The Summation summer 2014

Summati

The

Escambia/Santa Rosa Bar Association

n

June 2014

Volume 3 / Issue 2

The Naturalization Process

page 12

Pro Bono: Just Another Term for Unbillable Hours?

My Journey to U.S. Citizenship 路 New Members Wall of Honor 路 Announcements

June 2014 www.esrba.com The Summation 1

Inside

Escambia-Santa Rosa Bar Association 216 South Tarragona Street, Suite B Pensacola, FL 32501 Phone: 850.434.8135 Fax: 850.436.8822 email: esrba@esrba.com Lawyer Referral Service: 850.434.6009 Executive Director Michael Doubek mike@esrba.com Editor Patricia Buchanan Wright patriciabwright@aol.com Published quarterly by the Escambia-Santa Rosa Bar Association as a service to its membership. Any article herein may be reproduced provided credit is given both to The Summation and the author of the article.

Articles appearing in The Summation are not to be construed as official expressions of the views of the Escambia-Santa Rosa Bar Association. Official positions are expressed only by formal resolutions adopted by a majority of the membership and will be so designated when published. Editorials are expressions of the opinion of the Editor.

Due date for all advertisements, articles, and announcements is the 1st of the month for the issue you wish to advertise in.

Address all editorial correspondence to the Escambia-Santa Rosa Bar Association office. For all inquiries concerning advertising rates contact Ballinger Publishing.

“The Summation Committee is dedicated to providing a publication to the legal community which contains articles that are accurate, informative, entertaining, educational, relevant and timely.”

Summation Committee If you have any comments or suggestions about The Summation, please feel free to express them to any of the committee members. If you would like to join the committee, please call the Bar office at 434.8135.

Judge Terry Terrell Judge Charles J. Kahn Brooke Jones Gerald McGill Caroline Peterson Lisa York Susan Woolf

Jason Boatwright Benjamin Stevenson Clara Smith Paula Walker Tami Stokes Debra Bass Carrie Cromey

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The

Summation

12. The Naturalization Process 15. My Journey to U.S. Citizenship 16. Maritime Law Primer 18. Judicial Candidates 24. Wall of Honor 27. Pro Bono Award 28. Photos

In every issue 3. From the President 4. Chief’s Corner 5. New Members / Announcements 6. Board of Governors 8. The Bottom Line 10. Ask a Lawyer 22. News From the Court 30. News From the Clerk 31. Classifieds / Calendar

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From the President

MEMBERSHIP HAS ITS BENEFITS

By BENJAMIN J. STEVENSON

The Escambia Santa Rosa Bar Association provides members with many benefits as well as opportunities to satisfy their responsibilities to their profession and the public. Let me take the opportunity to highlight some: ESRBA educates its members and helps to keep them current with CLE requirements. It sponsors roughly 10 live seminars, including a fun CLE cruise, each year by qualified experts who can help members hone their skills. It maintains for member use a CLE Library of CDs and DVDs on a variety of topics and skill levels.

ESRBA keeps its membership informed with this publication you are reading, The Summation, about current, local updates and events impacting the legal community as well as highlights some helpful practice points.

ESRBA connects its membership with its publication of the Address Directory, listing the current addresses of all courts and attorneys in the First Judicial Circuit as well as other useful numbers.

ESRBA refers potential clients to members who participate in the Lawyer Referral Service. It serves as an important link between members with people who need their services.

ESRBA offers diversions with discount movie tickets for those who need a night out.

ESRBA supports members who suffer from addiction or have been disbarred, suspended, or have simply abandoned his or her practice. It can direct attorneys to the local AA meetings and assist in the appointment of a

local attorney to serve as an Inventory Attorney for non-practicing lawyers.

ESRBA also aids sole practitioners who experience a short-term emergency through its Attorney Assistance Program that pairs them with other attorneys who can help.

ESRBA creates a forum for members to share changes and good news through both its mailing labels for postal mail and distribution lists for email.

Most importantly, ESRBA hosts lunches and events where members can socialize and catch up on family and personal news. ESRBA hosts a monthly lunch meeting that often features an invited speaker on an interesting and timely topic. The ESRBA sponsors the biannual Beach/Bar Conference, where members and judges can unite to address problems and clarify procedures for an effective administration of justice. The ESRBA organizes social events, including Blue Wahoos games and mixers with other bar associations. In these forums, members can visit with each other as colleagues and friends.

These positive interactions are proven to reduce both the tension between opposing counsel and related stress. After sharing a meal or an informal conversation, we realize that we are not really opponents, but just represent opposing parties.

Ultimately, ESRBA membership is what you make of it—the more you invest in the Association, the more you will reap. I encourage everyone to become active and take advantage of all the benefits of ESRBA membership.

June 2014 www.esrba.com The Summation 3

Chief’s Corner

THE SMART BENCH PROGRAM

By TERRY D. TERRELL

As this edition of The Summation goes to press, most, if not all, of the computer hardware capable of managing the SmartBench judicial viewer program for the Judges and the Clerks in the First Judicial Circuit has been installed. Each judge’s hearing room and each courtroom will be equipped with the computers which will enable the court system across the circuit to transition to a nearly paperless case management model.

Everyone has likely heard that the SmartBench program was first installed in Santa Rosa County over two years ago by former Clerk Mary Johnson. She had become aware of the program which was being tested in the Twelfth Judicial Circuit, and she had the foresight to realize the value of the program from a case maintenance perspective, plus its potential from a business efficiency perspective.

Our Clerks are responsible to maintain the records of the court system. With the volume of papers filed in the various cases, the storage, maintenance, and retrieval of those documents has expanded significantly over recent years.

The cost of space requirements to store this ever expanding

4 The Summation www.esrba.com June 2014

inventory of paper has likewise increased. Recently, in an effort to manage this issue, the Clerks have been scanning their holdings into digital form, and that process started before the authorization of e-filing over the past two years. All those functions are very labor and time intensive.

As the court system transitions to a digital document management model, the development of the SmartBench computer program provided an opportunity to substantially reduce the paper flow while increasing judicial and clerk efficiency and, coincidentally, result in savings for the taxpayers.

Due to the Foreclosure Backlog Initiative funded by the Legislature and our model of managing that workload, the First Circuit has been able to purchase both the equipment and the program for implementation of SmartBench circuitwide. SmartBench has been operational in Walton County since March 2014 and should be operational in Escambia and Okaloosa counties before September 2014.

This development is another example of how your court system is evolving with the changing times.

New Members Angela M. Guttmann Michael L. Guttmann, Attorney at Law 314 S. Baylen Street, Suite 201 Pensacola, Florida 32502 (850) 434-7445 GuttmannAngela@gmail.com Kerra A. Smith Escambia County Attorney’s Office 221 Palafox Place, Suite 430 Pensacola, Florida 32502 (850) 595-4970 kasmith@myescambia.com Kimberly S. Sullivan Moore, Hill & Westmoreland, P.A. 220 W. Garden Street, 9th Floor Pensacola, Florida 32502 (850) 434-3541 ksullivan@mhw-law.com

2014-2015 PLSSA Officers (left to right) Illauna Brazwell – Vice President and Parliamentarian Desireé (“Desi”) McDaniel – Secretary Regina Silva – Treasurer Lorrie Wilkinson – President

Announcements Jennifer Frydrychowicz Appointment Governor Rick Scott announced the appointment of Jennifer J. Frydrychowicz to the Escambia County Court.

Frydrychowicz, of Pensacola, is a lawyer with Luther, Collier, Hodges & Cash, LLP. From 2009-2012 she served as an Assistant State Attorney in the First Judicial Circuit. She previously practiced with Blank Rome, LLP and served as a staff attorney in the office of U.S. Senator Arlen Specter. Frydrychowicz received her bachelor’s and law degrees from the University of Florida.

She fills a vacancy created by the resignation of Judge Thomas Johnson.

Governor Rick Scott said, “J.J. has all the qualities that will make her a great judge. I look forward to her service on the Escambia County Court bench.”

Wade Swearing In William R. Wade, attorney at law, will be sworn in as President of Florida Association of Criminal Defense Lawyers (FACDL) in St. Petersburg, Florida at the Don Caesar on June 7, 2014.

FACDL is the only statewide bar organization in Florida comprised solely of criminal defense attorneys. Bill has been an active member since 1992 and practices in Northwest Florida with offices in Milton.

Bill has been a member of FACDL since 1992 and a life member since 2004. He served on FACDL’s board beginning in 2000 as Chapter Representative and as an elected Director at Large from 2005 through 2010, when he was elected as Secretary of the organization. Bill is married to Linda Wade, a civil trial lawyer, and they have two daughters, Khaki and Hattie.

New Law Firms Crystal C. Spencer, Ann E. Meador and Travis R. Johnson have merged their practices to form the firm of Spencer Meador Johnson, which is located at 900 North Palafox St., Pensacola.

Maureen Duignan is pleased to announce the opening of her new law practice, The Law Office of Maureen Duignan, PL located at 707 E. Cervantes Street, Suite B-111, Pensacola.

June 2014 www.esrba.com The Summation 5

Board of Governors Report from

THE FLORIDA BOARD OF GOVERNORS

By STEPHEN ECHSNER

The Florida Bar Board of Governors met on March 28, 2014.

The major actions of the board and reports received included: With the 2014 legislative session nearing the halfway mark, The Florida Bar continues to advocate for court funding including requests for staff pay and retention as well as district and trial courts’ maintenance/repair and technology needs. Initial budgets released by the House and Senate are good starting points. An April 1 Florida Bar News article provides additional court system budget request details. Both houses have approved civil legal assistance funding -- $2 million in the Senate and $1 million in the House and advocates are working to educate the governor’s office on the importance of the program. Bills that would exempt certain activities from criminal penalties for the unlicensed practice of law are being opposed by the Bar. For weekly summaries of legislative activities related to bills being tracked by The Florida Bar, please visit www.floridabar.org/session.

President Pettis announced his appointment of a task force to bolster diversity among Florida’s judges and members of Judicial Nominating Commissions (JNCs). The task force’s recommendations will also assist the governor in implementing F.S. 43.291(4): In making an appointment, the Governor shall seek to ensure that, to the extent possible, the membership of the commission reflects the racial, ethnic, and gender diversity, as well as the geographic distribution, of the population within the territorial jurisdiction of the court for which nominations will be considered. The Governor shall also consider the adequacy of representation of each county within the judicial circuit. In May, The Florida Bar will be nominating slates of three candidates for two vacancies on each JNC, and sending those slates to Gov. Rick Scott for appointments. The Bar received 679 applications with approximately 45 percent falling into a category for diversity: women, Hispanics, African Americans and Asians.

Lawyer Referral Service rules amendments were approved by the board and will now be submitted to the Supreme Court.

The lawyer referral service rule amendments are a multi-year effort that began with the Special Committee on Lawyer Referral Services. Among the changes are: requiring lawyers who belong to lawyer referral services to report their participation to the Bar; requiring that clients make the initial contact after being referred to a lawyer; and strictures against suggesting a referred client use other services provided by the referral service — such as medical treatment — unless the lawyer is satisfied that the referral is in the client’s best interest and the client gives written confirmation that he or she has been told about the potential conflict. Proposed new amendments to trust account rules were also approved for submission to the court.

A new policy regarding advertising filing fees was approved.

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Any change of any kind to an advertisement renders the ad a new ad with a new filing fee of $150 per timely filed ad and $250 per untimely filed ad. The only exception is a revision to an existing ad that is solely to comply with a bar opinion that the ad does not comply with the lawyer advertising rules, for which no additional fee will be charged. The Board of Governors also directed staff to monitor the cost of program administration compared with fees and report back whether a reduction in filing fees is warranted.

The new fees will be effective July 1. More information will be posted on the Advertising Rules webpage.

The Communications Committee of the board received approval to expand the Bar’s social media use to include LinkedIn, Google+, YouTube and Pinterest. In addition to posting timely announcements and the weekly tech tips, The Florida Bar’s current Facebook page–which now has almost 1,800 likes–will include a daily summary of news articles from around the state, section/division and voluntary bar information and court system, law school and national news. All Facebook posts will be tweeted.

Communications also reported that a best practices manual for effective electronic communication is being developed to address e-etiquette issues. The Standing Committee on Professionalism is being asked to review all current professionalism guidelines and to amend them as necessary to include electronic communications.

The 2014-15 budget was approved with no fee increase for the 13th year in a row. Fees for active members will remain at $265 and for inactive members will stay at $175. Membership fees represent approximately 65 percent of the total revenues and continue to increase approximately two percent per year reflecting the increase in the number of members. Operating expenses are budgeted for approximately $41.7 million. The regulation of the practice of law accounts for 43 percent of expenses and administrative expenses continue to be under 10 percent. The budget, which now goes to the Supreme Court for approval, will be published in the April 15 issue of The Florida Bar News.

The board voted to oppose a petition by Bar members asking the Supreme Court to amend bar rules to allow for annual membership fees to be increased by up to $100 to fund legal aid for the poor to ameliorate the current funding crisis. Instead, the board committed to finding alternative and more cost effective ways of delivering legal services to the under-served. President Eugene Pettis said the effort will be broad-based, involving many interests including the courts, the Bar, the Florida Bar Foundation, court clerks who work with pro se litigants, the business community, legislators and others. Bar rules required that the petition be filed with the board before it is submitted to the court.

June 2014 www.esrba.com The Summation 7

The Bottom Line

PRO BONO:

JUST ANOTHER TERM FOR UNBILLABLE HOURS?

By DANA MARTINEZ-JONES, ACP

Say the term “Pro Bono” and many may cringe and claim they don’t have time for that. Some even believe that any pro bono hour given takes away from a billable hour: Free equals deficit.

We in the legal field know that the term “pro bono” means “for the public good.” This also means making sure that legal services are available to our low-income citizens and the poor, not just those who can afford them. Just like for attorneys, paralegal involvement in pro bono activities has become even more critical. Paralegals can benefit the community, the private bar, the judiciary, and the paralegal profession by volunteering their time, abilities, and skills as trained legal professionals. Although neither the Florida Bar, nor the National Association of Legal Assistants/Paralegals (NALA) requires pro bono services, they are highly encouraged.

The Florida Bar, in The Florida Pro Bono Rule, Section 4-6, addresses services to the poor. It stresses that providing pro bono legal service help is aspirational, not mandatory. Although not mandatory, it is recommended that attorneys donate 20 hours or more annually. NALA stresses that paralegals should extend cooperative efforts on “public service activities wherever possible” and points to ABA Guideline 10 as support. The National Federation of Paralegal Associations (NFPA) makes pro bono services mandatory for their registered paralegals (RP) and requires 24 hours of pro bono work annually.

While a worthy goal, and not mandatory for many, why bother?

It will take away from work needing to be done, hours that need to be billed. It will affect the bottom line and profits will dwindle!

That is really a myth that is easily debunked. It is the right thing to do, and as surprising as it may sound, it pays to be good. Some compare pro bono work to marketing ourselves, our firm, or our local associations. When legal professionals put themselves out there for the community by virtue of donating their services, they are building a reputation that will benefit them in the long run. In

2013, American Lawyer magazine addressed this issue by ranking the pro bono services of major law firms in the nation. It found that based on “the average number of hours per lawyer and the percentage of lawyers who performed more than 20 hours of pro bono service per year,” of the “ten firms ranked highest, all had very healthy profits per partner, most between $500,000 and $1 million or more.” 1 But wait, there’s more! By providing pro bono services, we can enhance our own skills, build relationships, and expand client development. In the Tampa Bay area, the Hillsborough County Bar Association, along with the Tampa Bay Paralegal Association join together to participate in Wills for Heroes. This is an event to provide free wills, advance directives, and durable powers of attorney to first responders and their spouses/partners who are members of Tampa Fire and Rescue and the Tampa Bay Police Department. When these folks need more legal services down the line, who will they be most likely to seek out? Surely the attorneys who were there to help them with free services. This is just one example of how client development comes from pro bono services, but these experiences can do even more. When we invest our time, skills, and reputations into our local community needs we gain more than potential new clients. We get a sense of satisfaction.

Many volunteers share stories about “the courage of their clients, the changes they helped effect, the lives they’ve helped reshape.” 2 Often times, the lives that have been reshaped and affected are our own.

Yes, giving up that “billable hour” for pro bono hours takes away time, but that doesn’t mean it takes away from potential benefit. Pro bono service can be used as a way to expand our personal network and we can look at it as an enlightened selfinterest. Because, let’s face it, the legitimacy of our legal system is largely dependent upon the meaningful participation of all socioeconomic classes. Providing pro bono services to low-income citizens ensures their participation in the legal system, which in turn serves to preserve the legal system’s legitimacy. Plus, not only will we feel better because we helped someone less fortunate, but we will also feel better because we helped ourselves. And that’s the bottom line!

1 Ginsburg, R.S., J.D. (2014) Pro Bono makes cents: The business case for pro bono 2 Ward, S.F. (2013, February 1). ABA Journal: Law News Now. Working for free: Lawyers incorporating pro bono into their lives talk about its rewards, challenges. Retrieved from http:// www.abajournal.com/magazine/article/working_ for_free/

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June 2014 www.esrba.com The Summation 9

Ask a Lawyer

ELECTION LAW

By NANCY ABUDU

The fundamental right to vote is protected by more U.S. constitutional amendments and federal statutory laws than almost any other right American citizens enjoy. However, legal debates regarding the meaning and application of that right continue, causing voting rights cases to be one of the most difficult and expensive to litigate. While presidential elections tend to have the highest voter turnout, voters actually have more direct and increased access to their local and state elected officials and, consequently, are better able to lobby for issues that impact their daily lives. Thus, all elections are important.

Without the support and assistance of attorneys from various practice areas when it comes to election protection activities before, on and after Election Day - many people’s right to equal access to the ballot box would not be championed. Therefore, regardless of your specific area of legal expertise, you can always play an important role in advancing the right to vote.

Which Florida laws protect the rights of voters?

The Florida Election Code, Fl. Stat. §§ 97.01 et seq., sets forth the qualifications for voters, registration and voter identification requirements, and the process for candidates to get on a ballot, along with other election administrationrelated issues. The Code also affirms a voter’s right to be free from intimidation or coercion in deciding who to vote for, to vote if they were already in line when the polls officially close, and the right to always vote a provisional ballot if there are questions at the polling place about their eligibility. In addition, the procedures for early voting, absentee voting, and the recruitment and training of poll workers are provided. Florida also recognizes federal law mandates such as the ability of people to register at state agency offices like the Department of Motor Vehicles, and the need for counties to maintain accurate voter registration files.

What is the Voting Rights Act of 1965?

In response to the history of discrimination and increased violence that minority voters were facing, primarily in southern states, when it came to registering to vote and having a real opportunity to elect their candidates of choice, Congress passed the Voting Rights Act of 1965 (the “VRA”), 42 U.S.C. §§ 1973, et seq. The VRA is widely recognized as one of the most successful pieces of civil rights legislation ever enacted and has blocked voting changes that would have had a negative and disparate impact on minority voters. Certain aspects of the VRA, such as the need for federal approval before enacting any voting change or the requirement that election offices provide voting materials in multiple languages, only apply to particular 10 The Summation www.esrba.com June 2014

jurisdictions. However, there are other parts of the Act that have universal application, such as the prohibition against denying or abridging one’s right to vote on the basis of race, color, or for being a member of a language minority. Congress reauthorized the VRA in 2006, but in June 2013, the United States Supreme Court struck down a key provision and now the process for determining which jurisdictions should be subject to certain provisions currently is being debated in Congress. However, those sections of the VRA that apply everywhere remain in effect.

Are there any other groups that receive special protections when it comes to voting?

In 1986, Congress enacted the “Uniformed Oversees Citizens Absentee Voting Act (UOCAVA)” to ensure that states and territories allow members of the military, military families, and United States citizens living overseas to vote absentee in state and local elections. The federal “Voting Accessibility for the Elderly and Handicapped Act (VAEHA),” was passed in 1984 and requires polling places to be physically accessible to people with disabilities or, at a bare minimum, that counties provide an alternate method such as curbside voting which allows the person to vote from his or her vehicle in the parking lot.

How can I become an Election Protection volunteer?

Attorneys are always needed to assist voters with issues ranging from identifying the location of their polling place to enforcing the voter’s right to cast a provisional ballot if a poll worker questions the person’s eligibility. Volunteer activities include manning call centers, going to polling places to assist in resolving problems, monitoring counties where repeated complaints have been received, and contacting election offices to clarify their policies when conflicting information is given to the public. For more information about becoming a volunteer, please visit www.866ourvote.org, or call 1-866-OUR-VOTE. Footnote: Nancy Abudu is licensed to practice in the states of New York and Georgia, and has litigated voting rights cases in state and federal courts.

This information is not intended to be a substitute for obtaining legal advice from an attorney. No person should act or rely upon any information in this article without seeking the advice of a qualified attorney.

Concentrating in:

• Federal Civil Service Law • Business & Real Estate Law • Florida Public Employee Pensions www.FederalCivilServiceLaw.com 504 North Baylen Street • Pensacola, Fl 32501 Office: 850.434.9922 • Fax: 850.432.2028

June 2014 www.esrba.com The Summation 11

THE NATURALIZATION PROCESS

By STANLEY WALKER

Here are ten questions to test your knowledge of U.S. civics: 1. How many amendments does the Constitution have?

2. What stops one branch of government from becoming too powerful?

3. The U.S. House of Representatives has how many voting members?

4. If both the President and Vice-President of the United States can no longer serve, who becomes President?

5. There are four amendments to the U.S. Constitution about who can vote - describe one of them.

6. Name one promise you make when you become a U.S. citizen.

7. When must all men register for Selective Service?

8. When was the Constitution written?

9. The Federalist Papers were written in support of the U.S. Constitution - name one of the writers.

10. Who was President during World War I? (See answers at the end of the article).

Did you know the answers to at least six of those questions? If not, you just failed a basic citizenship examination. For most of us, American citizenship is something we take for granted because we were born here. Some people can derive citizenship from their parents if they were born abroad, or if their parents became citizens while they were young children. However, each year, hundreds of thousands of people have to earn their citizenship through a process called naturalization. Annually, nearly 700,000 people become naturalized citizens. A great many of these new citizens live and work right here in Florida. In fact, our state is second only to California when it comes to newly naturalized citizens.

Roughly 93 percent of all naturalization applicants pass the basic civics examination. How did you do? Granted, I picked some of the more difficult questions, but surprisingly, only 65 percent of natural born American citizens are able to pass this portion of the test; and the civics examination is only one part of the long and complicated path to U.S. citizenship. As an immigration attorney, I can tell you that helping someone achieve their lifelong dream of citizenship is one of the most rewarding aspects of my

Former Ambassador Sichan Siv addresses new U.S. citizens

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must be willing to take the Oath of Allegiance where you renounce your allegiance to any foreign countries and promise to do what is necessary to protect the United States, its laws and constitution.

Some individuals can apply to become a naturalized citizen faster than the standard five year waiting period.

Spouses of U.S. citizens who became permanent residents through marriage can naturalize in three years, and military members can naturalize in one year, unless they served during a period of hostility, in which case they can immediately naturalize. By executive decree, we have been in such a period of hostility since September 11, 2001. Husbands and wives who accompany their spouses on military deployment or certain government related work overseas may also be eligible for immediate naturalization. There are also exceptions to the language and civics requirements depending on how old you are and how long you have been a permanent resident. The point remains, however, that becoming a naturalized U.S. citizen is not necessarily an easy task, and one which many of us could not do if we had not been born here. It is something that millions of people around the world aspire to and something that most of us are fortunate enough to claim as our birthright.

The rewards of citizenship, however, make the process well worth the effort. As a naturalized citizen, you enjoy the same rights and privileges as a natural born citizen. Upon completion of the initial application and interview, you must then take the Oath of Allegiance to the United States at a naturalization ceremony. Local ceremonies are held at the U.S. District Court for the Northern District of Florida in Pensacola several times a year. If you have an opportunity, I would strongly encourage you to attend a naturalization ceremony in person. The Honorable “Casey� Rodgers, Chief District Judge, does her absolute best to ensure that the ceremony appropriately reflects the journey our newest citizens have taken, while honoring their heritage and hard work to achieve their dreams. As Judge Rodgers points out, these ceremonies are unique in that there is no adversarial nature to the court proceedings. The oath ceremony is a time of celebration, not a time of contention.

Watching people from around the world take the oath of allegiance, and then joining them as they pledge allegiance to the United States flag for the very first time will give you a completely new perspective on what it means to be a U.S. citizen. Hearing their stories of how they came to the United States from their home countries, whether it was to seek a better life, escape oppression, or experience the freedoms this country can offer, will make you stop and think about how fortunate we are to have been born in this great land. It is truly a humbling experience to see newly naturalized citizens finally achieve what they have worked towards for so many years - something that was bestowed upon most of us automatically at birth - and it is a reminder that our citizenship should never be taken for granted.

Answers: (1) 27. (2) Checks and balances or separation of powers. (3) 435. (4) Speaker of the House. (5) Citizens eighteen (18) and older can vote; you don’t have to pay a poll tax to vote; any citizen (man or woman) can vote; a male citizen of any race can vote. (6) Give up loyalty to other countries; defend the Constitution and laws of the United States; obey the laws of the United States; serve in the U.S. military (if needed); serve or do important work for the nation if needed; be loyal to the United States. (7) Between the ages of 18 and 26. (8) 1787. (9) James Madison, Alexander Hamilton, John Jay or Publius. (10) Woodrow Wilson.

job. The task, however, is not always easy. In order to qualify for naturalization, you first have to meet some basic criteria: you must be at least 18 years old and you must have been a lawful permanent resident (possessed a green card) for at least five years. During those five years, you must have actually lived in the United States for the majority of the time. If you were outside of the country for more than six months, the government could assume that you abandoned your residency, and it would be your burden to prove otherwise. Unless you asked for specific permission in advance, you could not have been outside of the country for more than a year. Apart from the residency requirements, you must also show that you can read, write and communicate in the English language, and as mentioned above, you must be knowledgeable about U.S. civics.

You must also be a person of good moral character in order to qualify for naturalization. Generally, the government will only look at your behavior during the five years prior to your application; however, the government is entitled to look at behavior outside of this period in certain situations. Questionable conduct, criminal activity, and even criminal traffic citations can lead the government to believe that you are not a person of good moral character. This can oftentimes be the most critical and the most subjective portion of the naturalization process. Your prior immigration history, your filing and payment of taxes and your general associations and behavior will be examined in excruciating detail. Finally, you

June 2014 www.esrba.com The Summation 13

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MY JOURNEY TO U.S. CITIZENSHIP

By CAROLINE ALLEY-PETERSON

When I went to high school, we were required to take a civics class in ninth grade. One of the first days in the class, our teacher made the statement that we were all privileged to be American citizens. I timidly raised my hand to let him know that I was not an American citizen. He stared at me in disbelief then said he would talk to my mother about it. Shortly thereafter, he walked across the high school to speak with the woman he thought was my mother about my misconception that I was not an American citizen. After she politely advised him that she was not my mother, she told him that I was correct. He returned to his side of the high school, still sure we were all wrong. Thus began the adventure to become a “Naturalized American Citizen.”

My father, Cyril Lee Alley was a proud career member of the U.S. Army. In September 1964, he was transferred to Pirmasens, Germany with the 79th Engineering Battalion.

My mother and my five siblings joined him in January 1965.

Shortly thereafter she became pregnant. At that time, the base offered no obstetrical care. I was born in a German hospital in Müchweiler an der Rodalb. In May 1966, my father was reassigned. Our family returned to the U.S. Before leaving Germany, my parents had to report me as a child born abroad to American parents so that I could come to the U.S. When we arrived in Florida, my mother was told that I was not an American citizen, would have to be naturalized and that my father had to do the paperwork because he was the serviceman. But my father had been shipped off to another assignment without his family. My mother took all the paperwork she was given but when dad came home, they decided that I should be the one to make the decision.

do was go get a background check, photographs and fingerprints from the local sheriff’s office. My mother called Santa Rosa County Sheriff’s office, and they agreed to do it in Central Booking, but wanted to do it at an odd time so I would not be “traumatized.” Unfortunately, the day the appointment was scheduled, some of the lovely residents of Santa Rosa County had an extremely rough evening and were not quite themselves. But the kind folks at the jail got me in and out of there quickly and without me learning or seeing “too many inappropriate things.”

Next stop was the Catholic Refugee’s Service. We must have gone to that place at least 20 times over a year before we got all the documents and paperwork filled out correctly. Once the paperwork was in order, they provided the materials needed to study for the citizenship test. Prospective Americans have to learn about our local, state and federal governments. School House Rock was very popular back then which made it a fun way to learn about our government so that I could pass the test.

About a year later at the end of my eleventh grade year in high school, I went to the Federal Courthouse to take my citizenship test. I was required to take my test in a little room separated from the other participants because they were unsure how the other people testing would react to me. This was during the Cuban refugee influx. Many of the Cubans had really struggled to get to America, fill out the necessary paperwork, and obtain permission to take the test. One person my mother spoke with thought it was a slap in the face to have an “American” taking the test just like them without having endured the same struggles. For that same reason, they asked me not to attend the citizenship ceremony. So after It had taken me, a child of two American I took my test, I was told I had passed, I signed a bunch citizens, almost four years to get naturalized. I of forms, and I was told that my certificate would arrive in often wonder how long it took others who had the mail.

A few weeks before I graduated from high school, my language barriers, money barriers, time barriers Certificate of Naturalization arrived. It had taken me, a and just plain fear of the process. child of two American citizens, almost four years to get naturalized. I often wonder how long it took others who had language barriers, money barriers, time barriers and My first stop was the Hurlburt Field legal office to find out just plain fear of the process. I am thankful to my parents what needed to be done. They were not able to help me as for letting me make the decision as it was a very interesting my father had retired and advised that we needed to contact experience that I will never forget.

Catholic Refugee’s Service for assistance. They were kind enough to provide the paperwork and instructions so that the process could be started. One of the first things that I had to June 2014 www.esrba.com The Summation 15

PRIMER ON MARITIME LAW

By GERALD A. MCGILL

This article was originally published in the March 2014 edition of The Alabama Lawyer, the official magazine of the Alabama Bar Association. It is re-published here with the permission of The Alabama Lawyer and the author. A few slight modifications have been made to make the article more Florida specific.

The General Maritime Law of the United States Preempts State Law It is important to recognize that the general maritime law applies to all injury and death cases involving a vessel on the navigable waters of the United States, superseding all state laws. The term “vessel” is defined as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 The navigable waters of the United States consist of the inland river system, the Intracoastal Waterway, navigable lakes, rivers and canals, and the offshore waters of the United States. About the only bodies of water that are not considered navigable waters of the United States are lakes that are totally within the borders of one state. A landlocked lake that borders on two states is considered navigable.

Concurrent State and Federal Jurisdiction The inland waterways of the United States are made up of 25,000 miles of navigable rivers, the Great Lakes and the Gulf Intracoastal Waterway. These waterways directly serve 38 states, most of which are located in the eastern half of the United States. Florida alone has 1,540 miles of intracoastal and inland waterways.

Federal courts were given jurisdiction over admiralty and maritime claims by an express grant of jurisdiction in the United Sates Constitution.2 However, state courts have concurrent jurisdiction with federal courts over some maritime cases. The statutory codification of federal court jurisdiction over most admiralty and maritime matters is found at 28 U.S.C. §1333 which provides in part: The district courts shall have original jurisdiction, exclusive of the courts of the states, of: Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

[Emphasis added]. 3 The last phrase, italicized above, is called the “saving to suitors” clause. It has been construed to allow state courts to exercise jurisdiction over maritime cases if the remedy sought was recognized under common law. This means that “in personam” claims arising out of maritime torts may be brought in state courts as well as federal courts.

The source of the substantive admiralty and maritime law is established by the federal courts and the United States Congress.4 Admiralty and maritime cases generally require application of substantive federal law whether the action is brought in federal or state court.5 However, the rules of procedure of the court exercising jurisdiction apply. Further, if the case is in a state court, the right to a jury trial is governed by state law.

Consequences of Applying the General Maritime Law The general maritime law requires that damages be apportioned between the plaintiff and defendant on a “pure comparative negligence” basis.6 This eliminates the contributory negligence defense in states that still have that defense, and it also eliminates the modified contributory negligence defenses (generally 50 percent or greater on the part of the plaintiff) in states where such defense would otherwise be available.

Also, the general maritime law can change the statute of limitations for filing claims. The statute of limitations under the general maritime law is three years. Accordingly, if the case arose in Alabama, the general maritime statute of limitations of three years enlarges the Alabama statute for negligence actions from two years to three years. However, if the case arises in Florida, which has a four year statute for negligence actions, the general maritime statute of limitations shortens the Florida statute for negligence actions by one year.

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Types of Cases Generally speaking, there are four types of cases you are likely to encounter.

A. Pleasure Boats or Recreational Vessels The term “pleasure boat” is not defined by statute. Under federal law, the term of choice is “recreational vessel,” which is defined as a vessel “manufactured or operated primarily for pleasure; or … leased, rented or chartered to another for the latter’s pleasure.”7 The most common cases are those arising from the negligent operation of a recreational vessel causing a collision with other vessels or an allision, which means striking a fixed object. Passengers on recreational vessels injured due to the negligence of the host/vessel operator have a cause of action against the operator, and in the case of a collision may have a claim against both operators.

Also, the United States Supreme Court has recognized that products liability, including strict liability, is part of the general maritime law.8 This means that an operator or passenger in a vessel which causes an injury or death due to a defect in the design or manufacture of the vessel may bring a product liability suit against the manufacturer of the vessel.

B. Commercial Vessels The second type of case involves commercial vessels carrying passengers for hire. Obvious cases involve charter fishing boats, dolphin viewing cruises, dive boats and dinner cruises. Not-so-obvious cases involve rental of personal watercraft such as Jet Skis or parasail operations.

C. Seamen’s Cases The third type of case involves injured seamen who are employed aboard a vessel in navigation. A seaman who is injured has a cause of action against the vessel owner for unseaworthiness under the general maritime law and an action against his/her employer for the negligence of the employer under the Jones Act.9 For Florida residents, these cases usually involve seamen working on oil production vessels in the Gulf

of Mexico or the considerable number of seamen working on tugs pushing barges on the inland rivers of the United States. Thousands of tugs pushing barges utilize these waterways each year. These are complex claims and beyond the scope of this article.

D. Cruise Line Passenger Claims The fourth type of claim is passenger claims against the numerous cruise lines sailing out of ports throughout the United States. If you are contacted to represent an injured passenger, you must be aware that all passenger tickets contain a contractually-imposed one-year statute of limitations to file suit. The ticket also requires that all claims must be brought in a designated venue, usually Miami. It does not matter where the ticket was purchased or where the passenger boarded the ship. Therefore, non-Florida attorneys will have to refer the case to a Florida attorney who handles cruise passenger claims. Fortunately, the Florida Bar allows a 25 percent referral fee without any participation on the part of the referring attorney.

Conclusion Maritime injuries involve a body of law separate and distinct from common law negligence. However, the remedies available in specific cases allow injured parties a better chance to recover adequate compensation for their injuries. Therefore, if the injury occurs on, in or near the water, attorneys should look for some maritime cause of action.

U.S.C. §3 U.S. Constitution Article III, §2.

3 Section 1333 (1) of the Title 28 of the United States Code, the successor to the Judiciary Act of 1789.

4 Miles v. Apex Marine Corp., 498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 275 (1990).

5 Pope & Talbot v. Hawn 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143 (1953).

6 United States v. Reliable Transfer Co. 421 U.S. 397, 955, 955 Ct. 1708, 44 L. Ed. 2d 251 (1975). Also see Schoenbaum, supra §3-4.

7 46 U.S.C. §2101 (25).

8 East River Steamship Corp. v. Transamerican Delaval, Inc. 476 U.S. 858, 106 S. Ct. 2295, 90 L. Ed. 865 (1986).

9 46 U.S.C. §30104.

1 2

FREE RECREATIONAL VESSEL SAFETY CHECK BY THE U.S. COAST GUARD AUXILIARY Now that summer and the boating season have arrived the United States Coast Guard recommends that all recreational boaters including personal watercraft and paddle sport users take advantage of the FREE Vessel Safety Check program offered by the U.S. Coast Guard Auxiliary.

What is a Vessel Safety Check?

The Vessel Safety Check is a free/ complimentary check of your boat conducted by members of the Coast Guard Auxiliary confirming that it meets both federal and state requirements for safety. The Vessel Safety Check gives you a risk-free way to be sure that you and your vessel meet the legal minimums and avoid a potential citation later. The Vessel Safety Check is performed at your boat by a certified Vessel Examiner at a mutually convenient time. The inspection can take place in a boat slip at a marina, a boat launching area or even in your own driveway. The inspection usually takes 30 to 45 minutes.

If your boat passes inspection a decal is issued to be attached to your vessel to display.

What if your boat does not pass?

If your boat does not pass, no citations are issued, no report is filed, and the results of the safety check are not reported to any enforcement agency. Instead, you are provided a written report that aids you in correcting any problems noted. Often a quick trip to the nearest boat supply company is all that is necessary to obtain missing safety items and easily pass a re-inspection, sometimes the same day.

How do I get an appointment for an inspection?

Go to cgaux.org for the location of the Vessel Examiner nearest you. The site also includes a list of the type of items to be checked. While at the site also check out the various Boating Safety Education classed offered.

June 2014 www.esrba.com The Summation 17

Judicial Candidates

MICHELLE INERE

My journey and efforts to become a judge began about six years ago with my first of nine applications to the Judicial Nominating Committee. All nine times I have been recommended to the Governor as a nominee for appointment to the bench. Throughout the process I believe I have established tremendous local support, which unfortunately I have been unable to translate into an appointment in Tallahassee. That is the reason I could not let the rare opportunity of an elected seat pass me by, and on Christmas Eve of 2013 the campaign launched.

In 2010 I was appointed by Judge Terrell as a General Magistrate for the First Judicial Circuit where I served in Santa Rosa County from November 1, 2010, until I was required to resign to run for judge on April 25, 2014. As a General Magistrate I presided over thousands of hearings involving family law matters, contested paternity cases with the Department of Revenue, County Small Claims pre-trials and trials, as well as all of the involuntary commitments in Santa Rosa County under the Marchman and Baker Acts.

Prior to appointment as General Magistrate, my career, beginning in 1995, involved a diverse civil litigation background including family law, child welfare law, poverty law, and domestic violence. I have litigated child abuse cases for the State of Florida in both the Department of Children and Families and the Guardian ad Litem Program. I have represented children in court as both a Guardian ad Litem attorney and as an Attorney ad Litem. I have also represented indigent parents in cases involving their children. I was a certified Family Law and Circuit Civil Mediator with Mediations Plus for several years. During my tenure with the Guardian ad Litem Program, I was part of the Escambia County Death Review Team.

players, but good students and good citizens. I was appointed by the Escambia County Board of County Commissioners as a Citizen-at-Large member to serve on the Escambia County Restore Act Committee. The committee is tasked with making recommendations to the Board of County Commissioners regarding a Multi-Year Plan and projects utilizing the funds which will flow directly to Escambia County from the BP Deep Water Horizon Oil Spill, pursuant to the Restore Act. I have also served on the Bench Bar Professionalism Committee and the Board of Directors of the Panhandle Tiger Bay Club. I am also a member of the selection Committee for Living the Dream honorees each year.

I moved to Pensacola in 1982 to play basketball and finish my undergraduate degree at the University of West Florida, on the heels of winning a national championship at what is now known as Francis Marion University. I was privileged to travel overseas representing the University on a goodwill mission, as part of the first, and so far as I am aware, the only integrated women’s basketball team to tour the Republic of South Africa during apartheid. After I received my degree in Political Science from the University of West Florida in 1984, I continued coaching college basketball for seven years and earned a Masters Degree in Sports Science from the United States Sports Academy. I was determined to assist young women in attaining some of the same benefits and experiences that so many had helped me achieve.

After graduating from Law School at the University of South Carolina in 1995, I returned to Pensacola and married my husband, who was a Navy service member at the time. We recently celebrated our 19th wedding anniversary. After retiring from the military with 21 years of service, he obtained a Masters Degree in Social Work from the University of Both the law and community service have West Florida and currently works for the Department of Veterans Affairs at our local Vet Center doing counseling been passions of mine for as long as I can and outreach for combat veterans. We share a love of remember. Throughout the appointment family, and although we don’t have children of our own, process and now with the election, I am grateful we are the “cool aunt and uncle” to lots of nieces and to have such widespread support from both the nephews. As a result of our involvement with local animal rescues and advocates, we have a house full of rescue business and legal communities. animals, although our numbers are at a historical low with two dogs and only five cats. We also have fish, but they were purchased, not rescued.

Because a judge is a position of service to the community, Both the law and community service have been passions not only is legal experience important, but a diversity of life of mine for as long as I can remember. Throughout the experience and service in the community is important as well. appointment process and now with the election, I am grateful I am a volunteer basketball coach with the Southern Youth to have such widespread support from both the business and Sports Association, a local non-profit organization committed legal communities. It would be an honor to serve you as your to making our young people not just good athletes and ball next Circuit Court Judge, and I humbly ask for your support.

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JENNIE KINSEY On May 1, 2000, I walked into the State Attorney’s While in Major Crimes, I Office in Pensacola and began work while studying for the prosecuted murders that included bar exam. Fourteen years later I walked out at age 42, for a store owner killed during an the new challenge of being a candidate for Circuit Judge. attempted robbery, a young couple Fortunately, my experiences as an assistant state attorney killed during a robbery, domestic have given me the experience necessary to be a fair and violence homicides, drive-by shootings, and homicides effective trial judge. committed during drug deals. While most cases are I grew up with parents who taught me that honor and resolved by plea agreements, the cases I prosecuted while in integrity are required in all aspects of my life. They taught Homicide/Major Crimes frequently resulted in jury trials. me that if I wanted something, I must work and earn it. I At the same time that I saw the devastating effect crimes was held responsible for my actions and punished if I did have on innocent citizens and our community, I also something wrong. The values instilled in me while growing developed a greater appreciation of the importance of our up led me to become a lawyer, have guided me throughout system’s obligation to protect individuals’ rights. We have an my legal career, and have prepared me to be a hard-working adversarial system, but it is foremost a search for the truth. and impartial judge.

Ours is not a system where cases should be won by tricks; During high school I worked at my father’s office after it is a system that demands honor and integrity from all school. I delivered documents, took out trash, and washed participants, and it is a judge’s duty to make sure that occurs dirty coffee cups. I continued to work while attending the and all litigants are treated fairly and impartially.

University of West Florida and had two jobs during summer vacations. After graduating from UWF, I I grew up with parents who taught me that continued working at my father’s office, got a second job honor and integrity are required in all aspects doing clerical work and odd jobs for the Smith, Sauer, DeMaria, and Johnson firm, and took legal assistant of my life. They taught me that if I wanted night classes at UWF. All of these experiences helped me something, I must work and earn it. I was held decide to go to law school. responsible for my actions and punished if I did After graduating from Florida State University College of Law, I started at the State Attorney’s Office something wrong. handling misdemeanors. After two years, I was promoted to felony division assistant. As a division attorney you work with a wide variety of people. This starts Circuit judges preside over serious criminal and civil with the secretary assigned to your division (who may know trials, and a high level of trial experience is necessary to do more law than you at that point in your career) and includes the job properly. During the 14 years I served as an assistant your fellow Assistant State Attorneys and supervisors. In state attorney, I handled more than 9,000 cases and tried addition to legal research, case preparation requires working 113 jury trials. In addition to trying cases, I was asked to with law enforcement officers, lay and expert witnesses, as teach trial techniques to my colleagues at the State Attorney’s well as victims and their families.

Office as well as to local law enforcement officers. I also ASA’s spend a lot of time working with defense lawyers, participated in the Pensacola Inns of Court and the First especially their counterparts in the Public Defender’s Office.

Judicial Circuit Bench and Bar Professionalism Committee.

The case load is overwhelming without professionalism on I believe my experiences over the past 14 years as a trial both sides. Six years as a felony division assistant gave me attorney have qualified me to be a good circuit judge. the benefit of working with, and learning from, many good lawyers and judges.

Note: Michelle Inere and Jennie Kinsey are running for the First Judicial Circuit In 2009, I was assigned to Homicide/Major Crimes, seat vacated by the retirement of Judge W. Howard La Porte. The winning candidate where my primary responsibility was prosecution of DUI will serve in Escambia County. manslaughter and vehicular homicide cases. I was on-call 24/7 and responded to the scenes of traffic fatalities where I worked with law enforcement to ensure evidence was preserved and defendants’ rights protected.

June 2014 www.esrba.com The Summation 19

Law Week Essay Contest Winner AMERICAN DEMOCRACY AND THE RULE OF LAW:

WHY EVERY VOTE MATTERS

By ELIZABETH BARBOUR, 11th GRADER AT B.T. WASHINGTON HIGH SCHOOL

When you were younger, chances are you toted around the “I Voted” sticker your parents mindlessly gave to you on Election Day, as if nothing could make you feel more grown-up.

It seems that children are drastically more enthusiastic about participating in the democratic process than their parents. But why is it children are the only ones to see the importance of casting off a ballot? The United States is a particularly privileged country, and there is a particular reason as to why this is so.

Every vote matters because each individual matters. It matters because in voting we are acknowledging the colossal effort our Founding Fathers made in order to secure that the voice of the people be heard, and that the countless lives lost throughout history in the name of liberty have not been in vain.

We’re all told at some point or another to respect our elders.

In this case, our elders are the likes of Thomas Jefferson, James Madison, or Benjamin Franklin. While there are quite a number of things prevalent in today’s society that would make them

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spit their tea out, voluntarily choosing to not participate in what is arguably America’s finest tradition would, at the very least, cause them to roll over in their graves. It is said that after the Constitutional Convention of 1787, a woman asked Franklin whether the people would be receiving a republic or a monarchy. Franklin responded, “A republic, if you can keep it.” Franklin’s words echo in our society today because, by not voting, are we not dishonoring the Constitution, the unparalleled document that our country thrives on? According to the Bipartisan Policy Center, merely 57.5 percent of eligible voters participated in our last presidential election. By intentionally not paying our respects to the polls on Election Day, we are essentially relinquishing the stronghold we have on our voice being heard in our country.

A noteworthy number of people refuse to tune into any type of news, claiming that it depresses them. Perhaps ignorance of the world around us leads us to take for granted our rights.

We see stories of bombings and torture and immeasurable crises, and the common link between all of these tragedies is oppressed people who crave the opportunity to have basic human rights, let alone to have a say in how their homeland is governed. The oppressed get glimpses of the American way of life, and see us as people who have nothing to be sorry for.

However, America has paid dearly for its liberty. We forget because the American Revolution and Civil War occurred so long ago. Nonetheless, time does not diminish from the fact that thousands of Americans have given their lives in the name of having a say in how they are governed, and choosing not to vote takes their ultimate sacrifice in vain. Each time a vote is cast, remember that people have died in order for you to be able to do so.

There are a myriad of reasons as to why you should vote, and why it even matters at all. Perhaps most critical is that you, as an individual, matter. Casting a ballot marks your print on society. We’ve all seen those pictures and videos of oppressed people rioting in streets, tearing down buildings, and living in fear. They make us uncomfortable. Their governments count them as nothing but another number in their ranks, and not human beings with minds of their own. We’re lucky. We’re privileged. Our voice can be heard, and theirs can’t. Don’t take your rights for granted. Exercise them. Remember that your vote matters, and remember all the lives that have been lost not just in the past, but the ones being lost right now, for the sake of liberty. Wear your “I Voted” sticker in honor of all those who never will, and remember that your voice is heard.

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June 2014 www.esrba.com The Summation 21

News From the Court

A COMMON SENSE JUDGE

By JUDGE JOHN F. SIMON

On March 31, 2014, a large crowd gathered at the M.C. Blanchard Judicial Center to recognize the Honorable Thomas Johnson’s retirement from the judicial bench after over 25 years of service as County Court Judge to the citizens of Escambia County. Those in attendance included fellow judges, court clerks, judicial assistants, law enforcement officers, attorneys, family and friends. Needless to say, this large and diverse group of individuals is a testament to the high regard in which Judge Johnson is held by both the legal and lay community.

As many are aware, Judge Johnson graduated from Florida State University with a Juris Doctorate in 1972.

Thereafter, he returned to Pensacola and entered private general practice for many years until he was elected to the bench as a County Court Judge for Escambia County in 1988. Over the course of the next 25 years, Judge Johnson sought to enhance the role of the judiciary by serving in various capacities to include the DUI review board in 1990, Circuit Representative and then Vice President of the Conference of County Judges from 1990-1994 and Escambia County Court’s Administrative Judge. Such service is both laudable and impressive but only begins to describe the lasting impact Judge Johnson has made upon those who appeared before him or worked with him on a daily basis.

County Court is unique in that it encompasses young attorneys seeking guidance in beginning what they hope to be a long and distinguished legal career and litigants who simply want to have their voices heard. Such an atmosphere requires a Judge who is patient, considerate and willing to impart upon those before him the basic principles that would lead to a proper and efficient resolution of the issues at hand. Judge Johnson fit this role perfectly by ensuring that attorneys adhered to what he referred to as the “3 Ps.” This policy necessitated that each attorney be on time (Prompt), be ready for the matter before you (Prepared), and treat others as you wish to be treated (Professional). Needless to say, these common sense principles have had a lasting effect upon those who had the privilege of practicing before him. As long time State Attorney Curtis Golden noted: “Judge Johnson is well respected for his temperament and sound decisions. He has the unique ability to instill in young attorneys the concept 22 The Summation www.esrba.com June 2014

of professionalism while ensuring that the rule of law is followed and a fair resolution achieved between the litigants.” Both the legal and lay communities are thankful for his leadership and guidance in the pursuit of justice for all who appeared in his courtroom.

Yet Judge Johnson was much more than a County Court Judge to those who worked with him on a daily basis. Many are the times that he appeared in the clerk’s office for no other reason than to engage the court personnel in conversations about their families or simply drop by to say “hello.” Both former County Criminal Manager Shirley Davis and Court Division Manager Marilyn Taylor fondly remember those instances of appreciation and the lasting effect they had upon the court personnel. Such is the character of a County Judge who genuinely cared about the people around him and the impact he would have on their lives.

When Judge Johnson was first elected to the bench in 1988 I was just beginning law school at Ole Miss, an institution more commonly known as the “Harvard of the South.” Though I rarely practiced before him while serving as an Assistant State Attorney, I had the privilege of serving as a colleague beginning in 2009 when I was appointed to the County Court bench. Judge Johnson was designated as my “shadow mentor” to assist in my transition to the judiciary. In many conversations thereafter, I began to realize the importance of the common sense principles he adhered to over the past 25 years which would ensure the fair and efficient administration of justice for those appearing before me. More importantly, I recognized the profound impact Judge Johnson made upon the people who knew and worked with him over the years as evidenced by the many complimentary remarks and stories. I think it is fair to say the impression he left upon me and others is immeasurable.

Thank you, Judge Johnson, for the many years of outstanding leadership and service to the citizens of Escambia County. We are forever grateful for the positive influence you have had upon everyone who had the pleasure of appearing before you over the past 25 years.

News From the Court

M.C. BLANCHARD

BUILDING RENOVATION

By WILL MOORE

Beginning in June of 2014, the M.C. Blanchard Judicial Center in Pensacola, Florida will undergo substantial renovations to the interior of the Court facility; whereas, three new Courtrooms, two new Judicial suites and various offices will be constructed in what are currently vacant spaces on the third, fourth and fifth floors. The vacant spaces were designed intentionally for future growth during the 1999 expansion and renovation of the Court facility, which was originally constructed in 1978. Nearly 15 years after the last renovation of the facility, the growth of the Court system in the First Judicial Circuit, particularly Escambia County, constitutes more Court space to effectively and efficiently manage the dockets. The three new Courtrooms, one of which will be a civil trial only courtroom and serve as the Courtroom for the First District Court of Appeals during their visits to Pensacola, will feature the latest technologies, such as advanced evidence presentation equipment, clear digital audio throughout, advanced video conferencing equipment, digital video recording, numerous data connection ports at each counsel table and many more technology features we hope enhances the Court experience for everyone.

The project is being funded by Escambia County Local Options Sales Tax revenues, which a portion is allocated specifically for Court facility infrastructure in Escambia County. The project is anticipated to conclude in December of 2014, which we hope is just in time for the three new Courtrooms to be added to the 2015 Court calendar.

Our office will be diligent in our coordination of construction activities so that contractor access to the public, loud construction related noises, etc. are limited during normal Court hours. However,

during the construction phase, numerous contractors will obviously be in and out of the facility throughout each day, which may result in even more crowded elevators or increased wait times at the elevators, so we ask that everyone please be patient and plan accordingly on the days you plan to visit the M.C. Blanchard Judicial Center. Additionally, it would be helpful if attorneys would advise their clients of the project and ask they plan accordingly during their visits to the facility as well.

June 2014 www.esrba.com The Summation 23

Wall of Honor

ALAN C. SHEPPARD

By PATRICK G. EMMANUEL

Alan C. Sheppard was the proverbial man who made himself—a man who became a lawyer without ever going to a regular college, much less a law college.

He was one of the few lawyers, and possibly the only one at the time of his death, who never attended college. During, before and briefly after his service in the Army in World War II, he studied with LaSalle Extension University and that is where he learned the law. He did that while he was serving the United States Army Air Corps in India, Burma, and China during World War II. Alan was born August 5, 1921 in Pensacola, Florida. His parents were Oscar Nixon Sheppard and Martha Evangeline Gonzalez Sheppard. His father was the last surviving child of the nine children which his parents had.

Alan’s father was from an old Springfield, Missouri family.

They moved to Panama City in the 1800s and were one of the founding families there. His grandfather was Francis Henry Sheppard and he was a lawyer in Missouri before settling in Panama City.

Eva Gonzalez, Alan’s mother, was a descendent of Don Emmanuel Gonzalez, who was one of the early Spanish settlers of Pensacola. Don Emmanuel met Alexander Andrew Jackson in the early 1800s when he came to Pensacola carrying the American flag. Don Emmanuel Gonzalez was, of course, a loyal subject and government official for the King of Spain. Thus his history goes back and covers many years of Pensacola history and carries out the theme of the Fiesta of Five Flags.

Alan took the Florida Bar exam in 1947 (without ever having been to college), and passed the examination. I believe only 37 percent of all applicants to the bar at that time passed the exam. During his lifetime, Alan became an outstanding real estate lawyer and he was recognized for his ability in that field.

Briefly, after passing the Florida Bar, he worked with young Beggs and Lane, now Beggs & Lane, for a couple of years 24 The Summation www.esrba.com June 2014

before he went to Louisiana as a Scout Executive. He was married to Marie Elaine Sigur, whom he met in Louisiana and they were married for 51 years. They had four children, Martha, Monica, Frank and Alan, Jr. As a young boy he studied birding under Frances Weston on his trail to Eagle Scout and was one of the earliest and most devoted members of the Frances Weston Chapter of the Audubon Society well into his old age.

He was very active in sailing and particularly in the Pensacola Yacht Club. He was the oldest living Commodore of the Pensacola Yacht and the Gulf Yachting Association when he passed away on February 9, 2014.

He was very active in civic and church organizations. He was a Past President of the Pensacola Lions Club and served at the state level. He was the first President of the Pensacola Arts Council and was instrumental in its creation.

He was a Fourth Degree Knights of Columbus and was very active in the Catholic Church. He was a past member of the Sierra Club and active in its workings. Alan loved to have fun.

He enjoyed music and dancing and danced into his eighties. He and his wife, Elaine, belonged to several Pensacola dancing organizations throughout the years and he always enjoyed the festivities of Mardi Gras and the Fiesta of Five Flags.

He was, of course, devoted to his family and was an outstanding example to his four children. His sons, Frank and Alan, Jr. both followed his example in the practice of law. He loved to play bridge and he and Elaine played bridge regularly for many years.

After Elaine passed away, he was married at the age of 82 to Eileen Cochran Thompson and they were married for nine years before she passed away prior to Alan. Alan left four wonderful children, Martha, Monica, Frank and Alan, Jr. Both Frank and Alan, Jr. are practicing lawyers of the Florida Bar.

Judge’s Preferences

JUDGE MICHAEL JONES Each month we will publish detailed information on one of our First Judicial Circuit and County Judges. This edition, we are featuring Judge Michael Jones. You can also find this information and preferences for all First Circuit Judges at www.firstjudicialcircuit.org.

Type: Circuit Judge County: Escambia County Division: “E” Jurisdiction: General Judicial Assistant: Lisa Emmons Address: M.C. Blanchard Judicial Building, 6th Floor 190 Governmental Center Pensacola, FL 32502 Phone: 850-595-4445 DIVISION PREFERENCES The Code of Judicial Conduct precludes Judicial Assistants from making substantive inquiries of the judge on behalf of any attorney or litigant involved in any action. The Code prohibits all judges from considering ex parte (one side only) communications.

Judicial Assistants are neither qualified nor able to provide legal advice to anyone. However, they are more than happy to assist with procedural questions.

Any issue to be considered by a judge should be in the form of a motion filed with the Clerk of Court with copies provided to all parties of record. It is the responsibility of the moving party to coordinate a hearing with all counsel/ parties of record and to provide proper notice to all.

Merely filing a motion with the Court will not bring the matter before the judge.

Appearance of Attorney Florida Rule of Judicial Administration 2.505(e). An attorney may appear in a proceeding: (1) by serving and filing, on behalf of a party, the party’s first pleading or paper in a proceeding; (2) by substitution of counsel; or (3) by filing with the court and serving upon all parties a notice of appearance as counsel for a party that has already appeared in a proceeding pro se or as co-counsel for a party that has already appeared by non-withdrawing counsel.

Motions for Substitution of Counsel Florida Rule of Judicial Administration 2.505(e). Attorneys for a party may be substituted at any time by order of court. No substitute attorney shall be permitted to appear in the absence of an order. The client shall be notified in advance of the proposed substitution and shall consent in writing to the substitution and the written consent filed with the court.

Motions for Withdrawal of Counsel Florida Rules of Judicial Administration 2.505(f). An attorney shall not be permitted to withdraw from an action unless the withdrawal is approved by the court.

The attorney shall file a motion for that purpose stating the reasons for withdrawal and the client’s last known address. A copy of the motion shall be served on the client and adverse parties. The motion shall be set for hearing and notice of hearing shall be served on the client and adverse parties.

Submitting Proposed Orders The office preparing a proposed order subsequent to a hearing shall provide an advance copy to opposing counsel and confirm there is no objection to the form of the order prior to its submission to the judge. The proposed order should then be forwarded to the judge with a cover letter indicating opposing counsel/party has no objection. This will result in the proposed order going directly to the judge for consideration. Otherwise the proposed order will be held a minimum of one week to confirm opposing counsel/party has no objection. Note: Prior to a hearing, please do not send proposed orders to the judge or the clerk’s office. We prefer proposed orders either be brought to the hearing or submitted as described above.

Scheduling Hearings When scheduling a hearing, please ensure the motion has already been filed with the Court and be prepared to advise this office: 1) how much time the attorney needs; 2) the type of hearing to be scheduled; and 3) the style of the case and case number. Please do not rely upon voice mail for scheduling, as messages left are sometimes unclear, incomplete, or the particular time may no longer be available. Please do not ask for less time than June 2014 www.esrba.com The Summation 25

Judge’s Preferences is actually needed. The judge will terminate the hearing at the end of the scheduled time, and, this may result in a premature ruling or delay until the hearing can be rescheduled.

Cross-setting or “Piggy-Backing” Hearings When a hearing is initially scheduled, the time set aside for the original motion is deemed to be sufficient for that matter only. Adding additional motions is not possible unless there are no objections by opposing counsel/parties to doing so and adequate additional time is available.

Cancellations Upon determining a hearing is no longer necessary, please cancel the time set aside with the judge as soon as possible. If the hearing is canceled far enough in advance, the JA may be able to “recycle” or make that time available to others. This will ensure good use of judicial resources and result in earlier hearing times overall for everyone.

If the hearing was set by Court Order, it will require the stipulation of both sides and something in writing for the record to document the reason for the cancellation.

A Hearing May Not be Necessary if... ...the motion is stipulated (agreed to by counsel).

These matters can be expedited if moving counsel states within the motion that they have conferred with opposing counsel/party who has no objection or if opposing counsel/party indicates his or her approval by initialing the proposed order. The judge will review all files with a stipulated motion before deciding whether to approve the stipulation. If a hearing on the issue has already been set, it will not be cancelled until the judge has approved the stipulation.

CRIMINAL Hearings Hearings set on motions to dismiss, suppress and some bond hearings must allow sufficient time for service of subpoenas and notification of witnesses and/or victims.

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In these cases, please check with the assistant state attorney’s office to determine whether or not they require any lead time, prior to scheduling the matter for hearing.

Any stipulated motions for continuance, modification of probation/community control or bond may be expedited if the moving counsel states within the motion they have conferred with opposing counsel who has no objection or if opposing counsel indicates his or her approval by initialing the proposed order. The judge will review all files with a stipulated motion before deciding whether to approve the stipulation. Note: If submitting a motion for modification of probation or community control, and the correctional probation officer is not in agreement with a modification of probation/community control, it must be set for hearing. Thus, it is important to include within the motion whether the correctional probation officer has any objection to the requested relief.

Plea Agreements Any agreement shall be considered at the first earliest time available. The deadline for negotiated pleas is usually during the last week prior to jury selection. Please contact our office to determine the next negotiated plea deadline. After the deadline, negotiated pleas will not be considered.

Arraignments If a defendant is represented by counsel, counsel may file a written plea of not guilty at or before arraignment and thereupon, the defendant’s [as well as defense counsel] presence shall be deemed waived for the purpose of arraignment in accordance with Florida Rules of Criminal Procedure 3.160 and 3.170. This does not apply to VOP cases.

Outstanding Warrants A motion for bond will not be scheduled by the Court until after execution of the warrant causing the defendant’s detention.

PRO BONO AWARD WINNER

By NANCY HARTJEN, Esq.

Virginia M. Buchanan is the recipient of the 2014 Florida Bar President’s Award for Pro Bono Service for 1st Judicial Circuit.

For the last 24 years, her private practice has focused on serious personal injury and medical negligence cases, and while she loves these complicated cases and the clients she represents in them, there is a special place in her heart for cases that take her outside of her comfort zone, make demands of her time and resources, and never pay a dime…her pro bono cases.

Virginia has always done pro bono work, and she says that observing the many anonymous charitable things that Fred Levin did when she joined the firm was a motivating factor. “Good begets good.” She believes that all lawyers, and all professionals, should use their skills and expertise to help people whose needs would otherwise go unmet. Pro bono service is both a privilege and an obligation, according to Virginia.

She reluctantly agreed to allow us to feature her recent pro bono award, as she says it feels awkward to be acknowledged for doing what we all should be doing anyway.

“I have been continuously surprised to see how widely diverse the need for free and reduced fee legal services is in this community,” she said.

“Some are to be expected, such as dealing with housing and property issues that arise from our all too common natural and unnatural disasters. However, many of the issues I have had the opportunity to assist with are not the “expected type.”

One such case occurred several years ago, a pediatrician who came to the area to take a job in an outlying community, he was abruptly terminated from the position, but not before he had developed significant ties to the community. He was the only provider in town

who accepted all Medicaid patients. He also provided free services through health clinics and worked with Children’s Medical Services on an on-going basis. Even though he was a doctor, he was not in a position to pay legal fees to challenge the non-compete clause in his contract. Faced with the prospect of abandoning a community that needed him, friends directed him to Virginia. The first time she was at his clinic, she saw a child with exceptional needs run up and hug him, and in that moment, she knew she was doing the right thing. She was able to win favorable ruling that permitted the doctor to remain in the area. “That entire experience made me proud to be a lawyer.” The doctor has gone on to win the AMA Physician of the Year award and many other accolades; and to this day, he continues to serve his community and provide loving care to patients who might otherwise go without needed healthcare.

In another particularly meaningful pro bono case, Virginia was asked by a colleague to help a juvenile who had been thrown into the system.

The child had committed no crime but needed the court’s protection while she was living in foster care. Virginia was stunned to see the fast pace and magnitude of court proceedings in dependency cases. Many times children in this setting are placed with family members out of state, but this child wanted to stay in the local community and graduate with her high school class.

She also desperately wanted to be able to see her siblings who were not in foster care. With a lot of heart, creativity and solid legal work, Virginia and attorneys from the Department of Children and Families and the Guardian ad Litem Program were able to meet those goals. “It was such a meaningful thing to me to work on this case. It is one I’ll never forget.”

Virginia is a senior partner and shareholder of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. and is a member of numerous organizations and associations. She has worked in different venues and in various state and federal courts. She co-chairs a committee of a large Multi-District Litigation in Birmingham, Alabama and has served in leadership roles on a number of committees.

Currently, she is completing a six-year term with the Florida Bar Civil Rules Committee, where she has been extremely active and has chaired several subcommittees. She regularly writes journal articles and speaks to various professional organizations. She does photography for her church parish and she’s also a busy mom of a middle school student and a college freshman. Yet, with all those commitments, she still finds time to serve as a pro bono attorney… and you can too.

Pro bono service opportunities are everywhere. Each has its own unique challenges and its own rewards. Whether it is a relatively minor matter that can be resolved by quick phone call or letter or a full-blown fight to protect a client’s rights, there are opportunities for everyone. Contact the Legal Services of North Florida, Northwest Florida Legal Services, or the Escambia-Santa Rosa Bar Association to learn about how you can help.

Buchanan receives Pro Bono Award from Florida Bar President Eugene Pettis

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Photos

Judge Thomas Johnson and Mary Hart retirement reception

2014 DCA Reception

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2014 Law Day Luncheon

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News from the Clerk

PUBLIC RECORDS ACCESS

By PAM CHILDERS

During April 2014, the Escambia County Clerk of Court began using a new form for public records requests of court records. Additionally, on March 19, 2014, the Florida Supreme Court issued AOSC14-19 regarding the Standards for Access to Electronic Court Records. The manner in which court records are being made available to the public is evolving.

A brief explanation of public records law concerning court records may be helpful. Court records are not governed by Chapter 119, commonly referred to as Florida Public Records Law. Rather, access to court records is determined by the judiciary pursuant to Article I, §24 of the Florida Constitution and the Rules of Judicial Administration. See also Times Publishing Co. v. Ake, 660 So. 2d 255 (Fla. 1995). Rule 2.420 describes the procedure for accessing court records.

There are a number of differences between Chapter 119 public records requests for non-court records and Rule 2.420 public records requests for court records. While Chapter 119 prohibits an agency from requiring that a PRR be in writing, Rule 2.420(m) mandates that the request be in writing.

Requests for court records must “provide sufficient specificity to enable the custodian to identify the requested records.” Chapter 119 does not have a requirement for specificity (although as a practical matter, if the request is vague, the custodian may have difficulty identifying the records that are responsive to the request). Pursuant to §119.07(4), a public records request for non-court records must be promptly acknowledged, whereas there is no such requirement under Rule 2.420. The statutory authority for charges for public records varies between the two groups of records: costs for requests for non-court records are dictated by §119.07 whereas costs for court records are dictated by §28.24. Finally, different retention schedules apply to court records and non-court records.

The form that was implemented by the Clerk’s office and put into use in April is designed to assist our personnel and the requester of court records. The form is not mandatory – a request may be submitted without using the form. If asked, our personnel will assist a requester in completion of the form. An attorney of record or a party to a case must present identification if the request is made in person or present a signed and notarized request if the request is made by mail or email and they are seeking access to confidential information. The reason for this requirement is that an attorney

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of record and a party to a case are entitled to see confidential information contained in a case that may not be disclosed to a non-party/non-attorney of record. If an attorney wants to review information from a case, such as an arrest report, before deciding whether to represent a client, the attorney may review information that is not confidential.

The Florida Supreme Court Administrative Order AOSC1419 adopts a new set of Standards for Access to Electronic Court Records and Access Security Matrix. These standards supersede the standards established by AOSC07-49. The standards for access to electronic records attempt to balance the right of citizens to review and copy court records against the rights of individuals whose confidential information is contained in the court records. For example, the requirement for proof of identity from attorneys of record and parties is consistent with the new standards for access that requires “access by notarized request” for parties and access by “notarized agreement” for attorneys of record (via the attorney access agreements already in use by the Clerk).

The Escambia Clerk of Court is in the process of implementing the standards and matrix described in AOSC1419. This is not a quick or easy task. There are a minimum of nine access levels for various groups of individuals based on their positions ranging from judges to governmental agencies to the general public. There are literally hundreds of documents that have varying types of access, depending on the document and who is making a request. It will take time to create the necessary coding and framework, which then must be tested.

Once it is deemed ready by the Clerk’s office, the Clerk or court must apply to the Florida Court’s Technology Commission’s Access Governance Board, through the Office of the State Courts Administrator, for approval. FCTC must approve the electronic records access system, and then the Clerk must apply for approval after a successful ninety-day monitoring period.

Only after the Clerk’s electronic records access system has been approved and certified will the records be made available to the public.

The judiciary is serious about public access to electronic records, but must balance that access with the privacy rights of individuals and the confidential information that is often contained in court records. The goal is within sight.

Classifieds

Calendar June 13

Associate Attorney Position Available Opening for Attorney in Pensacola office with 2-5 years of experience in Civil Litigation. Florida Bar membership required; FL & AL Bar preferred.

Send resume to: info@lchclaw.com, Attn: Office Manager.

SEEKING TRANSACTION ATTORNEY with hand on responsibilities in business structures and transactions, real estate development, condominium law, and estate planning.

LLM experience is a plus. Candidate must be organized, have strong work ethic and be committed to excellence.

Excellent opportunity to work with Senior Partner with over 40 years experience in complex business and real estate transactions. Incentive based compensation with opportunity to buy into practice. Contact Charles Liberis at cliberis@liberislaw.com.

For sale or rent: Victorian law office at 917 North Palafox Street (North Hill) Call Terry Gross at 449-1769 or 4343333

Mediation CME/CLER Course “B” (8:30 am – 3:30 pm) Charles N. Castagna, Trainer Multi-media Room, M.C. Blanchard Judicial Building June 26 June Bar Meeting (Noon – 1:00 pm) Honorable Roger Vinson “Foreign Intelligence Surveillance Court and the NSA” Portabello Market July 4 Independence Day July 17 Installation Banquet (6:00 pm – 8:00 pm) Heritage Hall August 15 Honorable Jennifer J. Frydrychowicz Investiture (3:00 pm) 4th Floor, M.C. Blanchard Judicial Building August 21 August Bar Meeting (Noon – 1:00 pm) “Judicial Candidates Forum” Portabello Market

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