Posts Tagged ‘Judge Federico Moreno’

Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative Definition To Defeat Complaints of Misconduct Under the Judicial Misconduct and Disability Act

June 8, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Purpose of this Post

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, “Teflon Don”, for abusive behavior and misconduct. The overall scheme of all methods (direct appeal, mandamus, lawsuit, misconduct complaints) of disciplining federal judges have been undermined and defeated by Judge Graham’s cohorts at the Eleventh Circuit, see http://mmason.freeshell.org/methods.htm. States with have removed judges from office for the conduct that is listed in this post and elsewhere. This post will examine the perfect scam that Chief Judge J.L. Edmondson has used to defeat claims of judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. § 351, et.seq. The perfect scam is a “negative definition” of judicial misconduct. A negative definition is a “definition which states what a thing is NOT rather than what it is.” http://academic.csuohio.edu/polen/LC9_Help/2/25negative.htm. Judge Edmondson does not define misconduct he simply disagrees with every act that alleges misconduct in the complaint is judicial misconduct. Consequently, a negative definition is used to define judicial misconduct out of existence. Chief Judge J.L. Edmondson’s definition, or lack thereof, would suggest that federal judges are held to a lower standard than state court judges. Congress does not help as it chosen not to identify specific acts that it considers to be judicial misconduct for it has abrogated this responsibility and left it up to judges like Judge Edmondson to decide. Section 352 states:

(b) Action by Chief Judge Following Review.— After expeditiously reviewing a complaint under subsection (a), the chief judge, by written order stating his or her reasons, may—
(1) dismiss the complaint—
(A) if the chief judge finds the complaint to be—
(i) not in conformity with section 351 (a);
(ii) directly related to the merits of a decision or procedural ruling; or
(iii) frivolous, lacking sufficient evidence to raise an inference that misconduct has occurred, or containing allegations which are incapable of being established through investigation; or

It is a well known fact that Chief Judges summarily dismiss complaints of misconduct at a rate greater than 90 per cent. This is part of the reason why Justice Stephen Breyer was selected by the then Chief Justice Rehnquist to do a study of the problem. At the urging of Congressman James Sensenbrenner, former Chairman, U.S. House Judiciary Committee, in 2004, a committee was formed (The Judicial Conduct and Disability Act Study Committee) by Chief Judge Rehnquist to study the problem of federal judicial discipline. Judge Edmondson is of the apparent belief that legal error and judicial misconduct are mutually exclusive. As a consequence of this narrow view, Judge Graham can put on his robe and do anything he damn well pleases because “legal error” is not judicial misconduct.

Other Tactics Used by Judge Edmondson

The use of the negative definition tactic is fatal enough by itself to demolish almost all complaints of judicial misconduct. However, Judge Edmondson has used at least three other tactics that augment the negative definition tactic. Judge Edmondson has used:

  • Mischaracterization. Judge Edmondson characterizes your allegations of misconduct and abuse in such a manner that they fit easily within the categories for summary dismissal. For an example, see Complaint No. 05-0011.
  • Omission. Judge Edmondson omits specific allegations of misconduct and abuse from his summary dismissals. For example, in complaint No. 01-0054, Judge Edmondson states: “The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling” and/or ‘Action on the complaint is no longer necessary because of intervening events, and therefore moot”. Consequently, pursuant to 28 U.S.C. § 372(c)(3)(A) and (3)(B) and Addendum Three Rule 4 (a)(2), this Complaint is DISMISSED.”
  • Fails to test allegations of misconduct for veracity. Judge Edmondson does not test allegations of misconduct and abuse for veracity.
  • Failure to Investigate. Judge Edmondson does not investigate allegations of misconduct and abuse. Judge Edmondson does not ask the complainant for more information to support a charge, he simply states that the charge lacks factual support.

Specific examples of the above are set forth below in the “Not Judicial Misconduct” heading. When told of these allegations, Judge Graham’s Chief Judge, S.D. Fla., Federico Moreno offered the following tepid “endorsement”:

I am in receipt of your letter written to me as a Chief Judge of the Southern District of Florida about actions by Judge Donald Graham. In that letter, you also complained about the Chief Circuit Judge J.L. Edmondson. As you can understand one district judge cannot review the actions of another district judge. This rule applies to the Chief Judge of the District as well. It is before the Eleventh Circuit Court of Appeals in Atlanta that any complaint as to a ruling made by a District Judge can be made, I assure you that any decision rendered by Judge Graham was made in good faith upon what he perceived to be the law. Judge Graham has an impeccable reputation. However, if you feel that a judge has erred, the appellate judges in Atlanta are the ones who can decide what to do about it. Thank you for writing.

See Letter dated April 4, 2008.

Judicial Misconduct Complaints

The following complaints have been lodged against Teflon Don.

Not Judicial Misconduct

Judge Edmondson has expressly stated that each of the following documented acts of misconduct are not misconduct under the Act.

  • Lying and Intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction during the entire pendency of the lawsuit from November 1999 to June 20, 2001 or about 19 months.
  • Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” to conceal the fact that he had a motion for a preliminary injunction pending for more than 17 months.
  • Usurping authority by allowing a Magistrate, Frank Lynch Jr., to issue preliminary injunctions two times.
  • Usurping authority by allowing a Magistrate to dictate to a non-lawyer that he must seek the permission of private attorneys in order to speak with a local government.
  • Usurping authority by allowing a Magistrate to set restrictions on how Florida Public Records are to be accessed.
  • Allowing scores of motions to go undecided for months.
  • Intentionally misstating material facts in order to render a pre-filing injunction.
  • Disrespecting several well-established Supreme Court decisions proscribing certain acts of Judges.
  • Judge Graham has repeatedly and improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions 18 separate times.
  • Judge Graham has been involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction which ultimately formed the basis of a criminal contempt complaint and conviction.
  • Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit.
  • Judge Graham awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent plaintiff, Marcellus Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham’s speculation about Mason’s motive.
  • Judge Graham attempted to circumvent the appellate process by using intimidation.

These allegations and others fully documented at: (1)http://mmason.freeshell.org/CoreAllegations.htm; or (2)Documented Acts of Misconduct by U.S. Dist. Judge Donald L. Graham. As of this date, the Judges at the Eleventh Circuit have allowed Teflon Don to escape rebuke and condemnation as Judge Graham has not been punished in any way for these acts. For example, many of these allegations were mentioned in a direct appeal and simply ignored by the appellate panel, see “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. Petitions for mandamus met with a similar fate, see for example, Case No. 01-15754, “Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham“. Judge Graham’s behavior easily fits within positively defined definitions of judicial misconduct.

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
.

“[A] judge is guilty of “oppression in office” when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority.” State v. Colclazier, 2002 OK JUD 1, 106 P.3d 138.

“Where honesty or integrity are at issue, a single action can result in a finding of judicial misconduct.” In re District Judge Ronald F. Kilburn, Case No. 90-478, (Vermont Supreme Court 1991)(citing In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361, 373-75 (1989)). See http://dol.state.vt.us/SUPCT/157/op90-478.txt.

“Canon 3A(5) is violated where there is a pattern of unreasonable delay or where a particular instance is so lacking in legitimate justification that it is willful. See Matter of Long, 244 Kan. 719, 724, 772 P.2d 814, 818 (1989) (Canon 3A(5) violated where delay is “significant, extensive, and unjustified”); Sommerville, 364 S.E.2d at 23 n.3 (sanctions appropriate under Canon 3A(5) where there is a pattern of delay resulting from either willful neglect of, or manifest inability to effectively perform, judicial duties); Matter of Alvino, 100 N.J. 92, 97 n.2, 494 A.2d 1014, 1016 n.2 (1985) (delay can violate Canon 3A(5) if “willful” or “typical of the judge’s work”);” See URL:http://www.libraries.vermont.gov/SUPCT/157/op90-478.txt.

“Legal error and judicial misconduct are not mutually exclusive.” In Re Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct.

The University of New Mexico, Institute of Public Law, Judicial Education Center, has put together a Judicial Ethics Handbook which defines judicial misconduct.

If Judge Edmondson had an affirmative definition like the ones described above, then Judge Graham would have to disciplined. If the states are able to cite and list specific examples of judicial misconduct, then there is no reason why the federal judiciary can not do the same. To simply say, no that is not misconduct as Judge Edmondson does reflexively, is not enough.

Pending Judicial Misconduct Complaints

It has been said that the Committee on Judicial Conduct and Disability, has become quite serious in investigating federal judges for misconduct. According to law.com, in March of this year, the Judicial Conference adopted the first-ever binding nationwide procedures for handling complaints of judicial misconduct. As a result of this, Mason submitted to complaints to both the Judicial Conference and Judge Edmondson again.