CABA BRIEFS The Magazine of the Cuban American Bar Association SPRING 2009 IS THE NEW BLACK? The controversy over Judge Cindy Lederman’s decision to allow gay couples to adopt.

CABA Installation Gala 2009

[ C A B A B R I E F S S P R I N G 2 0 0 9 ] Contents

F E A T U R E S P I C T O R I A L S 2 President’s Message Roland Sánchez-Medina, Jr. 10 CABA Installation Gala 3 Editor’s Message Augusto R. López 40 CABA/HNBA Cocktail 5 The Law Review Ed Guedes 42 HNBA Moot Court 24 Is Gay The New Black? Augusto R. López 56 Spring Mentor Reception 32 Open Forum On Gay Adoption 62 CABA Pro Bono Breakfast 45 Gov. Crist’s Appointments Armando Rosquete 51 Judicial Review Tim Ravich 54 Justice Jorge Labarga Roland Sánchez-Medina, Jr. 64 Que Pasa CABA? Manuel Crespo, Jr.

President, Roland Sánchez-Medina, Jr. Editor-in-Chief, Augusto R. López President-Elect, Manuel Garcia-Linares Immediate Past President, Marlene Quintana CABA Briefs Committee Vice President, Manuel L. Crespo, Jr. Manuel L. Crespo, Jr. Vice President, Sandra M. Ferrera Sandra M. Ferrera Secretary, Anna M. Hernández Stephen García-Vidal Treasurer, Vivian De La Cuevas-Diaz Monica Gordo Board of Directors: Anna M. Hernández Nelson C. Bellido, Raul J. Chacón, Jr., Monica Gordo, Javier López, Ariadna Hernández Ricardo Martinez-Cid, Victoria Mendez, Nicole Mestre & Monica Segura Monica Segura

CABA Briefs is published by the Cuban American Bar Association. No portion of this publication may be reproduced without prior written consent from the publisher. All rights reserved.

SPRING 2009 | CABA BRIEFS 1 [ P R E S I D E N T ‘ S M E S S A G E ] Correcting Misperceptions The amicus briefs filed on behalf of Petitioners in Campa and the gross generalizations contained therein.

or over thirty years CABA has strived to We must do more as lawyers to educate those make way for its members in the legal com- outside of our community as to who we are, and munity. Along the way, its members have what Cuban stand for as law abiding F worked hard to make a difference in the residents and citizens of this country. Many of community at large serving as both exam- our members were surprised and saddened by ples of, and advocates for, equal opportunity and commentary concerning our community con- access. tained in an amicus brief filed by the Howard University School of Law in the matter of Campa, Given the enormous strides et al. v. United States of America, we have made over the years, (currently on Petition for a Writ and the unmistakable mark our of Certiorari before The U.S. Su- culture and society has made in preme Court). In their brief, the Miami, it is sometimes easy to authors (despite a number of forget that there remains much half-hearted qualifying state- work to be done. CABA is con- ments) liken the atmosphere in sidered by many to be one of the Miami to the ‘Jim Crow society’ preeminent voluntary bars in the in the pre-civil rights South, state, and it is one of the largest when it comes to dissident voices and most influential minority within the anti-Castro move- bars. As such, we have an obliga- ment. Apparently, these authors tion to help our sister minority cannot conceive that an impartial bars address continuing inequi- and fair jury can be assembled ties in our community, and espe- from a cross section of our com- cially in other areas in munity to sit in judg- the state and country. By Roland Sánchez-Medina, Jr. ment of individuals ac- We recently had the cused of being spies for good fortune and privilege of hosting a reception the Castro regime. fofor the Hispanic National Bar Association while ththeyey were in MiamiMiami for their moot court competi- To be sure, the Howard amicus brief is not the tition,on, and were remindedreminded of thethe strugglesstr g our only one of its kind, there were several more of fefellowllow Hispanics face in other areas of the cocoun-un- itsits ilk filed (copies may be downloaded from trtry,y, which sometimes seem like ancient history www.cabaonline.com).www.cabaonline.com) It is highlighted here, herehere in Miami. We must do however, because it shows thethe needneed forf us to more.more. reach beyond our immediate environs and makemake an impact on a broader scale, if only to continue educating the public as to who Cuban Americans are today --- even if we think the beneficiaries ofof ourour efforts should know better. Let us all ac-ac- tivelytively contribute to CABA’s mission and continue pressing forward. OurOur work is far from done.done. [email protected]

2 CABA BRIEFS | SPRING 2009 [ E D I T O R ‘ S M E S S A G E ] Why Gay Adoption? Clashing opinions on whether or not we should have run a piece on gay rights.

realize that the cover story of this issue of crimination and racism that was being practiced CABA Briefs will be discomfiting to some against Hispanic lawyers by those whom did not I readers, and I am glad that prior to publica- feel that brown and black-skinned folks de- tion I circulated an email to several friends served, or were worthy of, a seat at the table. In and colleagues soliciting their feedback with re- that context, we spoke about what a wonderful gards to same. Though I was heartened by the opportunity this was for CABA to once again overwhelmingly positive response that I re- become a beacon of enlightenment on a legal ceived, more than a few thoughtful individuals issue -- a civil rights issue -- that unfortunately, expressed concern that the topic far too many people feel is just of gay rights with respect to too incendiary to be addressed adoption and marriage was a openly. It is our hope that by ad- highly personal one and might dressing this topic here within prove divisive and damaging to our pages, we can at least begin our venerable organization. to have a conversation that will hopefully lead us in the right di- While I agree that human rection. sexuality is a highly personal issue better left to the privacy of On a Lighter Note. As you may one’s bedroom, it has become have noticed, I have taken the lib- clear that the status and treat- erty of redesigning the look of ment of homosexuals in the eyes our magazine a bit. I am grateful of the law is the civil rights issue to last year’s editor, Manny of our time. Furthermore, legal Crespo, Jr., for paving the way by questions that are forced into radically transforming CABA the public forum by judicial de- By Augusto R. López Briefs in innovative and creative cisions -- such as the ruling by ways, allowing me to make Miami-Dade Circuit Court Judge Cindy Leder- some creative adjustments of my own. I am also man declaring ’s ban on gay adoption un- grateful to this year’s CABA Board for affording constitutional -- or by proposed legislation -- me the opportunity to serve as editor, and for en- such as the bills introduced by Florida Senator couraging the pursuit of substantive legal issues Nan Rich aimed at overturning Florida’s statuto- affecting our community. ry ban on gay adoption – raise precisely the sorts of issues that organizations of the stature and im- Finally, I’d like to thank all of those who con- portance of the Cuban American Bar Association tributed to the content of this issue, specifically should be confronting head-on. Ed Guedes for his trenchant “Law Review” sec- tion, Armando Rosquete for his piece on the four Though I have done my best to refrain from new Florida Supreme Court Justices, Roland Sán- editorializing within the pages of the magazine chez-Medina for his profile of Justice Jorge La- proper, I will briefly indulge myself here and barga and Tim Ravich for his timely article on offer some thoughts related to a conversation our judicial selection process. I hope that you that I had with CABA Past President, Arturo Al- enjoy this, your Spring 2009 issue of CABA varez, whom I greatly admire. He reminded me Briefs, and I encourage you to send comments – that CABA was formed as a reaction to the dis- positive or negative – to [email protected]. SPRING 2009 | CABA BRIEFS 3

[ T H E C O U R T S ] Law Review Recent appellate court decisions and how they affect you.

his column is intended to provide CABA default and entered final judgment against them. members with an update of recent case law The defendants appealed asserting, principally, T decided by the state and federal appellate that the sanctions (1) were constitutionally im- courts, which might be of interest. The listing is permissible because they punished the defen- by no means intended to be exhaustive, and in dant for invoking the Fifth Amendment, and (2) this instance, will focus entirely on recent Elev- were unduly harsh in light of the availability of enth Circuit decisions. lesser sanctions. The Eleventh Circuit affirmed on all grounds. Eagle Hospital Physicians, LLC v. SRG Consulting, Inc., ___ F.3d The Eleventh Circuit reiterat- ___, 2009 WL 613603 (11th Cir. ed that it is constitutionally per- Mar. 12, 2009) missible in a civil proceeding to draw inferences from the invoca- Lest anyone forget – there tion of the Fifth Amendment pro- may be consequences from in- vided the inference that is drawn voking the Fifth Amendment does not supply a necessary ele- during civil proceedings. In this ment of the cause of action that commercial dispute involving cy- would otherwise not be estab- bersquatting and breach of con- lished. The Court also observed tract claims, one of the defen- that the entry of default as pun- dants – who individually hap- ishment for invoking the Fifth pened to be part owner of one of Amendment was not permissible, the plaintiff companies – some- but that in this case the district how gained access to privileged court did not enter a dismissal be- e-mail communications between By Ed Guedes cause of the invocation of the the plaintiff and its lawyers. The de- Fifth Amendment. Rather, the plain- fendant then submitted the e-mails in support of tiff had introduced evidence that the defendant an affidavit submitted to the court. When it had been improperly intercepting confidential became apparent that the defendant had gained emails of the opposing party and that he refused access to privileged communications, his deposi- to answer questions about whether he could con- tion was taken, during which he invoked the tinue to do so. This evidence of misconduct es- Fifth Amendment in response to questions relat- tablished that the defendant had disrupted the ing to, among other things, how he had gained litigation, and the district court was correct in access to the privileged communications and light of the disruption to strike the pleadings and whether he continued to have such access. enter a default judgment for the plaintiff. The dismissal issued as a result of the disruption, not Upon the plaintiff’s motion for sanctions, as a direct result of the defendant’s invocation of and after briefing and extensive hearings, the the Fifth Amendment. district court sanctioned the defendants by strik- ing their answer, defenses and counterclaim. As one can readily see, there is a fine line be- The court then went on to find the defendants in tween being impermissibly punished for invok-

SPRING 2009 | CABA BRIEFS 5 [ T H E C O U R T S ]

king the Fifth Amendment, and being punished from the judicial candidates on topics of public as a result of the allowable inferences that can importance. properly be drawn from the invocation. In this instance, the Eleventh Circuit no doubt was The U.S. District Court for the Northern Dis- shocked by the knowing and egregious intrusion trict of Florida concluded the plaintiff had stand- into the attorney-client privilege. ing to assert the challenge, but dismissed the lawsuit with prejudice finding that the complaint Florida Family Policy Council v. Freeman, ___ failed to state a colorable constitutional claim for F.3d ___, 2009 WL 565682 (11th Cir. Mar. 6, 2009) violation of the First Amendment. On appeal, however, the Eleventh Circuit revisited the In this case, the plaintiff organization filed standing issues, as it was required to, inasmuch suit against the individual members of the Flori- as they were directly related to the district da Judicial Qualifications Commission to have court’s jurisdiction to decide the case. Rather two Florida judicial canons declared unconstitu- than reach the broader – and arguably more in- tional, in violation of the First Amendment to the teresting First Amendment issues – the appellate U.S. Constitution. Specifically, the two canons – court vacated the district court’s opinion finding 3E(1) and 3E(1)(f) of the Code of Judicial Con- it lacked jurisdiction to hear the case because of duct – expose a judge to potential disciplinary the plaintiff’s lack of standing. action if he or she fails to disqualify himself or herself from a case involving an issue as to which The standing analysis appears to turn on the the judge has previously expressed a public posi- fact that the plaintiff failed to challenge section tion that commits or appears to commit the judge 38.10, Florida Statutes, and Florida Rule of Judi- as to how the issue should be decided. cial Administration 2.330, both of which allow a party to move to disqualify a judge who had pre- The plaintiff organization had submitted viously expressed a public position on an issue questionnaires to judicial candidates seeking to that commits or appears to commit the judge to have them express their positions on a number of the issue’s resolution in one way or another. The issues, ranging from abortion to same-sex mar- Eleventh Circuit reasoned that declaring the two riage to gay adoption. Many of the judges “de- judicial canons unconstitutional would not pro- clined to respond,” essentially indicating that vide the relief requested because the same result they feared dis- would derive qualification from applica- from future tion of the stat- cases if the ute and related issues in the rule of adminis- survey came tration. Since before them. real relief (as The plaintiff compared to argued the two speculative canons effec- relief) could not tively “chilled” be obtained free speech be- through the cause it preclud- complaint, the ed the organiza- plaintiff had tion from receiv- failed to estab- ing information lish the third

6 CABA BRIEFS | SPRING 2009 [ T H E C O U R T S ]

prong of federal standing, and consequently, the lawyer’s duty to the system and to each other. district court lacked jurisdiction. The case involved a paralegal who sued her former law firm for violations of the Fair Labor If the plaintiff ever gets around to figuring Standards Act (FLSA) arising from non-payment how to challenge the statute and Rule 2.330, we of overtime wages. The case settled for $3,500, might eventually find out what limitations may and the district court declared the plaintiff to be be constitutionally imposed on judicial candi- a prevailing party under the FLSA. However, dates. In the meantime, Judge Carnes, the upon the plaintiff’s application for fees and costs, opinion’s author, could not resist his usual light- the district court awarded no fees or costs, find- hearted “turn of phrase.” In his concluding para- ing that the failure of the plaintiff’s lawyer to try graphs, he states: “This means that granting to resolve the case informally with the law firm Florida Family the relief it seeks against the en- before filing suit constituted improper conduct forcement of subject to the Canon 3E(1) court’s disci- and subpart (f) plinary author- will do noth- ity over law- ing to lift the yers appearing chill that pre- before it. The vents Judge lawyer ex- Stargel and plained his any other conduct by judges from stating that his responding to client had spe- the question- cifically in- naire because structed him to it does nothing file suit first, to remove the before reaching asserted penal- out to the de- ty. The chill fendant law wind from that firm. asserted penalty will still blow in from § 38.10.” He goes on to say, “We express no view on the The Eleventh Circuit affirmed using broad merits of Florida Family’s constitutional argu- language as to the duty of lawyers to the system: ment but decide only that, as the punch line goes, “Defendants are lawyers and their law firm. And ‘you can’t get there from here.’” You have to the lawyer for Plaintiff made absolutely no effort love a judge who loves language. -- no phone call; no email; no letter -- to inform them of Plaintiff’s impending claim much less to Sahyers v. Prugh, Holliday & Karatinos, ___ resolve this dispute before filing suit. Plaintiff’s F.3d ____, 2009 WL 510963 (11th Cir. Mar. 3, lawyer slavishly followed his client’s instruc- 2009) tions and -- without a word to Defendants in ad- vance -- just sued his fellow lawyers. As the dis- This is a fascinating case arising in the trict court saw it, this conscious disregard for Middle District of Florida – not for its preceden- lawyer-to-lawyer collegiality and civility caused tial value, which was severely limited by the (among other things) the judiciary to waste sig- Court – but rather for what it says of the legal nificant time and resources on unnecessary liti- profession and the Court’s perception of each gation and stood in stark contrast to the behavior

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expected of an officer of the court. The district standard for determining excessive use of force court refused to reward -- and thereby to encour- under the due process provisions of the Four- age -- uncivil conduct by awarding Plaintiff teenth Amendment is higher than under the attorney’s fees or costs.” Fourth Amendment. In other words, it is easier to prove excessive use of force during the arrest In the next breath, the Court made the fol- of an individual than it is to prove once the indi- lowing statement: “We strongly caution against vidual is already in custody at the police station. inferring too much from our decision today. So, using the facts of this case, if six officers are These kinds of decisions are fact-intensive. We struggling on a street to subdue and arrest a sus- put aside cases in which lawyers are pect and a seventh officer comes not parties. We do not say that pre- along and kicks the suspect in the suit notice is usually required or even face, a different standard of excessive often required under the FLSA to re- force applies than if those same six ceive an award of attorney’s fees or officers are struggling to re-handcuff costs. Nor do we now recommend that same suspect on the floor of the that courts use their inherent powers police station after the arrest has been to deny prevailing parties attorney’s made and that same seventh officer fees or costs. We declare no judicial comes along and kicks the detainee in duty. We create no presumptions. the face. The standard in the latter We conclude only that the district court did not situation is that the conduct must “shock the con- abuse its discretion in declining to award some science” and the force must be applied “mali- attorney’s fees and costs based on the facts of this ciously and sadistically to cause harm.” case.” Second, the Court concluded that the inde- It remains to be seen whether the strong pendent investigation conducted by the officer’s policy statements in the opinion relating to a department, which resulted in the officer being lawyer’s conduct and duty to the legal system fired for using excessive and unnecessary force, will be extended to other cases where the defen- even if correct, was not determinative because it dant is not a law firm. did not establish that the officer acted “mali- ciously and sadistically.” Fennell v. Gilstrap, ___ F.3d ___, 2009 WL 485187 (11th Cir. Feb. 27, 2009) The Court’s per curiam decision does not ex- plain why, from a policy perspective, there This case involved a claim for excessive force should be two different standards for excessive under 42 U.S.C. § 1983 brought by a detainee use of force depending upon whether the re- against an individual officer who kicked him in straint occurs during the arrest process or imme- the face after the detainee was already in custo- diately after it. The decision stands in contrast to dy. The officer claimed qualified immunity and another case decided by the Court just one day the district court granted summary judgment in earlier, involving allegations of excessive use of favor of the officer. On appeal, the 11th Circuit force during an arrest. found the district court had erred in its analysis, but nonetheless affirmed because the plaintiff McCullough v. Antolini, ___ F.3d ____, 2009 WL had failed to demonstrate as a matter of law that 469327 (11th Cir. Feb. 26, 2009) excessive force had been used. The case is interesting for a number of rea- In this civil rights case arising from a police sons. First, the Court explicitly holds that the car chase and subsequent deadly shooting of the

8 CABA BRIEFS | SPRING 2009 [ T H E C O U R T S ]

animation” corollary to the “effectively out of court” doctrine because the delay occasioned by the stay would not cause an “indefinite delay[] pending the outcome of proceedings that were unlikely to control or to narrow substantially the claims or unresolved issues in the stayed law- suit.” Lastly, the stay did not fall within the col- lateral order doctrine because that doctrine was exceedingly narrow in scope and the stay failed to implicate a sufficiently “substantial public in- terest.” suspect driver, the issue presented was whether The decision commends itself for reading – the officers used excessive force in trying to ap- as do most of Judge Carnes’ decisions – for the prehend and arrest the suspect by shooting him writing style alone. Never reticent to play on or as he drove his vehicle. While the facts of the with words, Judge Carnes’ decision frequently case, as described by the Court, generally reflect demonstrates his felicity of expression. For ex- the standard deference afforded to the split-sec- ample, perhaps poking just a little fun at court ond decisions of law enforcement officers in- decisions that carve out ever narrowing excep- volved in a late-night pursuit, what is notable tions to exceptions to already narrow doctrines, about the decision is that the officers’ conduct Judge Carnes’ decision cobbles together the was measured against an “objective reasonable- newly articulated exception to the finality doc- ness” standard. In other words, in order to trine of “effectively out of court by suspended defeat the officers’ qualified immunity, the plain- animation” and declares it to be a “narrow doc- tiff was not obligated to establish, as would be trine.” A little less subtly, though no less hu- the case the following day in Sahyers, that the of- morously, Judge Carnes makes the following ficers acted with malicious and sadistic intent. conclusion in this case involving pumping sta- Instead, the standard turned on whether what tions that transfer pollutants from one body of the officers did was “objectively reasonable” water to the other: “The central argument for the under the circumstances. Water District, as supported by an EPA regula- tion, is the ‘unitary waters theory.’ If we accept Miccosukee Tribe of Indians v. So. Fla. Water that theory in the S-2 appeal, it will wash out the Mgm’t Dist., ___ F.3d ___, 2009 WL 454180 (11th plaintiffs’ S-2 case entirely and also will flood Cir. Feb. 24, 2009) most of their S-9 case. But if we reject the unitary waters theory, then the S-9 case would remain on Whether an order granting a stay of ongoing dry ground and proceed to a determination of district court proceedings is immediately review- whether the canals and water conservation area able pursuant to 28 U.S.C. § 1291, when the stay involved in that case are ‘meaningfully distinct’ was granted to allow another, related federal water bodies.” You just know he was smiling as court proceeding to be appealed to conclusion. he wrote it. Because the stay did not seek to accommodate the exercise of independent jurisdiction by a Edward G. Guedes is a shareholder in the Appellate state court or administrative or foreign authority, Practice Group at Greenberg Traurig, P.A. He is the stay did not leave the party “effectively out of currently co-chair of the Third District Court of court” and thus was not sufficiently “final.” The Appeal’s 50th Anniversary Committee and is Board stay did not fall within the “extended suspended Certified by the Florida Bar in Appellate Practice.

SPRING 2009 | CABA BRIEFS 9 CABA President Roland Sánchez-Medina, Jr. and Past President Corali López-Castro [ P I C T O R I A L ] CABA Installation Gala 2009 Doral Golf Resort & Spa • January 31, 2009

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SPRING 2009 | CABA BRIEFS 23 IS GAY THE NEW BLACK? The controversy over Judge Cindy Lederman’s decision to allow gay couples to adopt. [ I S S U E S & I D E A S ]

everal weeks ago, during a roundtable dis- temptuous (and contemptible) preemptive strike cussion on gay rights on This Week with against the possibility of judicial recognition of George Stephanopoulos, it was none other the right of homosexuals to marry. S than George Will, Burkian conservative and arch-defender of the status quo, who was the It is significant, and perhaps even revelatory, first to observe that amongst Americans 30 years that the supporters of the Florida Marriage Pro- old and younger, being gay is roughly the equiv- tection Amendment and its ilk refer to gay rela- alent of being left-handed: to wit, unremarkable, tionships using the same terminology used in de- banal and commonplace. His point was that with cades past to inveigh against inter-racial relation- each passing generation, Americans are becom- ships: that such relationships are “unnatural” ing more accepting of gays and gay rights, in the and “against God”. Today, it is universally ac- same way that today, racial issues that would knowledged that those arguments, such as they have been incendiary in the past -- issues such as are, in favor of prohibiting individuals of differ- miscegenation -- are banal and ent racial and ethnic back- commonplace. grounds to meet, fall in love and marry are irrational to the point While that may be so, the sad of being ridiculous. Unfortunate- reality is that today, the great ly, such is still not the case for the mass of Americans -- or perhaps identically ridiculous arguments more accurately, the great mass proffered in the present day with of voting Americans -- remains respect to gay couples, a demo- steadfastly opposed to extending graphic that seems to inspire fear to homosexuals the same rights and loathing in far too many afforded to heterosexuals. One people. need look no further than to Cal- ifornia, one of the most progres- In Florida, this current back- sive states in the union, where a lash against gays is reminiscent constitutional amendment was of the movement led by Anita recently enacted that effectively Bryant in the late 1970s as a re- undid the California Supreme By Augusto R. López action to a 1977 ordinance Court’s earlier decision uphold- passed by Dade County that ing the constitutionality of gay marriage. prohibited discrimination based on sexual orien- tation. Back then, the anti-gay backlash resulted Not to be outdone, on the same day, Floridi- in not just an overturning of the Dade County or- ans rushed to the polls and overwhelmingly dinance by a margin of 69% to 31%, but also led voted for the so-called “Florida Marriage Protec- to the passage of a state law prohibiting homo- tion Amendment”. Though supporters of this sexuals from adopting, a law that has remained amendment maintained that its sole purpose was enshrined in Florida Statutes for over three de- to cherish, honor and protect the union of a man cades. and a woman, existing Florida Statutes already afforded the citizens of our state such “protec- In 2008, however, over thirty years after the tions” by prohibiting gay marriage.1 Thus, it passage of the ban on gay adoption, two circuit would seem that the true purpose behind the court decisions in Florida, one in Monroe County amendment was to protect against the possibility and the other in Miami-Dade, arrived at the same that the courts would declare the existing laws conclusion: the 1977 statute prohibiting gay banning gay marriage unconstitutional, a con- adoption was unconstitutional and could not

SPRING 2009 | CABA BRIEFS 25 Frank Gill reads to his son. Gill and his husband obtained formal parental rights on November 25, 2008.

©The , 2008. [ I S S U E S & I D E A S ]

stand. Though the State of Florida decide not to ous and unqualified support of both the Depart- challenge the Monroe County decision (thus lim- ment of Children and Families (DCF), the state iting its precedential value), the state has decided agency entrusted with administering the foster to pursue an appeal against the Miami-Dade care system, as well as the children’s Guardian County decision, and thus, as with the fight to Ad Litem, whom considered Gill and Oglesby to eradicate racial discrimination of decades past, be model parents. Thus, in 2006, when the the pa- the fight against discrimination on the basis of rental rights of the boys’ biological parents were is today being waged in the terminated under Florida law, Gill petitioned the courts. What follows is an account of the Miami- state to formally adopt John and James. Dade County decision that is currently on appeal and the aftermath of said decision. “Chapter 39 of the Florida Statutes requires the state to provide all dependent children with a THE BACKSTORY stable and permanent home. The aim is to ensure that every child in foster care is placed in a per- On December 11, 2004, the State of Florida manent home as soon as possible. Fla. Stat. determined that the level of chronic neglect and §§39.001(1)(h); 39.621(6). The law also provides emotional impoverishment to which two young that adoption is the preferred permanency boys were being subjected required that they be option for children who cannot be returned to immediately removed from their home and their biological families. Fla. Stat. §39.621(6) placed in state custody. On that same day, the …Florida’s statutory framework is explicit that state contacted a licensed foster caregiver, Frank dependent children have the right to permanen- Gill, whom agreed to accept the two children into cy and stability in adoptive placements. Fla. Stat. his home, ostensibly until a more permanent §§39.621; 39.001(1)(h). The law is also explicit home could be found. When the boys arrived at that there is a compelling state interest in provid- the Gill home in stained, tattered and ill-fitting ing such permanent, adoptive placement as rap- clothing, John, the oldest, was suffering from a idly as possible. Id…[In short], the legislature has severe case of ringworm, and his brother, James, recognized that permanency in an adoptive from an advanced inner-ear infection, neither home is a foster child’s right, and that the state malady having been properly treated.2 It quickly has a compelling interest in achieving that result became clear that John could not speak, “had in the most expeditious way possible.”5 never seen a book, could not distinguish letters from numbers, could not identify colors, and Though achieving permanency for foster could not count.”3 John’s singular concern was children in adoptive homes is the undisputed with changing, feeding and caring for his little law in the State of Florida, there is another law brother, and it was soon evident that up to that on Florida’s books that arguably works at cross- point in time, John had been James’s primary purposes with those enshrined in Chapter 39. caretaker.4 John, the “caretaker”, was all of four Fla. Stat. §63.042(3) bars adoption by gay per- years old, and his brother, James, was four sons, stating simply and unequivocally, “No months. person eligible to adopt under this statute may adopt if that person is a homosexual”. In fact, THE LAW Florida is the only state in the union that express- ly bans all gay adoptions without exception, an Though the placement of John and James ignominious distinction indeed. with Gill was only intended to be temporary, the two boys thrived in their new home, and for Ironically, however, there is no prohibition years, this foster placement received the continu- in Florida against gay individuals or gay couples

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serving as foster caregivers within Florida’s Undeterred, in January 2007, Gill filed a peti- foster care system, and the DCF routinely places tion in Miami-Dade Circuit Court requesting that children in long-term foster care with individu- he be allowed to adopt John and James, and fur- als known by DCF to be homosexual. Frank Gill thermore, that the law preventing him from and his spouse, Bruce Oglesby, were two such doing so be declared unconstitutional on equal protection and substantive due process grounds.

THE EXPERTS

During the adoption proceeding, the two sides brought in experts to make their case. The State of Flori- da argued that “the homo- sexual adoption restriction serves the legitimate state interest of promoting the well-being of minor chil- dren, as well as broader, so- cietal morality interests,… [arguing through its experts that] when compared to het- erosexuals, homosexuals ex- perience (1) a lifetime preva- lence of significantly in- creased psychiatric disor- ©The Miami Herald, 2008. ders; (2) higher levels of al- cohol and substance abuse; (3) higher levels of major de- IN AUGUST 2008, MONROE COUNTY CIRCUIT JUDGE pression; (4) higher levels of DAVID J. AUDLIN, JR. RULED THAT WAYNE LARUE SMITH affective disorder; (5) four AND HIS PARTNER, DANIEL SKAHEN, COULD ADOPT times higher levels of sui- THEIR SPECIAL NEEDS SON, MARKING THE FIRST TIME cide attempts; and (6) sub- THAT GAY PARENTS SUCCESSFULLY ADOPT A FOSTER stantially increased rates of CHILD IN FLORIDA IN OVER THREE DECADES. relationship instability and breakup.”7

individuals.6 Not surprisingly then, Gill’s peti- Notably, the state’s lead science expert on the tion to adopt John and James was denied. subject of gay adoption, clinical psychologist and Florida’s black-letter law prohibited an adoption behavioral scientist Dr. , also hap- under such circumstances, and despite the best pened to be an ordained Baptist minister who intentions of the state employees directly in- had written books with titles such as “Growing volved with this case, DCF’s hands were ulti- Up Straight: What Every Family Should Know mately tied. About ” and “Shaping Your Child’s Sexual Identity”, the latter containing the

28 CABA BRIEFS | SPRING 2009 [ I S S U E S & I D E A S ]

following passage: “The gay liberationists have By contrast, the Petitioner’s expert witnesses taken the deliberate ploy of pressing first for leg- concentrated on dispelling the prevailing myths islation to legalize the sexual behavior between related to homosexuals, homosexuality and two consenting adults. After they have succeed- adoption by citing to the latest scientific studies ed in winning the emotional war of soothing the and research from the most credible sources public’s queasy feelings about homosexual activ- available such as the American Psychological As- ity among adults, the next planned step of the sociation, the American Psychiatry Association, gay liberationists is to press for an elimination of the American Pediatric Association, the Ameri- laws of age discrimination (in the terminology of can Academy of Pediatrics, the Child Welfare the rhetoric of revolt). This means that the gay League of America, Journal of Child Develop- activists are now beginning to press for the rights ment, the Journal of Family , the Jour- of the children to engage in homosexual behavior nal of Child Psychology and the Journal of Child with adults. This will be their battle to legalize Psychiatry. Each of the hundreds of studies and !”8 reports cited had “withstood the rigorous peer review process and were tested statistically, ra- One would think that the lunatic rantings of tionally and methodologically by seasoned pro- such a seemingly unhinged individual would fessionals prior to publication.”13 serve to disqualify him as a scientific expert, but evidently not. However, his unsubstantiated tes- Among the findings, “the American Psycho- timony during the proceeding proved to be his logical Association, the nation’s leading associa- undoing. The good doctor not only proffered dis- tion in the field, concluded that same sex cou- credited studies and methodologically unsound ples: (1) want to have primary and committed re- reports, but at one point posited that “he favors lationships and are successful in doing so; (2) are the removal of a child from a homosexual house- no more dysfunctional or less satisfying than het- hold, even after placement in that household for erosexual relationships; (3) are able to form com- ten years, in favor of a heterosexual household” mitted, stable and enduring relationships; and (emphasis added).9 Dr. Rekers further discredit- (4) are affected by the same internal and external ed himself by arguing, contrary to decades of re- processes as heterosexual couples.”14 search in child development, that “such a child would recover from the removal from his family To counter the unsubstantiated claims made of ten years after merely one year in a heterosex- by the state’s experts that homosexuals experi- ual household”.10 ence significantly increased levels of psychiatric disorders, alcohol and substance abuse, and de- Faring somewhat better than Dr. Reker, the pression, one of Petitioner’s experts, Dr. Susan state’s other expert witness, Dr. Walter Schumm, Cochran, Professor of Epidemiology and Statis- was forced to admit that much of the scientific tics at the University of California, Los Angeles, community disagreed with his conclusions and explained that “taken as a whole, the research conceded the possibility that some gay parents shows that sexual orientation alone is not a proxy may be beneficial to some children.11 Taking for psychiatric disorders, mental health condi- issue with Dr. Reker, Dr. Schumm did not agree tions, substance abuse or smoking; members of that homosexuals should be banned from adopt- every demographic group suffer from these con- ing but rather acknowledged that “gay parents ditions at rates not significantly higher than for can be good foster parents, and…that the deci- homosexuals. Therefore, based on the research, sion to permit homosexuals to adopt is best made while the average rates of psychiatric conditions, by the judiciary on a case by case basis”.12 substance abuse and smoking are generally slightly higher for homosexuals than heterosexu-

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als, the rates of psychiatric conditions, substance THE DECISION abuse and smoking are also higher for Native Americans as compared to other races, the unem- On November 25, 2008, the judge hearing ployed as compared to the employed and non- Frank Gill’s petition, Judge Cindy Lederman, high school graduates as compared to high Chief of Miami-Dade County’s Juvenile Court, school graduates, for example…[Accordingly], if rendered her decision. It was based on two every demographic group with elevated rates of equally compelling arguments, either of which psychiatric disorders, substance abuse or smok- alone would have sufficed to defeat Florida’s ban ing were excluded from adopting, the only group on gay adoption. eligible to adopt under this rationale would be Asian American men” (emphasis added).15 (i) Substantive Due Process and Chapter 39 of Florida Statutes. Finally, Petitioner’s experts introduced stud- ies from preeminent psychology and psychiatry The first argument was based on the substan- journals to support their conclusion that “chil- tive due process rights of foster children memo- dren raised by homosexual parents do not suffer rialized in Chapter 39 of Florida Statutes which, an increased risk of behavioral problems, psy- as noted supra, recognizes that permanency in an chological problems, academic development, adoptive home is a foster child’s right, requiring gender identity, sexual identity, maladjustment, the state to provide all dependent children with a or interpersonal relationship development.”16 stable and permanent home.18 The Court noted Moreover, the research further revealed that that the Florida Supreme Court had “recently re- “children raised by gay parents develop social established the child’s right to permanency doc- relationships the same as those raised by hetero- trine and confirmed that adoption is the highest sexual parents…and do not experience discrimi- preferred form of permanency. In G.S. v. T.B., 985 nation or ostracization any more than children of So.2d 978 (Fla. 2008), the [Supreme Court] af- heterosexual parents…Children have always and firmed the recognition of the state’s compelling will continue to tease and bully their peers about interest in providing ‘stable and permanent homes their parent’s appearance, employment, ethnic for adoptive children…and to enforce the child’s background, parenting style, or sexual orienta- statutory right to permanence and stability in adop- tion. A child that is teased views one reason no tive placements…’ Id. at 982 (emphasis added).”19 less hurtful than another. [Thus]…, the exclusion of homosexuals from adoption does not shield a In Florida then, “laws that would interfere child from being teased by his/her peers”. with a child’s fundamental right to be free from unnecessary restraint, rather than aid the state’s After carefully considering the collective interest in achieving adoptive permanency for expert testimony presented by Petitioners and the child, are subject to enforcement as imping- the state, the Court concluded that “there are no ing on the child’s rights”, and thus laws such as differences in the parenting of homosexuals or Florida’s ban on gay adoption “that burden fun- the adjustment of their children…[B]ased on the damental rights protected by the substantive due robust nature of the evidence available in the process clause are subject to strict scrutiny” field, the Court [was] satisfied that the issue is so (emphasis added).20 far beyond dispute that it would be irrational to hold otherwise; the best interests of children are Applying the strict scrutiny test to Fla. Stat. not preserved by prohibiting homosexual §63.042(3), the Court concluded that, “in pre- adoption”.17 cluding otherwise qualified homosexuals from adopting available children, [the challenged stat-

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ute] does not promote the interests of children (ii) Equal Protection and Rational Basis and in effect, causes harm to the children it is meant to protect…The exclusion causes some As noted, the substantive due process argu- children to be deprived of a permanent place- ment (and the corresponding strict scrutiny anal- ment with a family that is best suited to meet ysis) alone would have sufficed to defeat Fla. their needs. As it relates to the case at bar, John Stat. §63.042(3). However, the Court articulated a and James were placed second argument that re- into the foster care place- veals a great deal about ment of Petitioner [Gill] the anemic nature of the by the State. The record arguments proffered by clearly reflects that it is in the state. The second ar- their best interest to gument – an equal protec- remain in this placement tion argument -- was permanently and to be ad- based on Article I, §2 of opted by Petitioner. How- the Florida Constitution ever, the statutory exclu- which states, in relevant sion deprives John and part, “All natural persons, James the ability to be ad- female or male alike, are opted by their caregivers, equal before the law.” Gill to whom they are strongly and the children had bonded. Failure of the argued that Fla. Stat. state to effectuate a per- §63.042(3) “violates their manent placement for right to equal protection John and James with ap- under the law because it plicants willing and quali- singles out homosexuals fied to assume the task and children raised by ho- creates the risk of sever- mosexual caregivers for ing the children’s healthy unequal treatment with- attachments and causing out serving a rational profound long-term negative basis. Similarly, the children consequences to their develop- JUDGE CINDY LEDERMAN posit[ed] that they [were not ment or relegating them to a being] offered equal protection childhood and adolescence without a permanent because one class of children placed by the state home in foster care”.21 with heterosexual caregivers have the potential to be adopted by their caregivers, while other In short, the Court found that “Fla. Stat. children who are also adoptable, but placed by §63.042(3) violates the children’s rights by bur- the state with and gay men cannot be ad- dening [the children’s] liberty interest in being opted by their caregivers.”24 free from undue restraint in state custody on one hand [while] simultaneously operating to deny However, unlike the substantive due process them a permanent adoptive placement that is in argument which required a strict scrutiny analy- their best interests [on the other].22 Accordingly, sis, the equal protection arguments proffered by the Court refused to “permit such a double- Gill and the children required only that the Court edged sword to continue to lie dormant in apply the lowest level of scrutiny in order to de- [Florida] law, to the peril of children like John termine whether the gay adoption ban was con- and James.”23 stitutional: the rational (continued on page 34)

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In today's world, a judge needs to be afforded the opportunity and discretion (on a case by case basis) to determine what is in the "best interest of the child", as opposed to banning and singling out a group of people because of their sexual orientation who can very well be loving and fit parents to children who would otherwise not have that opportunity.

-- Sandra Ferrera, CABA Vice President

Religion aside, I do not believe the state has any right to dictate whether homosexuals can marry. So long as the union is not a sham, more power to them. The same goes for adoption. So long as they are found to be both financially and psychologically fit, adoption should be allowed. Some would argue that being homosexual is evidence of a psychological defect. That opinion has been, I believe, sufficiently discredited to merit a response. -- Raul Chacón, CABA Director

Children have a right to the security of a stable, loving home. That right should not be sacrificed because of society’s prejudices. It is time to repeal Florida’s shameful ban on gay adoption.

-- Sen. Nan Rich (D-Weston)

What could possibly be wrong with a child being adopted by a loving couple of any kind? There is such a deep and widespread need for the care and placement of children, and yet people expounding moralistic principals against gay adoption don't seem to understand that while we waste time and resources fighting to deny willing gay parents, many children lose their chance to be loved.

-- Roland Sánchez-Medina, Jr., CABA President

Homosexuals should be treated like any other persons, period. Of course they should be allowed to adopt and marry. -- Arturo Alvarez, CABA Past President

How can one believe in equality under the law and not believe that gays should be allowed to adopt children when it is in the child's best interest? Similarly, how can one believe in equality under the law and not believe that gays should be allowed to marry in the State of Florida? Put simply, the best way to treat everyone equally is to do so and demand that it be done. Moreover, as a general rule, shouldn't we really be making it easier for people to commit to children and to each other?

-- Luis Suárez, CABA Past Director

It should be far from anyone who is part of a minority to agree with any type of discriminatory limitation on another group. There is no more sense in prohibiting gays from adopting on the basis of 'moral' grounds, than there would be to prohibit a person of color from adopting a white child (and vice-versa) on the basis of "cultural" differences. Surely in the age of the “post-racial debate” we can find something better to argue about. -- Manuel Crespo, Jr., CABA Vice President

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I think there are too many kids out there in foster homes that are in need of good parents and a happy home, and think any responsible, caring adult should be allowed to adopt if he/she/they really want(s) a child – whether straight, gay, single, divorced, black, white, Hispanic, what have you. Love is “color blind”, and we must look past this to afford abandoned, orphaned, neglected kids with a chance at hope, happiness and life. -- Annie Hernández, CABA Director

I can't think of any other area of the law where the controlling standard for deciding a case is disregarded simply by virtue of the party being part of an insular group in society. In adoption cases, the standard is and should be in every case the best interests of the child. There is no intellectually honest basis for abandoning that standard in a case because the adopting party is gay or lesbian. The standard is applied even in scenarios where the adopting party is a former drug addict, felon, homeless person or divorced single parent -- no other group of people, regardless of how classified, is automatically excluded as an end run around the "best interests of the child" standard. -- Ed Guedes

It should be unacceptable to deny any minority group an opportunity available to the majority based solely on their minority status, whether it is the right to marry or the right to adopt. If a gay couple can meet the stringent adoption standards that currently exist, they should not be denied the right to provide a child, who would otherwise languish in the foster care system, a loving family simply because there is prejudice and ignorance regarding gay lifestyles. -- Michele Samaroo, Wilkie D. Ferguson Bar Assoc. President

As a judge in Juvenile Court, I saw hundreds of children languish in foster care because no permanent homes could be found for them. This ruling does nothing more than open up another option for a judge to give a few of these children a permanent home. The old law, passed by the legislature during the Anita Bryant era, states that gay people can never be qualified to adopt. This new court ruling simply states that each case should be decided on the merits of what is in a child's best interest. If a person is otherwise capable of providing a good home for a needy child, isn't that the most important thing? Our laws give tremendous lip service to the best interst of children. It's only fitting that a judge should be able to consider all the facts of any particular case, and not be limited to reviewing only those facts of which the biggots approve, before deciding what is best for any child.

-- Judge David Young

Florida is the only state in the US that does not permit adoption of children by people who self identify as being homosexual. It is an antiquated statute passed by the legislature as a punitive measure with apparently no thought as to the detriment to the children in this state that need to be in a permanent family. Florida does permit foster care parents to be gay/lesbian and have the children live with same for extended periods of time. There are now over 3,500 foster children in the system and a significant percentage of them could and would be adopted by a homosexual if permitted. It is time to move forward in Florida and repeal the statute by legislative means or finding that it is unconstitutional through the court system. All voluntary bar associations, including CABA, should file amicus briefs in support of Judge Lederman’s determination that the statute is unconstitutional. As for same sex marriage or civil union, one need only look to other jurisdictions to see that those who want to commit to a permanent relationship with all of its responsibilities and liabilities should be granted the ability to do so. The states within the United States that are granting full marital rights, no matter what they call them, are mostly in New England, the birthplace of democracy in the United States. Other countries that permit marriage rights include the United Kingdom, Canada, South Africa and others. The time has arrived to recognize equality for all human beings to love and be loved by whom each wants. Full rights need to be granted to same sex couples through a legalization of the relationship. We hope that Florida will be a leader in this regard.

-- John Kozyak and Richard Milstein

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(continued from page 31) basis test. This was be- per se, disconnected from any separate legiti- cause, in the context of equal protection, the case mate interest, is not a legitimate government in- did not involve a fundamental right or a suspect terest to justify unequal treatment.”27 class. Though the courts in California deter- mined as far back as 2000 that homosexuals com- Accordingly, Judge Lederman ruled that the prise a suspect class deserving of strict scrutiny ban against gay adoption memorialized in Fla. analysis in the equal protection context, this was Stat. §63.042(3) was dead; not only was it viola- not the case in Florida, and thus the Court limit- tive of the substantive due process rights of ed itself to the rational basis test.25 Florida’s foster children, but it also violated the equal protection rights guaranteed to both Gill Under rational basis scrutiny, Fla. Stat. and his children by Florida’s Constitution. And §63.042(3) would be upheld if there were any rea- thus, on November 25, 2008, what was already sonably conceivable set of facts that could have true in spirit, became true in practice: John and provided a rational basis for the discrimination James formally became Frank Gill’s sons. to which Gill and the children were being sub- jected under the statute.26 However, even apply- THE AFTERMATH ing this exceedingly low threshold, the State of Florida failed to meet its burden with the three At this point, the State of Florida could have “rational basis” arguments that it proffered in let the decision lie, as it had done a few months support of its contention that the statute served earlier with the Monroe County decision, limit- the best interest of foster children. The state’s ar- ing its precedential value to Miami-Dade guments were that (1) homosexuals experience County. However, on this occasion, the state has higher levels of stressors (e.g., alcoholism, drug decided to pursue an appeal, a move that jeopar- abuse, mental health disorders, etc.) that are dis- dizes the viability of the statute going forward: advantageous to children than do heterosexuals, an appellate ruling on the decision would, prac- (2) children placed in homosexual households tically speaking, apply across Florida, and if it will suffer greater social stigmatization than were challenged by a sister appellate court, the those placed in heterosexual households, and (3) issue would undoubtedly land before The Flori- the ban on gay adoption protects society’s da Supreme Court. Various groups have mobi- “moral interests”. lized on both sides of the ideological divide and are expected to submit amicus briefs to the Third In holding that the state unequivocally failed District Court of Appeal with respect to the to meet its burden under the rational basis test, Lederman decision. the Court found that (1) all credible evidence proves that “homosexuals are no more suscepti- One of the groups that will be submitting a ble to mental health or psychological disorders, brief on behalf of Gill and his sons is The Florida substance or alcohol abuse or relationship insta- Bar’s Family Law Section. The Family Law Sec- bility than their heterosexual counterparts”, (2) tion is a voluntary bar association composed of “it is a well established and accepted consensus thousands of members throughout Florida, most in the fields [of child psychology, psychiatry and of whom are attorneys who practice in the area of development] that there is no optimal gender family law and have had exposure to Florida’s combination of parents”, and (3) even though the foster care system. Thus, when the state filed its contradiction between allowing homosexuals to appeal of the Lederman decision, The Family serve as foster parents but at the same time pro- Law Section’s Executive Committee voted unan- hibiting them from adopting would alone defeat imously to submit an amicus brief on behalf of the public morality argument, “public morality Gill and his children. And on January 30, 2009,

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the Florida Bar Board of Governors (BOG) voted, the South Florida periodical that reports on, again unanimously, to allow the Family Law Sec- among other things, news in the legal profession, tion to proceed with its brief. reported that the Florida Bar was “coming out in a big way for gay adoption”, before retracting the This is in marked contrast to years past, statement in a follow-up piece that criticized the when the same Family Law bar for equivocating on Section petitioned the bar such a watershed civil to allow it to lobby to repeal rights issue. And in another Fla. Stat. §63.042(3) (2004), highly publicized case, a and later to allow it to conservative advocacy lobby to amend the statute group known as “The Lib- to allow some homosexual erty Counsel” has filed a foster parents to adopt petition with the Florida (2005), in both cases being Supreme Court seeking to denied by the BOG. This enjoin the Family Law Sec- time, however, many mem- tion from submitting its bers of the BOG who had amicus brief. been reluctant to authorize lobbying with respect to the After a review of The gay adoption issue, did not Florida Bar’s rules, it seems hesitate to approve the clear that the bar acted ap- filing of an amicus brief propriately in voting to with respect to the case cur- allow the Family Law Sec- rently on appeal. In the tion to proceed. Under bar words of President-elect of rules, sections such as the The Florida Bar, Jesse Family Law Section need Diner, “I adopt everything approval from the BOG Ervin says”, referring to before filing briefs. The test Ervin González, Miami liti- that the BOG applies when gator and one of the most in- it reviews a section’s request fluential and outspoken ATTORNEY BARRY RICHARD consists of two prongs: (1) members of the BOG on this whether the subject area falls issue. Diner added, “It is true that the last time, within that section’s jurisdiction and expertise, we were dealing with the issue of a section lob- and (2) whether the subject area is one in which it bying. This is a section that wants to file an is permissible for the Bar to become involved. amicus brief. This is about specific children in this These rules were enacted to assure compliance case. It is about constitutionality. It is different.” with the criteria established by both the U.S. Su- preme Court as well as the Florida Supreme Unfortunately, because of the arguably Court with respect to political and ideological arcane rules and regulations that govern The issues on which The Florida Bar may take a Florida Bar, the vote by the BOG was initially position.28 misconstrued by some (including this author) as an endorsement of the Lederman decision by The As summarized by Barry Richard, the attor- Florida Bar as a whole – rather than by the volun- ney representing The Florida Bar in its case tary Family Law Section of The Florida Bar. In against The Liberty Counsel, under bar rules, one notable instance, the Daily Business Review, “the default is that a section [like the Family Law

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Section] can file an amicus brief. If the subject this issue…The bar has no intentions of rescind- matter is within the section's jurisdiction and ing its January 30 vote regarding this amicus beyond the area in which the bar is permitted to brief”. be active, the Board cannot block it. The only time the bar can block the section is when either As we go to print, the issue of the propriety (i) the subject is outside the section's jurisdiction of the Family Law Section’s amicus brief is still or (ii) the bar is permitted before the Florida Su- to deal with the issue and preme Court, and the the [BOG] believes the po- amicus brief has not yet sition of the section is con- been filed with the Third trary to the position of the District Court of Appeal. bar.” Since neither was the Unless the Supreme Court case with respect to the rules otherwise, the Family Law Section’s peti- Family Law Section will tion, it follows that the bar be able to file its brief im- would authorize the mediately after Respon- Family Law Section to dents -- in this case, Gill proceed. and the children -- file theirs sometime in mid- In defense of the bar’s May. actions, John “Jay” White III, the President of The THE PROPOSED LEGIS- Florida Bar, dispatched a LATION strongly worded letter to the head of The Liberty The controversy over Counsel admonishing that the Lederman decision has organization for miscon- not been limited to the struing the bar’s role with courts. In December 2008, respect to the proposed as she has done every year amicus brief. In his words, since being elected to the “The Florida Bar’s amicus ac- Florida Senate in 2004, Sena- tivities stem from this JOHN “JAY” WHITE III tor Nan Rich, a Democrat organization’s authority to President of The Florida Bar representing Florida’s 34th provide information and District (covering portions of advice to the courts and other branches of gov- both Miami-Dade and Broward Counties), intro- ernment on legal matters…I understand your duced a bill that would effectively neuter Fla. sentiments regarding past actions of prior gov- Stat. §63.042(3). Senate Bill 460 (SB 460) would erning boards concerning the advocacy of homo- allow for adoption by homosexuals under two sexual adoption. However, last month’s vote was limited circumstances: (1) if a child has resided the product of a different board, on a new day, with a gay foster caregiver, recognizes the care- and beyond matters of influencing public policy giver as his or her parent and a judge determines in the legislative arena. The [BOG] gave particu- that adoption would be in the child’s best inter- lar deference to the fact that this is now a legal est, or (2) if a child’s guardian is gay, both of the question, in a court of law, where substantive child’s biological parents are dead, and the par- commentary by lawyers should be registered by ents expressed an intention prior to their deaths those who are among the most authoritative on that the guardian adopt the child.

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However, this year, emboldened by the pect class as the California Fourth District Court Lederman decision, the senator has also intro- of Appeal did in People v. Garcia, 77 P.2d 1269 duced a second, parallel bill, Senate Bill 500 (SB (Cal. 4th Ct. App. 2000), as the Gill case heads to 500), this one simply repealing Fla. Stat. Florida’s Third District Court of Appeal (and §63.042(3) altogether. Unfortunately, the Florida perhaps ultimately to The Supreme Court of legislature is controlled by Republicans who gen- Florida), one can only hope that our own appel- erally speaking have been late courts find the argu- historically unfriendly to- ments outlined in the wards extending to homo- Garcia decision compelling sexuals the same rights af- enough to declare homo- forded to heterosexuals. sexuals a suspect class in Thus, for the past four Florida once and for all. years, the amendment to the statute proposed by George Will may be Senator Rich in SB 460 has right that the issue of gay been roundly defeated by rights is fast becoming pro- the legislature, and it is a saic, destined to be viewed fait accompli that this year, historically through the SB 460 as well as SB 500 same lens as we now view will both die in committee racial integration, the without a vote. rights of women, and in- ter-racial marriage. How- THE FUTURE ever, the current resurgence of hostility towards gay The modern-day civil rights cannot be denied, rights battle over gay and in a free society such as rights is being waged in the ours, it will not suffice to courts and legislatures passively accept change via throughout our country, the eventual transfer of and while it is true that power from a less enlight- with every two steps forward, FL. SENATOR NAN RICH ened generation to a more en- the cause takes one step back, lightened one. Laws rooted in progress is nevertheless being made. Witness the bigotry and hatred whether against Blacks, recent passage by Vermont’s legislature -- after women or homosexuals should not be allowed to overriding the governor’s veto -- of legislation le- stand, and it is incumbent upon us all to do ev- galizing gay marriage, as well as the unanimous erything in our power to assure the equal treat- decision of the Supreme Court of Iowa (a deci- ment of all people under the law. sion authored by a Republican appointee) to rec- ognize the right of homosexuals to marry. Augusto R. López practices commercial litigation and intellectual property law with the firm of Sán- In Florida, the Gill case and Judge Cindy chez-Medina, González, Quesada and Lage in Coral Lederman’s well-reasoned decision may yet lead Gables. Email your comments to [email protected]. the way towards championing the rights of ho- mosexuals throughout our state. And even 1-- Fla. Stat. §741.212 though Judge Lederman, perhaps for strategic reasons, chose not to declare homosexuals a sus- 2-- The boys are referred to as John and James in

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order to protect their identities. 18-- Id. at 39.

3-- In the Matter of the Adoption of: John Gill and 19-- Id. at 39. James Gill, Case No. Redacted (Fla. 11th Cir. Ct. November 25, 2008) at 4. 20-- Id. at 40.

4-- Id. at 3. 21-- Id. at 44.

5-- Id. at 38-39. 22-- Id. at 43.

6-- Though Florida does not extend the civil right 23-- Id. at 43-44. of marriage to homosexual couples, in 2001 Gill and Oglesby engaged in a ceremony wherein 24-- Id. at 45. they acknowledged their commitment towards each other by exchanging rings before gathered 25-- See People v. Garcia, 77 P.2d 1269 (Cal. 4th Ct. loved ones. Since that time, they have considered App. 2000). themselves spouses, and thus, in deference to their commitment to one another, I refer to them 26-- In the Matter of the Adoption of: John Gill and as such. James Gill, Case No. Redacted (Fla. 11th Cir. Ct. November 25, 2008) at 48. 7-- In the Matter of the Adoption of: John Gill and James Gill, Case No. Redacted (Fla. 11th Cir. Ct. 27-- Id. at 50-51. November 25, 2008) at 10. 28-- See Keller v. State Bar of California, 496 U.S. 1 8-- Id. at 22-23. (1990), and The Florida Bar Re: Schwarz, 552 So. 2d 1094 (Fla. 1989). 9-- Id. at 21. 29-- SB 500 is co-sponsored in the Senate by Sen- 10-- Id. at 21. ators Smith, Gelber, Sobel, Justice and Aronberg. In the House, the sponsor on this issue, Rep. 11-- Id. at 24. Mary Brandenburg, only filed the complete repeal language, refraining from filing the ap- 12-- Id. at 24. proach outlined in SB 460.

13-- Id. at 36. House members are limited to filing just six bills, and she did not want to use two of her allotted 14-- Id. at 12. bill slots on the same issue. In the House, this bill is co-sponsored by Representatives Abruzzo, 15-- Id. at 13-14. Brise, Bullard, Culp, Luis Garcia, Gibbons, Audrey Gibson, Heller, Jenne, Kiar, Kriseman, 16-- Id. at 16. Long, Pafford, Porth, Rader, Randolph, Reed, Re- hwinkel Vasilinda, Sachs, Sands, Ron Saunders, 17-- Id. at 37. Schwartz, Skidmore, Steinberg and Waldman.

38 CABA BRIEFS | SPRING 2009

[ P I C T O R I A L ] CABA / HNBA Cocktail Novecento Restaurant • March 5, 2009

he Cuban American Bar Association spon- Mutual, Exxon Mobil, Microsoft and AT&T). The sored an after-party networking reception CABA event was another step forward in T in honor of the Hispanic National Bar CABA's and the HNBA's efforts to find opportu- Association’s (HNBA) Mid-Year Conference nities to work together and forge stronger ties. that took place on March 5th and 6th in Coral Gables, Florida. The HNBA Mid-Year Confer- The HNBA Mid-Year Conference was ence was a tremendous success, and featured Chaired by Richard C. Lorenzo, of Hogan & over 170 conference participants from around the Hartson, LLP and Jorge A. Mestre, of Rivero, country, a multi-day CLE program, a national Mestre & Castro, LLP. The HNBA Mid-Year Con- moot court competition, and a speed networking ference was held in conjunction with the 14th event where participating law firms were able to Annual HNBA National Moot Court Competi- meet senior in-house counsel from across the tion that was chaired by two of CABA's own, United States (including from multi-national Jorge A. Mestre, and Augusto López, of Sán- companies such as Nike, Office Depot, Liberty chez-Medina, Gonzalez, Quesada & Lage, LLP.

40 CABA BRIEFS | SPRING 2009 [ C A B A / H N B A C O C K T A I L ]

SPRING 2009 | CABA BRIEFS 41 [ P I C T O R I A L ] HNBA Moot Court Competition F.I.U. College of Law • March 5-6, 2009

he Florida International University College University of Texas, and are proud that a team of Law is honored to have had the opportu- from FIU received one of the four prizes awarded T nity to host this year’s His- in the competition for best brief.” panic National Bar Associa- tion (HNBA) Moot Court Compe- The FIU College of Law stu- tition. This competition brought dent body was also happy to many new faces to our campus. assist the HNBA. Thirty-one vol- If you have not yet seen our unteers stepped forward to serve amazing facility, Rafael Diaz as bailiffs during the competition Balart Hall is a 162,000-square- and assisted with the HNBA Mid foot state-of-the-art building Year Conference. The student complete with two large court- body at the FIU College of Law, rooms, which provide a realistic while principally from South setting for any trial or appellate Florida, is diverse in racial, argument. In fact, both court- ethnic, and professional back- rooms will be home to the Third ground. In 2008, FIU College of District Court of Appeal this Law graduates had the second spring, while its facilities are ren- highest pass rate among Florida’s ovated. By Adam Owenz ten law schools on the Florida Bar Exam. The College of Law’s Founding Dean, Len Strickman, was delighted we were able to host As the FIU College of Law builds its name the competition noting, “As the American law and reputation within the legal community, we school with the highest percentage of Hispanic are proud to do so alongside organizations such students, it was a particular thrill for us to host as CABA and the HNBA, and we thank them for the HNBA Moot Court Competition. Our stu- their support. dents enjoyed showing off our magnificent facil- ities to their counterparts from across the coun- Adam Owenz is the Director of Development and try. We congratulate the winning team from the Alumni Relations at the FIU College of Law.

42 CABA BRIEFS | SPRING 2009 [ H N B A M O O T C O U R T C O M P E T I T I O N ]

SPRING 2009 | CABA BRIEFS 43 FOWLER RODRI GUEZ VALDES- FAULI

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www.FRVF-Law.com [ T H E C O U R T S ] Gov. Crist’s Appointments Four new faces remake Florida’s Supreme Court.

here is in each of us a stream of tendency, JUSTICE CHARLES T. CANADY whether you choose to call it philosophy or T not, which gives coherence and direction to On August 28, 2008, Governor Charlie Crist thought and action. Judges cannot escape appointed Justice Charles T. Canady to the Flori- that current any more than other mortals.” da Supreme Court after Justice Raoul G. Cantero’s departure from the bench. As the 82nd -- Benjamin Cardozo in THE NATURE OF THE Justice to serve on the high court, he took office JUDICIAL PROCESS (1921). on September 8, 2008. Justice Canady was born in Lakeland, Florida in 1954. He The recent change in the Flor- received his B.A. from Haverford ida Supreme Court’s composition College in 1976 and his J.D. from makes Justice Cardozo’s words Yale Law School in 1979. Justice especially thought provoking. Canady practiced with Holland The Florida Supreme Court, like & Knight in Lakeland, Florida many high courts, is intrinsically from 1979 through 1982. From mysterious and largely insulated 1983 through 1992 he practiced from the outside pressures that with the firm of Lane, Trohn, Ber- typically inform government de- trand & Vreeland. cision-making. Yet, in many ways, the Court is the most Justice Canady has a long human of institutions: seven in- career in public service that dividuals tasked with the began in November 1984 with his solemn, and collaborative, re- election to the Florida House of sponsibility of addressing the Representatives. Initially elect- most important legal issues af- By Armando Rosquete ed as a conservative Democrat, fecting Florida’s citizens. he subsequently switched par- ties. He completed three terms in the Florida Throughout the last year, this most human of House of Representatives from November 1984 government institutions has seen the appoint- to November 1990. In January 1993, he defeated ment of four new justices whose philosophies his Democratic opponent, Tom Mimms, and won will affect the coherence and future direction of a seat in the United States House of Representa- the Court’s decisions. A unique combination of tives where he served until January 2001. While retirements and personal circumstances created in Congress, he figured prominently in the im- four judicial vacancies, causing Governor Char- peachment proceedings against President Bill lie Crist to engage in a series of rapid fire judicial Clinton and was a key figure in legislation aimed appointments. Governor Crist’s recent appoin- at addressing partial-birth abortions. During his tees include Justice Charles T. Canady, Justice time in Congress, Justice Canady served as a Ricky Polston, Justice Jorge Labarga, and Justice member of the House Judiciary Committee and James E.C. Perry. The new justices bring to the from January 1995 to January 2001 he held the Court a wide range of legal experience and Chairmanship of the House Judiciary Subcom- varied backgrounds. mittee on the Constitution.

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Upon leaving Congress, Justice Canady Canady struck a humble—and at times humor- became General Counsel to Governor ous—tone with those in attendance. “I will who subsequently appointed him to the Second always strive to be a justice for all the people of District Court of Appeal for a term that began on this great state. I will never forget that it is the November 20, 2002. Justice Canady is in the people who speak directly through the constitu- unique position of having a public-service career tion they have adopted,” he said. that encompasses time in the legislative, execu- tive and judicial branches. Not surprisingly, at Justice Canady said his appointment repre- the time of his appointment, Justice Canady said sented a career where he has been fortunate he would work to enough to apply his maintain open lines legal skills in service of communication of the public. with the other “Those two loves branches of govern- have truly shaped ment. “I think it is my life,” he said. important that the “There has never judiciary has a con- been a moment structive working when I have regret- relationship with ted the decision to the other two pursue a career in braches as we go the law.” He took through these chal- the opportunity to lenging times and I praise his legal men- will strive as a tors who helped him member of the court throughout his to help ensure there career, including is always a construc- Bob Trohn, who tive working rela- hired Justice tionship among the Canady at Lane, branches and that Trohn, Bertrand & there is clear com- Vreeland, and en- munication,” he couraged him to said. pursue his political career. He also cited Hector Lombana, who his time on the Second Dis- has been a longtime member JUSTICE CHARLES T. CANADY trict Court of Appeal. Jus- of the Third District Court tice Canady said the appel- of Appeal Judicial Nominating Commission, late court would have “a special place in my characterized Justice Canady’s record on the heart . . . even on those occasions when it’s my Second District Court of Appeal as “spotless.” duty as a justice on this court to quash and disap- Past President of the Florida Bar, Howard Coker, prove” opinions from the lower court, drawing a said Justice Canady was “eminently qualified to laugh from the audience. Justice Canady has serve” and that “he has set a high standard of made it clear that he plans to stay on the Court fairness, humility and respect for the law.” until he is forced to retire at age 70. “I love being a judge,” he said, “and I anticipate being a judge At his December 3, 2008, investiture, Justice for the rest of my life.”

46 CABA BRIEFS | SPRING 2009 [ T H E C O U R T S ]

JUSTICE RICKY POLSTON Justice Polston was gracious enough to answer a few questions about appellate practice. “Good On October 1, 2008, Governor Crist appoint- appellate briefs quickly frame the issue, describe ed Justice Ricky Polston to replace Justice Ken- the applicable facts and law and analyze how the neth B. Bell. He is a native law applied to those facts re- of Graceville, Florida who sults in the relief desired,” lives in Tallahassee with his he said. When asked to de- wife of 31 years, Deborah scribe the qualities that Ehler Polston, a children’s make a good appellate prac- book author. They have four titioner, he emphasized the biological daughters, ages need for candor. “Good ap- 18, 21, 23, and 25. They also pellate practitioners build have adopted six brothers, credibility with the court by ages one through 15, from correctly describing the foster care. He obtained facts and the law, without both his undergraduate and any mischaracterizations, law school degrees from even when it may seem to Florida State University, undermine the position graduating with high taken. They admit those po- honors and summa cum tentially adverse facts and laude respectively. law, and then explain why the court should rule other- From January 2, 2001 to wise.” He emphasized that October 1, 2008, he served “the primary benefit of oral on the First District Court of argument is to address the Appeal. Since 2003 he has also JUSTICE RICKY POLSTON Court’s questions and concerns taught as an Adjunct Professor (not to simply reargue what is at Florida State University. Prior to his time on already in the brief) and, for an appellee, it is an the bench, he was in private practice where he opportunity to address a reply brief.” handled commercial-litigation cases in state and federal courts throughout Florida, including I seized on the opportunity to ask Justice matters involving property tax, employment Polston about any memorable experiences he law, disability and health benefits, real property may have had while arguing before the Court. title disputes, and various cases arising from re- While in private practice, Justice Polston argued ceivership proceedings of insurance companies Leon County Educational Facilities Authority v. and HMOs. He also handled various cases in- Hartsfield, 698 So. 2d 526 (Fla. 1997). He remem- volving constitutional law and was a certified bers being in that all too familiar, and frustrating, circuit court mediator. Initially trained as an ac- position that appellate practitioners often find countant, Justice Polston first developed an in- themselves in: not being permitted to answer a terest in the law while taking business-law cours- question by a justice before being asked a differ- es in conjunction with his CPA license. Justice ent question by another justice. Justice Polston Polston mentioned Chief Judge Robert Hinkle, offered some advice to young lawyers: “Work before his appointment to the bench, and John for great lawyers who are willing to take the time Aurell among his most important mentors. to teach you how to do excellent work, and to not compromise your integrity and ethics.” For those with an interest in appellate work,

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JUSTICE JORGE LABARGA have to learn to do more with less,” he said of the courts. “That’s a major problem.” On January 2, 2009, Governor Crist appoint- ed Justice Jorge Labarga to replace Justice Harry While on the Fifteenth Judicial Circuit Justice Lee Anstead. Justice Labarga took office on Jan- Labarga briefly found himself in the spotlight uary 6, 2009, and his story is one of humble be- during the 2000 Presidential election. In Florida ginnings. Fleeing his native Cuba as an 11-year- Democratic Party v. Palm Beach County Can- old boy after Fidel Castro seized power, Justice vassing Board, No. 00-11078, 2000 WL 1728721, at Labarga and his family settled in Pahokee, Flori- *1 (Fla. Cir. Ct. Nov. 22, 2000), he ruled on the da where his father continued working in sugar Florida Democratic Party’s motion for declarato- mills as he had in Cuba. Justice Labarga recalled ry judgment, requesting that the court invalidate attaching a Cuban flag to the radio antenna of his the Palm Beach County Canvassing Board’s per father’s ’56 Chevy. His family’s first home was a se policy of excluding ballots with irregular shack that still stands today. After graduation chads that had not been fully punched out on from Forest Hill High School in 1972, Justice La- ballot cards. barga received his bachelor's degree and his law degree from the . He phrased the central issue as follows: “The question before the Court is the standard that the From 1979 to 1982 he served as an Assistant canvassing board must apply in determining the Public Defender in Florida’s Fifteenth Judicial intention of the voters as it examines ballots Circuit and from 1982 to 1987 he served as an As- without a clearly identifiable puncture through sistant State Attorney in the same circuit. He one of the Presidential slots.” Justice Labarga practiced with Roth, Duncan & Labarga for four ruled that the canvassing board could not have a years and with Cone, Wagner, Nugent, Johnson, per se policy in place that excluded any ballot Roth & Romano for five years before his appoint- and the canvassing board would have to consid- ment to the Fifteenth Judicial Circuit by Gover- er the voter’s intent under a totality-of-the-cir- nor Lawton Chiles. He served on the circuit cumstances test. “Where the intention of the bench for thirteen years before his appointment voter can be fairly and satisfactorily ascer- to the Florida Supreme Court. tained,” he said, “that intention should be given effect.” Justice Labarga included this ruling in Following his appointment, Justice Labarga his application for the Court, citing it as an im- commented on the qualities that make a good portant opportunity to write about a constitu- judge. “A good judge, in my opinion, is one who tional issue of first impression. is all over the place. I’m all over the place. . . . My judicial philosophy is that every case is different, His appointment was greeted with enthusi- every case should be judged on the merits of the asm by members of the Palm Beach bar. Current particular case.” He said judges cannot and president, Richard Schuler of the West Palm should not be seen by the public as reliably liber- Beach firm of Schuler Halverson & Weisser, said al or conservative. He was also realistic about he believed the new Justice “will be a great Su- the challenges that await him. “It’s going to be a preme Court justice” because he is “a fair indi- difficult job,” he said. “The Florida Supreme vidual.” Past president, Meenu Sasser of the Court is not an easy job.” In addition to render- Gunster firm in West Palm Beach, said she was ing opinions on difficult aspects of law, Justice “very pleased” with the selection because Labar- Labarga said the Court also has a key role in ad- ga “exemplifies the best of our bench here in the ministering the state-court system at a time when Fifteenth Judicial Circuit,” which is Palm Beach resources are getting scarce. “We’re going to County. She said she has practiced before him

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and was impressed with his preparation for numerous honors and awards including the hearings. President-elect, Michelle Suskauer of Seminole County NAACP Humanitarian Award, the Suskauer Law Firm in West Palm Beach, the Orange County Chapter NAACP Paul C. echoed those comments and said Justice Perkins Award, and the 2005 Martin Luther King Labarga’s appointment was “well deserved” and Drum Major Award for Social Justice. that he is a “hard-working jurist.” In 2004, Justice Perry was honored by his See more on Justice Labarga in a separate section of hometown, New Bern, North Carolina, receiving this issue of CABA Briefs devoted to his investiture. the “Key to the City.” And in 2005, the United Negro College Fund selected Justice Perry as one JUSTICE JAMES E.C. PERRY of four individuals to be profiled during its

Most recently, Governor Crist appointed Justice James E.C. Perry to replace Justice Charles T. Wells. He took office on March 11, 2009. He is a native of New Bern, North Carolina. He is married to Dr. Adrienne M. Perry, the former Mayor of Longwood, Florida and currently a professor at Stetson University. They have three children. Justice Perry is a graduate of Saint Augustine’s College where he received a Bachelor of Arts in Business Administration and Accounting. After serving in the U.S. Army as a first lieutenant, he went on to Columbia Law School where he earned his law degree in 1972.

Before his appointment, he served as a Circuit Judge in the Eighteenth Judicial Circuit upon his appointment by Governor Jeb Bush in March 2000. He was the GOV. CHARLIE CRIST & JUSTICE JAMES E.C. PERRY first African-American appointed to the Eighteenth Judicial Circuit. Justice Perry later served as Chief Judge of the Circuit for a two-year term beginning July 2003. national broadcast of “An Evening of Stars: A Celebration of Educational Excellence.” Justice Prior to his appointment to the trial bench, Perry also received the prestigious Williams- Justice Perry was senior partner in the law firm Johnson Outstanding Jurist of the Year Award of Perry & Hicks, P.A., where he specialized in for 2006 from the Brevard and Seminole County civil and business law. Justice Perry has received Bar Associations.

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Justice Perry’s accomplishments extend sized that parties should utilize oral argument as well-beyond the professional sphere. He has an opportunity “to hone in on whatever is not yet been actively involved in a variety of community clear from the briefs, or to focus on things that activities, including managing his son’s AAU were not emphasized in the briefs.” “The most basketball team, the San Lando Greyhounds, but effective appellate briefs,” he said, “are succinct his commitment to improving children’s lives ex- and focus on the most important issues, which tends beyond his often includes a dis- own family. As cussion of jurisdic- founder and presi- tion.” dent of the Jackie Robinson Sports As- His advice to sociation, he estab- lawyers applies lished a baseball equally in the court- league serving 650 room and life: at-risk boys and “Maintain your in- girls—the largest in tegrity, above all the nation. The As- else, even when you sociation, however, think no one is did more than coach watching. Your rep- baseball. Volunteers also served as mentors and utation will precede you. It is also important to provided free tutoring. maintain and nurture positive relationships. In the final analysis, 85% of what you do is relation- In addition to his work with disadvantaged ship-based. You do not form relationships when kids, Justice Perry served as captain of the Heart you need them, you form them in everyday life of Florida United Way Campaign and his firm and call on them when you are in need. Finally, if served as general counsel for the Florida Chapter you want to be great, serve. You receive by Branches of the NAACP. He currently serves as giving; do not give simply to receive.” treasurer on the Board of Trustees for Saint Augustine’s College. Justice Perry has been a CONCLUSION member of the Carter CME Tabernacle Church of Orlando for more than 20 years, where he cur- The four new justices bring a wealth of rently serves as trustee. knowledge and experience to the bench. Whether it’s Justice Labarga’s personal journey from a Justice Perry’s decision to pursue a legal small shack in Pahokee, Florida to the high career was inspired by tragic circumstances. He bench, or Justice Canady’s years of varied public was serving as a First Lieutenant in the U.S. service, the new Justices inspire both personally Army when Martin Luther King, Jr. was killed. and professionally. There is little doubt that they That night, he decided that he wanted to leave will each leave their unique mark on the Court the Army and attend law school. As a young and Florida jurisprudence. lawyer, he considered Judge John H. Ruffin, Jr., of the Georgia Court of Appeals, an important Armando Rosquete currently serves as an Assistant mentor. He considers a good appellate practitio- U.S. Attorney for the Southern District of Florida in ner to be someone “who thinks about all sides of the Narcotics Section. Prior to joining the U.S. an issue because it is often only by considering Attorney’s Office, he worked at Hogan & Hartson the weaknesses of your position that you identify LLP and served as a law clerk to Justice Raoul G. Can- its greatest strengths.” Justice Perry also empha- tero from August 2003 to August 2004.

50 CABA BRIEFS | SPRING 2009 [ T H E V O L U N T A R Y B A R S ] Judicial Review Who is qualified to be a judge in Miami?

he Dade County Bar Association (“DCBA”) professional responsibility to seek improvement by-laws do not allow me as the of the law, access to the legal system, the admin- T organization’s president to endorse or con- istration of justice, and the quality of service ren- tribute money to any candidate for elective dered by the legal profession. Equally obvious is public office. You will not be surprised to learn the obligation of voters, legislators, executives, that I saved some money and everybody was my and other decision-makers to select candidates friend during the last election cycle. As the with the appropriate merit, character, and tem- leader of our community’s umbrella bar organi- perament necessary for the public office sought. zation, however, I do have opin- ions about the political process in Recently, in late December South Florida judicial elections. 2008, the Florida Supreme Court Judicial Nominating Commission For starters, the assertion that considered 18 applicants for a va- residents of Miami-Dade County cancy on the State's highest court vote in judicial (or other) elec- created by the retirement of Jus- tions exclusively on the basis of tice Harry Lee Anstead. Because the apparent ethnicity of a seven of the 18 candidates were candidate’s last name is as insult- from Miami, I felt a special re- ing to the diverse members of our sponsibility as DCBA President community as it is undermining to express and invite support for of the civil and criminal justice our local candidates. Specifical- system’s reputation for fairness, ly, I wrote to the DCBA’s entire impartiality, and respectability. membership to urge our legal True, not all names—and certain- community to voice its support ly not all hyphenated names—are By Tim Ravich for our own local judges and created equal. This is especially true practitioners. After all, Miami is one in today’s sound-bite media age where percep- of the most diverse metropolitan locations in the tion seems to get the better part of reality. How- nation and it is appropriate that the state judicia- ever, our community is not served when other- ry reflect a commitment to diversity by drawing wise regular political contests are charged artifi- from the rich variation in viewpoints, talents, cially with racial, ethnic, and gender-based rhet- and backgrounds that are the hallmarks of our oric by our brethren in the legal community. bench and bar. Make no mistake: I was comfort- able sending this message because—and primar- Against this backdrop, I believe it is impera- ily because—I had confidence in the qualifica- tive that the voluntary bar associations come to- tions of each of the candidates. gether to candidly and cooperatively confer to develop a unified strategy to optimize the chance Florida’s Governor is committed to diversity, that the most qualified candidates for elected as some interesting events occurred as this article office win. Promoting the diversity of our judi- went to print, however. Governor Charlie Crist ciary—not just in Miami, but state-wide—is and returned a nominating commission’s recommen- should be a core value of every Florida lawyer’s dation of several judicial candidates for a seat on

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the Fifth District Court of children by his mother in Appeal on the grounds that the Jacksonville’s Brentwood list of candidates lacked diver- housing project just after the sity. Later, Governor Crist ap- Great Depression and in the pointed Palm Beach Circuit years during and after World Court Judge Jorge Labarga to War II. “He worked at a young the Fourth District Court of age, cutting lawns, moving Appeal. As a result, Judge La- furniture, doing anything to barga was no longer in the run- help support himself and his ning to fill Justice Anstead’s family, and ultimately build a seat and Governor Crist asked future career as a lawyer and the Florida Supreme Court Ju- public servant.” He raised five dicial Nominating Commission children and is now the grand- to send him two more names father of four. Justice Anstead for potential appointment. Be- not only overcame challenges cause Governor Crist had earli- in life, but excelled as a scholar er appointed two and jurist, working for the Na- (exceptionally qualified) white men to the high tional Security Agency in Washington, D.C. and court—Justices Charles T. Canady and Ricky becoming the first sitting judge in the United Polston—it was assumed that the he could not States to earn an academic degree in the judicial and would not appoint another white man, not- process, receiving his Master of Laws degree withstanding the merits of any particular indi- from the University of Virginia. Justice Anstead vidual. I am concerned that this assumption has and his wife also have taken special interest in found some momentum in our community, advocating for children’s rights. thereby creating a political process that allows the qualifications of otherwise excellent candi- Wow. Let’s get more justices with those sorts dates for office to be diluted or even overridden of credentials—whatever their race, gender, or by demographic considerations. ethnicity. To be sure, the make-up of a political candidate is obviously important, but it should Based on the names ultimately sent to the not override the candidate’s resumé. There is Governor, Floridians should be totally confident work to be done, and I write now to propose that that a sound judge will succeed Justice Anstead. the various voluntary bar associations in our But, the atmosphere surrounding the appellate community—and DCBA, CABA, FAWL, Wilkie- and supreme court judges appointment process, Ferguson Bar and other voices—work together to along with local bench and bar elections, raises ensure that public officials in Miami-Dade an overriding question: Should particular public County are not just, in President Abraham posts correspond directly to demographics, Lincoln’s words, “of the people, by the people, whether Hispanic, White, Jewish, Female, Afri- for the people,” but also among the best and ca- can-American, etc.? Should there be such a thing pable of all the people in our community. as a conservative seat, a liberal seat, a women’s seat, etc.? Timothy M. Ravich is the President of the Dade County Bar Association. He practices aviation law, Consider one of the latest justices whose re- commercial litigation, and products liability defense tirement created a vacancy for Governor Charlie with the law firm of Clarke Silverglate & Campbell, Crist to fill. Justice Anstead’s formal biography P.A. in Miami, and welcomes comments at explains that he was raised as the youngest of six [email protected].

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Florida Supreme Court Justice Jorge Labarga and his lovely wife, Zulma.

Photos by Stacy Ferris, Office of the Governor [ T H E C O U R T S ] Justice Jorge Labarga The Florida Supreme Court’s second Cuban Justice.

hen Justice Labarga asked me to speak at I also had the pleasure of speaking with the his investiture, I was deeply honored. Justice’s wife, Zulma, and as I did, the love, de- W However, the true breadth of the honor votion and mutual admiration they share was didn’t really hit me until I learned more obvious, and the commitment to their your about the man himself. daughters, Stephanie At the age of 11, Jus- and Caroline, cannot tice Labarga fled his be denied. Mrs. Labar- native Cuba with his ga also shared anec- family, after Fidel dotes related to the Castro seized power, lives transformed setlling in Pahokee, through the Justice’s Florida, where his good deeds. I learned father worked in the about the waitress sugar mills. Later, the who approached Jorge family moved to West at a restaurant and Palm Beach, where thanked him for help- Justice Labarga gradu- ing her straighten out ated from Forest Hill her life. I learned in 1972 and enrolled at about the teenager the University of Flori- from Wellington High da, majoring in Political Science, and then enroll- School who had been breaking into people’s ing in the University of Florida Law School. Rene homes before the Justice intervened and helped Lamar, Justice Labarga’s best friend in law him steer a new course. And like these, I learned school, and Alfredo Garcia, Dean of St. Thomas of countless others whom owe the Justice a debt Law School and a classmate of Jorge’s, praise Jus- of gratitude for his selfless commitment to im- tice Labarga’s analytical skills and work ethic, proving their lives. and both commented that his law school notes were the envy of his classmates. In summary, Justice Labarga, devoted father and husband, cherished friend, acclaimed jurist, After graduation, Justice Labarga began his and only the second Cuban to be named to the public service. He was an assistant public de- Florida Supreme Court (and the first to have fender from 1979 to 1982 and an assistant state at- been born on the island), I offer you a heartfelt torney from 1982 to 1987. In 1987, he entered pri- congratulations from all of your friends at the vate practice in Palm Beach County Florida at the Cuban American Bar Association. We wish you, law firm of Roth, Duncan and Labarga. After sev- and all of the new Justices, Godspeed. eral years of private practice, he returned to public service being appointed to serve on 15th Roland Sánchez-Medina, Jr. currently serves as the Judicial Circuit in and for Palm Beach County President of the Cuban American Bar Association. He Circuit Court, and earlier this year for one day on practices corporate, tax and transactional law with the 4th District Court of Appeal before being ap- the firm of Sánchez-Medina, Gonzáalez, Quesada and pointed to the Florida Supreme Court. Lage in Coral Gables.

SPRING 2009 | CABA BRIEFS 55 [ P I C T O R I A L ] Spring Mentor Reception Bilzin Sumberg • March 31, 2009

he Cuban American Bar Association held its sented the award to Ramón Abadin of the firm of Annual Spring Mentor Reception at the firm Abadin Cook. Ray, a CABA Past President and T of Bilzin Sumberg Baena Price & Axelrod member of The Florida Bar Board of Governors, LLP, the event sponsor. Over one hundred has made mentoring law students and young at- people attended including judges, attorneys and torneys one of his top priorities, and we are law students. The goal of the reception was to proud of his achievements in this regard. Con- give students and their mentors another oppor- grats, distinguido! tunity to meet and socialize during the academic year (the initial pairings took place in October CABA strongly encourages all of its members 2008 at the Fall Mentor Reception). to participate in the mentoring program, so if you would like to serve as either a mentor or a The Spring Mentor Reception was also the mentee, please sign up via www.cabaonline.com. perfect venue to announce CABA's Passing On You may also contact either of the co-chairs of Leadership award. This honor is bestowed annu- CABA’s Mentoring and Scholarship Committee, ally on the CABA member whom most embodies Raul Chacón at [email protected] or the cause of mentoring. This year, CABA pre- Victoria Méndez at [email protected].

56 CABA BRIEFS | SPRING 2009 [ S P R I N G M E N T O R R E C E P T I O N 2 0 0 9 ]

SPRING 2009 | CABA BRIEFS 57 [ S P R I N G M E N T O R R E C E P T I O N 2 0 0 9 ]

58 CABA BRIEFS | SPRING 2009 [ S P R I N G M E N T O R R E C E P T I O N 2 0 0 9 ]

SPRING 2009 | CABA BRIEFS 59 [ S P R I N G M E N T O R R E C E P T I O N 2 0 0 9 ]

60 CABA BRIEFS | SPRING 2009 [ S P R I N G M E N T O R R E C E P T I O N 2 0 0 9 ]

SPRING 2009 | CABA BRIEFS 61 [ P I C T O R I A L ] CABA Pro Bono Breakfast Versailles Restaurant • March 26, 2009

he Cuban American Bar Association Pro doing everything in its power to helping the Bono Committee sponsored a breakfast at low-income and indigent clients that it serves T Versailles Restaurant featuring a presenta- stay in their homes and keep their families intact. tion entitled “Foreclosures and Renegotiat- ing Mortgages: Hot Topics in Property Law” con- On that front, the event was a complete suc- ducted by noted real estate attorneys John Ruiz, cess as it was not only very well attended, with of the Ruiz Law Center, and Juan Martínez, of over 60 members of our legal community partici- Gray Robinson, P.A. The purpose of the event pating, but a great majority of the attorneys who was to educate the legal community on recent participated agreed to assume at least one pro issues in real estate law, as well as to recruit ad- bono case involving landlord-tennant issues. If ditional attorneys to participate in CABA’s Pro you were unable to attend, but are interested in Bono Project. With South Florida at the ignomin- giving back to your community, please contact ious epicenter of the national mortgage crisis, Sandra Ferrera, Chair of CABA’s Pro Bono Com- CABA’s Pro Bono Committee is committed to mitte, at [email protected].

62 CABA BRIEFS | SPRING 2009 [ C A B A P R O B O N O B R E A K F A S T ]

SPRING 2009 | CABA BRIEFS 63 [ T H E W E B S I T E ] Que Pasa CABA? CABA Online gets a facelift.

his year will bring significant change to our achievements or career milestones for circulation monthly online newsletter, “?Que Pasa on QPC. Additionally, a new section, “Remem- T CABA?”, or QPC for short. As many of you ber When”, presents one or more photographs of may have already noticed, the new format vintage CABA events as submitted by CABA for the newsletter was introduced in the March members contributing to ongoing archiving ef- edition, and has continued through April. Mem- forts. We have also focused on simplifying feed- bers are encouraged to visit the QPC webpage to back links in an effort to collect more comments discover the new features such as pointing and and suggestions from members. Please help us clicking between sections of the newsletter, a make QPC a welcome and useful medium by marked improvement over the endless scrolling which to update our membership on CABA’s of issues past. latest and greatest.

QPC is also featuring a more robust “Mem- Manuel Crespo, Jr. is a sole practicioner whose prac- bers in the News” section, and we encourage all tice focuses on civil and criminal litigation as well as of our members to submit summaries of recent real estate law.

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Cubaney Rum Proud sponsor of CABA’s Art in the Tropics October 2009 SPRING 2009 | CABA BRIEFS XX