MORE FUN WITH OUR JUDGES

David O Markus broke the good news. 11TH Circuit upholds Judge Cooke's dismissal of one count against Ben Keuhene.  The opinion is here. Lets hope this gives the prosecution the cover it needs to dismiss the rest of the charges 

Our Judges at work and play: What exactly has caused this dustup of emails and internecine squabbling and cackling?

Here is part of the Judge Cueto email that started it all:

On Thursday, October 2, 2009, the Chief Judge informed some members of the Criminal Division that he was retroactively putting into effect a merged seniority list of county and circuit judges for purposes of division assignments. (I know that many of you have not heard about this.) The present chief judge related that he was correcting what he felt was a wrong committed by Judge Farina by not implementing the findings of a committee of judges, when Judge Farina did not merge the seniority of the county and circuit judges for purposes of division assignments. This committee met 8 or 9 years ago.

Rumpole notes: Judge Cueto was not happy with Judge Brown's decision. And it all has to do with Judge Brown assigning a coveted (??) spot in the REGJB criminal division to newly minted circuit court Judge Tony Arzola and passing over Judge Cueto. While Cueto has been a CIRCUIT judge longer than Arzola, Arzola has been a Judge (at the county court level before being elevated) longer than Cueto, and there's the rub: does seniority transfer with a promotion?

Yes folks, rather than spending time writing scholarly articles on the application of the exclusionary rule, or new developments in death penalty litigation, or the pros and cons of drug court and treatment versus prison, our Judges are consumed by a much more personal matter: who gets the better courtroom, parking spot and chambers? Sad, isn't it?

Lets examine the legal reasoning of one of our esteemed jurists.

Cueto writes:

1. Seniority rights are rights protected by law and are held personally,not collectively.

I have serious doubts that anyone can have a vote to deprive anyone else of her or his rights.

Rumpole says: kudos to Judge Cueto for identifying the individual versus collective aspect of the contretemps. However, has Judge Cueto read any case law, like Kelo v. City of New London, 545 U.S. 469 (2005)? Is he familiar with the concept of eminent domain? In our society the collective can almost always vote to deprive the individual of "rights". Sorry Judge C- while we're with you on this one philosophically (and to bolster your arguments you might want to pick up a copy of Ayn Rand's "Philosophy, Who Needs It?") there are hundreds if not thousands of examples of rights being voted away.

Cueto continues:

2. I believe that Judge Farina’s decision not to implement this revised seniority scheme based on the committee’s finding creates an estoppel of the present chief judge’s action. In fact, Judge Farina specifically decided to apply the merged seniority plan for purposes of chamber and parking assignments, but not division assignments....

3 To retroactively implement rules or laws appears to be anathema to our legal and social tradition. It especially appears so, when the rule to be implemented is based on a stale finding by a committee of people who met years ago and the judges affected were never allowed the opportunity to vote on the issue.

More from "Cueto On Rights": What Judge C is saying in so many words is "precedent sucks when it hurts your argument." Join the club Judge Cueto. Trying arguing a motion to suppress these days with the precedent of the last twenty years.

Cueto:

I believe that the merger of seniority of county and circuit judges is fundamentally flawed. While we are both judges, these positions are distinct constitutional offices subject to a different electoral mechanism, with different jurisdictional matter, duties, responsibilities and pay scales.

This one is easy. What Cueto is saying in so many words is this: "I'm a circuit judge and you're not. I'm more important than you." On this one, Judge Cueto has an important and vocal ally in Judge Reemberto Diaz, who "could care less what a county court judge thinks about seniority", and has said so publicly for attribution.

Cueto closes with this erroneously mixed metaphoric mishmash:

This community has had its faith and trust in its institutions sorely tested, and I do not want to bring any negative publicity to our branch of government (umm..strike ONE!) , which is still held in regard by the community (strike TWO!). It has also been suggested that a letter to Chief Justice Peggy Quince may be appropriate. However, I want to see if we can air our own laundry before we involve anyone outside of our judicial family. (Strike three. Put down the key board. You're out.)

Memo to Judge C: What you meant to write is that you want to see whether you judges can wash your own dirty laundry- instead what has occurred is what you didn't want to happen: You have aired your collectively soiled sheets, and it has been ugly.

Also, you might want to open your eyes: for better or worse that part of the community that works closest with the judiciary (if our comments are to be believed) holds you all collectively with as much esteem as George W Bush at a used car salesman convention.

Rumpole reminisces:

Harold Solomon. Tom Carney. Herb Klein. Tom Scott. Phil Knight. And perhaps the greatest of them all: Ed Cowart. It's hard to imagine those distinguished jurists engaging in this kind of petty behavior. The sad part is that most of these Judges, who couldn't hold a candle to those Judges, don't even know who those Judges were.

We received this email from a robed reader who asked us to print it but keep his/her identity a secret. *

"Rumpole, in the final analysis, this sums it all up: It's a sad day for the 11th Judicial Circuit when the Judges in Broward are laughing at us. And they are. See YOU in court. Your faithful robed reader."

*Put down your public records request Nesmith. They sent it through a personal email account.