Florida Bar News

June 1, 2012 Letters

Letters

Merit Retention

Am I the only person not blind to the conundrum created by the do-gooders in the Bar? In 1976, they “fixed” things by placing the selection of all appellate-level judges beyond the reach of the electorate, primarily because the electorate was too ignorant and unsophisticated to understand the role of those judges and, therefore, largely incapable of making rational decisions as to who to elect. So, to protect the unwashed masses against their own ignorance, the “privilege” of selecting their own appellate judges was stripped away.

Now the same sort of do-gooders are bemoaning the unwashed masses’ inability to decide who to remove or maintain in those same judicial offices, because the unwashed have no concept of “merit” and might see fit to remove judges with whose decisions the electorate has profound disagreement. The way the do-gooders see it, the unwashed are simply incapable of deciding who to put on the bench, and then equally incapable of subsequently deciding who to keep or remove.

Basically, the do-gooders do not want the electorate to have any voice in anything to do with the judiciary, leaving the selection of that branch of government to the sole discretion of the “enlightened” lawyer class. Unfortunately for the do-gooders, such was not the intent of the founders who saw fit to memorialize the relationship between the people, generally, and the government with the words “We the people,” and not “We the lawyers,” and noted that all legitimate government draws its authority from the just consent of the governed. Nowhere did they write that judges are the ultimate source of authority and that they are entitled to rule over the people by judicial fiat. Merit retention was never sold to the unwashed as permanent tenure, but the do-gooders now protect it as such and squeal mightily if anyone suggests otherwise.

The do-gooders could have insisted, through the ballot, and as parents at the school board level, and not just by giving speeches to each other, that what used to be called “civics” be re-inserted into the K-12 curriculum, say somewhere between “Self-esteem” and “DodgeBallIsBad,” so as to abide by Jefferson’s admonishment that the remedy for an uneducated populace is education, not the stripping away of rights for the responsible exercise of which an educated populace is necessary. But, no, that would require too much personal effort, and besides, we’ve largely given over the raising of our young to the teachers’ unions, and they’re not going to give our kids back to us without one helluva fight. It’s much easier to separate ourselves from the unwashed by convincing them that they’re just too stupid to run their own lives and that they should let us do that for them.

While we see fit to entrust the unwashed with selecting the person with the nuclear trigger finger to office, some of us begrudge that same opportunity to them relative to a state judicial selection on the (unfortunately true) ground that our education system has failed to equip them with the skills necessary to a responsible exercise of that right.

Yet the do-gooders do not even acknowledge the failures of our public education system, and prefer to limit rights rather than expand knowledge. The root problem lies not with the people, but with those who prefer to keep them in the dark because in that darkness they cannot see.

Michael H. Davidson

Tallahassee

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I recently wrote a letter about this topic, but withdrew it, assuming it had been pretty well debated in previous letters. But then I read the Journal ’s President’s Page, “Why Do We Trust Judges?” Good lord! The establishment sure fears the people. President Scott Hawkins urges the Bar to “educate” the citizens of Florida about merit retention because “[s]ignificant funds are likely to be invested by various interest groups” to oppose some judges and justices. God forbid! Patrick Sweeney’s letter in May 1 News says it all — 32 years of merit retention elections. Zero removals.

The Bar’s idea of education is, “Nothing to see here, move along.” The fear of the Bar’s powers-that-be stems from the removal of three Iowa Supreme Court justices in a merit retention election last year. The amount of angst and teeth-gnashing over this result was stunning. Indeed, a great deal of ink was expended in a previous iteration of this very paper, describing the tragedy, with ample quotes from the speech given by one of the evictees. And now, we must educate our citizens to prevent it from happening here. I have news for Mr. Hawkins. The citizens of Iowa were educated, perhaps for the first time, about their “justices” and their “merit.” Apparently, they found that they were not all that just and not all that meritorious. They saw that these justices (only three were up for retention, or else there would have been a greater bloodbath) had pulled the right of gay people to marry out of a state constitution where previously no such right had been discovered.

As an aside, if it were up to me, gay people should be allowed to marry and have the same rights as heterosexual couples. But it is not up to me. And I believe it is not up to justices interpreting constitutional language that was not intended to, and does not remotely deal with that issue. The people of Iowa happen to agree with me. Regardless of where you come down on this and other issues, the citizens of Iowa and Florida have every right, under the merit retention system, to throw judges and justices out on their ears. The people of Florida deserve to be educated just like the people of Iowa. And I’m sure they will be. To the chagrin of the “ins” of the court.

I would also note that Mr. Hawkins proposes a Florida Bar campaign of “advertising, media relations, social media, and grassroots advocacy” to reach voters across Florida and “heighten voter awareness” about “this historic vote.” Two points: First, why is this vote more historic than any of the elections of the previous 32 years? And second, who is paying for this?

“32 and 0, Let ’em go!”

Raul A. Cuervo

Falls Church, VA

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F or the same reasons admirably enunciated by Mr. Drake and Mr. Hurtak in their letters in the May 15 News, I find the Bar’s supposed public education campaign on merit retention to be an unreasonable, unnecessary, and seriously misdirected undertaking.

It is also a waste of Bar funds.

Further, one would hope the Bar management is sufficiently competent to realize (without recourse to a paid PR firm study), that most Florida voters do understand they are voting on whether or not to retain each judge or justice and do not require “education” from Florida lawyers on how they should vote.

The Florida Bar should not interfere with the long-established, unbroken, democratic process, or worse, attempt to “educate” voters toward even greater retention of jurists.

William R. McCants
Neptune Beach

Professionalism

In regards to the May 15 story “Putting ‘teeth’ in professionalism,” more years ago than I would like to recall, I joined a law firm in which the senior partner, Mr. John Fite Robertson, came to Florida with his father and started practicing in 1926.

When I joined the firm, he said, “Son, I’m going to give you some good advice.” That advice has stuck with me all these years, and I quote, “Never lie to another lawyer; never even think of lying to a judge; and never have a secretary you can’t fire.”

I have lived by that advice for most of my 50 years as an attorney and believe it to be good today.

Charles Diez, Jr.
Englewood

Alimony

A recent article in the News described the discord between Family Law Section Chair David Manz and the Florida Alimony Reform (FAR) group. Manz was quoted as describing FAR as “disgruntled payors who are paying permanent alimony who want to stop paying it.”

That description is merely an ad hominem attack which misses the point of alimony reform. With very limited exceptions, permanent alimony is an antiquated, inequitable concept that is long overdue for reform. Manz claims that permanent alimony is not a factor in most divorces although he doesn’t provide any supporting statistics, nor does he acknowledge that it is a significant life-altering factor in those cases where it is awarded.

Additionally, Manz is quoted as saying that a longtime stay-at-home mother is entitled to roughly the same lifestyle she had during the marriage. That is blatantly inequitable, because there is virtually no way that both parties can maintain roughly the same standard of living enjoyed during the marriage. Post-divorce, all the synergies from living in the same house and sharing utility bills and other common living expenses are gone.

Manz cites the Pimm case as authority for seeking a modification of alimony upon reaching retirement age. The default position should be that permanent alimony ceases when the payor reaches age 65 without the need to go back to court (presuming permanent alimony does not get eliminated altogether in the future). The only exception would be where the recipient proves that doing so will put him/her in immediate peril of poverty, as Pimm holds. Moreover, footnote No. 230 of F.S. §61.14 misinterprets Pimm. That erroneous footnote lists the three contentions raised by the wife on appeal, which is not the Florida Supreme Court’s holding. Such errors like this cause confusion and are exactly what need to be corrected through the efforts of FAR.

Manz believes the provisions of §61.14 are sufficient to obtain a modification when the alimony recipient is in a supportive relationship. However, it is one thing to prove that an alimony recipient is cohabitating, but quite different to prove they are receiving financial support from that other person. In order to get such proof, the alimony payor has to incur legal fees to utilize all available discovery tools, such as interrogatories, requests for admission, subpoena duces tecum, and depositions without any guarantee of successfully getting the needed proof of support.

Next, Manz accuses FAR of making a false argument by claiming alimony laws are outdated. One obvious example of the need for change is that while the institution of marriage should be considered a legally binding contract, the law has failed to keep up with the changing times. Specifically, the marital “contract” is modified by Florida’s adoption of the “no fault” standard, which means there are no consequences for those who breach it by failing to “forsake all others.” A spouse who commits adultery can still collect permanent alimony from the person they cheated on. Although §61.08 allows a judge to consider adultery in determining how much alimony to award, unless the cheating spouse has wasted marital assets on the affair, it’s a nonissue. Therefore, it is improper to equate marriage to contract law, because in marriage the breaching party can actually come out ahead financially instead of being held liable for their breach.

Last, Manz fails to acknowledge the problem resulting from a large disparity in incomes between the spouses. He says that only in exceptional cases will the alimony payor be left with significantly less income than the recipient. That tacitly acknowledges that the payor can actually be left with less income than the recipient, even though the payor was the primary wage-earner during the marriage. Again, the notion that the alimony recipient is entitled to roughly the same standard of living as was enjoyed during the marriage is an inequitable, unsupportable position.

Those seeking alimony reform do not advocate a windfall for the primary wage- earner. Instead, there needs to be a finite time period prescribed during which the lesser wage-earner obtains the skills necessary to become self-sufficient, which is where rehabilitative alimony and temporary alimony come into play. The system we have today simply isn’t completely fair or equitable and is definitely in need of reform.

Douglas A. Balog

Palm Bay

Clerk Funding

Perhaps the anticipated cuts in funding for court clerks can have some positive outcomes. For instance, clerks might save time by sticking to their business rather than acting as if they stood in the place of judges, not to give advice but to rule. Who needs a law degree if you happen to be a clerk in the service of your average knowledgeable judge?

Without being asked, some clerks act to protect their judges or at least particular favorites. One clerk, for example, faithfully notifies plaintiffs that an assigned judge regards their pleadings as frivolous, so the papers will not be filed at all. In that jurisdiction, even an attorney with 40 years of experience and no visible disciplinary record in 10 years can find his or her papers rejected, if he or she dares to file pro se in a court where he or she is disliked publicly by a prominent local judge. As noted, the rejection is ordered by the clerk in anticipation of what the judge would do.

Clerks never seem to stop their efforts to help, whether it is desired or not. Proposing to intervene for a corporation recently, I was given forms in case I wanted to proceed in former pauperis for the applicant. Otherwise, the clerk explained, I would have to pay the filing fee for the petitioner. That another party originally had paid the initial filing fee seemed to escape that clerk’s understanding about civil proceeding. Intervention only was proposed. If it were rejected, the corporation then could re-file, but those issues could await another day.

Some offices of the clerk come up with gems. In response to motions and pleadings mailed to one office, the clerk on occasion finds that the signature on them is not in blue ink, and so it cannot be accepted for filing. Of course, there is no reason to inform the attorney. So until he or she knows that no entry has shown up in the docket, the paper simply does not get filed. That this can happen several times after the author carefully verifies the signature was in blue ink remains truly remarkable.

In another county, try to get public court records where you are required to decipher at least one of two words just to get access to case names and dockets. The first word usually is easy, but the second can be virtually unreadable for reasons which remain known only to the clerks in that jurisdiction. Other records result in redaction of everything but docket listings. Go down to the courthouse for access to the files and the clerk will insist you prove you are the attorney of record, or you have little hope of getting to see any file contents at all. In Florida, meaningful access to the courts is in the state constitution, but not really in case law, or in the judiciary itself.

Clerks at the appeals level also have their quirks. One may refuse to accept amicus filings because you participated as an attorney below for a client not involved in the appeal.  Another appeals clerk may insist that your appeal will be dismissed, because a lower court judge refuses to provide a document needed for the appeal.

Don’t get me wrong. Generally, I find clerks readily approachable and pleasant company while the filing gets done — except in a jurisdiction which insists you remain seated until your number is called, then requires you to state your business succinctly so as not to waste the clerks’ obviously valuable time. A helpful hint: If you want help there, make sure the clerk knows you are only a wimpy attorney, not someone as knowledgeable as him or her. 

Perhaps I will be sorry for these words when clerks are more or less phased out by rapidly advancing technology. But for the moment, I am still dreaming about a system where parties and lawyers make their cases to an independent judiciary — without the meddling of clerks.

Gabe Kaimowitz

Gainesville

Death Penalty

Unfortunately, we still need the death penalty. Occasionally, the human race produces a cruel, sociopathic beast; Norway’s Anders Breivik is a recent vivid example. These heartless murderers are beyond rehabilitation, and incarceration is simply a waste of money.


Despite religious and humanitarian teachings, most of the human race still wants vengeance when wronged. However, the outraged family of the victim of a heinous murder cannot pursue the killer and seek justice. Civilized societies have properly taken away private vengeance. In our legal systems, only the government can punish the murderer.

But the problem is the death penalty’s finality. Sometimes, mistakes occur, and innocent people are killed.

Because of these irreversible mistakes, I propose a higher burden of proof than reasonable doubt in death penalty cases. There should be no doubt. When the jury finds the defendant guilty beyond a reasonable doubt and the state seeks the death penalty, the jury will then determine if the prosecution has “conclusively proven” the defendant’s guilt. The courts can flesh out what constitutes “conclusive proof .” A voluntary confession corroborated by other evidence probably would be “conclusive proof.” A prosecution case that rested on the testimony of a jailhouse snitch would not.


The “conclusive proof” burden would eliminate many, if not most, of the fatal mistakes and it would be easy to implement. “Conclusive proof” in death penalty cases merits consideration.

Robert H. Schott
Palm City

Representing the Rich

Another gladiator for America’s modern Patricians, the 1 percent, proudly stepped forward in the May 1 edition to defend his representation of his “fellow citizens who have accumulated their wealth through hard work, sacrifice, playing by the rules, and taking risk in the free market.” He neglected to mention “taxpayer funded infrastructure, security, health, and public education of the workforce,” but don’t they always?

The conceit that they “did it all by themselves” is all too human, alas. He makes the rich sound downright cuddly. And who could dislike rich folks who get rich that way? I certainly don’t. I just want them to pay fair taxes, and stop being such babies about it. He then throws an “economic pie” metaphor into the middle of his argument, to make the point that a rising economy lifts all boats. His argument has earned its pie, for the last 40 years have proven conclusively that, contrary to the whispered nothings of Reagan and his Republican successors since, a rising economy did not do so, and the crashing economy their policies led to was the coup de grâce for the middle class.

American economic history has proven time and again that the rich cannot be trusted to “run” an economy. At least, no progressive, modern, and democratic economy. They do great with feudal economies, more or less. So what’s it going to be, democracy or feudalism?

There is a belief that, because the rich so obviously “merit” being rich, the poor deserve to be poor. No thought to job displacement or economic displacement beyond their control, or directly caused by the negligent or criminal malfeasance of the sainted rich. No thought to economic disadvantage caused by unexpected illness, or collapse of the family, or the successful machinations of a class in society that feels no fraternity or responsibility to society, and impels through graft a tax code reflective of their indifference or malign intent. No misgivings about their relentless manipulation of state and federal legislation to the advantage of a tiny, wealthy few. No, the poor “deserve” their miserable lot.

Our friends betray a rather pinched awareness of the history and ethics of taxation, when they point that the rich pay the lions’ share of taxes. They have the money, of course. The real question is what the context, historical and societal, of how much they pay, and their own often corrupt influence over how the rates are determined, reveals about the legitimacy of their complaints about taxes.

Too many of his rich behave as though payment of any tax at all is a crime against nature and existence, even in an era of historically low taxation. They promote the likes of Grover Norquist, whose every anti-tax pledge signed by a politician or candidate is a further subversion of the expectation of constitutional service by an officeholder. It’s not “greed” to want to keep the money you earned, but the necessity of taxes in any society is a settled question for millenia now. It becomes greed when you constantly agitate and subvert the legislative process, and societal comity as a whole, in service of your own selfishness, to avoid paying a fair and proportional amount of tax as revealed by history, and present circumstances.

Taxes during the boom time following the Eisenhower administration were 90 percent at the highest rate, and mega millionaire Mitt Romney paid an effective rate, in total, of about 14 percent in 2011. In America, today, the rich simply have nothing to cry about. And when they do, that bawling sound you hear is the “sound” of greed.

The greedy rich quite naturally favored austerity as the means by which to address the economic disaster they created. For one reason. Less chance of tax hikes, the fates of tens of millions of economically displaced Americans be damned.

We’re not all “in it together.” The rich haven’t been “in it” with the rest of us for many decades. It is a winner-take-all society.

Look to Europe to see how well austerity measures are working. Not a single European economy is expected to grow even 1 percent this year. President Obama’s rejection of selfish austerity, and embrace of stimulus spending, has the country on track for between 2 and 3 percent growth this year. Modest, but positive.

The party of the rich is the party that, during the Bush adminstration, mocked policymakers endeavoring to function in a “fact-based reality.”

Then, Vice President Cheney said, “Deficits don’t matter.” Facts mean nothing anymore to the anti-tax ideologues scratching their way onto the editorial pages of the country, to serve their own, and only their own. Something far “blacker” than the president’s policies underlies such nonfact-based criticism.

Steve Douglas

Jacksonville