CITY ATTORNEY JOSE SMITH’S PROFESSIONAL BIGOTRY
August 18, 2012
By David Arthur Walters
THE MIAMI MIRROR
I was astonished when I received a copy of Miami Beach City Attorney Jose Smith’s letter to the editor, publisher, and owner of SunPost, a weekly to which I occasionally contribute articles, and read that he, in an effort to discredit me, called my reference to the well known struggle between Jews and Cubans for dominance in Miami Beach “bigoted, delusional, and defamatory.”
“I happen to be BOTH!” he wrote, claiming that my criticism of him was an attack on the city itself, an identification that in my opinion was delusional. His pronouncement that I was deluded, implying insanity, in an attempt to ruin my good reputation as a journalist and provocative controversialist, was libelous per se hence requiring no proof of damages, but I have no intention of playing that cowardly thin-skinned game.
I had no idea that Mr. Smith was a Cuban or Jew or both or neither when I made the reference to a Cuban coup or deal that resulted in dominance of the city administration by Cuban Americans for the last dozen years. Two old-timers had related to me some lore about the arrangement. Little did I know that Jews overpowered the reprehensible discrimination against them and dominated the seven-member commission since World War II, until Jose Smith was elected commissioner in 2001, hence the Hispanics had a majority on the commission for the first time. Jorge Gonzalez of Hialeah was installed as City Manager and proceeded to fill the administration with Cuban Americans. Mr. Smith was going to run against David Dermer for mayor but a deal was made that he would get the highly paid city attorney post if he declined to do so. Or so the story goes.
“Mr. Walters has crossed the line. That kind of language is reprehensible and should be condemned. I have always had enormous respect for the SunPost and its writers. I hope that you will take appropriate steps to insure that your writers continue to earn that respect.”
The editor, Kim Stark, delayed publication of one of my articles in order to consult with her mom. That article was eventually published, but valid criticism of the City Attorney Office was edited from a subsequent article before it was published. And the editor killed a previous article reporting the facts of the public record conversation with Mr. Smith because she felt it looked like a “blog” instead of a “factual report.” I was not outraged, however, for the World Wide Web is big enough for all our facts and opinions. Besides, we all have some Jewish aspects, and we should not subject ourselves to be crushed into full acquaintance with the almighty due to groundless hatred.
In fact Mr. Smith had violated the public records law by refusing to fully disclose what transpired in a special code enforcement court case, claiming that all records had been turned over to me, when in fact the recording of the hearing wherein special magistrate Babak Movahedi refused to mitigate a $30,000 fine had not been turned over to me.
An assistant city attorney overruled the magistrate after cutting a $2,520 deal with the defendant’s attorney, who noticed the code enforcement court of an appeal to the circuit court but apparently did not actually petition the higher court. The reason given for the “dismissal” was Defective Notice.” But I was informed that the argument before the judge was specious, and assumed the specious argument appertained to the defectiveness claimed by the city attorney, therefore I made a public record request for all records of the case.
Mr. Smith falsely asserted that there were no other records than the documents I had been provided. He disparaged me in public record email and completely misrepresented my request with such remarks as “You should know the subject you are writing about! ...and you call yourself a ‘journalist?’ While you concede that ‘the original notice was defective’ (a due process violation), you incredibly assert that there is ‘no legal reasoning whatsoever for lifting the lien and dismissing the fine’. Are you serious? What are you talking about?”
I replied that I was a far better journalist than he was an attorney. A further request for an adequate explanation was of no avail: “All records you requested were already provided to you. Don't waste your time asking for the same thing multiple times. My office will not provide you with a tutorial on due process, service of process or constitutional law. Get your own lawyer!”
The display of professional bigotry and overweening official arrogance convinced me that he is not the sort of attorney I would want serving me unless he was insulting my worst enemy, providing that enemy could not afford an attorney. However, according to the charter provision outlining his responsibility, he does not serve me or the people of Miami Beach: the “municipality and all of its officers” are his clients. That is, The City. The members of a church are The Church, but the residents of a city are not The City. As we have seen, Mr. Smith identifies himself with The City, conflating his ego with the institution in which he is narcissistically submerged, therefore he serves himself.
If we have any doubts about his conduct or criticism of his office, we are ordered to get our own lawyer, as if we could afford one. I am left to suppose that all his assistants have to do when dismissing a case is to say something like “Defective Notice,” and mumble “Due Process” and that should be the end of it for they are officers of the court with unsurpassed knowledge of the law.
But wait a minute! We heard that the judge, a highly qualified lawyer himself, considered the defendant’s argument specious, attractive but invalid. What happened? And what right does a city prosecutor have to “dismiss” a case decided by a judge in favor of the city, when there is no evidence of an appeal actually being filed with the higher court?
“Get your own lawyer!” is the answer we get from Jose Smith, Esq.
That reminds me of the notion that we are all subject to the rule of law despite our relative status. That notion, according to some doctors of jurisprudence, can be dispensed with because there is really no such thing as the Law. We are ruled by men, by what they happen to decide, no matter how wise or stupid they may be, and not by the Law.
“You have not complied with the public records request,” I responded, “therefore I shall see if the state attorney can assist me with the request. I see you are using the usual excuse. You do not represent the people, you represent the power elite. Mr. Austin would agree.”
The allusion was to philosopher John Austin (1790-1859) and the theory of legal positivism, which denies the notion that law is posited by divinity or is grounded in human reason, and holds that laws are essentially commands posited by a recognized sovereign backed by threats of retaliation for disobedience.
Incidentally, I am informed that Mr. Smith is “someone who likes to keep a low profile, a very powerful man, one who plays hardball behind the scenes.” Indeed, the greatest fear restraining Miami Beach residents from open criticism of the administration over the last dozen years has been the fear of retaliation. That came to mind when Mr. Smith, during our intercourse, offered to walk me over to the FBI—I am a great walker and would beat him there, though I would rather take a bus to save on shoe expenses.
The law, then, is posited as the rule of men, of legislators, judges, and regulators, and is not the rule of an objective law independent of men. Sovereign commands may be condoned by reasoning, but no justification other than the threat and possibility of retaliation is required from high authority. Oliver Wendell Holmes Jr. in The Path of the Law asserted that there is no basis in reason for which contradictory legal reasoning is correct. Richard Posner more recently posited that legal reasoning can dispense with the notion of the rule of law.
Now every lawyer has a little judge within, and a city attorney like Jose Smith may feel he and his staff have enough inherent sovereignty by virtue of high office to issue pragma with no other explanation than that Due Process requires it. The rule of men is such that Mr. Smith is not required by law to advise or represent or explain anything to the members of the community inasmuch as they are subordinate to the power elite of which he is a member and to whose governors alone he must answer. Fortunately, since the ruling elite are elected, the community may dispense with his services indirectly.
I asked Mr. Smith’s esteemed colleague, Joe Centorino, Director of the Miami Dade County Commission on Ethics and Public Trust, for the assistance that he had promised everyone in getting public record requests satisfied or referring them to the State Attorney’s Office. He asked me for evidence, which I promised to provide. However, as I prepared to furnish circumstantial and direct evidence, he dismissed me with a statement that he had no evidence, he had only my opinion. Joe is a great teacher of ethics, but he tends to doze off from time to time.
As it turns out, the recording of the hearing before Special Master Babak Movahedi did reveal that the argument made by the violator’s attractive representative was specious. She said simply said the fine was not fair because the owner was away and did not receive her mail. But she did not move the judge to quash the order for the fine and order the lien released on grounds that the original notice was defective. So the owner did not get her mail. So what? She should have made arrangements to get her mail, to take care of her property. Mitigation “DENIED.”
The owner and her husband thought they were legally responsibility for the fine, so they had withheld the money from the contractor who had created the violation by start the job without a permit, something he believes everybody does because they get off easy if they are caught doing it. The contractor got an acquaintance of the owner to represent the owner, and he showed up at the hearing himself. After mitigation was denied, the contractor hired a lawyer to represent the owner. Apparently, all the lawyer had to say to the city’s counsel was “Defective Notice,” and agree to pay $2,520—it would be paid by the contractor. The defective notice, then, was only 90% defective.
The original notice does appear to be somewhat defective because it went to the right address but with the previous owner’s name on it. Knowing lawyers, we believe there is room for some quibbling, and we know very well that the entire fine could have been collected given the fact that the owner was ready to take the fine out of the contractor’s hide.
In any case, I have now learned a great deal about the professional bigotry of our current city attorney, and, as a consequence, I tasted the “bad blood” between him and the special masters he wants removed as soon as possible so he can have his own people installed. That is not to say that I intend to continue “attacking” him until he retires or is fired from his lucrative position of overbearing power. We may become friendly before then. But I shall be glad to point out the facts that I do know and draw reasonable inferences thereupon. Sometimes wrong inferences are drawn when we are too easily insulted and when information is not fully disclosed. That is the lesson I hope he has learned.