Friday, December 26, 2008

2008 -- A Visual Look Back (These Are A Few of Our Favorite Things)

Well kiddies it's been a fun ride, what with law firm layoffs, Madoff, the economies, homicidal Santas, and that whole real estate thing.

You can get a feel for how crappy things have been by looking at the ABA's excellent list of Top Ten Legal Stories of 2008.

Still, I have confidence that 2009 will be a great year. Of course, maybe that's just the holiday afterglow talking.

Either way, your humblest and crappiest South Florida legal blogger will be taking a short hiatus, but we will be back better, bigger and stronger than ever on 1/5/09.

Thanks Rump and David for your support and collegiality, thanks to the ABA for noticing us, thank you all the tipsters, princess-lovers, fakers, lurkers, Carver chronics, movie/music/pop culture freaks, and of course all the commenters who keep this thing humming, and a very big thank you to everyone for reading and making this blog what it is.

Happy New Year Everybody!

Wednesday, December 24, 2008

3d DCA Watch - Lump of Coal Edition

Tough times all around, and things do look bleak, but it's Christmas after all, so let's see what our coffee-swilling resplendantly robed ones to the South have stuffed into our legal stockings this Christmas Eve in a very special holiday edition of our patented 3d DCA Watch:

Eww. For the love of the common man let's hold our nose and get right to it:

Lifemark Hosp. v. Afonso:

I know this is hard to believe, but the Florida Legislature isn't all that good at drafting laws, even when they are drafted at the same time and specifically in response to a particular Florida Supreme Court opinion.

Here's Judge Ramirez's very clear summary of the appellate issue:
This is an appeal involving an arbitration award which presents a question of statutory construction, namely, whether section 766.207(7), Florida Statutes (2003), limits awardable economic damages in arbitrations to those damages available under the Wrongful Death Act. In other words, the issue presented is whether the 2003 amendments to the Medical Malpractice Act limit economic damages in arbitrations involving a wrongful death to those afforded by the Wrongful Death Act.
Short answer: HAHAHAHA. It's a fairly detailed analysis, but the bottom line is you can forget about recovering loss of earning capacity in a wrongful death med mal arbitration. Happy Holidays!

Andersen Windows v. Hochberg:

The bearded and very talented one, Mike Ehrenstein, represented the Hochbergs in this one, who had the misfortune of having some expensive yet crappy windows and doors installed that leaked. They had to sue and all, but at mediation reached a settlement, which provided as follows:
The two-page agreement, which was hand-written by the Hochbergs’ attorney at the end of mediation, was signed by the parties, approved by the circuit court, and provided that Andersen would repair, replace, and/or adjust the home’s doors and windows. Additionally the parties’ agreement provided:

3. Andersen will retain a water testing consultants [sic] acceptable to plaintiffs (“GCI”) and will test (“water isolation test”) all of the doors after the replacement and repairs set forth in 1 and 2 above to verify that all exterior doors are not leaking at Andersen’s sole cost and expense.

9 (a). All water testing shall be a representative sample of product as determined by Bill Bonner [GCI]. The parties may utilize any other qualified representative of GCI acceptable to both parties.
(Emphasis added).
So even with the repairs, a representative sample of the "fixed" doors and windows still leaked -- I love South Florida! So the Hochbergs asked that everything that was installed be tested to make sure there are no leaks.

Nope, said the 3d.

However, we'll be thinking of you, Mr. and Mrs. Hochberg, when the next hurricane hits! Happy New Year!

Plaut v. NCL:

When cruise lines get affidavits from neighbors, and show them for the first time to you on the witness stand, it means you should not blab to your neighbors so much and also that cruise lines are pretty darn sneaky.

Other than that, Merry Christmas!

Island Sea-Faris v. Haughey:

When you book an excursion from your home in South Florida, through Royal Caribbean, that doesn't mean the excursion operator has anything to do with you or South Florida on the following facts:
Royal Caribbean sold tickets for Island Sea-Faris’ shore excursions, and Royal Caribbean sold tickets via the telephone and the internet to persons in Florida; Royal Caribbean processed the telephone and internet purchases at Royal Caribbean’s substations located in Florida; passengers aboard a Royal Caribbean cruise ship were able to purchase tickets for Island Sea-Faris’ shore excursions while in Florida territorial waters; Royal Caribbean is the only party that can collect the money for the shore excursions, and Royal Caribbean pays Island Sea-Faris for the shore excursions; and Island Sea-Faris provides the actual shore excursion, and pursuant to this business venture, Royal Caribbean receives forty three cents on every dollar and Island Sea-Faris receives the remainder.

Haughey also introduced evidence that Island Sea-Faris worked with other major cruise lines, including Carnival, in Florida, to provide their shore excursions; and that Island Sea-Faris contracted to purchase insurance covering persons, property, or risk in Florida, including Royal Caribbean and Carnival as the named insured parties. Additionally, Haughey introduced evidence to show the existence of a 2003 contract between Royal Caribbean and Island Sea-Faris that required insurance. Haughey also introduced the 2005 Tour Operator Agreement entered into between Island Sea-Faris and Royal Caribbean in October 2005 that contained clauses relative to insurance and indemnification.
See? There was no "direct" connection between the operator and South Florida after all.

Have a great holiday!

The Scotts Co. v. Loma Linda:

Shorter Judge Salter -- we can't help it if foreign jurisdictions go out of their way to make it impossible for plaintiffs to recover for their losses, we still think under Kinney that hostile forum is a perfectly suitable alternative venue:

Expressed another way, if our courts determine that a foreign forum is available and adequate, it is the obligation of the plaintiff to assent to jurisdiction there and to support that court’s exercise of jurisdiction over the matter and the parties. Further, that plaintiff may not assume that a foreign country’s preemption or blocking laws will be recognized here.8 If the foreign country chooses to turn away its own citizen’s lawsuit for damages suffered in that very country, and if the other Kinney factors warrant dismissal here, it is difficult to understand why Florida’s courts should devote resources to the matter.
This is a very interesting issue, and I understand Judge Salter's concerns in the particulars of the case at hand. Yet I think he goes too far when he seeks to extend that concern more generally. For example, consider this sentence:
But the lure of U.S. tort laws, pretrial discovery, class actions, punitive damages, jury verdicts, and contingent legal fees assured that a kind of international legal chess game4 would follow the early forum non conveniens rulings. In an effort to enhance their own citizens’ chances of avoiding a forum non conveniens dismissal in the U.S., a number of countries enacted laws or rendered judicial decisions intended to preclude their own courts from hearing the refiled cases. The plain intention of these measures was to assure that the foreign country would not be an “available adequate forum” for purposes of the U.S. court’s forum non conveniens analysis, with the hoped-for result that a plaintiff from that country would be able to keep its claims in the U.S. court.
"Feliz Navidad!", he added.

I think there is some merit to Judge Salter's concern in the "refiled" context at issue in this particular case.

But Judge Salter's construction of the issue makes it seem only one side is playing the "chess game" referred to in the bolded language. Don't American-based defendants also engage in machinations to have claims dismissed from our courts, knowing as a practical matter the case is "dead" and there is little chance they will ever have to be held accountable in foreign jurisdictions which lack due process or a fair legal system free from the corrupting effects of money and power?

Also, how can you rule against Susan Lerner? That's just wrong.

Uh-oh, I'm having another one of those Kinney fever-dreams. Man I have got to lay off those gin-nogs.

Well, I guess all of this is good news for somebody, somewhere, so I say:

Happy Holidays, Mickey Arison!!

The rest of us will have to do like that wonderfully melancholy WWII holiday classic, "Have Yourself A Merry Little Christmas":
When presented with the original draft, Garland, her co-star Tom Drake and director Vincente Minnelli criticized the song as depressing, with lines such as "Have yourself a merry little Christmas / It may be your last / Next year we may all be living in the past" and "Faithful friends who were dear to us / Will be near to us no more".[3] Though he initially resisted, songwriter Hugh Martin made several changes to make the song more upbeat. For example, the lines "It may be your last / Next year we may all be living in the past" became "Let your heart be light / Next year all our troubles will be out of sight."
"Next year all our troubles will be out of sight." I like the sound of that.

Thanks for reading and commenting.

Happy Hannukah and Merry Christmas everybody!

A Certifiable, 100 % Guaranteed Frank Jimenez-Free Post!

"And so this is Christmas. And what have you done?"

Let's see, what's happening.....

Economic crisis not good.

Jobless claims at 26-year high.

Dolphins to somehow blow playoff chances.

Frank Jimenez does a mitzvah.

Shoot! I was almost there!

Oh hail:

A Miami man imprisoned more than a half-century ago for his help flying weapons to the Jews who fought to create Israel received a posthumous presidential pardon Tuesday.

Charles Winters died in 1984 at age 71, a hero in Israel but a quiet family man to those who knew him in South Florida. His was only the second posthumous pardon in U.S. history.

Winters' pardon was one of 19 that President George W. Bush approved in the final weeks of his administration.

Two other Florida men were pardoned as well: Steve Doyle Cavender of The Villages, sentenced in 1973 on marijuana charges; and Richard Harold Miller of Tallahassee, sentenced in 1993 for conspiracy to defraud.

But it was Winters' story -- a Boston Protestant who aided his Jewish friends and served 18 months in prison for it -- that drew support from Republicans, Democrats and even film mogul Steven Spielberg.

''There are probably many unsung heroes of America and of Israel, but Charlie Winters is surely of them,'' Spielberg's letter said. ``While a pardon cannot make Charlie Winters whole, and regrettably he did not live to see it, it would be a fitting tribute to his memory and a great blessing to his family if this pardon is granted.''

Afterward, Winters' son, Jimmy, called the moment amazing.

''I was just in awe that it actually had happened,'' Jimmy Winters said.

It was Jimmy Winters, 44, who began the pardon campaign with the help of childhood friend Frank Jimenez, now the U.S. Navy's general counsel, who has been mentioned as a possible appointee to the Florida Supreme Court.

Well, I'm gonna just have to try again.

Tuesday, December 23, 2008

Raoul Cantero Writes Op-Ed Quoting Positive Comments About Raoul Cantero

Isn't it cool that as we get ready to inaugurate a new President, we get to fight about the 2000 Florida recount and the Bush years all over again?

Thank goodness I don't have to write another post about Frank Jimenez. I tell you, I was thisclose to pulling a Lew Freeman and launching myself from the top of Wachovia like a despondent Rose DeWitt Bukater hoping to escape the loveless clutches of the very dastardly Billy Zane.

No, instead this is about Raoul Cantero.

Also, it is an Op-Ed written by Raoul Cantero:
Six-and-a-half years ago, the Florida Supreme Court Judicial Nominating Commission nominated me to fill a vacancy on the Florida Supreme Court. At the time, I was a lawyer practicing at a medium-sized Miami firm. I had never been a judge. I was the only Hispanic nominated and, if appointed, would be the first justice of Hispanic descent on the court.

The St. Petersburg Times promptly wrote an editorial painting me as a right-wing ideologue. The Times used my representation of an alleged (but twice-acquitted) terrorist to claim that I was "apparent(ly) indifferent to violence that is anti-Castro in motive." The newspaper also used a letter I had written to the Miami Herald editor years earlier, to insinuate that I would grant leniency to some murderers but not others. My letter had condemned the then-recent murders of two abortion doctors. However, I explained that the vast majority of those in the antiabortion movement were decent people from all walks of life who shared a belief that abortions kill children. The Times used that letter to question whether I would affirm the death penalty for the murder of abortion providers.

Of course, the Times' accusations were not well-founded, as subsequent events proved. I will not dwell on my record as a justice. Suffice it to quote one of my colleagues, speaking at my retirement ceremony in September: "His votes on this court have never, ever reflected an agenda either personal or political" and "Justice Cantero is the essence of what we mean by judicial independence."

Cantero does say some other stuff, good stuff actually, about somebody else blah blah blah, but hey I'm trying to dwell on the positive here, ok?

Miami Herald Frank Jimenez Editorial Watch

Oh man am I sick of this story.

Still, the news keeps coming.

Let's see, we've had the St. Pete Times weigh in on the Frank Jimenez appointment mess.

And now the Palm Beach Post:

The worst kind of judicial politics may place an unqualified person on the Florida Supreme Court. Blame Gov. Crist and some of his allies.
Trust me, it goes downhill from there. The Post concludes:
Gov. Crist dismisses the idea that the fix is in, saying that his choice will surprise people. The real and sad surprise has been how far the governor is willing to go to show far-right conservatives, through his Supreme Court choices, that the GOP base could be comfortable with him as a presidential candidate. He filled two high court vacancies with high-profile social conservatives; Mr. Jimenez could be even more extreme. Either way, the commission's credibility is gone. Those commissioners who backed Mr. Jimenez should resign. And if the governor picks Mr. Jimenez, the choice should be challenged in court as illegal.
Given that a native South Floridian is involved, do you think the Herald might weigh in on this someday?

To be fair, they are appropriately focused on something that is on the mind of all citizens of South Florida....the Minnesota recount. There's only so many things they can keep their eye on.


Well, as they say a day late and a dollar...., but hey at least the Herald attempted to express an opinion:

By compelling the commission to bend the rules, Gov. Crist taints the process. The commission is allowed to submit six names to the governor. However, after rigorously screening dozens of candidates, the commission settled on five names. In other words, if the JNC had determined that a sixth candidate was qualified, that person would have been included on the original list.

To suddenly produce a sixth name after Gov. Crist selects the only Hispanic on the list and asks for more ''diversity'' isn't the way real diversity works. Diversity means giving everyone an equal chance, not cherry-picking the only one you want.

Meanwhile, Crist "responds" to the flawed process charge:
Asked if the lawyers' complaint had merit, Crist, a lawyer as well, said ``I don't think so. I'll leave that to the judicial branch.''
Crist added: "And good luck with that, by the time I get done with them."

All Frank Jimenez, All the Time.

I don't know, I feel like we're getting a little Frank Jimenez chronic here, and yet more news keeps breaking.

Now it's this, in a fine story by Jordana Mishory:

Late last week, as the controversy over Jimenez’s nomination simmered, the governor’s office moved up the planned interviews with the Supreme Court finalists from early January to today and Christmas Eve. All six are set to meet with the governor, chief of staff Eric Eikenberg and general counsel Jason Gonzalez, the sources said.

But Crist spokesman Sterling Ivey said he was not aware of a schedule for the interviews and that he could not confirm if they were on a tentative schedule. He said he had not spoken with Gonzalez’s office before deadline. Calls to Gonzalez’s office were referred to Ivey.

Efforts to move up the interview process at the last minute could be thwarted by holiday plans. At least two of the finalists were on vacation. One source said Labarga had agreed to a phone interview. He could not be reached for comment.

Tony Alfieri, director of the Center for Ethics and Public Service at the University of Miami, said the efforts to speed up the interview process and the re-inclusion of Labarga hurts the credibility of the governor and the Supreme Court Judicial Nominating Commission.

“In American law, the highest value is almost always the value of process,” he said. “Having brazenly undermined the Supreme Court nominating process, the governor is once again demonstrating how results-oriented calculations can damage the integrity of the Florida judiciary.”

Alfieri said it appears the governor is rushing the interviews in response to a public outcry “to mitigate any further controversy or damage to his administration.”
Process-shmocess: who cares if we like the result?

And another thing -- no one likes a scold, Professor!

Hmm, I'm trying to think of the last major political event that happened right before, nothing comes to mind.

Carry on, Governor!

Monday, December 22, 2008

Frank Jimenez Unlikely To Return Calls From St. Pete Times, Either!

We've already noted Frank's seeming inability to be available for phone calls with journalists who are writing negative stories about him. Well, you can add the St. Pete Times to newspapers that probably won't be getting a call back from Frank anytime soon:

If Gov. Charlie Crist appoints Frank Jimenez to the Florida Supreme Court, he will be selecting the least qualified and most ideological nominee available. Jimenez is a Cuban-American and would add diversity to a court that now lacks a Hispanic justice. But in this case, diversity would be a pretext for stacking the Supreme Court with political conservatives and abandoning its centrist history.

A Jimenez appointment would make a mockery of the state's judicial nomination process, which was initially designed to ensure meritorious and nonpolitical picks for the state's appellate courts. While it was reasonable for Crist to ask the Judicial Nominating Commission for more names to add diversity to the list of candidates, the commission's handling of the request in a contentious Wednesday night telephone conference is legally suspect and politically tainted.

In a series of 5-4 votes, the commission publicly agreed to waive its own rules and add at least one more name to the list of finalists. It is no coincidence that the majority were appointees made directly by Crist or former Gov. Jeb Bush, and that the minority were gubernatorial appointees recommended by the Florida Bar. One guess how the secret ballot to add Jimenez went. This was not a broad search for diversity but a heavy-handed move to add one specific name to the list.

Jimenez is a Bush acolyte whose career has been advanced through one political appointment after another. As the governor's assistant general counsel, he sent an e-mail in which he plotted with Bush to recruit "ideologically compatible" applicants for judgeships by creating shadow regional panels to encourage certain judicial candidacies. That alone illustrates the contempt he has for an independent judiciary.


Sheesh. Who put coal in the stocking of the St. Pete Times' editorial board? I'm not even quoting all the good stuff due to it being the holidays and all.

Given that Frank is from South Florida, I wonder whether our "paper of record" will weigh in on it. (Note to Miami Herald -- when writing an editorial, try to have it express a point of view).

All I know is if Heat Miser and Snow Miser can get along, there is hope for all of us.


They write letters, continued:

Politics swayed Jimenez nomination to Judicial Nominating Commission

The Judicial Nominating Commission ''ran afoul of Florida law'' and appeared to bow to political pressure when it nominated Miami lawyer Frank Jimenez for the Florida Supreme Court, a group of high-powered lawyers complained in a strongly worded letter Monday.

Jimenez, a politically connected attorney who is currently the U.S. Navy's general counsel, was nominated for the seat Wednesday after a long and contentious JNC meeting called in response to Gov. Charlie Crist's request for more ''diversity'' in the list of prospective justices. Amid frequent 5-4 votes, the commission suspended its rules at times as some members questioned what they were doing and what Crist's motives were.

''We are very concerned that the integrity of the process with respect to the nomination and selection of justices and judges may be tainted in the eyes of the public,'' said the letter to JNC chairman Robert Hackleman.


It was signed by 17 attorneys, including former Florida Bar President Kelly Overstreet-Johnson, constitutional expert Wayne Hogan, two former Fifth District Court of Appeal judges and state Sen. Alex Villalobos, R-Miami, and his father, José.

The signatories said they would like a delegation of theirs to meet with Hackleman and others to prevent a repeat of Wednesday's meeting, which was held by conference call. They said the JNC's actions ''may very well run afoul of the letter and spirit'' of the law when it changed its rules during the conference call and when it cast voice votes rather than secret ballots.

Hackleman could not be reached for comment Monday. Nor could Jimenez, an attorney in the administrations of both former Gov. Jeb Bush and President George W. Bush.

Wait a minute -- Frank didn't return the phone call?

No way!


Thanks to a friend of the blog, you can review the entire letter here.

Judge Labarga Sorry About That Time He Publicly Vowed To Hold Ten-Year Grudge Against Combative Lawyer

Hey there folks, here's hoping you are enjoying all those holiday gift baskets I keep seeing in everyone's offices around town. Don't you just love court reporters?

Anyway, a tipster who has asked to be referred to as "Fascist Bob" has repeatedly inquired of my view of this story:

''When you pick a fight with a judge, ultimately, you are gonna lose. Not today, but five years from now, 10 years from now, six years from now. That judge is going to remember you, always, always,'' Labarga said.

``And, you know, when you do -- there is an old saying that if you go after a judge, you better kill him. Because, like I said, it's true.''

Hmm. Let's see what the context was:

The court's recording system was running in May 2007 when Kollin appeared before Labarga on behalf of a client accused of selling counterfeit merchandise.

Labarga announced at the outset that he was stepping down from the case because his former law partner, David Roth, represented a co-defendant.

But when a prosecutor's concern about meeting the law's speedy trial requirements prompted Labarga to start issuing instructions to a clerk, Kollin objected. And Labarga got annoyed.

''Your Honor, I -- since you recused yourself, I would object to you making any directions to the clerk because you can't make any more rulings on it,'' Kollin said.

''I know that,'' Labarga responded. ``I appreciate you coming here and educating me. I'm just a little country guy. I just got here off the boat a few months ago. I understand those things.''

''I don't appreciate the sarcasm,'' Kollin replied.

Kollin left the courtroom, and didn't come back.

But about an hour and a half later, Labarga started talking about him again, saying Kollin wanted to ``pick a fight.

''But you know, five years from now, he may have an attorney's fees hearing in front of me, he may have this in front of me then. And you are always going to remember those guys,'' Labarga said. ``He's very combative. I have to be honest with you. I kind of wish I would have kept that case 'cause he would have been fun.''

I don't know about this. On the one hand, those remarks were clearly out of line and should not have been said. On the other, I am sure that some judges do think that way sometimes, though one would hope they wouldn't act on such emotions years down the line.

Here's Judge Labarga explaining his remarks:

Labarga said Sunday that he remembered the 2007 case, but did not recall making the specific statements.

''I go through 50, 60 cases a day,'' he said. ``If it's on the transcript, I said it. Judges are human. I had a bad day.''

Labarga said the average person could read the statements and question his ability to be fair and impartial, but he said his record shows that is not the case.

''I've been a judge 13 years, and there is no evidence that I hold a grudge,'' Labarga said. ``I have a really good record. To pick one negative incident out of my whole career is not an accurate portrayal of my overall job performance.''

While I would have liked a more straightforward apology or expression of regret from the Judge, I'm willing to accept this as a moment of frustration and give him the benefit of the doubt, in the absence of other similar incidents. Plus I do not know Judge Labarga or his reputation.

What do you all think?

Unshackled Lew Freeman Continues Rampage of Titanic/Madoff Metaphors

In discussing the Madoff scandal, Lew Freeman has left no Titanic reference untouched.

Yet despite the close advice of friends and associates, who have pleaded with him to move on from employing the Titanic as the sole reference point when discussing this scandal, Lew has indicated he believes he can still tease out relevant Titanic/Madoff metaphors:
''Even though you got off the Titanic, you may not be afloat,'' said Lewis B. Freeman, who runs a forensic accounting firm in Miami that has been approached by several victims' lawyers for help with the Madoff case.
Sensing that perhaps he may need to freshen it up just a bit, Lew continued:
"Well, let me think -- just because you bought a ticket on the Hindenburg doesn't mean you will arrive safely in New Jersey. Or how about this -- it's not as if it's 1956 and you're a Madoff investor lounging comfortably on the Andrea Doria. I would say investors right now are very much like that family who bought a house out on Amityville, Long Island.

Tell me the truth, are any of these any better?

Oh hail, I'm sticking with what works."

Friday, December 19, 2008

SFL Friday -- Holiday Windsurfing Edition

So there I was, my eyes locked and staring directly at Judge Altonaga, as I smiled slightly and prayed for a favorable ruling.

"You can have this table, SFL, we were just leaving."

"Thanks Judge. Have a nice weekend."

What -- you thought we were in court? I'm a civil litigator, don't be silly. I was talking about lunch this afternoon at La Loggia.

Well it's nearly 2:30 so that means it's time for me to start packing up for a nice long weekend of windsurfing. Don't forget, Monday is the first day of Chanukah. I hope all you big-firmers have your hours logged in for the year, because I can feel everything gradually shutting down.

Lawyers on vacation, judges on vacation, economy on vacation, key indicators in decline.....oh hail, I'm outta here.

Let's schedule that depo the second week of January, ok?

Have a great weekend everybody!

Rebekah Poston and Alvin Davis: Frank Jimenez Was A Good Worker.

I mean why all the contretemps, what more do you need:
Rebekah Poston, Jimenez's former boss at the law firm Steel Hector Davis in Miami, said that based on the work he did for her, Jimenez would be an excellent choice for the Supreme Court. ''He was a superb writer, superb researcher and his ethics were beyond reproach,'' she said. ``He was able to look at both sides of issues.''
Rebekah, that's nice and all, but stop reading old associate review files.

Alvin Davis has more:
Alvin Davis, also formerly of Steel Hector Davis, agreed. ''He has strong views, which I think people should have, but he does not let those views interfere with what he is called upon to do,'' he said. ``We disagreed politically on just about everything. We had vigorous political debates, and it did not interfere with his work for me one bit.''
Davis continued:
"For example, Frank thought there was no way I should wear a burnt orange shirt with a black vest to be photographed by the DBR. I disagreed and said it was the perfect look for me. Anyway, we fought over this for hours but eventually Frank said he understood my position and would defer to my sartorial tastes. Personally, I think that shows excellent judgment."
Meanwhile, some "critics" (read: SORE LOSERS) are apparently concerned about some ancient concept dreamed up by old Englishmen called "the process." This is a corker of a story by Jordana Mishory:
The commission destroyed public confidence in the JNC, critics said.

“We are a constitutional body created precisely, precisely, to restrain the governor’s power of appointment,” said JNC member Arturo Alvarez during the Wednesday night meeting.

“I believe that it is extremely important that we avoid even the appearance of impropriety or that choices are somehow influenced by the governor’s wishes regardless of the motivation of the governor.”

Alvarez, who sources say was an outspoken opponent of Jimenez, was in the minority of JNC members who advocated not sending the governor additional names.

Tony Alfieri, the director of the Center for Ethics and Public Service at the University of Miami, said the process that led to Jimenez’s nomination will have lasting damage on the commission’s credibility.

“Although the JNCs are political bodies and the appointment and selection process is highly politicized, this particular moment demonstrates the high water mark of political interference by the governor’s office,” Alfieri said. “Given this blunt interference by the governor, it is very unlikely that the JNC would be able to rebuild the integrity of the selection process.”

The JNC sent five names to the governor on Dec. 8 out of a batch of 18 candidates to replace retiring Justice Harry Lee Anstead. But, two days later, Crist appointed the lone Hispanic finalist to the 4th District Court of Appeal and called for the JNC to reconvene to provide him with a more diverse list.

Critics contend that sidelining the only Hispanic finalist was the first move in an elaborate, last-ditch effort to get Jimenez nominated using the guise of diversity.

During Wednesday’s contentious meeting, the JNC voted 5-to-4 to consider sending additional names and convened a second closed meeting to deliberate on who to add to the nomination list.

JNC Chairman Robert Hackleman originally intended to have both meetings closed, but after opposition from the Daily Business Review, which contended that such a meeting would violate the state constitution, the panel held two meetings: one open discussion to decide how to respond to the governor and a second to choose any nominees if the commissioners decided to do so.

A minority of the JNC consisting of Miami-area attorneys Alvarez, Candace Duff and Katherine Ezell, and Jacksonville lawyer Howard Coker complained that adding more names to the nomination list could diminish the commission’s credibility and violate its rules.

“If we agree to re-deliberate, nominate someone else and they’re appointed by the governor, the whole world will know that person did not have the support of the majority of the JNC last week,” Alvarez said. “That is grossly unfair to the extraordinarily well-qualified nominees.”

Jimenez was the only person nominated by the deeply divided commission after the Wednesday night meeting.

Jimenez did not return calls for comment by deadline.

A number of commissioners voiced concerns that Crist’s request for new nominees was a move to appoint a specific person. Commissioners said they had been approached by people who felt the selection process had become very political.

“We have an obligation to protect the integrity of the process,” Alvarez said. “People are talking all over this town: ‘Why is that happening? What is taking place? You said only five, how can there be six?’ ” He said it was the JNC’s job to restrict the governor’s appointment power.
Political? Why would anyone suggest that? Well, there is this:
In 1999, the St. Petersburg Times reported Jimenez helped hatch a plan to recruit judicial applicants who were “ideologically compatible” with Bush.
And also this, from the glorious days of that entirely nonpolitical 2000 Florida recount:

Bush officially recused himself on Nov. 8. Before he did, sometime early that morning, probably around 3 a.m., either the governor or someone speaking to the governor” phoned Clay Roberts, head of the state’s election division, and asked, “How does the recount work?” Roberts recalled Thursday.

Roberts said that was his last contact with Gov. Jeb Bush. But it was not his last contact with Bush’s staff.

Frank Jimenez, an attorney on Jeb Bush’s staff, has phoned Roberts several times since the recount effort began. Jimenez has been on leave since Nov. 8.

Roberts said Jimenez called him Sunday, asking whether he had yet received a written request from the chairman of the Palm Beach County canvassing board for an opinion on whether a hand recount could be conducted if the mistakes on the ballots were caused by voter confusion, not machine malfunction.

Roberts said he told Jimenez that the Florida secretary of state’s legal staff had already begun working on such an opinion after hearing the Palm Beach chairman say on television that he wanted one. But Roberts said he told Jimenez he had not yet received a written request from the chairman for it. Jimenez then told him that “we” were going to request one instead.

It wasn’t until Roberts got a fax from the Republican Party of Florida seeking the opinion that he knew for sure who Jimenez was working for. When he said he was going to request an opinion, I assumed he was on leave because I knew he couldn’t do it for the governor’s office,” Roberts said.

He’s called me a couple more times with technical questions: ‘How do absentee ballots work?’ ” he said.

Jimenez did not return a phone call on Thursday.
Sheesh Frank, do you ever pick up your phone?

If you're intensive on all of this, here are few more links:

Frank's Facebook page is here (sorry Arturo, you have to be his friend!).

Jake Tapper has more on Frank's role in the 2000 recount here.

And according to the AP, Crist claims to have something up his sleeve besides satisfying the Bushies and getting ready for 2012:

Crist said he was grateful the commission expanded the pool and that critics "are going to be surprised."

"Those who are making those prejudgments are making prejudgments, and they're premature," Crist said.

"One more thing -- the key word here is 'pre,'" the Governor added.

Oy -- who knows? I guess we better stay tuned.

Thursday, December 18, 2008

Norm Powell Passionately Defends Property Rights!

I have a weakness for staunch defenders of constitutional rights. After eight years, I guess that makes me old-fashioned.

That's why Norm Powell is my hero today.

From the more-cases-I-wish-I-had file:

The club now sits at the city's gateway, in a high-profile spot along the 163rd Street Causeway, but city commissioners want the club to relocate to one of two strip malls on the west side of Collins Avenue. Those two malls will become the city's new official adult entertainment zone, if commissioners give the measure final approval Thursday.

Thee Dollhouse will still have a home in Sunny Isles Beach, the city says -- just not at its front door.

''The business is not being banned from our city,'' Commissioner Roslyn Brezin said at a recent commission meeting. ``What we are asking you to do is change the locale for what is best for our city.''

If approved, the club would have five years to relocate.

But the owners of what is the city's lone adult establishment are crying foul, arguing the move is meant to put them out of business. The strip malls' owner refuses to lease to Thee Dollhouse, the club's attorney says. And the city, in concert with a local developer, has hatched redevelopment plans that include Thee Dollhouse property, he said.

''This is not about adult entertainment,'' said Norman Powell, an attorney representing the club. ``It's a land grab.''


Powell points to a brochure for the St. Tropez condo and town house development across the street, which features artistic renderings for a town center and park on a site including Thee Dollhouse property. It includes a quote from Mayor Norman Edelcup, touting the project and its street-side promenade as major enhancements to Sunny Isles Beach.

The city has made no secret of eyeing the land for park space, said City Attorney Hans Ottinot. He and other city officials have met several times with the Weiner family, who own the land where Thee Dollhouse sits, to discuss buying the property at 255 Sunny Isles Blvd., Ottinot says.

But Ottinot said a land deal is separate from rezoning the adult business.

''This is not a grand scheme, a conspiring between the city and the developer of the St. Tropez,'' Ottinot said. ``When you don't have a substantive legal argument, you raise a lot of red herrings.''

Powell, along with a team of First Amendment attorneys, has raised other legal issues, including that the club should not be subject to any new zoning regulations because it predates the city's 1997 incorporation.

Sure, Floyd Abrams had the Pentagon Papers, but you know -- a right is a right.

Judge Cortiñas Channels His Inner Tears For Fears

Rules shmules, who the hail cares -- the Gov says to find somebody else:
In a tense and prickly telephone meeting Wednesday night, the Florida Supreme Court Judicial Nominating Commission fiercely debated whether to consider sending the name of a Miami-based appeals court judge to Gov. Charlie Crist for consideration as his third pick to the high court.

During the unorthodox, 90-minute conference call, the nine commission members made the unusual decision, by a 5-4 vote, to officially ''diverge'' from rules governing how they meet -- just in case they happened to be already breaking those rules by meeting over the phone.

But then it gets weirder:

Then they voted 5-4 to break their rules again and consider a new applicant to the Supreme Court: Angel A. Cortiñas, a judge on the Third District Court of Appeal in Miami-Dade. Cortiñas has not gone through the same interview and vetting process that 18 other applicants went through a week ago.

''You can interview me now,'' shouted Cortiñas, who was listening to the conference call.

The Judge continued:
"These are the things I could do without. Come on, I'm talking to you -- come on!"
Anyways, here's what happened next:
The commission voted down, 5-4, a motion to reopen the entire 30-day application process but then voted to consider Cortiñas, who had not previously applied for the opening, in the name of diversity. Cortiñas had applied in the summer for other vacancies on the court.
Ok, I'm not a betting man, but based solely on the foregoing I would say Judge Cortiñas has a very good shot of becoming our next Florida Supreme Court Justice.


A dear reader and good friend relates that only the hunky and reliably Hispanic Frank Jimenez has made it out of committee. For prior coverage of Frank see here and here.


The DBR confirms the news about Jimenez we broke earlier today.

Wednesday, December 17, 2008

Special Holiday 3d DCA Watch -- Bah Humbug Don't Bother Suing FPL Over Anything Edition

Hi kiddies, so how is your humpday so far? Let's take a gander at what's going on around town, shall we?

The largest bank in Florida, BankUnited, is down $327 million and may be soon out of business.

The $1 billion port tunnel project, designed to relieve downtown congestion and improve port access for trucks delivering cargo to and from the port, is apparently off again.

But don't worry, the Marlins stadium may be delayed but it is still on:

"The delay caused by the frivolous litigation has directly led to this decision," Samson said. "We were put into a position that the risk of opening in 2011 was no longer manageable.

"Opening in 2012 will not impact the project cost at all. The total project cost is still $515 million. The team is still covering every penny of overrun, if any. No matter what the overruns are."

HAHAHAHAHA! Oh Dave Samson, you and your crappy taste in movies really make me laugh! "Every penny"? Where's the money going to come from -- BankUnited?

Anyway, I'm sure you're right -- I can't imagine why anyone would possibly think there could be overruns in a massive publicly-financed South Florida construction project, especially in this economic environment. Full speed ahead on that financially secure venture!

Oh I almost forgot. Yes, our gingerbread-flavored coffee-swilling robed ones have been busy, overseeing the legal elves who toil all week so that every Wednesday wondrous legal opinions are carefully wrapped and tucked snugly down the chimney of a secure website, where they are given out to every good boy and girl lawyer in all of South Florida.

So let's get right to our special holiday edition of 3d DCA Watch:

Extraordinary Title v. FPL:

Like Mel Brooks said, "it's good to be the King."

Here, it's good to be FPL, which cannot be sued for allegedly taking your money under false pretenses, unless the PSC decides it's a good idea. This suit involves the federal corporate taxes that FPL collects from you that don't actually get paid to the government as federal corporate taxes. Instead, they are shipped to parent FPL Group, which manages to avoid paying these taxes because the parent has a lot of unprofitable subs so let's just forget we collected them anyways, ok?

Ok, says the 3d:
In the instant case, as in Albert Litter Studios, we must examine the Plaintiff’s second amended complaint to determine “the nature of the relief sought.” A review of the complaint indicates that, although it prays for “an award of actual damages,” in reality the Plaintiff is seeking a refund of a portion of the rate charged and collected by FPL. In fact, paragraph 32 of the second amended complaint alleges, in part, that “tax monies initially derived from the bill payments
made to [FPL] by said account customers should be refunded to said account customers.” (emphasis added). Therefore, as in Albert Litter Studios, we conclude that, pursuant to section 366.04(1), the Commission has exclusive jurisdiction over the Plaintiff’s claim against FPL, and therefore the trial court properly dismissed Count I of the second amended complaint with prejudice.
Now technically it is theoretically possible that the PSC will suddenly wake up and look into this issue, and maybe even force FPL into giving some of this (non)tax money back.

HAHAHAHA -- now I sound like Dave Samson.

Congrats to Alvin Davis for not only rocking that holiday vest/shirt combo but also for winning yet another one for FPL.

"Thank God Almighty I'm Free At Last!!"

That joyful cry emanating from 73 West Flagler could only be the sound of one fax machine clapping:

The Miami-Dade State Attorney's Office has decided not to file criminal charges against Circuit Judge David Miller, closing its investigation into a complaint by Circuit Judge Maria Dennis that Miller had shoved her.

The two judges were arguing over a fax machine Oct. 7 when Miller allegedly shoved Dennis. Assistant State Attorney Joe Centorino wrote in his close-out memo that similar allegations made by someone who was not a judge would not result in criminal charges. Dennis had asked that Miller be charged with battery.

''While it may have involved inappropriate behavior by a sitting Miami-Dade Circuit judge, the type of incident is more properly a matter for review by the state of Florida Judicial Qualifications Commission than the subject of a criminal proceeding,'' Centorino wrote this week.

So is the JQC investigating, or is this issue as dead as the rest of the equipment our judges have to deal with over at the courthouse?

Tuesday, December 16, 2008

The SS Madoff Sinks; Wake Lifts All Boats?

John Pacenti of the DBR turns in a nice piece on the local lawyers and accountants salivating over the Madoff disaster:

Mark Raymond, managing partner of Broad and Cassel’s Miami office, said he represents a number of clients who lost millions when Madoff’s house of cards collapsed.

“There are people whose boat has capsized, and they are adrift,” he said. “There are families who went to bed at night with multimillion-dollar networks. I’m talking about networks worth $30, $50, $70 million, and all they have left are their homes and their cars because they put all of their money with Madoff.”

Raymond and other attorneys contacted for this story said the receiver, New York attorney Lee Richards of Richards Kibbe & Orbe, will take over what’s left of the investment firm bearing Madoff’s name and target investors who made money before the fall.

“They may have gotten out of the Titanic alive, but the ship may come back and sink them down the road,” said Lewis Freeman, a forensic accountant and attorney with Lewis B. Freeman & Associates in Miami.
Fired up, Lew continued:
"Yeah, it's like the investors are a penniless stowaway who think they're the king of the world, and Madoff is like a beautiful young socialite who is dangerously attracted to the stowaway but has agreed to marry Billy Zane. And Norm Braman is like Molly Brown. Is any of this making any sense?"
You know, I was ok with the sinking boat imagery when it was in Mark's steady hands. But leave it to Lew to always finds a way to take it one step too far.


Intrepid reporter Julie Kay finds more local lawyers who want to sue some as-yet-unknown entities over Madoff. No sinking boat references, but there is this:

Michael Tein of Lewis Tein in Coconut Grove, Fla., is also looking to target third parties.

"We're going to be as aggressive as possible in pursuing third-party liability to the extent that we can," said Tein. Tein and his partner, Guy Lewis, are representing investors from South American and Manhattan who had invested $20 million with Madoff, including one client who invested $11.5 million. He declined to name the clients.

"I am very pessimistic about the ability to recover the investment itself," Tein said. "But the fraud is too big for there not to be a problem with banks, brokerage houses, clearinghouses and third party fiduciaries. It's not as if this gentleman kept all his money in-house."
And if he did, sue the maid!

Pretty soon it will be impossible to bump into anyone in this town who is not on one side or another of this thing.