December 26, 2008

Hobbs, 33 FLW 1005, Fla, Confession-sexual abuse cases-92.565, which provides that in certain criminal actions a def confession or admission is admissible during trial without the state having to independently prove the corpus deliciti of the crime which sets forth factors which may be relevant in determining the state's inability to show the existence of each element of the crime, does not prohibit the court from considering the recantation of the victim as a factor relevant to whether the state is unable to show the elements of the crime, statute does not limit the trial court to considering only victim's physical and mental capacity at the time the crime was committed

D.S.D., 33 FLW 2872, 5th DCA, L & P, Juvenile presence early in morning in residential area without more not enough for L & P, ofc justified in questioning juvenile when he discovered them wearing dark clothes, in the area of a 3:30 a.m. prowler report, during encounter no additional facts came to light to support arrest for L & P, fact that ofc discovered a pair of gloves in juvenile's pocket does not alter result-cites cases

Smith. 33 FLW 2879, 4th DCA, Consent-voluntariness-where, after a traffic stop, def who was passenger in a car was detained on the side of the road by 2 ofcs with a canine unit while the driver of the vehicle was being searched and def was informed by officer that he was going to be searched and that he should turn over anything illegal before the search took place, def's act of handing officer pill bottle containing drugs was the product of an imminent pat down and not the result of an imminent act of free will



The Law Offices of Roger P. Foley, P.A.

5th Upholds Special Use - But It's Very Confusing

In Keene v. Zoning Bd. of Adjustment the 5th District upheld a determination by the circuit court that a semi-annual riding event with dozens of riders was permitted in the Rural Residential area.

Interesting issue one: no one mentions the deference to agency construction rule, or if it applies - more interesting because of issue number two.

Interesting issue two: this is framed as an appeal from a declaratory action in front of the circuit court, which could only be a 163.3215 challenge, because any other challenge would be a cert petition. However, the majority opinion does not frame the question as whether the action was consistent with the comprehensive plan, but whether the use was consistent with uses permitted as special uses under the Land Development Code. Something's wrong, and I suspect that the dissent has the right analysis - which focuses on the comprehensive plan uses.

So we have a case where it appears from the appellate decision that the causes of action, the standards of review, and the standard being reviewed against (the LDC vs the plan) are a total mishmash. Why? Broken record time: the absence of a statute that would provide a consistent form and method of judicial review of local government decisions, one that also states that the review is appellate, what the standard of appellate review is, what the appellate remedies are, and what the standards for decisions are.

5th DCA - open meeting and discussion can cure open meeting violation

In Finch et al v. Seminole School Bd, the 5th DCA held that a long open meeting, at which issues were fully vetted, cured an earlier open meeting violation that occurred when school board members took a bus trip to view sites.

In effect, the Court found that the violation was a technical one, and that the violation did not create communications that the later public meeting did not cure. While the court did not discuss it, it seemed clear that any other ruling would create an unacceptable situation where an open meeting violation regarding a particular subject couldn't be cured and would leave the board powerless to act on that subject.

1st DCA - Gov't Flooding of Property is a Taking

In Drake v. Walton County, the 1st DCA concluded that a county decision to "redivert" water across the Plaintiff's land was a taking.

If the case were merely a "flooding" case where the government drainage project or action causes permanent (even if periodic) flooding of land, it would not bear much mention - or the dissent. But here, the facts are very convoluted, and involve lands that had been subject to flooding, then were protected by a drainage project - which did not work - and then were subjected to flooding again when the drainage project was removed or altered. This creates understandable confusion in determining how the common law right to put water on downward properties (at least to historic amounts) can conflict with the government's liability when it alters drainage patterns.

Fla Supremes: Uniform Statutes Aren't

In Phantom of Brevard v. Brevard County, the Fla. Supreme Court put home rule over legislative authority by upholding a line of cases requiring the Legislature to use ridiculously specific magic words in order to preempt local authority.

A statute governing the regulation of fireworks that has as its purpose and intent section the following:

This chapter shall be applied uniformly throughout the state. Enforcement of
this chapter shall remain with local law enforcement departments and officials
charged with the enforcement of the laws of the state.

The Supreme Court held that this does not prevent local governments from adopting additional provisions that add regulatory requirements or restrictions to the statutory framework with this language:

However, focusing on potential differences caused by varying local requirements
confuses the issue. Because chapter 791 does not include an insurance coverage
standard or requirement, chapter 791 is not being applied disparately. In other
words, a state statute is not being applied in a non-uniform manner when a
locality enacts a regulation on a particular matter that is not addressed in the
statute. The statute is being applied uniformly. It is the local ordinance that
is creating any variance between counties.

In other words, the statutory requirement for uniform application is totally superfluous and ineffectual. It is a matter of fundamental " law that a local government could not modify the statute itself. The idea that a statute providing for uniform laws, or uniform application, does not evidence legislative intent to preempt the subject matter from local standards is a slap in the face to the legislature and makes a fetish out of home rule. While local government have home rule under the constitution, the constitution also clearly provides for the supremacy of the state legislature and the courts seem to have forgotten it - or at least have developed an unreasoning hostility to it.

LESSON: Legislative draftspeople simply need to start adding the phrase: "all regulation or setting of regulatory standards is hereby preempted and local government shall have no authority to adopt different standards" to pretty much every piece of environmental, land use, and business regulation that goes through their doors.

A Heavily Divided Court Lets the Alternative Referendum Amendment on the Ballot

In Advisory Opinion RE: Florida Growth Management Initiative Giving Citizens the Right to Decide Local Growth Management Plan Changes, a deeply (and somewhat bitterly) divided Court determined that the Ballot Title and Summary for the "alternative referendum amendment" were not misleading, and that the matter could be put before the voters on certification of sufficient signatures.

The issue that the dissent fixed on is the one that might also be the political chain around this measure's neck: the very restrictive requirements for signing petitions to require a referendum for a particular plan amendment. The dissenting justices found that the summary's failure to disclose those restrictions made it misleading. I'm quite sure that quotes from the dissent will be placed front and center in materials attacking the amendment.

I personally wish those provisions were not there - or less onerous. I think that the idea of having a referendum by petition (rather requiring them automatically) is a decent compromise - but the pretty extreme limitations on this amendment may limit its use as an anti-Hometown Demagogy weapon.

Save Our Beaches - the Review

Intro and Disclaimer: after my earlier comments about this decision, I took a lot of time to write this one. I won't back down from my earlier statements that the majority got it wrong - really wrong -- and that Justice Lewis' dissent has it right.

In Walton County et al v. Stop the Beach Renourishment et al, the Florida Supreme Court reversed the First District’s determination that a beach renourishment permit issued by the DEP was invalid because the permit relied on an erosion control line (ECL) that in turn violated a statutory provision that prohibits the establishment of an ECL if it would constitute a taking, unless there was provision for compensation. The establishment of an ECL statutorily fixes the property limits, establishes fee ownership in the state for all lands seaward of the ECL, and replaces certain common law riparian rights with statutory rights.

I first want to note that the case presented significant public policy problems for the Court. The existing beach renourishment statute prohibits beach renourishment without an ECL, even with an easement from the upland owners. This is predicated on a legislative determination that public funds for beach renourishment should not be used to put sand on “private” property (which can be interpreted as having a constitutional basis). Unless this statute were amended, a decision upholding the 1st DCA would have had significant negative consequence for future beach renourishment projects, as well as creating the possibility that existing ECLs would have been overturned – or that the state would have had to compensate landowners in order to keep the ECLs in place. Given these tensions, it is not surprising that the Court would find a way to overturn the 1st DCA.

[Side note: the Court’s resolution of the problem sidestepped the interesting issue of what kind of compensation would have been required for a taking. As the Court found, the statute does provide a number of substantive right to replace the rights destroyed. Where value is “put back” by government action, this is taken into account in calculating damages. It may well have been that any damages due would have been non-existent or nominal, and might even be subject to the kind of administrative “default valuation” that the Court permitted in the citrus canker cases.]

To be short and sweet, I think that Justice Lewis got it right in his dissent, and that the majority not only got it wrong, but got it wrong in a way that was both disingenuous and that creates future litigation problems. I’ll identify just a few of those.

1. The facial taking problem. The Court reengineered this case into being a facial constitutional challenge to the statute. It clearly isn’t for all the reasons set forth in the dissent. This creates several new problems:

a. The Court left the state open to massive federal takings claims – the state has refused to provide compensation under the state constitution, making federal claims ripe and justiciable; if the federal courts disagree that the statute provides an adequate “swap” for the rights taken, it could now find that compensation is due under the U.S. Constitution.

b. The Court pulled a nasty trick on the litigants. It labeled the challenge facial (even though it clearly was , then posited circumstances not pled (regarding how avulsive effects might affect the application of the statute) to hold that the statute could take the right to accretion under all circumstances, so couldn’t be a facial taking. What does this means for pleading as applied challenges? Can the Court always turn around and apply other facts to deny your claim?

The opinion reflects a frightening lack of understanding of how administrative law has developed since Key Haven with respect to litigating administrative challenges where there is a claim that the statute (or action) violates the constitution or another statute - issues that an administrative law judge does not have jurisdiction to decide, but which the Court of Appeal does have jurisdiction over. The Court also did not appear to understand the statutory provisions at issue. Critically, the Court does not recognize (as the 1st District did) that the issue of whether the statute (which provided that an ECL was void if it would create a taking and there was no provision for compensation - which was the case here) was violated as opposed to whether there was a constitutional violation. Under the US Supreme Court decision in First English, a statute does not create an unconstitutional taking unless it both takes property and fails to provide compensation. So under this statute, there is clearly an as applied issue as to whether the ECL in this case violated the statute by taking property (riparian rights) without providing compensation.

The potential damage that the Court's end-orientated analysis (or lack thereof) has on broad areas of litigation where administrative challenges have statutory or constitutional dimensions cannot be overstated. I expect that this is the area where we will see a bunch of articles showing up in the near future.

2. The claims preserved. In two footnotes, the Court notes circumstances that still could create a takings claim. First, if the ECL was established too far landward (landward of the actual MHWL over 19 year period), it could create a taking of the “gap” lands. The Court thus raised a statutory/permitting issue to constitutional status. Second, the Court noted that if the permit allowed too much beach to be added, it could create a taking by imposing burdens on the “right to access” the water. Between the two of these claims, the Court created an entirely new set of as applied attacks that can be waged against the establishment of an ECL and gave them constitutional status.


3. The poor analysis problem. Again, with all due deference to the policy problem facing the Court, the analysis of some of the issues was unrealistic and unconvincing, and many of which are just scary.

a. The new constitutional duty to protect the beach. The Court read the constitutional provisions regarding public trust for navigable waters and waters to the high water mark together with the provision regarding protection of the natural beauty of the state to create an entirely new constitutional provision (and this from a “conservative” jurist!): “Concisely put, the State has a constitutional duty to protect Florida’s beaches, part of which it holds ‘in trust for all the people.’” HOLY COW! What exactly does this mean? Does this constitutional duty extend only to how it regulates the rights of beach owners, or does it mean that the Legislature has a constitutional duty to renourish beaches? Does it have a duty to condemn private property along beaches to create/protect them?

b. The avulsion discussion. I will let others who actually specialize in riparian/littoral rights take this apart. Let’s just say that this seemed to be thrown together to justify why a facial taking wasn’t demonstrated, and in doing so may have created another constitutional problem. The Court argued that the right of landowners to accretion was limited by the avulsion doctrine, such that the state would have the right to lands suddenly added by a hurricane – or the right to put those sands back in the water to return the high water line to its pre-event state. The Court then cited to a true riparian case (freshwater) for the proposition that landowners have a right to return their property to a pre-storm event condition if there is sudden avulsion/erosion from an event. This is going to make for VERY interesting arguments in the future, since DEP and local governments are more and more restrictive about issuing emergency permits to allow landowners to protect their lands after storms. This could create new constitutional challenges to anti-hardening rules/ordinances and other regulatory limits on a landowners’ right to recover property lost to storms.

c. The “swapped rights”. The Court found several “swaps” of rights to be reasonable: the riparian right to accretion is “swapped” for the state’s obligation to maintain the renourished areas; that the riparian “rights of access” is swapped for a statutory “right of access” (undefined); and “rights of view” enjoyed by beachfront property owners are protected.

• i. While it might be arguable that the swap of the right to accretion for a statutory obligation to protect the beach (right) is objectionably reasonable, it is absolutely unclear whether it is appropriate constitutionally – and this is going to be a federal case.
  
• ii. As for the right of access being equal – it’s not, because associated with the ECL and a renourishment then landowner loses (i) the right to exclude the public from areas between the beach and the property, and (ii) the right to use those areas. Here’s the rub: before ECL and renourishment, a beachfront owner can park her Hobie Cat twenty feet from the water and put it in any time, and can keep people away from it; afterward, the landowner can’t do these things (hence the footnote that indicates adding too much beach might be a taking).
• iii. Regarding the right to a view, the Court found that the statutory prohibition on placing structures on the reclaimed lands protected the riparian right to views of the water; but riparian view rights extent to activities on or in the water, and by cutting off the riparian rights, these rights are extinguished. This could have consequences to landowners close to proposed piers, jetties, or similar structures or uses.
  

d. The demise of the “right of contact with the water” and with it, the right to wharfage and access to navigable water. The Court totally mixed together the common law “public trust” doctrine of sovereign ownership to the MHWL with Florida’s constitutional definition that this includes the wet sandy beach to claim that the riparian “right of contact” with the water doesn’t exist. Essentially, the Court argues that the existence of the foreshore (the wet sand between the daily low tide and the daily high tide), along with the fact that the MHWL moves, means that there is no right to touch the water (or that this right is subordinate to or inherent in the right of access). This discussion totally misses the purpose of the right to contact, which along with the right of access supports the historic riparian and littoral right to wharf out to navigable water. While this issue was not discussed in the 1st District opinion (and probably not have been tried in the context of the as applied administrative challenge to the permit), the right to construct a pier or wharf in order to connect the upland to navigable waters was associated with and dependant on the right of access to the water and whether the property touched the water – purely upland property didn’t and doesn’t have this right. While it is unlikely that any individual homeowner would utilize that right, commercial or other properties might – at least until it’s extinguished by the establishment of an ECL

I can only suggest that we haven’t seen the last of this issue, and that the next round of litigation is likely to be even more challenging.

Fla Supremes Turn a Blind Eye to Costs of Hometown Democracy Amendment

In Advisory Opinion re: Referenda Required for Adoption and Amendment of Local Comprehensive Land Use Plans, the Florida Supreme Court rejected a second proposed financial impact statement for the proposed Hometown Demagoguey amendment.

The gist of the Court's complaint was that the impact statement assumed that there would have to be a significant number of special elections:

As drafted, the revised financial impact statement would mislead voters into
believing that implementation of the amendment will require the expenditure of
millions of dollars. Such an inference is patently contrary to the purpose of
the amendment, which is to limit the number of amendments to local comprehensive
land use plans.

Of course, the courts statement of the "purpose" of Hometown Demagoguey is simply not true: the purpose is not to limit the number of amendments, but to subject them to referenda. Limiting the number of amendments is not a stated purpose - at least it's nowhere in the ballot title and summary.

A majority of the Court (at least this time - see later opinion on the "counter-amendment") seem dedicated to seeing this as a "good government" reform- there seems to be no recognition of the highly problematic and anti-democratic effects it will have. There's no recognition of the number of state-mandated amendments that will have to be processed (many on an annual basis) and voted on, no recognition that there is a right to seek plan amendments, no recognition that each amendment might require its own place on a ballot, no recognition that there aren't twice a year elections in most jurisdictions.

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!

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.

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.

UPDATE:

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 Christmas....no, nothing comes to mind.

Carry on, Governor!

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.

(h/t flapolitics.com)

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.

UPDATE:

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.

17 SIGNATURES

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!

EVEN LATER UPDATE:

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."

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.

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.''

TOWN CENTER

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.

LATE UPDATE:

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.

EVEN LATER UPDATE:

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

December 12, 2008

Larimore v. State, 33 FLW 948, Fla, Civil Commitment-individual must be in lawful custody when the state takes steps to initiate proceedings pursuant to Jimmy Ryce Act in order for the circuit court to have jurisdiction to hear this matter.

Nowak, 33 FLW 2788, 5th DCA, even though substantial evidence supported the trial court finding to suppress statements pursuant to not waiving her Miranda rights when the def disclosed location of the car pursuant to her illegal statement court properly held law enforcement would have found the car legally, even if the def had not led them to it, trial court erred in finding that the police could not search the car because they did not have pc to believe it contained any additional evidence of the crime that was ultimately charged in this case, police had practical common sense basis to conclude that def's car likely contained additional offense of her alleged criminal conduct based on items lawfully seized from the def and victim's statement to the police, pc to search car.



The Law Offices of Roger P. Foley, P.A.

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?

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.

UPDATE:

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.