Posts Tagged ‘contrary to law’

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

June 19, 2008

Justice Turned On Its Head

Judge Donald L. GrahamJudge 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., 1998)(“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 decideFox 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. 1998); 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. 1998)(“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 (5th 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).

US Circuit Judge Ed Carnes Undermines U.S. Supreme Court By Imposing Hobson’s Choice

May 23, 2008

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don

A United States Circuit Judge on the Potential Dangers of Unpublished Opinions

It was U.S. Circuit Judge Richard S. Arnold, 8th Cir. U.S. Court of Appeal who said:

“If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don’t say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I’m not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judgesare human beings.”

1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas – Little Rock School of Law ; Richard S. Arnold.Judge Arnold, now deceased, cannot be resting comfortably. In Anastasoff. v. United States, 223 F.3d 898 (8th Cir. 2000), Judge Arnold and his panel declared unpublished opinions to be unconstitutional. This opinion was subsequently vacated on other grounds, 235 F.3d 1054 (8th Cir. 2000) by an en banc court.

Purpose of this Post

This post will take an Opinion of Judge Ed Carnes and demonstrate that he nefariously contorted the law and facts in order to achieve the desired outcome. The desired outcome was a vindication of Judge Donald L. Graham by any means necessary. Judge Carnes ruled that a Magistrate’s designation of his own order is controlling on an U.S. Circuit Court of Appeal. The purpose of this post is to:

  • To establish the opinion in this post as a part of an overall pattern and practice of lawlessness.
  • To set forth facts to prove that there is two bodies of law. The “rule of law” as set forth in published opinions and a secret underground body of law set forth in unpublished opinions that have little or nothing to do with the “rule of law”.
  • To show that a Circuit Court Judge will contort the law beyond common sense and even to absurdity in order to achieve the desired outcome.
  • To show the extreme measures federal judges will employ to protect each other.
  • To show how pervasive dishonesty is among the federal judiciary.
  • To help make the argument that “judicial independence” equals judicial non-accountability.
  • To show how a judge can fit the “facts” and the law around desired outcome and place the document beyond public scrutiny.
  • To demonstrate that the federal judicial process needs the disinfectant of sunlight and public scrutiny.
  • To show that a United States Circuit Judge can take the enactments of the U.S. Congress and the decisions of United States Supreme Court and reduce them mere meaningless pieces of paper.

Preliminary Injunctions or Orders at Issue

On June 13, 2000, Maria Sorolis, Allen, Norton & Blue, attorney for Highlands County Board of County Commissioners and Heartland Library Cooperative, filed a motion entitled “DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION“. See Docket Entry 199. This motion expressly states the following:

  • “undersigned counsel and each of them hereby moves the Court for an Injunction prohibiting the Plaintiff, Marcellus Mason, from contacting directly,’ via correspondence, electronic mail, telephonically, or otherwise, any supervisor or employee of any of the Defendants in the above-styled litigation.”
  • “WHEREFORE, Defendants move the Court for an injunction prohibiting Plaintiff from contacting any of the Defendants and/or their supervisory employees,..”

This motion was quickly granted on June 19, 2000. it took the Magistrate just six days or less if mail time is included to grant this motion. On June 19, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

[I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…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.

See Docket Entry No. 201. Incidentally, this order clearly violates Mason’s rights to respond to a motion under Local Rule 7.1.C which states: “Each party opposing a motion shall serve an opposing memorandum of law not later than ten days after service of the motion as computed in the Federal Rules of Civil Procedure.

On July 6, 2000, Maria Sorolis filed a motion entitled “DEFENDANTS’ RENEWED MOTION FOR PRELIMINARY INJUNCTION.” See Docket Entry No. 231. Moreover, the motion specifically asks for the following:

  • “Highlands County Board of County Commissioners, Heartland Library Cooperative, Fred Carino, and Mary Myers, by and through their undersigned counsel, and regrettably renew their Motion to the Court for entry of a Preliminary Injunction against the Plaintiff in this matter, “”
  • “WHEREFORE, 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”

On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

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. Incidentally, at least three courts have found similar injunctions to be unconstitutional. see Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976)(reversing an order which prohibited appellant from “discussing, directly or indirectly, settlement . . . with the plaintiffs” and from “contacting, communicating, or in any way interfering with the attorney-client relationship” as “too sweeping a restraint”); Bernard v. Gulf-Oil Co., 619 F.2d 459, 466 (5th Cir. 1980) (en banc), aff’d, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981),( explicitly held that requiring the litigant to meet the Court’s “post-communication filing requirements” of constitutionally protected communication was unconstitutional.). Additionally, in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) the court held that an order which enjoined a litigant “from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES’s counsel, counsel’s employees, or counsel’s staff” constituted an invalid prior restraint and a unconstitutional limitation on free speech.

Hobson’s Choice

Merriam-Webster has defined a hobson’s choice as:
1 : an apparently free choice when there is no real alternative
2 : the necessity of accepting one of two or more equally objectionable alternatives

On April 26, 2001, Judge Ed Carnes asserted:

“With regard to his requests for relief from the order granting the defendants motions for preliminary injunction, which the court construed as a preliminary discovery motion, Mason has an alternative remedy. He may either comply with the district courts discovery order and challenge it on appeal from the final judgment. or refuse to comply with the order and challenge its validity if cited for contempt. See Rouse Constr. Int’l. Inc. v. Rouse Censtr. Corp., 680 F.2d 743, 745 (11th Cir. 1982).

This is a classical hobson’s choice as Judge Ed Carnes presented Mason with two equally objectionable alternatives:

  • Lose his First Amendment right to petition the government directly during the pendency of the lawsuit; or
  • Fail to comply with a court order and risk contempt and a dismissal of an employment discrimination lawsuit.

Judge Carnes view of the law, according to Judge Carnes own previously and subsequently opinions for which he was panel member, is incorrect and not sustainable under the “rule of law”. The orders in question are reviewable immediately for three reasons:

  • The orders are both de facto and de jure injunctions.
  • The orders have the “practical effect” of being injunctions. The U.S. Supreme Court has stated that orders have the “practical effect” of being injunctions are immediately reviewable.
  • The orders, notwithstanding any label, cause irreparable harm according to the United States Supreme Court and Judge Carnes own writings.

Constitutional Right to Petition the Government

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” First Amendment, US Constitution.

Right To Interlocutory Appeal

28 U.S.C.§ 1292(a)(1) states:

(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court;

“Certain orders that are not final in the sense of ending the litigation on the merits are immediately appealable under the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). To come within this doctrine, an order “must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” CORPORATE RISK MANAGEMENT CORPORATION v. SOLOMON, 936 F.2d 572 (6th Cir. 1991). It is difficult to imagine how you can get back First Amendment rights once you have lost them at the end of trial whose date is indeterminate.

With respect 1292(a)(1), the Eleventh Circuit has “construed the statute narrowly to ensure that appeal as of right under Sec. 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of “permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, [348 U.S. 176,] 181, 75 S.Ct. [249,] 252[, 99 L.Ed.2d 233 (1955) ]. Unless a litigant can show that an interlocutory order of the district court might have a “serious, perhaps irreparable, consequence,” and that the order can be “effectually challenged” only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.”CABLE HOLDINGS OF BATTLEFIELD, INC. v. COOKE, 764 F.2d 1466 (11th Cir. 1985).

Absurdity

Judge Carnes’ opinion evinces absurdity and is contrary to law. Inherent in Judge Carnes opinion is the inane notion that a United States Circuit Court of Appeal is bound by a Magistrate’s designation of a “discovery order” and may not review the substance of that order to determine for itself if the “discovery order” is in fact an injunction. If this true, then a Magistrate can issue an injunction and escape appellate review by simply calling an injunction something other than an injunction. “[T]the name which the judge gives the order is not determinative”. Geneva Assur. v. Medical Emergency Services, 964 F.2d 599 (7th Cir. 1992). Judge Carnes was a member of the appellate panel that concluded that “where the order has the effect of a preliminary injunction this court has jurisdiction to review the order and is not bound by the district court’s designation of the order.” See Cuban American Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995). More importantly, In Sampson v. Murray, 415 U.S. 61 (1974) the Supreme Court expressly rejected this line of contorted reasoning:

“A district court, if it were able to shield its orders from appellate review merely by designating them as temporary restraining orders, rather than as preliminary injunctions, would have virtually unlimited authority over tie parties in all injunctive proceeding.”

Irreparable Harm

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). Judge Marcus himself, in a published decision, has stated: “Regarding irreparable injury, it is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” KH OUTDOOR, LLC v. TRUSSVILLE, CITY OF, 458 F.3d 1261; 2006 U.S. App. LEXIS 19901; 19 Fla. L. Weekly Fed. C 902 (11th Cir. 2006)(citing Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976) (plurality opinion)).

“An order has the practical effect of granting injunctive relief within the meaning of section 1292(a)(1) if it is directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint,(internal citations and quotations omitted), and if the appealing party demonstrates serious, perhaps irreparable, consequences”. HBE LEASING CORPORATION v. FRANK,48 F.3d 623 (2nd Cir. 1994). Using Judge Carnes own words, above, the orders would possibly subject Mason to contempt of court charges, “challenge its validity if cited for contempt.”

According to the Supreme Court, an order that has practical effect of denying or granting an injunction iis immediately appealable if a “litigant can show that an interlocutory order of the district court might have a “serious, perhaps irreparable, consequence,” and that the order can be “effectually challenged” only by immediate appeal,…”Carson v. American Brands, Inc., 450 U.S. 79 (1981).

The Ultimate Act of Dishonesty

The ultimate act of dishonesty was that Judge Graham dismissed a lawsuit based upon alleged violations of the injunctions enumerated above and the Eleventh Circuit refused to review these orders for validity. Highlands County asked and got Judge Graham to dismiss a lawsuit because of alleged violations of these orders, which Mason contended on appeal, were illegal. To further illustrate the exreme measures deployed to vindicate Judge Graham personally and more dishonesty see how the Eleventh Circuit was willing to discuss Mason’s alleged violations of these orders while steadfastly refusing to review these very orders for validity, see posts, “Eleventh Circuit Case No. 01-13664: The Appeal From Hell” and “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“). Highlands County filed two motions for sanctions in the form of dismissal of the plaintiff’s lawsuit. Docket Entry Nos. 511 and 646. These motions depicted out of court communications between Highlands County and the Plaintiff, Marcellus Mason. Judge Graham and his Magistrate granted these motions and dismissed the case on June 20, 2001. See Docket Entry Nos. 766 an and 791. The following alleged out of court lawful communications were used to dismiss the lawsuit.

(D.E. 511, ¶6, PG.3)

On February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation.

D.E. 511, ¶7, PG.3)

On February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Canno’s office and not through Defendant Highlands County ’s counsel.

D.E. 511, ¶8, PG.4)

After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001

D.E. 511, ¶9, PG.4).

(D.E. 646, ¶10, PG.3)

Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation.

(D.E. 646, ¶11, PG.4)

In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation.

(D.E. 646, ¶12, PG.4)

Judge Graham Thumbs Nose At US Supreme Court And Rejects the First Amendment’s Petition Clause

May 17, 2008

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”

Preface

A district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue, or with Supreme Court Justices writing for a majority of the Court. Binding authority within this regime cannot be considered and cast aside; it is not merely evidence of what the law is. Rather, case law on point is the law. If a court must decide an issue governed by a prior opinion that constitutes binding authority, the later court is bound to reach the same result, even if it considers the rule unwise or incorrect. Binding authority must be followed unless and until overruled by a body competent to do so…A decision of the Supreme Court will control that corner of the law unless and until the Supreme Court itself overrules or modifies it. Judges of the inferior courts may voice their criticisms, but follow it they must.Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001).

Purpose of This Post

The goal of this post is to seek help getting the injunctions in this post subject to appellate review. As demonstrated below, Mason has been unable to obtain appellate review of these orders. Where are the Defenders of the First Amendment?

“Preliminary Injunctions” Implicating Free Speech

“The right of petition is one of the freedoms protected by the Bill of Rights,… Certainly the right to petition extends to all departments of the Government.” California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508 (1972).

On June 19, 2000 and July 25, 2000, U.S. District Judge Donald L. Graham’s Magistrate, Frank Lynch, Jr., issued the following preliminary injunctions which 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.” (DE #246). This order is dated July 25, 2000. The Defendant referenced in these orders is a government defendant, Highlands County Board of County Commissioners. See heading Background, below. Amazingly enough, Judge Graham has stated that these orders are not “clearly erroneous nor is it contrary to law“. See Document No. 407. Judge Graham also disagrees with the Congress who has stated: “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)

Goddamn It, I Have the Power

Mason made numerous attempts at getting Teflon Don to state the legal basis for these massive exercises of power in rendering the above orders. However, Judge Graham has refused to share with the legal community and Mason the legal authority for these orders. Judge Graham and his Magistrate, Frank Lynch, Jr. ‘s replies have included, but are not limited to the following:

Docket No. 279 Docket No. 281
Docket No. 407

Docket No. 524

Docket No. 528
Docket No. 634
Docket No. 744 Docket No. 745 Docket No.874 Pg. 2
Docket No. 882
Docket No. 890

Docket No. 928

Docket No. 931

In fact, as documented below, the Eleventh Circuit, U.S. Court of Appeal has avoided appellate review of these orders like they were a highly contagious plague.

Judge Graham’s Hubris

Judge Graham is of the apparent belief that he is not bound by the orders of the United States Supreme Court, “SCOTUS”. Judge Graham has a history of defying the Supreme Court’s holdings anytime he disagrees with them. See Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Thumbs His Nose And Attorneys’ Fees and Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts. Judge Graham disagrees with his colleagues at the DC Circuit who have stated: “The limits placed by the First Amendment on the Government extend to its judicial as well as legislative branch.” Equal Emp. Opp. Comm. v. The Catholic Univ., 83 F.3d 455 (D.C. Cir. 1996). Other courts, including the old Fifth Circuit Circuit whom Judge Graham is legally bound to follow, have found orders such as the orders as described here to be unconstitutional. see Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976)(reversing an order which prohibited appellant from “discussing, directly or indirectly, settlement . . . with the plaintiffs” and from “contacting, communicating, or in any way interfering with the attorney-client relationship” as “too sweeping a restraint”); Bernard v. Gulf-Oil Co., 619 F.2d 459, 466 (5th Cir. 1980) (en banc), aff’d, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981),( explicitly held that requiring the litigant to meet the Court’s “post-communication filing requirements” of constitutionally protected communication was unconstitutional.). Additionally, in Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) the court held that an order which enjoined a litigant “from communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, its staff, or TES’s counsel, counsel’s employees, or counsel’s staff” constituted an invalid prior restraint and a unconstitutional limitation on free speech.

LACK OF APPELLATE REVIEW

The speech and orders described in this post have not been subjected to appellate review. It is, among other things, for this reason that Judge Graham can be accurately described as “Teflon Don”. In what can only be described as judicial treachery and dishonesty, the Eleventh Circuit, on a direct appeal spent an amazing 14 pages talking about the violations of the orders in this post, but none about their validity. This appeal has been described as the appeal from hell, see post entitled “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. The Eleventh Circuit appears to be hell bent on not reviewing these orders for validity as it has absolutely refused to conduct appellate review of these orders on multiple occasions while asserting a different reason each time for its refusal to review these orders. See post “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. Can Judge Graham be called anything other than “Teflon Don”?

U.S. Supreme Court on the Petition Clause

The First Amendment guarantees “the right of the people . . . to petition the Government for a redress of grievances.” The right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression. In United States v. Cruikshank, 92 U.S. 542 (1876), the Court declared that this right is implicit in “[t]he very idea of government, republican in form.” Id., at 552. And James Madison made clear in the congressional debate on the proposed amendment that people “may communicate their will” through direct petitions to the legislature and government officials.McDonald v. Smith, 472 U.S. 479, 482 (1985). The Supreme Court has consistently stated that any system of prior restraints of expression bears a heavy presumption against its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963);Near v. Minnesota, 283 U.S. 697, (1931);New York Times Co. v. United States, 403 U.S. 713 (1971). This burden is so heavy that in over two centuries, the Supreme Court has never sustained a prior restraint involving pure speech, such as the one at issue here. See Matter of Providence Journal Co., 820 F.2d 1342, 1348 (1st Cir. 1986). “[P]ure speech–speech not connected with any conduct”. id. The presumption of unconstitutionally of prior restraints has been described as “virtually insurmountable” by Supreme Court judges and others. id.(citing Near, 283 U.S. at 713). “Prior restraint has traditionally been defined as a “predetermined judicial prohibition restraining specified expression . . . .The essence of prior restraint is that it places specific communications under the personal censorship of the judge.Bernard v. Gulf-Oil Co., 619 F.2d 459, 470 (5th Cir. 1980) (en banc) aff’d, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981).

Banned Communications

The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so. It is neither unusual nor illegal for people to seek action on laws in the hope that they may bring about an advantage to themselves and a disadvantage to their competitors.Eastern R. Conference v. Noerr Motors, 365 U. S. 127 (1961). Judge Graham has banned the following lawful and protected communications with the Highlands County Government.

During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel.

(D.E. 511, ¶6, PG.3)

On February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation.

D.E. 511, ¶7, PG.3)

On February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Canno’s office and not through Defendant Highlands County ’s counsel.

D.E. 511, ¶8, PG.4)

After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001

D.E. 511, ¶9, PG.4)

Mr. Mason returned to Mr. Carino’s office a second time on February 14, 2001 and knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. He demanded to view Defendant Highlands County ’s Insurance Document of Coverage, a document that had previously been produced to him. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel. Notwithstanding, the document was produced to him.

D.E. 511, ¶10, PG.4)

During this visit, Plaintiff became loud, aggressive, disruptive, and questioned the need for Mr. Carino’s presence during his review of the document.

D.E. 511, ¶11, PG.4)

Plaintiffs conduct in violation of this Court’s Orders of June 19, 2000 and July 25, 2000 require a dismissal with prejudice of all of plaintiff’s claims in the above-referenced matter.

D.E. 511, ¶15, PG.5)

Since April 3, 2001 – subsequent to the Court’s March 27th Order – Plaintiff has repeatedly personally contacted supervisory employees and/or the individual Defendants about matters related to this case. Specifically, Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff, Plaintiffs tortious interference claim, as well as Allen, Norton & Blue’s “track record” of litigating appeals (including Eleventh Circuit appeals). (Exhibit 1).

(D.E. 646, ¶10, PG.3)

Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation.

(D.E. 646, ¶11, PG.4)

In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation.

(D.E. 646, ¶12, PG.4)

All of Plaintiff’s claims arise from the same set of facts and are all related, and he should simply not be allowed to continuously disregard Orders of this Court and blatantly challenge the Court’s authority.

(D.E. 646, ¶13, PG.4)

Plaintiff has demonstrated a blatant disregard and disdain for this Court’s authority, as evidenced by Plaintiff’s statement that “ANYBODY, who supports your position. . . is a racist and is part of the problem. I fear no man!!! This includes white men wearing robes” and “I aint afraid of a white men wearing robes of any color.” (Exhibit 1, e-mails dated 4/03/01 at 10:57 a.m. and 4/06/01 at 8:33 a.m. respectively)

(D.E. 646, ¶14, PG.4)

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 bearing Case No. 99-14027-CIV-Graham. The case was originally assigned to then Chief Judge Edward Davis who retired. On February 20, 1999, Judge Davis allowed Mason to proceed in forma pauperis, “IFP”, or to proceed without paying the required filing fee for a lawsuit. Docket Entry No. 3. 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.” (DE #246). 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).

On September 20, 2001, Judge Graham affirmed his authority to prohibit out of communication between Mason his government, Highlands County. (“including continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants” employees. Mason, however, ignored the Court’s order and continued to contact the Defendants.”). See pg. 4, (D.E. # 878) .

Judge Graham Disagrees With The Fifth Circuit, U.S. Court of Appeals

April 23, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, The “Teflon Don”

It is not surprising that Judge Graham, a district judge, would disagree with the Fifth Circuit, U.S. Court of Appeal because Judge Graham has similarly disagreed with the United States Supreme Court. See Postings this site, Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Due Process And Attorneys’ Fees and Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts.

In Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559 (Fed. 5th Cir., 2005), the district court “enjoined Singh from “communicating directly with, threatening, or harassing Test Masters Educational Services, Inc., its employees, staff, counsel, counsel’s employees, or counsel’s staff.” Similarly, Judge Graham “enjoined” Mason from communicating with his local government, Highlands County Board of County Commissioners. However, Judge Vanessa D Gilmore in Test Masters who was reversed, while Judge Graham has escaped appellate review because the Eleventh Circuit has declined to review his orders or injunctions for validity in what has to be a record number of times. See this site’s posting “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. Yet again, Judge Graham has avoided appellate rebuke while his colleagues have not been so fortunate. Judge Graham has frequently benefited by such disparate treatment. See postings, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge” and ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“. The myth of the “Teflon Don” grows larger!

Judge Graham Disagreements With The Fifth Circuit

Judge Graham has multiple disagreements with the Fifth Circuit. Specifically, “Teflon Don”, holds the following disagreements with the Fifth Circuit:

  • Judge Grahams disagrees that his orders or injunctions but “pre-trial discovery issues”.
  • Judge Graham has ruled that Federal Magistrate, Frank Lynch, Jr. may issue an injunction so long as he calls it a “pre-trial discovery issue and not an injunction per se”
  • Judge Graham can prohibit or enjoin direct communication between a pro se Plaintiff and his local government
  • Judge Graham is not required to comply with Rule 65, Fed.R.Civ.P.
  • Judge Graham has the power to dismiss a lawsuit due to lawful out of court communications with the Government

Judge Graham’s Injunction or “Pretrial Discovery Issue and Not An Injunction Per Se”

Judge Graham’s Magistrate, Frank Lynch, Jr., rendered the following orders on June 19, 2000 and July 25, 2000, which 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.”

(DE #246).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.

Communications Outlawed by Judge Graham

Judge Graham dismissed a lawsuit because out of court communications with a local government. See Report and Recommendation, “R&R”,(DE #766); Order Adopting R&R, (DE #791). Highlands County filed motions for sanctions in the form of dismissal for the following conversations.

During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County’s counsel.

D.E. 511, ¶6, PG.3).

Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff,...

D.E. 646, ¶10, PG.3). Judge Graham was adamant that Mason not talk to the Highlands County Government. As a matter of fact, three months after the case was closed, Judge Graham said:

[I]ncluding continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants” employees. Mason, however, ignored the Court’s order and continued to contact the Defendants…On June 20, 2001, in view of Mason’s repeated refusal to comply with the Court’s rules and orders, the Court dismissed case number 99-14027.

See Docket No. 878, pgs. 4-5. God damn it, I told you not to talk to the government!

Acrimony and Vitriol Between the Test Master’s Litigants

The district court’s injunction was prompted by allegations from TES that Singh and his employees had called TES dozens of times a day, including seventy-one times on one day in May 2003. TES alleged that the calls included the screaming of obscenities. TES also claims that Singh’s counsel, Sharon Naim, contacted TES’s president, Roger Israni, and threatened to file suit against TES in other states. TES taped the phone conversation and offered it as evidence that Singh had Naim call Israni directly, which is against the rules of professional conduct for lawyers. TES avers that another person acting on behalf of Singh called the accounting department of TES’s counsel, pretended to be a TES staff member, and obtained billing and insurance information about TES. TES also recorded a conversation with another of Singh’s counsel who called TES offices in August 2003, pretending to be a student in order to gain information about TES. TES contends that it has a recording of that conversation. Finally, TES alleges that Singh sent a letter to TES’s insurer, informing the insurer that it should not cover TES’s costs should TES lose in court. In addition, TES’s counsel and Singh did engage in a verbal and physical altercation in the hallway outside the district courtroom in California after TES’s counsel accused Singh of verbally and physically threatening them. Singh denies threatening TES’s counsel. The district court in California had to order the parties and their counsels to go straight from the courtroom to their cars and threatened them with jail time if another incident occurred.
See Test Masters at 579.

Court’s Legal Analysis

Prior restraints are “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). The district court’s order enjoining Singh from having any future communication with the specified persons was a prior restraint. Any system of prior restraints on communication bears a heavy presumption against its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) (quotation marks omitted). Prior restraints are unconstitutional limitations on free speech except in exceptional circumstances. Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

Court’s Conclusion

The district court prohibited Singh from “communicating directly with . . . TES employees, staff or TES’s counsel, counsel’s employees, or counsel’s staff.” To quote selectively from the district court, the court found that the parties had demonstrated an “immaturity” and “mean-spirited[ness],” and that Singh was pursuing “vexatious litigation.” However, despite the perhaps need of these parties to never speak again, the court did not detail, and the record does not reflect, any “exceptional circumstances” to justify permanently enjoining Singh from generally communicating with TES, TES’s counsel and their staff and employees. The district court’s order enjoining Singh from communicating with TES employees, TES’s counsel, and its counsel’s employees was a prior restraint limiting Singh’s first amendment rights, and because the injunction order is not supported by exceptional circumstances, it is an unconstitutional restraint on Singh’s free speech rights.Testmaster at 579.

A Federal Magistrate May Issue An Injunction So Long As He Does Not Call it An Injunction

April 21, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham

Who Are the Defendants?

The Defendants in this matter is the Highlands County Board of County Commissioners and its employees. The Highlands County Board of County Commissioners is a local government and political subdivision within the state of Florida located in Sebring, FL. The king, “teflon don”, Judge Donald L. Graham is located in Miami, FL about 158 miles from Sebring, FL.

Federal Magistrate May Not Issue an Injunction, 28 U.S.C. 636(b)(1)(a)

(1) Notwithstanding any provision of law to the contrary—
(A) 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 June 20, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:
[I]t is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Preliminary Injunction is GRANTED…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.” See Docket Entry No. 201

On July 25, 2000, Federal Magistrate Frank Lynch Jr. issued the following order:

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.

Communications Judge Graham Deemed Unlawful

Judge Graham dismissed a lawsuit because out of court communications. See Report and Recommendation, “R&R”,(DE #766); Order Adopting R&R, (DE #791). Highlands County filed motions for sanctions in the form of dismissal for the following conversations.

During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County’s counsel.

D.E. 511, ¶6, PG.3).

Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff,...

D.E. 646, ¶10, PG.3). Judge Graham was adamant that Mason not talk to the Highlands County Government. As a matter of fact, three months after the case was closed, Judge Graham said:

[I]ncluding continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants” employees. Mason, however, ignored the Court’s order and continued to contact the Defendants…On June 20, 2001, in view of Mason’s repeated refusal to comply with the Court’s rules and orders, the Court dismissed case number 99-14027.

See Docket No. 878, pgs. 4-5. God damn it, I told you not to talk to the government!

Mere Technicalities

Assuming a federal magistrate may issue an injunction, a mere technical obstacle exists called the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

These orders are classical prior restraints on pure speech. “Prior restraint has traditionally been defined as a “predetermined judicial prohibition restraining specified expression … A prior restraint is generally judicial rather than legislative in origin” Bernard v. Gulf Oil Co., 619 F.2d 459,467 (C.A.5 (Tex.), 1980). “Pure speech is “[t]he communication of ideas through spoken or written words or through conduct limited in form to that necessary to convey the idea… Pure speech is accorded the highest degree of protection under the First Amendment to the U.S. Constitution.” Based on Merriam-Webster’s Dictionary of Law ©2001. The U.S. Supreme Court has said: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 71 (1963). “[T]the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.” Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (C.A.6 (Ohio), 1996). “In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on pure speech.” Providence Journal Co., Matter of, 820 F.2d 1342, 1348 (C.A.1 (R.I.), 1986)

Judge Graham’s Opinion

Judge Graham has backed his Magistrate to the hilt and said that these orders are not “clearly erroneous nor contrary to law”.

June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary injunction prohibiting the Plaintiff from contacting any of the Defendants in this action…On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry 407.

Definition of Injunction

“A prohibitive or preventive injunction commands a person to refrain from doing an act and necessarily operates on unperformed acts and prevents a threatened but nonexistent existent injury.” State of Ala. v. U.S., 304 F.2d 583, 597 (C.A.5 (Ala.), 1962). According to Black’s Law Dictionary, an injunction is a “court order commanding or preventing an action.” Black’s Law Dictionary, pg. 800, 8th Edition, Bryan A. Garner, Editor in Chief, @ 2004 West Publishing Company. The Magistrate’s orders, among other things, commands that “Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.” The Magistrate’s orders prohibits or prevents “contacting any of the government Defendants, including their supervisory employees and/or the individual Defendants…”. Even more compelling support that these orders are really injunctions comes from the Highlands County’s attorneys themselves who specifically entitled their motion as Defendants Motion For Preliminary Injunction. (Doc. 199). Moreover, in their prayer for relief the Defendants requested “an injunction prohibiting Plaintiff from contacting any of the Defendants…” (Doc. 199, pg. 4). “An injunction is a coercive order by a court directing a party to do or refrain from doing something, and applies to future actions.” Ulstein Maritime, Ltd. v. United States, 833 F. 2d 1052, 1055 (1st Cir. 1987). “When a decree commands or prohibits conduct, it is called an injunction.” Gates v. Shinn, 98 F. 3d 463, 468 (9th Cir. 1995); Zetrouer v. Zetrouer, 89 Fla 253 (Fla. 1925)(“A prohibitory, sometimes called preventive, injunction is one that operates to restrain the commission or continuance of an act and to prevent a threatened injury). “The term ‘injunction’ in Rule 65(d) is not to be read narrowly but includes all equitable decrees compelling obedience under the threat of contempt.” Consumers Gas & Oil v. Farmland Indus., 84 F.3d 367, 370 (10th Cir. 1996). See United States v. Santtini, 963 F. 2d 585, 590 (3rd Cir. 1992)(court of appeals not constrained by district courts characterization of its order). “Ordinarily, since an injunction is defined not by its title but by its effect on the litigants, …, it would be assumed that an order that has the practical effect of an injunction is an injunction for the purposes of Sec. 1292(a)(1).” Abernathy v. Southern California Edison, 885 F.2d 525, 529 n.14(C.A.9 (Nev.), 1989). Some well-known cliches might be appropriate at this junction. If it walks like a duck and quacks like a duck, then it is a duck. A rose by any other name is still a rose.

Appellate Oddessy and Gauntlet

These orders have run an incredible odyssey and gauntlet of appellate attacks, however, the Eleventh Circuit has managed to avoid reviewing these orders for validity. See posting this site,”Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. The Eleventh Circuit has made some incredible rulings and done some amazing things with these orders or injunctions without reviewing them for validity.

  • Case No. 01-11305. The Eleventh Circuit denied a mandamus petition or interlocutory appeal to review these orders. For you legal types, a mandamus petition maybe construed as a direct appeal. In Re Bethesda Memorial Hospital Inc., 123 F.3d 1407, 1408 (11thCir. 1997)( ”[P]recedent permits us to treat the petition for the writ of mandamus as a direct appeal..”); Yates v. Mobile County Personnel Bd., 658 F.2d 298 (11th 1981)(“A petition for mandamus filed in this court, however, may also satisfy the notice of appeal requirement, especially when the appellant is proceeding pro se…”). An Interlocutory appeal of an injunction is permitted. See Delta Air Lines v. Air Line Pilots Assoc., 238 F.3d 1300, 1308 (11thCir. 2001)(“ We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1292, which permits appeals from interlocutory orders of district courts ‘granting, continuing, modifying, refusing or dissolving injunctions.’.”). However, the Eleventh Circuit declined to review these orders while stating: “With regard to his requests for relief from the order granting the defendants’ motions for preliminary injunction, which the court construed as preliminary discovery motion, Mason has alternative remedy. He may either comply with the district’s courts discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt.” See Order Dated April 26, 2001. Judge Ed Carnes wrote this unpublished opinion. Judge Carnes’s opinion advances the absurd notion that a litigant should wait until the lawsuit is finished in order to get appellate review of orders that violate the First Amendment. However, absurd legal advice notwithstanding, Mason followed this advice and did just what Ed Carnes said. Hence, the direct appeal, Case No. 01-13664-A.

    Case No. 01-13664-A

    The panel that sat for this appeal included: Judge Stanley F. Birch, Jr., Judge Stanley Marcus, and Judge Susan Black. The Eleventh Circuit pulled very some very dishonest acts of trickery and chicanery in this unpublished opinion and appeal. One of these acts was stating that Marcellus Mason violated these injunctions and that Judge Graham was justified in dismissing the lawsuit based upon these alleged violations, but the Eleventh Circuit absolutely refused to review these same orders for validity. The appellate review consisted solely of the following acknowledgment: “On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records…” See Case No. 01-13664 Opinion, Pg. 9. In this very verbose and prolix opinion, there is no other discussion about the validity of these orders. When told that they had “overlooked” or “forgot” to test the very validity of the orders they claimed that Mason had violated, Judge Stanley F. Birch and the Eleventh Circuit replied: “The petition(s) for rehearing filed by Appellant, Marcellus M. Mason, Jr., is DENIED“. See Order. Perhaps the most egregious act of dishonesty that the Eleventh Circuit pulled in this appeal was that they struck Mason’s brief for arguing against a sua sponte issued prefiling injunction because it was “beyond the scope of appeal”; and when the Eleventh Circuit rendered its opinion, it used the very same sua sponte issued pre-filing injunction or vexatious litigant injunction, that it claimed was “beyond the scope of appeal”to affirm “teflon don”. See “Putrid Dishonesty:Beyond the Scope of Appeal“.

Eleventh Circuit Repeatedly Refuses To Review Orders For Validity

April 12, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham

PURPOSE OF THIS PAGE

WHAT DO YOU DO WHEN AN APPELLATE COURT REFUSES
TO REVIEW AN ORDER FOR VALIDITY?

The purpose of this page is to set forth documentation to prove that the Eleventh Circuit will take extreme measures to avoid appellate review of orders or injunctions rendered by U.S. Dist. Judge Donald L. Graham and his Magistrate, Frank Lynch, Jr. The unpublished Opinion is deployed to attain the desired result. One of the most offensive acts of dishonesty is that the Eleventh Circuit, in Case No. 01-13664, was quite willing to use the two orders in question against Marcellus Mason while simultaneously refusing to test these orders for validity.

The Eleventh Circuit has refused to review these orders for validity in every conceivable avenue of appellate review. This is part of an overall pattern to conceal the egregious and possible criminal behavior of U.S. Dist. Judge Donald L. Graham. See Core Allegations of Misconduct Page.

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

“If, for example, a precedent is cited, and the other side then offers a distinction, and the judges on the panel cannot think of a good answer to the distinction, but nevertheless, for some extraneous reason, wish to reject it, they can easily do so through the device of an abbreviated, unpublished opinion, and no one will ever be the wiser. (I don’t say that judges are actually doing this–only that the temptation exists.) Or if, after hearing argument, a judge in conference thinks that a certain decision should be reached, but also believes that the decision is hard to justify under the law, he or she can achieve the result, assuming agreement by the other members of the panel, by deciding the case in an unpublished opinion and sweeping the difficulties under the rug. Again, I’m not saying that this has ever occurred in any particular case, but a system that encourages this sort of behavior, or is at least open to it, has to be subject to question in any world in which judges are human beings.” 1 J. App. Prac. & Process 219 (1999). UNPUBLISHED OPINIONS: A COMMENT, Richard S. Arnold, Copyright © 1999 University of Arkansas – Little Rock School of Law ; Richard S. Arnold

First Amendment

The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


Pertinent History [Case No. 99-14027-CV-Graham/Lynch]

On June 15, 2000, Docket Entry 199, and July 12, 2000, Docket Entry 231, Maria Sorolis and Brian Koji,Allen, Norton Blue asked Judge Graham’s Magistrate, Frank Lynch, Jr., to grant them preliminary injunctions that required Mason to contact them before he could talk to the government defendants, the Highlands County Board of County Commissioners. 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 by the Magistrate, Frank Lynch, Jr., on June 19, 2000 and July 25, 2000.

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. Additionally, these orders directed that Mason contact these same lawyers prior to making public records request under Florida law. Between June 19, 2000 and July 25, 2000, Mason repeatedly challenged the jurisdiction of the district court via motions and the like. Judge Graham and the Magistrate absolutely refused to state where they got the legal authority from to issue these orders.

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.

Judge Graham has held that the above are orders are not “clearly erroneous nor is it contrary to law.” Specifically Judge Donald L. Graham held:

On June 19, 2000, the Honorable Magistrate Judge Frank J. Lynch entered an Order granting Defendants a preliminary Defendants in this action. Upon notice that Plaintiff was violating this order, Defendants filed a Renewed Motion For Preliminary Injunction. On July 25, 2000, Magistrate Judge Lynch entered an Order granting Defendants’ Renewed Motion for Preliminary Injunction, once again prohibiting Plaintiff from contacting any of the Defendants in this action or their supervisory employees. Magistrate Judge Lynch also ordered that Plaintiff shall only correspond with Defendants’ counsel.

Plaintiff then moved to rescind the July 25, 2000 order, however, on August 15, 2000, Magistrate Judge Lynch denied Plaintiff’s Motion to Rescind. Plaintiff appeals the August 15, 2000 ruling. After careful review of the file and the pertinent portions of the record, the Court finds that Magistrate Judge Lynch’s ruling is not clearly erroneous nor is it contrary to law. See Fed. R. Civ. P. 72; see also Cooper-Houston v. Southern Railway Company, 37 F.3d 603 (11th Cir. 1994).

See Docket Entry No. 407 dated November 2, 2000.

On September 20, 2001, Judge Graham affirmed his “inherent authority” to prohibit direct communication with the government by a non-lawyer and stated: “including continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants’ employees. Mason, however, ignored the Court’s order and continued to contact the Defendants.” Docket No. 878. Imagine that, a citizen communicating with the government!


ELEVENTH CIRCUIT REFUSES APPELLATE REVIEW

The following orders, [D.C. Case No. 99-14027-CV-Graham, Doc. (201), Doc. (246)rendered by a Magistrate, are not valid and are violative of the First Amendment, Tenth Amendment, 28 U.S.C. § 636 (b)(1)(A), and fails to meet the legal requirements for a preliminary injunction:

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.

(DE #246).
This order is dated July 25, 2000. These orders amount to what is considered the first prior restraint on pure speech in over 200 years and they were issued by a Magistrate Judge when the U.S. Supreme Court has declined to do so. These orders clearly implicate the “Petition Clause” or right to “petition the government for a redress of grievances” of the First Amendment.

Eleventh Circuit Uses Concocted Procedural Arguments to Avoid Appellate Review

The Eleventh Circuit has had a multiplicity of opportunities to review these orders, but has declined to do so. These orders were reviewable under collateral order doctrine and could have been appealed prior to entry of final judgment because these orders resolved issues independent and easily separable from other claims in the prior pending lawsuit. Ortho Pharmaceutical Corp. v. Sona Distributors, 847 F.2d 1512, 1515 (11thCir. 1988). Following is a list of opportunities, the Eleventh Circuit has to review these orders:

  1. Case No. 01-13664. The Eleventh Circuit,
    Judge Stanley F. Birch, Jr., Judge Susan H. Black, and Judge Stanley Marcus, rendered a prolix 14 page opinion on October 16, 2002 that does not discuss the validity of these orders. It is quite remarkable in that The Eleventh Circuit is single-mindedly focused on alleged out of court communications with his government by Mason as alleged violations of the orders above while steadfastly refusing to review the validity of these orders. On appeal, Mason argues that the magistrate’s discovery orders enjoined him without legal authority and violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records.” See Pg. 10. Even though The Eleventh Circuit admitted the orders in question were being tested for validity on appeal, The Eleventh Circuit refused to review these orders for validity.
  2. Case No 01-15754 Among other things, The Eleventh Circuit, Judge Susan H. Black, Judge Rosemary Barkett, and Judge Stanley Marcus. The Eleventh Circuit, again refuses to address this issue. In fact, the entirety of the opinion is: The Eleventh Circuit “petition for writ of mandamus and petition for writ of prohibition” is DENIED.”
  3. Case No. 02-13418. This lawsuit was filed against Judge Graham and his Magistrate, Judge Frank Lynch, Jr., for issuing these orders. In an opinion rendered on Dec. 6, 2002, The Eleventh Circuit, Judge Ed Carnes,Charles R. Wilson, and Phyllis A. Kravitch, again declined to discuss the validity of these orders while asserting in a mere conclusory fashion that the Judges have absolute immunity. In reading the opinion, one can not determine what the judges are immune from.
  4. Case No. 01-13664. Mason filed a Appellant’s Renewed Motion For Summary Reversal on or about September 25, 2002. Yet again The Eleventh Circuit refuses to discuss the validity of these orders.
  5. Case No. 01-11305. On April 26, 2001, the Eleventh Circuit, Judge Ed Carnes, yet again refused to review the validity of theses orders.“With regard to his requests for relief from the order granting the defendants’ motions for preliminary injunction, which the court construed as preliminary discovery motion, Mason has alternative remedy. He may either comply with the district’s courts discovery order and challenge it on appeal from the final judgment, or refuse to comply with the order and challenge its validity if cited for contempt”. See Mandamus Petition. Was Mason supposed to wait until the end of trial to get his First Amendment rights back? The Eleventh Circuit has answered this question with a resounding no. “[I]t is well established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.KH Outdoor, LLC v. Trussville, 458 F.3d 1261, 1271-1272 (11th. Cir. 2006); Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir. 1983). The Eleventh Circuit declined to review these orders via interlocutory appeal because they were characterized as “discovery orders” by the district court”. However, it is well established that an appellate court is not bound by a district court’s characterization of its own orders with respect to appellate jurisdiction. United States v. Hylton, 710 F.2d 1106 (5th Cir. 1983). United States v. Jorn, 400 U.S. 470 (1971).

  6. Judge Graham and Magistrate Refuse to Cite Legal Authority

    Judge Graham and his Magistrate have had multiple opportunities to cite legal authority for these orders prohibiting direct communication with the government, but have adamantly refused to do so. It is as if Judge Graham is saying, “You will not communicate with the government directly because I said so, the law and the constitution notwithstanding.” Marcellus Mason submitted several motions asking Judge Graham and his Magistrate where they got the legal authority to issue the above orders, and each time Judge Graham his Magistrate refused.

    Docket No. 279 Docket No. 281
    Docket No. 407

    Docket No. 524

    Docket No. 528
    Docket No. 634
    Docket No. 744 Docket No. 745 Docket No.874 Pg. 2
    Docket No. 882
    Docket No. 890

    Docket No. 928

    Docket No. 931

    The following is representative of Judge Frank Lynch Jr. and Judge Graham’s responses.

    ORDER ON PLAINTIFFS MOTION FOR CLARIFICATION (DE #262)
    THIS CAUSE haying come on to be heard upon the aforementioned Motion, and this court having reviewed the Motion and the response, and being otherwise advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motion for Clarification is DENIED, it is further ORDERED AND ADJUDGED that Plaintiff shall comply with the terms and provisions of this Court’s Order, filed July 25, 2000, and any violations of the order will result in the imposition of sanctions or dismissal with prejudice as to all plaintiffs claims
    .

    Docket No. 281

    The only explanation Mason has received thus far is the negative cite below: If the Plaintiff was represented, his attorney would know that this is proper procedure. .


    BANNED OUT OF COURT DIRECT GOVERNMENT COMMUNICATIONS

    During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel.

    D.E. 511, ¶6, PG.3)


    On February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation.

    D.E. 511, ¶7, PG.3)


    On February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County ’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Canno’s office and not through Defendant Highlands County ’s counsel.

    D.E. 511, ¶8, PG.4)


    After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001

    D.E. 511, ¶9, PG.4)


    Mr. Mason returned to Mr. Carino’s office a second time on February 14, 2001 and knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. He demanded to view Defendant Highlands County ’s Insurance Document of Coverage, a document that had previously been produced to him. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County ’s counsel. Notwithstanding, the document was produced to him.

    D.E. 511, ¶10, PG.4)


    During this visit, Plaintiff became loud, aggressive, disruptive, and questioned the need for Mr. Carino’s presence during his review of the document.

    D.E. 511, ¶11, PG.4)


    Plaintiffs conduct in violation of this Court’s Orders of June 19, 2000 and July 25, 2000 require a dismissal with prejudice of all of plaintiff’s claims in the above-referenced matter.

    D.E. 511, ¶15, PG.5)


    Since April 3, 2001 – subsequent to the Court’s March 27th Order – Plaintiff has repeatedly personally contacted supervisory employees and/or the individual Defendants about matters related to this case. Specifically, Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff, Plaintiffs tortious interference claim, as well as Allen, Norton & Blue’s “track record” of litigating appeals (including Eleventh Circuit appeals). (Exhibit 1).


    (D.E. 646, ¶10, PG.3)


    Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation.

    (D.E. 646, ¶11, PG.4)


    In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation.

    (D.E. 646, ¶12, PG.4)



    All of Plaintiff’s claims arise from the same set of facts and are all related, and he should simply not be allowed to continuously disregard Orders of this Court and blatantly challenge the Court’s authority.

    (D.E. 646, ¶13, PG.4)


    Plaintiff has demonstrated a blatant disregard and disdain for this Court’s authority, as evidenced by Plaintiff’s statement that “ANYBODY, who supports your position. . . is a racist and is part of the problem. I fear no man!!! This includes white men wearing robes” and “I aint afraid of a white men wearing robes of any color.” (Exhibit 1, e-mails dated 4/03/01 at 10:57 a.m. and 4/06/01 at 8:33 a.m. respectively)

    (D.E. 646, ¶14, PG.4)