Unpublished Junk Law of the Eleventh Circuit, US Court of Appeals

Eleventh Circuit, U.S. Court of Appeal, Masters of Jugglery: Jurisdictional Challenge Converted To Summary Reversal Motion To Achieve Desired Outcome

mcneilmason — Sat, 28 Jun 2008 09:41:56 +0000

Judge Donald L. Graham, “Teflon Don”
He’s a bad motherf^%##, Shut your mouth!

Point of This Post

This post will document how the Eleventh Circuit, U.S. Court of Appeal, used jugglery to avoid an outcome that the facts and the law would have required. Jugglery is defined as manipulation or trickery especially to achieve a desired end. This matter concerns an appeal in the Eleventh Circuit, Case No. 01-13664 and District Court Case No. 99-14027-CIV-DLG, Judge Donald L. Graham, presiding. In this matter, the Eleventh Circuit converted a motion to determine jurisdiction that it must satisfy to a summary reversal motion that is discretionary. Having recharacterized the motion, the Eleventh Circuit, without citing any facts, simply said the summary reversal was not warranted. Simply put, the Eleventh Circuit refused to state why it had jurisdiction. This post is a part of the overall scheme to land a knockout blow to the American Bar Association’s koolaid of “Judicial Independence”. The ABA’s emphasis is on “Judicial Independence” and it resists “interference” from outsiders-Congress of the United States, Layman review boards. The ABA has said: “There are checks on the judiciary and channels to correct improper decisions. The appeal process affords litigants the opportunity to challenge a judicial ruling.” About Us - ABA Standing Committee on Judicial Independence. This is the idealistic and theoretical basis for “Judicial Independence”; however, the reality or actual practice does not equal the ideals. Suppose for a moment that such a system does not work. Federal Judges will take extreme measures to avoid disciplining a colleague federal judge. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell for even more dishonest jurisprudence. Moreover, the Eleventh Circuit will do anything to achieve the desired outcome. Two posts at this site, mcneilmason.wordpress.com, document how the Eleventh Circuit will do anything to achieve the desired outcome as the Eleventh took two different and inconsistent positions with respect to the jurisdiction of the lower court or Judge Graham during the appeal of this very appeal. See Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal! and Putrid Dishonesty:Beyond the Scope of Appeal.

Premise

Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree, It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Insurance Company Of America, 511 U.S. 375 (1994). “The courts, no less than the political branches of the government, must respect the limits of their authority.” Catholic Conf. v. Abortion Rights Mobilization, 487 U.S. 72 (198 ..

ISSUE: Whether the Eleventh Circuit Had Jurisdiction of the Appeal?

The Appellant submitted a Motion To Determine Jurisdiction. The Eleventh Circuit and the U.S. Supreme Court has stated in case after case that a jurisdictional challenge maybe raised at any time. Moreover, both courts have stated that all courts are under an independent obligation to review its jurisdiction even if no party raises the issue. In this matter, rather than discuss why or why it did not have jurisdiction of the appeal the Eleventh Circuit converted the Motion To Determine Jurisdiction in to a motion for summary reversal. Having converted the motion into a summary reversal, a discretionary form of relief, the Eleventh Circuit, in a mere conclusory fashion simply asserted that the standards for a summary reversal were not met. Rather than construing the Motion To Determine Jurisdiction, a pro se motion, liberally to achieve substantial justice, the Eleventh Circuit construed the motion to achieve its own end.

Eleventh Circuit’s Response to Jurisdictional Challenge

On April 15, 2002, the Eleventh Circuit stated: “Appellant’s “motion to determine jurisdiction,” and “motion to determine subject matter jurisdiction and standing,” which are construed as motions for summary reversal, and are DENIED.” See Order Denying Jurisdiction.

On May 17, 2002, the Eleventh Circuit stated:

“Appellant’s motion for clarification is GRANTED, and this Court’s April 15, 2002, Order clarified as follows: Appellant’s motions, which were construed as motions for summary reversal, were denied because Appellant failed to meet the standards for summary disposition. See Groendyke Transport v. Davis, 406 F.2d 1158, 1162 (5th Cir.) cert. denied, 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39 (1969).”

See Order Granting Clarification.

Citing the Law and omitting the facts, an all too familiar tactic of the Eleventh Circuit, is that decisions are made with recitation to a court case with no recitation to the facts of the instant case

What Do You Know From Reading The Order?

This post was designed with the decision first for the purpose of accentuating the lack of information in decision not to discuss jurisdiction. Reading only the decision above, answer the following questions:

Why does the Eleventh Circuit have jurisdiction?
What is the law regarding jurisdiction on appeal?
What are the facts that support the decision?
Why did the Eleventh Circuit construe the motion to determine jurisdiction as a motion for summary reversal?
Who benefited by construing the motion as a motion for summary reversal?

Law On Jurisdiction

“[T]he Supreme Court has ruled that “it is not proper for federal courts to proceed immediately to a merits question despite jurisdictional objections.” In re Madison Guaranty Savings & Loan Association, 173 F.3d 866; 335 U.S. App. D.C. 327 (C.A.D.C. 1999)(citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (199 (without proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional defect and dismiss the suit)”). “On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.” Steel Co., 523 U.S. at 94. See also UNITED STATES of America v. Mery GIRALDO-PRADO, 150 F.3d 1328 (11th Cir. 199 (”We have noted that a party may raise jurisdiction at any time during the pendency of the proceedings.”);

In a case involving Judge Graham, United States Of America v. Machado, No. 05-11420, D. C. Docket No. 97-00238-CR-DLG, 465 F.3d 1301pgs. 8,9 (11th Cir. 2006);2006 US App (11th) 398, the Eleventh Circuit held:

We are aware, of course, that “subject-matter jurisdiction . . . can never be forfeited or waived” and “[c]onsequently, defects in subject-matter jurisdiction require correction regardless of whether the error was raised in district court,” United States v. Cotton, 535 U.S. 625, 630, 122 S. Ct. 1781, 1785 (2002); see also Arbaugh v. Y& H Corp., ___ U.S. ___, ___, 126 S. Ct. 1235, 1240 (2006) (“The objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.”). That principle is not, however, an exception to the requirements for appellate jurisdiction, and if those requirements are not met we cannot review whether a judgment is defective, not even where the asserted defect is that the district court lacked jurisdiction.

The Eleventh Circuit had a duty to not only review its own jurisdiction, but that of the lower court as well. Even if the neither the parties raise the issue of subject matter jurisdiction the Eleventh Circuit is required to do so on its motion or sua sponte. See ALFRED L. BOCHESE v. TOWN OF PONCE INLET, No. 04-11542, 405 F.3d 964 (11th Cir. 2005)(”Although the parties have not raised the issue here, we are obliged to consider, sua sponte, the question of our subject matter jurisdiction to hear the case before us.“), http://www.ca11.uscourts.gov/opinions/ops/200411542.pdf.

Federal courts are “obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking. “As a threshold matter, therefore, we must initially determine both whether the district court had subject matter jurisdiction to consider Williams’ Rule 60(b) motion and whether this Court has jurisdiction to review the district court’s denial of his motion.” WAYNE BERTRAM WILLIAMS v. BRUCE CHATMAN, No. 06-16115 (11th Cir. 2007),,(citing Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004)). “An appellate court has a duty to consider sua sponte whether appellate jurisdiction is properly invoked.” John Andrew Mattingly v. Farmers State Bank, No.98-3234 (6th Cir. 1998), ELECTRONIC CITATION: 1998 FED App. 0262P (6th Cir.) File Name: 98a0262p.06 (citing Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976)).

“When a colorable question exists, an appellate court has an unflagging obligation to inquire sua sponte into its own jurisdiction.” Charlesbank Equity Fund Ii v. Blinds To Go, Inc., 370 F.3d 151 (1st Cir. 2004).

Construed or Screwed

“Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the motion in order to place it within a different legal category. They may do so in order to avoid an unnecessary dismissal, to avoid inappropriately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis. ” Castro v. United States (02-6683) 540 U.S. 375 (2003). “Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.” United States Of America v. Pierre Castma , No. 07-13531 (11th Cir. 2005)(quoting Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), cert. denied, 127 S. Ct. 1908 (2007)).See also United States Of America v. Gary William Holt, No. 04-15848, 417 F.3d 1172 (11th Cir. 2005)(”noting that a pro se motion should be liberally construed to afford review on any “legally justifiable base”)(citing Sanders v. United States, 113 F.3d 184, 187 (11th Cir.1997) (per curiam) (noting that a pro se motion should be liberally construed to afford review on any “legally justifiable base”)).

The clear intent of liberal construction is for the benefit of the pro se litigant and not to the detriment of the pro se litigant. In this matter, the Eleventh Circuit construed a Motion to Determine Jurisdiction to motion for summary reversal. This “construction” or recharacterization was to the detriment of Mason. The Eleventh Circuit took a mandatory motion which required it to assert facts and law to support both its jurisdiction and that of the lower court and converted it to a “summary reversal” motion. Had the Eleventh been unable to sufficiently support its jurisdiction and that of the lower court would have required a dismissal of the appeal. The Eleventh Circuit ran ahead to the finish line and saw who was going to win the race, consequently they changed the rules to guarantee the winner or outcome of the race. The Eleventh then construed the motion to determine jurisdiction into a motion for summary reversal which is a discretionary. Once the motion became discretionary, the Eleventh Circuit was free to avoid the outcome the facts would have demanded. It is difficult not to conclude that the rules were construed to achieve the desired outcome-vindication of Judge Graham.

Internal Operating Procedure

The Eleventh Circuit’s internal rules allows them to raise a jurisdictional issue at their discretion. 11th Cir. R. 31-1(e) (1999)states:

(e) Jurisdictional Question. If, upon review of the district court docket entries, order and/or judgment appealed from, and the notice of appeal, it appears that this court may lack jurisdiction over the appeal, the court may request counsel and pro se parties to advise the court in writing of their position with respect to the jurisdictional question(s) raised. The issuance of a jurisdictional question does not stay the time for filing briefs otherwise provided by this rule.

Motion To Determine Jurisdiction

Appellant’s Motion To Determine Jurisdiction was submitted on or about March 13, 2002. See Docket and Motion. This motion argued that the Eleventh Circuit did not have jurisdiction of the appeal because the alleged violations of preliminary injunctions, or orders that were granted on June 19, 2000, (DE #201), and July 25, 2000, (DE #246) were not lawful for the following reasons:

Magistrate is without legal authority to issue an injunction or a restraining order. See Motion, pps. 3,5-6.
These orders are invalid because the Defendants failed to file a complaint for an injunction or a restraining order.
These orders failed to meet the requirements for a “temporary Injunction” or “TRO”. See Motion, pg. 6,7.

Case Cited By Eleventh Circuit Supports Appellant

The Eleventh Circuit cited Groendyke Transport v. Davis, 406 F.2d 1158, 1162 (5th Cir.) cert. denied, 394 U.S. 1012, 89 S.Ct. 1628, 23 L.Ed.2d 39 (1969) for the proposition that a “summary reversal” was not warranted. However, Groendyke Transport actually supports Mason’s or the Appellant position. Firstly, Groendyke Transport, like the instant case involved the question of the validity of an injunction. Groendyke Transport, set forth two conditions that would warrant a summary disposal:

“The first comprises those cases where time is truly of the essence. This includes situations where important public policy issues are involved or those where rights delayed are rights denied.”
Second, are those in which the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case…

The where rights delayed are rights denied position favors Mason. The injunctions issued in the instant case concerned First Amendment rights. These injunctions prohibited direct communications with the government. Secondly, one of the injunctions, (D.E. #246)(”"Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.), implicated Florida Public Record requests. It is well settled and unremarkable that the “the loss of constitutional rights for even a minimal amount of time constitutes irreparable harm.” See Taubman Company v. Webfeats, 319 F.3d 770 (6th Cir. 2002). More importantly, according to the Supreme Court: “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); same 11th Cir., Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983)(”It is well settled that the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying the grant of a preliminary injunction.“); Gresham v. Windrush Partners, Ltd., 730 F.2d 1417 (11th Cir. 1984)(”first amendment rights violated sufficient to show irreparable injury because loss of first amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury“) .

The one of the parties is clearly right as a matter of law condition favors Mason the appellant. The best argument in support of the appellant is lack of legal citation or facts by the Eleventh Circuit. More importantly, the law favored Mason because a Magistrate can not issue an injunction. Assuming arguendo, a Magistrate could issue an injunction, Mason would have prevailed because order fails to meet the 4 prong requirements for a preliminary injunction.

BACKGROUND

Marcellus M. Mason, Jr. of Sebring, Fl. filed an employment discrimination lawsuit against the Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999. This case was ultimately assigned to Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court constitutionally protected and legal communications between Highlands County and Mason. “R&R” (D.E. 766), Order adopting R&R (D.E 791). See Banned Communications. In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants. These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL . These orders were granted on June 19, 2000 and July 25, 2000 in part stated:

“Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” (DE #201). This order is dated June 19, 2000,

“Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” (DE #246). “Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” (). This order is dated July 25, 2000.

Judge Graham has expressly stated that the issuance of the injunctions by Magistrate Judge Frank Lynch, Jr. was not “clearly erroneous nor is it contrary to law.” See Docket Entry No. 407. However, Congress and the law disagree as the law expressly states that: “Notwithstanding any provision of law to the contrary— a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief…,” 28 U.S.C. § 636(b)(1)(A).

On March 2, 2001, Highlands County Board of County Commissioners attorneys, Allen, Norton & Blue, filed a “DEFENDANTS’ MOTION FOR SANCTIONS IN THE FORM OF DISMISSAL OF PLAINTIFF’S ACTION AND SUPPORTING MEMORANDUM OF LAW“. See Docket Entry No. 511. This motion sought dismissal of the lawsuit due to alleged out of court communications with the Highlands County Government in violation the injunctions mentioned above,DE #201) and (DE #246). On April 9, 2001, the Defendants’ filed a second motion for sanctions in the form of dismissal of Plaintiff’s lawsuit for more alleged out of court communications between Mason and the Highlands County Government. See Docket Entry No. 646. On May 31, 2001, the Magistrate, Frank Lynch, Jr., prepared a Report and Recommendation, “R&R”, recommending that the lawsuit be dismissed because of these out of court communications between Mason and his local government, Highlands County Board of County Commissioners. Judge Graham accepted this R&R in whole with no changes or comments.

The Case was closed on June 20, 2001. Docket Entry No. 791. A Notice of Appeal was filed on June 25, 2001. (Docket Entry 795). District Case No. 99-14027-CV-Graham was assigned Eleventh Circuit Case No. 01-13664. Consequently, the court never reached the merits of the lawsuit as there were motions for summary judgments pending when the case was closed. See Docket Sheet, Defendant’s motion for summary judgment, (Doc. 769);(Doc. 770), and the Plaintiff’s motion for summary judgment as well, (Doc. 507); (Doc. 667); (Doc. 668); (Doc. 706); (Doc. 797).

Refusal To Cite Legal Authority

Judge Graham and his Magistrate, Frank Lynch, Jr. have repeatedly refused to cite legal authority for these orders, (DE #201) and (DE #246), which required Mason to seek the approval of private attorneys, Allen, Norton & Blue, prior to petitioning the government. See Court Orders: (DE #201), (DE #246);(Doc. #279);(Doc. 281);(Doc. #407);(Doc. #524);(Doc. #528);(Doc. #634);(Doc. 673);(Doc. 744);(Doc. 745);(Doc. 766);(Doc. 791);(Doc. 874, pg. 2);(Doc. 882, pgs. 1-2); (DE-890); (DE-928);(DE-931)).

U.S. District Judge Donald L. Graham Disagrees with The Florida Supreme Court, the U.S. Supreme Court, And Every Other Jurisdiction

mcneilmason — Thu, 19 Jun 2008 16:41:18 +0000

Judge Donald L. Graham, “Teflon Don”

Purpose of This Post

The purpose of this post is to prove that U.S. Dist. Judge Donald L. Graham is not a “strict constructionist” judge, but a “judicial activist” and a rogue judge. Judge Graham is of the apparent belief that he can assert some heretofore undisclosed Federal Rule of Civil Procedure “discovery rule” and take away rights guaranteed under the United States Constitution and Florida Law. Judge Graham believes, by apparent fiat, that he has the power to command that a non-lawyer litigant seek the permission of a private for profit attorney in order to request public records under Florida Law. Judge Graham is alone in this view. Secondarily, this post seeks to land a glancing blow to the American Bar Association’s notion of “judicial independence”.

Strict Constructionist Irony

U. S. District Judge Donald L. Graham is a 1992 President George Herbert Walker Bush appointee. Judge Graham is presumably a ’strict constructionist’ . It is unremarkable and widely known that President George Herbert Walker Bush believed in the doctrine of strict contructionism and attempted to make judicial appointments accordingly. “A strict constructionist is one who sticks to the meaning of the words in the Constitution as they were used at the time of its drafting without reading too much into them.” Law.com, Originalist? Constructionist? A Confirmation-Hearing Glossary. “Strict constructionism” is also used in American political discourse as an umbrella term for conservative legal philosophies such as originalism and textualism, which emphasize judicial restraint and fidelity to the original meaning (or originally intended meaning) of constitutions and laws. It is frequently used even more loosely to describe any conservative judge or legal analyst.The term is often contrasted with the pejorative phrase “judicial activism“, used to describe judges who seek to enact legislation through court rulings, although the two terms are not actually opposites.” Wikipedia. As this webpage will prove, Judge Graham is not a ’strict constructionist’ , but an activist judge making up laws and disdaining binding precedent as he sees fit with apparent impunity.

Judicial Activism

“Judicial activism is when courts do not confine themselves to reasonable interpretations of laws, but instead create law. Alternatively, judicial activism is when courts do not limit their ruling to the dispute before them, but instead establish a new rule to apply broadly to issues not presented in the specific action. “Judicial activism” is when judges substitute their own political opinions for the applicable law, or when judges act like a legislature (legislating from the bench) rather than like a traditional court. In so doing, the court takes for itself the powers of Congress rather than limiting itself to the powers traditionally given to the judiciary.” http://www.conservapedia.com/Judicial_Activism.

“Judicial activism is the term used to describe the actions of judges who go beyond their constitutionally prescribed duties of applying law to the facts of individual cases, and “legislate” from the bench. These judges create new constitutional rights, amend existing ones, or create or amend existing legislation to fit their own notions of societal needs.” What is Judicial Activism?, Answered by Bruce Hausknecht, Judicial Analyst, http://www.family.org/socialissues/A000000653.cfm.

Rogue is “an individual varying markedly from the standard.” http://www.yourdictionary.com/rogue. Given the definition of rogue, then Judge’s Graham’s actions can easily be characterized as those of rogue judge.

History of Thumbing His Nose At Supreme Court Precedent

Judge Graham has a history of simply ignoring the edicts of the United States Supreme Court anytime he disagrees with them. Judge Graham has freely admitted that he is bound by the decisions of the United States Supreme Court and the Eleventh Circuit, U.S. Court of Appeal. See Skylark v. Honeywell Int’l, Inc., 2002 U.S. Dist. LEXIS 10554 (S.D. FLA 2002)(”In the case of the Southern District of Florida, the only courts it must be obedient to are [the Eleventh Circuit] and the Supreme Court of the United States.“). However, Judge Graham’s actions have demonstrated that he clearly believes he is not bound any rule or law. Articles and posts listing Supreme Court binding precedent that Judge Graham has eschewed are:

An Egregious Incident of Judicial Activism And Usurpation

On July 6, 2000, the Government Defendants, Highlands County Board of County Commissioners, through their attorneys, Maria Sorolis and Brian Koji, filed a “DEFENDANTS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION, (D.E. #231)“, and requested the following relief:

Defendants respectfully renew their Motion for a Preliminary Injunction prohibiting the Plaintiff from contacting the supervisory employees of the Defendants or the individual Defendants directly, and directing Plaintiff to make all public records requests through the undersigned counsel.

This motion cited no legal authority for the requested relief. On July 25, 2000, Judge Graham’s Magistrate, Frank Lynch Jr., granted the motion and commanded:

ORDERED AND ADJUDGED that Defendants’ Renewed Motion for Preliminary Injunction is GRANTED… Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.

See Docket Entry No. 246. Without belaboring the point, a Magistrate may not issue an injunction of any type. “Notwithstanding any provision of law to the contrary— a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief…,” 28 U.S.C. § 636(b)(1)(A).

Judge Graham has expressly stated that the issuance of this order by Magistrate Judge Frank Lynch, Jr. was not “clearly erroneous nor is it contrary to law.” See Docket Entry No. 407. For more information on this case, see Background.

Judge Graham Refuses to Cite Legal Authority

Judge Graham is under the apparent belief that he need not cite legal authority for actions he takes as he has been repeatedly challenged to cite legal authority for the order in question, but he has adamnatly refused to do so. See Judge Graham’s and Magistrate Lynch’s orders: (DE #201), (DE #246);(Doc. #279);(Doc. 281);(Doc. #407);(Doc. #524);(Doc. #528);(Doc. #634);(Doc. 673);(Doc. 744);(Doc. 745);(Doc. 766);(Doc. 791);(Doc. 874, pg. 2);(Doc. 882, pgs. 1-2); (DE-890); (DE-928);(DE-931). On January 25, 2002, Judge Graham was asked the following:

By what legal authority does the Magistrate act in issuing the orders in question, (DE #201, 246), directing that a nonlawyer must seek the permission of a private for profit lawfirm in order to communicate with his government directly and request public records ?

See Exhibit 1, (DE 890).

Judge Graham’s Answer and Controlling Legal Authority was:

The Court shall accept this Motion as a filing. However, this motion will not be denied. Plaintiff has, on numerous occasions, filed motions for clarification in this case, all of which have been denied. The Court finds the present motion, like the motions before it, is without merit.

See Page 1, (DE 890).
Additionally, in his Report and Recommendation that recommends that the lawsuit be dismissed because of alleged violations of the orders of June 19, 2000, (D.E. #201) and July 25, 2000, (D.E. #246), the Magistrate admits that the validity of these orders were being challenged, but he declines to assert legal authority for these orders by stating only:

The Plaintiff alludes to this Court’s rulings, issued June 19 and July 25, 2000, directing that he should not contact any of the Defendants or individual Defendants, including their supervisory employees, regarding any matter related to this case except through their counsel of record. If the Plaintiff was represented, his attorney would know that this is proper procedure. The Plaintiff questions this Court’s authority to enter an “injunction” as he calls it preventing him from contacting the parties directly. This Court has entered numerous orders on this issue in ruling on Plaintiff’s many requests for clarification ito vacate, etc., of this issue and has attempted to clearly point out to the Plaintiff that it is a discovery issue and not one appropriate for injunctive relief. The Plaintiff has appealed those orders to the District Court and they have been affirmed by Judge Graham.

See Report and Recommendation, (D.E. #766, pg. 3, ¶5). Judge Graham is alone in his view as all other jurisdictions have rejected Judge Graham’s view of the law. See Litigant’s Right to Communicate With Government During Litigation, section below.

The Florida Supreme Court On Florida’s Public Records Law

The Florida Supreme Court has held that the mere fact that a public agency is being sued does not relieve that public agency of its obligations under the Florida Public Records Act. “Courts cannot judicially create any exceptions, or exclusions to Florida’s Public Records Act.” Board of County Commissioners of Palm Beach County v. D.B.,784 So. 2d 585, 591 (Fla. 4th DCA 2001). In Tober v. Sanchez, 417 So 2d 1053, 1055 (App. Dist. 3 1982), the court held:

We would be less than candid if we did not acknowledge that, as the present case demonstrates public agencies are placed at a disadvantage, compared to private person’s, when faced with potential litigation claims. It is also pertinent to observe that the wisdom of such a policy resides exclusively within the province of the legislature.

In several cases, the Supreme Court of Florida has held that the filing of a lawsuit under Federal Rules of Civil Procedure does not alter a public agency’s responsibility for disclosure under the Florida Public Records Act. In Henderson vs. State Of Florida, 745 So. 2d 319, 325-6; (Fla. 1999)

[W]e do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially-created rules of procedure.

See also Wait v. Florida Power and Light Company, 372 So. 2d 420, 425 (Fla. 1979)(“We find no authority to support the argument that Florida Power & Light, by engaging in litigation before a federal forum, has somehow given up its independent statutory rights to review public records under chapter 119. The fact that Florida Power & Light simultaneously engaged in litigation before a federal agency does not in any way prevent its use of chapter 119 to gain access to public documents.”).

The United States Supreme Court On State Court Law

The United States Supreme Court has expressly stated that is was bound by a state’s construction of its own law. “There is no doubt that we are bound by a state court’s construction of a state statute.” WISCONSIN v. MITCHELL, 508 U.S. 476, 483 (1993). The Eleventh Circuit has held that “[a] federal court applying state law is bound to adhere to decisions of the state’s intermediate appellate courts absent some persuasive indication that the state’s highest court would decide the issue otherwise.” Hunter v. Michigan Mutual Insurance Corporation,476 F.3d 1191 (11th Cir. 2007). The Florida Supreme Court has stated that: “”[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.”[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.” Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). Assuming for the moment the absurd notion that a non-lawyer litigant does not have the right to communicate directly with the government under U.S. Constitution, a state could grant such a right and the federal courts would be bound by that state created right. The U.S. Supreme Court has expressly stated:

Within our federal system the substantive rights provided by the Federal Constitution define only a minimum. State law may recognize liberty interests more extensive than those independently protected by the Federal Constitution. If so, the broader state protections would define the actual substantive rights possessed by a person living within that State.

Mills v. Rogers, 457 U.S. 291, 300 (1982). The Florida Supreme Court has defined the right of access to public records as a substantive right. See MEMORIAL HOSPITAL-WEST VOLUSIA, INC. v. NEWS-JOURNAL CORPORATION,No. SC00-82, 784 So. 2d 438 (Fla. 2001)(”We have recently stated that the right of access to public records is a substantive right. See Henderson v. State, 745 So. 2d 319, 326 (Fla. 1999).”)

JUDICIAL MISCONDUCT DEFINED

Judicial Misconduct has been defined by Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor, Northwestern University Law, James J. Alfini, President and Dean, South Texas College of Law, U.S. Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit, in part as:

Judicial action taken without any arguable legal basis —and without giving notice and an opportunity to be heard to the party adversely affected—is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake.

See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/

$file/0389037o.pdf?openelement.

The Administrative Office of the United States Courts, Judicial Conference, Committee on Judicial Conduct and Disability has stated:

[A] judge’s pattern and practice of arbitrarily and deliberately disregarding prevailing legal standards and thereby causing expense and delay to litigants may be misconduct. However, the characterization of such behavior as misconduct is fraught with dangers to judicial independence. Therefore, a cognizable misconduct complaint based on allegations of a judge not following prevailing law or the directions of a court of appeals in particular cases must identify clear and convincing evidence of willfulness, that is, clear and convincing evidence of a judge’s arbitrary and intentional departure from prevailing law based on his or her disagreement with, or willful indifference to, that law.

http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf

Legal Error As Misconduct

“Legal error and judicial misconduct are not mutually exclusive.” In Re Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct. “[T]he Florida Supreme Court has expressly held that a judge’s legal rulings can be the subject of judicial disciplinary proceedings.” State of Florida, JUDICIAL QUALIFICATIONS COMMISSION,INQUIRY CONCERNING A JUDGE, NO. 06-52, CHERYL ALEMAN CASE NO. SC07-198. “A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct.” In re Quirk, 705 So.2d 172 (La., 1997). “[J]udicial misconduct (including improper ex parte communications) varies in degree from plainly criminal or corrupt misconduct, through injudicious (but not corrupt) misconduct, to misconduct committed for proper motives though pursued by prohibited means.” Larsen, Matter of, 616 A.2d 529, 532 Pa. 326 (Pa., 1992). An emerging pattern of legal errors even though not an egregious legal error nor bad faith should be labeled misconduct because the continuing pattern of legal error constitutes neglect and ignorance of governing statutes. Miss. Com’n On Jud. Performance v. Britton, 936 So.2d 898 (Miss., 2006). See also In Re James Barr, 13 S.W.3d 525 (Tex.Rev.Trib., 199 (”legal error by a judge may constitute grounds for a finding of judicial misconduct if the commission of legal error is founded on bad faith.”);Goldman v. Nevada Com’n on Judicial Discipline, 830 P.2d 107, 108 Nev. 251 (Nev., 1992)(”An experienced trial judge’s ignorance of proper contempt procedures, without more, has been held to constitute the bad faith necessary to a finding of willful misconduct.” )

Chief Judge J.L Edmondson’s Endorsement of Judge Graham’s Conduct

Chief Judge J.L Edmondson is of the misguided notion that legal error may not constitute “judicial misconduct”. Judge Edmondson appears to be alone in this view. Even more remarkable is Judge Edmondson’s apparent believe that a pattern and practice of ignoring prevailing legal standards is not judicial misconduct. This view is perfectly illustrated in Eleventh Circuit’s Miscellaneous Docket No. 05-0008, Complaint of Judicial Misconduct. When told of this clear usurpation of authority and other abuses or misconduct, Judge Edmondson stated:

In this complaint, the single (unsupported) allegation that has not already been determined in previous complaints filed by Mr. Mason against Judge Graham is that Judge Graham intentionally falsified his March 31, 2001, Civil Justice Reform Act Report in an attempt to conceal the fact that he had not ruled on one of Mr. Mason’s motions for over 15 months. Not withstanding the fact that the motion in question was pending for more than six months, and the fact that the March 31, 2001 report is incorrect, Mr. Mason has not presented any information, evidence or documentation to support his claim to suggest that the omission of this motion on this CJRA report was an intentional attempt by Judge Graham to conceal his failure to rule on the motion.

Does Judge Edmondson’s view represent “judicial independence” or non-accountability? “We report, you decide” Fox News. There is a whole pattern of conduct of that Judge Edmondson singularly disagrees is misconduct. See Egregious Documented Acts of Judicial Misconduct by Judge Donald L. Graham.

Litigant’s Right to Communicate With Government During Litigation.

Every jurisdiction in the United States has affirmed a citizen’s right to petition the government even in the midst of bitter litigation. “[T]here is nothing that prohibits one party to a litigation from making direct contact with another party to the same litigation. ” E.E.O.C. v. McDonnell Douglas Corp., 948 F. Supp. 54 (E.D.Mo. 1996);. See IN RE HURLEY, No. 97-6058 SI (8th Cir. 1997) In Hurley, Discover Card, a creditor litigant in a bankruptcy case, communicated directly with the debtor litigant directly and as result the trial court bankruptcy judge concluded that Discover Card had acted unethically by violating DR 7-104(A)(1) of the ABA Code of Professional Responsibility. O n appeal, the court rejected this reasoning and held that rules of professional conduct does not apply to nonlawyers and parties are free to communicate with other. Rule 4-4.2, R. Regulating Fla. Bar states:

Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party to a controversy with a government agency with a government officials abut the matter. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.

“Government remains the servant of the people, even when citizens are litigating against it.” American Canoe Ass’n Inc. v. City of St. Albans, 18 F.Supp. 2d 620 (S.D.W.Va. 199 ; Camden v. State Of Md., 910 F. Supp. 1115, 1118 n.8 (D. Md. 1996); Frey v. Dept. of Health & Human Services, 106 F.R.D. 32, 37 (E.D.N.Y. 1985). Holdren v. General Motors Corp., 13 F. Supp. 2d 1192 (D.Kan. 199 (”there is nothing in the disciplinary rules which restrict a client’s right to act independently in initiating communications with the other side, or which requires that lawyers prevent or attempt to discourage such conduct.“); In Re Discipline Of Schaefer, 117 Nev. 496, 25 P.3d 191 ;117 Nev. Adv. Op. No. 44, 36173 (Nev. 2001) (”parties to a matter may communicate directly with each other.”); In Re Hurley, Case No. No. 97-6058 SI, (8th Cir. 1997); Jones v. Scientific Colors, Inc., 201 F.Supp.2d 820 (N.D. Ill., 2001) (citing “EEOC v. McDonnell Douglas Corp., 948 F. Supp. 54, 55 (E.D. Mo. 1996(”there is nothing that prohibits one party to a litigation from making direct contact with another party to the same litigation.“)); Loatman v. Summit Bank, 174 F.R.D. 592 (D.N.J. 1997); Miano v. AC & R Advertising, Inc, 148 F.R.D. 68, 75 (S.D.N.Y.1993); Pinsky v. Statewide Grievance Committee, 578 A.2d 1075,1079 (Conn. 1990)(”Contact between litigants, however, is specifically authorized by the comments under Rule 4.2: … Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so.“); Restatement of the Law (Third) The Law Governing Lawyers, §99. Cmt. K., pg. 76.(”No general rule prevents a lawyer’s client, either personally or through a nonlawyer agent, from communicating directly with a represented nonclient. Thus, while neither a lawyer nor a lawyer’s investigator or other agent may contact the represented nonclient, the same bar does not extend to the client of the lawyer or the client’s investigator or other agent.“); Reynoso v. Greynolds Park Manor, Inc, 659 So.2d 1156, 1160 (Fla.App. 3 Dist. 1995)(”[p]arties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.“). State v. Miller, 600 N.W.2d 457; 1999 Minn. LEXIS 592 (Minnesota Supreme Court 1999); Stone v. City Of Kiowa, 263 Kan. 502; 950 P.2d 1305; 1997 Kan. LEXIS 177, *34 (Kansas Supreme Ct. 1997); Terra Intern. v. Miss. Chemical Corp., 913 F. Supp. 1306 (N.D.Iowa 1996); Tucker v. Norfolk & Western Ry. Co., 849 F.Supp.1096, 1097-1098 (E.D.Pa.1994); U.S. v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993); U.S. v. Ward, 895 F.Supp. 1000, (N.D. Ill. 1995); Vega v. Bloomsburgh, 427 F. Supp. 593, 595 (D. Mass. 1977).

In Bernard v. Gulf Oil Co., 619 F.2d 459 (5^th Cir. 1980) (en banc),[1] affirmed Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981), this Court declared an injunction that is similar to injunctions issues in this case, (Doc. 201);(Doc. 246), to be unconstitutional.

[1] Decisions by the former Fifth Circuit issued before October 1, 1981 are binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).