Judge Cohen Punts Even When She Rules

I am glad that the stadium plan cleared this hurdle, but …

I had an earlier post which speculated on whether a judge could recuse themselves due to an election. But now, safely reelected, you would think that Judge Cohen would be free to provide a clear perspective on the case brought by Norman Braman against the Marlins and local governments. However, by ruling in the Marlins favor that a new stadium could serve the public good, but then noting — see Sarah Talalay’s blog — that the Marlins got a ‘sweet deal,’ she still seems more concerned about not appearing to endorse the stadium plan, even if the law did not allow her to rule against it.

I noted the following items in Judge Cohen’s ruling:

  • The financial condition of the Marlins is unknown to anyone except the Marlins and MLB [that sentence is a source of great sadness to this blogger].
  • Marlins consistently have among the lowest attendance figures in MLB.
  • Marlins are the seventh most watched MLB team on television.
  • The County will loan the Marlins $35 million for the construction of the stadium. The Marlins will repay that loan at $2.3 million per year for 30 years – that amount has incorrectly been referred to as rent.
  • Marlins will pay the City of Miami approx $4.6 million per year for parking spaces.
  • Braman claimed that several years ago Marlins were $60 million in debt.
  • 18 new stadiums since 1992 were constructed, are under construction, or are in pre-construction stage in cities throughout the nation … most with large contributions of public funds and significant revenue streams to the sports franchise.
  • Only two courts in the country have held that the building of sports facilities do not satisfy a paramount public purpose.
  • Judge agrees with Braman that the Marlins got a sweet deal and that they may not be able to honor their financial obligations.

Things I would have liked to see addressed in her ruling:

  • Why is it a sweet deal? In comparison to which of the other recent stadium financing agreement(s)?
  • Beyond the Braman testimony regarding possible Marlins debt years ago, what other facts contribute to her perception that the Marlins may not be able to meet their obligations?
  • What would account for government officials entering into a stadium agreement with the Marlins without having informed themselves as to their finances?
  • If the Marlins are deep in debt, is the sweet deal a necessary component to having a viable MLB franchise in Miami?
  • How much sweeter would the deal have to be in order for her not be concerned about the Marlins meeting their obligations to the county?

I would have expected a judicial ruling to either address the questions I list or avoid topics which are ‘not the business of the Court.’ So Judge Cohen, next time, please put up [quantify] or … edit more aggressively.

See a link to a PDF of her decision. See various complete Sun-Sentinel and Miami Herald articles below.
South Florida Sun-Sentinel.com
Marlins win major battle in lawsuit over stadium

By Sarah Talalay


7:57 PM EDT, September 9, 2008


The Florida Marlins say they will proceed with plans for a $515 million ballpark at the site of the former Orange Bowl after a Miami judge ruled Tuesday that the project serves a “paramount public purpose” – meaning public dollars can be used to build it.

Miami-Dade Circuit Court Judge Jeri Beth Cohen called the ballpark issue “contentious and emotional,” but said the law is clear in the case filed by auto dealer Norman Braman targeting the financing of $3 billion in Miami projects, including the ballpark.

“The job of this Court is to examine the facts and apply those facts to the law,” Cohen wrote.

The Marlins, Miami-Dade County and city of Miami will continue negotiating final construction and financing agreements and hope to present them to city and county commissioners in the coming weeks. The team plans to unveil renderings of the 37,000-seat ballpark shortly.

“This is a critical step in securing the long-term future of Major League Baseball in Miami,” Marlins owner Jeffrey Loria said in a statement. “We will proceed immediately to finalize discussions with the County and the City to put in place all the long-awaited final agreements.”

Braman, however, vowed to fight on.

“We’re optimistic we’re going to prevail on appeal,” Braman said. “We’re going to take it to the district court and if necessary to the Supreme Court of the State of Florida.”

Cohen plans to rule on the case’s remaining count – whether a public vote is needed on a portion of the funding of the $3 billion in projects – after Sept. 15, as she is waiting for the state Supreme Court to rule in similar cases.

Regardless, the team, city and county believe they can move forward because the ballpark’s financing does not rely on property tax dollars. Braman, however, disagrees and says the funding for all the projects, including the stadium, must be subject to a public vote.
South Florida Sun-Sentinel.com
Marlins Stadium Update No. 0-60
> Posted by Sarah Talalay at 11:40 PM

The Marlins scored a huge victory Tuesday when Miami-Dade Circuit Judge Jeri Beth Cohen ruled their ballpark serves a “paramount public purpose” – meaning public dollars can be used to help build it.

The team, Miami-Dade County and city of Miami believe the ruling in the case filed by auto dealer Norman Braman targeting the financing for $3 billion in Miami projects, including the ballpark, means they can move ahead with their plans for the $515 million stadium at the site of the former Orange Bowl.

They plan to step up negotiations of definitive construction, financing and other documents so they can bring them to city and county commissioners in the coming weeks. And the team says it will finally be able to share new renderings of the ballpark soon.

“We welcome Judge Cohen’s ruling, which confirms that our elected officials have made the right decision for the future of our community. It is unfortunate that so much time and so much of the public’s money has been wasted in this legal process,” Marlins owner Jeffrey Loria said in a statement. “This is a critical step in securing the long-term future of Major League Baseball in Miami. We will proceed immediately to finalize discussions with the County and the City to put in place all the long-awaited final agreements.”

Interestingly, Cohen’s ruling indicated that she understood the ballpark issue is “contentious and emotional,” but acknowledged it was the court’s role to apply the law, not sentiment.

“While the Court agrees with Plaintiff that the Marlins are getting what amounts to a “sweet deal,” this is, put bluntly, not the business of this Court,” Cohen wrote in her 41-page ruling.

The team would like to begin construction by year’s end and open the 37,000-seat retractable roof ballpark in 2011. That time frame is getting exceedingly unlikely, but hasn’t been written off yet.

“Our plan is to recommend to the board that we proceed as we’ve always intended,” Miami-Dade County Manager George Burgess said. “We’re happy about the project … We’re committed to a project and if you’re confident in your position, why would you stop?”

Braman, however, plans to continue his legal fight, taking his case to appellate court.

“We’re disappointed in the judge’s ruling, but not that surprised by it,” Braman said. “We’re going to be appealing the judge’s decision, we’re optimistic we’re going to prevail on appeal. This is the first round of a fight, that we expected would last beyond the lower court.”

Braman said he will take the case to appellate court and even as far as the Florida Supreme Court, if necessary.

He also quoted Winston Churchill as saying “Never, never, never, never, never, never surrender your principles. Fight on.”

Besides, he said, “This is the end of the third inning of a nine-inning game. It’s got six more innings to go.”

Among the items Braman is referring to is the one remaining count in his case on which Cohen has yet to rule: whether a portion of the financing for the $3 billion in city projects must go to a vote of the public.

Cohen said she will not rule until after Sept. 15, as she is waiting for the Florida Supreme Court to rule on similar cases.

But the team, city and county say that ruling is immaterial to the ballpark since the financing for the venue does not rely on property taxes.

Braman, however, disagrees. He believes the entire financing package for the Miami projects must go to public referendum.

Burgess and Marlins President David Samson say the referendum question is unrelated to the ballpark.

“All I can say is he can avail himself of whatever legal process is his right,” Samson said. “As far as we’re concerned this is the right result. We’re very confident it will be upheld at any and all appellate levels.”

Braman was not shocked to learn the team plans to move forward.

“There’s nothing here that surprises me,” Braman said. “They still have to get bonding. If they get someone silly enough to get them bonding, if they’re willing to take that risk, that’s their problem, not mine.”
Miami Herald

Posted on Wed, Sep. 10, 2008
Judge: Florida Marlins stadium serves public good


The Florida Marlins took a major stride Tuesday in their lengthy quest for a permanent South Florida home, when a judge ruled that a new ballpark funded primarily through tax dollars serves the public good.

With Miami-Dade Circuit Court Judge Jeri Beth Cohen’s ruling, the county and Marlins said they will move ahead with construction of the $515 million, 37,000-seat, retractable-roof stadium in Little Havana.

”This is the one we’ve been waiting for,” said Marlins President David Samson. “It’s a complete victory. It took a long time.”

County Mayor Carlos Alvarez on Tuesday restated what he told the court during his deposition: Building the ballpark will revitalize the neighborhood and create much-needed jobs.

”When the economy is hurting, it means thousands of jobs — good-paying construction jobs — for people who need them now,” he said.

The team and government are going forward even as one of billionaire auto dealer Norman Braman’s seven lawsuit counts has yet to be adjudged. They believe that issue — involving the complex financing that set the stadium and a string of other public works projects in motion — would not affect the new ballpark eyed for the former Orange Bowl site.

Braman took minor solace in Cohen’s 41-page ruling. Though Cohen found that the stadium meets the key ”public purpose” test, she also gave credence to his belief that the stadium can be viewed as a ”sweet deal” for the Marlins.

Cohen noted the county didn’t do an economic impact study for the Little Havana area, said the site has no link to downtown, noted the team did not have to make its financials public even though almost $400 million in public money would be spent, and agreed with Braman that clear proof does not exist that a new stadium would stimulate the neighborhood.

”It reminds me of a football game that you lose when all the statistics are on your side,” Braman said after the ruling. “It’s not what we believe the constitution of the state of Florida states, and we will appeal the judge’s decision to the Supreme Court.”

Replied Samson: “Let’s cut right through it. The trial court’s job is to apply the law — not to make the law.”


Ultimately, Cohen said the case law was unshakable, and that she could not counter 39 years of rulings that backed the Marlins, the county and the city of Miami’s contention that the public would benefit from a new stadium.

” . . . The law in Florida is clear that retaining a professional baseball team in Miami satisfies a paramount public purpose,” the judge wrote.

Braman sued the county, Miami and the Marlins over a smattering of issues, chief among them the claim that the use of $382 million in tourist tax dollars to build a private entity a ballpark does not serve a public purpose.

His bigger concern was that the public did not get a vote, through referendum, on the spending — part of a larger multibillion-dollar megaplan for Miami. Government leaders countered that the public elected the politicians who approved the development blueprint.

Tuesday’s ruling continued a string of losses for Braman, with all six lawsuit counts adjudged so far going against him.

Still on the table is a ruling from Cohen on the sole remaining count: whether the county can use Community Redevelopment Agency dollars to pay off a $484 million construction debt at the Adrienne Arsht Center for the Performing Arts.

Though that financing, on the surface, has no ties to building a ballpark, it’s all part of Miami’s most expansive public works plan in decades — the $3 billion deal to build a port tunnel, a park at Bicentennial, the ballpark and a streetcar system, and pay off the Arsht Center debt.


Paying off the debt frees up another pot of money to help fund the ballpark, Braman contends, noting that the team signed an agreement linking the arts center payoff and the ballpark.

The county argues it could build the stadium regardless of the arts center debt.

The agreement calls for the Marlins to put $120 million toward the stadium, and also repay the county another $35 million in “rent payments.”

Braman believes that if he wins on the last count, the court could potentially order a referendum on the spending at the Arsht Center. That, he believes, could doom the stadium.

The other side sees that last issue differently.

The ballpark, they said, will be financed with an array of tourist and convention-development and sports-franchise taxes, plus a $50 million bond voters approved in 2004 for Orange Bowl renovations — but no CRA funds.

Though Alvarez and County Manager George Burgess say there’s no link between the final ruling and the stadium, they’ve avoided answering how the Arsht Center debt would be paid off — if the judge rules it’s illegal.

Cohen said she’ll make her decision after the Supreme Court rules on a similar case from Escambia County. Initially, the court decided property tax money couldn’t be used to pay off bond debt without a public vote, a ruling that could have resonance in the Braman case.

The court then decided to rehear a motion and hasn’t issued a final ruling. There is no sense when Cohen will decide this issue.

Braman’s hope now is that, with a favorable ruling in that count, a political change of will would doom the stadium.

But Tuesday, the government was focused on the ruling at hand.

”We were quite confident that was how this ruling was going to come down,” Burgess said Tuesday at County Hall.

Miami Mayor Manny Diaz said the still-pending count of Braman’s suit will not hold back construction, though he couldn’t pinpoint the date for a stadium groundbreaking.

The city will move ”as fast as we humanly, physically, possibly can,” Diaz said.

The Marlins are pushing ahead with architectural drawings and finalizing arrangements with a contractor, all in the hopes of opening the 2011 season in the new park.

If the Marlins hope to break ground this year, county commissioners must finalize construction, management and other agreements; and city leaders need to approve land-platting and permits.

But that was the last thing on Marlins owner Jeffrey Loria’s mind Tuesday, shortly before his team took the field against National League rival Philadelphia.

The team said a retractable roof stadium would draw crowds otherwise driven away by South Florida’s steamy, rainy weather. One midday game last week drew fewer than 600 fans in their seats for the first pitch.

A new stadium would pour concession and skybox proceeds into the bottom line of a team that has won two World Series but has had among the lowest payrolls and attendance in baseball.

”We look forward to the Marlins playing in the new ballpark for generations to come,” Loria said in a prepared statement.

Miami Herald staff writer Michael R. Vasquez contributed to this report.

About Jorge Costales

- Cuban Exile [veni] - Raised in Miami [vidi] - American Citizen [vici]
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1 Response to Judge Cohen Punts Even When She Rules

  1. I don’t think it’s with judge Cohen’s purview to determine whether the deal is too sweet or not sweet enough. It is within her purview to determine whether it conforms to current law.She was not elected to evaluate whether or not the City is making a sound business decision but rather whether what they are doing is legal or not.If the law does not require the Marlins to disclose their financial statements, she can’t, to my mind require it. Now if the Marlins want to speed things along then maybe Loria should reach out and ask a favor of Selig. MLB could guarantee the obligations of the club.

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