By Dan Christensen, FloridaBulldog.org
Paternity/child-support cases rarely make the news, if for no other reason than Florida’s law and courts envelop them in secrecy.
But the law and the courts didn’t reckon with the likes of A.J. Delgado. Her bitter family court fight with Jason Miller, the father of her 4-year-old son who like Delgado is a former high-profile spokesperson for ex-President Donald Trump, has roiled the benches of both Miami-Dade and Broward.
Court records obtained by Florida Bulldog show that judges left and right recused themselves from presiding over J.M v. A.J.D. until, ultimately amid Delgado’s unrelenting allegations of bias and judicial impropriety, the chief judges in both counties threw up their hands and disqualified all of their judges from hearing the case.
A Monroe County judge briefly assigned to the case recused herself, too.
If that’s not odd enough, internal email exchanges between the offices of Florida Chief Justice Charles Canady and new Miami-Dade Chief Judge Nushin Sayfie spell out an unusual arrangement under which the case is once again back in Miami-Dade family court – assigned to one of those previously disqualified judges, Spencer Multack.
UNPRECEDENTED COURT ACTION
That apparently unprecedented turn of events has triggered a pending row before the Third District Court of Appeal (DCA), where an incensed Delgado, in a 51-page indigent petition, asked a panel of judges on Feb. 22 to require Sayfie to abide by her predecessor’s May 1, 2020 order, disqualify Multack and request yet another outside judge to hear her case.
“It seems to certainly be a first in Florida history for a disqualified judge to be reassigned to a case but that it what is happening here,” Delgado wrote.
The next day a unanimous three-judge panel stayed the trial court’s proceedings and sought responses. On March 1, 11th Circuit General Counsel Patricia Gladson filed a four-page document saying only that Sayfie had “reviewed matter and determined that no conflict prohibited the case from being heard by a judge of the Eleventh Judicial Circuit.” No explanation was offered. A lawyer for Miller, Nancy Hass, filed his response Monday. It didn’t appear on the docket until Wednesday and the pleading was not immediately available.
“What is going on in the 11th Judicial Circuit that they are so insistent on this case being under their jurisdiction,” Delgado said in an interview. “Something is up.”
The Third DCA is quite familiar with the case. In 2020, Delgado filed a petition challenging a gag order imposed by a Miami-Dade magistrate to keep her from publicly revealing on social media or elsewhere any financial or employment information Miller had been ordered to produce. She argued the order constituted an illegal prior restraint that violated her free-speech rights.
“We agree,” a three-judge panel’s order said, while observing that the case “has devolved into escalating rounds of pugilistic litigation.”
Delgado, 44, a conservative Harvard law graduate whose first name is Arlene, and Miller, 47, a Washington, D.C. political consultant who is married with two daughters, had an affair while working on Trump’s 2016 presidential campaign. She was then a senior adviser and Hispanic Outreach director who appeared on MSNBC, Fox, CBS and other television networks. He was chief spokesperson and regular pro-Trump contributor on CNN.
THE PREGNANCY PROBLEM
Delgado sued the Trump Campaign in the Southern District of New York in 2019 claiming she was denied employment status in the White House because she was pregnant. She lost her failure-to-hire complaint, but late last year did receive an arbitration award, according to court records. The amount was not disclosed.
Delgado told The Atlantic magazine in August 2017 that she discovered she was pregnant a couple of weeks after Trump’s election victory in November 2016. She told Miller as the two served on Trump’s transition team and their relationship began to fall apart.
“The acrimony spilled into public view shortly before last Christmas, when Delgado chose to respond to Miller’s widely reported appointment as White House communications director with a series of cryptic tweets hinting at a sex scandal. ‘Congratulations to the baby-daddy on being named WH Comms Director,’ read one,” the magazine said.
Miller soon backed out of the White House post. His and Delgado’s son, William, was born in July 2017. Within days, Miller filed suit in Miami-Dade demanding a paternity test. He has since acknowledged publicly that the boy is his.
Delgado counterclaimed seeking child support. After some resistance, Miller is now paying temporary child support, Delgado said. The case continues, however, with permanent child support, timesharing and more than $100,000 in legal fees at issue.
The court action triggered a deluge of salacious stories from sources as diverse at the Washington Post and People Magazine. The Philadelphia Inquirer’s headline: “Two Trump staffers had a love child, and the situation is getting ugly.”
Today, Delgado lives with her mother and son in a two-story, four-bedroom Miami home partially surrounded by a white picket fence. Miami-Dade County property records list her as co-owner. She nevertheless filed a certificate of indigency with her pro se appellate petition last month.
Miller, who Salon has reported earned $420,000 a year as Trump’s spokesman, left that position in June 2021 to start and run the conservative social network, Gettr.
The Miller-Delgado case was originally assigned to Miami-Dade Judge Valerie Manno Schurr, who stepped aside six months later. She did so following a December 2017 hearing at which she declared “on the record that she, too, would have sent an email like the one the Father’s wife sent to the Mother. The email in question called the Mother a ‘f*cking slut.’”
“Such was the beginning of a litany of mistreatment by the 11th Circuit bench of the Mother, in favor of the male, the wealthy, and the well-connected Trump advisor Father,” Delgado told the Third District Court of Appeal in her petition.
Judge Schurr then transferred the case to Judge David Young. After another six months, he became the second casualty.
Delgado moved to recuse Young, contending a friend of her then-lawyer overheard him making “disparaging remarks about the case at a private dinner party and openly discussing the parties and the case, which even led to a heated argument between Judge Young and his husband, Judge Scott Bernstein,” who at the time was the family division’s administrative judge, the petition says.
Young snubbed Delgado’s allegations as “legally insufficient” to force him out, but didn’t deny them. Instead, he fired off an order of recusal that indicates Delgado’s fear of bias by the judge was not unfounded. Young accused Delgado of turning “this proceeding into all-out war,” questioned her “emotional and mental health” and referred to the case as “unnecessary litigation.”
HERE A COURT, THERE A COURT
Up next: Judge George Sarduy. He recused without being asked 14 months later, in September 2019, just three days before a scheduled trial. Delgado told the appeals panel Sarduy had originally set trial for August 2019, but granted Miller a month’s delay after Miller “claimed he was in an in-patient mental institution.”
Delgado wrote that Miller sought another delay in early September, which she “vehemently” opposed, but provided no medical documentation or testimony to back his request. “Lacking legal grounds to grant the continuance, Judge Sarduy nevertheless found a way to give the Father the continuance via a roundabout manner: by recusing himself sua sponte, which he did a mere 36 hours away from trial, leaving the Mother in tears in the courtroom,” Delgado wrote.
Judge Marcia Del Rey next caught the case. She “sat” on it for three weeks without responding to calls to her chambers from Delgado’s lawyer, and then abruptly “recused herself, sua sponte with no explanation provided,” Delgado wrote.
In October 2019, Judge Ivonne Cuesta was assigned the case. Following a hearing in early March 2020 she became the fifth judge to step down. According to Delgado’s petition, “Judge Cuesta realized she was gravely wrong to have misjudged and wrong to have assumed it was the Mother causing the litigation and being difficult, a sheepish and embarrassed Judge Cuesta, to her credit, offered to recuse herself on the spot. The Mother accepted the offer.”
Five recusals in a circuit where three usually trigger a transfer to another jurisdiction. But things were about to get weirder.
THE LOST JUDICIAL ORDER
On March 13, 2020, Delgado’s lawyer filed an emergency motion asking then-Chief Judge Bertila Soto to disqualify the entire 11th Circuit bench from her case and have an outside judge brought in – a move Miller’s lawyer quickly opposed.
On April 14, after hearing nothing and not seeing her motion reflected on the docket, attorney Laline Concepcion-Veloso emailed the court. Soto’s bailiff, Robert Reyes, replied six days later, telling her Judge Soto had denied the motion on March 17.
Then he added this, “Unfortunately due to emergency procedures implemented because of the COVID-19 pandemic no one in the clerk’s office can locate that original document at this time.” Soto would sign a duplicate “today in order to preserve the record.”
A lost judicial order, and the chief judge blaming COVID and the clerk. Another unheard-of twist.
Soto sent Veloso a copy of her substitute order. It includes the first page of the emergency motion with her name stamped on it and the handwritten words, “Duplicate. Denied” and three additional, misspelled handwritten words intended to say nunc pro tunc, the Latin phrase judges use to apply orders retroactively. In this case, Soto was attempting to backdate the document to March 17, the day Soto claimed she originally denied the motion. Bailiff Reyes personally delivered the “duplicate” denial to the clerk’s office.
Delgado’s lawyer quickly objected to Soto’s “attempt to create an order by way of nunc pro tunc (a procedure meant to be used to, for instance, simply fix an error in an order) when there was no indication the March 17 Order ever indeed existed.”
Soto capitulated on May 1, 2020, noting that because the order she issued “was not filed or docketed by the Clerk of the Court … this court has no choice but to grant the Mother’s motion” and requested a reassignment from the Florida Supreme Court.
Delgado’s petition characterizes Soto’s order as having been issued “through-gritted teeth.”
A BROWARD COURT GETS THE CASE
Chief Justice Canady assigned the case to Broward Judge Peter Holden to serve as a visiting judge in Miami on May 5. Holden had the case for about a year, fending off two motions to disqualify him filed by Jason Miller, before things blew up.
On May 21, 2021, attorney Veloso emailed a letter to Broward Chief Judge Jack Tuter seeking action on a motion she’d filed two weeks before seeking an explanation as to why Holden’s supervisor, Family Court Division Chair Fabienne Fahnestock, had involved herself in the case after being contacted by Jason Miller’s lawyer, Sandy Fox.
Veloso learned of the contacts when Fox responded in writing to a May 5 email from Holden’s judicial assistant informing him that time had been set to hear Delgado’s motions for contempt on May 27.
“I have now twice addressed with Judge Fahnestock the continued problems with scheduling in your division. It is my understanding that this was discussed with Judge Holden and would be rectified. Why do we continue to have these difficulties?,” Fox wrote.
Veloso told Tuter she’d tried several times to get an explanation from Holden about those “improper, undisclosed communications,” but that his chambers had “gone dark.”
“Thus, the Mother brings this matter to your attention,” Veloso wrote. She did not request Holden’s recusal.
At 4:13 p.m. that day, a Friday, Tuter replied by email. “I will enter an order on this on Monday.”
BROWARD CHIEF’S ‘DIFFICULT SITUATION’
But it turns out Tuter was already well-aware of the case and was looking to boot it out of Broward.
Ten days before, on May 11, Tuter sent an email to Justice Canady’s office to inform him about a “difficult situation.”
“Since its inception the assigned judge, a well-respected jurist has had nothing but ridiculous allegations leveled at him personally; motions to recuse; and interlocutory appeals on most of his rulings,” he wrote. “They are now serving public records requests for information relating to the judge assigned to the case [Holden] and an administrative judge of the family division [Fahnestock]. I feel we can no longer be unbiased against these litigants and attorneys and as such ask this case be reassigned to another circuit.”
One public records request Tuter was referring to was made by Delgado. It led to release of Tuter’s email quoted above.
Four days after getting Veloso’s letter, Tuesday, May 25, Tuter issued a bitter order disqualifying the 17th Judicial Circuit from hearing the case and asking Canady to assign another circuit.
“A cursory review of the docket reveals the litigants and their attorneys have engaged in a scorched earth path of litigation. Accusation after accusation of alleged judicial misbehavior leading to the Chief Judge of the 11th Circuit to ask for an out of circuit judicial assignment. Not satisfied disqualifying the largest judicial circuit in the state, the parties now seek a path towards disqualifying the second largest circuit in the state,” wrote Tuter.
Tuter’s order makes no mention of Fox’s ex parte communications with Judge Fahnestock, Fahnestock’s secret contacts with Holden about the case or Holden’s decision to keep the matter to himself. Instead, Tuter’s order attacks the parties and their lawyers.
BRIEF STOP IN MONROE CIRCUIT COURT
Still, Tuter got what he wanted. On May 28, Chief Justice Canady shipped the case to Monroe County Circuit Judge Bonnie Helms in Key West. It is noteworthy that two months later, in July 2021, Tuter quietly transferred Fahnestock out of her post as an administrative family court judge and assigned her to the civil division.
Helms didn’t last long, either. She recused herself in August and asked the Supreme Court to again reassign the case. Delgado told the appeals panel Helms refused to travel to Miami-Dade for trial.
The case languished without a judge for more than two months until the morning of Nov. 3 when Chief Justice Canady’s judicial assistant, Della White, sent an email to Miami-Dade’s chief judge – Soto was now gone, replaced by Sayfie on July 1 – informing her of Helms’ recusal and adding a curious suggestion.
“I wanted to confirm that your Court may now be in a position to take the case of Miller vs. Delgado back. The conflict that originally existed, may no longer exist. Is that correct?” White wrote.
No “conflict’’ was ever cited to explain a recusal, and White did not explain the conflict to which she was referring. But five minutes later Sayfie replied, “Hi, Della – Yes. We can take it back. To be honest I am not able to ascertain why a request for a special assignment was ever done. It was well before my watch. But yes. Send it on back. And my apologies to ALL for any unnecessary inconvenience.”
A DISQUALIFIED MIAMI-DADE COURT GETS THE CASE
And like that, Judge Multack was assigned to the case – and Miami-Dade’s disqualified bench was presiding again.
Veloso objected in a Nov. 10 letter to Sayfie, noting, “the entire 11th Circuit family bench was disqualified in May 2020 by your predecessor, Chief Judge Soto, and that Order remains. Furthermore, an order assigning Hon. Judge Multack, a judge presiding in the very same bench that was disqualified, has not been entered and/or served.
“My client experienced undeniable bias, lack of impartial treatment, and admitted pervasive chatter about her case, including amongst judges, resulting in harm not only to her but to the minor child,” Veloso wrote.
Sayfie wrote back the same day: “I am in receipt of your letter. Pursuant to Chief Justice Canady’s order (attached) the above-referenced case is back in the 11th Judicial Circuit assigned to Judge Multack. And you may, of course, avail your client of any lawful appellate remedies that are appropriate.”
But the Nov. 5 order from Canady that Sayfie mentions only “terminates” Helms as the presiding judge. It doesn’t appoint Multack.
Multack sided with Sayfie, denying Veloso’s motion on Delgado’s behalf that he relinquish jurisdiction. “This court is abiding by the Order of Termination” issued by the Supreme Court of Florida on November 5, 2021 and is without authority, nor finds cause, to act otherwise,” Multack wrote in his Jan. 31 order.
Three weeks later, Delgado filed her pending petition in the Third District Court of Appeal seeking a writ of mandamus and an order to Multack and Sayfie that they abide by Judge Soto’s ruling disqualifying them.