Bob Martinez's Next Project

By John R. Byrne

Before he retired, my dad was a longtime lawyer here in Miami who worked downtown. One day, while making his morning pilgrimage north on US-1, his car unexpectedly broke down. As he stood stranded on the sidewalk, wearing a full suit in sweltering heat, another car pulled over. The driver rolled down the window, and said, "Hey, Bob, looks like you're in a bit of bind. Can I give you a lift?"

The driver was Bob Martinez. My dad and Bob weren't longtime friends. In fact, they'd only met once or twice before (I think my dad was surprised that Bob remembered his name). But that tells you a lot about the kind of guy Bob is. Yes, he's one of our living legal legends. US Attorney under President George H.W. Bush. A distinguished career in private practice at one of our country’s best Plaintiff’s firms, Colson Hicks Eidson, where he most recently helped secure a victory at the United States Supreme Court. But, at his core, he's a person who wants to help people. And, now, he is focusing on an issue where his help is needed: the security of our federal judges. 

Threats against our judges are at an all-time high. And it’s an equal opportunity danger. Judges appointed by Republicans have been threatened. Judges appointed by Democrats have been threatened. And it seems like every day it gets worse. It’s unclear what we can do about it. But that’s not stopping Bob. Aided by Judges Bloom and Seitz, Bob has recruited a team of lawyers to tackle this issue. The idea is for the lawyers to come together and brainstorm different approaches to addressing this alarming trend. My own idea is sort of a “scared straight” approach. A series of short, social media-friendly ads that, in stark terms, informs the public of the serious criminal consequences that flow from threatening a judge. I'd like to think that targeted social media advertising could get that message to some of the people who most need to hear it.

Check out Bob's recent op-ed on this topic in the Miami Herald. And if you have ideas about how to help, please contact Bob at bob@colson.com.

Judicial Conference Members Call for Investigation of Judge Williams (UPDATED)

By Jordi C. Martínez-Cid

We live in an increasingly politicized world. Last week, on October 22, House Judiciary Committee Chairman Jim Jordan and Subcommittee Chairman Darrell Issa wrote to the Judicial Conference of the United States asking it to review Judge Kathleen M. Williams’s order in the Trump v. IRS lawsuit. The Judge found that the President’s $10 billion suit against the IRS and Treasury Department, both of which President Trump ostensibly runs, was collusive and imposed sanctions on his lawyers. The chairmen want a report from the Judicial Conference on November 5, and their letter can be found here.

Putting aside the politics of it, whatever happens should be interesting from a legal and procedural perspective. The letter invokes Canons 2, 3, and 5 of the Code of Conduct for United States Judges. It asks the Conference to consider referring the matter to the Judicial Council of the Eleventh Circuit. Presuming the Conference ultimately files a complaint, it will go before Chief Judge William Pryor of the Eleventh Circuit. This would be, by my count, the third high-profile misconduct complaint to go before him this year: the one involving the judge accused of having sex in chambers, this recent one, and potentially this one.

As you likely know, Judge Williams’ order holds that the parties were never adverse, finds that the suit was brought “to gain the imprimatur of judicial legitimacy for a ‘settlement’ that had no viable basis in law or fact,” and imposes sanctions under Rule 11 and the court’s inherent authority. Those negatively effected appealed, and requests for stay were denied by both Judge Williams and an Eleventh Circuit panel. The appeal remains pending.

It will be interesting to see whether Chief Judge Pryor will discuss the underlying arguments of the letter (or whatever might ultimately be put in the complaint) or whether he will dismiss that complaint for being “directly related to the merits of a decision or procedural ruling.” 28 U.S.C. § 352(b)(1)(A)(ii). Last year, regarding the misconduct complaint against Chief Judge James Boasberg of the District of Columbia, the Chief Judge of the Sixth Circuit did the latter, and dismissed the complaint for lack of jurisdiction finding that the allegations were related to the merits. Whatever Chief Judge Pryor does, it will make news and--like seemingly everything else--it will be politicized. Hopefully, like Judge Middlebrook's million-dollar-sanction order against Trump, this too will blow over. I should note, however, that there is a pending petition for certiorari to the Supreme Court on the Middlebrooks order.

UPDATE BY DOM — Blog privilege here by updating Jordi’s post with my own thoughts.  The complaint is B.S. and pretty outrageous.  Disagreement with a judge’s decision is not a basis to file a complaint.  I’m sure it will be quickly dismissed.  Judge Williams is being honored tonight with the Judge Hoeveler award.  It’s a wonderful honor and well-deserved.  And yes, I’m biased as Judge Williams was my former boss. 

Comey and the waiverless information

By David Oscar Markus

DOJ charged James Comey again today. Third time. This one is a two-count information in D.C. alleging he leaked national defense information in October 2016. It was filed under seal on October 5, 2026. No grand jury. No waiver. DOJ says the point is to toll the statute of limitations while it keeps investigating.

Here is the information. Here is Comey’s motion to dismiss. And here is the government’s response.

DOJ defends not going to the grand jury as a “widely recognized practice.” 

During COVID, grand juries in our district stopped meeting. Prosecutors filed waiverless informations to beat the clock, and about ten defendants got caught up in it. I argued one of those cases, United States v. B.G.G. (I wrote about it here.)

In B.G.G., the government filed an information against Dr. Bart Gatz three days before the statute ran. It knew he would not waive indictment. It served him at 6:33 p.m. on the last day. Then it waited. Nearly three years later, it got an indictment.

Judge Middlebrooks rightfully didn’t buy it.  An unconsented information does not toll the statute. The government had admitted the information could not start a prosecution. Its only job was to stop the clock. Big props to the Judge. He got it right.  It was such a powerful order that the government did not appeal it, and instead chose to defend judges who went the other way. And in 2025 the Eleventh Circuit sided with the government in United States v. Webster. Even there, a concurring judge warned about prosecutorial manipulation and pointed to Gatz as the example.

In these cases, there was a pandemic. The grand juries were shut down. Comey’s information was filed in October 2026 when grand juries are available.

Comey also has an argument the pandemic cases didn’t. The five-year statute, § 3282, talks about an information being “instituted.” The ten-year espionage statute does not. It requires an indictment. So the five-year clock ran long ago, and the ten-year one demands a grand jury. The Fifth Amendment requires a grand jury for a felony unless the defendant waives. An information that can’t be prosecuted shouldn’t be able to freeze the clock. And if you can’t get a grand jury to indict in ten years, that tells you something.

Court Orders President Trump to Sit for Deposition

 By John R. Byrne

Ever taken the deposition of a sitting president? Me neither. But some lawyer for the BBC may soon get the chance.

We've covered President Trump's $10 billion defamation lawsuit against the BBC before. Yesterday, Magistrate Judge Lett ordered the president to sit for a deposition by December 11 or face sanctions, including potentially the dismissal of his lawsuit.

Off the top of my head, I thought Bill Clinton was the only other sitting president to have given a deposition (quite famously so, although his remark about the definition of "is" actually came during later grand jury testimony). Turns out I was wrong. Presidents Ulysses S. Grant, Gerald Ford, and Jimmy Carter all gave depositions while in office.

We'll see what happens. Article here. 

Should judges be elected or appointed? (UPDATED -- COFFEE NOW PERMITTED IN STATE CIVIL COURTHOUSE!)

 By David Oscar Markus

Since we are in election season in Florida, and we have judges on the ballot, I've been thinking about this question again.  There are, of course, plusses and minuses to both systems.  One plus for elections and something I've noticed a lot recently -- state judges are by and large just nicer than federal judges and treat the lawyers better.  I guess that's no surprise since they have to run for office.  And that's generally true for state judges that end up on the federal bench even though they don't need to run again.  Less robe-itis.  

Speaking of state, gave you all been in the new state civil courthouse?  It's pretty nice!  I wonder if the criminal courthouse will ever get an upgrade.  One not-so-great thing about the new state civil courthouse -- you can't bring in coffee.  The only liquid you can bring in is in a bottle.  (UPDATE -- Thanks to Chief Judge Fajardo Orshan, this critical problem has now been fixed! Coffee is now permitted!  THANK YOU CHIEF!)

Sorry for the rambling stream of consciousness this morning.  

What do you like -- elections or appointments?

Pro Se Law Clerk Opportunities

By Jordi C. Martínez-Cid

Gone are the days when our district would designate a particular magistrate judge who, along with his or her clerks, would handle certain pro se and inmate petitions. Those cases are now distributed among the district court judges, who in turn, have designated pro se law clerks.

The number of pro se petitions has grown exponentially and the district is in need of more talented law clerks. There are currently three open spots available and, if you are interested, I would encourage you to apply. The position is a good one in its own right (including the pay), but it is also a path to a more traditional law clerk experience. A handful of judges have already hired their pro se clerks to serve as term clerks.

Details for the openings can be found here: https://www.flsd.uscourts.gov/sites/flsd/files/jobs/2026-JDS-21%20Pro%20Se%20Law%20Clerk.pdf.

There are also other openings which may be of interest to the community, including term clerkships, listed here: https://www.flsd.uscourts.gov/job-listings.

Put That in Your Algorithm

By John R. Byrne

I think social media is doing a lot of harm to our kids (and probably us adults as well). Sure, it may be the quickest way for people to get critically important information, like injury updates for players on the Miami Hurricanes football team. But the algorithms have a way of sucking people into a never-ending doom scroll.

Kids seem particularly vulnerable to the ills of this aspect of modern technology, and there are plenty of studies linking social-media use to problems like shortening attention spans and body-image issues. The state of Florida decided to do something about it. The legislature passed HB3, a law that prohibits children under 14 from creating or maintaining accounts on certain social-media platforms and requires parental consent for 14- and 15-year-olds.

You knew it was only a matter of time before that law was challenged. Enter the Computer & Communications Industry Association and NetChoice. Never heard of either organization before, but, for some reason, I'm imagining a bunch of guys in short-sleeved white button-down shirts and pocket protectors. The organizations challenged HB3 on First Amendment grounds, and a federal district court in Florida concluded that they were likely to succeed and preliminarily enjoined Florida from enforcing the law.

The Eleventh Circuit stayed the injunction pending appeal. And, this past Wednesday, the court reversed the injunction as to the plaintiffs' as-applied challenge and vacated it as to their facial challenge. The panel consisted of Judges Newsom, Luck, and Tjoflat. Newsom wrote the opinion and, in a very Newsom-esque move, also wrote a separate concurrence.

The two big takeaways?

1. The court held that the law was content neutral, which, obviously, is a pretty important factor in First Amendment jurisprudence. Specifically, the law applied to platforms based on their technological features rather than the content of the speech appearing on them. For example, the law targeted platforms that use algorithms to select content for users and employ potentially addictive features, like infinite scrolling, push notifications, and autoplay. The law doesn't prohibit those features outright, but their use helps determine whether a platform is subject to the age restrictions.

2. The court held that the law likely survived the applicable level of scrutiny (here, "intermediate"). That's because Florida has an important interest in protecting children from social-media addiction and the statute is sufficiently tailored to that interest (heartily agree).

Newsom's concurrence raised an interesting question: Could the Eleventh Circuit have (at least partially) cut the Gordian knot by refusing to entertain an as-applied challenge in the first place? Newsom noted that, in West Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356 (2026), the Supreme Court stated in a footnote that "[a]s-applied challenges are not entertained when courts apply intermediate scrutiny or rational basis review."

That sounds pretty categorical. But, as Newsom explained, there were reasons to not blindly apply that language to this case. For one thing, B.P.J. was an equal-protection case, not a First Amendment case. For another, courts have long entertained as-applied First Amendment challenges under intermediate scrutiny. And such a ruling would mean that, in a large class of First Amendment cases, challengers would be left with only facial challenges, which are disfavored in constitutional litigation (and usually losing arguments).

As Newsom observed, that combination could result in "a lot less protection for traditionally safeguarded speech." He wasn't prepared to go that far without a clearer signal from the Supreme Court.

Opinion here. 

All in all, I think the Eleventh Circuit nailed this one (and not just because I have 14-year-old twin daughters). 

AFPD Andy Adler is a cert machine

 He got another grant before the High Court, this time in Berry v. United States.  

The issue: Whether a certificate of appealability under 28 U.S.C. § 2253 (opens in new tab) should be granted where the issue that the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been resolved in his favor by another circuit.

Here's the 11th Circuit opinion.

11th Circuit opinion makes David Lat's "Ruling of the week."

If you aren't a subscriber to David Lat's newsletter, you should be.  It is excellent.  Here is his ruling of the week: 

Ruling of the Week: Martin v. United States.

Many of you may recall Martin v. United States, a Supreme Court decision from June 2025. The case arose out of egregious facts, as explained by the Institute for Justice (the libertarian-leaning, public-interest law firm that represents the Martin family):

In 2017, masked federal agents broke down the innocent family’s front door, detonated a flashbang grenade in their living room, and held them at gunpoint before realizing they had the wrong house. The agents—who were attempting to execute a search warrant for a different house on a different street—did not even bother to check the family’s address before barging in.

The Eleventh Circuit affirmed the dismissal of the Martin family’s case, which was brought under the Federal Tort Claims Act. But the Supreme Court revived the suit, vacated the Eleventh Circuit’s judgment, and told that court to try again—in light of guidance provided by SCOTUS in a unanimous opinion by Justice Neil Gorsuch.

On remand, the Eleventh Circuit once again ruled in favor of the feds, as reported by ABC News and The Atlanta Journal-Constitution. In a per curiam opinion of 38 pages, the unanimous panel affirmed the dismissal of the Martin family’s claims against the government, based on sovereign immunity (although the panel did reverse the district court’s grant of qualified immunity to the FBI agent responsible for the epic screw-up).

But this time, there was a twist. I’ll again cite IJ’s statement (which provides an excellent, plain-English explanation of the complex doctrines at issue in this case):

In today’s decision, a three-judge panel of 11th Circuit judges reluctantly concludes that the circuit precedent required them to dismiss the Martins’ FTCA claims. However, in a concurring decision, the same three judges describe that precedent as a “mess,” lay out a new legal path that could allow suits over wrong-house raids to proceed to trial, and urge the full 11th Circuit court to revisit its flawed precedent immunizing the government through the FTCA’s “discretionary function exception.” IJ will file a motion to ask the full court to do so.

Would such a motion by IJ carry the day? Judge Adalberto Jordan’s 12-page concurrence was joined by Judges Jill Pryor and Embry Kidd. Although all three are Democratic appointees, and Republican appointees hold a 7–5 majority among active judges on the Eleventh Circuit, the libertarian flavor of the case—brought by IJ and previously addressed by Justice Gorsuch, widely regarded as one of the most libertarian justices—could be sufficient to garner a majority for rehearing en banc. So this long-running litigation might still have a happy ending for the Martins. (Given the bad facts and negative publicity, I wonder why the government hasn’t settled.)

 

Lots of tea being spilled on the SDFLA "Grand Conspiracy" case(s)

The NY Times has the latest here:

Still, the pressure has not relented. The dozen prosecutors still pursuing the inquiry are fast-tracking narrower cases against some chief targets that could be brought quickly, according to people briefed on their work. Leadership of the effort has defaulted back to Washington, and is now being directly overseen by one of Mr. Blanche’s top deputies, Aakash Singh, those people said.

A Justice Department official said leaders in Washington had “full confidence” in the prosecutors now working on the case and would act to uphold the law should “evidence of misconduct present itself.”

Even if charges are never filed, Mr. Trump has already instilled fear in — and imposed steep financial costs on — potential targets, in his view giving them a taste of what he experienced when he was under investigation.

Two targets have borne a particular brunt: James B. Comey, the former F.B.I. director fired by Mr. Trump in the early stages of the Russia inquiry, and John O. Brennan, the former C.I.A. director who played a role in instigating that investigation.

nside the Justice Department, another price is being paid.

The investigation has upended the U.S. attorney’s office for the Southern District of Florida, one of the most important in the country, which has been plagued by staff departures and low morale under its Trump-appointed leader, Jason A. Reding Quiñones, according to current and former prosecutors. The problems with the grand conspiracy case have exacerbated what officials in Washington have described as a growing lack of confidence in Mr. Reding Quiñones by his superiors.

The office once had more than 200 lawyers. It is now slightly more than half that size, after a spate of firings and resignations.

Prosecutors have watched the case play out with embarrassment and horror. Many have been so unwilling to join the investigation that Mr. Reding Quiñones, an Army reservist, was forced to bring in military lawyers to backfill the ranks.

The chief of the office’s criminal division has been sidelined. The office’s health care fraud unit has been decimated. Many prosecutors say the office feels leaderless, and are worried that a place once known for big drug and white-collar cases has pivoted to politics.

Even furniture has been repurposed to equip the inquiry’s two work spaces, one on the fifth floor of the main Miami office and the other up the coast in Fort Pierce.

***

But the move to Florida did not translate into immediate success.

One big problem, in the view of Mr. Blanche’s aides, was Mr. Reding Quiñones, whom they viewed as a feckless and inexperienced manager not capable of running the day-to-day operations of his office, let alone the grand conspiracy case.

Moreover, they felt that Mr. Reding Quiñones spent too much time in Washington and too little in Florida. To address that concern, Mr. Singh recently removed him from the attorney general’s advisory committee, which meets at department headquarters, to refocus his energies on Miami, according to two people with knowledge of the move.

But he was hardly the only problem.

BREAKING -- Your new magistrate judge is Aaron Weiss

 Congrats to Aaron S. Weiss of Carlton Fields, who is your new Magistrate Judge.

 

Legal Titan Joe Klock Passed Away

By Jordi C. Martínez-Cid

Joseph P. “Joe” Klock, Jr., one of the best-known Miami trial lawyers of his generation, died on October 4, 2026, surrounded by his children.

For most of the country, Joe Klock will always be the lawyer for Florida Secretary of State Katherine Harris in the 2000 presidential election litigation. He argued for the Secretary of State twice before the Supreme Court in eleven days, first on December 1, 2000, in Bush v. Palm Beach County Canvassing Board, and again on December 11 in Bush v. Gore, sharing the lectern with Ted Olson, Paul Hancock, Laurence Tribe, and David Boies. He was, for a moment, late-night TV comedy fodder because he called two Supreme Court Justices the wrong names. Afterwards, he told reporters, “I was so tired that I was happy I didn’t call one of them Justice Gore.” Joe took it all in stride and kept his sense of humor. Few lawyers anywhere have argued two Supreme Court cases in less than two weeks, let alone two that decided a presidency.

The national headlines were a sliver of the career. Joe was a Miami lawyer through and through. Born and raised in Philadelphia, his entire family (including seven younger sisters) re-located to Miami when he enrolled in law school at the University of Miami in 1970. He then spent more than three decades at Steel Hector & Davis, one of the city’s institutional firms, where he rose to managing partner and chairman. After Steel Hector merged with Squire Sanders & Dempsey in 2005, he moved to Epstein Becker & Green and, in 2009, joined Rasco Klock in Coral Gables, where he practiced until his passing. He had many clients, among them the Fanjuls, the sugar magnates. He inspired fierce loyalty and, as a result, the acronym FOJ came to be understood as Friend of Joe’s.

Joe also leaves a long legacy of work in and for the community. Putting aside his many paid cases, Joe was known for his prolific pro bono work, and he served on both the boards for Carrollton School of the Sacred Heart and Belen Jesuit Preparatory School. I know one person who, in an emergency, introduced himself to Joe and said some version of “Joe, I went to Belen and need your help.” Without more, Joe helped, and when pressed to accept compensation, merely said “pay it forward.” He is a man that did a lot of good, oftentimes without thought of lucre.

Ironically, he once had a sign that—in twisted imitation of the sign that hangs in 73 West Flagler—said “We Who Labor Here Seek Only Fees.” It was crass on the surface, but surprisingly deep. He explained that the sign was to remind his clients that the legal process was painful and should not be engaged lightly. If they asked him to, he would march to the courthouse because he was “seeking fees” but they should really reflect on what they were seeking and if it would be worth it.

He is, as far as I know, the only man my father ever envied. After a particularly long dinner sharing stories and laughs, the waiter approached Joe Klock (and not my father) to say, “Mr. Klock, is it alright with you if we close the buffet?” My father claims he was only envious for a moment, but I am not sure he ever got over it.

He leaves behind four children, Susan E. Klock, Robert C. Klock, Peter J. Klock, II, and Kathleen Mendez, with Kathleen being the only one that is not a lawyer in the community. Our condolences to his family, to his colleagues at Rasco Klock and his previous firms, and to the many lawyers who learned from him. The family has kindly allowed me to share information regarding the memorial services, and I will update this post once I have that information. Rest in Peace, Joe.

UPDATE (PLANS CHANGED): Funeral mass will be held at Church of the Epiphany, 8080 SW 54th Court, Miami, at 11:30 a.m. on October 16, 2026.

FBA Gala Honoring David Markus and Judge Gayles

By Jordi C. Martínez-Cid

The South Florida Chapter of the Federal Bar Association had its annual Awards and Installation Gala at the Frost Museum of Science this Saturday, ushering in the reign of president Erica S. Zaron, who heads the Federal Litigation, Appeals and Professional Development section of the Miami-Dade County Attorney’s Office. The chapter dressed the evening in all white, in the style of the Dîner en Blanc parties, which is both very chic and very dangerous for a slob like me, particularly since I sponsored dark brown espresso martinis.

Outgoing president John R. Byrne, in a final moment of inspired leadership, told all in attendance that he was against the dress code and blamed everything on Erica Zaron, before leading attendees in the pledge of allegiance.

The chapter honored two people this blog’s readers know well: Judge Darrin P. Gayles received the Edward B. Davis Award for Service to the Federal Bench and Bar, affectionately known as "the Ned," and fearless leader David Oscar Markus, blog founder, received the Distinguished Member Service Award, which the chapter now calls "the Bob,” for the late Bob Josefsberg.

The Ned

The award is named for Judge Edward B. “Ned” Davis, a West Palm Beach native and Army veteran who practiced in Miami for nearly two decades before President Carter appointed him to this court in 1979. He served as Chief Judge from 1997 to 2000, retired in June 2000, and passed away in 2010. By the Federal Judicial Center’s count, his commission issued on October 5, 1979, exactly 47 years ago. The list of past Ned recipients reads like a short history of the district: Judge Federico A. Moreno, Clerk of Court Steven M. Larimore, Magistrate Judge Robert L. Dube, Judge Donald L. Graham, Circuit Court Judge Stanley Marcus, Judge Alan S. Gold, Judge Patricia A. Seitz, Judge Marcia G. Cooke (posthumously), Cathy Wade Babyak, Judge William M. Hoeveler, Magistrate Judge Peter R. Palermo and, last year, Judge Beth Bloom.

Judge Gayles fits that company, and in one respect he fits it literally: when President Obama nominated him in 2014, it was to fill the seat Judge Seitz vacated. The Senate confirmed him unanimously that June, making him the first openly gay Black man to serve as a federal district judge. His path to that seat ran through nearly every courthouse in town — assistant state attorney in Miami-Dade, assistant district counsel with the Immigration and Naturalization Service, Assistant United States Attorney in this district, and then a decade on the state bench as a Miami-Dade County Court judge and an Eleventh Judicial Circuit judge. Few judges on our court have seen the Miami justice system from as many angles.

He was introduced by Judge Jacqueline Becerra who emphasized his dedication to both public service and to the people he cares about. Judge Gayles has Judge Becerra's back, quite literally, acting as an auxiliary U.S. Marshal to her at court functions.

The Bob

The chapter created the Distinguished Member Service Award in 2024 to recognize members who have given exemplary service to the chapter or to the bench. Stephanie Turk received the first one, and Oliver Ruiz received it last year. It now carries the name of Bob Josefsberg, who died in July 2025 at 86.

Bob needs little introduction. A Brooklyn native, Dartmouth and Yale Law graduate, and member of The Florida Bar since 1962, he served as an Assistant United States Attorney in this district, general counsel to Governor Bob Graham, and he spent more than four decades at Podhurst Orseck. He collected nearly every professionalism and pro bono award the Florida bar has to give, including the Dade County Bar’s David Dyer Professionalism Award, The Florida Bar’s Tobias Simon Pro Bono Service Award, and the Florida Bar Foundation’s Medal of Honor. When he died, David wrote here that Bob “was a gentle giant.” As David noted on Friday, in flagging a Daily Business Review piece by Meaghan Goldstein and Katie Mitchell titled “What Would Bob J. Do?: Re-Examining Civility Today.” That question, "What would Bob J. do?", is about as good a standard for the award as the chapter could have written. He was a mentor to many.

After Harvard Law School, David clerked for then-Chief Judge Ned Davis. He went on to Williams and Connolly and the Federal Public Defender’s Office before founding what is now Markus/Moss, and he served as president of this FBA chapter in 2007–08. So on Saturday night, a former Davis clerk accepted the Bob in the same ceremony at which the Ned went to Judge Gayles.

And then there is this blog. David started it in the summer of 2005. He explained the idea to Florida Trend early on with characteristic modesty: “Lawyers are the biggest gossips in town. This is just a forum for the lawyers to talk about all the great stuff going on in the busiest district in the United States.” Twenty-one years later, it remains the first place (I hope) many of us check to learn what is happening on North Miami Avenue and beyond. David has kept it candid without letting it become cruel. That is its own form of service to the bench and bar, and it is fitting that the chapter recognized it.

He was introduced by Judge Kathleen Williams (Ned recipient for 2012) who was adamant that she is not the source of information for this blog. She said many kind and aggrandizing things about David which was appropriate given that David did not talk about himself during his speech at all.

The End

Congratulations to Judge Gayles, to David, to President Zaron and the new board, and to the chapter for an evening that honored both the people and the traditions that make this district what it is.

"What Would Bob J. Do?: Re-Examining Civility Today"

That's the title of this very nice piece in the DBR by Meaghan Goldstein and Katie Mitchell.

It starts this way:

Civility is a popular buzzword in legal circles, but perhaps not as popular in practice. The test comes in the ordinary moments and small decisions in litigation, which ultimately shape our daily lives: the email you’re about to send, the argument you’re about to make, the extension you’re asked to agree to. During the past year, when faced with uncertainty, we’ve found ourselves returning to one question in these moments: What would Bob J. do?

One year ago, the world lost Bob Josefsberg. We lost a mentor and a role model, and a true gentleman in the courtroom and out. We lost the first lawyer we worked under, who contributed so much to the formation of our own careers, but also the man who was mentor and teacher to so many people at KTT, including our founders. We lost the grandfather in our mentorship family tree, so to speak. But we have not lost the legacy.

As the calendar marks what would have been his 88th birthday, we find ourselves reflecting on the lessons Bob taught us, which, at their core, were quite simple: being a good person is part of being a good lawyer. 

Great timing for this piece as the FBA will be honoring Bob tomorrow night at its gala.  

Judge Leibowitz strikes down § 611 non-citizen voting statute (as applied)

By David Oscar Markus

Judge David Leibowitz issued an important 31-page opinion today holding that Congress had no power to pass 18 U.S.C. § 611, the federal statute that makes it a crime for a non-citizen to vote in a federal election. The government alleged that Chelsea Cox voted in Broward County in 2020 knowing she was not a citizen. It charged her with a misdemeanor. Judge Leibowitz appointed Paul Clement's firm as amicus, ordered a second round of briefing, and held oral argument. Then he held the statute unconstitutional as applied to Cox and dismissed the Information.

You gotta read this centire opinion.  It's awesome.

It opens:

This is an unusual criminal case. It rests upon a forty-year-old federal statute, 18 U.S.C. § 611, that prohibits the act of voting in a federal election by a non-U.S. citizen. Until very recently, no federal court has been presented with the following question about that statute: Did Congress have Constitutional authority to enact it?1 That’s unusual, all by itself.

But this case is even more unusual than that, because the Government’s principal defense of the statute’s constitutionality invokes a single Supreme Court case that is very, very weak. Let me say that a different way. The leading case cited by the Government to uphold the statute is of “minimal precedential value” (that’s not my characterization, it’s Justice Scalia’s; we’ll get to that), and the application of other binding precedent shows that the Government’s leading case simply does not control this one. So why does the Government lead with such a weak hand? Because it’s the best hand it can play. And why is that? Because the text, structure, and original public meaning of the Constitution show that Congress does not have the constitutional power to enact this statute. 

Cox moved to dismiss and the government responded. Judge Leibowitz then Paul Clement and Chadwick Harper of Clement & Murphy as amicus curiae. They took it on pro bono. The order makes clear they weren't there for either side. Their job was to give the court "a thorough and candid view of the relevant legal authorities." Judge Leibowitz thanked them for acting "in the finest tradition of the federal bar."

The government's main argument was Oregon v. Mitchell, 400 U.S. 112 (1970), where the Supreme Court upheld Congress lowering the voting age to 18 for federal elections. The problem is that Mitchell had no majority rationale. Justice Black relied on the Elections Clause. Four other Justices relied on the Fourteenth Amendment. Five Justices rejected each theory. As Judge Leibowitz put it: "Here's the weird part, and it has real bite for our case."

He walked through Marks and the Eleventh Circuit cases applying it and concluded that Mitchell holds only that Congress can regulate voting age in federal elections. He rejected the government's broad reading. He also rejected Cox's position that Mitchell has no precedential value at all.

The government tried to wave off Justice Scalia's description of Mitchell in Arizona v. Inter Tribal Council as "of minimal precedential value." Dicta, said the government. Judge Leibowitz answered with Judge Carnes: "there is dicta and then there is dicta, and then there is Supreme Court dicta."

Article I, Section 2 and the Seventeenth Amendment tie voter qualifications for Congress to the qualifications each state sets for its own legislature. Article II leaves presidential electors to the states. The Framers considered giving Congress the power to set voter qualifications and said no. George Mason called it a power that "would be a dangerous [one] in the hands of the [federal] Legislature."

Section 611 has an "unless" clause that carves out state and local races where state or local law lets non-citizens vote. So § 611 bars non-citizens from federal races even in a state that lets them vote. Clement called that clause "the most damning textual evidence of Congress' overambitious intent." Judge Leibowitz agreed that § 611 is a voter qualification law. Neither the immigration power nor the Elections Clause saves it. As Justice Scalia wrote in ITCA, Congress may regulate "how federal elections are held, but not who may vote in them."

The amicus brief shows up all over the opinion. Clement's team flagged that § 611 validly reaches D.C. elections, which is why the court ruled only on the as-applied challenge. It rejected the government's reliance on a footnote in Kusper v. Pontikes. And it sketched the statute Congress could have written: one that makes it a federal crime to vote in violation of a state's voter qualifications. The court agreed it would "be difficult to identify a constitutional flaw" in that one.

It's a fun opinion to read.  And there are a bunch of similar cases pending (one went to trial a few weeks ago before Judge Becerra and the defendant was acquitted).  It will be interesting to see how this plays out. 

The SDFLA’s Aileen Wuornos Connection

By John R. Byrne

America is fascinated by serial killers. If you need more proof of that, HBO Max is streaming yet another documentary on Aileen Wuornos, the woman who was convicted of murdering six men. The documentary is titled "Unmasking a Monster." There have been multiple dramatizations of the Wuornos story, including, most famously, the movie "Monster," which earned Charlize Theron an Oscar for her portrayal of Wuornos.

How does this relate to the SDFL, you ask? Judge Raag Singhal actually represented Wuornos. Not at trial, though. His involvement came later. A Broward County judge appointed him to represent Wuornos in connection with complaints she had about her treatment in state prison. In that capacity, Judge Singhal wrote a letter to the justices of the Florida Supreme Court expressing concern about Wuornos's mental condition and, more specifically, whether she was competent to be executed. I'm linking to it here. Acknowledging that Wuornos herself was essentially asking to be executed, Singhal wrote: “It would seem to me that we should not be eager to execute an individual simply because she is a volunteer.” You can hear Judge Singhal's voice when you read that line, right? 

The letter got the Court's attention. The Court treated Singhal’s concerns as a claim that Wuornos might not be competent to be executed and referred the matter to then-Governor Jeb Bush. A few days later, Bush temporarily stayed the execution and ordered that Wuornos be examined by three psychiatrists. They ultimately concluded that she was competent to be executed, and Bush lifted the stay. Wuornos was executed by lethal injection on October 9, 2002.