close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." The Court stressed that the "close relationship" inquiry must focus on whether the harm is similar "in kind"--not "in degree"--to the harm caused by the "traditional" cause of action. 

The Court landed on the harm caused by the common-law tort of intrusion upon seclusion, holding the tort caused harm that was similar "in kind" to receiving an unwanted text.  

Always notable when all the circuit judges agree on something.

Drazen v. Godaddy.com, LLC, No. 21-10199 (11th Cir. July 24, 2023) (en Banc) by John Byrne on Scribd

DOJ to issue report on how to improve inmate's access to counsel

 USA Today has the story:

Making it easier for detainees to meet, call and email their lawyers are among more than 30 recommendations from the review led by two department divisions, the Bureau of Prisons and the Office for Access to Justice.

Other proposals aim to boost prison staffing to facilitate communication and create a central leadership position to coordinate policies across the Bureau of Prisons.

“We’re excited because the report is very comprehensively stating we recognize these are barriers and let’s figure out solutions,” Rachel Rossi, director of Access to Justice, told USA TODAY. “Implementation is the next piece of this.”

 How about just making FDC not a complete nightmare to get into and not forcing lawyers to wait excessively to see there clients?

Judge Cannon sets Trump trial for May 20, 2024

 You can see the order on my Twitter feed here.  It's not the December date the feds wanted and it's not post-election as Trump wanted.  There's a very detailed schedule, so I wonder if this date will move.

Here’s the schedule. pic.twitter.com/AwQHNASsi1

— David Oscar Markus (@domarkus) July 21, 2023

 

And the trial is in Ft. Pierce, which is going to be very tough on the media...  Judge Cannon's courtroom has only two rows for spectators.  The trial should probably be in Miami and it should be televised.

Is another shortfall for federal PDs and CJA lawyers on the way?

This would be a disaster.

From Reuters:

The U.S. federal public defenders system could need to cut as many as 500 from its staff charged with protecting the rights of poor criminal defendants, because of a budgeting error by Congress that could leave it with a 3% to 5% shortfall, officials said.

That would mean a reduction of as many as 12% of the roughly 4,100 employees of the Federal Public and Community Defenders, the office that represents indigent federal criminal defendants, who could in turn be left to spend more time in jail awaiting trial.

The agency has already been found to be understaffed: A 2022 independent judiciary commission study found the offices need to add at least 250 more people to handle current case loads, defenders told Reuters.

An appropriations bill moving through the Republican-led House of Representatives would reduce spending during the 2024 fiscal year beginning Oct. 1 for federal public defender services by about $42 million from its current $1.49 billion budget.

***

Officials warn the resulting layoffs and furloughs for public defenders, along with possible cuts and delays to payments to the 8,000 private court-appointed lawyers nationwide, would be of the magnitude experienced in 2013 when similarly-sized belt-tightening was imposed by Congress.

 

Court Rules that State Must Stop Forced Institutionalization of Disabled Children

By John R. Byrne

In 1990, President George H.W. Bush signed the Americans with Disabilities Act, stating that the law meant “the end to the unjustified segregation and exclusion of persons with disabilities from the mainstream of American life.”

Last Friday, Judge Middlebrooks quoted these words in the introduction to a 79-page order ruling that the state of Florida violated the ADA by effectively forcing families to keep their disabled children in state-funded nursing homes instead of at home. The Court's order focused on Florida's failure to provide sufficient access to private duty nursing, a service that would help enable home care. 

The Agency for Health Care Administration, the state agency which oversees the Medicaid program, has  appealed and is seeking a stay of the Court's order. Order excerpted below and Herald covers it here.

Middlebrooks Order by John Byrne on Scribd

New episode: FOR THE DEFENSE: LISA WAYNE FOR NEW ORLEANS DISTRICT ATTORNEY JASON WILLIAMS

 

Welcome back to the podcast.  I hope everyone is having a great summer.  Some good news for Florida lawyers -- we applied for and received CLE credit for Season 5 of the podcast.  So once the season is over, I will include the CLE code for the whole season.

I'm very happy about this week's episode with NACDL director Lisa Wayne.  She successfully represented the New Orleans district attorney, Jason Williams, on federal tax charges before taking on her new role at NACDL.  Listen on your computer here or on any of your podcast platforms (Apple, Google, Spotify, or Amazon). 


Lisa and her client

I hope you enjoyed the last episode with Jerry Lefcourt (Abbie Hoffman) as well the episodes with Milton Hirsch (Pedro Guerrero) and Todd Blanche (Paul Manafort).

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

Please send me your feedback -- and of course, subscribe, like and comment!  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