SCOTUS Monday

Everyone is covering the first Monday in October today.  I will point out two local cases--

1)  The houseboat question presented by Fane Lozman (previous coverage here).  

John Pacenti has coverage today:

Fane Lozman made a boatload of money off the tech bubble and appropriately decided to live the good life with his dachshund Lady on a houseboat at a Riviera Beach marina.
The city, though, had a $2.4 million redevelopment plan for the public marina with its easy access to the ocean. Lozman stood in the city's way and was determined to fight the city's use of eminent domain.
Now the former Chicago financial trader is a cause celebre for fellow houseboat residents around the country, fighting his eviction all the way to the U.S. Supreme Court. The high court opens its fall session today by hearing arguments in the case.
The question for the nine justices is a simple one: whether a houseboat is a house or a boat. Their answer could have wide-ranging consequences for houseboat owners, floating casinos and government agencies.
"I think it's amazing this little landlord-tenant dispute made it all the way to the Supreme Court," said renowned appellate attorney Jeffrey Fisher, a Stanford University law professor handling the case for Lozman.
Amicus briefs have been filed in favor of Lozman's position by the U.S. solicitor general's office, the American Gaming Association and the floating home associations of Seattle and Sausalito, California.

This reminds me of the question Scalia raised in his recent book about what counts as a vehicle in the park....

2.  The dog sniff question: This one won't be heard till Halloween, but local public defender Howard Blumberg will be arguing it.  Here's his brief.  And here is a nice post by Lyle Denniston explaining the issues presented:

Suppose, though, that police use a dog to check for narcotics on the exterior of a home that they suspect is being used for drug trafficking.  Does the fact that the site of the search is a private home make a constitutional difference?  That is one of the new factual situations that the Supreme Court is now preparing to confront.  In the case of Florida v. Jardines, Florida’s state supreme court ruled that the U.S. Supreme Court’s past rulings on the use of drug-sniffing dogs did not apply at all when a dog was used at a home, even if the dog only sniffed exterior surfaces of a house.   Nowhere is the right of privacy stronger than in a private home, the state court said.
That case originated when police in Miami got a tip from a “crime stopper” source that the home of Joelis Jardines was being used to grow marijuana.  Police went to the home, based on that tip alone, and used a trained detection dog named Franky to check out the front porch of the house.  After circling for a few minutes, Franky sat down, near the front door.  That indicated to his police handler that the dog had detected an odor of marijuana coming from under the front door.  At that point, the officers obtained a search warrant, which the officers then carried out, finding a marijuana-growing operation inside the house.  Jardines was charged with growing illegal marijuana plants, but his lawyer contended that the search was unconstitutional because it intruded on the privacy of the home.
The state’s highest court relied primarily upon a 2001 Supreme Court decision, in the case of Kyllo v. United States, a ruling that it is unconstitutional for police to use a heat-sensing device aimed at the outside walls of a house, to check to see if marijuana was being grown inside with the use of high-intensity lamps.   When the government uses a device that the general public does not employ, and the police use it to explore the details of a home, the state court said, that is a “search” under the Fourth Amendment.   A trained dog’s sniff test fits into that category, it concluded, adding that such a test reveals not only the presence of something illegal, but it also is capable — when carried out in public view — of exposing the homeowner to public humiliation and embarrassment, and further is capable of being used in a discriminatory way.   Before police may conduct such a sniff test, it ruled, they must be able to show in court — after the fact — that they had more than mere suspicion that a crime was being committed in the crime; they had to have information indicating that it was ”probable” that there was such criminal wrongdoing taking place in the home.   The bottom line of the ruling: the use of Franky at the Jardines home was “unreasonable,” so the marijuana evidence could not be used against him.
That ruling is being challenged by state officials of Florida in their appeal to the Supreme Court.   They have the support of the federal government for their challenge.   Their basic claim is that a sniff test by a drug is not a search at all, at a home or elsewhere.

3.  Also congrats to SCOTUSblog for 10 years of blogging.  No one covers the High Court better than Tom Goldstein and Amy Howe.

"I have bent over backward ... I have extended every due process to Mr. Roy that the record reflects he denied to his own client."

That was Judge Turnoff in jailing Emmanuel Roy, the former lawyer who is alleged to have ignored numerous court orders.  SFL has covered this story along the way, but it's worth writing about here as well.  Some interesting tidbits from the Sun-Sentinel:

The judge found Roy had focused his efforts on wringing cash and other valuables out of Coulton's family.
Roy even flew to England and took a $23,000 wedding ring from the finger of Coulton's wife at a meeting, the judge found. He also took a Porsche, tens of thousands of dollars and a Coconut Creek townhouse, the judge found.
Turnoff gave Roy and Mayas 10 days to comply with his order last September but Roy never responded so the judge eventually issued a warrant for his arrest after he failed to show for a July 6 hearing.
On July 12, Roy wrote to Turnoff that he had "always shown great respect to the court."
"I trust that the court will not conclude that I have decided to stump [sic] my nose at it, for any party who does so does it as his own peril," Roy wrote.
Five days later, Roy was arrested in New York on the judge's warrant. He was refused a bond and transferred -- via Oklahoma -- to face the judge, arriving Wednesday at Miami's Federal Detention Center.
Finally facing Judge Turnoff in court Thursday, Roy didn't get into details about the Coulton case. He claimed he's now penniless though he told authorities he had a net worth of about $700,000 in 2009 when he was charged with wire fraud in a federal mortgage investigation in New York. He has pleaded not guilty and is going to trial on that case next month.
Though Turnoff was clearly astounded by Roy's actions, he said he is keeping an open mind and gave Roy and his lawyer time to prepare for an Aug. 16 hearing where Roy can explain himself before the judge makes a final ruling.
...
Turnoff ruled Roy can be released on a $250,000 bond if he can put up $5,000 cash and promises to return for the hearing next week.

If you are looking for a something a little more light-hearted, check out this Jerry Seinfeld short with Ricky Gervais.

Or, if you are a Supreme Court junkie, here's a case from the upcoming Term on whether a house boat is a boat or a house:

As yachts go, Fane Lozeman’s vessel was no Queen Mary. First of all, the two-story, 60-foot boat had no name, motor or way of being steered. She drew only 10 inches of water and had glass French doors on three sides, making the idea of an ocean passage nonsensical. Tied up at the dock in North Beach Village, Fla., she was the functional equivalent of a house down to the sewer line and electrical lines snaking onshore.
That didn’t stop town authorities from getting an order under marine law to seize the vessel and tow it to Miami, after Lozeman failed to heed local ordinances and pay his dockage fees. Now the U.S. Supreme Court is scheduled to decide the question of whether the term “vessel” applies to anything that floats, or should be reserved for things intended to move from place to place. 

Ft. Pierce courthouse dedication and other Monday notes

1.  The Ft. Pierce courthouse was dedicated on Friday:

After what some government officials called a 25-year effort, theU.S. District Court, Southern District of Florida and the U.S. GeneralServices Administration formally dedicated the new federal courthousein Fort Pierce on Friday.
U.S. Sen. Bill Nelson called the $56.3 million, 123,400-square-footbuilding "a jewel for downtown Fort Pierce and the Treasure Coast."Nelson, who spearheaded efforts to construct the courthouse, praisedthe nation's criminal justice system and addressed the highlypublicized shooting death of Trayvon Martin by a community watchvolunteer in Sanford.
"We are not just dedicating a building, we are dedicating a conceptthat this is a country that abides by the rule of law," said Nelson,who delivered the ceremony's keynote speech.
***
According to U.S. District Judge Donald Graham, the judges in theSouthern District voted to install a permanent district judge at theFort Pierce courthouse pending White House and Senate approval. Grahamsaid the process could be lengthy, especially during an election year.
Graham was pleased with the courthouse's stunning aesthetics and security.
"The key issue is security," said Graham of the building, whichboasts blast-resistant materials, concrete walkways, undergroundparking and a sun-filled atrium.
"Its been a labor of love for many of us," said Graham, who addedtwo floors can be expanded to include additional courtrooms if needed."It's a beautiful, beautiful building, and it's functional, too."

2. The health care oral arguments start today, and the lawyers have been training... literally (via NY Times):

Last week, there were so many of the mock arguments that lawyers callmoot courts that they threatened to exhaust something that had neverbeen thought in short supply: Washington lawyers willing to pretend tobe Supreme Court justices.

The problem, said Paul D. Clement, who represents the 26 stateschallenging the law, was not just the length of the arguments that thecourt will hear, but the variety of topics to be addressed.

The law itself is a sprawling revision of the health care system meantto provide coverage to tens of millions of previously uninsuredAmericans by imposing new requirements on states, employers andinsurance companies and, through what has been called the individualmandate, requiring most Americans to obtain insurance or pay a penalty.

The decision in the case will have enormous practical consequences forhow health care is delivered in the United States. It is likely to landin June, with large repercussions for both President Obama and hisRepublican challenger just before the two parties hold their nominatingconventions.

The justices have broken the case into four discrete issues, schedulinga separate session for each, for a total of six hours, the most in morethan 40 years. Mr. Clement, like his principal adversary, SolicitorGeneral Donald B. Verrilli Jr., will be arguing three times.

3.  Congrats to my boys from Rakontur, celebrating their 10th anniversary.  Nice coverage in the Herald, and cool events all week at the O Cinema.  Since I'm a Miami native, I just love that they are home boys -- making movies starring this city:

The bond between Corben, Spellman and Cypkin — who are all 33,became friends at Highland Oaks Middle School, made their first shortfilm in high school and co-founded rakontur in 2001 — has grownstronger with each of their successes.
So, too, have their roots to Miami.
“Wemade a decision to stay in Miami to further our careers, which seemsanti-instinctual in our business,” says Corben, who has directed all ofrakontur’s films. “But it was a deliberate, calculated decision. It wasa brand-basing decision. We didn’t want to be another group of schmuckstap-dancing Los Angeles or New York. There have been a lot of talentedfilmmakers who have come from Miami, but none whose work is associatedwith the city the way Woody Allen is associated with New York or BarryLevinson and John Waters are associated with Baltimore. We wanted to beknown as the Miami guys.”

Read more here: http://www.miamiherald.com/2012/03/25/2711793/10-years-of-rakontur-celebrates.html#storylink=cpy

 4.  Combining items 2 (the Supreme Court) and 3 (Miami), there's this story about a case from South Florida going to the Supremes (via Curt Anderson):

 Court documents refer to it as "that certain unnamed gray, two-storyvessel approximately 57 feet in length." To Fane Lozman, it was afloating Florida home never intended to sail the seas. Now, along-running dispute over exactly what the structure was has landedbefore the U.S. Supreme Court.
Lozman, a 50-year-old former Chicago financial trader, seeminglylost his nearly six-year battle with the seaside city of Riviera Beachwhen his home was hauled away in 2009 and later destroyed by courtorder. But Lozman refused to give up, claiming officials vindictivelyand illegally targeted him for eviction from the city's marina becauseof his vocal opposition to a major redevelopment plan.
"Whatever they had to do to get me out of there, they were going todo it," Lozman said. "All I want to do is live a quiet life. I didn'tlook for this drama, it came to me because I wanted to stay at themarina."
The only-in-Florida backstory matters less to the Supreme Court thana more fundamental question: When is something a vessel, and when is itnot? The court agreed to take the case earlier this year and isexpected to hear arguments in October.

5.  St. Thomas is having a wonderful event this Friday:

On March 30, 2012, the St. Thomas Law Review and the Daily Business Review will host a symposium titled, Media and the Law: Adjusting Trial Strategy in Light of Media Portrayal and Public Perception.  From 9 a.m. to 5:15 p.m., the symposium will focus on how judges, litigants, and members of the media face an increasing number of challenges regarding public influence and potential jury misconduct as technology advances.  Tickets are $25 and include breakfast, lunch, and an evening reception.  Credits for Continuing Legal Education are pending approval with the Florida bar.

The luncheon will feature keynote speaker Professor Charles Nesson, Weld Professor of Law at Harvard Law School, and Founder and Faculty Director of the Berkman Center for Internet and Society.  Professor Nesson has litigated high profile cases such as White v. Crook, Anderson v. Cryovac, and Daubert v. Merrell Dow Pharmaceuticals, a United States Supreme Court case.  He defended Daniel Ellsberg in the 1971 Pentagon Papers case, and represents Joel Tenenbaum in a well-publicized music file sharing case, Sony BMG v. Tenenbaum.

The symposium will also consist of three panels and will be moderated by Benedict P. Kuehne of the Law Offices of Benedict P. Kuehne, P.A.  Each panel will be comprised of three to four members of the legal profession who have faced challenges in their handling of high-profile cases as a result of media coverage and exposure, and members of the media who inform the public of such cases.

The media panel will include three members of the media: David Lyons, Editor-in-Chief of the Daily Business Review; Manny Garcia, Executive Editor, El Nuevo Herald; Willard Shepard, an Anchor and Journalist with NBC 6.  These panelists will provide keen insight into their experiences reporting high profile cases.  Their discussion will cover the ethical dilemmas the media faces to appeal to public interest while protecting the sanctity of our judicial system, and the responsibility of the media in balancing these interests.

The litigants panel will consist of three attorneys: Carey Haughwout, Palm Beach Public Defender; Ervin Gonzalez, attorney at Colson Hicks Edison; and Abraham Laeser, a retired prosecutor from the Miami-Dade State attorney’s office.  These panelists will discuss their experiences in handling high-profile cases, and the effect of media coverage on how they approach the case.  The panelists will also provide their perspectives on attorneys’ ethical obligations when communicating with the press.

Finally, the ethics panel will feature Florida Supreme Court Justice R. Fred Lewis, Chief Magistrate for the Southern District of Florida, Judge Stephen Brown, and Anthony Alfieri, Professor at the University of Miami School of Law.  These panelists will explore ethical issues and dilemmas litigants and judges face in an era when the public has a seemingly insatiable appetite for information about high profile legal cases and cutting edge legal issues.

Additionally, the symposium will host Judge George Greer, who received national attention when he presided over the Terri Schiavo case.  Judge Greer’s session, “A Conversation with Judge Greer,” will be moderated by Professor Tamara Lawson, Professor of Law at St. Thomas University School of Law.