The Florida Bar

Florida Bar News

Nixon era judges celebrate 30 years on the bench

Associate Editor Regular News

Nixon era judges celebrate 30 years on the bench

Associate Editor

The year was 1970. The Vietnam War dragged on; National Guard troops killed four students at a protest at Kent State University; and Richard Nixon resided in the White House when he appointed four lawyers from Florida as federal judges.

Peter Fay, James Lawrence King, Paul Roney and Gerald Tjoflat all went through Senate confirmation hearings together.

Three decades later, that Floridian foursome celebrates 120 years on the federal bench between them.

Besides impressive longevity, there will be a laudatory occasion on September 14 when Judge King, the 72-year-old senior judge of the Southern District of Florida, will be honored with the Edward J. Devitt Distinguished Service to Justice Award, likened in legal circles to an Oscar for lifetime achievement.

They’re all friends. They’re colleagues who have watched the courts grow, caseloads skyrocket, issues shift and the country change. And they’re public servants who know what it’s like to be the target of death threats and guarded by marshals 24-7 for months at a time.

Through it all, they still love their jobs. Unlike state judges who are subject to “constitutional senility” and mandatory retirement during the term they hit age 70, federal judges “serve life plus 10,” as Judge Fay joked.

This quartet of the third branch isn’t about to retire.

“It went by in a hurry. It seems like yesterday that we were going through the Senate confirmation hearings together,” said 70-year-old 11th Circuit Court of Appeals Judge Gerald Tjoflat in Jacksonville. “I’ll be doing this till the Almighty says it’s time to quit.”

“People ask me: `Are you still working?’ And I say, `No.’ If you don’t have to do it and you enjoy it, you can’t call it work,” said 79-year-old Paul Roney, senior judge of the 11th Circuit Court of Appeals in St. Petersburg. “I don’t have to do it. I do enjoy it. And it is something I can’t imagine myself not doing.”

From his North Carolina summer home, 71-year-old Fay, senior judge of the 11th Circuit Court of Appeals in Miami, said: “I’m sitting here reading briefs.. . I’ll keep working till they put me in a box.”

And when Judge Fay looks back on his long distinguished career on the federal bench that was launched with three other Floridians, he remarks: “We’ve sure become four close, good friends.”

These four federal judges took time out to reflect on their collective 120 years on the bench:

James Lawrence King

Here’s how dangerous the job of federal judge can be: The “Black Tuna Gang” wanted Judge King dead.

Thankfully, it was the FBI who succeeded in first arresting the drug conspirators who were eventually convicted of paying $1 million to a New Jersey organized crime family to eliminate Judge King.

Three times in 30 years, Judge King and his family were guarded by federal marshals 24 hours a day for months at a time.

As Judge King said in 1990: “Courage is the ability to do what you know is right, even in the face of fear.”

He has presided over many of South Florida’s most intriguing courtroom dramas: Iran-Contra, Colombian drug cartels, Cuba’s shoot down of the Brothers to the Rescue plane, Operation Court Broom.

And when he walks to work each morning, he’s gratified to see his name on the 12-story federal justice building in downtown Miami, the city where he was born.

“Such an honor had never before been bestowed upon the living, but was entirely appropriate for the venerable Judge King,” former Florida Bar and American Bar President Chesterfield Smith wrote in a letter nominating King for the Devitt Award, administered by the American Judicature Society.

Smith’s nomination letter was joined by more than 65 other letters of support, including those from former Attorney General Griffin Bell, former FBI Chief William Sessions, current FBI Chief Louis Freeh, former U.S. special prosecutor Kenneth Starr and U.S. Sen. Bob Graham, D-Florida.

In a ceremony later this month in Miami, complete with a personal visit from U.S. Supreme Court Justice Ruth Bader Ginsburg, Judge King will receive that coveted Devitt Award.

“I’m terribly excited about the award,” said Judge Fay, who had nominated his friend for the Devitt Award a decade ago. “He’s very deserving. We’re very, very close friends. We eat lunch together three or four times a week. I don’t know of anyone in our country who has devoted more energy or time to the betterment of the federal court than Larry King.”

Judge Fay and Judge King have been friends for more than 45 years. Their wives were sorority sisters in college together. In the early ’60s, when Judge Fay served on The Florida Bar Board of Governors, Judge King was president of what was then called the Junior Bar (now the Young Lawyers Division). He recalls helping launch the Junior Bar’s big project that continues in a much more sophisticated form to this day: an educational program to help with the transition of law school graduates into the practice of law.

Judge King has known Judge Tjoflat back when they were both state circuit judges.

“I was a state circuit judge in Dade and Gerry Tjoflat was a circuit judge in Duval. I went up to Jacksonville to be a visiting judge, and Gerry Tjoflat was being sworn in as circuit judge. He came bouncing in my office and threw his arm around my shoulder and said, `Come to my swearing in, my investiture.’ And I did.

“Later on, the four of us were appointed together, and Judge Fay and I went to Gerry’s investiture as U.S. district judge. And later when he was appointed to the Court of Appeals, I went to that investiture, too. I sent him a telegram that said: `I’ve been to three of your investitures. And from now on, you’re on your own!'”

Judge King and Judge Roney were the two judges from Florida who served together on the Judicial Conference of the United States.

For the seven years he served as chief judge of the Southern District from 1984 to 1991, Judge King oversaw the building of two new courthouses, adding 23 courtrooms and chambers, and expanding from five to 16 active judges to handle cases from Ft. Pierce to Key West.

Even though he became a senior judge in 1992, King still carries the caseload of an active judge. He has written 451 published opinions. Last year, Judge King completed 54 civil and criminal trials — more than twice the national average of trials for an active judge and more than any other judge in the country.

Judge King is particularly respected for two seminal rulings in human rights law for immigrants. In

Haitian Refugee Center v. Civilett

i, 614 F.2d 92 (5th Circuit 1980), Judge King halted the mass deportation of Haitian refugees, ruling they were entitled to full hearings on their political asylum applications before the Immigration and Naturalization Service.

And in 1997, Judge King stopped the U.S. government from the massive deportation of Nicaraguan immigrants without due process, based upon the INS interpretation of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act.

Judge King also wrote the first decision under the 1996 Anti-Terrorism and Effective Death Penalty Act, awarding $187.6 million in damages to the families of three of the four Brothers to the Rescue fliers who were shot down by the Cuban government in international airspace in 1996.

His dedication to improving the federal judiciary has had ripple effects nationwide, as he has taught his “differentiated case management” or “tracking” system that categories civil cases as either expedited, standard or complex and schedules discovery and trials accordingly. Along with retired Judge Joseph Hatchett, King studied the masters’ system and English judicial procedures in London and was instrumental in shaping the U.S. magistrate judge system now relied upon heavily in the federal system.

“I do the same thing I did for the last 30 years,” Judge King said. “We always have new judges coming on, and I’m involved with the training of new judges about programs and administrative work.”

Recalling the day he and his good friend were sworn in together as judges in Miami’s “Old Central Courtroom,” Judge King said: “Judge Fay and I had what we referred to as a double-ring ceremony on October 30, 1970. . . . After he found out about the Devitt Award, Judge Fay said to me: `What are you going to do now?’ And I said: `Walk off into the sunset.'”

Judge Peter Fay

One of Judge Peter Fay’s most interesting assignments has been serving since 1994 on the three-judge panel that chooses and oversees the nation’s independent counsels, including Ken Starr.

But don’t try to pry out the details. He’s mum on the inner workings of the Independent Counsel.

What about the Clinton affair? All he’ll say is “very interesting and very unique.”

“My wife will say to me: `What are you reading?’ And I’ll give her a vague and general description. And she’ll say, `Can I read it?’ And I’ll say, `Sure honey, but after you read it, I’ll have to kill you.'”

“Most of the work we do is secret,” Judge Fay said. “But in general terms, it has given me great insight into the way our government works and I’ve gained an awful lot of knowledge I wouldn’t have any other way. The executive branch is really contingent upon the good faith and the good intentions of people who fill the positions of high-level members of the executive branch and cabinet members, and it makes you realize how important it is to have good people there.

“I’ve seen an awful lot over the past years that has made us scratch our heads and makes us disappointed. You come away with feeling that an awful lot of people go to Washington with good intentions, and while there they become convinced that the work is so important that the rules and law simply don’t apply to them. Certainly, they can’t be required to dot all the i’s and cross all the t’s, and they lose sight of the balance. I don’t think they’re bad people, but sometimes they get lost.”

When Judge Fay looks back over his 30 years on the federal bench, he says the most dramatic change has been the increasing workload.

“I don’t know how much any one judge can do,” said Judge Fay.

“Without intending to sound critical, Congress has to face the facts of the reality of the situation that the federal courts can’t handle everything.

“Federal courts were not designed to handle domestic matters or pure state law. It’s politically advantageous to try to convince your constituents you’re doing a great good by making domestic disputes civil rights violations, but there are just thousands of cases. It’s a very difficult balancing act. . . .

“Article 3 judges simply can’t handle everything that is going on in the country. Individual judges are being overwhelmed.

“Somewhere, sometime, the state legislative bodies and federal legislative bodies have to grapple with: What is the role of state courts and what is the role of federal courts?”

Another troublesome area of the federal judiciary, Fay said, is immigration law.

“Congress has simply failed to pass any semblance of an orderly statutory scheme for immigration,” Judge Fay said.

“Congress has given great discretion to the Attorney General. And Congress has created a situation where there is no orderly process to arrive at a termination point. Cases go on and on forever, and it’s created all kinds of problems.

“Congress has great, great authority in the field, but they don’t want to face the hard questions.

“No one is opposed to immigration, but Congress has failed to set meaningful quotas. We have become a borderless society. The only ones who can’t come in are the ones who do it orderly. Anyone who simply walks across the border, they’re here!”

The bigger question, Judge Fay says, is: Are we going to have a border patrol again?

And he sees no reason why branches of the armed services can’t help the U.S. Customs Service in that duty.

“That doesn’t mean don’t let people into the country. Simply preserve the rules.. . . We all know Cubans have been given all kinds of benefits and entitlements that no other group has had in this country.

“I’m not suggesting the Cubans who fled to this country didn’t deserve help. It’s often a matter of life or death. But that’s no way to approach the overall question of immigration.”

While the job has its aggravations, there are plenty of what Judge Fay calls “the hard, but fun cases,” the ones involving intellectual property rights, cases involving hundreds of millions of dollars and big contracts.

“I enjoy working with very able attorneys who do a wonderful job. I’m ruling on very, very serious questions that affect commerce and affect millions of people,” said Judge Fay, who was honored to have the American Inns of Court at St. Thomas law school named after him.

And the busy senior judge who begins most days at 5 a.m. reading to prepare for court said: “I tell my kids: `I can’t wait to get to the office each day.'”

Judge Paul Roney

Besides his main job as senior judge of the 11th Circuit Court of Appeals in St. Petersburg, where he has lived since he was four years old, Judge Paul Roney has the distinction of presiding over what has been described as America’s most secretive court: the U.S. Foreign Intelligence Surveillance Court of Review.

In a highly restricted area on the sixth floor of the Justice Department, this is where the government gets the go-ahead to conduct secret surveillance of people in the U.S. beyond the limits of usual criminal investigations.

“It’s a nice title. That’s the best part of it,” Judge Roney said with a laugh. “If the U.S. government is going to wiretap a foreign agent or a person suspected of being a foreign agent, they have to get a court order.”

To get a court order, the government needs to show probable cause that the target is either a foreign power or an agent of a foreign power who knowingly engages in clandestine intelligence gathering activities, terrorism or sabotage on behalf of a foreign power.

As a senior judge, Roney has lent his judicial services to every federal circuit court in the nation, except the D.C. circuit that doesn’t use senior judges.

It has been estimated that if the federal judiciary did not have senior judges to depend upon, the courts would need an additional 100 active judges to handle the workload.

“Right now, I’m contemplating whether to go to California next year,” Judge Roney said.

“When I sit as a senior judge, I’m an equal partner with other judges regardless their ages, or what’s deemed active judges.”

Four times a year, Judge Roney sits with the court and does some nonargument cases.

“You can work as much or as little as you’d like to. There’s no mandatory requirement to work, either. They call us juror volunteers.”

In 1969, the year before Judge Roney came on the court (what was then the old Fifth Circuit before it was divided into the new 11th Circuit in 1981), oral arguments were heard on every case.

“Now, the statistics show they’re deciding two-thirds of the cases without oral arguments.

“It’s a struggle to keep up with the workload. When I came on the court, there were two staff attorneys in New Orleans working for the court, mostly with pro se petitions. Now, I think we have 100 staff attorneys. When I came on, the judges had two law clerks and one secretary. Now, we have five clerks,” Judge Roney said.

“Of course, the trick is to make sure the judges do the judging and the staff does the research and the time-consuming records research. That’s the major change.”

Another big change, Judge Roney said, is the shift from marijuana cases to cocaine and crack.

“I don’t know if you ever see a marijuana case anymore,” he said.

“And the whole area of civil rights law really developed after the late ’60s during our term. There has been a lot of change in that kind of law. Take sexual harassment. I don’t know if I saw one for 20 years I was on the court. Now, I see one on every docket. It’s the cutting edge of the law.”

The Harvard Law School graduate and member of the Bar Board of Governors from 1967-70 had practiced law for 22 years before the opportunity to become a federal judge came along.

“As you practice law, your focus becomes narrower and narrower. If you’re going to become really good, you have to specialize. Coming on the court opens all that up,” Judge Roney said of his judicial job that requires a generalist’s broad knowledge.

“With the help of really good lawyers, we can cover a lot. The lawyers are the experts. We decide which are the most expert.”

Judge Roney recalled the only time he had to endure 24-hour federal marshal protection, after the pipe bomb assassination of Robert Vance, an Alabama federal judge, in 1989.

“It makes you appreciate what people go through who have that kind of protection all the time, like the President of the United States, just the whole invasion of privacy. I never worried about that very much as far as myself was concerned,” Judge Roney said.

“Sometimes, I was concerned about my staff. They didn’t buy into this. I did. They aren’t responsible for our decisions.”

Judge Gerald Tjoflat

Judge Tjoflat’s day begins at 5 a.m. with a workout in the courthouse gym.

“I take a shower and shave, and by 6 a.m. it’s time to grind,” he said.

And he’s been grinding away and loving it for three decades.

After serving as judge of the Fourth Judicial Circuit, he was appointed federal judge of the Middle District of Florida, then to the old Fifth Circuit Court, then to the newly created 11th Circuit that covers Florida, Georgia and Alabama, where he served as chief judge from 1989 to 1996.

He remembers the old Fifth Circuit as having fewer judges in six states than the current 11th Circuit’s three.

“As a matter of fact, I would dare say that by the mid ’70s, I probably knew everybody in the federal judiciary. It was small and very collegial.”

His federal judicial career began with the difficult cases of the civil rights era, in a time of fleshing out the law with the seminal case

Swann v. Charlotte Board of Education

, argued in 1970 and decided in 1971.

“We were going through the heavy school desegregation litigation,” he called.

“All of the cases in the South were held in the Fourth and Fifth Circuit courts of appeals. Society was very tense, and judges were under the protection of the U.S. Marshal Service.”

Nearly two decades later, December 1989, four mail bombs were sent to different addresses in the Southeast, one tragically killing Alabama’s Judge Vance, and another killing civil rights attorney Robert Robinson in Savannah, Ga.

The FBI referred to the case as VANPAC, because of the assassination of Judge Vance with a bomb sent in a mail package. And in June 1991, a federal jury convicted Walter LeRoy Moody, Jr., on charges related to the bombings.

“The person who has been convicted threatened to kill the rest of us,” Judge Tjoflat recalled. “Everybody on our court was on 24-hour protective custody for 11 months. You don’t forget those kinds of things.”

For 16 years from 1973 to 1989, Judge Tjoflat was a member of the Committee on the Administration of the Probation System of the Judicial Conference and chaired it for the last 10 years.

In that role, Judge Tjoflat was the judiciary spokesman before Congress on all matters relating to the criminal justice system, including bail reform and sentencing reform. The Sentencing Reform Act of 1984 eliminated the parole commission and changed to guideline sentencing with minimum mandatory sentences.

“The problem is, we lost the drug war a long time ago. The crime control policy right now is to warehouse offenders. The theory is to reduce crime by the number of crimes a person would commit if out on release,” Judge Tjoflat said.

“When the problem is really going to be visited upon society is when these people are released to society who were sentenced to 30 years in prison. They will be incapable of holding a job properly. And another generation or two will keep paying the tab for all of these people warehoused.. . .

“When you add the cost of incarceration with the cost of dealing with people following release, you’re talking about an enormous amount of money.”

Right now, the ramifications are just being felt from the tough 10-year minimum mandatory sentences for drug offense imposed a decade ago, he said.

Forty percent of the docket is criminal cases and drug cases are 80 percent of that, not counting habeas corpus cases, Judge Tjoflat said.

Drug cases and prisoner litigation are swallowing up the system, he said.

“If you’re going to sit in prison for 20 years and can’t get out on parole, what else is there to do? When they had a parole system and could be released at the discretion of the parole board, inmates would think twice about suing the warden.”

The long, mandatory sentences for drug offenses are called “death sentences” in federal court, he said.

“Most of the people who violate drug laws had no idea what lies in store. They may now. But they’d get into a van with a U.S. deputy marshal and say: `I just got a 440-month sentence. When am I getting out?’ And the marshal will respond: `Yes, you will do that time, less 15 percent for good time.’

“Now it begins to dawn on the inmate for the first time: `Hey, it was pretty stupid to be driving an automobile with a trunkload of cocaine from Miami to New York, only to be stopped by the Highway Patrol because of falling asleep and going over the line.’

“One of the problems is the leaders of the drug enterprise have things to bargain. But the poor slob who is the courier has no information to sell. They have nothing to give in cooperation, which would authorize asking the judge to impose a sentence below the minimum mandatory. Every judge worries about that.”

Besides the nature of drug cases and the stiff sentences, Judge Tjoflat said, the “whole federal docket has had a dramatic change” in the 30 years he’s been on the bench.

“Now we’re inundated with employment discrimination — sex and age discrimination, Americans with Disabilities Act cases, ethnic discrimination, you name it. We didn’t have any of that in 1970.. . .

“You see every kind of bizarre case. Some are highly meritorious; some are frivolous. There are a lot of disgruntled people, both employees and employers.

“We can’t keep tearing each other up. The place of employment can’t be an armed camp.”

But for Judge Tjoflat, as well as his three colleagues appointed together 30 years ago, the work place has been an exciting, sometimes difficult, always interesting place.

Judge Tjoflat has what he unabashedly calls “career love,” and what has made him happiest about his job is “the relationship you have with colleagues, whether you agree with what they say or you don’t.”

News in Photos