CONSTITUTIONAL CALENDAR LETTERS EDITION

We bring to you, unedited, and mostly without smarmy remarks, another edition of Judge Milton Hirsch's beloved Constitutional Calendar (c) Uncle Miltie's Legal Musings 2019. 

One word of warning for those lawyers and Judges born in the era of four dollar coffees from Starbucks. The following contains references to "letters" Letters were very similar to emails and texts except they were written by hand with a pen or pencil or with a typewriter on paper which was not electronic and could be held, folded and mutilated. The use of paper to contain the written word was the way humanity communicated without speaking for centuries before the ruinous email and text message were invented.  For more on these strange concepts for most of you, we suggest Google. We actually suggest resort to an encyclopedia, but that would just cause most of you to Google that. 

The common law recognized the right of every man to be secure from unreasonable search and seizure.  But it provided no effective remedy for the violation of that right.  In 1914, in United States v. Weeks, the Supreme Court explained that the Fourth Amendment was intended to provide the missing remedy, by barring from use by the government the fruits of an unlawful search or seizure. 

            In 1949, in Wolf v. Colorado, the Court reversed its field, holding that the remedy was somehow severable from the amendment, and that state courts were therefore not obliged to enforce the exclusionary rule.  In 1961, however, in Mapp v. Ohio, the Court returned to its earlier reasoning, holding that unlawfully seized evidence was inadmissible in any American court.

            On Jan. 25, 1962, Justice William O. Douglas wrote to his colleague Justice Thomas Clark, the author of the Court’s majority opinion in Mapp:

Dear Tom:

This last weekend at a social occasion I saw Attorney General Stanley Mosk of California and his wife. He said out of the blue “Thank the good Lord for Mapp v. Ohio.” I asked him what he meant and he went on to give an interesting account, most of which you probably know, which I thought I would pass on to you. ...

The result of Mapp v. Ohio, according to Mosk, is to take the pressure off the local judge to create exceptions and to follow the exclusionary rule and all its ramifications.

William O. Douglas

            Apparently Douglas’s letter made the rounds of the justices, because five days later, Justice Frankfurter – a dissenter in Mapp – felt obliged to respond:

Dear Brethren:

At the time that Bill Douglas circulated his report of Attorney General Stanley Mosk’s rejoicing over Mapp v. Ohio nothing was further from my thoughts than intramurally to argue that decision. Nothing is further from my thoughts now. Nor would I have made comment if Attorney General Mosk had founded his approval of the Mapp decision on his view of the history of the Fourteenth Amendment or on what he conceived to be the juristic requirements of the Due Process Clause of that Amendment. Instead, he welcomes the opinion because it will check a tendency of California lower court judges and, perchance, even the danger of the California

Supreme Court, to make inroads upon the California doctrine regarding search and seizure, as expounded in ... People v. Cahan, 44 Cal. 2d 434. Coming from one of the most self-reliant of States, this attitude to look to federal authority for dealing with a local problem – for such was concern over the Cahan doctrine until Mapp came along – runs counter to one of my oldest convictions which time has only reinforced. And so I am moved to this word of comment.

So-called “states rights” claims are, I know, the happy hunting ground of demagogues as well as of sincere reactionary minds. I have no use for such claims; I did not imbibe them in Vienna or New York or Cambridge or Washington. But I do deeply care about the maintenance of our federalism, and I care deeply about our federalism fundamentally because it is, in my view, indispensable for the protection of civil liberties to avoid concentration of governmental powers in one central government. Those who think that this is an idle fear read the lessons of history and, not least, of recent history, differently from the way I do. It is not without significance that the Royal Commission on Police will, I believe, before long report against a central police force, even for the tight little island of England, or rather even for one-half of that Island. It is of course beside the point of my present concern that Mapp may be deemed in support of a civil right. More than half a century ago Elihu Root, in a famous speech, told the States that the only way for them to preserve local rights they care about is to be alert to their protection and not allow the Federal Government to move into a vacuum of indifference to, and disregard of, the duties and powers of States. (See Root, Addresses on Government and Citizenship, p. 363, How to Preserve the Local Self-Government of the States.)

Let me repeat. I am not addressing myself to Attorney General Mosk’s approval of Mapp v. Ohio. I am not remotely adverting to the merits of that case. I do feel saddened, much as I respect him, by the ground of his satisfaction over the decision.

Sincerely yours,

F.F.

            Douglas, having received Frankfurter’s letter, wasn’t about to let the matter drop.  The very same day, he circulated, as a “memorandum to the conference,” the following:

In re: Mapp v. Ohio

I did not ask Attorney General Mosk. But if I had put the question, I am certain he would have also said, “Thank God, California is in the Union.”

William O. Douglas

            But Frankfurter wasn’t going to let the matter drop either.  Referencing the date of the Mapp opinion, he wrote back (copying all the justices, of course):

Dear Bill:

When next you see Attorney General Mosk please ask him if California was not “in the Union” before June 19, 1961.

Sincerely yours,

F.F.

            To which, of course, Douglas was moved to reply:

Dear Felix:

When I next see Stanley Mosk, I will put your question to him. My guess is he will say that California was not wholly “in the Union” before Mapp v. Ohio, as he thinks, I believe, that the Bill of Rights should be protective of all our constituent members.

William O. Douglas

THE LEGACY OF JUDGE BEN WILLARD

Back when there were no lattes, or macchiatos; back when there were no cell phones to record the consumption of lattes and macchiatos while standing on a bridge with the sun setting on the beach behind the person holding up their latte; back when there  was no Instagram to publicize consumption of the latte on the bridge with the sun setting in the background; there were just...people...and they just did...things. They went about their business and did their best and paid a nickel for a cup-o-joe and didn't feel the compulsion to record and publicize every damn thing they did so the rest of the world would know that they are in South Beach, eating a hamburger, and feeling happy. 

Thus we spent a few moments recently pondering Judge Ben Willard: 

"A man of nature; A man of God; A man of the law; And  A man of the common man."

Judge Willard sat on the bench for twenty-eight years when there was a criminal court of record, which doesn't even exist today. 

We would be hard pressed to name one lawyer who practiced before Judge Willard. But what we do know is that those were not the good old days. Judge Willard  presided over criminal court in Dade County at a time when the police force was segregated and Black officers had authority only to arrest people of color; and Judges more than likely referred to defendants of color as "boy", and there was no such thing as a female Judge or lawyer. 

So we are thinking that right now there is a baby girl somewhere, perhaps of Polynesian-Lithuanian descent, adopted by Greek-Orthodox parents who are refugees in El Salvador- because we are in to multiculturalism. And perhaps someday there will be a webpage celebrating her time as Judge of the Electronic County Court, where all business was conducted over the internet, including trials. Perhaps her parents immigrated  through the President Jared Kushner Wall, legally, via the 2024 immigration deal negotiated with Speaker Alexandria Ocasio-Cortez. 

With courts fully electronic, the REGJB is now a repository of servers, and the parking lot Amazon-drone landing zones,  so there is no need for a statute. But maybe her web page would say: 

Judge Alicia Lenani-Tavas. 2045-2090.

"A woman of the cloud; A woman of Instagram (2.9 billion followers); A woman of the law  and a woman of the common user of Facebook and Twitter."

And just for fun her retirement ceremony would be presided over by Chief Justice Robert Luck, because he is so young he will be on the Supreme Court until the next millennium with the current advances in health care.  

FORMER JUDGE HOWARD MOUSE GROSS PASSED AWAY

Howard "Mouse" Gross, a former REGJB circuit court judge and one the legends of the Justice Building passed away in December, 2018. Judge Gross was a judge during the cocaine wars of the 1980's. He sat on the bench during a time when the judiciary and the practice of criminal law, as well as Miami in general changed in fundamental ways. The influx of drug money changed Miami from a sleepy southern town, to a chic metropolis.

 Where the criminals were, the money was, and that's where the lawyers went. The change in Miami spawned the careers of some of the best criminal defense attorneys in the nation including Roy Black. Jack Denaro, Joel Hirschorn, James Jay Hogan, Steve Bronis,  and Richard Sharpstein to name a few. Local characters like Sy Gaer , Mel Kessler, and Stuart Mishkin flourished in the practice of criminal defense. Judge Gross was on the bench for all of this, along with his compatriots like Judge Ellen Morphonios, Judge Arthur Snyder, Judge "Fast" Gerry Klein, and our own and still practicing Ted Mastos. 

His obituary is here. 

EVIL INCARNATE

There are times in life when the mysteries of the universe are undecipherable to mere mortals. If there is a plan, we are not deigned sufficient to comprehend it. 

Evil seems to prevail and good taste is relegated to the scrap heap of society. 

Paris falls to the Germans.
Corregidor and the Philippines fall to the Japanese. 
Trump is elected president. 
Warren Beatty and Heaven Can Wait.
The Sophisticated Means Enhancement. 
Justice Bret Kavanaugh.
Instagram.
Light Beer. 
Velveeta Cheese. 
Paris Hilton. 
The Broward Judiciary. 
Gout.
Poison Ivy.
Rap music. 
Civil Motions for Summary Judgment. 
The Federal Rules of Civil Procedure. 
Cruise Ships. 
The Olive Garden.
The Designated Hitter. 
Diet Soda. 
Ebola.
Imitation Crab meat.
The improper use of the salad fork.
The harmless error rule. 
The Sunday Times not sufficiently ironed. 

Feel free to add your own. Disaster has once again befallen our country. A country that Ronald Reagan once called a shinning city on a hill. But no more. 

Tom Brady, Bill Belichick and the Patriot Cheaters return to the Super Bowl. Again.
This too shall pass. 

CHAMPIONSHIP WEEKEND

BREAKING: TRUMP RESPONDS TO THE BLOG*. SEE BELOW. 
Three games, four teams, one president, one speaker, one team  on the path to immortality. 

Cheaters at K.C. We may have another "frozen tundra" classic (check out the Vince Lombardi ice bowl clip below).  The O/U is 56 and because of the weather, take the Under. The Cheaters are getting 3 on the road. K.C has one of the best home crowds- loud and involved. Brady is the old. Mahomes is the new. More importantly, the Cheaters improved secondary still cannot keep up with K.C.'s speed.  Andy Reid takes a team back to the Super Bowl for a second time, and this time he wins.  Chiefs -3, under 56. 

Rams at Saints. This is a tough one. Rams are getting 3.5. Saints may be the most complete team in the NFL, and Drew Brees wants another shot at the big one. While we will be rooting for the Rams, we cannot advise betting against the Saints at home. Give the 3.5 and take the under. 57 is too much in a championship game. 

Trump v. Pelosi. 
Pelosi has the home field advantage, having played in DC for a few decades, while POTUS is the new comer. POTUS has some built in advantages (controls military transport planes) but the speaker controls the money and money makes the world go-round. 
Trump is the rookie, while Pelosi is the wily veteran who knows the rule book inside out. Take the Speaker not to cave, while POTUS is looking for a way out of the mess he created. Never bet on someone who doesn't have an exit strategy before he starts the crisis. In other words, don't bet on a moron who has no idea what he is doing. 

The Over-Under is February 10. Take the over and buckle up. This is going to be a while. 
TRUMP RESPONDS TO THE BLOG: Shortly after posting our over/under, POTUS held a news conference with an offer to break the logjam. The proposal included money for the humanitarian crisis at the border (extra shipments of King Crab legs for the restaurants which are running short, as well as more California Chardonnays for thirsty immigrants who secure a table at a Mortons on the border)  an offer to extend DACA (an acronym of which we know nothing about), and a provision to extend capital gains tax breaks for immigrants who post stock trading gains over $750,000.00 in any one year, excluding (of course) 503 exchange gains reportable under section 63 (duh). In other words, in Trump's view, everything necessary to help immigrants at our border. 

In the real world POTUS still wants to deport everyone with an accent (except Mrs. Trump) or whose skin is not lily white (like maybe Rumpole's? WOW there's a thought you have to admit you-loyal reader-never ever had, did ya? Psych!). He still sees a world where people with brown skin stand with their noses pressed to the gaps in the steel slats watching enviously while Americans are eating McDonalds and sipping diet cokes while zipping around on their scooters because they are too obese to walk. 

And check out Mr. Markus's blog where the rumors of an FDC sick-out-slow-down are being explored. First a "possible" TB scare shit down FDC. Before that attorneys were told the elevators weren't working and it would take four hours. When the clients showed up, they said the elevators were working fine. 
What's next? Ebola? Blue-flu? Poltergeists? Communist infiltration of the email system? North Korean hackers shutting down FDC? It happened to Sony.  




*Possibly, but probably not. 

NAME THAT MALL

BREAKING THURSDAY: METRO WEST IS ON FIRE. 
Based on our 30+ years of experience, and this is just a guess, but you probably cannot get access to see your client until the fire is put out. 

First, this breaking news: FDC is CLOSED Wednesday, Thursday, and Friday. No attorney visits. Nada. The reason? Not the Government shutdown but because TB- a highly communicable disease- has been discovered. 

Second: Would you rather lose your precious parking privilege at lot 26, which hasn't issued a new permit since Ted Mastos was sitting on the bench with his best pal The Mouse 🐭... OR 

Would you rather lose your REGJB "skip the line" Disney Fast Pass and wait in line for a security check with Hoi Poloi? 

Take our new poll. 

NAME THAT MALL
Let's a pick a good nick-name for the mall rising across from the aforementioned Lot 26. Here are a few starters:
"Sy Gaer Square";  "Janet Reno River Walk";  

GOVERNOR DESANTIS APPOINTS SECOND SUPREME COURT JUSTICE .....

THE CAPTAIN REPORTS:

BREAKING NEWS .......
(More Breaking News on the 3rd DCA below).

JUDGE ROBERT LUCK APPOINTED TO FLORIDA SUPREME COURT:

A few minutes ago, before a large crowd of friends and family gathered at the Scheck Hillel Community School in Aventura, Governor Ron DeSantis announced the second of three Supreme Court appointments. Last week he stood at The Freedom Tower and appointed 3^rd DCA Judge Barabar Lagoa to the court to replace Justice Fred Lewis. That seat was reserved for someone who was a resident of the state’s Third Appellate District. Today, Gov. DeSantis’ selection is for one of the two remaining "at large" seats.

Judge Robert Luck graduated from North Miami Beach High School and he still lives in the area with his wife and two children. He graduated from UF undergrad (BA, 2000) and UF Law in 2004; (Editor in Chief of the Law Review). He then clerked for Chief Judge Ed Carnes of the 11^th U.S. Circuit Court of Appeals before joining Greenberg Traurig where he worked in their appellate section. In 2008 he became an AUSA, and he was assigned to the Appeals, Major Crimes, and Economic Crimes Sections, spending five years there. In 2013, Gov. Scott appointed him to the Circuit Court. He won a full six year term in 2016 when he defeated Yolly Roberson (54% - 46%). He spent a total of four years on the Circuit Court bench presiding in the Criminal, Civil, and Appellate Divisions. In March of 2017, Scott elevated him to the 3^rd DCA. Justice Luck completes his meteoric rise in the Florida state court system with his appointment to the state’s highest court.

For anyone that has ever applied to the judiciary in the State of Florida, you know that the application asks you to describe "significant cases" you have handled in your career (as a lawyer or on the bench). In Luck's application,  he described what happened to him during a 2015 hearing concerning the prosecution of a defendant charged with Battery of a person over the age of 65:

" ... the defendant rushed up from his seat and jumped at me. He and I tumbled down the steps of the bench, and as I was laying on the floor, (he) was on top of me, punching my head. "My bailiff eventually ripped (him) off of me. I got up, dusted off my robe, fixed my chair, which had been knocked down, took my place on the bench, and dictated what had happened into the record. I then entered an order recusing myself from the case.

Despite the bleeding and bruising, I declined medical attention and refused to file a worker’s compensation claim. Hearing about the incident in Tallahassee, then-Chief Justice Jorge Labarga wrote me this note: ‘I want to commend you for the professionalism you displayed in handling what must have been a very disturbing situation. Your coolness and understanding was exemplary."

In Luck’s remarks today, he closed with a Jewish prayer and stated that he hoped that pray would guide him for the next 35 years on the bench; Luck is only 39 years old and with the constitutional amendment passing in 2018 allowing judges to serve until age 75, that would be possible.

Gov. DeSantis has one remaining appointment on the high court, and that name will come from one of the other nine JNC nominees that include:

Couriel, John Daniel,
Gerber, Jonathan D.,
Grosshans, Jamie Rutland,
Kuntz, Jeffrey T.,
Kyle, Bruce,
Muñiz, Carlos Genaro
Osterhaus, Timothy D.
Salario, Samuel J., Jr.
Singhal, Anuraag

THIRD DCA .......

Updating my post in the Comments section from last week concerning the subject, on Thursday, January 10, 2019, 3rd DCA Judge Kevin Emas was unanimously elected as Chief Judge of the 3rd, replacing Justice Barbara Lagoa, who had taken over as the Chief on January 1, 2019. Lagoa was named to the Florida Supreme Court by Gov. DeSantis on January 8th.  With the naming of Judge Luck today, the 3rd DCA now has two new open seats. We expect the JNC to announce their request for Applications shortly.  Judge Emas began his career on the bench in 1996 with his appointment by Gov. Chiles to the County Court bench. In 2001, Gov. Bush appointed Emas to the Circuit Court.  Finally, in 2010, Gov. Crist appointed Judge Emas to his current seat on the 3rd DCA.  Emas will serve as Chief Judge until June 30, 2021. Judge Ivan Fernandez becomes the Chief-Judge Elect.

(Our apologies for Rumpole for posting over his Monday morning post entitled "Gavels Up", which you can read just below this post).

CAPTAIN OUT .......
Captain4Justice@gmail.com

　

GAVELS UP

That annual bacchanalia known as "Judge's School" is in session this week somewhere in the weeds of small town Florida. So if you're looking for your favourite new judge, s/he's gone this week:

Instructor: "Gavel in left hand, and....repeat after me "DENIED" and ….no Judge Smith, first say "DENIED" and then bang the gavel because otherwise the noise of the gavel hitting the bench may obscure yall's  ruling. Try again. Raise the gavel just a few inches off the desk, say 'DENIED" in a firm voice- try and convey that y'all know what you're doing-  and then a sharp tap...not too hard, y'all be saying denied a lot and you don't want to snap the head of the gavel too soon."

[a Judge raises his hand]

Instructor: "You...from Mi-am-AH... y'all got a question?"

Judge XYZ: "Well, what if, umm...we grant a motion?"

[Laughter breaks out throughout the class room]

Instructor: "Settle down, settle down y'all. Well sir, that's a mighty good question you be'in from Mi-Am-AH and all...See in this here parts of the country we don't do a whole lot of judgen wheres we grant a motion a whole bunch. Sayin yes to a lawyer is as useful as feathers on a pig in these here parts...but Ah know y'all do it a bit different in Mi-Am-AH, and if y'all gonna grant somethin it's best y'all just say it quickly an then move on to getting back to judgin and denying motions and such."


Now of course Rumpole has no idea what really happens at judges' school. It's sort of like when they pick a pope. It's not open to the public and you don't hear anything about it unless someone gets loaded and is arrested skinny dipping in the hotel pool at 3 am. And when that happens they're usually from Broward so it's no surprise. We're all for education, and the proof of the pudding is in the tasting, so we will just wait and see until the judges  return, still wet behind the ears, and eager to jump into court and change the world. 

Meanwhile in federal court, as the sands of funding quickly runs out, do not expect the toilet paper rolls to be re-filled in the bathroom, or to have paper cups with the water pitcher in the courtroom. And if you see your favourite courtroom deputy at the Starbucks downtown, pick up the tab for the cup-a-joe and help a federal worker through these tough times. The real fact of the matter is a majority of under-paid federal workers live paycheck to paycheck and simple things like keeping the lights on and feeding their kids have become a whole lot harder while that moron in DC blabbers about sticking steel slats into the ground. 

From occupied America, where the cracks are starting to appear, the FBI counterintelligence division is investigating the president and the backbone of the federal work force is suffering, fight the power. 

Hello’s & Goodbye’s to Judges at the Richard E. Gerstein Justice Building .....

THE CAPTAIN REPORTS:

JUDICIAL ROTATIONS .......

Round and round they go, and where they stop only The Captain knows. Now you know too. Several readers have emailed and commented asking for the Judicial Rotations for 2019. Ask no further, for here is the list, hot off the presses. Please note that, according to our sources, "we expect some changes in the coming days, so please stay tuned for updates".

Hello to:

Judge Betsy Alvarez-Zane
Judge Michael Barket
Judge Lizzet Martinez
Judge Kristy Nunez
Judge Thomas Rebull (from Circuit Civil)
Judge Eleane Sosa-Bruzon
Judge Jacqueline Woodward

Goodbye to:

Judge Cristine Bandin
Judge Michelle Barakat
Judge Gordon Murray
Judge Martin Zilber (to Circuit Civil)

JUDICIAL ROTATIONS 2019  (CLICK FOR LINK TO COMPLETE LIST)

Abreu, Milena           NEW HIA County Civil 01

Alvarez-Zane, Betsy     NEW REG 609 County Criminal A

Areces, Ramiro    From: NDJC 205 County Civil; To: 06 CHC 2327 DV 51

Arzola, Antonio   From: DCC 1401 CA 24 To: DCC 1017 CA 24

Bandin, Cristine       From: REG 510 County Criminal C; To: CHC 2122 DV 53/M88

Barakat, Michelle     From: REG 508 County Criminal E; To: DCC 524 County Civil 02

Barket, Michael           NEW REG 510 County Criminal C

Blumstein, Mark      From: REG 322 CF 17; To: REG 223 CF 17

Bokor, Alex          From: DCC 310 County Civil 04 To: DCC 1401 CA 13 (County to Circuit)

Brinkley, Tanya      From: CHC 2820 DV 53/M88; To: DCC 309 County Civil 04

Capote, Betty           From: REG 507 County Criminal B; To: REG 507 County Criminal F

Colodny,Yvonne     From: CHC 1120 CP 05; To: CHC 1123 CP 05

Cruz, Laura         From: NDJC 217 County Civil 04; To: CHC 2820 DV 55

Cuervo, Raul        From: NDJC 207 County Criminal A; To: NDJC 205 County Criminal A

Del Rio, Vivianne     NEW MDCC 13348 D001,J001, FCJ101

Dimitris, Jason        From: MDCC 14321 D001, J001, FCJ101; To: MDCC 14321 FC203, D203, J203

Figarola, Rosa        From: MDCC 14356 FC203, D203, J203; To: CHC 1116 CP 03

Guzman, Carlos      From: CG 1-7 County Civil 04; To: DCC 412 CA 04 (County to Circuit)

Jean, Lody               NEW NDJC 207 County Civil 06

Lehr, Myriam        From: NDJC 206 County Civil 01; To: NDJC 217 County Civil 01

Lopez, Carlos          NEW MDCC 14356 D002,J002, FCJ102

Marrero, Yery         NEW MDCC 13357 D011,J011, FCJ011

Martinez, Lizzet     NEW REG 505 County Criminal D

Moore, Natalie       NEW NDJC 206 County Civil 02

Muir, Celeste       From: CHC 1116 CP 01; To: CHC 1120 CP 01

Murray, Gordon    From: REG 505 County Criminal D; To: NDJC 210 County Civil

Nunez, Kristy      NEW REG 500 County Criminal B

Pooler, Teresa     From: MDCC 13348 D009, J009, FCJ109; To: MDCC 14359 D009,J009, FCJ109

Rebull Thomas    From: DCC 800 CA 13; To: REG 413 CF 05

Ruiz, Mavel     From: DCC 1403 CA 11; To: DCC 310 CA 11

Sosa-Bruzon, Eleane      NEW REG 508 County Criminal E

Thornton, John    From: DCC 1017 CA 27; To: DCC 1500 CA 27

Watson, Robert          NEW CG 1-7 County Civil 04

Woodward Jacqueline   NEW REG 402 County Criminal BH

Zilber, Martin     From: REG 223 CF 05; To: DCC 800 CA 08


Abbreviations:

CG = Coral Gables Courthouse, 3100 Ponce De Leon Blvd., Coral Gables, FL 33134
CHC = Lawson E. Thomas Courthouse Center, 175 NW 1st Ave., Miami, FL 33128        
DCC = Dade County Courthouse, 73 West Flagler Street, Miami, FL 33130        
HIA = Hiealeah Courthouse, 11 East 6th Street, Hialeah, FL 33010          
MDCC = Judge Seymour Gelber and Judge William E. Gladstone Miami-Dade Children's                       Courthouse, 155 NW 3rd Street, Miami, FL 33128   
NDJC = North Dade Justice Center, 15555 Biscayne Blvd., North Miami Beach, FL 33160      
REG = Richard E. Gerstein Justice Building, 1351 NW 12 Street, Miami, FL 33125

CAPTAIN OUT .......
Captain4Justice@gmail.com

Gov. DeSantis Announces First of Three Supreme Court Justices .....

THE CAPTAIN REPORTS:

BREAKING NEWS .......

Governor Ron DeSantis today appointed BARBARA LAGOA to the Florida Supreme Court.  It is his first of three appointments to the open seats on the Court as the result of the retirement of Justices Pariente, Lewis, and Quince.

The announcement was made at the historic Freedom Tower in downtown Miami this morning.  Newly elected Attorney General Ashley Moody opened the event, followed by Lt. Governor Jeanette Nunez, who introduced the Governor.

Judge Logoa, 51, has been on the 3rd DCA for the past 12 years, authoring 470 opinions. She was appointed to the 3rd DCA by Governor Jeb Bush in 2006 becoming the first Cuban American woman  appointed to that Court. She was the Chief Judge of the 3rd DCA, having assumed that role just nine days ago.  She was born in Miami and grew up in Hialeah, graduated from  FIU (BA, 1989) and then Columbia Law School (JD, 1992).  Her husband, is attorney Paul Huck, Jr, and her father-in-law, Judge Paul Huck, is a Senior Judge on the Southern District of Florida. In 2003 she joined the United States Attorney's Office as an AUSA where she tried numerous criminal jury trials, including drug conspiracies and Hobbs Act violations. She also handled a significant number of appeals.  She spent three years three before becoming an appellant court judge.  Prior to her work as an AUSA she worked at Greenberg Traurig and Morgan, Lewis & Bockius, among other firms.

CAPTAIN OUT ......
Captain4Justice@gmail.com

CITY ON A HILL

You know him, you love him, you can't live without his Constitutional Calendars. Much like your morning coffee and afternoon colada, Judge Hirsch's Constitutional Calendar had become 2019's must read. Without further ado....

The notion of America as “a city on a hill,” or “a shining city upon a hill” traces its origins to Jesus’s Sermon on the Mount.  See Mathew 5:14.  The phrase was famously used in 1630 by John Winthrop, a clergyman aboard the vessel Arabella, exhorting future Massachusetts Bay Colonists to the task that lay before them.

            On January 9, 1961, President-Elect Kennedy, appearing before the legislature in his home state of Massachusetts, remarked:

I have been guided by the standard John Winthrop set before his shipmates on the flagship Arbella three hundred and thirty-one years ago, as they, too, faced the task of building a new government on a perilous frontier. "We must always consider", he said, "that we shall be as a city upon a hill—the eyes of all people are upon us". Today the eyes of all people are truly upon us—and our governments, in every branch, at every level, national, state and local, must be as a city upon a hill—constructed and inhabited by men aware of their great trust and their great responsibilities. For we are setting out upon a voyage in 1961 no less hazardous than that undertaken by the Arbella in 1630. We are committing ourselves to tasks of statecraft no less awesome than that of governing the Massachusetts Bay Colony, beset as it was then by terror without and disorder within. History will not judge our endeavors—and a government cannot be selected—merely on the basis of color or creed or even party affiliation. Neither will competence and loyalty and stature, while essential to the utmost, suffice in times such as these. For of those to whom much is given, much is required.

            President Ronald Reagan referred to the same event and image on the eve of his election in 1980:

I have quoted John Winthrop's words more than once on the campaign trail this year—for I believe that Americans in 1980 are every bit as committed to that vision of a shining "city on a hill," as were those long ago settlers. ...

These visitors to that city on the Potomac do not come as white or black, red or yellow; they are not Jews or Christians; conservatives or liberals; or Democrats or Republicans. They are Americans awed by what has gone before, proud of what for them is still… a shining city on a hill.

GOVERNOR SCOTT APPOINTS TWO NEW COUNTY COURT JUDGES .......

THE CAPTAIN REPORTS:

BREAKING: GOVERNOR DESANTIS WILL NAME THE NEXT SUPREME COURT JUSTICE ON WEDNESDAY at 10 AM with an announcement at the Freedom Tower in Miami.  Expect DeSantis to name a justice to fill the open seat for a justice that must reside in the 3rd Appellate District. The three finalists include: Judges Barbara Lagoa and Robert Luck and attorney John Daniel Couriel.

Also, as I touched on below, Gov. Scott appointed a total of 76 people to various posts around the state last Friday.  DeSantis has indicated that he will be rescinding many of those appointments.  It is clear that DeSantis was not happy with Scott's actions in pulling off these last minute appointments.


YOUR TWO NEWEST COUNTY COURT JUDGES ARE ...

NATALIE MOORE.  Ms. Moore has been a member of The Florida Bar since 2006. She is currently an Assistant State Attorney and also a Training Director at the Miami-Dade State Attorney’s Office.  She previously served in the Hate Crimes Unit.  She fills the vacancy created by the elevation of Judge Carlos Guzman.

ROBERT WATSON. Mr. Watson has been a member of The Florida Bar since 2003. A Stanford law grad (Georgetown undergrad), he is currently a principal with the law firm of Kobre & Kim. Prior to joining Kobre & Kim, Mr. Watson served as a prosecutor at the U.S. Department of Justice as an Assistant U.S. Attorney in the Criminal Division of the U.S. Attorney’s Office for the Southern District of Florida. Before that he practiced at Holland & Knight, where he focused on money laundering cases, commercial disputes and international arbitration. He currently represents corporations and individuals in white-collar criminal defense matters, regulatory enforcement actions and internal investigations. He speaks Spanish and Portuguese and focuses on representing clients in connection with matters related to Latin America.   He fills the vacancy created by the elevation of Judge Alexander Bokor.

In case you were wondering, this is Governor Scott’s last day in office and therefore his last appointments to the bench.  Scott has been very busy over the holidays naming dozens of appointments to Boards, Committees, Commissions, and the bench.  While for the past eight years, he has almost always taken the full 60 days to review the JNC names sent to him before he selects a new judge, for these two appointments, Scott needed only 18 days to choose Ms. Moore and Mr. Watson as their names were included in a JNC correspondence sent to Scott on December 20, 2018.

Those that were not chosen from the JNC final list included:

Karl S.H. Brown, Peter S. Heller, Zachary James, Scott M. Janowitz, Jeffrey M. Kolokoff, Jonathan Meltz, Julie Harris Nelson, Christopher Pracitto, Manolo Reboso, and Stephanie Silver.

So now we will wait to see what kind of judges our new Governor will choose.  Governor-Elect Ron DeSantis, our 46th Governor of the Great State of Florida, will be sworn in on Tuesday, January 8, 2019 at 9 AM.

As one of his first acts that will have a lasting effect on our judicial system, expect Governor DeSantis to quickly name three replacements to the Florida Supreme Court.  That's because as of 5 PM tomorrow, Justices Pariente, Lewis, and Quince, will all be retiring.

Also on the Agenda, two open seats on the Miami-Dade Circuit Court. With the elevation of Judges Bronwyn Miller and Eric Hendon to the 3rd DCA, Desantis will get to name their two replacements.  The JNC is accepting applications until January 18, 2019, so don't expect to see their replacements named until early April.

CAPTAIN OUT .......
Captain4Justice@gmail.com

CONSTITUTIONAL CALENDAR 19.1

We debut a new feature for 2019. Judge Milton Hirsch, jurist, polymath, constitutional raconteur, has an email he sends out on an irregular basis that he calls his Constitutional Calendar. After being bombarded with his emails forwarded to us last year by his fans, we secured the rights to re-post his missives, which we do without editing.  

At 7:00 in the evening of January 4, 1939, Prof. Felix Frankfurter was annoyed to have to take a phone call.  Frankfurter was in his underwear, trying to dress hurriedly to receive dinner guests who had already arrived and whom he was keeping waiting.

But the caller was President Roosevelt.  And to make matters worse, Roosevelt’s message seemed as unwelcome as his timing: Roosevelt went on at some length explaining why he didn’t think he could nominate Frankfurter to the open seat on the United States Supreme Court.  Frankfurter did his best to express his understanding and acceptance of Roosevelt’s position, and to terminate the call – his wife Marian kept shouting up the staircase, “Hurry up!  You are always late!”

Just as it seemed that the president was willing to hang up, however, he stated, “But wherever I turn, wherever I turn and to whomever I talk, I am made to realize that you are the only person fit to succeed Holmes and Cardozo.  Unless you give me an insurmountable objection I’m going to send your name in for the Court tomorrow at twelve o’clock.”

Stunned, Frankfurter whispered in a voice so low that Roosevelt wasn’t sure he was intended to hear it, “I wish only that my mother were still alive.”

THE PERSON IN THE ARENA

Welcome to 2019. The year brings more challenges to the Republic at any time since the spring of 1861 as Abraham Lincoln was inaugurated and the country split into two. 
Since that time we have faced serious challenges, but always from enemies foreign. When attacked and when  defending its allies, the best of America emerged. Young men taking up arms and traveling to foreign lands to fight tyranny. Once victorious, our citizen-soldiers returned, no conquest of people sought- in the words inscribed at the U.S. cemetery in Normandy, France, "All that we asked for in return was enough soil to bury our gallant dead."

But today there is an enemy within. A chief executive who tries to use the Justice Department as his own cudgel, seeking prosecution of his political enemies and criticizing the men and women of the judiciary, the department of justice and the FBI who hold line of the Constitution firm. Not fleeing or flinching in the face of tyranny and ridicule and ruin- even when threatened by their putative commander in chief. 
 This is not an enemy who will yield to force, as in the words of General Omar Bradley  when talking about the D-Day troops he commanded:  "The Battle belonged that day to that thin wet line of khaki that dragged itself ashore on the Channel Coast of France."  There is no land to heroically invade. We must examine our conscience. 

This enemy is more insidious. It is the worst of our character, not, in the words of Abraham Lincoln "our better angels of our nature". It is a cancer that is eating the soul of our country. There is nothing to shoot at. This enemy is conquered only by self-reflection. Meditation on who we are as a people and what we do when confronted with our dark side. 

Where  do we stand on our  bridge of freedom? With the ignorant racists and their water-cannons and bully clubs and attack dogs turned loose? Or with the men and women of all color and races, armed linked, facing mortal danger with nothing more than purity of a soul committed to the proposition that "this nation under God shall have a new birth of freedom- and that government of the people, by the people, and for the people, shall not perish from this earth." 

Each of us must make our own decision on where and with whom we stand: with the ignorant mob, fearful of anyone who does not look and act and think like them? Or alone, but in defense of that which is the noblest endeavor in the history of civilization: a nation dedicated to the proposition that all people  are created equal? 

We write today in praise of our small section of Americans who defend our freedoms. The Assistant United States Attorneys of the Southern District of Florida who go to court every day and seek justice despite what their nominal leader exhorts them to do. They stand before our Federal Judges, independent by law, who do their duty as the good lord gave them the wisdom to see fit to do. The assistant State attorneys who do the same before our State Judges in our aptly named Justice Building.  Our State Court Judges are not protected with life tenure. Yet we ask them on a daily basis  to make unpopular decisions upholding the rights of the minority that could jeopardize their jobs when facing an angry electorate-mob. 
And yet their decisions remain untainted by worry of losing an election. For they know that, in the words of Theodore Roosevelt, that if they fail, then they  "fail while daring greatly, so that [their] place shall never be with those cold and timid souls who know neither victory nor defeat."  

And finally our thanks to those underpaid and rarely appreciated members of the Federal and State Public Defenders offices whose lawyers march into court every day defending those who no one else will defend, with nothing more than their skill and knowledge and courage and copy of the constitution standing between their client and ruin. 

2019 is the time to make a stand. We have examples of courage, listed above, simple men and women who do their job every day unfazed by threats of the ignorant bully who is, to our shame, our president for now. 
Many of us, in the luxury of our safe homes have loosely spoken of the bravery we would have surely shown in Nazi Germany to protect a Jewish neighbor, or in the deep south. Surely we would have walked in solidarity with a black child on the way to school while being cursed at or spit on. 

Now is the time. It is our generation's challenge. Our call to arms. Our test. Where do you stand? You are not being asked to wade ashore under fire. Your challenge is moral. It is your conscience and soul that is at stake, so when your grandchildren ask where you stood during these dark days, you will be able to smile wistfully and say proudly "with those who fought for the soul of our nation." 

Are you the person in the arena? 

It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat. 
Teddy Roosevelt, Excerpt From The Man In The Arena Speech.