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Judge in hotel stays case to get another look

The Florida Supreme Court has rejected proposed penalties for a Miami-Dade County judge who faces discipline after an investigation into free hotel stays in Miami Beach, the Dominican Republic and Mexico.

The Supreme Court, which in recent years has taken an increasingly tough stance on judicial misconduct, sent the case of Judge Maria Ortiz back to the state Judicial Qualifications Commission, which oversees investigations.

The Supreme Court on Friday unanimously ordered the commission to hold a full hearing and to “fully develop the facts regarding any misconduct that occurred, so that the (Supreme) Court, in determining the appropriate discipline, will be apprised of all the facts and circumstances bearing on the alleged violations.”

The commission recommended last month that Ortiz pay a $5,000 fine and receive a public reprimand from the Supreme Court for failing to properly disclose the 2015 and 2016 hotel stays.

That recommendation, which the Supreme Court rejected in its Friday order, came after Ortiz admitted she had not properly reported the information on financial-disclosure forms. It also came after Ortiz’s husband, Mariano Fernandez, who served as director of the Building Department for the city of Miami Beach, was charged with felony counts of receiving unlawful compensation, according to the documents filed at the Supreme Court. Fernandez was accused of helping RIU Hotel Group in Miami Beach with permitting problems and receiving free accommodations.

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Supreme Court hears arguments over judge’s Facebook friendship with attorney

Florida Supreme Court justices on Thursday parsed the question of how being Facebook friends with an attorney involved in a lawsuit differs from actual human interactions between judges and members of the Bar.

The justices suggested the wisest course is steer clear of the social media site — as they do themselves.

“It’s fraught with danger,” Justice Barbara Pariente said.

“We’re not saying judges shouldn’t be on Facebook,” attorney Maury Udell said. “Just don’t be Facebook friends with lawyers who appear in front of you. It goes back to the word I came up with at the beginning — optics. It just doesn’t look right.”

The Miami attorney represents the Herssein Law Group, which wants to disqualify Circuit Judge Beatrice Butchko from a dispute over attorney fees, on the ground that she was Facebook friends with Israel Reyes, an attorney representing the U.S. Automobile Association, the company on the other side of the case.

The 3rd District Court of Appeal refused, concluding that “a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word.”

Ethics rules don’t forbid judges from having personal relationships with attorneys as long as there’s no appearance of undue influence, Suzanne Labrit, representing the association, argued.

“There isn’t really, I would submit respectfully, any difference” between that and Facebook friendships,” she said.

Many of the justices’ questions — Justice Ricky Polston did not participate — centered on the difficulty of maintaining the appearance of impartiality in the often closely knit legal community. Judges and litigants know each other well enough to sit down to lunch occasionally — especially in small towns.

The court’s not about to tell judges never to dine with lawyers, but obviously they shouldn’t with an active litigating attorney, or one who frequently appears in the judge’s court, Pariente said.

“There’s something different about what may happen before a case, and then what happens during a case,” she said.

“I think in this case you’re on solid ground,” Pariente told Labrit. But she still suggested the wiser course is to not have “lawyers as friends.”

The Judicial Ethics Advisory Committee ruled in 2009 that a social media connection “conveys the impression that the lawyer is in a position to influence the judge” and was therefore “is not permitted,” Pariente said.

And in 2012, the 4th District Court of Appeal ruled — before the 3rd District acted — that such friendships could be ground for recusal, she said.

Pariente opted against opening a Facebook page for that very reason, she said. Other justices also said they avoided the platform.

The Judicial Ethics Advisory Committee didn’t go so far as to suggest judges purge lawyer Facebook friends, Labrit said. And those relationships range from intimate to distant strangers.

“LeBron James and I are friends on Facebook. He probably couldn’t pick me out in a lineup,” she said.

She pointed to 11th U.S. Circuit Court of Appeals Judge Rosemary Barkett’s warning that failure to observe the distinction would be “infinite motions to disqualify based on the fact that a lawyer may be friends” with a judge.

“You run the risk of having multiple motions for disqualification for any number of people,” Justice Peggy Quince said.

“Facebook friends frequently are friends of a friend of a friend of a friend of a friend,” Justice Charles Canady said.

“The idea that somehow participating in that network arrangement somehow establishes the kind of relationship with anybody who happens to come into it that would result in disqualification just is not consistent with what our case law has said about traditional friendship,” he said.

The difference, Udell said, is that one needs to affirmatively ask to friend someone on Facebook. And, unless a judge accepts their requests, they can never know nature of his or her other Facebook relationships absent an extensive discovery process.

“To avoid the appearance of impropriety, you cannot make that connection to the exclusion of the other side,” he said.

The call would be easy if a judge included an attorney among a very small number of Facebook friends, Canady suggested. “But we don’t have any suggestion in this case that there’s a circumstance like that.”

Justice Fred Lewis warned against the appearance of impropriety.

“If all judges were saints, then we wouldn’t be having all the cases we have coming over from the (Judicial Qualifications Commission). And they’re coming over on a weekly basis, my friend,” he said.

Justices weigh damages for adult child in smoker’s death

One justice described the relationship between Juanita Thurston and Gwendolyn Odom as a “textbook example” of love between a mother and a daughter.

But the Florida Supreme Court on Wednesday grappled with whether Odom, an adult, should be able to receive millions of dollars in damages from R.J. Reynolds Tobacco Co. because of the smoking-related death of her mother.

Justices questioned attorneys for Odom and R.J. Reynolds about issues related to damage awards for adult children in wrongful-death cases — as opposed to damages that can be awarded to surviving spouses or minor children. The 4th District Court of Appeal in 2016 overturned a multimillion-dollar award for Odom, prompting her attorneys to go to the Supreme Court.

David Sales, an attorney for Odom, described a close relationship in which Odom cared for her mother and watched Thurston “waste away” because of cancer. His arguments appeared to have support from Justice Barbara Pariente.

“This couldn’t have been a closer bond,” Pariente said. “This could not be a more textbook example of the love that a mother and daughter have for one another.”

But Jeffrey Bucholtz, an attorney for R.J. Reynolds, said a jury award to Odom was “an order of magnitude higher” than damages approved in similar cases in the past.

“This is not an award that is a little bit higher than awards in similar cases,” Bucholtz said.

A Palm Beach County jury found R.J. Reynolds at fault in Thurston’s death and awarded $6 million in compensatory damages. That amount was reduced to $4.5 million, because Thurston was held to be 25 percent responsible for her illness. The jury also awarded $14 million in punitive damages.

But the 4th District Court of Appeal said the compensatory-damage award was excessive for a case brought by an adult child of dead smoker. It rejected the compensatory-damage award and, as an extension, the amount of punitive damages.

“Although the evidence established that plaintiff and her mother had a very close and unique relationship, at the time of Ms. Thurston’s illness and death, plaintiff was not living with Ms. Thurston and was not financially or otherwise dependent on her,” the appeals court ruled in November 2016. “Instead, plaintiff was married with two children of her own and Ms. Thurston was living with her long-time partner. Although plaintiff took her mother to many of her appointments and was devastated by her decline and subsequent death, the relationship between an adult child living independent of their parent is simply not the type of relationship which can justify the magnitude of the plaintiff’s compensatory damage award.”

The Supreme Court, which likely will take months to issue a ruling, was divided about even taking up the case. Pariente, Chief Justice Jorge Labarga and justices R. Fred Lewis and Peggy Quince supported hearing the case, while justices Charles Canady, Ricky Polston and Alan Lawson disagreed, according to a December decision.

The Odom case is one of thousands in Florida known as “Engle progeny” cases. Such cases are linked to a 2006 Florida Supreme Court ruling that established critical findings about the health dangers of smoking and misrepresentation by cigarette makers.

Supreme Court weighs judge’s Facebook friendship

The Florida Supreme Court is poised next week to take up a case that poses a question for the age of social media: What does it mean to be a Facebook friend?

Justices will hear arguments about whether a Miami-Dade County circuit judge should be disqualified from a case because she is a Facebook friend with a lawyer for one of the parties. The outcome could have reverberations in courthouses across the state, as justices weigh whether a Facebook friendship poses the potential for bias.

The underlying case stems from a dispute between the Herssein Law Group and a former client, United States Automobile Association, about attorney fees and alleged fraud and breach of contract. The law firm sought the disqualification of Circuit Judge Beatrice Butchko because she was a Facebook friend with attorney Israel Reyes, who was hired to represent a company official in the case.

Butchko refused to step aside, leading the Herssein Law Group to take the issue to the 3rd District Court of Appeal. That court rejected the request to disqualify the circuit judge, concluding that “a `friend’ on a social networking website is not necessarily a friend in the traditional sense of the word.”

“To be sure, some of a member’s Facebook `friends’ are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty,” the appeals-court decision said. “The point is, however, many are not. A random name drawn from a list of Facebook `friends’ probably belongs to casual friend; an acquaintance; an old classmate; a person with whom the member shares a common hobby; a `friend of a friend;’ or even a local celebrity like a coach. An assumption that all Facebook `friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

But the Herssein Law Group, in a brief filed with the Supreme Court, said a judge who is a Facebook friend with a lawyer appearing before the judge violates part of a judicial code of conduct, “by presenting the appearance of impropriety, particularly where opposing counsel is not similarly sharing the same ‘special position’ or status of being a Facebook ‘friend’ of the trial judge.”

“Facebook friends have the ability to electronically share virtually anything from the intensely personal to the comically benign,” said the law firm’s brief, filed in January. “Facebook allows ‘friends’ to communicate, view, access, and comment on specific personal information that ‘non-Facebook-friends’ cannot view or see. Because petitioners’ (the Herssein Law Firm) and their lawyers do not enjoy the same ‘special position,’ Reyes has, of being a Facebook ‘friend’ of the trial judge, they are not able to freely access, view, comment, and share the same materials as Reyes. Thus, they do not enjoy a commensurate level of intimacy with the trial judge as Reyes does. It is this inclusion of Reyes and exclusion of petitioners in Judge Butchko’s inner circle and nonpublic forum that gives rise to the appearance of impropriety.”

But in response, lawyers for United States Automobile Association filed a brief that echoed the appeals court’s view of what a Facebook friendship means — or doesn’t mean.

“The Third District properly held that Facebook friendship, without more, does not convey the impression that the Facebook friend is in a special position to influence the judge,” the brief said. “As the Third District explained, “a Facebook friendship does not necessarily signify the existence of a close relationship,” … and it is therefore unreasonable for a litigant to believe he cannot obtain a fair trial before a judge who is Facebook ‘friends’ with counsel. The court’s observation that ‘a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word’ hits the nail on the head and demonstrates why petitioners’ purported fear of not receiving a fair trial is unreasonable.”

The Supreme Court decided in December to take up the case and is scheduled to hear arguments June 7.

Supreme Court takes initial pass on ‘home grow’ case

The Florida Supreme Court has turned down a request from Tampa strip club mogul Joe Redner to let him immediately pursue growing and juicing his own marijuana.

The court on Friday denied his petition to remove a delay of the effect of a lower court’s ruling. The case now is under review at the 1st District Court of Appeal.

Friday’s 1-paragraph order says Redner had “failed to demonstrate” that getting involved now was “necessary to protect this court’s eventual jurisdiction or to prevent irreparable harm.”

Circuit Judge Karen Gievers had tried to make her order last month immediately applicable.

It confirms that Redner — a 77-year-old lung cancer survivor — has the right to ‘home grow’ under 2016’s constitutional amendment on medical marijuana. His doctor says juiced marijuana is the best way to keep his cancer in remission. 

The Department of Health, which regulates the drug through its Office of Medical Marijuana Use, appealed. That caused the delay of the effect of Gievers’ ruling. The state says only licensed medical marijuana providers can grow cannabis in Florida.

Luke Lirot, Redner’s attorney, has said the state erroneously argues that the amendment doesn’t mean what it says: That qualified marijuana patients can grow their own.

The state’s legal definition of “cannabis” says it’s “all parts of any plant of the genus Cannabis, whether growing or not (and) the seeds thereof,” which Lirot says bolsters Redner’s case.

Redner, owner of the Mons Venus nightclub, is a vegan. Gievers’ order limits him to no more than eight ounces or raw marijuana daily, based on his doctors’ recommendations. It applies only to Redner and allows him to “possess, grow and use marijuana” only for juicing.

Health spokesman Devin Galetta has said the agency “fully expects Judge Gievers’ ruling to be reversed on appeal.”

State files to block effect of ‘home grow’ ruling

The state’s Department of Health says a trial court made an “erroneous conclusion” that Tampa strip club mogul Joe Redner has a constitutional right to homegrown, juiced (medical) marijuana.”

But Redner’s attorney says the state simply continues to argue – also erroneously – that the state’s constitutional amendment on medical marijuana doesn’t mean what it says.

The department filed a response Friday to Redner’s request to the state’s Supreme Court to allow him to immediately pursue growing and juicing his own marijuana.

He won a decision, now under appeal, from Tallahassee Circuit Judge Karen Gievers last month that Redner — a 77-year-old lung cancer survivor — has an immediate right to ‘home grow.’ His doctor says juiced marijuana is the best way to keep his cancer in remission, though the state countered he “also acknowledged the lack of scientific research to support this claim.”

But the state appealed to the 1st District Court of Appeal, which reinstated a delay of the effect of the ruling while the case is under review there. Redner asked that court to expedite the appeal.

The Health Department regulates medicinal cannabis through its Office of Medical Marijuana Use.

In its response, the department’s lawyers in part argued that under the “definition of ‘medical use,’ a qualifying patient is not entitled to cultivate (i.e., grow) or process marijuana because the words ‘cultivate’ and ‘process’ are not included” in the constitutional amendment approved by voters in 2016.

“Instead, the right to cultivate and process medical marijuana is reserved for” authorized medical marijuana providers, it says.

But the state’s definition of “cannabis” says it’s “all parts of any plant of the genus Cannabis, whether growing or not (and) the seeds thereof,” which Redner says bolsters his case.

While he awaits the appeal, he’s also asking Gievers to order the state to reimburse his legal costs — including $16,000 for PowerPoint presentations — because he won the lawsuit. The state later asked that the costs request be held “in abeyance” pending the appeal.

Health spokesman Devin Galetta has said the agency “fully expects Judge Gievers’ ruling to be reversed on appeal.”

Luke Lirot, Redner’s attorney, said he “disagrees with the department’s arguments” and said the stay should be lifted. 

“We have an important constitutional issue that will invariably be before them, coupled with (Redner’s) emergent medical condition,” he said. “… Time is of the essence.”

Redner, owner of the Mons Venus nightclub, also is a vegan. Gievers’ order limits him to no more than eight ounces or raw marijuana daily, based on his doctors’ recommendations. It applies only to Redner and allows him to “possess, grow and use marijuana” only for juicing.

Friday’s full 22-page filing is here.

Spin ’em: Jacksonville race track appeals slot machine denial

In another gambling case that could reach the state Supreme Court, a Jacksonville casino is appealing the state’s ending of its quest for a slot machine license.

Jacksonville Kennel Club, which does business as bestbet, filed a notice of appeal to the 1st District Court of Appeal on Tuesday after the Department of Business and Professional Regulation (DBPR) turned down its slots application last month. The department regulates gambling through its Division of Pari-mutuel Wagering.

Any addition of new slots is opposed by the Seminole Tribe of Florida, which pays the state millions each year for the exclusive right to offer slots at its casinos outside South Florida.

Moreover, a proposed constitutional amendment on the ballot this November would require the statewide approval of voters before any expansion of gambling — and its backers say the measure would have retroactive effect.

The crux of the Jacksonville appeal is last May’s unanimous Supreme Court decision denying slot machines to a track in Gretna, Gadsden County, and in other counties that passed local referendums authorizing slots. Duval was one such county, which passed a referendum by 54 percent in 2016; bestbet Jacksonville wants to add slots to its poker and simulcast wagering.

The opinion by Justice Charles Canady found that “nothing in (state gambling law) grants any authority to regulate slot machine gaming to any county.”

The opinion added, however, the “general power of non-charter counties to ‘carry on county government’ does not constitute authorization to conduct a referendum to approve slot machine gaming.” (“Charters are formal written documents that confer powers, duties, or privileges on the county,” according to the Florida Association of Counties.)

Duval is a charter county, and the Jacksonville track argues the Gretna decision doesn’t apply to charter counties.

DBPR counters that it does, and that Duval and other counties’ slots referendums weren’t allowed under a constitutional amendment narrowly passed by statewide voters in 2004.

It legalized slots at existing jai-alai frontons and horse and dog racetracks only in Broward and Miami-Dade counties and only if voters there OK’d it in referendums, which they did.

The track is represented by the Korn & Zehmer law firm of Jacksonville and the Lockwood Law Firm of Tallahassee.

A similar appeal is pending in the 4th District Court of Appeal by the company doing business as the Palm Beach Kennel Club. The Lockwood firm also is involved in that case. Palm Beach County passed a slots referendum in 2012.

Last week, that court decided to “dispense with oral argument,” meaning a three-judge panel of the court will decide the case solely on the filings.

Justices asked to consider dismissed tobacco cases

About three months after an appeals court upheld the dismissal of 73 lawsuits against tobacco companies, plaintiffs’ attorneys are asking the Florida Supreme Court to take up the dispute.

The attorneys filed a notice last week as a first step in seeking Supreme Court review, according to documents posted Monday on the court’s website.

The 1st District Court of Appeal in February backed the dismissal of the lawsuits and refused to allow attorneys to amend the complaints because the clients had died before the cases were filed. The lawsuits stemmed from a 2006 Florida Supreme Court ruling that established findings about a series of issues including the dangers of smoking and misrepresentation by cigarette makers. The ruling helped spawn thousands of lawsuits in state and federal courts, with plaintiffs able to use the findings against tobacco companies — lawsuits that have become known as “Engle progeny” cases.

After the 2006 ruling, Jacksonville attorneys Norwood Wilner and Charlie Farah filed approximately 3,700 Engle progeny cases in Florida state and federal courts, according to court documents.

But the appeals court in February backed a Duval County judge’s decision to dismiss the 73 cases because clients were dead. The appeals court said that after the cases were originally filed, attorneys “then waited eight years to backfill the case with legitimate plaintiffs and claims for the very first time.”

But in an interview in February with The News Service of Florida, Wilner disputed the appeals court’s conclusions.

Wilner said he filed the cases on behalf of clients who had come to his office, in some instances more than a decade before the Engle progeny cases were filed.

“When they came to see us, they were quite alive. We had no way of knowing they were not alive. We tried to preserve their claims as best as we could,” Wilner said. “We’ve always erred on the side of the clients. We’re disappointed that the court didn’t agree with us, but we tried to get these people some compensation for their injuries.”

Death sentence upheld in 1988 murder, sexual battery

The Florida Supreme Court on Thursday rejected an appeal by a Death Row inmate convicted in the 1988 murder and sexual battery of a woman whose badly beaten body was found in a dugout at a little-league baseball field.

Attorneys for inmate Perry Alexander Taylor challenged his death sentence based on a 2016 U.S. Supreme Court decision and because of disputed evidence about whether Taylor had sexually battered victim Geraldine Birch.

The 2016 U.S. Supreme Court decision found that Florida’s death-penalty system was unconstitutional because it gave too much authority to judges, instead of juries, in determining whether death sentences should be imposed.

That decision and subsequent Florida Supreme Court decisions led to a requirement that juries make unanimous recommendations before defendants can be sentenced to death.

A Hillsborough County jury in Taylor’s case voted 8-4 to recommend a death sentence, which was imposed by a judge.

But while the Florida Supreme Court has retroactively applied the unanimity requirement to cases going back to 2002, it has said that earlier cases — such as Taylor’s — are not required to have unanimous recommendations. Justices on Thursday rejected arguments stemming from the unanimity issue and the evidence issue, which was related to testimony by a medical examiner.

Perry, now 51, confessed to killing Birch but said it was not premeditated and that sexual contact was consensual, according to the Supreme Court ruling.

Florida Bar seeks early win in traffic ticket firm case

The Florida Bar is asking the state’s Supreme Court to give it the “W” in a case against an upstart Miami firm that’s allegedly practicing law without a license.

In its case against TIKD, The Bar is requesting for a “judgment on the pleadings,” bypassing oral arguments “when the outcome of the case rests on the court’s interpretation of the law.”

The company hires lawyers to fight people’s traffic tickets for them. If TIKD loses, it pays customers’ fines or court costs.

The Bar maintains that TIKD is in the wrong, in part because founder and CEO Chris Riley — a U.S. Navy commander-turned entrepreneur  isn’t a lawyer but his company advertises and acts like a law firm. 

“It is an undisputed material fact that (TIKD) offers legal representation to (its) customers through Florida lawyers to defend their traffic tickets,” the Bar said in a motion filed late Friday.

The company’s “advertising offers the public legal services to resolve their traffic tickets,” says The Bar, which regulates the practice of law and prosecutes the unlicensed practice of law, or UPL.

“It constitutes the unlicensed practice of law for a nonlawyer (i.e., Riley) to offer to provide legal services directly to the public,” The Bar’s motion says. “… (A) corporation owned and operated by nonlawyers (can’t) employ an attorney to give legal advice to its customers.”

TIKD’s defense has been the Uber argument: Just as the ride-booking company says it isn’t a transportation concern but a technology company, TIKD has said it’s “a technology platform,” not a law firm, on which customers pay a “fixed, pre-determined charge” to get their cases resolved.

This past Regular Session, TIKD hired Ballard PartnersBrian Ballard and Mat Forrest to get some legislative relief, but couldn’t get any traction with lawmakers.

No action on the motion had been taken as of Monday morning, court dockets show.

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