by Mike Sharkey
Staff Writer
It’s not very often an attorney from Jacksonville appears before the United States Supreme Court. The fact that two who live in the same neighborhood were both in the highest court recently is even more rare.
So, what are the odds two attorneys from Riverside with kids in the same soccer association end up on opposite sides of the same case before the Supreme Court?
“I think it’s very rare these days,” said Bryan Gowdy, of the law firm Mills, Creed & Gowdy.
He and Florida Solicitor General Scott Makar — who spent several years in the Office of General Counsel — were both before the Supreme Court Nov. 9. Both had 30 minutes to present their side of a case that involved a juvenile defendant and the possible violation of his Eighth Amendment rights that protect him from cruel and unusual punishment.
This is isn’t the first time two Jacksonville attorneys have been in front of the Supreme Court arguing opposing sides of the same case. In 1971, Sam Jacobson and Ed Austin argued a case that challenged the City’s vagrancy laws. Four years later, Bill Maness and William Allen were on opposite sides of Erznoznick vs. City of Jacksonville.
Makar and Gowdy have known each other for several years and found out this past spring they would square off in court.
“A few days after the Court agreed to hear the case on May 4, I called Scott to inquire whether he would be handling the case, as I guessed he would be given his role as Florida’s Solicitor General,” said Gowdy. “I was excited that my first argument in the U.S. Supreme Court would be against someone who I knew personally and for whom I had a great professional respect.”
A few weeks later, Makar said he and Gowdy began to discuss the case. Regardless of which side you represent, the Court requires certain procedures be followed before the court date.
“I knew that the case would be well-briefed by Bryan’s firm, whose lawyers I’ve known for many years,” said Makar. “I also knew that we’d have an exceptionally professional relationship because of our mutual friendship and admiration for each other’s work. It made the undertaking much more enjoyable to know that opposing counsel would be a consummate professional.”
In addition to sharing information, Gowdy and Makar continued their personal relationship. In a case before the Supreme Court, there’s no need for secrecy or surprise. The decision of the Court is based on the merit of the argument and legal precedent.
“As professionals, we had to talk about the case, at least some aspects of it,” said Gowdy. “And the first thing we talked about was to get extensions of time to file our respective briefs, so that each of us could spend some time over the summer going on vacation with our families.
“Scott and I communicated frequently, on a both a personal and professional level, during the six months between certiorari being granted on May 4 and the oral argument on Nov. 9. For example, Scott’s son and my son both play in the same soccer league (Westside), and we often saw one another at the fields. We would ask one another how the work was going on the case.”
Because Makar had been before the Supreme Court on other occasions, he was familiar with the steps that had to be taken before the hearing.
“We always kept in close communication on procedural aspects of the case, such as preparing the joint appendix and getting a revised briefing schedule” he said. “The Court ordinarily has a very rapid briefing schedule, which we were able to extend a bit over the summer of 2009 to make our work loads manageable. Because I had two cases (the other was Sullivan v. Florida), it was even more important to have a little extra time to prepare the merits briefs in both cases.”
Once Nov. 9 rolled around, the familiarity with the each other erased any nerves or unease that could have resulted from being in front of the land’s highest court. Neither thought it was odd to see the other across the courtroom.
“Not odd at all. It was a moment of personal and professional pride that both Bryan and I, as Jacksonville lawyers, neighbors, and good acquaintances, were given the privilege to argue at the United States Supreme Court together in the same case,” said Makar. “The hour went by quite quickly. Bryan did an excellent job and represented both his client and our local bar with great distinction. We met on the steps of the Court afterwards. I had my wife, Nancy, and my son, Aaron, with me, so it was a great moment.”
Gowdy agreed that seeing a friend as opposed to someone who only existed via briefs, phone calls and e-mails made the experience ever more enjoyable.
“It was not so much odd, as comfortable,” said Gowdy. “In addition to Scott, I had many other friends attend the argument, as well as my partners (John Mills, Rebecca Creed, and Jessie Harrell) and my family. Right before I had to argue, I saw all of these familiar faces in the courtroom (including Scott’s), and I think seeing these familiar faces made me feel more relaxed and comfortable.”
Neither claimed a victory. Gowdy says the justice system was the winner because both he and Makar presented solid, well-argued cases. Makar agreed and both complimented each other on the entire process from start to even sharing seats in the courtroom.
“I think that the lawyers on both sides of the case gave the Justices the information they need to make a decision on a very important constitutional issue,” said Gowdy. “The Court’s marshal allocates for each counsel arguing before the Court a limited number of tickets to give to friends and family. I had more demand for tickets than I could satisfy. Scott was gracious enough to provide me with one of his tickets. This demonstrated what a true professional he is.”
“We both won because we had such a great opportunity to argue momentous issues that captured the attention of so many people nationwide, if not worldwide,” said Makar. “This interest was reflected in the lines that formed outside the Court the night before the argument for the very limited public seats that are available; I’m told that only those who were in line by 2-3 a.m. the previous morning were able to get seats for the arguments. Thankfully, Bryan and I were able to get reserved seats for most of our attorneys and family that wanted to get in.”
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