Friday, October 31, 2014

Strange Bedfellows

Politics makes for strange bedfellows and that's more than true this election cycle.
The only thing social conservatives and LGBT activists in San Diego’s 52nd congressional district agree on is that they don’t want Carl DeMaio, the openly gay Republican candidate, to be their next congressman. 
Social conservatives have made a deal with the devil, urging voters to support incumbent Democratic Representative Scott Peters over DeMaio. Meanwhile, the candidate never managed to convince the local LGBT community that he was a strong advocate for gay rights. 
This week the National Organization for Marriage, an anti-gay rights/pro-traditional marriage group, joined Republicans and Independents for Scott Peters, a coalition of religious leaders and individuals who would rather see a straight Democrat in office than a gay Republican.
Gay Republicans! Admittedly, I was one for a brief period of time. It was the kind of dirty feeling no amount of bathing could remedy. But if any mixture is more combustible than social conservatives and gays, it has to be social conservatives and Vegas!

The "No On (Amendent) 2" campaign is being almost exclusively funded by grumpy gambling billionaire Sheldon Adelson. The foot soldiers of that campaign are Florida's staunchly anti-marijuana and anti-gambling evangelical community.

To his credit, Sheldon Adelson couldn't care less about medical marijuana in Florida. In fact he's funding some of the most promising medical marijuana research being done.

What Adelson wants in return for his help defeating medical marijuana is to expand his gambling empire here to Florida. His support for the No On 2 campaign is just a crass way of greasing the palms of Florida's Republican establishment.

But when the time comes for Adelson to get his payback, those same evangelicals working with him on defeating medical marijuana are going to be his strongest opposition to expanding casino gambling in Florida. Once, Adelson might have found allies among libertines like myself. But whenever that time may be, I'm certain that I'll be busy doing something completely unimportant.

Happy Halloween everyone! I'll be cavorting with the devil!

Airbag Failures R Us!

Sheesh, what a gasbag airbag!

Thursday, October 30, 2014

True Story -- The Herald Was Interesting This Morning!

Imagine my surprise, while perusing the car ads and health care plans in today's paper, that I learned something new:  it turns out Pam Bondi actually works for Dickstein Shapiro:
Cases involving Dickstein Shapiro clients that fizzled in Florida include Accretive Health, a Chicago-based hospital bill collection company shut down in Minnesota for six years because of abusive collection practices; Bridgepoint Education, a for-profit online school that Iowa attorney general Tom Miller said had engaged in “unconscionable” sales practices; Herbalife, which had been investigated by federal and state authorities; and online reservation companies, including Travelocity and Priceline, on allegations that they were improperly withholding taxes on hotel rooms booked in the state.
Since 2011, Dickstein Shapiro has contributed $122,060 to the Republican Attorneys General Association, a super PAC where Bondi sits on the executive committee and that contributed $750,000 to her re-election bid.

Dickstein’s partners and a client, ETC Capital, have also directly given $24,750 to Bondi’s campaign.
No offense to my friends at The Big Dick(stein), but come on Pam, don't slum when you go to DC! 

Think Jones Day, Arnold & Porter, Williams & Connolly -- reach for the moon, and if you fail fall gently into the warm embrace of Denny Hastert.

In other news, Bob Martinez deposed someone from the City about why our courthouse hasn't had a valid building certificate in forty years and learned that we live in a seriously f&*ked up place:
Over city objections, Judge Schumacher granted Martinez’s request to depose Miami officials and ordered the questioning to start hours later. By 1 p.m., Martinez was in a city conference room questioning city inspector Frank Rodriguez over why he posted the courthouse notice when he did.
Rodriguez said a supervisor had asked him to check a city database to see whether the courthouse address showed a current certification. When the computer search showed that it didn’t, Rodriguez said the notice was automatically generated and he attached it to the courthouse as happens regularly for about 10 buildings a day throughout the city.

“I haven’t been inside the building,” Rodriguez said of the courthouse. When Martinez asked who was in charge of actually inspecting the building for compliance to code regulations, Rodriguez replied: “The owner.”

Martinez also deposed a city fire inspector over safety compliance at the courthouse. When Martinez asked Lt. Bob Barea whether the courthouse had received a safety inspection, he replied: “I can’t tell you,” because the inspector with responsibility for that part of Miami retired earlier in the month.

“The testimony from the fire department was astonishing,” Martinez said afterward. “There are no records indicating there was ever a fire-safety inspection.” 
 Note to City/County/Whomever:  don't piss off the lawyers.

Finally, from the DBR, we learn that Bunker-Buster David Gersten is interested in STDs.

I kid -- good article, Your Honor!

Read more here:
Read more here:

Wednesday, October 29, 2014

More YES On 2

A great endorsement for Amendment 2 here from Florida Today.
If we can expand personal freedom without creating a new public harm, we should do it. If we can empower the sick with an affordable, relatively safe option for treating pain, lost appetite or other chronic symptoms, we should do that too. 
And if it's right to expand personal freedom and health options for the hurting, then we must decriminalize the doctors, family members and suppliers who help them. 
This is our case for legalizing and regulating the use of medical marijuana in Florida. If you agree, vote "yes" on Amendment 2. 
To be clear, FLORIDA TODAY does not support legalizing pot for recreational use, as Colorado and Washington state have done. Amendment 2 doesn't do that. 
Still, we've heard some imaginative criticisms of it, including alleged loopholes that would allow doctors to prescribe pot for hangnails or let drug dealers deliver cannabis to schoolchildren. 
Concerned, we scoured the full language and history of the proposed amendment and — like the Florida Supreme Court — found it to be straightforward and carefully written. We also reviewed large-scale studies from the 23 states that have legalized medical marijuana. That research shows warnings about crime, addiction and youth drug use are overblown and contrary to experience in places like California. 
If Amendment 2 passes with 60 percent of votes: 
• People with "debilitating medical conditions," such as cancer, Parkinson's disease or Crohn's disease, could receive certification notes from licensed physicians that, in turn, qualify them for state ID cards required to buy marijuana. Doctors must examine those patients in person. 
• Doctors could certify patients for "other conditions." But only with "a written document ... stating that in the physician's professional opinion, the patient suffers from a debilitating medical condition, that the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient." The state can discipline doctors who break the law. 
• Dispensaries or "medical marijuana treatment centers" could open in our cities and towns. As Cocoa Beach has done, local officials may already adopt codes restricting where those businesses open and how they look. 
• "Personal caregivers" could help administer marijuana to up to five qualified patients. A caregiver must be 21, meet standards to be set by the Florida Department of Health and carry an ID card. 
We see no likely public harm from passage. 
In fact, a study just published by the Journal of the American Medical Association found that overdose deaths from prescription painkillers were 25 percent lower over 10 years in states that passed medical-marijuana laws. 
A University of Texas-Dallas study of 16 years of FBI crime data found no increase in violence or property crime in states that allow medical marijuana. 
In Los Angeles, where dispensaries surged from a handful to nearly 600 from 2005 to 2010, rates of teen marijuana use actually dropped, according to research by Montana State and the University of Colorado-Denver. 
Go ahead and vote "yes" on Amendment 2. It would expand freedom and empower the hurting with little potential downside.

3d DCA Watch -- One Thing Leads to Another Edition!

Hi kids, this week the Bunkerites elected to issue a few written utterances!

It's almost as if a group of decision-makers thought through a legal issue and then decided to write their thoughts down so others could review their thoughts, and perhaps be guided in future cases by them, or potentially distinguish some future situation from a past situation if the facts or law are somewhat different.

Imagine that!

REWJB v. Bombardier:

Lauri Waldham Ross puts another notch in her belt.

Forbes v. Lehner Law:

Statute of limitations defense does not bar clawback suit against lawyer.

Sweetapple v. Simmons:

More lawyer legal cases -- this time involving whether trust account wire receipts are privileged.

Not surprisingly, they are not:
The issue presented is whether the trust account wire receipts are protected by the attorney-client privilege. Because this financial information is not privileged in the hands of the client, it is not privileged in the hands of the attorney.
Ok, here's a case where an opinion may not have been necessary.

It's Schnebly Time!

Tuesday, October 28, 2014

Oy Veh -- How Do We Get These Parties to Mediation Again? It's Neither Art Nor Science!

Magistrate Judge Goodman is still presiding over that Procaps case and, after a failed mediation, the plaintiff sought to order the defendant back to the negotiating table.

How do you defend against such a motion?  Of course you have to mention something about the failed mediation (even if the details remain privileged).

Or can you?
On August 18, 2014, Procaps filed a Motion to Compel Return to Mediation [ECFvNo. 572], which Patheon opposed. In Patheon’s opposition [ECF No. 587], it resolutely objected to a return to mediation, making several strong statements that called into question the ability of the parties to compromise in this case, at times alluding to the previous mediation that had occurred. Procaps contends that six specific instances in that opposition violate the confidentiality inherent in mediation sessions: statements that (1) there was a “monumental gap” at mediation; (2) Procaps refused to “close the gap” during or after mediation with a reasonable settlement; (3) Procaps made an “over‐the‐top” settlement offer at mediation “based” on Patheon’s revenues; (4) Patheon made a “counteroffer” to Procaps’ settlement offer from the mediation; (5) Procaps refused to disclose a rule of reason theory to Patheon; and (6) Procaps’ counsel made no effort to confer in good faith about mediation and settlement. [ECF No. 592, p. 2]. Given these alleged violations of mediation confidentiality,1 Procaps argues that Patheon’s entire pleading should be stricken by the Court. 
Ok, so your game plan to settle with the defendant is to file a motion compelling them to mediate again, and when they oppose, move to strike their pleading?

Good way to build settlement momentum!

But the loquacious Judge says it is mere "mediation puffery": 
It is, of course, absolutely true that Patheon made the statements attributed to it by Procaps, as the second to last paragraph of the response alone features a rundown of almost every allegedly offending statement in controversy in a single sentence. [ECF No. 587, p. 4]. However, almost all of the challenged disclosures are innocuous and not violative of the confidentiality rule....It stands to reason that any argument that opposes a return to said mediation would mention ‐‐ at least to some limited degree ‐‐ the fact that the previous mediation did not succeed because of substantial differences.
Then, after denying the motion, the Judge entered a docket order gilding the lily on what conditions need to exist before he would compel another mediation:
ENDORSED ORDER denying without prejudice 572 Plaintiff's Motion to Compel Mediation. The Court may order a second mediation -- but only after resolution of many, if not all, pending issues and projects, such as (1) Procaps' obligation to provide additional discovery following completion of the forensic analysis of its ESI, (2) Procaps' motion to compel a forensic analysis of Defendant Patheon's ESI, (3) Procaps' duty (as outlined in a recent order) to provide responses to the outstanding discovery requests it previously avoided by representing an intent to not proceed on anything other than a per se mode of analysis, and, (4) a possible defense summary judgment motion on Procaps' newly-focused rule of reason approach to its antitrust claims.

Either party may file a motion for mediation after complying with Local Rule 7.1, but the Court strongly suggests that no motion be filed until at least most of the issues and events flagged above have been resolved or completed. Alternatively, the Court may well order a second mediation on its own, in the absence of a motion.

The Undersigned believes that mediation is most effective when the timing is right -- and the Undersigned does not consider the present time to be the right time for a second mediation. Determining the right time for a mediation is more of an art than a science, but neither an artistic approach nor a scientific approach suggests that now is that time. Signed by Magistrate Judge Jonathan Goodman on 10/22/2014
So probably after Tisha B'Av 2016 we can start looking at some dates.

Monday, October 27, 2014

Let's Talk Judge Walsh -- It's Countdown Time!

I suppose we should talk former Chief Judge Joel Brown too:
As the former chief judge of Miami-Dade Circuit Court, I do know what will happen if our community fails to support this project. The existing 90-year-old Dade County Courthouse is not only an eyesore and a disgrace to the dignity of our system of justice, it is also in grave risk of either being closed due to condemnation or having some part of the building cease to function for months on end due to colossally inevitable repairs.

And then what? Since the entire circuit is operated as a single unit, the courtrooms in the downtown building will no longer be available, and that by necessity will create a ripple effect in the other courthouses. This will lead to slowdowns and stoppages of civil business disputes, criminal prosecutions, injury cases, divorce and custody matters, domestic violence cases, juvenile and dependency matters where foster child placements may be delayed, and significant delays in decisions as to who either goes to or stays in jail.

The civil trials will be moved throughout the system, and each division of the courts will be impacted. The criminal, family and juvenile courts will all experience a slowdown as they will need to share their courtrooms and facilities with 260 clerks of court, the 25 circuit civil judges and the five civil county judges. The 936,000 yearly visitors and 65,000 yearly jurors who come to the civil courthouse will have to be dispersed to our criminal, juvenile and family courthouses.
Essentially the entire gamut of how we in this country decide what is right and wrong will be delayed.

Denying or even delaying this new courthouse will be a stain on us for decades.
Now back to Judge Walsh:
As a circuit court judge, I read with interest the Herald recommendation that the bond referendum on the ballot for funding to replace our 90-year-old courthouse isn’t yet ready for a Yes vote.
The suggestion is that somehow it’s feasible for us to relegate our court dockets to satellite courthouses and hearings in cyberspace.

Each of the satellite county court judges handles thousands of cases in their divisions such as in Coral Gables, where each judge handles 7,000 cases. Where would the 41 judges of circuit court go to conduct court?

Miami-Dade has the distinction of holding court in the oldest courthouse in the state. Each county in our state maintains a court system that’s safe, hygienic, structurally sound and adequate — except Miami-Dade County.

It’s not my place to question why, but it’s shameful that every day, the people who need our courts endure mold, structural damage, asbestos, dust, and flooding. Jurors, 800 per week, share three public restrooms.

Our elevators break down, the air conditioning system dates to the 1950’s and 41 judges share 22 courtrooms and this number is dwindling as courtrooms are sealed off to address mold and asbestos complaints. 
Fellas, relax -- and your complaint is what exactly?

Seriously, the Herald's "caution" that we need to better think through a plan for construction means only one thing -- the Herald was not adequately consulted in advance on a plan for construction.

(Jorge, why did we not get Herald buy-in in advance?)

But, as Judge Butchko says, we're not building a rocket ship to Mars -- it's a building.

When you consider all the lame-brained projects that have gotten routinely approved (and funded) in our County and which provide next-to-no public benefit, the notion that we need to conduct further study before we can conclude that a new courthouse is needed is just political hogwash. 

What it will mean is further delay, further deprivations of justice, and a different set of interests to be greased -- ten or more years down the road.

Sunday, October 26, 2014

Bondi; Tired, Played Out, Yesterday's News

As with her first and second marriages, Pam Bondi doesn't get what she wants.
A Florida appeals court has refused to let Attorney General Pam Bondi take the state's gay marriage ban directly to the Florida Supreme Court. 
The 3rd District Court of Appeal on Friday indicated it will likely rule itself on previous decisions striking down the Miami-Dade and Monroe counties bans. 
Several Florida judges ruled this summer that Florida's ban is unconstitutional but stayed their rulings until other cases around the country were resolved, including those pending with the U.S. Supreme Court. It recently declined to hear appeals from five states that sought to keep their marriage bans in place. The American Civil Liberties Unions, and attorneys for the couples in Miami-Dade and Monroe counties then sued to overturn the stay. 
If they prevail, Bondi could then go to the Supreme Court.
I'll say it again – this is all a giant waste of tax dollars for a crass political purpose. Help us George Sheldon, you're our only hope!

Video is NSFW for Sandra Bernhard. Oh baby Christmas!

You Have Been Charged With The Crime Of Seeking Relief

Floridians Should Not Face Arrest For Medical Care.

Montel Williams says yes on 2!
In 1999, I was diagnosed with multiple sclerosis. Sixteen years later, I can honestly say not a single second of my life has gone by where I have been unaware of my disease. Because of my condition, I experience neuropathic pain 24 hours a day, have battled severe depression and experienced intense periods of suicidal ideation. Although multiple sclerosis has changed nearly every aspect of my life, I've never let it control or define who I am. I work every day to beat this disease through a rigorous exercise regimen, strict diet and physical therapy. 
In early attempts to manage the painful symptoms of my disease, doctors prescribed me every powerful painkiller you can imagine — Percocet, Oxycontin and Vicodin to name a few. My experience with these pharmaceutical interventions was nasty and ineffective at best, as they provided little to no symptom relief. I was just left with the miserable side effects you only read about on the side of the label. 
My current physicians recommended I try medical marijuana as part of my treatment protocol, and its use has provided me with more symptom relief than any drug previously prescribed to me. Only someone suffering from a debilitating disease could truly know how effective medical marijuana can be, and I can attest to it firsthand. I know that there are many more out there who can benefit from its proper use just as I have, and because of that I fully support Florida's Amendment 2. Patients deserve to be treated with dignity, respect and compassion — not left as collateral damage on the political battlefield.
More here. 

Friday, October 24, 2014

SFL Friday -- Bring the Pain!

Hi kids, here's what is sloshing around in my noggin this am:

1.  Free candy handouts to poor people -- this Obama guy never quits!

2.  How do you get the Governor to show for a deposition -- hold a fundraiser:
Attorney Steven R. Andrews was prepared to put the governor under oath in Tallahassee, but Scott's communications director, Frank Collins, said Thursday that "there is not going to be a deposition tomorrow." Scott's lawyers asked the judge to quash the deposition but, as of late Thursday, they hadn't received an answer.

Scott is instead expected to attend a fundraiser at the Biltmore in Coral Gables, featuring former Gov. Jeb Bush, U.S. Sen. Marco Rubio and Lt. Gov. Carlos Lopez-Cantera.

However, if the governor is a no-show for a deposition in a case he initiated, it may not be without consequences.

According to California's rules of civil procedure, the governor must submit to the deposition today unless he has received the court's permission to change the date, said Walter Clark, a trial lawyer who practices in Southern California.
No doy!

Last I checked, parties can't unilaterally cancel a deposition unless they get a court order in advance. 

Or do special rules apply to our Governator?

3.   No quicker way to clear a courtroom.

4.  Enough with these red light cameras.

5.  Early vote, plebes!

Have a great weekend!