Posts Tagged ‘Federal Rules of Civil Procedure’

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).

FEDERAL JUDGE VIOLATES FIRST AMENDMENT, TENTH AMENDMENT RECEIVES ABSOLUTE IMMUNITY

May 8, 2008

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

Purpose of This Post

In order to preclude the haters and defenders of the status quo from their seemingly religious fervor for judicial independence, the purpose of this post is not to argue that U.S. Dist. Judge Donald L. Graham, “Teflon Don” did not have “absolute immunity” or “judicial immunity” for the prohibited acts described here. On the contrary, it is to show the American public what federal judges can receive immunity for. This post will demonstrate that a judge can act like a bull in a china shop with respect to the constitution and well established law and still escape accountability. Additionally, this post will document the Eleventh Circuit’s affinity for deploying unpublished opinions that deliberately omit material facts in order to achieve the desired outcome. The Eleventh Circuit lacks testicular fortitude and the courage of its beliefs because it adamantly refuses to state the acts that Judge Graham was given absolute immunity for. If Teflon Don has really has immunity, then why won’t his enablers state what he is immune from? Chief Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, does not consider a federal judge’s willful disdain and contempt for the Constitution of the United States and well established law to be misconduct within the meaning of the Judicial Misconduct and Disability Act. Lastly, the American Bar Association, “ABA”, has asked the American public to drink its Jim Jones type koolaid and their dogmatic mantra of “judicial independence”. This post will demonstrate the dangers of “judicial independence” versus public scrutiny and accountability.

See if you can tell, by reading the opinion only, what Judge Graham is given immunity from.

ELEVENTH CIRCUIT’S OPINION

Case No. No. 02-13418, Unpublished Opinion by Judge Ed Carnes, Judge Charles R. Wilson, and Judge Phyllis A. Kravitch.

The following represents the only discussion in the entire Opinion as to why Judge Graham and his Magistrate, Frank Lynch, Jr. have absolute immunity.

Viewing the facts in a light most favorable to Mason, we find that he fails to state a cognizable First Amendment claim against Judges Graham and Lynch that would entitle him to relief under § 1983, § 1985 or § 1986. Moreover, judges are entitled to absolute judicial immunity for all acts undertaken in their official capacity unless they acted in “clear absence of all jurisdiction.” See Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000). Neither party disputes that the alleged constitutional violations arose out of actions taken by Judges Graham and Lynch in their official capacities. While Mason alleges that the orders issued by both judges were “illegal and void ab initio” he fails to plead any facts that show that the judges did not act within their legitimate jurisdiction. Therefore, absolute judicial immunity precludes § 1983, § 1985 and § 1986 claims against Lynch and Graham.

See Opinion, pgs. 4,5. This is a mere conclusory statement that all courts routinely reject from litigants. Additionally, this opinion is blatantly dishonest in that deliberately mischaracterizes Mason’s legal arguments for the nefarious purpose of achieving the desired outcome. See Appellant’s Initial Brief pgs. 26-34, for an accurate characteriztion. In the words of the former United States Senator Robert Dole: “Eleventh Circuit quit distorting my record!”. The apparent holding of this opinion is that a federal judge can acquire a case number and set about making up any kind of sh&&### he wants and still be the beneficiary of absolute immunity.

What Judge Graham Was Sued For

Judge Graham was sued in District Court Case No. 02-14049-CV-KMM, Eleventh Circuit Case No. 02-13418 for orders he issued in Dist. Ct. Case No. 99-14027-CV-Graham, Marcellus Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, et.al. Heartland Library Cooperative and Highlands County Board of County Commissioners are local governments. Judge Graham’s Magistrate, Frank Lynch Jr., issued the following orders or injunctions prohibiting direct communication with the government under the guise of “judicial authority”.


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). See Complaint, Pg. 16, ¶150.

The lawsuit, Case No. 02-14049-CV-KMM, Eleventh Circuit Case No. 02-13418, asserted claims under 42 U.S.C. §§1983,1985,1986 for issuing the above orders in Case No. 99-14027-CV-Graham/Lynch. See Complaint, Pg. 16, ¶150. The legality or illegality of these injunctions are central to the lawsuit. According to the Fifth Circuit, U.S. Court of Appeal, Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 579 (Fed. 5th Cir., 2005) an order that an order 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. In this case the order went even further as it attempted prohibit direct communication with the government and to place restrictions how Mason accessed Public Records under Florida Law.

A United States Circuit Judge on the Dangers of Unpublished Opinions

It was 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 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.

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 en banc court.

Links To Briefs and Opinions

  • Opinion
  • Appellant’s Initial Brief
  • Appellant’s Reply Brief.
  • Judge Graham’s Appellees’ Brief. Prepared by AUSA Kathleen M. Salyer
  • Complaint. An html version of the original complaint.
  • Trial Court’s Opinion, Report and Recommendation, R&R, Docket # 52, authored by Magistrate John J. O’Sullivan, adopted by the District Court, Docket # 56. The R&R by Judge O’Sullivan is a scathing personal attack on Marcellus Mason that uses six of the seven total pages for that purpose. These six pages have nothing to do with why the lawsuit was filed. At the risk of straying off point, this R&R is a must read for three reasons. Firstly, it is blatantly dishonest because it mischaracterizes the nature of the complaint and is very evasive. Secondly, it points up why judges can not be trusted to police themselves. It relies heavily on a clearly void sua sponte issued pre-filing injunction. See Case Law. Is a Magistrate Judge, an inferior judge, that lacks Article III protections going to recommend that a superior District Judge be held liable in a lawsuit?

SHORT CASE SUMMARY

District Court Case No. 02-14049-CV-Moore
This lawsuit was filed against Judge Donald L. Graham and Magistrate Judge Frank Lynch, Jr. and is directly related to another lawsuit, Case No., 99-14027, Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners,et.al. This lawsuit expressly demanded “judgement against Lynch and Graham in the form of injunctive and declaratory relief and any other lawful relief. MASON further demands trial by jury.” See Complaint, Pg. 16, ¶150. This lawsuit asserted claims under 42 U.S.C. §§1983,1985,1986 for issuing the following orders in Case No. 99-14027-CV-Graham/Lynch:


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).

Incidentally, though not the point of this post, the Eleventh Circuit has fought tooth and nail to avoid reviewing these orders for validity on multiple occasions. See this site, post “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“.

District Court Case No. 99-14027-CV-Graham/Lynch

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. 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 pursuant to Fed.R.Civ.P. 41(b), 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. See Report and Recommendation, “R&R” (D.E.766), Order adopting R&R (D.E791). See Banned Communications. Judge Graham declined to reach the merits of the case as there were summary judgment motions pending on the day 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). More Background.

PREEMINENCE OF FLORIDA SUPREME COURT INTERPRETING FLORIDA LAW

Federal Courts are bound by the highest state court’s interpretation of its laws. The Supreme Court of the United States has said neither it “nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the state.” Johnson v. Fankell (96-292), 520 U.S. 911 (1997). “Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern.” Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938).

ABSOLUTE IMMUNITY

“As a class, judges have long enjoyed a comparatively sweeping form of immunity, though one not perfectly well defined.” Forrester v. White, 484 U.S. 219, 226 (1988). A long line of Supreme Court “precedents acknowledges that, generally, a judge is immune from a suit for money damages.” Mireles v. Waco, 502 U.S. 9, 10 (1991). “[I]mmunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.” Id. at Pg. 12. “The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993).

Judge Graham does not have absolute for two reasons. Firstly, Judge Graham acted in clear violation of all jurisdiction. “But when a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost. See Bradley v. Fisher, 80 U.S. 13 Wall. 335, 351 (1871)(“when the want of jurisdiction is known to the judge, no excuse is permissible“); Turner v. Raynes, 611 F.2d 92, 95 (5th Cir. 1980) (Stump is consistent with the view that “a clearly inordinate [**13] exercise of unconferred jurisdiction by a judge-one so crass as to estab-lish that he embarked on it either knowingly or recklessly-subjects him to personal liability”).”
Rankin v. Howard, 633 F.2d 844, 849; 1980 U.S. App. LEXIS 11690, *12-13 (9th Cir. 1980).

The acts which formed the basis of the lawsuit were not judicial in nature.

The Acts Were Legislative Not Judicial

Judges have immunity for judicial acts only. “[J]udges do not receive immunity when acting in administrative, legislative, or executive roles.” Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997)(citing Forrester v. White 484 U.S. 219, 229-30). Judges do not have immunity for legislative acts. In Tober v. Sanchez, 417 So.2d 1053, 1055 (Fla. App. Dist. 3 1982) succinctly and aptly stated: “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 persons, 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 Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, (1980), the U.S. Supreme Court held that is rulemaking a legislative act where as here Judge Graham propounded a rule which did or does not exist. Judge Graham has stated:

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records. (DE #246). This act is allowed by the First Amendment, the Florida Statutes, and the Florida Constitution. “The right to petition government for redress of grievances — in both judicial and administrative forums — is ‘`among the most precious of the liberties safeguarded by the Bill of Rights.’ Because of its central importance, this right is ‘substantive rather than procedural and therefore cannot be obstructed, regardless of the procedural means applied.’” Graham v. Henderson, 89 F.3d 75 (2nd Cir. 1996) (quoting United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967)). Consequently, Judge Graham has to legislate his act.

Judge Graham has decreed: Plaintiff shall correspond only with Defendants’ counsel including any requests for public records. (DE #246). The Florida Constitution does not require a person to seek the permission of anyone to request public records much less private attorneys. “Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state,..” Florida Const. Article I, Section 24. The Florida Courts have repeatedly held that policy-making and rule-making with respect to the Florida Public Records Act is the exclusive domain of the Florida Legislature. See Housing Authority v. Gomillion, 639 So.2d 117, 122 (Fla.App. 5 Dist. 1994)(“Any change, exemption, or modification must, of necessity, come from the legislature.”); Tribune Co. v. Public Records, 493 So.2d 480, 483 (Fla.App. 2 Dist.1986)(“And only the legislature can create such an exemption, not the court or custodian.”); Barfield v. Ft. Lauderdale Police, 639 So.2d 1012, 1014 (Fla.App. 4 Dist. 1994)(“If the common law privileges are to be included as exemptions, it is up to the legislature, and not this Court, to amend the statute.”); Tampa Television, Inc. v. Dugger, 559 So.2d 397, 398 n.5 (Fla.App. 1 Dist.1990)(“[T]he Public Records Act, excludes any judicially created privilege of confidentiality and exempts from public disclosure only those public records that are provided by statutory law to be confidential or which are expressly exempted by general or special law.”) . According to the Florida Supreme Court, the Florida Public Records Act creates substantive right that only be restricted by the Florida legislature.

“”While Henderson is certainly correct that chapter 119 grants a substantive right to Florida citizens, the legislature also has the prerogative to place reasonable restrictions on that right.

Henderson v. State, 745 So.2d 319 (Fla. 1999). Florida Courts have repeatedly hat the Federal Rules of Civil procedure or any court rules have do not affect a person’s right under Florida Public Records law. See B.B. v. Dep., Children & Family Serv., 731 So.2d 30, 34 n.4 (Fla.App. 4 Dist. 1999)(“Section 119.01 is not intended to expand or contracts rights under court procedural rules.”); Wait v. Florida Power & Light Co., 372 So.2d 420, 425 (Fla. 1979)(“[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.”) If the Florida Supreme Court declines to place restrictions on the right of access to Florida’s Public Records, then who in the hell Teflon Don to do so?

The United States Supreme Court and the Congress has expressly prohibited federal judges from imposing its will on litigants by making rules or orders that abolish or nullify a right recognized by the substantive law of the state. In Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941), the Supreme Court held:

Congress has undoubted power to regulate the practice and procedure of federal courts, and may exercise that power by delegating to this or other federal courts authority to make rules not inconsistent with the statutes or constitution of the United States; but it has never essayed to declare the substantive state law, or to abolish or nullify a right recognized by the substantive law of the state where the cause of action arose, save where a right or duty is imposed in a field committed to Congress by the Constitution. On the contrary it has enacted that the state law shall be the rule of decision in the federal courts.

In Hanna v. Plumer, 380 U.S. 460, 472 (1965), the Supreme Court stated:

We are reminded by the Erie opinion that neither Congress nor the federal courts can, under the guise of formulating rules of decision for federal courts, fashion rules which are not supported by a grant of federal authority contained in Article I or some other section of the Constitution; in such areas state law must govern because there can be no other law.

Clear Absence of Jurisdiction

Lack of Jurisdiction

Judge Graham lacked jurisdiction because the Defendants, Highlands County Board of County Commissioners lacked standing. The Defendants, a government agency, asked for an “preliminary injunction” not to be communicated with directly. ““Defendants, Highlands County Board of County Commissioners … 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.”Docket Entry 199. This is an absurd proposition on its face. The Supreme Court has said that in order “to satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.,528 U.S. 167 (2000). The Defendants only claimed injury is:

The tone of Plaintiff’s letters, memorandums, facsimile transmissions, electronic mails, etc., are harassing in nature and are designed to interfere with the legal processes to which Plaintiff has subjected himself through electing to utilize the jurisdiction of this Court.

Judge Graham was without subject matter jurisdiction to restrict, impede, obstruct, or administer the Florida Public Records Act. “Subject matter jurisdiction is the court’s authority to decide the issue in controversy such as a contracts issue, or a civil rights issue. “Where there is clearly no jurisdiction over the subject matter, any authority exercised is a usurped authority, and, for the exercise of such authority when the want of jurisdiction is known to the judge, no excuse is permissible.Stump v. Sparkman, 435 U.S. 349, 356 n.6 (1978). State courts have general jurisdiction, meaning that they can hear any controversy except those prohibited by state law..” URL: http://topics.law.cornell.edu/wex/Jurisdiction
Along this same line, the Supreme Court in Stump at 435 U. S. 358 looked to the statutes and case law to see if the act in question (sterilization) been expressly prohibited. This is a common sense that a judge should not ble to claim immunity for act that is expressly prohibited by law. Neither, the constitution nor any statute gives a federal court jurisdiction with respect to Florida Public Records. “Courts created by statute only have such jurisdiction as the statute confers.” Christianson v. Colt Industries Operating Corp.,486 U.S. 800, 820 (1988). “The Federal Rules of Civil Procedure do not create federal jurisdiction.In re Infant Formula Antitrust Litigation, MDL 878 v. Abbott Laboratories, 72 F. 3d 842, 843 (11th Cir. 1995)(citing Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 368-370 & n. 7, 98 S.Ct. 2396, 2400 &n. 7, 57 L.Ed.2d 274 (1978)). See also Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001) (“Lower federal courts can exercise this power only over cases for which there has been a congressional grant of jurisdiction”). In fact the constitution expressly forbids any such notion. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” Tenth Amendment, U.S. Constitution. Apparently, realizing that there is a jurisdictional problem, along with a violation 28 U.S. § 636(b)(1)(a), the Magistrate attempts to invoke jurisdiction by asserting: “and noting that this Court is considering this issue as a pretrial discovery issue and not an injunction issue per se…” Assuming without arguing that may issue an injunction, a district court can not invoke jurisdiction by asserting the Federal Rules Civil Procedure.

Judge Graham’s order necessarily suggests that because Mason filed an employment discrimination lawsuit in federal court, Judge Graham now has the authority to place restrictions how Mason access Florida Public Records. The Florida Supreme Court has heard this argument and rejected it out of hand.

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.

Wait v. Florida Power & Light Co., 372 So.2d 420, 424 (Fla. 1979).

“[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…” Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla. 1979).

Implicit And Explicit Conclusions of Law

In order for Judge Graham and his Magistrate to have absolute immunity or judicial immunity, each of the following conclusions must necessarily be true.

  • The fling of lawsuit in federal court creates a right for the Highlands County Government not to be communicated with directly by a pro se litigant opposing party. Stately, alternatively, a plaintiff loses his right to communicate directly with the government when he or she sues the government.
  • Federal Judges, applying some unknown Federal Rules of Civil Procedure, can obliterate substantive rights guaranteed by a state and the Constitution of the United States.
  • Federal Judges may make mere conclusory statements.
  • Federal Courts need not say what the Judge is being given immunity for.
  • The filing of lawsuit gives a federal judge the right to obstruct the right to petition the government.
  • The filing of a lawsuit in federal court is grant of jurisdiction with respect to the Florida Public Records Act, Fla.Stat.,§ 119.01.
  • A federal judge may receive absolute immunity for what the State of Florida considers a legislative act.
  • Federal Courts are not required to discuss why injunctive and declaratory relief are not warranted even though the remedy is expressly asserted in a complaint.

Judicial Misconduct

Chief Judge J. L. Edmondson has expressly denied that the act of usurping authority in violation of clearly established law is not judicial misconduct pursuant to the Judicial Conduct and Disability Act 28 U.S.C. §351, et.al. See Complaint of Judicial Misconduct Case No. 05-0008.

Judge Graham Disdains Law, Denies Prevailing Indigent $92.60 In Costs Yet Awards $200,000 In Attorneys’ Fees Against Same Indigent!

April 30, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Point of This Post

This post will demonstrate yet another instance of where U.S. Dist. Judge Donald L. Graham, “Teflon Don” has demonstrated a reckless and blatant disregard for well established law and binding precedent with apparent impunity. Specifically, Judge Graham was required by law to either award costs of $94.62 to Mason , the prevailing defendant in a lawsuit, Case No. 00-14240, or state a legally sufficient reason for not awarding costs. Judge Graham defiantly chose neither and simply denied the costs without stating a reason. Even more egregious and mean-spirited, Judge Graham later awarded 200,000 in attorneys’ fees against the same indigent, Marcellus Mason, in complete disregard for the law. Teflon Don has an amazing pattern and practice of disregarding the edicts of appellate courts. See this site posts, “Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts” and “Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Due Process And Attorneys’ Fees“. Judge Graham, without a doubt, is in fact the “Teflon Don“. Lastly, such conduct as described here and elsewhere has been deemed not to be judicial misconduct by Chief Judge J. L. Edmondson, United States Court of Appeals, Eleventh Circuit.

Pertinent Case Background

On Aug 7, 2000, Highlands County Board of County Commissioners and Heartland Library Cooperative filed a lawsuit against Marcellus Mason seeking injunctive relief or “equitable action to permanently enjoin the Defendant from filing or maintaining any civil action against any of the named Plaintiffs without the representation of any attorney authorized to practice before this Court.” See Report and Recommendation, “R&R”, (D.E. 27). On January 16, 2001, the Magistrate, Frank Lynch Jr., issued his R&R which recommended that the Plaintiff’s lawsuit be dismissed and stated:

While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look to for justifying injunctive relief.

See R&R, pg. 3. Judge Graham accepted this R&R in its entirety and dismissed the case on February 13, 2001. See Docket Entry No. 33. The Plaintiffs, Highlands County Board of County Commissioners, in this matter took nothing from this lawsuit for it failed in its only claim for injunctive relief.

The Law On Awarding Costs

According to the Eleventh Circuit, U.S. Court of Appeals, whom Teflon Don is legally bound to follow:

“Rule 54(d) of the Federal Rules of Civil Procedure provides that “costs other than attorneys’ fees shall be allowed as of course to the prevailing party unless the court otherwise directs.” Fed.R.Civ.P. 54(d). This Court has held that “where the trial court denies the prevailing party its costs, the court must give a reason for its denial of costs so that the appellate court may have some basis upon which to determine if the trial court acted within its discretionary power.” Gilchrist v. Bolger, 733 F.2d 1551, 1557 (11th Cir.1984) (citation omitted) (emphasis added). Thus, although the district court has discretion to deny a prevailing party costs, such discretion is not unfettered.” Head v. Medford, 62 F.3d 351 (11th Cir. 1995). In Head (citing Gilchrist v. Bolger, 733 F.2d 1551,1557) the court expressly stated that “the district court did not determine whether defendants were prevailing parties and gave no reason for denying defendants’ bill of costs. This was an abuse of the court’s discretion.” Similarly in GILCHRIST v. BOLGER, 733 F.2d 1551(11th Cir. 1984), the Eleventh Circuit has held:

“The rule in this circuit is that where the trial court denies the prevailing party its costs, the court must give a reason for its denial of costs so that the appellate court may have some basis upon which to determine if the trial court acted within its discretionary power(internal citations omitted)” “Baez v. United States Dept. of Justice, 684 F.2d 999, 1004 (D.C.Cir.1982) (en banc) (“Every circuit that has considered the question (ten out of twelve) has not only recognized the presumption [that prevailing parties will obtain costs], but has held that a court may neither deny nor reduce a prevailing party’s request for costs without first articulating some good reason for doing so.”).

The US Supreme Court on Costs

“Under Rule 54(d), the “prevailing party” automatically is entitled to costs “unless the court otherwise directs.” Indeed, the Rule contemplates that applications for costs will be presented in the first instance not to the court but to the clerk; a district judge need not take up the issue at all unless the losing party makes a timely motion for judicial review.”  BUCHANAN v. STANSHIPS, INC., 485 U.S. 265 (1988).

Goddamn It Because I Said So

Teflon Don shows that he doesn’t give a damn about legally binding precedent. On January 23, 2001, Mason filed a Defendant’s Motion For Taxation of Costs seeking to recover the costs of defending a lawsuit in Case No. 00-14240.

On February 13, 2001, Judge Graham denied the motion while stating only the following:

THIS CAUSE is before the Court upon Defendant’s Motion for Taxation of Costs (D.E. #30). THE COURT having considered the Motion, the perinent portions of the record and being otherwise fully advised, it is ORDERED AN ADJUDGED that Defendant’s Motion for Taxation of Costs is DENIED.

There is no question that Judge Graham knew the law with respect to the award of costs because in awarding $200,000 in attorney’s fees to Highlands County Judge Graham and his Magistrate cited Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000). See Docket No. 882, pg. 6(“This Court believes that it is a factor which the District Court may, but need not, consider in its award. Chapman v. Al Transport, 229 F.3d 1012 (11th Cir. 2000)”). In Chapman, the Eleventh Circuit, Judge Graham’s supervisors stated:

However, the district court’s discretion not to award the full amount of costs incurred by the prevailing party is not unfettered,(internal marks and citation omitted)”since denial of costs is in the nature of a penalty for some defection on [the prevailing party’s] part in the course of the litigation.” To defeat the presumption and deny full costs, a district court must have and state a sound basis for doing so.

See Docket Entry No. 35.

Appellate Review Was Not An Option

Mason did not file an appeal of this denial for two reasons:

  • Judge Graham denied a motion to proceed on appeal without paying the appeal docketing fee, or in forma pauperis, “IFP”. See Docket No. 43.
  • An appeal would have been futile. The Eleventh Circuit had already indicated its unwillingness to reverse Judge Graham on a previous appeal even where the law clearly favored Mason. Consequently, any appeal would have been futile as the Eleventh Circuit would have followed its usual pattern and deployed an “unpublished opinion” and affirmed Judge Graham. For proof of this very serious allegation, see this site, post entitled “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“.

Judge Graham Says No To An Appeal of $94.62 Costs Denial

Judge Graham denied Mason the opportunity for appellate review by denying Mason’s in forma pauperis motion for a reason not supported by the United States Supreme Court in “Denton v. Hernandez, 504 U.S. 25, 27 (1992);” and “Neitzke v. Williams, 490 U.S. 319, 324 (1989)” which states that …1915(d) authorizes federal courts to dismiss a claim filed in forma pauperisif the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.“ See See Docket No. 43.

Meanspirited And Vindictive

In addition to Judge Graham’s pattern and practice of disrespecting the rule of law and binding precedent, Teflon Don can be mean-spirited and vindictive as well. Judge Graham was quite adamant about not awarding Mason chicken change in court costs ($94.62) against these same heavily insured Defendants, Highlands County Board of County Commissioners, but had absolutely no problem awarding these people $200,000 in legal feels against Mason in Case No. 99-14027. The Defendants did not prevail on any issue as that lawsuit was dismissed because of alleged out of communications between Mason and Highlands County. For an incredible story, see Attorneys’ Fees Webpage for more information. This post will only address the narrow legal point that attorney’s fees can not be awarded if they bankrupt the Plaintiff or the Plaintiff has no ability to pay. The underlying merits of the lawsuit is fully discussed at the Attorneys’ Fees Webpage. The only legal point being raised here is that the district court can not make such a grotesque award even if a Plaintiff’s lawsuit was totally frivolous, which this clearly was not the case, given the financial insolvency of Mason. Judge Graham knew that Mason was proceeding as an indigent having been awarded in forma pauperis status, “IFP” to initiate the lawsuit. See Docket Entry No. 3. Moreover, it was Judge Graham and his Magistrate, Frank Lynch Jr., who said: “it does not appear as though the Plaintiff has any financial ability to pay any attorney’s fees which may be assessed against him in this case.Docket Entry No. 882, pgs. 6-7.

Attorneys fees awards may not bankrupt a party. “A court should refrain from imposing a monetary award so great that it will bankrupt the offending parties or force them from the future practice of law.Baker v. Alderman, 158 F.3d 516 (C.A.11 (Fla.), 1998).

Sanction orders must not involve amounts that are so large that they seem to fly in the face of common sense, given the financial circumstances of the party being sanctioned. What cannot be done must not be ordered to be done. And, sanctions must never be hollow gestures; their bite must be real. For the bite to be real, it has to be a sum that the person might actually pay. A sanction which a party clearly cannot pay does not vindicate the court’s authority because it neither punishes nor deters. MARTIN v. AUTOMOBILI LAMBORGHINI EXCLUSIVE, INC., 307 F.3d 1332 (11th Cir. 2002).

Eleventh Circuit Sticks In The Knife

Making this massive award even more pernicious, Judge Charles R. Wilson, Eleventh Circuit, U.S. Court of Appeal ruled that it was “frivolous”, without stating why, to appeal this massive award. See this site, post entitled “Judge Wilson Rules Appeal Of Award $200,000 Fees Frivolous“. On October 17, 2002, while denying a motion for clarification, the Eleventh Circuit, for the second time, asserted that it was frivolous to file an appeal of a $200,000 award in attorney’s fees. See Order dtd Oct. 17, 2002.

Judicial Misconduct

A feature of this blog is describing conduct that Chief Judge J.L. Edmondson, Eleventh Circuit, and others, do not consider to be judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. §§ 351-364. This posting will demonstrate that federal judges can intentionally disregard well established law and binding precedent with near absolute impunity. Chief Judge J.L. Edmondson, and others, asserts that such acts, even if true, do not constitute judicial misconduct. Moreover, according Judge J.L. Edmondson interpretation of the law, even if Judge Graham were involved in a pattern and practice of total disregard for clearly establish law and binding precedent such behavior would still not rise to the level of judicial misconduct. See Complaint of Judicial Misconduct No. 05-0021. For More Support, Complaint Nos. 05-0008, 05-0012, 05-0013, 05-0020, 05-0021. Switching vernacular for the moment, according to Judge Edmondson there aint no judicial misconduct.

Judge Edmondson seems to disagree with his own Judicial Conference who has clearly stated that a pattern and practice intentionally disregarding clearly establish law could be misconduct.

[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 :Pg. 8.