Category Archives: Law

Estate Planning for Dogs

adult black pug

Photo by Charles on Pexels.com

There is an anecdote about a millionaire lonely widow who disinherited her spoiled children in favor of leaving her fortune to her dog. Fortunately, for all of Florida’s bad sons and daughters who don’t visit as much as they should, Florida Law prohibits such a practice. As dear as our pets are to us, in the blind eyes of the law, pets are personal property and cannot inherit property themselves.

This, however, does not necessarily mean leaving your furry friend empty-pawed. The solution is found in Florida Statute 736.0408, “Trust for Care of an Animal.” Though probably more practical for ensuring your commercial racing horse spends his elder days out to stud, this provision can also protect the family pet.

The Animal Trust allows an owner (or the pet’s human, if you absolutely must describe it in such terms) to set aside reasonable financial resources for the animal’s lifetime care. The trust may also appoint a caretaker if the owner dies or becomes incapacitated, and a trustee that ensures the money is solely used for the benefit of the animal.

The trust will automatically dissolve upon the death of the animal, with the remaining funds returned to the owner if alive, or to other declared beneficiaries if the owner has also passed.

When creating the trust it is important not to get carried away, as a court will reduce the dedicated funds if they are deemed more than necessary for the care of the pet.

Now tell Fido to retrieve your slippers or else you’ll cut him out of your estate plan!

The Myth of the Death Tax

Treasury
In 1789, Benjamin Franklin famously wrote to physicist Jean-Baptiste Leroy “‘In this world nothing can be said to be certain, except death and taxes.” It is only natural, then, that Americans are adverse to experiencing both at the same time.
 
The “death tax” is what some angry people contemptuously call the Estate Tax, defined by 26 U.S. Code Chapter 11–and fortunately for them, and 99.99% of all Americans, their estates will never have to pay it.
 
For 2019, an estate tax filling is only required for estates with gross assets and prior taxable gifts in excess of–wait for it–$11,400,000.
 
If you are among the elite few for whom this is actually an issue, you are definitely the kind of client I want. Contact me and I’ll meet you anywhere, anytime to have your business!
 
I’ll even fill out IRS Form 706 for you! 🙂
 
For the rest of you, consider a pause next time before grabbing a “Tax is Theft” placard–and taking to our publicly funded streets.
 

U.S. Birthright Citizenship, the Diplomatic Immunity Exception, and the New Jersey born, University of Alabama Student turned ISIS Recruit, Hoda Muthana

International media has spotlighted the controversial case of Hoda Muthana–a New Jersey born University of Alabama student turned ISIS recruit. Having become disenchanted with her adopted extremist ideology, and now being responsible for her 18-month-old infant, Ms. Muthana wants to return to her native U.S. home and face justice for her criminal acts.

The U.S. Department of State is demurring her request for a passport, passage, and prosecution, and is further insisting she was never a citizen of the United States at all. Her father has filed suit on her behalf citing that she was born in the United States, has been issued two passports by the United States, and has never had her citizenship previously questioned.

Noting that the Department of State is not arguing Ms. Muthana renounced her citizenship during her odyssey of terrorist accessory to Damascus, outside observers are understandably confused.

For reasonably archaic reasons explained below, this case could be decided on one question of fact: Did her father, Ahmed Ali Muthana, have diplomatic immunity in the United States at the time of her birth?

To answer this question I will define “birthright citizenship,” explain the Parental Diplomatic Immunity Exception, and conclude by applying the law as it exists today to the facts of this case.

Birthright Citizenship Defined

The United States is among few countries in the world that offers “birthright citizenship.” The origin of this right is Section 1 of the 14th Amendment of the U.S. Constitution, which in part declares: “All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The general rule, therefore, is if a person is born within the physical territory of the United States (including U.S. territories, and in many cases, overseas U.S. embassies, and U.S. military bases) that person is automatically a citizen of the Land of the Free.

If a suicide bomber births a baby en route to her high profile target at a D.C. children’s hospital, that baby enjoys an unequivocal right to U.S. citizenship, no matter how deplorable a parents’ behavior.

The Parental Diplomatic Immunity Exception to Birthright Citizenship

There are, though there is no reason any normal person would have ever heard of them, exceptions to birthright citizenship.

The exception relevant to this case: If the child is born physically in the United States, but is shielded by diplomatic immunity through the diplomatic status of a parent, the child is not “subject to the jurisdiction of the United States” and is therefore not entitled to birthright citizenship.

Therefore, if Ahmed Ali Muthana, a former Yemeni diplomat to the United Nations, enjoyed diplomatic immunity at the time of his daughter’s birth, the government’s argument goes, then Ms. Muthana has never been, and continues not to be, a U.S. citizen.     

Hoda Muthana was born after her father ceased to be a diplomat, but before the United States was notified that he was no longer a diplomat.

Ahmed Ali Muthana was a Yemini diplomat to the U.N., living in the United States (for International Law purposes, the country a diplomat lives in is called the “host country” and the country he represents is the “origin country.”)  As a Yemini diplomat, he was shielded from the jurisdiction of his host country (the United States) by the Vienna Convention on Diplomatic Relations (1961)–more casually referred to as “diplomatic immunity.” His term of office ended on September 1, 1994, more than a month before, his daughter, Hoda Muthana, was born on October 28, 1994. The U.S. Mission to the U.N. was notified that Mr. Muthana was no longer a diplomat on February 6, 1995–more than three months after his daughter was born.

The question of law is this: Does an outgoing diplomat lose jurisdictional immunity from a host country at the time the diplomat’s origin country (in this case Yemen) ceases to recognize his diplomatic status, or at the time the host country is given notice that he has ceased to be a diplomat?

There is a necessary prequal question to this that requires the reader to journey into the obscure abyss of transnational conflict of law: What if Yemen ceased to recognize Mr. Muthana as having diplomatic immunity on September 1, 1994, but the United States, for its own jurisdictional purposes, recognized it through February 6, 1995.?

U.S. courts, in determining jurisdiction at the time of Hoda Muthana’s birth, will apply the Law of the United States even if they conflict with the Law of Yemen.

Absent superseding language in the Vienna Convention or a relevant treaty to which both the U.S. and Yemen are signatories that postdates any contradictory U.S. federal statute, a U.S. court would use U.S. Law to determine the date of cessation of diplomatic immunity.

As the reader may guess, a court in Yemen may find it more convenient to rely on the Law of Yemen.

(Please note that, though beyond the scope of this Essay, there are frequent circumstances when U.S. courts will apply the laws of other jurisdictions to domestic proceedings.)

In determining U.S. Law, a court would look for guidance in the language of U.S. treaties and statutes. If a court finds relevant direction from both a treaty and a statute, U.S. Constitutional Law requires the court to apply the language of the treaty or statute that came into effect later in time. (Federal statutes and treaties are coequal in authority, so if one contradicts the other, the law created later governs as if it repealed the contradictory language of the other.)

U.S. law likely terminates diplomatic immunity at the time a diplomat leaves his official capacity as recognized by the origin country.

The Vienna Convention, relevant treaties and federal statutes, seem silent on the question of the effect of a delay of notice to a host country on a former diplomat’s diplomatic immunity. Absent authoritative caselaw, international custom, or a history of relevant behavior between the U.S. and other Vienna Convention signatories, courts will reluctantly consider public policy.

Public policy strongly supports the view that the U.S. retroactively terminates its recognition of diplomatic immunity at the time a diplomat leaves his official capacity as recognized by the origin country.  This is necessary to avoid the potential of the absurd result outlined below.

When discussing the subject of diplomatic immunity the question often arises: “What if a diplomat goes on a killing spree in the host country?”

Since diplomatic immunity is a right held by the origin country, and not a right held by the diplomat, the origin country can, and often does, waive the diplomatic immunity of a wayward agent abroad.  It cannot do this, however, if the unstable agent is not actually recognized by the origin country as having diplomatic status.

Let’s assume that Yemen stopped recognizing Mr. Muthana’s diplomatic immunity in September of 1994 but that the U.S. generously extended it’s recognition to February 6, 1995 when it received notice of his ceasing to be a diplomat several months prior.  With Yemen unable to waive a right it does not acknowledge exists, Mr. Muthana would, arguably, be unprosecutable for any bad behavior in the United States during the interval.

To avoid such an absurd result, the U.S. would need to recognize the date Mr. Muthana left his role as diplomat as the effective date of his loss of diplomatic immunity whenever the U.S. was served of actual notice that he was no longer recognized by Yemen as a diplomat.

Such is the policy that should be followed whether a recently-ex-diplomat kills a baby, or procreates a new one into existence on U.S. territory.

Since Hoda Muthana’s father did not have diplomatic immunity at the time of her birth, she was both born in the United States and subject to its jurisdiction making her a citizen with the right to return home and subject to U.S. prosecution.

This case is more straightforward than commentators and pundits argue. U.S. law likely requires the Department of State to recognize Ahmed Ali Muthana as loosing his diplomatic immunity on September 1, 1994–more than a month before his daughter was born in New Jersey–making both him and her subject to the jurisdiction of the United States at the time of her birth. The 14th Amendment of the U.S. Constitution therefore bestows upon her birthright citizenship which, absent a revocation of citizenship, survives her treasonous behavior.  She and her child are entitled to admission to the United States where she would be immediately taken into custody for her crimes.

Ironically, should it be determined that she is not a citizen of the United States, while she would effectively become a stateless individual, the U.S. would also be giving up jurisdiction to put her on trial for what would otherwise be her crimes against the United States.

Her practical alternatives are therefore these: Be imprisoned in the Land of the Free, or just be free.

Irish Citizens Abroad Returning Home to Vote for Marriage Equality

Ireland is hugely predicted to vote "yes" in today's constitutional referendum on marriage equality.

Ireland is hugely predicted to vote “yes” in today’s constitutional referendum on marriage equality.

Huge numbers of Irish citizens are returning from abroad to vote “yes” in today’s constitutional referendum on marriage equality. Is it just because they want to be there for a historical moment?

Maybe, but also, probably because that is the only way they can vote. In Ireland, a voter must vote in person and be named on the official registry of voters.

There are exceptions for military, national guardsman, diplomats and their spouses, whom are eligible to vote by mail. Potentially also eligible are people with disabilities, students studying away from home, people who work abroad, prisoners (yes, prisoners can vote in Ireland), and residents of hospitals and nursing homes.

Those living abroad are ineligible to vote because their names are not on the official registry of voters. Thus, they have to return “home” to vote.

Another tidbit U.S. citizen’s may find interesting, certain categories of non-citizens are able to vote in specific elections. Non-citizen residents can vote in local elections. British citizens may vote at Dáil elections (lower house of Irish Parliament), European elections (such as elections for European Parliament) and local elections. E.U. citizens can participate in European elections and local elections.

If you happen to be reading this and you are Irish, in the U.S., not only don’t U.S. citizens have to vote in person, political parties and candidates actively encourage “early voting” (limited voting stations sometimes open weeks in advance of the official “election day.”) and vote-by-mail, a program which is open to any U.S. citizen and also begins weeks in advance of the official “election day.” The reason for this is it allows political parties and candidates to track who had voted and concentrate further messaging toward those known to have not yet voted. The reason voters like it is because it allows them more flexibility in how and when they vote. Conversely, many political activists wait to vote in person on election day because then they continue to get campaign mailers until the day of the election and thereby know what the opposition is messaging.

Residents of most U.S. territories may also vote in U.S. elections provided they reside in the U.S. at the time of the election. Anybody convicted of a felony may not vote in any election until their civil rights have been restored. In some jurisdictions this happens automatically upon a prisoner’s completion of sentence (including non-incarceration probation and payment of fines and restitution) and in others there is a formalized application process.

Non-citizens are ineligible to vote in all elections without exception. The mere notion of such an idea might make a very socially conservative’s head explode.

To learn more about voting in Ireland you can visit here.

My Condolences to Singapore on the Passing of Founder Lee Kuan Yew

Lee Kuan Yew, founder and former Prime Minister of Singapore, 1923-2015

Lee Kuan Yew, founder and former Prime Minister of Singapore, 1923-2015

Dear Singapore:

The world has lost a giant today. A political strategist of the highest intellectual caliber, he is survived by three children, including current Prime Minister Lee Hsien Loong (who I have had the honor to meet), seven grandchildren, and the proud and prosperous island nation he founded, cultivated, and governed.

To all my Singaporean friends, colleagues, teachers, and leaders whom I have had the privilege to serve, learn, teach, research, organize, and bond over a meal or drink with, I offer my deepest heartfelt grief, sadness, and respects on the passing of your nation’s founder, Minster Mentor Lee Kuan Yew.

Minister Lee was an iconoclast with a vision to turn a small, poor, vulnerable and recently occupied island into an economic powerhouse with respect for the rule of law, gender equality, religious tolerance, and ethnic harmony.

While there will always be debate about his means–he used both carrot and stick to bring and retain power, authority, and order–there can be little reasonable debate about the ends. While there is a wealth gap (as there is in the country where I write this and almost everywhere else in the world), and an odd clause in our countries’ bilateral free trade agreement requiring Singapore to legalize chewing gum for “medicinal” purposes, where once were a collection of sleepy undeveloped villages–like the ones that remain today in nearby countries which are presently embroiled in political and religious conflict and with even more pervasive economic troubles–today is a multi-cultured cosmopolitan metropolis where CEOs of banks pick up their chicken rice from the same stall as the migrant workers who built your city-state at a wage (albeit with unequal bargaining power) they negotiated. Literacy is high (in multiple languages) and distributed without discrimination. The government is transparent and is quickly responsive to its citizens (though they encourage them to voice their grievances in a rather controlled and courteous manner suspicious to those in some other wealthy, stable nations).

Though he has left this world, he has left Singapore with a hugely gifted, talented, and potentially more liberal son in Prime Minister Lee Hsien Loong. Under his stewardship, I am certain investors, nations, foreign talent, and all of Singaporeans can look forward to continued stability, prosperity, and the always achingly slow, but inevitable evolution toward liberalization of civil and political human rights.

As the only lawyer (that I know of) practicing in Florida with a law degree from the National University of Singapore (LL.M. in International and Comparative Law) I will continue to advocate Floridians to invest in a Singapore that invested in me.

It is Singapore that allied with the United States during the cold war, is our partner in free trade, uses much of its huge Sovereign Wealth Fund to invest in the United States and its partner countries and in return encourages U.S. foreign investment by offering low (sometimes no) tax rates on income earned in Singapore.

Very importantly, Singapore kindly provides a safe harbor and home to the U.S. Navy’s sailors and ships of the 7th Naval Fleet.

With love, friendship, and respect,

Richard Junnier, Esq. (NUS Alumni, 2009 cohort)

Richard Junnier's 2009 gradation ceremony at the National University of Singapore College of Law with an LL.M. (a legal post-doctorial masters' degree) in International and Comparative Law.

Richard Junnier’s 2009 gradation ceremony at the National University of Singapore College of Law with an LL.M. (a legal post-doctorial masters’ degree) in International and Comparative Law.

Richard Junnier with Simon Chesterman at the reception celebrating the graduation of the 2009 NYU@NUS cohort. Mr. Chesterman is currently Dean of the National University of Singapore and is considered one of the world's foremost experts on International Law. Richard was his research assistant.

Richard Junnier with Simon Chesterman at the reception celebrating the graduation of the 2009 NYU@NUS cohort. Mr. Chesterman is currently Dean of the National University of Singapore and is considered one of the world’s foremost experts on International Law. Richard was his research assistant.

Rick Scott Rescheduled an Execution so Pam Bondi could go to a Fundraiser

Pieter Bruegel's ("little") Tower of Babel

Pieter Bruegel’s (“little”) Tower of Babel

In August, 2013, Governor Rick Scott rescheduled the execution date of Marshall Lee Gore from September 10th to October 1st.

Marshall Lee Gore raped, strangled, and stabbed Robyn Novick and dumped her body in rural Miami-Dade county. Marshall Lee Gore also killed Susan Roark after a chance encounter at a convenience store.  Susan Roark was 19.

Their names were Robyn Novick and Susan Roark.

Why would Governor Scott delay the execution of a teenage murdering maniac?  Was it because the Supreme Court was concerned that Gore was too mentally ill, thereby reducing his moral culpability and personal agency, (so the argument goes) to execute?

No.

Rick Scott delayed the execution of a rapist-murderer because on the day of the scheduled execution, September 10, 2013, Attorney General Pam Bondi had also scheduled a campaign fundraiser.

There was a conflict in her schedule you see–so she decided to change the date of what she presumably considered the less-important affair–the execution of the murderer of Robyn Novick, 30, and Susan Roark, 19.

It was her kickoff fundraiser, so perhaps she was concerned about the arrangements her wealthier supporters had made? Maybe she felt uncomfortable asking them to rearrange their calendars to accommodate an execution?

I wonder if the families of of Robyn Novick and Susan Roark thought it was inconvenient for themselves to rearrange their calendars to accommodate a political fundraiser? Or, instead, did they think it one further indignity for their loved one’s memory to endure?

It was a parting shot from the state of Florida expressing we don’t really care about you; we just pretend for the cameras. 

Governor Scott says he didn’t know the Attorney General’s reason when she asked for the delay.

I guess Rick Scott didn’t believe that the lives of  Robyn Novick and Susan Roark were even important enough to ask why.

But they were still going to kill somebody over it–provided they could agree on a convenient time.

As somebody who works and researches human rights issues, both domestically and in the field, I believe that a legitimate government should never kill its citizens. However, if there is going to be an execution, this is how it should take place.

Therefore, it’s not that I’m angry that this person lived for another three weeks; I would have been content to have let him breath until his natural death provided it be behind bars. I’m angry about why–this evil who was so evil he didn’t know he was evil–breathed the extra three weeks.

If you do support the death penalty and wonder why the Supreme Court allows appeal after appeal about the Constitution’s “cruel and unusual clause” and the “arbitrary application” argument–this is why.

Richard Junnier: Making a legal analysis of Fangate

After watching Charlie Crist accept the Democratic nomination for Florida Governor at his election night party, my friends and I fled the ruckus to a nearby hotel to enjoy a drink in privacy. Apparently we were not alone in this idea.

After watching Charlie Crist accept the Democratic nomination for Florida Governor at his election night party, my friends and I fled the ruckus to a nearby hotel to enjoy a drink in privacy. Apparently we were not alone in this idea.

This My View was originally published with the Tallahassee Democrat.

The organizers of the Oct. 15 gubernatorial debate have accused Charlie Crist of breaking the rules. From a legal standpoint, that simply isn’t true.

A contract is an agreement courts will enforce. To be enforceable, the agreement must be made for a legal purpose (no drug deals), must be mutually agreed to by people (yes, this includes corporations) with capacity (incorporated or 18, sober, and sane) and must include “adequate” consideration (you can’t sell your Ferrari for $1, but you can for $1 and a rug, for reasons better left to a future article). Though not ideal, some contracts can be made orally, while others, like the sale of property, must be written.

A person enters into a contract when he has “accepted” an “offer.” If a person is sent a contract but sends back a signed altered version of it, it is a “counteroffer” and thereby necessarily rejects the original contract. The second person may reject the counteroffer, accept it, or respond with another counteroffer. Under certain circumstances, the second person may accept the counteroffer through omission or inaction.

That is likely the case here:

The organizers sent both the Crist and Rick Scott campaigns an identical debate agreement, which stated that no electronic devices could be used, “including fans.” This was the organizers’ “offer.” Scott’s campaign accepted the offer and the Crist campaign signed the agreement but added the statement “With the understanding that the debate hosts will address any temperature issues with a fan if necessary.”

Florida law would treat the Crist’s altered contract as a “counteroffer” and therefore a rejection of the organizers’ offer. Assuming that the Scott campaign knew about the counteroffer, and the various parties, including the Crist campaign and the debate’s sponsors and organizers began to rely on the agreement by expending money and resources toward promoting and preparing for the debate, the Scott campaign effectively “ratified” the Crist campaign’s “Fan Amendment” through its inaction to object.

(If the organizers failed to notify the Scott campaign of the counteroffer, than the Crist campaign was still entitled to the fan and the Scott campaign’s attorney is also likely entitled to an animated conversation with the debate organizers.)

This new agreement allowed for Crist to have his fan if he felt the temperature warranted it, and created a duty for both Crist and Scott to appear for the debate. When only Crist appeared, Gov. Scott (in my opinion) was in breach of contract.

Moreover, had he not finally changed his mind after a fun but uncomfortable seven minutes, Scott may have even been liable for the damages caused to the debate sponsors, organizers and the media outlets that spent good money traveling to an event promising two candidates.

Finally, the obligatory caveat. I have seen and read what appear to be the relevant documents, but there may be other applicable documents I am unaware of, so please don’t confuse this My View for a proper legal memorandum.

Richard Junnier is the immediate past chair of the Leon County Democratic Executive Committee and also has served as its special counsel for campaign finance and election law. He practices both election law and contract law throughout Florida. Contact him at rjunnier@junnierlaw.com.

New Book Claims DNA Evidence Found Identifying Jack the Ripper

MonasteryofSanFranciscoSkulls

The crypts beneath Monastery of San Francisco, Lima, Peru (the most theme appropriate picture I could find to which I own the copyright.)

This is not the first time an “armchair detective” has claimed to have found forensic evidence identifying Jack the Ripper.

In Patricia Cornwell’s “Portrait Of A Killer: Jack The Ripper — Case Closed,” she accuses impressionist painter Walter Richard Sicker of creatively killing five Whitechapel women and sending taunting dispatches to Scotland Yard. In the book, she claims to have found DNA on a letter allegedly written by Jack the Ripper with a 99% probability correlation with DNA found on letters known to have been written by the famous artist.

Never mind the heavily trafficked and contaminated “Jack the Ripper” letter had already been known to be a hoax–in fact all of the hundreds of sickly mocking letters are probably hoaxes. Even the infamous “From Hell” letter containing a slice of kidney claiming “I ate the other half” was likely the macabre product of a medical student’s unique sense of humor. (An odd but not totally uncommon practice of the time.) Two local women were also arrested for writing hoax letters.

In any event, it turns out Sicker was relaxing and painting in France during the murders, and what with there being no Channel Tunnel at the time, if he is the murderer, he had one heck of an inconvenient and undocumented commute.

In this new book, writer Russell Edwards accuses Aaron Kosminski, a Polish immigrant barber who has historically been considered to be the prime suspect, of being the infamous murderer. Edwards believes he has the shawl of one of the victims that is rumored to have come from the murder scene of Catherine Eddowes. He claims that DNA from Eddowes’ blood and Kosminski’s semen are both on the shawl.

That’s pretty good evidence, even by Florida jury standards.

But I want to see the bench notes before making my own judgment. The methods used in collecting the ancient samples are very unique and have not yet been subject to the scrutiny of peer review.

Mr. Kosminksi had a reputation for “self abuse,” so if it is their shared DNA on the shawl I could offer an alternative theory for how it got there–but that would require me to get pretty graphic and I think we’ve delved sufficiently into the darkness already.

Recommendations for the Fifteenth Judicial Circuit and Palm Beach Judicial Bench

Richard Junnier, Esq.

Richard Junnier, Esq.

First, there are no poor candidates in this election field.

There are no kooks, crooks, clearly-unqualifieds, or those suspected of corruption. Each candidate evidences excellence, appears sincere, and has demonstrated varying levels of community commitment.

My recommendations lean toward candidates with a high volume of court experience, previous judicial experience (meaning incumbency), and whose public service has demonstrated a compassionate heart, attention to detail, and who evidence the capacity to transcend prejudice and heuristic through treating people and cases as unique and individual. I believe that these attributes optimally maximize the potential for consistent, albeit always imperfect, fairness.

When determining the varying levels of these qualities in each candidate I reviewed news reports, both traditional and social, solicited colleagues’ anecdotes, and, when available, reviewed the candidate’s websites.

One factor I refuse to consider is the political affiliation of any candidate.

Campaigning in Leon County during 2012 early voting

Campaigning in Leon County during 2012 early voting

I also chose not to review their success at fundraising, and, unless all other factors were equal, I ignored consideration as to ethnicity, gender, religion, or sexual orientation. If all other factors were equal, I sided with choices that empower representatives of historically disenfranchised communities–this is intended to further the public interest of having a judiciary as diverse as the society it judges.

These are my recommendations followed by a brief analysis of why I recommend them:

15th Circuit Judges

Group 14: Diana Lewis*

Group 30: Maxine Cheesman

Palm Beach County Judges

There are no contested elections for Palm Beach County Judge.

*Denotes that the recommended candidate is also the incumbent.

Analysis of 15th Circuit Judicial Candidates:

Group 14: Diana Lewis* 

“Nothing in this Estate will be contested. This Estate would have been opened as a routine matter on this Court’s ex parte calendar but for their same-sex marriage. There is no rational basis to apply those laws to the facts of this case. Same-sex couples are entitled to respect, dignity, and protection as any other spouse. . .”         –The Hon. Diana Lewis

Diana Lewis is the judge that ruled–as it applies to probate law–Florida must recognize out-of-state same sex marriages.*

*Specifically: Florida probate law requires that the personal representative for a decedent either be a Florida resident, a family member of the decedent, or a spouse of the decedent. Florida law prohibits recognition of out-of-state same sex marriages for “any purpose.” In this case, the person applying to be personal representative for his deceased out-of-state same sex spouse was a non-resident. Judge Lewis ruled that the “any purpose” portion of Florida law is inapplicable in this situation.

You can read her ruling, and get an idea of her nuanced writing ability, here. 

Judge Lewis has served on the 11th Circuit bench since 2003–the same year her opponent graduated from law school. Prior to that, she spent twenty years as a powerhouse attorney working with firms that are synonymous with hyper-competence. The law is not her first career, she used to be an admissions counselor for Notre Dame. She volunteers regularly with religious and secular charities and serves on the Board of Trustees for her alma mater. She also serves on multiple bar committees related to the practice and policing of attorney ethics and professionalism.

(The potential irony of this is discussed at length further below.)

Her challenger is Jessica Ticktin. Although young, she has a splendid legal resume. Mrs. Ticktin has practiced law for ten years, mostly with her father’s firm, the Ticktin Law Group (you have seen their commercials) and for four years, as managing partner. She says that she oversees 24 attorneys, 4,500 cases, and 10 offices. While the firm seems to advertise its abilities in any legal situation, she concentrates in the area of family law.

I tried to find a list of civic accomplishments, examples of volunteerism, or public recognitions. Neither her law firm nor campaign websites list anything significant.

Because Judge Lewis has twenty more years legal experience, and because she actively shows her community commitment through volunteer activities and charitable work, I recommend that she be retained.

I do this with some reluctance because Judge Lewis might be a bit of a bully.

Mrs. Ticktin has advanced an aggressively negative campaign. Citing a poll of those who practice in Palm Beach, Mrs. Ticktin claims Judge Lewis has a poor judicial temperament and a bias toward defendants in civil litigation. Mrs. Ticktin also claims Judge Lewis’ decisions have the highest rate of being overturned on appeal.

Facially, that is pretty scary, so I will analyze each of those claims.

The Palm Beach practitioners’ poll is unreliable because of its dismal response rate–10.33%. Because it is unreliable, it evidences nothing. Its use in a campaign is therefore misleading. According to the Palm Beach Post, this was explained to Mrs. Ticktin by the Judicial Practices Commission of the Florida Bar Association. Despite being admonished not to do it, Mrs. Ticktin has continued to use the poll.

You can read the full article here.

However, some attorneys have said that she yells and degrades them. The anonymous online comments are truly jaw-dropping. If you’re feeling prurient, or just want to be reminded how unkind we can be toward one another, you can look at some of them here.

Others explain that she is simply impatient with lawyers who are unprepared. Her bias is not evidenced toward defendants, but merely favors attorneys who exhibit competence. Apparently, unlike some judges, she reads every scrap of paper an attorney files prior to a hearing and gets really annoyed with those appearing before her if they have not. She takes her job very seriously.

My friends (admittedly a  very small sample) who appear before her describe her as “nice” and “extremely detailed.”

She appears to have an encyclopedic knowledge of the law, but when her decisions are appealed, quizzically, more than 40% have been overturned. That sounds high and it probably is.

However, at the relevant time, she primarily presided over foreclosure cases, and if she enters a default judgment because the homeowner is too depressed to even show up to court, there is probably going to be an appellate reversal. She does not realistically have control over that.

Beyond my hypothetical example, I researched the significance of a 40% reversal rate in civil law cases.

In a regretful effort to be thorough, I examined several academic statistical analyses of appellate reversal rates in the state courts of large counties. The one I thought to be the most relevant (though still not great) is a 2006 “Special Report” of the U.S. Justice Department’s Bureau of Justice Statistics. According to the DOJ, 15% of civil trials conclude with an appeal by the losing party, of which 43% are withdrawn or dismissed prior to appellate resolution. Of those remaining appeals, approximately 33% of trial judgments are reversed in whole or in part. Focusing specifically on real property trials (which include but are not limited to foreclosure hearings), the appeal rate increases from 15% to 24%. I would tell you what of that 24% gets reversed on appeal, but the study then divides property claims into tort and contract categories making that not feasible.

The report is here.

I tried to find a specific study pertaining to appellate foreclosure reversal rates in Florida, but did not find one. However, the website for Florida Foreclosure Attorneys, PLLC details a helpful long list of foreclosure reversals.

In other words–while high, a 40% reversal rate seems to be within the bounds of normalcy for foreclosure dockets.

Because Mrs. Ticktin’s accusations are based upon an unreliable poll, anonymous internet anecdotes, and are counterbalanced by other attorneys’ anecdotes, I instead compare Judge Lewis’ more than three-decade legal career with Mrs. Ticktin’s briefer one. I also compare Judge Lewis’ active volunteerism to Mrs. Ticktin’s apparent lack of one.

With some reservation, I recommend Judge Lewis be retained.

Group 30: Maxine Cheesman

Because of her thirty-year legal career and copious pro-bono work, I was going to recommend Peggy Rowe-Linn. Despite a lack of trial experience (none of the candidates have preformed a significant amount of Florida trial work) she would surely make an excellent judge.

Similarly, Ivy-League educated Jaimie Goodman, though the bulk of his trial experience is out-of-state, seems to have an excellent temperament, and despite specializing in employment law, has a commanding general legal knowledge. This is his third campaign for judge.

But as I wrote about Mrs. Rowe-Linn’s prodigious legal career, one thought kept attacking my mind.

“I really want to recommend Maxine Cheesman.”

First, while almost every lawyer majors in political science or philosophy, (I opted for psychology with a minor in literature thereby guaranteeing my need to go to law school if I wanted a job) as an undergraduate, Ms. Cheesman received a Bachelor and Master’s degree in Chemistry. The suggestion of a mind capable of calculus and empiricism serving as a judge is downright thrilling.

A judiciary incapable of subjecting evidence to the scientific method is why I occasionally find myself working postconviction cases involving the improper admittance of clairvoyant testimony as signaled by a psychic dog. (I really do have to write about that case someday soon!)

Second, although the span of her legal career is less than half that of Mrs. Rowe-Lynn, she has practiced law for ten years. And for that ten years she has concentrated on advancing the cause of the defenseless and the oppressed. She won the Palm Beach Bar Association’s 2012 “And Justice for All” Award for providing high quality pro-bono work to the Palm Beach community. It is no surprise that the law is Ms. Cheesman’s second career. Prior to launching her civil litigation firm in 2005, she spent 27 years in the public sector, including 15 years as a division head at the South Florida Water Management District.

Third, she consistently answers questions in the most fantastically awesome way. When asked what is the most important quality in selecting a judge, most will answer “a knowledge of the law.” When asked, Ms. Cheesman offered what I believe to be the almost never mentioned, but correct, answer–“patience.”

(That is from an interview with West Boca News.) 

I believe that Ms. Cheesman’s ten years of legal experience, supplemented with her rare and needed background in science, a 27 year public service career, and eloquent understanding of judicial temperament amid chaotic caseloads, make her at least as qualified as Mrs. Rowe-Linn.

All other things therefore being equal, Maxine Cheesman is a native of Jamaica. As the Afro-Caribbean community continues to grow in south Florida, it is time that a highly accomplished representative from that community be elevated to the Bench of the Fifteenth Judicial Circuit.

This is intended to further the public interest of having a judiciary as diverse as the society it judges.

Or as it powerfully states on Ms. Cheesman’s campaign website: “You have the power to chose who judges you.”

I recommend Maxine Cheesman.

What are your recommendations? Please share in the comments section below.

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A Brief Note about the Florida Democratic Party’s Primary for Attorney General:

If you are undecided in the Florida Democratic Party’s Primary for Attorney General, please consider voting for George Sheldon.

I don’t have a single negative comment about his opponent, but George’s experience is transcendent. His problem solving skills and ability to create consensus have been repeatedly demonstrated during his service in senior posts at the state and national level, working under both Republicans and Democrats. He has dedicated his entire public service career to advancing the cause of human rights (by breaking up human trafficking rings), protecting the defenseless (particularly abused children), and uplifting the oppressed (by reducing the error-rates in welfare and food stamp distribution).

He spent a career working for previous attorney generals, ultimately becoming chief deputy (for central Florida) to beloved Bob Butterworth. When the Department of Children and Families was in shambles–then Governor Charlie Crist tasked him with fixing it. He has also served as a senior official in the Obama administration. Prior to serving in the executive branch, George spent 8 years in the Florida House of Representatives.

You can learn more about this extraordinary human being here.

You can compare George’s record with his, also qualified, opponent’s here.