Wednesday, November 30, 2016

3d DCA Watch -- This Was the Week That Uttered.

It's Art Basel week, which means you get to pretend to know something about which you know very little (just like your day job!).

Oh I kid(?)


Question: do you have to comply with the safe harbor requirements of 57.105 even when you are seeking appellate level fees inside the bunker from defending against a frivolous action below?


You'll have to read this.

Also: dog bites good Samaritan.

Bye bye Baselers!

Tuesday, November 29, 2016

We're Getting a New Overlord!

It's pretty exciting and something to get you really warm and fuzzy, and that of course is the prospect of Rick Scott picking one of these white people:
"The governor should be very proud of the work of the Judicial Nominating Nominating Commission,’’ said Jason Gonzalez, co-chair of the Florida chapter of the Federalist Society. “All three nominees are imminently qualified and have demonstrated a textualist judicial philosophy similar to that of the late Justice Antonin Scalia."

Read more here:
Doesn't that just make you want to jump up for joy?

But at least someone I respect tremendously -- Big Sandy -- says we should have faith in the process:
“Even people who come up through this appointment process are capable of having integrity.”
d more here:
Yes Sandy, you sweet sympathetic soul you, anyone is capable of having integrity -- even these people, even these people.

Monday, November 28, 2016

Muerto Monday!

And I hope that you die
And your death'll come soon
I will follow your casket
By the pale afternoon
And I'll watch while you're lowered
Down to your deathbed
And I'll stand o'er your grave
'Til I'm sure that you're dead

It's been fascinating to see varied local reactions to the tyrant-is-finally-dead gatherings, being as it is unclear to what extent non-Cubans should appropriately dance on the despot's grave in public, or whether it's best to just clear the lane, be supportive and let folks with real skin in the game outpour real emotion (scrubbing those four-days-later Facebook photos at Versailles off your feed in the process).

Or maybe you could be a genuine part of it all and just not tell everyone about it?

Wait -- this is Miami.

Turns out there is no "too much" as far as this is concerned, except for Little Marco:
“Rubio discredits himself,” said Gross, who lost 100 pounds and many of his teeth while imprisoned. “He did not have the Cuban experience that he claims to have had. He has not sacrificed anything because of Fidel Castro and neither did his family. I did. I had the Cuban American experience. And I’m not even Cuban. So I can speak with some level of credibility.”
But Rubio is riding the exile train all the way to the White House, so let him stoke those emotional engines just like Rubio's buddy Lyin' Ted to the point that all rationality and logic fly out the window.

It's almost 2017, and we seem to be completely unshackled from whatever moors used to keep us loosely tethered to the same general shared reality.  We see that in manufactured controversy over everything as big as a horrible dictator's long-overdue death, or as small as who won the Presidential election.

Things always look weird (or just plain flat out wrong) from the other side.

(God I'm prattling on like an idiot)

Changes coming next year.
ead more here:

Wednesday, November 23, 2016

Let's Wish Judge Shepherd Farewell and Godspeed!

It's Thanksgiving time and in that spirit of warmth and good cheer arrived this missive in my email box:

Please Join Us for the Court's
Retirement Ceremony in Honor of 

Former Chief Judge
Frank A. Shepherd

Tuesday, December 13, 2016
3:00 pm

Third District Court of Appeal
2001 Southwest 117 Avenue
Miami, Florida 33175

A Reception Will Follow
Immediately in the Courtyard

Isn't it great that all 3d DCA events are at 3 pm, that must be right around quitting time?

Oh I kid the bunker, but in all honesty and seriousness Judge thank you for your service.

Now go forth and conquer, and here's some holiday cheer for ya!

Tuesday, November 22, 2016

"Who Brought the Chips"?

It appears the "weedage craze" has overtaken the legal profession, with firms jostling to establish beachheads in what will be a HUGE market, along with appropriate notes of caution.

But this updated "gather around the beanbags" session had me intrigued:
Because everyone wants to know how to get into the business, Fort Lauderdale-based law firm Kelley Kronenberg brought in speakers and hosted a meet-up group, the Medical Marijuana Business Networking Group (MMBNG), earlier this month and plans to host them regularly. The first one attracted more than 50 people, including owners of dispensaries and growers located in other states, a nutraceutical manufacturer, a cannabis investment fund, wellness centers, doctors and conference planners, said Seth Hyman, a medical marijuana activist who has a daughter with severe disabilities including uncontrolled seizures that a certain form of cannabis could help. To get help for his child and others like her, he fought for years to get Florida’s first medical marijuana bill passed as well as the much wider Amendment 2. “I was a corporate lawyer and never anticipated going into the cannabis business until I heard [Hyman’s] story about his daughter. No one should have to go through this,” said Howard Wander. Wander, along with other lawyers and Hyman, who’s not a lawyer, are part of a practice unit at the Kelley Kronenberg firm formed in late 2013 to serve not only businesses wanting to get into the industry but also all companies with employment, workplace and security issues concerning medical marijuana. Akerman, GrayRobinson, Greenspoon Marder and other South Florida firms are also forming practice groups either locally or nationally.

Read more here:
So it looks like people we know, people we are, and generally people all around us are embracing this new reality and -- like good Americans -- trying to figure out how to make a buck from it all.

God bless 'merica!

Friday, November 18, 2016

3d DCA Watch -- Supercharged Friday I'm So Tired Edition!


In a frenzied, convulsive mass of pulsing, kinetic mad energy, the bunker emitted a HUGE payload of eight (8)(!) civil written utterances, all in one day!

Hold on, give us some time to recover.

Ok, but is there anything of note in these careful and well-reasoned opinions?

Alright, I'll take a peek for you lazy sods.....

Hmm, a preliminary skirmish in Ervin's pipe litigation looks like it's worth tracking.

And let me see.....

Have a nice weekend!

Thursday, November 17, 2016

What's Puzzling You?

RICHARD SPENCER: What I would ultimately want is this ideal of a safe space effectively for Europeans. This is a big empire that would accept all Europeans. It would be a place for Germans. It would be a place for Slavs. It would be a place for Celts. It would be a place for white Americans and so on.

SPENCER: Whenever many different races are in the same school, what will happen is that there'll be a natural segregation at lunchtime, at PE, at - in terms of after-school play.

SPENCER: Immigration is the most obvious one. And I think we need to get beyond thinking about immigration just in terms of illegal immigration. Illegal immigration is not nearly as damaging as legal immigration. Legal immigration - they're here to stay. Their children are here and so on.

And I think a really reasonable and I think palatable policy proposal would be for Donald Trump to say, look; we've had immigration in the past. It's brought some fragmentation. It's brought division. But we need to become a people again. And for us to do that, we're going to need to take a break from mass immigration. And we're going to need to preference people who are going to fit in, who are more like us. That is European immigration.

SPENCER: What I want is influence. And sometimes influence can be invisible. If we can get these ideas out there, if people can see the compelling and powerful nature of them, I think we really can change policy.

SPENCER: If I had told you in 1985 that we should have gay marriage in this country, you probably would have laughed at me. And I think most people would have. Or at least - at the very least, you would have been a bit confused, and you would have told me, oh that's ridiculous. The fact is, opinions do change. People's consciousness does change. Paradigms are meant to be broken. That's what the alt-right is doing.

Let Her Go, Let Her Go, God Bless Her, Wherever She May Be.

Oh, when I die, bury me
In my high top Stetson hat;
Put a twenty-dollar gold piece on my watch chain
God'll know I died standin' pat.

Changes are afoot for 2017, and in keeping with the times we are gearing up for radical change.

I've never seen my friends, colleagues, judges, lawyers, educators and activists more engaged, focused and directed for positive change since the 2008 Obama election.

Except the energy this time arises from the ashes of a crushing loss.

I cringed the other day at the prospect of a Donald J. Trump elementary school in our mutually-shared possible future.

Yet sadly the prospects are real.

And we are surrounded by easily manipulated or distracted friends, FB contacts, coworkers and well-meaning colleagues who buy clever propaganda, stoked by fears, paranoia, anger, and loss of power or potency.

Businesses, leaders, and global power players regularly lie, cheat, and steal their way to victory, and are rarely if ever caught and punished.

To my many judicial readers, consider your new buddies, they want to put strict ideologues on the bench, starting at the top:
The top priority for conservatives, Mr. Malcolm said, is to avoid another disappointment like Justice David H. Souter, who was appointed by President George Bush in 1990 but whose voting record turned out to be decidedly liberal.
Mr. Malcolm said his own first choice for the current vacancy was Judge William H. Pryor Jr. of the United States Court of Appeals for the 11th Circuit, in Atlanta. “If you are concerned about not wanting another David Souter,” Mr. Malcolm said, “he has a real titanium spine in terms of doing the right thing.”
Judge Pryor has called Roe v. Wade, the 1973 decision establishing a right to abortion, “the worst abomination of constitutional law in our history,” a comment he stood by at his confirmation hearing. He once ended a speech with a prayer: “Please, God, no more Souters.”
Wrong, Judge.

Now, more than ever, we desperately need more Souters.

Wednesday, November 16, 2016

Parsing Judge Ungaro

When I get in a funk, as after The Election, I let my mind drift to Judge Ungaro immerse myself in work, to "lift my spirits."

Due to the pre-election hullaboo, I missed this decision when it was initially released. An interesting per curiam affirmance of Judge Ungaro's grant of summary judgment, Judge Jordan joined by Judge J. Carnes write separately to invite the court to convene en banc and overrule Mays, the seminal 11th Circuit case relied on to affirm the grant of summary judgment,
[b]ecause the cases upon which Mays relies arise in the post-trial context, where the standard of review is much more deferential than at the summary judgment stage. The principle articulated in Mays has no place in a summary judgment posture. And I believe that the single precedent supporting Mays’ analytical leap, Heyman v. United States, 497 F.2d 121 (5th Cir. 1974), was itself wrongly decided.
(Mays was decided in 1985, when we used to try cases.) The concurring opinion affirms that Judge Ungaro exhibits unwavering fidelity to the law.

Imagine my surprise when, against this backdrop of obsession legal preoccupation, I walked into the lecture hall last night to hear Maureen Dowd, another brilliant mind with whom I am obsessed and who shares Judge Ungaro's impeccable taste in pumps and standing before me was none other than my Muse Judge Ungaro! I remain sufficiently in need of a bust out and she wore a fetching golden suit, such that I thought, now or never. Except Edith Osman was glommed onto Judge Ungaro like a pre-teen backstage at a New Kids on The Block "concert."  Ah, well.  Next time.
Ms. Dowd was fantastic.  Captivating, insightful, gracious, open, humble, witty, charming. 
Time to get back to work.   

Thursday, November 10, 2016

3d DCA Watch Election Special -- The Results Are In!

Yes I see from all of your worried notes, "apocalypse sex requests" and other late night texts and emoticons, things look grim.

But there was an election upside -- Judge Scales and Judge Wells made it!

Is it bothersome to anyone that more than a quarter of all voters said "no' for no apparent reason?

Shall Judge Edwin A. Scales be retained in Office?

CandidatePartyStatewide Votes Received
812,425 total votes cast.

Shall Judge Linda Ann Wells be retained in Office?

CandidatePartyStatewide Votes Received
820,948 total votes cast.

I guess some people just want to watch it burn:


Judge Shepherd enters one of his final opinions, this one on Key Biscayne's efforts to protect Miami Marine Stadium from overdevelopment.

Here's one reason this one might deserve appeal to a higher authority (yes, Oscar Meyer!):
We admit there does appear to be an inherent conflict of interest in a system in which the agency which has determined to issue a water quality permit is also the adjudicator of whether a petitioner should be allowed to present his grievance to a neutral official.  However, the Village did not preserve this issue either by questioning DEP’s authority to address or determine standing at the agency level or requesting the DEP Office of General Counsel to recuse itself from the matter. In fact, following issuance of the Final Order, the Village sent correspondence to DEP’s General Counsel, announcing its intention to appeal, but offering to forego an appeal “should you agree to reconsider your decision.”
Is it just me or does this seem grossly unfair?

How do you waive a fundamental, structural conflict like that?  By largely meaningless closing verbiage in a piece of correspondence?

Oy veh welcome to the New Americana: