If at first [pre-trial mediation] she doesn’t succeed, she’ll try [postpone her ruling so that Miami-Dade County’s megaplan will be dependent on a coming Florida Supreme Court ruling] again. Charles Rabin of the Herald described Tuesday’s ruling in his article:
Miami-Dade Circuit Court Judge Jeri Beth Cohen on Tuesday tossed a late, surprising wrinkle into Norman Braman’s attempt to derail a Florida Marlins stadium, declaring she won’t rule on a significant count for more than a month.
Cohen said she’ll wait to make a decision on a key remaining count until the Florida Supreme Court finishes work on a case involving the use of public money without a vote. The justices are on break until the end of August.
When Marlins attorney Sandy Bohrer told the judge she had an obligation to rule and city of Miami attorney Henry Hunnefeld said there was no guarantee the Supreme Court would rule anytime soon with three members set to retire by year’s end, Cohen said she resented the pressure.
”This is about me doing what is intellectually honest. They’re going to make this opinion before these justices leave. I have an obligation to wait,” she said. “I have a Supreme Court that is in flux.”
Cohen, also up for election in August, is stuck on Braman’s highest-profile count: That the funding plan for a $3 billion face-lift in downtown Miami is illegal because it uses millions of dollars of community redevelopment money without a public referendum.
Can a judge recuse themselves due to an upcoming election? I had an earlier post, which speculated that the judge would have to deal with the perception that the ruling from her courtroom was either an indictment or endorsement of the county’s megaplan. Clearly she wanted no part of either perception. I just didn’t realize that her election was right around the corner. In retrospect, it’s a miracle she didn’t flee the country when the first judge, Pedro Echarte Jr., bailed.
Judge Cohen began the trial by asking both sides to attempt to reach a settlement. Nothing seemed to come from that initial mediation attempt, but there was an indication as to the type of compromises which would placate Braman [South Florida’s version of Hillary before the final primaries]. Again, from the Herald’s Charles Rabin’s July 10th article:
Some close to the mediation said items being discussed included the possibility of building a community center near the planned ballpark, or awarding more public access to the facility. Such moves may help satisfy Braman’s quest for more public benefit from the megaplan.
Others said the standoff — being mediated by former judge Bruce Greer — hangs on whether the Marlins will give back some of the concessions the team received in December’s Baseball Stadium Agreement [BSA] engineered by Burgess.
Though the county would own the stadium, the Marlins would receive all monies from its naming rights, which is worth hundreds of millions of dollars to some Major League Baseball teams.
The Marlins & MLB likely felt that they had the upper hand and refused to compromise at that time. It is doubtful that they remain that confident today. I like what the judge has done. Even if the Marlins had won, everyone expects that Braman would proceed with appeals, guaranteeing further uncertainty. The best possible outcome for our community is one in which the Marlins and MLB go the extra mile and compromise. Bringing someone with Braman’s track record on-board would effectively eliminate any additional political hurdles.
In reading about various testimonies throughout the trial – see the Sun-Sentinel’s Sarah Talalay’s blog – it was amazing to see how every government witness proceeded to give ‘expert’ testimony that they were clueless as to the finances of their partners in the stadium venture. [If this blogger jumps up and down in cyberspace, does anyone … never mind, I’ve seen my Google analytics, the answer is no]. If there is a stadium, those guys deserve box seats for their performances. Hell, they should be in the dugout.
The Marlins & MLB are asking a lot of our community and compromising with Braman would constitute a much needed act of good faith. Their initial $158 million investment has grown in just 6 years to a self-acknowledged $250 million [see pg 11 of BSA] and would likely continue increasing with the additional revenue streams a new stadium would entail. This without probably even having to come out of pocket for their portion of the stadium construction costs [$120 million], thanks to their disciplined hoarding of revenue sharing monies.
The frustrating and fascinating aspect of this trial has been all the misdirections. Braman’s lawyers attack the Marlins financial viability because they realized that the Marlins couldn’t counter that assertion, given their own false claims of poverty recently. But in reality, the essence of their case is that the Marlins got too good a deal from the county. Why else grill the county’s brain trust about how they never saw the Marlins financials or inquired as to their solvency? But if, as they imply, the Marlins suckered the county, that would seem to address their supposed financial woes.
Let’s keep a watch on the areas of compromise discussed during the coming negotiations. If the Marlins are requested to put up additional guarantees or letters of credit, then perhaps the Braman team really believed that the Marlins are in financial distress. But if the issues addressed relate to additional dates for the county, community centers and naming rights etc., we’ll know their trial strategy was a bluff. After all, if the Marlins were really almost insolvent, that would bolster their argument that they are unable, not unwilling, to compromise on the initial Baseball Stadium Agreement [BSA] with the county. The Marlins are very profitable and they can afford to compromise.
From the county’s perspective, Braman and Judge Cohen may not appear to be their allies, but they are. County manager Burgess has been handed a big stick to go back in and get concessions which he likely previously left on the negotiating table.
Let’s be clear – what stands between the Marlins & MLB to have a new facility built and paid for with 75% public monies, in an area with more financial difficulties than typical, is some combination of the following:
- Allowing local governments more than 16 days a year access to the facility
- A Community Center
- Sharing a portion of the naming rights to the facility
My suggestions for changes would be the following:
- Concrete language in BSA regarding the Marlins responsibility for construction cost overruns.
- Disclose how the county would pay those overruns, if the Marlins manage to sue and win to avoid paying for those costs – over/under on date Marlins would sue is now October 2009.
The bottom line is that the Marlins & MLB can afford to compromise, local politicians already have [it’s like breathing for them]. If the Marlins & MLB don’t compromise, they will have hung those politicians out to dry and would then deserve to have their fates decided by the Florida Supreme Court. A court which is danger of giving the term, ‘flaming lefties,’ a bad name.
Sorry, I think what the judge did was weak. She passed the buck. Her job is to rule based on current law as she understands not to wait for guidance from the Supreme Court. What precedent does that set? >>There is a time-sensitive nature to this case and now it’s in limbo indefinitely for what you rightly point out could be nothing more than political considerations for the judge herself.>>As far as the naming rights to the stadium go, don’t kid yourself. Pro Player went bankrupt and the Dolphins attempted to sell the rights for several years and finally gave up. And that’s the freaking Dolphins.
The problem is, Braman doesn’t appear to want to give up his fight for a referendum, EVEN if some of his concessions are granted.>>My very non-expert opinion on Judge Cohen’s decision to wait until the state Supreme Court decides: it’s passing the buck and waiting until her re-election is in the bag. Notice how at the beginning of the case, she mentioned a few times her personal feeling that the Megaplan should go to a public vote, but that the LAW probably indicates otherwise. In other words, she pretty much admitted that Braman doesn’t have much of a legal case. She sees the polls which suggest that most people aren’t in favor of the plan, and her re-election is in jeopardy if she makes a quick decision against Braman.>>You make some solid points regarding the Marlins’ ability and interest in negotiating. Samson and company have proven to be tough to deal with at the negotiating table, and quite frankly I don’t trust Samson and Loria enough for them to consider this community’s benefit from a new ballpark. They would just as well leave town with a sweet deal in place in another city, provided they can get one.
Thanks for your comments Henry & Robert. I can't really disagree strongly with any of your points. But I'll try to reinforce some of mine in response.>>Judge Cohen>I think she is definitely exposed to the 'election jitters' attack on her ruling. On the other hand, as a conservative, I dislike when judges in effect make decisions for communities. Scalia has written much about this issue, why in the world do we think a law degree qualifies them as arbitrars on a wide spectrum of issues?>>The one disappointing thing about her deferral, even giving her the benefit of the doubt about the politics of it, is that it strikes me as something which could have determined at the outset and spared the parties involved the time and expense of the trial at this time. But like you Robert, I'm no expert.>>Braman>I am putting a lot [too much?] of faith in the leaks about Braman's demands after the pre-trial mediation. I'm assuming that if he really could not be placated, none of those items would have been leaked.>>I'm still hopeful that 5 years from now, the 3 of us can have a beer across the street from the stadium before a game and watch kids shoot hoops at the Little Havana / Normando Braman Community Center – after all, nothing says Little Havana like Braman!
<>I’m still hopeful that 5 years from now, the 3 of us can have a beer across the street from the stadium before a game and watch kids shoot hoops at the Little Havana / Normando Braman Community Center – after all, nothing says Little Havana like Braman!<>>>That would be cool. One more thing about Braman: I was driving along Biscayne Boulevard yesterday and went right by his BMW/Cadillac dealership on 22nd street, you know, that area of “slum” and “blight”!
Actually, Braman’s BMW/Cadillac dealership is 2 blocks north of the CRA boundary as far as I can gather. Still, it’s hard to think that the entire Omni CRA is slum and blight.
A beer at the “Bowl Bar”. Yeah I’m up for that.