UF law alumni at the high court

Indeed, the court’s rulings on the bumper crop of Florida cases that came before it last term laid to rest some of the country’s most contentious constitutional questions. The extraordinary task of preparing briefs and arguing six of the cases before the high court fell to four UF lawyers — passionate advocates who may never have expected to find themselves being peppered, rapid-fire, with complex constitutional questions in the marble temple of the oldest, most enduring high court in the world.

“I don’t see how anyone could walk in there and not feel the grandeur of the architecture and the historical ambiance of the room, to be awed and think, ‘This is the United States Supreme Court,’” said Florida Solicitor General Scott Makar (JD 87), who argued four of the state’s five cases before the court last year. “It’s a stage of much greater magnitude.”

So great, in fact, that the four UF Law alumni who posed seven arguments in six cases before the U.S. Supreme Court during the 2009-10 term catapulted the University of Florida Levin College of Law into the nation’s top three law schools – exceeded only by Harvard and Yale – based on figures compiled by the NLJ Supreme Court Insider.

In addition, Makar was reported by The National Law Journal as being the state solicitor general to have argued the most cases ever before the Supreme Court in a single term.

The solicitor general’s office

As exciting as appearing before the Supreme Court may be, for Makar, it’s all in a day’s work. As Florida’s solicitor general, whose office falls under that of the attorney general, Makar is charged with overseeing civil appeals involving the state’s interests in all state and federal appellate courts as well as any cases in the U.S. Supreme Court.

“Solicitor general is an office that handles appeals, particularly arguments before the Florida Supreme Court and the U.S. Supreme Court,” said Attorney General Bill McCollum (JD 68). “It’s a specialty office, with talent for making constitutional arguments at the Supreme Court level, both state and federal. I think those are the kinds of things you always want to see in your office, talented people with good ideas and insights who are able to apply them at the very highest levels.”

A year after being appointed Florida’s solicitor general in 2007, Makar argued his first case before the Supreme Court; a bankruptcy taxation case, Florida Dept. of Revenue v. Picadilly Cafeterias. The state’s argument prevailed. Makar was proud to have argued and won a reversal, but felt it might be his only case at the high court. Makar, who teaches a course and is preparing a book on famous constitutional cases from Florida, had no cases in the 2008 term. But the court granted review in an unprecedented five cases in 2009-10, resulting in a grueling, but no less thrilling, experience for his office. Makar worked with his staff to prepare briefs and oral arguments for four of the cases and assisted with the fifth, argued by Deputy Attorney General and Chief of Staff Joseph Jacquot (JD 99).

“It was very intense for the better part of a year. We had to do a tremendous amount of researching and writing the briefs, and preparing for oral argument,” Makar said. “The other aspect of these cases is the number of amicus briefs. … You might have one or two amicus briefs in a big case at the Florida Supreme Court, but when you’re talking about the U.S. Supreme Court, in some of these cases we had dozens of amicus briefs. So they multiply by a significant factor the amount of work you have to invest in the case.”

It takes a village                                                                                                                                          In the Graham case alone, more than 15 amicus briefs were filed on behalf of Terrance Graham, a 23-year-old Florida inmate sentenced to life without parole for a series of nonhomicidal burglaries he committed when he was 16 and 17 years old. Graham’s attorney, Brian Gowdy (JD 99), a partner in the Jacksonville firm Creed & Gowdy, P.A., embraced the briefs and their authors as helpmates.

“Once the U.S. Supreme Court granted cert, there were many, many people who stepped forward to offer help,” Gowdy said. “There is a whole network of people out there involved in the issue of sentencing youths to
very harsh punishments and they had already been in the planning stages in the anticipation that the court might grant certiorari in a case like this, not this particular case, but a case like this. It was an amazing process.”

Gowdy, who had been Graham’s appellate attorney from the start, found little in Graham’s original sentencing order to challenge on appeal. Because there were no viable procedural challenges to be made, Gowdy turned to the Eighth Amendment for a change in tactics.

“We are an appellate firm and we’re always looking for mistakes by the judge, and the sentencing judge in this case had done a really good job. He hadn’t made many mistakes, arguable mistakes, that we could find,” Gowdy said. “So we decided we should try this cruel and unusual punishment argument, which really sprang off the U.S. Supreme Court’s Roper decision in 2005, where they said it was cruel and unusual punishment to execute any juvenile. To use a football analogy, it was a Hail Mary pass.”

Though desperate, it was a pass that scored — landing on the Supreme Court docket and making a big splash in the media. Gowdy soon found himself arguing a high profile Supreme Court case against fellow UF lawyer and his Jacksonville neighbor, Solicitor General Makar.

“I actually felt very good and calm, and fairly relaxed that day,” Gowdy said. “It wasn’t because I didn’t understand the importance of the moment or the honor of being able to argue in such a place, it was because I was more prepared for that argument than any other argument I’ve done in my life or will do again. I’d spent so much time preparing, and I was ready.”

Though Gowdy’s argument that life imprisonment for nonhomicide juvenile offenders is unconstitutional would be the one to prevail, he and Makar enjoyed a collegial and supportive relationship based on their shared experience before the high court.

“It’s comforting when you’re in the courtroom and look to the right and left and you see familiar, Florida faces, including Bryan’s and some of the judges from the First District Court of Appeal,” Makar said. “I think we both took comfort in the knowledge, that, ‘Hey, these two guys from Jacksonville made it here, and we’re going to do just fine.’ ”

Legislative intent

During his argument before the court in Florida v. Powell, Jacquot drew confidence from his conviction that the Miranda warning is as much a tool for law enforcement as it is protection for suspects.

“I worked for seven years in the U.S. Senate, primarily at the Senate Judiciary Committee, and so textual interpretation is something that I’m very familiar with, mostly in regard to statutes,” Jacquot said. “But, in this case, there was a lot of textual interpretation at issue in terms of the Miranda warning itself. How does it read? Is it misleading? Is it reasonable? … The theme I adopted was that the purpose of the Miranda warning is really to get at the truth, it’s not just about protecting a suspect’s rights.”

As with all the UF lawyers who argued before the Supreme Court, Jacquot’s preparation before his appearance at the high court was intensive. He collaborated with attorneys at the Department of Justice, who had joined in the case, to augment the original brief with additional points crucial to their arguments. He honed his advocacy skills in four moot court exercises to build confidence in the content and style of his delivery, and he studied the justice’s opinions on related cases to understand who among them could be advocates for his arguments and who could not.

“I knew going into it that I’d get some rough questioning from Justice Breyer, and indeed I did,” Jacquot said. “In the middle of an exchange with him, I heard a voice to my left say, ‘Counsel, I do believe you are correct.’ It was Justice Ginsburg, and so I quickly directed my argument to her and I saw Justice Breyer go from being on his elbows to leaning back in his chair, and I realized, ‘Now, the case is all about Justice Ginsburg.’ ”

Jacquot won Florida v. Powell by a comfortable 7-2 margin, with Justice Ruth Bader Ginsburg writing the majority opinion, and Justice Stephen Breyer joining Justice John Paul Stevens in dissent.

“I think lawyers, particularly here in the attorney general’s office, do good every day,” Jacquot said. “But when you take a case to the U.S. Supreme Court, you know it’s going to set the law of the land. You really feel like your arguments are bettering society and, in this case, making good law, protecting law enforcement, and ultimately protecting citizens. It was a great experience.”

For Lisa Call (JD 91), an assistant federal public defender for the Middle District of Florida, getting a fair sentence for her client, Darnell Johnson, was her motivation to pursue certiorari for Johnson v. United States. Johnson had been sentenced to a mandatory minimum sentence of 15 years in prison under the Armed Career Criminal Act based on the act’s enhanced sentencing guidelines for violent felons, though his prior state conviction was for “unwanted touching” and not physical force. Call’s petition for certiorari pointed out circuit differences in interpretation of “physical force” under the Armed Career Criminal Act and argued that Florida’s definition of simple battery does not contain the element of physical force.

“When you look at Mr. Johnson’s record, you would expect to be introduced to one person, but he’s really very different than his record indicates. So I wanted a good resultfor him,” Call said. “It just happened that the Supreme Court has looked at this same sentencing statute several times over the last few years, so I felt like there was a good chance that once we were granted certiorari that he was going to get the good result we were seeking.”

In preparation, Call’s colleague, Rosemary Cakmis, researched and wrote an “extraordinary” brief, while Call examined past cases and attempted to anticipate policy arguments to which the members of the court would be receptive or lines of questioning they may pursue.

“I had a chart of each case that led up to our line of cases, outlining which justices had joined the opinions, when they had written separately, and what their justifications or concerns had been,” Call said. “Definitely, the level of preparation was entirely different than usual. From
February until the argument in October, this was the only case I worked on. Normally, we don’t have that opportunity to just focus on one case, but because the Supreme Court hears so few cases, it’s worth the effort and dedication.”

The five-month wait until the court’s ruling was released was excruciating for Call
and her colleagues, but when it was finally announced in March it was the news they’d been hoping to hear.

“I was so extremely relieved to see it in black and white that we were going to be able to come back for resentencing and that my client wasn’t going to face this extraordinary punishment,” Call said. “Mr. Johnson has recently been resentenced and received a sentence of time served. He essentially went from 15 years to four years. It was really great.”

Why so many Florida cases?

Florida is a large and diverse state of nearly 19 million people from all over the world and all walks of life, but that is most certainly not the only explanation behind the high number of Florida cases before the U.S. Supreme Court last term.

“Since the Rehnquist court came into existence, and we now also see it in the Roberts court, the court has been very interested in federalism issues, state’s rights issues,” Rush said. “Florida tends to be a leader on those types of issues, and is very progressive, I think, in putting out ideas about what state’s rights mean in the constitutional rhetoric or dialogue.”

“The advocates and the court are putting out new arguments, showing us new ways of thinking about things,” she said. “It’s an amazing system, when you think about it. It’s not perfect, but it has endured.”