Posts Tagged ‘judicial independence’

Eleventh Circuit Disregards Well Established Law, Own Binding Precedent, And The U.S. Supreme Court: Achieving Desired Outcome By Ignoring Timely Filed Notices of Appeal

September 9, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”, A Bad Mother&&#!@, Shut Your Mouth!!

Table of Contents

Introduction

Point of This Post

Judicial Independence

Form of Notice Of Appeal

Disregarded Notices Of Appeal

Supreme Court On Time For Filing Notice of Appeal

Eleventh Circuit On Time For Filing Notice of Appeal

Other U.S. Circuit Court of Appeals On The Time For Filing Notice of Appeal

Order Closing the Case

Introduction

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. Judge Graham has a history of insolence with respect the United States Supreme Court and binding precedent. See this site, “Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?“. This post will reference Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, Case No. 01-13664-A,  (11th Cir. 2002), an unpublished decision.  Mason v. Heartland Library Cooperative involves a level of judicial dishonesty that is odious and virtually impossible to overstate as this appeal has been aptly called “the appeal from hell”.  See Eleventh Circuit Case No. 01-13664: The Appeal From Hell.  The Eleventh Circuit is clearly unconstrained either by the law or the facts in its inexorable march to the land of desired outcomes. However, this post will limit itself to the narrow discussion of how the Eleventh Circuit simply took away the right to appeal a pre-filing injunction by asserting that notices of appeals were untimely. On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M.Mason.  See Docket Entry Number 878, (D.E. # 878) .  Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. While not the subject of this post, but the sua sponte issued pre-fling injunction is remarkable  and incredible for the following reasons:

Point of This Post

This post will only address the narrow legal point that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58, Federal Rules of Civil Procedure.  Specifically, this post will document how the Eleventh Circuit disregarded well established law, its own binding precedent, and the United States Supreme Court in order to keep from reviewing a sua sponte issued pre-filing injunction rendered by U.S. Dist. Judge Donald L. Graham on September 20, 2001.  The Eleventh Circuit simply ignored several timely filed notices of appeal that attacked the sua sponte issued pre-filing injunction.  Stated alternatively, the Eleventh Circuit just took away the legal right to appeal the sua sponte issued pre-filing injunction rendered on September 20, 2001.  The final judgment as required under Rule 58 was rendered on September 13, 2002. Prior to this date, September 13, 2002, the Eleventh Circuit disregarded several notices of appeal.

Judicial Independence

The American Bar Association, “ABA”, has created “talking points” on Judicial Independence. The ABA believes that Federal Judges should be left alone and be allowed to discipline themselves without “interference” from the Congress.

Benefits of Judicial Independence

It assures all Americans that cases will be decided on their merits. All litigants know that their case will be decided according to the law and the facts, not the vagaries of shifting political currents or the clamor of partisan politicians. Decisions are based on what is right and just, not what is popular at the moment.

ABA Talking Points: Independence of the Judiciary: Judicial Independence

Contrary to the ABA’s talking points, as this post documents, judges or appeals courts can simply deny an appeal without even bothering to address the merits of the appeal.  A court like the Eleventh Circuit can simply say a notice of appeal was untimely and disregard the right to appeal.   When this happens, a litigant is virtually without a remedy because the Supreme Court only hears about 1 per cent of the cases that are filed seeking review.

Form of Notice Of Appeal

Firstly, it is necessary to point out that according to the United States Supreme Court, a timely filed brief, formal or informal, or in this case a petition for mandamus may satisfy the notice of appeal requirement. There is no requirement that the brief or filing specifically state “notice of appeal”. “Rule 3(c) governs the content of notices of appeal: notices ‘shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.‘ Smith v. Barry, 502 U. S. 244 (1992). Courts will liberally construe the requirements of Rule 3. Thus, when papers are ‘technically at variance with the letter of [Rule 3], a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.‘ Id at ¶11. [T]he notice afforded by a document, not the litigant’s motivation in filing it, determines the document’s sufficiency as a notice of appeal. If a document filed within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.” Id at ¶13. Consequently, a petition for mandamus that meets that meets the requirements stated above is sufficient to satisfy the notice of appeal requirement.

The Eleventh Circuit has stated: “[P]recedent permits us to treat the petition for the writ of mandamus as a direct appeal”. In Re Bethesda Memorial Hospital Inc., 123 F.3d 1407, 1408 (11thCir. 1997).

Rule 4. Appeal as of Right—When Taken

In a civil case, a litigant normally has 30 days to tile an appeal from an order or judgment.

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4 (a)(1)(B), 4 (a)(4), and 4 (c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

See Rule 4, Fed.R.App.P.

Pertinent Facts

This post will only list the facts that are necessary to determine when the time for filing a notice of appeal begins to run.  More detailed background information can be found at mmason.freeshell.org, generally, and at http://mmason.freeshell.org/CaseSummary.htm.  This case was an employment discrimination case and was docketed under Case No. 99-14027-CV-Graham.  The Case was dismissed on June 20, 2001, Docket Entry No. 791, by Judge Graham for constitutionally protected out of court communications between the Plaintiff, Marcellus Mason, and the Defendant, Highlands County Board of County Commissioners.   A Notice of Appeal was filed on June 25, 2001.  ( Docket Entry #795).  District Case No. 99-14027-CV-Graham was subsequently assigned Eleventh Circuit Case No.  01-13664.

Post Closing Order(s)

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason.  See Docket Entry Number 878, (D.E. # 878) .  Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. Consequently, when Judge Graham rendered this sua sponte issued pre-filing on September 20, 2001, the matter was on appeal already.

Final Judgment

Final Judgment was rendered almost one year after the sua sponte issued pre-filing injunction of September 20, 2001.   The Defendants specifically requested a “final judgment” on February 25, 2002.  See Docket Entry No. 897.  Final Judgment was rendered on September 13, 2002. See Docket Entry No.  911.  The order expressly stated:

THIS CAUSE came before the Court upon Defendant’s

Motion for Entry of Final Judgment (D.E. 897)…FINAL JUDGMENT ORDER AND ADJUDGED that Defendant’s Motion is GRANTED. Final Judgment is entered in favor of Defendant and costs, in the amount of $200,00 are awarded to Defendant in accordance with this Court’s January 25, 2002.

Disregarded Notices Of Appeal

Prior to Final Judgment being rendered on September 13, 2002, the Eleventh Circuit disregarded several notices of appeal that included the following:

  • Firstly, an appeal was pending, Case No. 01-13664 [a direct appeal], when Judge Graham rendered the sua sponte issue pre-filing injunction on September 20, 2001.  A Notice of Appeal was filed on June 25, 2001.  ( Docket Entry 795).  On or about October 2, 2001, Mason filed a petition for mandamus challenging the validity of the sua sponte issued pre-filing injunction. See Receipt.  This petition for mandamus was subsequently assigned Case No. 01-15754.  The briefs in the direct appeal, Case No. 01-13664, had not been filed yet and the first brief was not filed until February 4, 2002.  See Eleventh Circuit’s Docket.  Consequently, the Eleventh Circuit could have and indeed should have construed the petition for mandamus as a notice of appeal and simply allowed the parties to argue this issue in the pending appeal.  However, on December 5, 2001, the Eleventh Circuit denied the petition for mandamus without requiring the appellees to respond.   The ” petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See Opinion.
  • Case No. 02-11476.  On May 01,2002, or four months before Final Judgment was rendered on September 13, 2002, the Eleventh Circuit denied a petition for mandamus that should have been treated as a notice of appeal and stated in pertinent part:  “Mason also requests that this Court vacate the district court’s order enjoining Mason from to Mason’s former employment without first receiving permission from the district court. Although Mason has not filed a notice of appeal from the district court’s order requiring him to receive the permission of the district court from filing any additional pleadings or from filing any new lawsuits related to his former employment or subsequent interactions with the defendants, Mason may raise this issue on appeal…Accordingly, Mason’s IFP motion is DENIED because his mandamus petition is frivolous.”  See Order dated May 1, 2002.
  • Case No. 02-14646.  On October 07,2002, or 24 days after final   Final Judgment was rendered on September 13, 2002, the Eleventh Circuit dismissed a notice of appeal that had been filed on June 24, 2002, or almost three months before Final Judgment was rendered on September 13, 2002. The Eleventh Circuit stated: This appeal is DISMISSED, sua sponte, for lack of jurisdiction. Appellant Marcellus Mason’s notice of appeal, filed on June 24,2002, is untimely from the district court’s order enjoining him from filing additional pleadings, entered on September 21,2001. See Fed.R.App.P, 4(a)(l)(A) & 26(a)(3).

Supreme Court On Time For Filing Notice of Appeal

“Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).” Bankers Trust Company v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). The sole purpose of the separate-document requirement, which was added to Rule 58 in 1963, was to clarify when the time for appeal under 28 U.S.C. § 2107 begins to run. According to the Advisory Committee that drafted the 1963 amendment:”Hitherto some difficulty has arisen, chiefly where the court has written an opinion or memorandum containing some apparently directive or dispositive words, e. g., ‘the plaintiff’s motion [for summary judgment] is granted,’ see United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 229, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). Clerks on occasion have viewed these opinions or memoranda as being in themselves a sufficient basis for entering judgment in the civil docket as provided by Rule 79(a). However, where the opinion or memorandum has not contained all the elements of a judgment, or where the judge has later signed a formal judgment, it has become a matter of doubt whether the purported entry of a judgment was effective, starting the time running for post-verdict motions and for the purpose of appeal. . . .

“The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum—which provides the basis for the entry of judgment.” 28 U.S.C.App., p. 7824. The separate-document requirement was thus intended to avoid the inequities that were inherent when a party appealed from a document or docket entry that appeared to be a final judgment of the district court only to have the appellate court announce later that an earlier document or entry had been the judgment and dismiss the appeal as untimely. The 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered. Id at ¶7.

See also United States v. Indrelunas, 411 U.S. 216 (1973).

Eleventh Circuit On Time For Filing Notice of Appeal

“'[C]ases from both the Supreme Court and the circuit courts of appeal make it clear that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58.’”  Big Top Koolers, Inc. v. Circus-Man Snacks, Inc.,528 F.3d 839; 2008 U.S. App. LEXIS 11087; (11th Cir. 2008)(quoting Reynolds v. Golden Corral Corp., 213 F.3d 1344,1346 (11th Cir. 2000)). “But, Rule 58 provides an alternative means of determining when the final judgment is deemed entered: “[J]udgment is entered at the following times: . . . (2) if a separate document is required, when the judgment is entered in the civil docket under Rule 79(a) and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket.” Fed. R. Civ.P. 58(c) (emphasis added).” Id.

Other U.S. Circuit Court of Appeals On The Time For Filing Notice of Appeal

Tenth Circuit

“Federal Rule of Civil Procedure 58 sets forth how a judgment or order is to be entered. Under Rule 58(a)(1) ordinarily a “judgment [or] amended judgment must be set forth on a separate document.” (Federal Rule of Civil Procedure 54(a) defines judgment as “any order from which an appeal lies.”) But there are exceptions to the separate-document requirement; a separate document is not required for orders disposing of motions under Rules 50(b), 52(b), 54, 59, and 60. See Fed. R. Civ. P. 58(a)(1)(A), (B), (C), (D), (E). Entry is straightforward when a separate document is not required; in that circumstance, the order is “entered” when it is “entered in the civil docket under Rule 79(a).” Id. Rule 58(b)(1). But if a separate document is required, the judgment is entered only “when it is entered in the civil docket under Rule 79(a) and when the earlier of these events occurs: (A) when it is set forth on a separate document, or (B)”when 150 days have run from entry in the civil docket under Rule 79(a).” Id. Rule 58(b)(2). Medical Supply Chain, Inc. v. Neoforma, Inc., 508 F.3d 572 (10th Cir. 2007).

Fifth Circuit

What is significant about this case, Baker, infra, is that the district court entered an order and expressly wrote on the order that “‘This is a final judgment.‘” However, the court, Fifth Circuit, opined that this description did not meet Rule 58’s requirement for a separate document.  Baker, infra, at ¶12.

“‘[T]he 1963 amendment to Rule 58 made clear that a party need not file a notice of appeal until a separate judgment has been filed and entered.’ Rule 58 is thus a safety valve preserving a litigant’s right to appeal in the absence of a separate document judgment.” Baker v.Mercedes Benz Of North America, 114 F.3d 57 (5th Cir. 1997). “If a separate document judgment is not entered, however, the time for filing an appeal does not begin to accrue until a judgment complying with the Rule 58 dictates has been entered. The rule is to be ‘ ‘interpreted to prevent the loss of the right of appeal, not to facilitate loss.”” Id. at ¶10. “If a separate document judgment is not entered, however, the time for filing an appeal does not begin to accrue until a judgment complying with the Rule 58 dictates has been entered. The rule is to be ‘ ‘interpreted to prevent the loss of the right of appeal, not to facilitate loss.””  Id. at ¶11.

Order Closing the Case

On June 20, 2001, Judge Graham rendered an order closing the case which stated:

THIS CAUSE came before the Court upon Defendants’ Motion and Second Motion for Sanctions in the Form of Dismissal of Plaintiff’s Action (D.E. #511 and D.E. #646). THE MATTER was referred to the Honorable United States Magistrate Judge Frank J. Lynch. A report recommending that the Court grant Defendants’ Motion for Sanctions in the Form of Dismissal of Plaintiffs Actions (D.E. #511 and D.E. #646), dated May 31, 2001, has been submitted. Plaintiff filed his objections on June 12, 2001. The Court has conducted a de novo review of the file and is otherwise fully advised in the premises. Accordingly, it is ORDERED AND ADJUDGED that United States Magistrate Judge Lynch’s Report of May 31, 2001, is hereby RATIFIED, AFFIRMED and APPROVED in its entirety. Therefore it is, ORDERED AND ADJUDGED that Defendants’ Motion and Second Motion for Sanctions in the Form of Dismissal of Plaintiff’s Action is GRANTED. It is further, ORDERED AND ADJUDGED that Plaintiff’s remaining claims are DISMISSED with prejudice. It is further, ORDERED AND ADJUDGED that this case is CLOSED and all pending motions are DENIED as MOOT. DONE AND ORDERED in Chambers at Miami, Florida, this 20th day of June, 2001.

See Docket Entry No. 791.

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Eleventh Circuit, US Court of Appeal Uses Unpublished Opinion of Three Judge Panel To Overrule Binding Published Opinion of An En Banc Court

August 9, 2008

Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham, “Teflon Don”, A Bad Mother&&#!@, Shut Your Mouth!!

Table of Contents

Introduction

Point of This Post

Judicial Independence

Judicial Misconduct and Pending Complaints

Appointments

Brief History of The Eleventh Circuit

Definition of En Banc

Prior Panels Decisions Are Legally Binding

Background

Definition of An Injunction

Semantic Tap Dancing and Characterization

Definition of A Prior Restraint

Judge Graham and the Eleventh Circuit’s Apparent Nebulous Legal Reasoning And Utter Disregard For Bernard v. Gulf-Oil Co. And The First Amendment

Discovery Orders

Introduction

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. Judge Graham has a history of insolence with respect the United States Supreme Court and binding precedent. See this site, “Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?“. Chief Judge J.L. Edmondson uses the perfect scam 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.

Point of This Post

The Eleventh Circuit, U.S. Court of Appeal, wanted to achieve the desired outcome so badly that it deployed an unpublished decision rendered by a three judge panel to overrule a legally binding opinion of an en banc court.  Specifically, Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980) affirmed Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) was overruled by a mere three judge panel consisting of Circuit Judges, Stanley F. Birch, Jr., Hon. Stanley Marcus,  and Hon. Susan H. Black.  This post will compare Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, Case No. 01-13664-A,  (11th Cir. 2002), an unpublished decision, to Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980), a published opinion.  Mason v. Heartland Library Cooperative involves a level of judicial dishonesty that is odious and virtually impossible to overstate as this appeal has been aptly called “the appeal from hell”.  See Eleventh Circuit Case No. 01-13664: The Appeal From Hell.  The Eleventh Circuit is unconstrained either by the law or the facts in its inexorable march to the land of desired outcomes. However, this post will limit itself to the narrow discussion of how the Eleventh Circuit used a three judge panel and an unpublished opinion to achieve this pre-determined outcome even at the expense of overruling an en banc court.  Specifically, the following two “orders” were at issue on appeal:

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.

“Orders regulating communications between litigants…pose a grave threat to first amendment freedom of speech. Accordingly, a district court’s discretion to issue such orders must be exercised within the bounds of the first amendment and the Federal Rules.” In re Sch. Asbestos Litig., 842 F.2d 671,680 (3d Cir. 1988). These orders are prior restraints and injunctions.  Among other things, there are two huge problems with these orders.  Firstly, these orders were issued by a Magistrate who can not issue an injunction.  Secondly, since these orders are prior restraints and as such, they are presumptively unconstitutional. “[T]he principal purpose of the First Amendment’s guaranty is to prevent prior restraints.”  In re Providence Journal Company at ¶17, infra. In order to achieve the desired outcome the Eleventh Circuit uses the following tactics that are deceitful and intentionally misleading:

  • It refuses to discuss whether these orders are really injunctions. There is no definition of an injunction and why these orders don’t fit within the definition of an injunction.
  • The term prior restraint is not used.  Mason’s right’s under the first amendment is not discussed.
  • The validity of these orders are not discussed in any manner. In a word, the Eleventh Circuit simply refuses to discuss the validity of these orders while it was quite willing to discuss Mason’s alleged violations of these patently illegal orders.

Judicial Independence

This post is a part of the overall scheme to land a knockout blow to the American Bar Association’s koolaid of “Judicial Independence”. The ABA’s emphasis is on “Judicial Independence” and it resists “interference” from outsiders-Congress of the United States, Layman review boards. The ABA has said: “There are checks on the judiciary and channels to correct improper decisions. The appeal process affords litigants the opportunity to challenge a judicial ruling.” About Us – ABA Standing Committee on Judicial Independence. What happens if the appeals courts disregards the rule of law? This is the idealistic and theoretical basis for “Judicial Independence”; however, the reality or actual practice does not equal the ideals. Suppose for a moment that such a system does not work. Federal Judges will take extreme measures to avoid disciplining a colleague federal judge. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell for even more dishonest jurisprudence. Moreover, the Eleventh Circuit will do anything to achieve the desired outcome. Two posts at this site, mcneilmason.wordpress.com, document how the Eleventh Circuit will do anything to achieve the desired outcome as the Eleventh Circuit took two different and inconsistent positions with respect to the jurisdiction of the lower court or Judge Graham during the appeal of this very appeal. See Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal! and Putrid Dishonesty:Beyond the Scope of Appeal.

Judicial Misconduct and Pending Complaints

Complaint Status
Judicial Conference pending

Reconsideration		 pending

June 25, 2008		 pending

July 9, 2008		 pending

July 15, 2008		 pending

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, Binding National Rules Adopted for Handling Judicial Misconduct Complaints, in March of this year, the Judicial Conference adopted the
first-ever binding nationwide procedures for handling complaints of judicial misconduct. U.S. Dist. Judge Donald L. Graham has escaped discipline for his abusive and possible criminal behavior.  As a result of this, Mason submitted complaints to both the Judicial Conference and Chief Judge J.L. Edmondson, Eleventh Circuit, US Court of Appeal, again.  These complaints are governed by 28 U.S.C. §§ 351-364,

“The Judicial Improvements Act of 2002” formerly “The Judicial Misconduct and Disability Act“.

Previously, Chief Judge J.L. Edmondson, had been misconstruing the statute and summarily dismissing complaints of misconduct by simply regurgitating the statutory language at 28 U.S.C. § 352 which allows him to dismiss complaints that are “directly related to the merits of a decision or procedural ruling“.
Judge Edmondson is alone in his view that legal error and judicial misconduct are mutually exclusive.  For more discussion on “legal error” and judicial misconduct, see article Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative Definition To Defeat Complaints of Misconduct Under the Judicial
Misconduct and Disability Act .

On Tuesday, June 25, 2008, a new complaint of judicial misconduct was filed against Judge Graham.  Additionally, complaints of misconduct were initiated against Judge Graham on July 9, 2008 and
July 15, 2008.

Appointments

Judge Donald L. Graham (1992), Judge Stanley F. Birch, Jr. (1990),  and Hon. Susan H. Black(1992)  are appointments of President George H.W. Bush.  Judge Stanley Marcus is a 1997 appointment of President William J. Clinton.

Brief History of The Eleventh Circuit

Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980) was decided on June 19, 1980 and therefore binding precedent within the Eleventh Circuit, U.S. Court of Appeal.  In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), the Court held:

This is the first case to be heard by the United States Court of Appeals for the Eleventh Circuit, established October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995, and this opinion is the first to be published by the Eleventh Circuit. Under P.L. 96-452 the United States Court of Appeals for the Fifth Circuit was divided into two circuits, the Eleventh and the “new Fifth.” This court, by informal agreement of its judges prior to October 1, 1981, confirmed by formal vote on October 2, 1981, has taken this case en banc to consider what case law will serve as the established precedent of the Eleventh Circuit at the time it comes into existence. We hold that the decisions of the United States Court of Appeals for the Fifth Circuit (the “former Fifth” or the “old Fifth”), as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit…The old Fifth followed the absolute rule that a prior decision of the circuit (panel or en banc) could not be overruled by a panel but only by the court sitting en banc. The Eleventh Circuit decides in this case that it chooses, and will follow, this rule.

Definition of En Banc

En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case, rather than a panel of them. It is often used for unusually complex cases, or cases considered of unusual significance. Appellate courts in the United States sometimes grant rehearing en banc to reconsider a decision of a panel of the court (a panel generally consisting of only three judges) where the case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court...Cases in United States Courts of Appeals are heard by a three-judge panel. A majority of the active circuit judges may decide to hear or rehear a case en banc. Parties may suggest an en banc hearing to the judges, but have no right to it. Federal law states en banc proceedings are disfavored but may be ordered in order to maintain uniformity of decisions within the circuit or if the issue is exceptionally important. Each court of appeals also has particular rules regarding en banc proceedings. Only an en banc court or a Supreme Court decision can overrule a prior decision in that circuit; in other words, one panel cannot overrule another panel.  See http://en.wikipedia.org/wiki/En_banc.

Prior Panels Decisions Are Legally Binding

A three judge panel decision or opinion binds all other subsequent appellate panels except an en banc court or the United States Supreme Court.  The Eleventh Circuit has stated: “Under our prior precedent rule, a panel cannot overrule a prior one’s holding even though convinced it is wrong. See, e.g., Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997) (‘The law of this circuit is ’emphatic’ that only the Supreme Court or this court sitting en banc can judicially overrule a prior panel decision.’  ‘[I]t is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.'”  United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.1998) (en banc).

Background

Marcellus M. Mason, Jr. of Sebring, Fl. filed an employment discrimination lawsuit against the Highlands County Board of County Commissioners and the Heartland Library Cooperative and other governmental entities and their individual government employees in February 1999.  See Docket Sheet. This case was ultimately assigned to Judge Donald L. Graham, “Teflon Don”, 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 and constitutionally protected and legal communications between Highlands County and Mason. See “R&R” (D.E. 766), Order adopting R&R (D.E 791).  See Banned Communications.

On June 13, 2000 , the Government Defendants through their attorneys,  Maria Sorolis and Brian Koji, filed a “DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION, (D.E. 199)” which specifically requested:  “Defendants move the Court for an injunction prohibiting Plaintiff from contacting any of the Defendants and/or their supervisory employees…“.  Defendant’s counsel, Maria Sorolis and Brian Koji, cited no legal authority for the requested relief.

On July 6, 2000, the Government Defendants 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, as the first motion cited no legal authority for the requested relief. These requests or motions for preliminary injunctions were granted on June 19, 2000 and July 25, 2000, respectively.  These orders required Mason, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL  to ask for permission to speak with his local government in Sebring, Florida.  These orders in pertinent 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 these 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).   Judge Graham has NEVER at any time cited legal authorities for these patently illegal orders even though there have been relentless requests.  See for example, and note that this list is not collectively exhausted, Case No. 99-14027 see Plaintiff’s  motions and responses, (Doc.#200);(Doc. #239); (Doc. #262);(Doc.  #264);(Doc. #284);(Doc.#334);(Doc. #509);(Doc. #515);(Doc. #526);(Doc. 554);(Doc. 632, pg.5);(Doc.#633);(Doc. 652);(Doc. 663); (Doc. 735); (Doc. 736); (Doc.738); (Doc. 783); (Doc. 787, pgs 2-3); (Doc. 810); (Doc. 812); (Doc.813); (Doc. 817); (Doc. 829), (Doc. 845);and the court’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 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”, (D.E. #766), recommended 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.  See (D.E. #791).

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).  This case was closed on June 20, 2001.

Case Closure

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).

Definition of An Injunction

28 U.S.C. § 636(b)(1)(A) states:

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…,”

The Eleventh Circuit scrupulously and meticulously avoids using the word injunction or prior restraint in their opinion.  The Eleventh Circuit admits the validity of the orders, (D.E. #201) and (D.E. #246), in question were being challenged on appeal.

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 Opinion, Pg. 9.   Courts have defined injunctions in the following manner:

In this matter, Magistrate Lynch prohibits direct communication with the government as he expressly states:

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.

In a separate action, Mason v. Kahn, Case No. 08-1143 (D.C. Dist. 2008), the Court refers to the orders in question as injunctions.  See (D.E. #3)(“In this action, plaintiff alleges that the issuance of the June and July 2000 injunction orders…plaintiff demands that the injunction orders issued in his employment discrimination case be declared unconstitutional. “).  In the entirety of the Eleventh Circuit’s 14 page Opinion there is no discussion as to whether the orders in question are injunctions.  Similarly, in an old Fifth Circuit decision,  Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976), that the Eleventh Circuit is bound by, see Bonner v. City of Prichard, supra; the Court held that an order which restricted communications between litigants without benefit of the attorneys involved amounted to an unconstitutional injunction:

It 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”. What the District Court in effect enjoined was a settlement between the parties, however amicably reached, if the claimants’ attorneys were not consulted. This was too sweeping a restraint by the lower court.

Semantic Tap Dancing and Characterization

The Eleventh Circuit opts to use the phrase “discovery order” as opposed to injunction or prior restraint.  For example:

  • On 19 June 2000, the magistrate judge issued discovery order prohibiting Mason from contacting the defendants… See Opinion, pg. 3.
  • 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 Opinion, pg. 3.

Judge Graham’s Magistrate, Frank Lynch, Jr. , who issued the orders never called them “discovery orders”.  The Magistrate in granting the Defendant’s Motion for a Preliminary Injunction characterizes his order thusly:  “this Court is considering this Motion as a pretrial discovery issue and not an injunction issue per se”  See (DE #201). Similarly, on July 25 in granting the Defendants’ Renewed Motion For Preliminary Injunction, (D.E. #231) The Magistrate use the same characterization:  “this Court is considering this issue as a pretrial discovery issue and not an injunction issue per se…” See (DE #246).

On appeal these orders these orders are attacked by Mason the Appellant as illegal injunctions that violate his “free speech” rights.

  • These orders, (Doc. 201) and (Doc. 246), “preliminary injunctions” are invalid because this issue was not referred to the Magistrate pursuant to 28 U.S.C. § 636(b)(1)(A).  See Initial Brief, pg. 6.
  • A Magistrate does not have the legal authority to issue an injunction.  See Initial Brief, pg. 6.
  • The district court punished the Plaintiff for exercising his right of “free speech” by dismissing this meritorious lawsuit. Plaintiff has a clear right to communicate with his government about the matters in this controversy, litigation notwithstanding.

In their opinion, The Eleventh Circuit scrupulously and meticulously avoids using the word injunction or prior restraint.  The word injunction is used one time in the very verbose 14 page opinion.  See Opinion, pg. 12 (“Moreover, the magistrate judge and district court attempted to clarify with Mason that the Orders were not injunctions, but rather necessary for the orderly litigation of the case.”).  As stated above, the Defendants filed Motions For Preliminary Injunction; however, rather than use the term Motion for Preliminary Injunction, the Eleventh Circuit uses generic terms to refer to these motions:

  • “Heartland moved to enjoin Mason from contacting them… ”  See Opinion, pg. 3.
  • “Heartland renewed their motion based on Mason’s continued contact with them…”  See Opinion, pg. 3.
  • “On 25 July 2000, the magistrate judge granted Heartland’s motion…”  See Opinion, pg. 3.

Judge Graham’s Magistrate, Frank Lynch, Jr., Injunction or “Pretrial Discovery Issue and Not An Injunction Per Se”  were rendered 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.

Definition of A Prior Restraint

The orders in question prohibit direct communication with the government by a mere pro se litigant, Marcellus M. Mason, are properly characterized as prior restraints.  The order of June 19, 2000 states:

[T]he 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.  Plaintiff shall correspond only with Defendants’ counsel.

See (DE #201).

“The term “prior restraint” describes orders forbidding certain communications that are issued before the communications occur. “ . Temporary restraining orders and permanent injunctions — i. e., court orders that actually forbid speech activities — are classic examples of prior restraints.” Alexander v. United States 509 U.S. 544,550 (1993). “Prior restraint has traditionally been defined as a “predetermined judicial prohibition restraining specified expression…” Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980).  “A prior restraint is generally judicial rather than legislative in origin, although an enabling statute may authorize the judicial suppression of publication. The essence of prior restraint is that it places specific communications under the personal censorship of the judge.” id at ¶22.  “Prior restraints are “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Test Masters at ¶45, infra. According to the United States Supreme Court, a prior restraint comes to the Court with a heavy presumption against its validity. New York Times Co. v. United States, 403 U.S. 713, 714 (1971). This presumption is so strong it has been described a virtually insurmountable. In re Providence Journal Company, 820 F.2d 1342 (1st Cir. 1986)(“pure speech–speech not connected with any conduct–the presumption of unconstitutionality is virtually insurmountable.”). This presumption is so strong that the Supreme Court has refused to uphold prior restraints even where national security, id. at ¶21, and the defendant’s sixth amendment right to a fair trial have been involved, id. at ¶22.   In over two hundred years, the U.S. Supreme Court composed of nine Article III Judges, has never upheld a prior restraint on pure speech, In re Providence Journal Company, supra,, however, a mere Magistrate, Frank Lynch, Jr, issues these injunctions with ease.

In Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559 (Fed. 5th Cir., 2005), the Fifth Circuit termed an order issued by Judge Vanessa D. Gilmore an injunction order:

[T]he district court’s injunction order enjoined Singh 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. 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.

This order prohibited communications between the parties, like the “discovery order” in this matter, was declared by the Testmasters Court to be a prior restraint. Id. at ¶45. Moreover, the  Testmasters Court held that even an acrimonious and hostile relationship between the parties would not justify a prior restraint.

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. (emphasis added)

Judge Graham and the Eleventh Circuit’s Apparent Nebulous Legal Reasoning And Utter Disregard For Bernard v. Gulf-Oil Co. And The First Amendment

Amendment I, U.S. Const. 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.

“Case law is not always necessary to clearly establish a right. A right may be so clear from the text of the Constitution or federal statute that no prior decision is necessary to give clear notice of it to an official.”  Rowe v. City Of Fort Lauderdale, 279 F.3d 1271 (11th Cir. 2002).  Notwithstanding case law and Bernard v. Gulf-Oil Co., it should be clear to all that communications with the government is constitutionally protected speech of the highest order.  The Eleventh Circuit and Judge Graham have shown a complete and utter disregard for Bernard v. Gulf-Oil Co., and its holdings. Mason v. Heartland Library Cooperative, Highlands County Board of County Commissioners, Case No. 01-13664-A,  (11th Cir. 2002), is a fourteen page opinion.  This opinion is little more than propaganda as it does not discuss the validity of the orders or injunctions in question.  The first ten pages of this opinion ostensibly states the “facts of the case”.  The last four pages are dedicated to discussion of the legal issues or how the law is applied to the facts.  At page nine, the Eleventh Circuit admits:

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.

This represents the sum total of the legal discussion of this issue.  However, at page 12, the Eleventh Circuit asserts the following:

Moreover, the magistrate judge and district court attempted to clarify with Mason that the Orders were not injunctions, but rather necessary for the orderly litigation of the case.

See Opinion. However, the en banc decision of the Eleventh Circuit, Bernard v. Gulf-Oil Co., 619 F.2d 459, 476 (5th Cir. 1980), expressly rejected this line of reasoning for issuing a prior restraint. “[T]he general presumption against prior restraints is not mitigated by a claim that the fair and orderly administration of justice is at stake.” In addition to the above, the Eleventh Circuit also disregarded Bernard v. Gulf-Oil other holdings.

  • The expression that is restrained is protected.  id at 39. “Material unequivocally not protected by the Constitution may be the subject of a prior restraint if sufficient procedural safeguards are provided. This possibility does not exist in the present case because the communications proscribed by the order are constitutionally protected.” id at 40. In this matter, the Eleventh Circuit refuses to recognize Mason’s right to communicate with the government about any subject without restriction.
  • A prior restraint comes with a heavy presumption against its constitutionality and   imposes on the issuing court rigid requirements to justify prior restraints. The prior restraint must prevent direct, immediate and irreparable damage, and it must be the least restrictive means of doing so.  id at 47. Neither Judge Graham nor the Eleventh Circuit attempt to make such a showing.

Discovery Orders

The Eleventh Circuit characterizes the orders in question as “discovery orders”.  However, neither the Eleventh Circuit in their opinion, or the Magistrate in his orders, (DE #201) and (DE #246), identify which discovery rule forms the legal basis of these orders.  Discovery is governed by the Federal Rules of Civil Procedure 26-37. See pg. 13, “INFORMATION ON REPRESENTING YOURSELF IN A CIVIL ACTION (NON-PRISONER), United District Court, South Carolina”.  “‘Discovery’ refers to the process of obtaining facts and information about the case from the other party in order to prepare for trial.”  id.  Neither the Eleventh Circuit nor the Magistrate identify any of the known discovery methods that were prohibited or abused.  Assuming arguendo, that these orders were actually “discovery orders”, they would be still be invalid because the Federal Rules of Civil Procedure does not create jurisdiction to restrict requests for public records.  In re Infant Formula Antitrust Litigation, MDL 878 v. Abbott Laboratories, 72 F. 3d 842, 843 (11th Cir. 1995). Florida Courts have repeatedly held that 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? Secondly, and more importantly, mere labels like “discovery orders” can not be used to undermine rights created by the the Constitution. 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.

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Posted in Constitutional Rights, first amendment, Judge Donald L. Graham, Judicial Misconduct, Junk and Absurd Law, nonpublication, Unpublished | 1 Comment »

Another One Bites the Dust: Same Set of Facts, Judge Graham Affirmed While Colleague Judge Forrester Reversed

July 24, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

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. Judge Graham has a history of insolence with [dis]respect the United States Supreme Court and binding precedent. See this site, “Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?“.

It is hard not to conclude that Judge Donald L. Graham is more valued than his colleagues at the Southern District of Florida and in the Eleventh Circuit when Judge Graham “teflon don” is affirmed on appeal while his colleagues at the S.D. Fla. and elsewhere in the Eleventh Circuit are reversed. In this post, U.S. Dist. J. Owen Forrester is “victimized” by the published opinion.  This is the fifth of five postings on this site where this has happened. U.S. Dist. Judges Daniel T. K. Hurley, Ursula Ungaro-Benages, Marvin H. Shoob, and William P. Dimitrouleas, met similar fates. See posting this site, “Eleventh Circuit Uses Same Set of Facts To Reverse One Florida Judge While Affirming Another Florida Judge“, ““Teflon Don” Avoids Reversal While Colleague Judge Ursula Ungaro-Benages Suffers Reversal“, U.S. Dist. Judge William P. Dimitrouleas Reversed While Colleague Judge Donald L. Graham Affirmed by Killing The Appeal, and Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata. In each case the Eleventh Circuit chose to deploy an unpublished opinion to affirm and protect Judge Graham while his colleagues suffered reversals in published opinions. It is difficult to see how such a system advances the notion of equal justice. It would seem that justice is a function not of the “rule of law”, but of whether or not the judge is favored by the appellate courts.

Mason sought to appeal a sua sponte issued pre-filing injunction that was rendered by U.S. Dist. Judge Donald L. Graham on September 20, 2001. See “The Sua Sponte Issued Pre-Filing Injunction“, heading below. Sua sponte issued pre-filing injunctions are void because they are issued without notice and opportunity to respond or due process. See, Case Law On Pre-Filing Injunctions, below. Additionally, this sua sponte issued pre-filing injunction is void because it made a so-called “finding of bad-faith” without the requisite notice and opportunity to respond or due process. The Eleventh Circuit has a long history of refusing to review this clearly void sua sponte issued pre-filing injunction. See Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review.

Judicial Independence

This post is a part of the overall scheme to land a knockout blow to the American Bar Association’s koolaid of “Judicial Independence”. The ABA’s emphasis is on “Judicial Independence” and it resists “interference” from outsiders-Congress of the United States, Layman review boards. The ABA has said: “There are checks on the judiciary and channels to correct improper decisions. The appeal process affords litigants the opportunity to challenge a judicial ruling.” About Us – ABA Standing Committee on Judicial Independence. This is the idealistic and theoretical basis for “Judicial Independence”; however, the reality or actual practice does not equal the ideals. Suppose for a moment that such a system does not work. Federal Judges will take extreme measures to avoid disciplining a colleague federal judge. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell for even more dishonest jurisprudence. Moreover, the Eleventh Circuit will do anything to achieve the desired outcome. Two posts at this site, mcneilmason.wordpress.com, document how the Eleventh Circuit will do anything to achieve the desired outcome as the Eleventh took two different and inconsistent positions with respect to the jurisdiction of the lower court or Judge Graham during the appeal of this very appeal. See Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal! and Putrid Dishonesty:Beyond the Scope of Appeal.

Judge J. Owen Forrester and the Published Opinion

U.S. Dist. Judge J. Owen Forrester was reversed on appeal where he dismissed a prisoner 28 U.S.C. § 1983 civil rights lawsuit, sua sponte, pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(b)(1), for failure to state a claim upon which relief may be granted because the statute of limitations precluded the prisoner from stating a claim. On July 20, 2000, the district court entered a two and one-half page order dismissing Leal’s suit, sua sponte, under the PLRA’s screening provisions, 27 U.S.C. § 1915A(b)(1), for failure to state a claim upon which relief could be granted. See Arsenio Leal v. Georgia Department Of Corrections, 254 F.3d 1276 (11th Cir. 2001). On August 23, 2000, the prisoner filed his notice of appeal from the dismissal. Ultimately, the court held that the notice of appeal was timely filed and proceeded to reverse Judge Forrester. If the Eleventh Circuit had used the same “rule of law” it used in Marcellus Mason v. Highlands County Board of County Commissioners, et.al., Case No. 02-14646-A, D. C. Case No. 99-14027-CIV-Graham, U.S. Dist. Judge Donald L. Graham, presiding, then it should have dismissed the appeal as untimely and not reversed Judge Forrester.

However, in Judge Forrester’s case, Arsenio Leal v. Georgia Department Of Corrections, 254 F.3d 1276 (11th Cir. 2001), the Eleventh Circuit held that

However, the 30-day appeal period does not begin to run until a final judgment is entered on a separate document pursuant to Federal Rules of Civil Procedure 58 and 79(a).2 See Fed. R. App. P. 4(a)(7) (“A judgment or order is entered for purposes of Rule 4(a) when it is entered in compliance with Rule 58 and 79(a) of the Federal Rules of Civil Procedure”). Here, the district court entered an order dismissing Leal’s suit on July 20, but the court failed to enter a final judgment on a separate document pursuant to Rule 58. Because “the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58 . . . there is no lack of appellate jurisdiction on the basis of untimeliness” even though Leal did not file his notice of appeal until August 23.

Similarly, in Reynolds v. Golden Corral Corporation, 213 F.3d 1344 (11th Cir. 2000), the Eleventh Circuit held that

“[C]ases from both the Supreme Court and the circuit courts of appeal make it clear that the time to file a notice of appeal does not begin to run until a separate judgment is entered pursuant to Rule 58. See, e.g., United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562 (1973).”

As documented below, the Eleventh Circuit in an unpublished decision, Eleventh Circuit Case No. 02-14646-A, held that a notice of appeal was untimely where it preceded the final judgment. Unlike Arsenio Leal and Reynolds, the Eleventh Circuit held that Marcellus Mason’s notice of appeal, June 24, 2002, was untimely even though it preceded the final judgment, September 13, 2002 by almost three months. Stated alternatively, there was no separate final judgment when Mason filed his notice of appeal.

Judge Donald L. Graham and the Unpublished Opinion

Eleventh Circuit Case No. 02-14646-A

D. C. Case No. 99-14027-CIV, Teflon Don, presiding.

On February 19, 2002, Defendants, Highlands County Board of County Commissioners, et.al. filed a Motion for Entry of Final Judgment. (D.E. #897).

On September 13, 2002, the Defendant’s Motion for Entry of Final Judgment was granted and a final judgment was entered. See (D.E. #911). Judge Graham stated:

THIS CAUSE came before the Court upon Defendant’s Motion for Entry of Final Judgment (D.E. 897)…ORDERED AND ADJUDGED that Defendant’s Motion is GRANTED. Final Judgment is entered in favor of Defendant and costs….

See (D.E. #911).

On October 7, 2002, the Eleventh Circuit, United States Court of Appeal stated:

This appeal is DISMISSED, sua sponte, for lack of jurisdiction. Appellant Marcellus Mason’s notice of appeal, filed on June 24, 2002, is untimely from the district court’s order enjoining him from filing additional pleadings, entered on September 21, 2001. See Fed.R.App.P. 4(a)(1)(A) & 26(a)(3).

No motion for reconsideration may be filed unless it complies with the timing and other requirements of 11th Cir.R. 40-4 and all other applicable rules.

.

Long History of Refusing to Review the Sua Sponte Issued Pre-filing Injunction

The Eleventh Circuit has refused to review the sua sponte issued pre-filing injunction no less than eight (8) times. The reasons for refusing to review the sua sponte issued pre-filing injunction is different each time. The following cases provided the Eleventh Circuit with the opportunity to review the sua sponte issued pre-filing injunction:

Case No. 01-13664-A, Direct Appeal, Oct. 16, 2002 is particularly offensive because the Eleventh Circuit struck Mason’s appellate brief because it argued against that the sua sponte issued pre-filing injunction that the Eleventh Circuit stated was “beyond the scope of appeal”. However, when the Eleventh Circuit affirmed Judge Graham in its decision it then used the same sua sponte issued pre-filing injunction to affirm Judge Graham. See Putrid Dishonesty:Beyond the Scope of Appeal. This appeal, Case No. 01-13664 has been referred to as the “appeal from hell”. See Eleventh Circuit Case No. 01-13664: The Appeal From Hell. Lastly, and even more offensive and egregious, the Eleventh Circuit sat idly by while Mason was being railroaded in a kangaroo court for contempt based solely upon this clearly void sua sponte issued pre-filing injunction. See Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life. Clearly, a decision has been taken that Judge Graham’s career is more important than Mason’s life.

The Sua Sponte Issued Pre-Filing Injunction

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his own motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. This type of injunction is commonly referred to under several different names: “leave to file injunction”, “vexatious litigant injunction”, “pre-filing injunction”, “filing injunction”, “1651 injunction”. This order was rendered when the matter had been on appeal since June 25, 2001. This fact creates a potential jurisdictional problem. See Post, “Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!” to see how the Eleventh Circuit dishonestly handled this problem. For specific case law on sua sponte issued injunctions, See Case Law On Pre-Filing Injunctions, below. This same sua sponte issued pre-filing injunction that Mason was not notice given notice and opportunity to respond to makes a so-called “finding of bad faith” that was subsequently used to award a heavily insured governmental entity attorney’s fees of $200,000. At pages 5,6, this sua sponte issued pre-filing injunction asserts:

It has become clear to the Court that Mason is proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and correspondence…Such activity is in bad faith and will not be permitted by the Court.

A finding of bad faith requires due process as well. ” “A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees,..” Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). See also Byrne v. Nezhat, 261 F.3d 1075 (11th Cir., 2001)(A court should be cautious in exerting its inherent power and “must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” ). See Judge Donald L. Graham Awards $200,000 Attorney’s Fees Against An Indigent. Apparently, Judge Graham does not have to do a damn thing even if the United States Supreme requires it.

The U.S. Supreme Court,”SCOTUS”, On the Importance of Due Process

“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution.” id. 161. “Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681.

In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Right of Access To Courts is Constitutionally Protected

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)(“the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition.“). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)(“The right of access to the courts is indeed but one aspect of the right of petition.“). See Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing “the fundamental right of access to the courts”); Procunier v. Martinez, 416 U.S. 396 (1974)(“The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to hallenge unlawful convictions and to seek redress for violations of their constitutional rights.“).

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005);Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987). The United States Supreme Court has stated: A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. (emphasis added) Chambers v.Nasco, Inc.,501U.S. 32, 50 (1991).

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Posted in Eleventh Circuit, Judge Donald L. Graham, Junk and Absurd Law, nonpublication, U.S. Court of Appeal, Unpublished | 24 Comments »

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

June 28, 2008

Justice Turned On Its Head

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

Point of This Post

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

Premise

Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree, It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Insurance Company Of America, 511 U.S. 375 (1994). “The courts, no less than the political branches of the government, must respect the limits of their authority.” Catholic Conf. v. Abortion Rights Mobilization, 487 U.S. 72 (1988)..

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

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

Eleventh Circuit’s Response to Jurisdictional Challenge

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

On May 17, 2002, the Eleventh Circuit stated:

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

See Order Granting Clarification.

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

What Do You Know From Reading The Order?

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

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

Law On Jurisdiction

“[T]he Supreme Court has ruled that “it is not proper for federal courts to proceed immediately to a merits question despite jurisdictional objections.” In re Madison Guaranty Savings & Loan Association, 173 F.3d 866; 335 U.S. App. D.C. 327 (C.A.D.C. 1999)(citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 1012, 140 L.Ed.2d 210 (1998) (without proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional defect and dismiss the suit)”). “On every writ of error or appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes. This question the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties to it.” Steel Co., 523 U.S. at 94. See also UNITED STATES of America v. Mery GIRALDO-PRADO, 150 F.3d 1328 (11th Cir. 1998) (“We have noted that a party may raise jurisdiction at any time during the pendency of the proceedings.”);

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

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

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

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

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

Construed or Screwed

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

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

Internal Operating Procedure

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

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

Motion To Determine Jurisdiction

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

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

Case Cited By Eleventh Circuit Supports Appellant

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

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

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

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

BACKGROUND

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

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

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

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

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

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

Refusal To Cite Legal Authority

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

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Posted in Unpublished | 2 Comments »

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 decide” Fox News. There is a whole pattern of conduct of that Judge Edmondson singularly disagrees is misconduct. See Egregious Documented Acts of Judicial Misconduct by Judge Donald L. Graham.

Litigant’s Right to Communicate With Government During Litigation.

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

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

“Government remains the servant of the people, even when citizens are litigating against it.” American Canoe Ass’n Inc. v. City of St. Albans, 18 F.Supp. 2d 620 (S.D.W.Va. 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).

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Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction

June 12, 2008

Justice Turned On Its Head

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

Foreword

There’s an old Negro spiritual called “May the Work I’ve Done Speak for Me”. In this same spirit, this author allows the work of the Eleventh Circuit, U.S. Court of Appeal and Judge Graham’s cohorts to speak for them. Unlike, Judge Graham, the Eleventh Circuit and his enablers apparent zeal and affinity for dishonesty, mis-characterization, omission, their work will not be characterized or mis-characterized it will be produced in full and publicly available for the reading public to make their own assessments. The record fully supports the idea that the Eleventh Circuit and its Judges and staff attorneys will take extreme, even lawless measures to protect Judge Graham. This post is part of an overall pattern and practice of using extreme measures and lawlessness to conceal the misconduct of Judge Graham. See Documented Allegations of Misconduct.

How Many Times Can a Court Refuse to Review an Order For Validity?

This post will demonstrate that the Eleventh Circuit, U.S. Court of Appeals has set a Guinness world record for refusing to review a clearly void sua sponte pre-filing injunction that was rendered by “Teflon Don”, U.S. District Judge Donald L. Graham on September 20, 2001. The Eleventh Circuit has declined to reach the merits of this sua sponte issued pre-filing injunction on multiple occasions. The denials invoke a kind of creative dishonesty. As a matter of fact, the denials are not consistent and even contradict each other on each successive attempt at appellate review. Even an ardent supporter of the system would have a hard time arguing that there is not a certain amount of dishonesty involved in the matter. The point here is that there has never been any appellate review of the sua sponte issued pre-filing injunction of September 20, 2001. Yet this sua sponte issued pre-filing injunction has been used as a weapon against Marcellus Mason. The Eleventh Circuit has elevated artifice to a level that would make a shister lawyer proud. The coup de grace is the Eleventh Circuit sat idly by while this clearly void sua sponte issued pre-filing injunction was used to form the basis of a criminal contempt complaint and conviction. See this outrageous story, “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“.

Judicial Independence

This post also makes vividly clear why federal judges cannot and should not be trusted to discipline themselves. The information provided in this post is not only true, but you would not be able to get this information anywhere else. The Eleventh Circuit relies on ignorance and the public’s willingness to believe that its federal judges are honest, diligent, and trustworthy. America should not drink the American Bar Association’s, “ABA”, koolaid of judicial independence.

The Sua Sponte Issued Pre-Filing Injunction

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his own motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. This type of injunction is commonly referred to under several different names: “leave to file injunction”, “vexatious litigant injunction”, “pre-filing injunction”, “filing injunction”, “1651 injunction”. This order was rendered when the matter had been on appeal since June 25, 2001. This fact creates a potential jurisdictional problem. See Post, “Eleventh Circuit: Notice of Appeal Does Not Divest District Judge of Jurisdiction of Matters Involved In the Appeal!” to see how the Eleventh Circuit dishonestly handled this problem. For specific case law on sua sponte issued injunctions, see Case Law On Pre-Filing Injunctions, below. This same sua sponte issued pre-filing injunction that Mason was not notice given notice and opportunity to respond to makes a so-called “finding of bad faith” that was subsequently used to award a heavily insured governmental entity attorney’s fees of $200,000. At pages 5,6, this sua sponte issued pre-filing injunction asserts:

It has become clear to the Court that Mason is proceeding in bad faith. Indeed, he has admitted as much in his own pleadings and correspondence…Such activity is in bad faith and will not be permitted by the Court.

A finding of bad faith requires due process as well. ” “A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees,..” Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991). See also Byrne v. Nezhat, 261 F.3d 1075 (11th Cir., 2001)(A court should be cautious in exerting its inherent power and “must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” ). See Judge Donald L. Graham Awards $200,000 Attorney’s Fees Against An Indigent. Apparently, Judge Graham does not have to do a damn thing even if the United States Supreme requires it.

Case No. 01-13664-A, Direct Appeal

The unpublished opinion rendered in this matter is a joke and model of dishonesty and deserved its own page and is a must read, see “Eleventh Circuit Case No. 01-13664: The Appeal From Hell”

This appeal was docketed under Eleventh Circuit Case No. 01-13664. The Notice of Appeal was filed on June 27, 2001. See Docket No. 795.

On Mar. 6, 2002, the court strikes the Appellants’ Brief arguing against the September 20, 2001 order. The court states the order is “beyond the scope of appeal”. Court orders Mason to go through the expense of filing new briefs that have no reference to the September 20, 2001.

On Apr. 23, 2002, Court Strikes Appellees brief for citing the order of September 20, 2001.However court refuses to make Appellees file new briefs as they did the Appellant.

On Oct. 16, 2002, the Court, Stanley F. Birch, Jr.,Susan H. Black, and Stanley Marcus, affirms Judge Graham.At pg. 14, Court specifically uses the September 20, 2001 that it stated to Mason was “beyond the scope of appeal”.

“Moreover, despite the closure of the case by the district court, Mason’s continual filing of motions with the court addressing matters previously settled prompted the district court to prohibit Mason from further filings without explicit permission and initiate criminal contempt proceedings.Therefore, the record supports the districts court’s implicit finding that a sanction less than dismissal of the action with prejudice would have no effect.”

Case No, 01-15754, Mandamus

The Judges responsible for making this decision are Judges Susan H. Black, Rosemary Barkett, and Stanley Marcus. The Eleventh Circuit received a mandamus petition that was docketed as being received on October 2, 2001. See Receipt. This is a 25 page petition plus exhibits. Microsoft Word Format, html format, and pdf format. This petition attacks the sua sponte issued pre-filing injunction of September 20, 2001. The Eleventh Circuit Court had jurisdiction to entertain an appeal pursuant to 28 U.S.C. § 1292 from the moment the injunction of September 20, 2001 was issued even if the case was not closed like the matter at bar. According to the Supreme Court and the Eleventh Circuit’s own binding precedents, this mandamus petition should have been treated as a notice of appeal. The Defendant, Highlands County Board of County Commissioners, and U.S. Dist. Judge Donald L. Graham also received a copy of the mandamus petition. Judge Graham did not file a brief in opposition to the petition. The Defendant did not file a responsive brief to the petition. The Eleventh Circuit did not require anyone to respond the petition.

For more on this mandamus, see this site post “Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham”

In reply to the 25 page petition on December 5, 2001, the Eleventh Circuit rendered the following “Opinion”:

“The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.” See “Opinion“, Case No. 01-15754.

Mason filed a motion for clarification seeking to know the basis upon which the decision was made or what the opinion stood for, however the Eleventh Circuit declined to discuss the matter.

Rehearing Denied

On January 25, 2002, the Eleventh Circuit denied a motion for clarification:

Petitioner’s “motion for reconsideration and clarification” of this Court’s December 5, 2001, Order, is DENIED as Petitioner has offered no reason sufficient to warrant either reconsideration or clarification of this Court’s Order.

Rehearing Denied

On or about February 06, 2004, Judges Susan H. Black, Rosemary Barkett, and Stanley Marcus were sent certified letters begging them to decide this matter. However, each of them declined to respond or do anything.

Case No. 01-16218

Judge Frank Hull rendered this opinion. On January 8, 2002, the Eleventh Circuit stated:

Although Mason has not filed a from the district court’s order denying IFP or the omnibus order requiring Mason to get court approval before filing any additional pleadings or lawsuits, Mason may raise all of these issues on appeal. See generally, Procup v. Strickland, 760 F.2d 1107 (11 th Cir. 1985) (reviewing the district court’s order enjoining a defendants from filing additional pleadings unless they were first submitted by an attorney admitted to practice in that court); United States v. Bailey, 175 F.3d 966 (11th Cir. 1999) (reviewing a district court’s decision not to recuse itself for abuse of discretion); Camp v. Oliver, 798 F.2d 434 (11th Cir. 1996) (reviewing district court’s order denying IFP for abuse of discretion).

See Opinion Case No. 01-16218.

Case No. 02-11476-A

On May 1, 2002, the Eleventh Circuit, Judge Joel F. Dubina, stated:

Mason also requests that this Court vacate the district court’s order enjoining Mason from to Mason’s former employment without first receiving permission from the district court. Although Mason has not filed a notice of appeal from the district court’s order requiring him to receive the permission of the district court from filing any additional pleadings or from filing any new lawsuits related to his former employment or subsequent interactions with the defendants, Mason may raise this issue on appeal. See generally, Procup v. Strickland, 760 F.2d 1107 (11th Cir. 1985) (reviewing the district court’s order enjoining a defendant from filing additional pleadings unless they were first submitted by an attorney submitted by an attorney admitted to practice in that court). Mason has an adequate alternative remedy on appeal regarding this issue.

See Opinion Case No. 02-11476-A. This is quite a remarkable and incredible statement by Judge Dubina in that by May 1, 2002, as fully set forth above, the Eleventh Circuit has already declined to review this sua sponte issued pre-filing injunction twice. See above, Case No. 01-15754 denied mandamus on December 5, 2001, and Case No. 01-13664-A, the brief was stricken on March 6, 2002 because it was said to be “beyond the scope of appeal”, then the sua sponte issued pre-filing injunction used against Mason on October 16, 2002.

Case No. 02-14646, Mandamus

Judges R. Lanier Anderson, Joel F. Dubina, and Charles R. Wilson names are on this decision. On Oct. 7, 2002, the Eleventh Circuit stated:

This Appeal is DISMISSED, sua sponte, for lack of jurisdiction. Appellant Marcellus Mason’s notice of appeal, filed on June 24, 2002, is untimely from the district court’s order enjoining him from filing additional pleading, entered on September 21, 2001.

Case No. 04-11894, Mandamus

Judges Ed Carnes and Frank M. Hull names appear on this opinion. On May 20, 2004, the Eleventh Circuit, among other things, admits to the following:

(2) vacatur of all of the decisions Judge Graham made in his case, including a September 20, 2001 order; (3) this Court to direct Judge Moore to dismiss his contempt case, number 02-14020-CR-KMM; and (4) this Court to issue an “emergency stay” with respect to the contempt case.

pg. 1, Opinion Case No. 04-11894.

At page 3, the Court asserts:

Moreover, Mason had an adequate alternative remedy to mandamus relief in that he could have timely appealed the September 20, 2001 order, but did not do so.

See pg. 3, Opinion Case No. 04-11894

Case No. 05-10623-I, Mandamus

Judge Rosemary Barkett made this decision. On March 16, 2005, the Eleventh Circuit, among other things, admits to the following:

[V]acate all decisions and rulings by Judge Graham in this case since February 1999, including the September 20, 2001 order enjoining him for filing any pleadings or additional related lawsuit without court; permission.

See Opinion pg. 1, Case No. 05-10623-I.

At pg. 2, the Eleventh Circuit asserted the following:“Furthermore, Mason appealed the dismissal of his case as well as the district court’s injunction order of September of 20, 2001...” See Pg. 2.

This statement is directly contradicted by the Eleventh Circuit’s prior assertion of May 20, 2004, Case No. 04-11894, pg. 4:”Moreover, Mason had an adequate remedy to mandamus relief in that he could have timely appealed the September 20, 2001, but did not do so.”

The Eleventh Circuit has declined to review the sua sponte issued pre-filing injunction on other occasions as well. See Appellate History.

The U.S. Supreme Court,”SCOTUS”, On the Importance of Due Process

“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution.” id. 161. “Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681.

In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Right of Access To Courts is Constitutionally Protected

The right of access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102 (1996). The Supreme court has stated the right of access to the courts also protected by the First Amendment. BE&K Construction CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)(“the right to petition extends to all departments of the Government,” and that “[t]he right of access to the courts is … but one aspect of the right of petition.“). California Motor Transp. Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)(“The right of access to the courts is indeed but one aspect of the right of petition.“). See Tennessee v. Lane, 541 U.S. 509 (2004)(recognizing “the fundamental right of access to the courts”); Procunier v. Martinez, 416 U.S. 396 (1974)(“The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights.“).

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Smith v. United States, 2010U.S. App. LEXIS 14050,*;386 Fed. Appx. 853 (11th Cir. 2010) , the
Eleventh Circuit held:

“Numerous persuasive authorities support the idea that due process requires notice and a hearing before a court sua sponte enjoins a party from filing further papers in support of a frivolous claim…Smith’s filing can therefore be construed as a motion for relief under Federal Rule of Civil Procedure 60(b)(4). A judgment is void under that rule “‘if the court that rendered it . . . acted in a manner inconsistent  [*8]  with due process of law.'”..We therefore vacate and remand so that the district court may consider imposing a lesser restriction that will protect against abusive filings without improperly restricting Smith’s right of access to the courts.   If the district court decides that an injunction is necessary, Smith should be provided with an opportunity to oppose the injunction before it is instituted. “

It is remarkable that the Eleventh Circuit, sua sponte, or on its own motion, initiated Federal Rule of Civil Procedure 60(b)(4) to reverse Judge Maurice Mitchell Paul.  Also, in Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction);Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given);Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005);Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987). The United States Supreme Court has stated: A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees. (emphasis added) Chambers v.Nasco, Inc.,501U.S. 32, 50 (1991).

.

Pre-filing Restrictions

1. Plaintiff Marcellus M. Mason is Permanently enjoined

from filing any additional pleadings in case numbers 99-14027- CIV-GRAHAM, 00-14116-CIV-GRAHAM, 00-14201-CIV-GRAHAM, 00-I4202- CIV-GRAHAM, 00-14240-CIV-GRAHAM, 01-14074-CIV-GRAHAM, 01-14078- CIV-GRAHAM, and 01-14230-CIV-GRAHAM or from filing any new lawsuit which relates in any way to Plaintiff Marcellus M. Mason’s former employment and/or subsequent interactions with Defendants without first receiving permission from the Court, as set forth below. This injunction shall apply equally to any persons or entities acting at the behest, direction, or instigation, or in concert with Marcellus M. Mason.

2. Any request for permission to file a new lawsuit relating to the issues in the above captioned cases and/or Mason’s former employment and/or subsequent interactions with Defendants SHALL be in the form of an application filed with the Clerk of Court and addressed to United States District Judge Donald L. Graham. This application shall consist of a one paragraph explanation of the issues in the proposed lawsuit, shall contain the names of all proposed parties and shall not exceed one page. The application shall not include any proposed pleadings.

See Docket Entry No. 878.

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Posted in Appeal, Constitutional Law, Constitutional Rights, Contempt For Rule of Law, Disdain For Clearly Established Law, Due Process, Eleventh Circuit, first amendment, Judge Donald L. Graham, nonpublication, Right of Access To The Courts, Unpublished, Void Orders | 52 Comments »

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)

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Posted in Appeal, Constitutional Law, Eleventh Circuit, first amendment, Judge Donald L. Graham, Junk and Absurd Law, nonpublication, preliminary injunction, U.S. Court of Appeal, Unpublished | 2 Comments »

Federal Magistrate John J. O’Sullivan Omits Material Facts In Order to Deceive

May 11, 2008

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

Purpose of this Post

This post will take a Report and Recommendation,”R&R” of Federal Magistrate John J. O’Sullivan and demonstrate that he intentionally omitted material facts for the sole purpose of deception. Judge O’Sullivan, suggests without stating, that the Eleventh Circuit had reviewed two orders for validity when knew or should have known that they didn’t. If the Eleventh Circuit had declared the orders in question to be valid and constitutional, all Judge O’Sullivan needed to do was say so. Admittedly, this post presumes that Magistrate John J. O’Sullivan reads the documents that he references in his R&R and that he reads the documents that support a pending motion. The purpose of this post is to:

  • Question the personal integrity of Federal Magistrate John J. O’Sullivan.
  • Vindicate the personal integrity of Marcellus Mason.
  • To show the extreme measures federal judges will employ to protect each other.
  • To help make the argument that “judicial independence” equals judicial non-accountability.
  • To show how a judge can fit the “facts” 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.

Magistrate John J. O’Sullivan left out the material fact that the Eleventh Circuit, on appeal, refused to discuss the validity of two orders, though fully briefed, (DE# 201 and 246), that it claimed that Marcellus Mason violated. It is really quite a remarkable story in that the Eleventh Circuit spent 14 pages talking about Mason’s supposed violations of these orders, but none talking about their validity which is the reason the appeal was filed in the first place. It could have saved itself some pages and “judicial resources” by simply recognizing the orders are not legal in the first place. However, the Eleventh Circuit chose to give the illusion of “meaningful appeal”.

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.

Impetus Of Judge O’Sullivan’s Statement

The act that precipitated Judge O’Sullivan’s statement was a “Motion to Vacate Conviction”, in Case No. 02-14020-CR-Moore, Document No. 106. Case No. 02-14020-CR-Moore was a criminal contempt case based upon Mason’s alleged non-compliance with a clearly void sua sponte issued pre-filing injunction. This is an interesting matter in and of itself, however discussing the nature of this case is not the purpose here. For more information see, mcneilmason.wordpress.com, generally, and specifically a post entitled “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life“. The “Motion to Vacate Conviction” was filed on 07/17/2007, (D.E. #106). Among other things, this motion sought to have the following orders rendered by Judge Graham and his Magistrate, Frank Lynch, Jr., declared unconstitutional:

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), datd June 19, 2000.

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records.

(DE #246),

Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.

This motion sought declaratory relief pursuant to Rule 60(b) Fed.R.Civ.P. which in pertinent part states:

On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (4) the judgment is void;

A Rule 60(b)(4) is not subject to any time limitation. Carter v. Fenner, 136 F.3d 1000,1006 (C.A.5 (La.), 1998); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130 (C.A.11 (Fla.), 1994)(“the time within which a Rule 60(b)(4) motion may be brought is not constrained by reasonableness”). At page 3, this motion specifically asserts:

On October 16, 2002, the Eleventh Circuit decided the direct appeal, D.C. Case No. 99-14027-CV-Graham, 11th Cir. Case No. 01-13664. In the entirety of the very verbose 14 page (unpublished) opinion, there is no discussion as to why the so-called “discovery orders”,[(D.E. #201); ,[(D.E. #246)] were or were not violative of the First Amendment; however, there is ample discussion about Mason’s so-called violation of these “discovery orders.”

At page 23, this motion specifically requests the following remedy:

A declaration that the so-called “discovery orders”, Case No. 99-14027-CV- Graham, (D.E. #201, dtd. 6-19-2000) and (D.E. #2461, dtd. 7-25-2000), are unconstitutional.

The “Motion to Vacate Conviction”, Document No. 106, uses nine pages, 15-23, of small type, 10 point, to argue that the orders are invalid and unconstitutional. Apparently, Judge O’Sullivan is unable to reach the desired outcome so he just ignores the arguments.

The Defendant, Highlands County Board of County Commissioners, in the lawsuit who was the beneficiary of the court’s largess with respect to the above orders filed no brief against this motion. Consequently, the motion should have been granted by default pursuant to Local Rule 7.1.C which states:

C. Memoranda of Law. 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. Failure to do so may be deemed sufficient cause for granting the motion by default.

Judge O’Sullivan’s Act of Deception

The following is a direct quote from the Report and Recommendations authored by Federal Magistrate Judge John J. O’Sullivan.

The undersigned notes that in his appeal to the Eleventh Circuit, appellate Case no. 01-13664, the defendant made essentially the same arguments he makes here with respect to Judge Lynch’s Orders (DE# 201 and 246). See Mandate (DE# 929 in 99-cv-14027-DLG, 4/18/03). The defendant argued that the Orders (DE# 201 and 246) violated his First Amendment and Florida state-law rights to petition Florida government officials and to request public records. Id. at 11. Notwithstanding the defendant’s arguments, the Eleventh Circuit affirmed the district court’s dismissal of case no. 99-cv-14027-DLG based on the defendant’s continued violations of the orders issued in that case. Accordingly, the defendant’s request for a declaration that Judge Lynch’s Orders (DE# 201 and 246) are unconstitutional should be DENIED.

Report and Recommendations, R&R, Doc. No. 118. If the Eleventh Circuit had declared the orders in question to be valid and constitutional, all Judge O’Sullivan needed to do was say so. Instead Judge O’Sullivan chose to engage in the act of stating deceptive truisms that purposedly evaded the issue. Every word of the Magistrate’s statement is true and there in lies the danger. When the general public or the legal community reads the statement of a federal judge they automatically assume them to be true. If a litigant disagrees with a decision of a judge, he or she is automatically branded a mere “disgruntled litigant”; consequently, the “disgruntled litigant” is not to be believed. There is another alternative and that is the Judge could be untruthful as Judge O’ Sullivan is here. The clear and unmistakable intent of Judge O’Sullivan’s statement is to suggest the orders, DE# 201 and 246, in question were reviewed for validity by the Eleventh Circuit on appeal in Case No. 01-13364. If Judge O’Sullivan read the document he referenced, DE# 929, or page 3 of the motion, Document No. 106, then he clearly would have noticed that the only review of these orders, DE# 201 and 246, consisted solely of the following statement:

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.”

DE# 929, is 17 pages consisting of three documents: (1)a cover letter from the Eleventh Circuit; (2)a mandate from the Eleventh Circuit; (3)An unpublished “opinion”, Case No. 01-13664, a direct appeal. The quoted statement comes from page 11 of the document and page 9 of the opinion. The undisputed fact is that Judge O’Sullivan was being untruthful. Yet again, Teflon Don, avoids scrutiny again.

Fifth Circuit, US Court of Appeal

The Fifth Circuit, U.S. Court of Appeal has rejected a similar injunction as unconstitutional. 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. 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 mcneilmason.wordpress.com posting “Eleventh Circuit Repeatedly Refuses To Review Orders For Validity“. Yet again, Judge Graham has avoided appellate rebuke while his colleagues have not be 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!

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.

Eleventh Circuit, U.S. Court of Appeal

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.

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Posted in Constitutional Rights, first amendment, nonpublication, preliminary injunction, Unpublished | 4 Comments »

Judge Graham Disagrees With The 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, And DC Circuit Courts Of Appeal

April 25, 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, “Teflon Don“, a district judge, would disagree with the First, Second, Third, Fourth, Fifth Circuit, Ninth, Tenth, and Eleventh 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. Similarly, Teflon Don has disagreed with the Fifth Circuit’s holdings on Prior Restraints and Injunctions. See “Judge Graham Disagrees With The Fifth Circuit, U.S. Court of Appeals“. In this post, Judge Graham issues a pre-filing injunction, sua sponte. Sua Sponte is: (“Latin for “of one’s own accord; voluntarily.” Used when the court addresses an issue without the litigants having presented the issue for consideration.” Legal Information Institute.) Judge Graham did not give Mason, the litigant, notice and opportunity either before or after he rendered this pre-filing injunction. It is black letter law that the litigant must be given notice and opportunity to respond or due process, prior to the issuance of any pre-filing injunction. Judge Graham summarily dismisses this notion with the greatest of ease. Teflon Don is a bad mother-shut your mouth!

Pre-Filing Injunction

On September 20, 2001, Judge Graham rendered a pre-filing injunction, sua sponte, against Marcellus Mason. See Document No. 878. This type of order is also referred to as “Vexatious Litigant injunction“, “pre-screening injunction”, and “leave to file injunction”. This order specifically states: “THIS CAUSE came before the Court sua sponte.” See Document No. 878, pg. 3. There is a string of U.S. appellate courts and state courts, including Florida and Georgia, who have consistently vacated pre-filing injunctions issued without notice and opportunity to respond. For the time challenged, you may simply refer to the Case Law authority section below for the long line of courts who routinely reject sua sponte issued pre-filing injunctions. However, the purpose of this post is to also examine the actions of the judges charged with the responsibility of correcting this type of behavior and to examine what the consequences are for a judge who exhibits a reckless disregard for the law. What is crystal clear in this matter, Teflon Don has suffered nothing.

Teflon Don Knows he Is Flaunting the Law

Defendant Highlands County filed a lawsuit, Case No. 00-14240, against Mason asking for a pre-filing injunction. However, on January 16, 2001, Judge Graham and his Magistrate Frank Lynch, Jr. said the following:

However, at this point, none those other cases have totally dismissed with prejudice. There are viable claims pending in those cases. * * * 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 for justifying injunctive relief.”

Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01).  Between January 16, 2001 when Judge Graham made the statement above, and September 20, 2001, when Judge Graham rendered the pre-filing injunction sua sponte, Document No. 878, Mason did not file any new lawsuit. How is possible to go from having “nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look for justifying injunctive relief” to rendering a pre-filing injunction with no new lawsuit filed in between?’

Additionally, as further proof that Teflon Don is willfully flaunting the law is the fact that Judge Graham was presented with a motion specifically requesting a due process hearing with respect to the sua sponte issued prefiling injunction of September 20, 2001 on 23, 2002. See Document 914, pgs. 19-24. At page 1, this motion asserts: “The injunction violated Mason’s well-established due process rights. It is inexcusable that a federal judge would knowingly issue this type of injunction in violation of Mason’s due process rights.” On January 31, 2003, Judge Graham denied the motion and refused to comply with Mason’s due process requests even though Judge Graham was in possession of a motion citing the same cases that are cited on this post.

ORDERED AND ADJUDGED that Plaintiff’s Motion to Proceed In Forma Pauperis, Plaintiff’s Motion to Disqualify, Plaintiff’s Demand to Rescind Inunction and Plaintiff’s Motion for Publication (D.E. #914) is DENIED.

Document No. 928. It can not be argued that Judge is not intentionally disrespecting the law.

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, assert that such acts, even if true, do not constitute judicial misconduct. Moreover, according to Judge Edmondson’s interpretation of the law, even if Judge Graham were involved in a pattern and practice of total disregard for clearly established law and binding precedent, such behavior would still not rise to the level of judicial misconduct. See Complaint of Judicial Misconduct No. 05-0011. For more Support, see Complaint Nos. 05-0008, 05-0012, 05-0013, 05-0020, 05-0021. According to Judge Edmondson, even if an invalid sua sponte issued prefiling injunction formed the basis of a criminal contempt complaint and conviction, such conduct would still not be considered judicial misconduct. 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 of intentionally disregarding clearly established 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.

Judicial Independence advocates state:

Appellate courts serve as a moderating influence by correcting mistakes made by lower courts. The very function of appellate courts also encourages lower courts to adhere to closely to the law and applicable precedents: If a trial court judge knows that an appellate court is likely to reverse a certain decision, she is less likely to stretch the boundaries of the law.

Constitution Project, THE NEWSROOM GUIDE TO JUDICIAL INDEPENDENCE

If the Constitution Project is correct, then Teflon Don should have suffered a reversal on appeal. However, this is not what has happened as the Eleventh Circuit has aggressively fought off all attempts at appellate review of the sua sponte issued pre-filing injunction at issue. See APPELLATE HISTORY: AN EXERCISE IN FUTILITY. Aided by the “unpublished” opinion, the Eleventh Circuit has raised trickery, artifice, and chicanery to new heights or new lows depending upon your point of view. The clear intent of the Eleventh Circuit is not to ever pass on the validity of this sua sponte issued pre-filing injunction and reverse Teflon Don. The Eleventh Circuit has done the schiester lawyer proud.

Constitutional Right of Access To The Courts Generally

Dissent by Judge Berzon;Dissent by Chief Judge Kozinski, Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)
Pre-filing orders infringe the fundamental right to access the courts. They are properly reserved for extreme situations where there is absolutely no possibility that the allegations could support judicial relief and filing the suit is a burden on both the court and the opposing party — a costly exercise in futility…The First Amendment right to “petition the Government for a redress of grievances” — which includes the filing of lawsuits — is “one of `the most precious of the liberties safeguarded by the Bill of Rights.’ ” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524 (2002) (quoting United Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222 (1967)).

Case Law On Pre-Filing Injunctions

US CIRCUIT COURT OF APPEALS HAVE ROUTINELY REJECTED “SUA SPONTE” PRE-FILING INJUNCTIONS.

A long line of United States appellate courts, including the Eleventh Circuit, have rejected sua sponte issuances of pre-filing injunctions because they are violations of due process. In Weaver v. Leon County Sch. Bd., 2006 U.S. App. LEXIS 8128 (11th Cir. 2006), the Eleventh Circuit held that a litigant was entitled to notice and an opportunity to be heard before a restriction was imposed on his ability to challenge an injunction. U.S. v. Powerstein, 2006 U.S. App. LEXIS 14928,*;185 Fed. Appx. 811 (11th Cir. 2006)(litigant entitled to notice and an opportunity to be heard before the court imposed the injunctive order ). See Sires v. Fair, 107 F.3d 1;1997 U.S. App. LEXIS 2173 (1st Cir. 1997); Cok v. Family Court of Rhode Island , 985 F.2d 32 (C.A.1 (R.I.), 1993) (vacating a pre-fling injunction issued without notice); MLE Realty Assocs. v. Handler, 192 F.3d 259, 1999 U.S. App. LEXIS 23362 (2nd Cir. 1999) ; Lau v. Meddaugh, 229 F.3d 121 (2nd Cir. 2000) ; Holton v. Oral Surg. Sing Sing Corr., 24 Fed. Appx. 37; 2001 U.S. App. LEXIS 25151 (2nd Cir. 2001); Moates v. Barkley, 147 F.3d 207, 208 (C.A.2 (N.Y.), 1998) (district court may not impose a filing injunction on a litigant without providing the litigant with notice and an opportunity to be heard.); Gonzales v. Feiner, 131 Fed. Appx. 373, * 2005 U.S. App. LEXIS 8370, ** (3rd Cir. 2005) ; Wiliams v. Cambridge Integrated Servs. Group , 148 Fed Appx. 87, 2005 U.S. App. LEXIS 18624 (3rd Cir. 2005) ; Brow v. Farrelly, 994 F.2d 1027 (C.A.3 (Virgin Islands), 1992)(vacating a sua sponte issued injunction); It is imperative that the court afford the litigant notice and an opportunity to be heard prior to issuing such an injunction. In Re Head, 2006 U.S. App. LEXIS 8265,*;174 Fed. Appx. 167 (4th Cir. 2006)(vacated a 10 yr. old sua sponte injunction); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004)(vacating a pre-filing injunction issued without notice); Tucker v. Drew, 1994 U.S. App. LEXIS 11784 (4 th Cir. 1994) ;DOUGLAS BAUM v. BLUE MOON VENTURES, LLC , 2008 U.S. App. LEXIS 91,*;513 F.3d 181;49 Bankr. Ct. Dec. 68 (5th Cir. 2008)(“Notice and a hearing are required if the district court sua sponte imposes a pre-filing injunction or sua sponte modifies an existing injunction to deter vexatious filings.”) ;De Long v. Hennessey, 912 F.2d 1144 (9th Cir.) ; Roscoe v. Hansen, 107 F.3d 880;1997 U.S. App. LEXIS 4996 (10th Cir. 1997); Molski v. Evergreen Dynasty Corp., 2007 U.S. App. LEXIS 20966,*;500 F.3d 1047 (9th Cir. 2007)(litigant must be given notice and a chance to be heard before the [injunctive] order is entered.); Tripati v. Beaman, 878 F.2d 351,354 (C.A.10 (Wyo.), 1989)(vacated and holding that the litigant is entitled to notice and an opportunity to oppose the court’s order before it is instituted.); Procup v. Strickland, 567 F.Supp. 146 (M.D. Fla., 1983)(court issued a show cause order) Procup v. Strickland, 760 F.2d 1107, 1110 (C.A.11 (Fla.), 1985) (held that district court did give adequate notice and opportunity to be heard before issuance of the injunction); Cofield v. Alabama Pub. Serv. Comm., 936 F.2d 512, 514 (11th Cir.1991)(noting that court issued show cause order prior to rendering pre-fling injunction); In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)(reversing and holding If a pro se litigant is to be deprived of such a vital constitutional right as access to the courts, he should, at least, be provided with an opportunity to oppose the entry of an order restricting him before it is entered.); Martin v. Circuit Court, 627 So.2d 1298 (Fla.App. 4 Dist., 1993)(reversing a pre-filing order and holding that limiting the constitutional right of access to the courts, essential due process safeguards must first be provided); Lawsuits of Carter, In re, 510 S.E.2d 91, 95; 235 Ga.App. 551 (Ga. App., 1998)(reversing a pre-filing injunction because notice or an opportunity not given); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1296 (11th Cir. 2002) (holding that injunctions “may not be expanded beyond the meaning of its terms absent notice and an opportunity to be heard.”).

Courts have felt that the notice and opportunity to respond was so important that they have reversed district courts even where they thought the pre-filing injunction was otherwise valid. See Oliver, In re, 682 F.2d 443, 446 (C.A.3 (Pa.), 1982); Scott v. Wells Fargo Home Mortgage , 2005 U.S. App. LEXIS 15709,*;143 Fed. Appx. 525(4th Cir. 2005); Gagliardi v. McWilliams, 834 F.2d 81, 83 (3d Cir. 1987).

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Posted in Unpublished | 3 Comments »

Judicial Independence Equals Nonaccountability?

April 8, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

What the Proponents Of “Judicial Independence” Say

The Justice at Stake Campaign has asserted the following:

Judicial independence means that judges are free to decide cases fairly and impartially, relying only on the facts and the law. It means that judges are protected from political pressure, legislative pressure, special interest pressure, media pressure, public pressure, financial pressure, or even personal pressure.

No one expects judges to be perfect, or please everyone. That’s why there are mechanisms to hold judges accountable. Rulings can be appealed up to the Supreme Court. Laws can be changed. Wrongdoing and ethical violations can be punished. In most states, judges must stand for re-election.

According to the Justice at Stake Campaign, This position is supported by the American Bar Association, American Judicature Society, Brennan Center for Justice at NYU School of Law, and a host of others. Without reading the rest of this post, one need only go to mmason.freeshell.org/methods.htm, to find out why “mechanisms to hold judges accountable” do not work with respect to federal judges. Federal Judges are above the law and can not be punished except under the most extreme circumstances and then only with public scrutiny.

You stop here and read the post on this blog, “Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham” to see why “Judicial Independence” is a deeply flawed concept.

https://mcneilmason.wordpress.com/2008/04/17/chief-judge-jl-edmondson-aggressively-defends-judge-donald-l-graham

Preparatory Work

This is a fact oriented site backed up with actual real world documents and not some academic exercise. This site and similar ones takes the case of U.S. Judge Donald L. Graham and documents acts of judicial misconduct. It also documents the extreme measures that other judges will take to shield fellow judges from public scrutiny and hence accountability to the American public. The American public can not scrutinize what it does not know exists in the first instance. This author recommends that you first read the Allegations of Misconduct leveled at Judge Graham. Satisfy yourself that they are legitimate and return to this page. These allegations include, but are not limited to the following:

  • Committing a criminal act by abuse of the criminal contempt procedure. Judge Graham took a clearly invalid sua sponte issued pre-filing injunction or vexatious litigant injunction and made it the basis of a criminal contempt complaint and conviction. Judge Graham framed an innocent man by concocting a crime out of “whole cloth”. See Framed.
  • Lying and intentionally misrepresenting law.
  • Lying and intentionally misrepresenting material facts.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for more
    than 17 months.
  • Allowing scores of motions and filings to languish without being decided.
  • Usurping legal authority. Allowing a Magistrate to issue an injunction prohibiting direct communication with the Highlands County Government.
    Additionally, prohibiting Marcellus Mason from making public
    records request under Florida Law directly to Highlands County.
  • Routinely violating clearly established law and the authority of the U.S. Supreme Court by issuing pre-filing injunctions.
  • Ignoring the U.S. Supreme Court denying access to the courts by refusing to state any reason for denying IFP applications.

Judicial Independence Equals Unaccountability

In the case of federal judges, it is the opinion of this author that Judicial Independence Equals Unaccountability. There are several methods of disciplining rogue judges that include:

  • Appellate Review. This could be Direct Appeal, Mandamus, or some other method of petitioning an appellate court for relief.
  • Judicial Misconduct and Disability Act. The Judicial Improvements Act of 2002 replaced 28 U.S.C. § 372(c), which formerly governed complaints of judicial misconduct or disability, with 28 U.S.C. § 351, et seq., effective November 2, 2002. This is a complaint procedure that is suppose to handle misconduct of a federal judge by filing a complaint with the Chief Judge and Judicial Council, composed of federal judges.
  • Lawsuit. A lawsuit can be filed against the offending judge, the lawsuit needs to defeat a virtually insurmountable concept called “absolute immunity” which means that a judge could intentionally jail someone and still not be punished. Judges get to decide who have absolute immunity” or “judicial immunity” and who doesn’t.
  • Impeachment. Congress has the right to remove any federal judge, however this is a massive undertaking for the Congress and one that is rarely used. See Section below on Impeachment.

Except for impeachment, the other three methods are controlled by Judges and most often without public scrutiny. If federal judges are determined to undermine each of these methods, they can do so quite easily and appear to be acting within the law. This is easily done with a process or tactic that this author calls “herding”. Herding being the shepherd or the cowboy leads the sheep or cows to the desired destination or outcome. In the sense for which this author uses the term “herding”, judges leads you to the desire outcome by choosing the method and controlling both the facts and their publication. Specifically, complaints under the Judicial Misconduct and Disability Act are summarily dismissed because the allegations are “directly related to the merits”. See Methods Page and Section 351 Page. This suggests that your allegations of misconduct, if true, can be addressed through the appellate process. Chief Judge J. L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has become very adept at this tactic and has defined judicial misconduct out of existence. Not only has he defined judicial misconduct out of existence he does not burden himself to list the allegations of misconduct or test them for veracity. Secondly, if you choose to sue the Judge, then your complaint will be summarily dismissed because the miscreant judge has “absolute immunity” even if your allegations of misconduct are true. See Graham’s Lawsuit. The appeals court need not even mention what the judge was being sued for in the first place. A judge could maliciously and knowingly improperly jail some one and still not be personally liable. The judges will say that the appellate process is your answer. Save impeachment, you now have only have the appellate process to address allegations of misconduct. The appeals court and in this case, the Eleventh Circuit, U.S. Court of Appeals, can and does render an unpublished opinion that simply ignores your allegations of misconduct or even outright lie. See Appellate Review. On Appeal the Eleventh Circuit picks the impertinent “facts” and chooses to publish or not publish. A graphical view of the overall process as to how complaints of misconduct against Judge Graham were handled can be found at : mmason.freeshell.org/methods.htm#herding_complaints_section or mmason.freeshell.org/mockery.jpg. Specifically, the appellate process with Judge Graham has been undermined with the following tactics:

  • Lying to Cover a Lie
  • Denying Access
  • Ignoring Issues. A truly egregious example is declining to review a Sua Sponte Issued Pre-Filing Injunction
  • Lying About Jurisdiction
  • Beyond the Scope of Appeal: A Despicable and Egregious Act

Impeachment Is Not An Option

Impeachment is not a likely option and virtually impossible as the process requires the attention of all the 535 members of the House and Senate. According to the Federal Judicial Center, http://air.fjc.gov/history/topics/topics_ji_bdy.html, only 13 judges have been before the Congress on impeachment charges in the entire history of the United States. Of these 13 judges, only 7 have been kicked out of office: John Pickering, West H. Humphreys, Robert W. Archbald, Halsted L. Ritter, Harry E. Claiborne, Alcee L. Hastings, and Walter L. Nixon. Judge Mark H. Delahay resigned. It is easier to impeach the President of the United States than to impeach a federal judge. For example, of the 43 presidents of the United States, two have been impeached, Bill Clinton and Andrew Johnson, or about 4 per cent. According to the Federal Judicial Center, we have had 3055 federal judges, only 13, or about 0.004 per cent have been impeached.

As a practical matter, federal judges are rarely called to answer for their performance on the job. As difficult as they are to remove, federal judges are equally difficult to demote. Article III explicitly prohibits the diminishment of a judge’s salary while in office, no matter how errant-or delinquent or unpopular-his or her decisions may be. On the whole, judges are easily the most independent constitutional officers.

On Judicial Activism, by Judge Diarmuid F. O’Scannlain
, URL: http://open-spaces.com/article-v3n1-oscannlain.php

JUDICIAL MISCONDUCT COMPLAINTS FILED AGAINST U.S. JUDGE DONALD L. GRAHAM

Judge Graham has a host of judicial misconduct filed against him. Chief Judge J.L. Edmondson’s has dismissed most of these complaints by simply defining judicial misconduct out of existence. State court judges have been removed for less reasons than the conduct committed by Judge Graham. Read the following complaints and Judge Edmondson’s reply and form your own judgment. The following complaints have been lodged against Teflon Don, or U.S. District Judge Donald L. Graham.

Pending Judicial Misconduct Complaints

Complaint Status

Judicial Conference

 pending

Reconsideration		 pending

June 25, 2008		 pending

July 9, 2008		 pending

July 15, 2008		 pending

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,
Binding National Rules Adopted for Handling Judicial Misconduct Complaints,

in March of this year, the Judicial Conference adopted the first-ever binding nationwide procedures for handling complaints of judicial misconduct. U.S. Dist. Judge Donald L. Graham has escaped discipline for his abusive and possible criminal behavior.  As a result of this, Mason submitted complaints to both the Judicial Conference and
Chief Judge J.L. Edmondson, Eleventh Circuit, US Court of Appeal, again. These complaints are governed by 28 U.S.C. §§ 351-364,”The Judicial Improvements Act of 2002” formerly “The Judicial Misconduct and Disability Act“.  Previously, Chief Judge J.L. Edmondson, had been misconstruing the statute and summarily dismissing complaints of misconduct by simply regurgitating the statutory language at 28 U.S.C. § 352 which allows him dismiss complaints that are “directly related to the merits of a decision or procedural ruling“.  Judge Edmondson is alone in his view that legal error and judicial misconduct are mutually exclusive.  For more discussion on “legal error” and judicial misconduct, see article Chief Circuit Judge J.L. Edmondson Uses Perfect Scam of Negative
Definition To Defeat Complaints of Misconduct Under the Judicial
Misconduct and Disability Act .  On Tuesday,  June 25, 2008, a new complaint of judicial misconduct was filed against Judge Graham.  Additionally, complaints of misconduct
were initiated against Judge Graham on July 9, 2008 and July 15, 2008.

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; its 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 Hill, 152 Vt. 548, 572-75, 568 A.2d 361,373-75 (1989);

“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.

Judicial Independence Equals Unaccountability

In the case of federal judges, it is the opinion of this author that Judicial Independence Equals Unaccountability. There are several methods of disciplining rogue judges that include:

Except for impeachment, the other three methods are controlled by Judges and most often without public scrutiny. If federal judges are determined to undermine each of these methods, they can do so quite easily and appear to be acting within the law. This is easily done with a process or tactic that this author calls “herding”. Herding being the shepherd or the cowboy leads the sheep or cows to the desired destination or outcome. In the sense for which this author uses the term “herding”, judges leads you to the desire outcome by choosing the method and controlling both the facts and their publication. Specifically, complaints under the Judicial Misconduct and Disability Act are summarily dismissed because the allegations are “directly related to the merits”. See Methods Page and Section 351 Page. This suggests that your allegations of misconduct, if true, can be addressed through the appellate process. Chief Judge J. L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has become very adept at this tactic and has defined judicial misconduct out of existence. Not only has he defined judicial misconduct out of existence he does not burden himself to list the allegations of misconduct or test them for veracity. Secondly, if you choose to sue the Judge, then your complaint will be summarily dismissed because the miscreant judge has “absolute immunity” even if your allegations of misconduct are true. See Graham’s Lawsuit. The appeals court need not even mention what the judge was being sued for in the first place. A judge could maliciously and knowingly improperly jail some one and still not be personally liable. The judges will say that the appellate process is your answer. Save impeachment, you now have only have the appellate process to address allegations of misconduct. The appeals court and in this case, the Eleventh Circuit, U.S. Court of Appeals, can and does render an unpublished opinion that simply ignores your allegations of misconduct or even outright lie. See Appellate Review. On Appeal the Eleventh Circuit picks the impertinent “facts” and chooses to publish or not publish. A graphical view of the overall process as to how complaints of misconduct against Judge Graham were handled can be found at : mmason.freeshell.org/herding_complaints_section or mmason.freeshell.org/mockery.jpg. Specifically, the appellate process with Judge Graham has been undermined with the following tactics:

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Posted in Contempt For Rule of Law, Eleventh Circuit, Evading Issues and Outcome, Judge Donald L. Graham, Judicial Misconduct, U.S. Court of Appeal | 2 Comments »