A houseboat is a house!

So says the High Court (at least in this case) in a nice win for local Fane Lozman in: Lozman v. Riviera Beach.  Prior blog coverage here.

Lozman was pro se in the district court case here in the SDFLA, but ended up being represented by a number of high powered lawyers, including Jeffrey Fischer. 

Here's SCOTUSBlog's coverage of the decision today:

Casting aside the simplistic notion that “anything that floats” is a watercraft whose use and activity is controlled by maritime law, the Supreme Court on Tuesday installed a “reasonable observer” at dockside to make the judgment about whether a floating structure qualifies, or not, as a “vessel.” The vote was seven to two, in favor of a maverick Florida owner of a houseboat who was constantly in hot water with marina owners, but now appears to have the last word: the marina probably will have to pay him, not the other way around.
The dissenters complained that the Court was introducing confusion and complexity into what should be straightforward and explicit, and thus upsetting the expectations of the entire maritime industry. The majority, in an opinion by Justice Stephen G. Breyer, insisted that its “reasonable observer” test would work in the real world of floating structures.

While this case turned on a boxy two-story floating home that Fane Lozman had lived in at various marinas in Florida, the Court treated his case (Lozman v. Riviera Beach, 11-626) as one with considerably wider impact on maritime law. What came out of it, in the end, was a reliance upon the traditional legal figure of the “reasonable man” (to be politically correct, now the “reasonable observer”) to make a common-sense assessment of the physical characteristics and activities of a floating structure, and then decide whether it was meant to be a vehicle of water transportation. Courts, of course, will be deciding what the “reasonable observer” would see, presumably on a case-by-case basis.
Under this test, not all houseboats will be exempt from maritime regulation, since many of them have motors to propel them, so a reasonable view of them is likely to be that they can be moved over water, carrying goods and people. But neither will all dockside structures used as homes, and ill-fitted for gliding over the waves, come under the new definition, because they probably will not be seen as transport vessels. It may take some time, and quite a bit of litigation, to see the difference between them, and between other floating structures.

Magistrate opening in Ft. Lauderdale AND JUSTICE THOMAS SPEAKS

First, the magistrate announcement via the Court website (HT Captain):

United States District Court
Southern District of Florida
Public Notice

Posted: January 8, 2013

United States District Court
Southern District of Florida
Public Notice

United States Magistrate Judge
Fort Lauderdale, Florida

The Judicial Conference of the United States has authorized the appointment of a full-time United States Magistrate Judge for the Southern District of Florida at Fort Lauderdale. Due to space limitations and other considerations, the appointee will likely have chambers and case assignments in both Fort Lauderdale and Miami. This appointment will succeed the incumbent who will be retiring on or about January 27, 2013.

******

Merit Selection panel composed of attorneys and other members of the community will review all applicants and recommend to the judges of the district court, in confidence, the names of at least five applicants for the position whose character, experience, ability and commitment to equal justice under law fully qualify them to serve as a United States magistrate judge. The Court will make the appointment, following an FBI full-field investigation and an IRS tax check of the appointee. An affirmative effort will be made to give due consideration to all qualified candidates, including women and members of minority groups. The current annual salary for the position is $160,080.00. The term of office is eight years.
All applicants are expected to review Administrative Order 2011-50, in re: Procedures Governing Contact with District Judges During Magistrate Judge Merit Selection Process.

Click here for the official application. Completed applications must be submitted to: Flsd_magistratejudgerecruitment@flsd.uscourts.gov

All applications will be kept confidential, unless the applicant consents to disclosure, and all applications will be examined only by members of the Merit Selection Panel and the judges of the district court. The panel’s deliberations will remain confidential.

Instructions for completion and submission of the application are included on each application form. Completed applications must be received by 5:00 p.m. on February 8, 2013.

AND BIG NEWS FROM THE SUPREME COURT:

Justice Thomas spoke for the first time during an oral argument in 7 years.  He didn't ask a question.  The transcript shows only four words: "Well, he did not."  But hey, it's something... Here is the transcript:

JUSTICE SCALIA: She was a graduate of Yale law school, wasn’t she?

MS. SIGLER: She’s a very impressive attorney.

JUSTICE SCALIA: And another of his counsel, Mr. Singer — of the three that he had — he was a graduate of Harvard law school, wasn’t he?

MS. SIGLER: Yes, Your Honor.

JUSTICE SCALIA: Son of a gJUSTICE THOMAS: Well — he did not - (Laughter.)

MS. SIGLER: I would refute that, Justice Thomas.

JUSTICE SOTOMAYOR: Counsel, do you want to define constitutionally adequate counsel? Is it anybody who’s graduated from Harvard and Yale?

(Laughter.)

JUSTICE SOTOMAYOR: Or even just passed the Bar?

MS. SIGLER: Or LSU law.

 Here is the Above the Law coverage, which has the whole story.

“No one has done anything illegal or broke the law."

That was former Miami police officer Raul Iglesias (prior coverage here) on tape to an undercover informer.  Seems like great stuff for him, but it was the feds that played the tape to end their case and rest before Judge Altonaga.  Here are transcripts (part 1 and part 2) of the tapes via the Miami Herald, which covers the case this way:

Later in their chat, Asanza — who was cooperating with authorities and trying to bait his boss into incriminating statements — expressed fears about lying on the witness stand if he was asked to testify. Iglesias agreed that committing perjury would be a bad idea.
“Yeah, of course, you don’t wanna, you don’t wanna f---ing lie,’’ Iglesias responded.
The secret tape recording from June 2010 was the last piece of evidence that prosecutors presented before resting their corruption case Friday against Iglesias, 40, who has been on the force for 18 years.
Iglesias, an ex-Marine and Iraq War veteran who was shot in the leg during a 2004 drug bust, is standing trial on charges of planting cocaine on a suspect, stealing drugs and money from dope dealers, and lying to investigators about a box of money left in an abandoned car as part of an FBI sting.
Asanza, 33, also an ex-Marine, pleaded guilty last year to a misdemeanor charge of possessing cocaine and marijuana. The deal helped him avoid a felony conviction; in exchange, he testified Thursday that Iglesias told him it was “okay” to pay off confidential informants with drugs.
The secret tape recording could cut both ways for jurors. On it, Iglesias did not say anything to Asanza to implicate himself in connection with charges in the nine-count indictment, his defense attorney, Rick Diaz, pointed out Friday. The charges encompass the police sergeant’s brief stint as head of the Crime Supression Unit from January to May 2010.

Read more here: http://www.miamiherald.com/2013/01/11/3178680/jurors-hear-secret-tape-recording.html#storylink=cpy

  
Should be interesting to see how this thing ends.

The buck stops here.

Looks like there are going to be a bunch of arrests in the FBI investigation into a Miami police gambling ring.  From the Herald:

At least nine Miami police officers are expected to face federal criminal charges or internal discipline from a broadening FBI investigation into a suspected protection scheme involving a Liberty City gambling ring and other criminal activity, The Miami Herald has learned.
Six of those officers have already resigned or been relieved of duty in recent weeks in connection with the investigation, according to sources close to the probe. The FBI, working with Miami police internal affairs investigators, is expected to make arrests before the end of the month.
The officers, who worked in the Model City substation, are suspected of providing off-the-books protection to a Liberty City barber shop that served as a front for an illegal sports-betting operation busted last March. Officers frequented the barber shop so often that one gambler told county police he thought the place was being run by the Miami Police Department, court records show.

Read more here: http://www.miamiherald.com/2013/01/09/3175204/fbi-probe-targets-more-miami-cops.html#storylink=cpy

***
On March 26, Miami-Dade police detectives raided the barber shop and two other South Miami-Dade locations following a six-month gambling investigation dubbed “Operation Pass the Buck.” Five men were arrested on gambling charges, accused of organizing bets on football and basketball games in the back rooms, court records show.
The off-duty police work at Player’s Choice, which has since closed, was not approved through proper channels, the sources say.

 

 

Read more here: http://www.miamiherald.com/2013/01/09/3175204/fbi-probe-targets-more-miami-cops.html#storylink=cpy

Generally in our legal system, the buck stops at the Supreme Court, but these statistics (here is the underlying data) confirm that it's almost impossible to get cert granted. Your chances last year, if you filed a cert petition, were less than 1%!  And the year before that, just over 1%. 

"[The Eleventh Circuit] does not seem to be listening [to the Supreme Court]."

That's the intro to this New York Times article about death penalty habeas cases in which the lawyer's mistakes end up costing their clients.  One such story from the intro to the article:

A few days after Christmas, a divided three-judge panel of the court ruled that Ronald B. Smith, a death row inmate in Alabama, could not pursue a challenge to his conviction and sentence because he had not “properly filed” a document by a certain deadline.

As it happens, there is no dispute that the document was filed on time. But it was not “properly filed,” the majority said, because Mr. Smith’s lawyer did not at the same time pay the $154 filing fee or file a motion to establish something also not in dispute — that his client was indigent.

Nor did the majority place much weight on the fact that the lawyer himself was on probation for public intoxication and was addicted to crystal methamphetamine while he was being less than punctilious. In the months that followed, the lawyer would be charged with drug possession, declare bankruptcy and commit suicide.

 

The 11th in a 2-1 decision said no problem. The conclusion to the article explains that Judge Barkett has been dissenting in these cases:

 

Judge Rosemary Barkett dissented, saying she did not see how the case was materially different from that of Mr. Maples or a 2010 rebuke from the Supreme Court to her court. In that second case, a Florida death row inmate named Albert Holland was given a new opportunity to argue that his lawyer’s inaccessibility and incompetence had caused him to miss a deadline. In a concurrence in April in yet another blown-deadline case, Judge Barkett identified the larger question that runs through these cases: why is it morally permissible to blame clients for their lawyers’ mistakes?

The legal system generally answers by saying that lawyers are their clients’ agents. The answer makes perfect sense when you are talking about sophisticated clients who choose their lawyers, supervise their work and fire them if they turn out to be incompetent or worse.

But the theory turns problematic, Judge Barkett wrote, when the clients are on death row, have no role in the selection of their lawyers and have no real control over them.

Allowing Mr. Smith’s challenge to be heard in a federal court does not mean he would prevail. But, Judge Barkett said, he ought to be allowed to make his case. “It is unjust and inequitable,” she wrote, “to require death row inmates to suffer the consequences of their attorneys’ negligence.”