Posts Tagged ‘Judicial Misconduct’

In Forma Pauperis Statute Abused To Conceal Acts Of Judicial Misconduct Committed By U.S. Dist. Judge Donald L. Graham

October 19, 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!!

Purpose Of In Forma Pauperis Statutes

The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. § 1915, is designed to ensure that indigent litigants have meaningful access to the federal courts.  (internal citations omitted). Toward this end, § 1915(a) allows a litigant to commence a civil or criminal action in federal court in forma pauperis by filing in good faith an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit. Congress recognized, however, that a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.”  Neitzke v. Williams, 490 U. S. 319, 324 (1989).  U.S. Dist. Judge Donald L. Graham, the subject of this post, has a long and documented history or pattern and practice of arbitrary denials of in forma pauperis motions.  See http://mmason.freeshell.org/ifp.html.  A complaint of judicial misconduct was filed against Judge Graham for abitrarily denying ifp motions on 18 different occasions without offering either of the legal reasons allowed for denying in forma pauperis status. See Neitzke, at 490 U.S. 324(“§ 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis ‘if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.“) However, Chief Judge J.L. Edmondson, who is charged with with “investigating” allegations of misconduct does not agree that a pattern and practice of intentionally disregarding the law is judicial misconduct.  In Judicial Misconduct Complaint No. 05-0020, Judge Edmondson stated:

In this complaint Mr. Mason, although worded differently that his previous complaints, re-makes the allegation that Judge Graham denied him access to the courts by summarily denying a string of motions for in forma pauper status and that Judge Graham did not identify either of the only two reasons allowed for such denial.

The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U.S.C. § 352(b)(I)(ii) and Addendum III Rules 4(b)(2) and 18(e), this Complaint is DISMISSED.

Judge Edmondson disagrees with his own Judicial Conference whose guidance he is obligated to follow who has clearly 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.

The Administrative Office of the United States Courts, Judicial Conference, Committee on Judicial Conduct and Disability, See http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf
.

Introduction

Judge Donald L. Graham, “Teflon Don”, and the Eleventh Circuit, U.S. Court of Appeal, abused the in forma pauperis to stop an appeal, Eleventh Circuit Case No. 01-13664, from going forward.  Eleventh Circuit Case No. 01-13664, an unpublished opinion, has been dubbed the “appeal from hell” for its lawlessness, dishonesty, and ingenuity in attempting to defeat an appeal.  This remarkable story, “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“,  is fully documented at:
https://mcneilmason.wordpress.com/eleventh-circuit-case-no-01-13664-the-appeal-from-hell/
.  This particular post documents how U.S. Dist. Judge Donald L. Graham and the Eleventh Circuit abused the in forma pauperis statutes, 28 U.S.C. §1915, in order to deny appellate review of allegations of misconduct against Judge Graham.  These allegations included, but definitely are not limited to, the following:

  • Lying and intentionally misrepresenting law.
  • 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.
  • Violating clearly established law and the authority of the U.S. Supreme Court by issuing pre-filing injunctions without notice and opportunity to be heard.
  • Abuse of the criminal contempt procedure.  Judge Graham took a clearly invalid sua sponte issued pre-filing injunction and made it the basis of a criminal contempt complaint and conviction.
  • Lying and intentionally misrepresenting material facts.
  • Ignoring the U.S. Supreme Court denying access to the courts by refusing to state any reason for denying IFP applications.
  • Awarding attorneys’ fees against an indigent plaintiff in total
    disregard of the law and the United States Supreme Court.

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.  Incidentally, while not relevant to the discussion of this post, the Eleventh Circuit’s Chief Judge, J.L. Edmondson, has fought tooth and nail to keep from addressing a documented pattern and practice of disregarding well established law by Judge Graham.  See mmason.freeshell.org/372c or mmason.freeshell.org/edmondson/edmondson.  Judge Graham’s misconduct and Judge’s Edmondson’s defense of Judge Graham’s misconduct are fully documented in the following judicial misconduct complaints:

No. 01-0054No. 01-0054-Judicial Council; No. 01-0068; No. 01-68-Judicial Council; INTERVENING MANDAMUS; No. 02-0006; No. 02-0006 -Judicial Council; No. 02-0029; No. 02-0034; No. 02-0052; No. 02-0059; COMPLAINTS FILED IN 2005; No. 05-0008; No. 05-0011; No. 05-0012; No. 05-0013; No. 05-0020; No. 05-0021.

The following complaints of judicial misconduct are currently pending against Judge Graham:

Complaint Status

Judicial Conference
pending

Reconsideration
pending

June 25, 2008
pending

July 9, 2008
pending

July 15, 2008
pending

Material Facts

On February 22, 1999, Judge Edward B. Davis allowed Marcellus Mason to file a lawsuit without paying the filing fees, or in forma pauperis, “IFP”, due to indigency.  See Order, (D.E. #3)(“Having examined the Plaintiff’s Motion and Financial Affidavit, the Court finds that the Plaintiff has demonstrated his inability to pay fees or give security in this matter, as required by 28 U.S.C. § 1915(a). The Court also finds that Plaintiff appears to have brought this action in good faith.;”).  Judge Davis retired and the case was assigned to Judge Donald L. Graham.  The case was ultimately dismissed on June 20, 2001.

The case was dismissed on June 20, 2001. (D.E. 791).

A Notice of Appeal was filed on June 25, 2001. (D.E. 795)

The case was assigned Case No. 01-13664 by the Eleventh Circuit.

A motion to proceed on appeal in forma pauperis was filed on July 13, 2001. (D.E. #799).  A second motion to proceed in forma pauperis was filed on August 10, 2001.  (D.E. #811).

On September 20, 2001, Judge Graham’s Magistrate, Frank Lynch, Jr. denied both pending motions [(D.E. #799), (D.E. #811)] to proceed in forma pauperis(D.E. #877).   This order states:

THIS CAUSE having come on to be heard upon an Order of Reference from the Honorable Donald L. Graham, dated September 10, 2001, and this Court having reviewed the aforementioned Motions and the pertinent portions of the record, and noting that in other actions filed by Plaintiff, Judge Graham has denied Plaintiff’ s motions to proceed in forma pauperis (Case Nos. 00-14116, 00-14201 , 00-14202, 00-14240), and further noting that this Court has compared Plaintiff’s previously filed IFP motions and accompanying affidavits with the instant motion and affidavit and has found no relevant difference, and being otherwise advised in the premises , it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motions to Proceed in Forma Pauperis are DENIED .

See (D.E. #877).

On December 12, 2001, the Eleventh Circuit denied an in forma pauperis motion by simply asserting:

Appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED because appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees.  See Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990) (holding that right to proceed IFP is not absolute, but rather is left to the sound discretion of the court.

See Case No. 01-13664 IFP Order, pg. 1.

Imagine how you would feel if someone accused you of something and refused to provide facts to support their allegation! This is anti-American.  Upon receiving the order denying IFP, the appellant, Mason filed a motion for clarification begging the Eleventh Circuit for the factual basis for its assertion that “appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees.”  However, the Eleventh Circuit refused to provide facts to support its conclusion and simply stated:

Appellant has filed a “motion for reconsideration and clarification,” which is construed as a motion for reconsideration of this Court’s order dated December 12, 2001, denying leave to proceed on appeal in forma pauperis. Upon reconsideration, appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED.

See Case No. 01-13664 IFP Order, pg. 2.

Prior Approval

As stated above, Mason was allowed initially allowed to proceed in forma pauperis by Judge Edward Davis.  See Order, (D.E. #3).  It is well established that once a party has been allowed to proceeded in forma pauperis in the district court, the party is allowed to proceed on appeal in forma pauperis automatically unless the district judge finds that the party is proceeding in bad faith.   In Starks v. State Of Florida, 2007 U.S. App. LEXIS 26270 (11th Cir. 2007), the Eleventh Circuit, Judges J.L. Edmondson, R. Lanier Anderson, and Rosemary Barkett, presiding, granted in forma pauperis on appeal where the district court found that the underlying complaint or lawsuit was frivolous.   Fed.R.App.P. Rule 24(a) states:

Rule 24. Proceeding in Forma Pauperis

(a) Leave to Proceed in Forma Pauperis.

(3) Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless the district court–before or after the notice of appeal is filed–certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis. In that event, the district court must state in writing its reasons for the certification or finding.

The Notes to Fed.R.App.P. Rule 24(a) state:

NOTES OF ADVISORY COMMITTEE ON RULES–1967:

“The second paragraph permits one whose indigency has been previously determined by the district court to proceed on appeal in forma pauperis without the necessity of a redetermination of indigency, while reserving to the district court its statutory authority to certify that the appeal is not taken in good faith, 28 U.S.C. § 1915(a), and permitting an inquiry into whether the circumstances of the party who was originally entitled to proceed in forma pauperis have changed during the course of the litigation. Cf. Sixth Circuit
Rule 26.”   

A string of appellate courts have parroted the provisions of Rule 24 of the Federal Rules of Appellate Procedure.

  • “Rule 24 of the Federal Rules of Appellate Procedure, which governs our own in forma pauperis practice, permits any litigant who has been allowed to proceed in an action in the District Court in forma pauperis to proceed on appeal in forma pauperis without further authorization, unless the District Court certifies that the ‘appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed” McKelton v. Bruno , 428 F.2d 718; 138 U.S.App.D.C. 366 ¶4(D.C. Cir. 1970).
  • “”If a litigant is granted i.f.p. status in a district court, and if that status is not revoked in the district court, the litigant, upon filing a notice of appeal, continues on appeal in i.f.p. status. Fed.R.App.P. 24(a)”  Leonard v. Lacy, 88 F.3d 181n.2(2nd Cir. 1996).
  • “Normally, when a litigant is granted leave to proceed in forma pauperis by the district court, this status carries over in the Court of Appeals.  Fed.R.App.P. 24(a). However, if the district court dismisses the case as frivolous under 28 U.S.C. Sec. 1915(d), the litigant must reapply to this Court to proceed in forma pauperis on appeal, since a finding of frivolousness is viewed as a certification that the appeal is not taken in good faith. 28 U.S.C. Sec. 1915(a); Fed.R.App.P. 24(a). Dismissal of a complaint by the district court under Rule 12(b)(6) or any other rule does not negate the in forma pauperis status. Because the district court dismissed the complaint using the language of Rule 12(b)(6), and not as frivolous under 28 U.S.C. Sec. 1915(d), there was no need to again grant Oatess leave to proceed in forma pauperis.” Oatess v. Sobolevitch, 914 F.2d 428 n.4(3rd Cir. 1990).
  • “[W]e are mindful of the provisions of Fed.R.App.P. 24(a) concerning appeals in forma pauperis. This rule provides that a party who has been permitted to proceed in the district court in forma pauperis ‘may proceed on appeal in forma pauperis without further authorization unless, * * * the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the district court shall state in writing the reasons for such certification or finding.'”  Liles v. The South Carolina Department Of Corrections, 414 F.2d 61214(4th Cir. 1969).  “In case the district court certifies that the appeal is not taken in good faith, the required written statement must show not merely that the appeal lacks merit, but that the issues raised are so frivolous that the appeal would be dismissed in the case of a nonindigent litigant. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958).  Additionally, an appeal is properly denied as lacking the requisite good faith where there is a clear indication that the conduct of an indigent appellant amounts to a deliberate harassment of the courts or an intentional abuse of the judicial process” id. n.1.
  • “(1) a district court may certify that an IFP appeal is not taken in good faith under section 1915(a)(3) and Rule 24(a); (2) if the trial court does so, it is required under Rule 24(a) to set forth in writing the reasons for its certification;”  Baugh v. Taylor, 117 F.3d 197 ¶23(5th Cir. 1997).
  • “Under Fed.R.App.P. 24, a party granted ifp status in the district court retains that status on appeal unless the district court certifies that the appeal is not taken in good faith, in which case the district court must state in writing the reasons for the certification.”  Williams v. Shettle,  914 F.2d 260, ¶4(7th Cir. 1990).
  • “Thus, it is clear that a party may appeal in forma pauperis without making application for a certificate when he has already been permitted by the district court to proceed in forma pauperis. The only time a party is prevented from taking an appeal is when the trial court, before or after the notice of appeal is filed, certifies in writing that the appeal is not taken in good faith. When this occurs the petitioner may still seek a certificate from this court or the Supreme Court.” 
    Peterson v. UNITED STATES of America, 467 F.2d 892 (8th Cir. 1972)
    .
  • “”Petitioner renews his motion to proceed in forma pauperis in this court. This motion is moot, however, because Petitioner is already entitled to proceed in forma pauperis: Petitioner proceeded in forma pauperis in the district court, and the district court never certified that the appeal was not taken in good faith or found that the Petitioner was otherwise not entitled to proceed in forma pauperis. See Fed. R. App. P. 24(a)(3); Singleton v. Hargett 1999 WL 606712 at *1 n.2 (10th Cir. 1999) (unpublished opinion) (dismissing as moot petitioner’s motion to proceed in forma pauperis in the court of appeals).  “Because he was permitted to proceed in forma pauperis in the district court, and because there has been no change to that designation, Petitioner retains his in forma pauperis status on appeal pursuant to Fed. R. App. P. 24(a)(3).” Id. See also Celske v. Edwards, 165 F.3d 396, 398 (7th Cir. 1998) (holding that the petitioner retained his leave to proceed in forma pauperis in the court of appeals because the district court had made no certification of bad faith).  Rhodes v. True, No. 99-3026 (10th Cir. 1999).

There is no finding by Judge Graham that the appeal was taken in bad faith, consequently the law was disregarded.  Judge Graham’s order denying in forma pauperis states the following:

THIS CAUSE having come on to be heard upon an Order of Reference from the Honorable Donald L. Graham, dated September 10, 2001, and this Court having reviewed the aforementioned Motions and the pertinent portions of the record, and noting that in other actions filed by Plaintiff, Judge Graham has denied Plaintiff’ s motions to proceed in forma pauperis (Case Nos . 00-14116, 00-14201 , 00-14202, 00-14240), and further noting that this Court has compared Plaintiff’s previously filed IFP motions and accompanying affidavits with the instant motion and affidavit and has found no relevant difference, and being otherwise advised in the premises , it is hereby ORDERED AND ADJUDGED that Plaintiff’s Motions to Proceed in Forma Pauperis are DENIED.

See (D.E. #877).

The Eleventh Circuit, without offering a scintilla of proof, simply asserts:

Appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED because appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees.  See Moreland v. Wharton, 899 F.2d 1168, 1170 (11th Cir. 1990) (holding that right to proceed IFP is not absolute, but rather is left to the sound discretion of the court.

See Case No. 01-13664 IFP Order, pg. 1. Notions of fundamental fairness without recitation to the law would require the Eleventh Circuit to support its conclusion that the “appellant has not truthfully provided this Court with information concerning his ability to pay the filing and docketing fees“.  Consequently, Mason filed a motion for rehearing demanding to know the factual basis for the Eleventh Circuit’s conclusion that Mason had been untruthful.  The Eleventh Circuit absolutely refused to provide a factual basis to support its conclusion.

Appellant has filed a “motion for reconsideration and clarification,” which is construed as a motion for reconsideration of this Court’s order dated December 12, 2001, denying leave to proceed on appeal in forma pauperis. Upon reconsideration, appellant’s motion for leave to proceed on appeal in forma pauperis is DENIED.

See  Case No. 01-13664 IFP Order, pg. 2.

Disregarding Good Faith Requirement

Judge Donald L. Graham and the Eleventh Circuit both ignored the good faith requirement as their denials do not assert that the appeal was not taken in good faith much less provide any proof that the appeal was not taken in good faith.

A petitioner demonstrates good faith when he seeks appellate review of any issue that is not frivolous.  See Coppedge v. United States, 369 U.S. 438, 445 (1962).  “Dismissal of an in forma pauperis complaint is appropriate when the claim is based on ‘indisputably meritless legal theory or factual allegations are clearly baseless.'”  Heghmann v. Indorf, 2005 Bankr. LEXIS 767,*;324 B.R. 415; (1st Cir. 2005). “[I]f a judge is convinced, as the judge was here, that there is no substantial question for review and an appeal is frivolous and therefore futile, it is his duty to certify that the appeal sought to be taken in forma pauperis is not taken in good faith.” Parsell v. UNITED STATES of America, 218 F.2d 232 ¶25(5th Cir. 1955).  In Johnson v.Dencek, 868 F.2d 969 (7th Cir. 1989), the court remanded the case for a determination that the appeal was not taken in good faith where the district failed to make the determination.  In Johnson, the court ultimately allowed the plaintiff to appeal in forma pauperis notwithstanding the district findings of frivolousness that was predicated upon the plaintiff’s attorney conclusion that the lawsuit lacked merit.

Lack of Respect For the Supreme Court

Both Judge Graham and the Eleventh Circuit have disregarded the Supreme Court by making denials of in forma pauperis without providing any factual support for their decisions. This type of behavior is commonly referred to as a summary denial.  The U.S. Supreme Court has condemned summary denials of in forma pauperis.  The Supreme Court has stated that a court cannot deny in forma pauperis by simply making conclusory statements without stating supporting facts.  In Cruz v. Hauck, 404 U.S. 59, 61 (1971), the Supreme Court opined:

The benefits of this generous provision [in forma pauperis], now codified at 28 U.S.C. § 1915, have been limited, however, by the important proviso added in 1910 (36 Stat. 866) which, as now amended, reads: “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” “Good faith” has been defined as a requirement that an appeal present a nonfrivolous question for review. If the district court certifies that an appeal would not present such a question, then an indigent may ask the court of appeals for permission to proceed in forma pauperis. That court must grant the renewed motion if after a de novo determination it disagrees with the district court’s application of the good faith test. If both lower courts refuse permission, then, unless this Court vacates the court of appeals’ finding, the pauper’s appeal is ended without a hearing on the merits. See Fed.Rule App.Proc. 24(a). It is important that, in all of these proceedings, the only cognizable issue is whether a summary survey (as opposed to plenary deliberation) suggests that a substantial argument could be presented…Our holdings have steadily chipped away at the proposition that appeals of the poor can be disposed of solely on summary and abbreviated inquiries into frivolity, rather than upon the plenary consideration granted paying appellants.

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.

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

June 19, 2008

Justice Turned On Its Head

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

Purpose of This Post

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

Strict Constructionist Irony

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

Judicial Activism

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

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

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

History of Thumbing His Nose At Supreme Court Precedent

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

An Egregious Incident of Judicial Activism And Usurpation

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

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

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

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

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

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

Judge Graham Refuses to Cite Legal Authority

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

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

See Exhibit 1, (DE 890).

Judge Graham’s Answer and Controlling Legal Authority was:

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

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

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

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

The Florida Supreme Court On Florida’s Public Records Law

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

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

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

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

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

The United States Supreme Court On State Court Law

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

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

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

JUDICIAL MISCONDUCT DEFINED

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

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

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

$file/0389037o.pdf?openelement.

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

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

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

Legal Error As Misconduct

“Legal error and judicial misconduct are not mutually exclusive.” In Re Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct. “[T]he Florida Supreme Court has expressly held that a judge’s legal rulings can be the subject of judicial disciplinary proceedings.” State of Florida, JUDICIAL QUALIFICATIONS COMMISSION,INQUIRY CONCERNING A JUDGE, NO. 06-52, CHERYL ALEMAN CASE NO. SC07-198. “A single instance of serious, egregious legal error, particularly one involving the denial to individuals of their basic or fundamental rights, may amount to judicial misconduct.” In re Quirk, 705 So.2d 172 (La., 1997). “[J]udicial misconduct (including improper ex parte communications) varies in degree from plainly criminal or corrupt misconduct, through injudicious (but not corrupt) misconduct, to misconduct committed for proper motives though pursued by prohibited means.” Larsen, Matter of, 616 A.2d 529, 532 Pa. 326 (Pa., 1992). An emerging pattern of legal errors even though not an egregious legal error nor bad faith should be labeled misconduct because the continuing pattern of legal error constitutes neglect and ignorance of governing statutes. Miss. Com’n On Jud. Performance v. Britton, 936 So.2d 898 (Miss., 2006). See also In Re James Barr, 13 S.W.3d 525 (Tex.Rev.Trib., 1998)(“legal error by a judge may constitute grounds for a finding of judicial misconduct if the commission of legal error is founded on bad faith.”);Goldman v. Nevada Com’n on Judicial Discipline, 830 P.2d 107, 108 Nev. 251 (Nev., 1992)(“An experienced trial judge’s ignorance of proper contempt procedures, without more, has been held to constitute the bad faith necessary to a finding of willful misconduct.” )

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

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

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

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

Litigant’s Right to Communicate With Government During Litigation.

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

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

Government remains the servant of the people, even when citizens are litigating against it. American Canoe Ass’n Inc. v. City of St. Albans, 18 F.Supp. 2d 620 (S.D.W.Va. 1998); Camden v. State Of Md., 910 F. Supp. 1115, 1118 n.8 (D. Md. 1996); Frey v. Dept. of Health & Human Services, 106 F.R.D. 32, 37 (E.D.N.Y. 1985). Holdren v. General Motors Corp., 13 F. Supp. 2d 1192 (D.Kan. 1998)(“there is nothing in the disciplinary rules which restrict a client’s right to act independently in initiating communications with the other side, or which requires that lawyers prevent or attempt to discourage such conduct.“); In Re Discipline Of Schaefer, 117 Nev. 496, 25 P.3d 191 ;117 Nev. Adv. Op. No. 44, 36173 (Nev. 2001) (“parties to a matter may communicate directly with each other.”); In Re Hurley, Case No. No. 97-6058 SI, (8th Cir. 1997); Jones v. Scientific Colors, Inc., 201 F.Supp.2d 820 (N.D. Ill., 2001) (citing “EEOC v. McDonnell Douglas Corp., 948 F. Supp. 54, 55 (E.D. Mo. 1996(“there is nothing that prohibits one party to a litigation from making direct contact with another party to the same litigation.“)); Loatman v. Summit Bank, 174 F.R.D. 592 (D.N.J. 1997); Miano v. AC & R Advertising, Inc, 148 F.R.D. 68, 75 (S.D.N.Y.1993); Pinsky v. Statewide Grievance Committee, 578 A.2d 1075,1079 (Conn. 1990)(“Contact between litigants, however, is specifically authorized by the comments under Rule 4.2: … Also, parties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so.“); Restatement of the Law (Third) The Law Governing Lawyers, §99. Cmt. K., pg. 76.(“No general rule prevents a lawyer’s client, either personally or through a nonlawyer agent, from communicating directly with a represented nonclient. Thus, while neither a lawyer nor a lawyer’s investigator or other agent may contact the represented nonclient, the same bar does not extend to the client of the lawyer or the client’s investigator or other agent.“); Reynoso v. Greynolds Park Manor, Inc, 659 So.2d 1156, 1160 (Fla.App. 3 Dist. 1995)(“[p]arties to a matter may communicate directly with each other and a lawyer having independent justification for communicating with the other party is permitted to do so. Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.“). State v. Miller, 600 N.W.2d 457; 1999 Minn. LEXIS 592 (Minnesota Supreme Court 1999); Stone v. City Of Kiowa, 263 Kan. 502; 950 P.2d 1305; 1997 Kan. LEXIS 177, *34 (Kansas Supreme Ct. 1997); Terra Intern. v. Miss. Chemical Corp., 913 F. Supp. 1306 (N.D.Iowa 1996); Tucker v. Norfolk & Western Ry. Co., 849 F.Supp.1096, 1097-1098 (E.D.Pa.1994); U.S. v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993); U.S. v. Ward, 895 F.Supp. 1000, (N.D. Ill. 1995); Vega v. Bloomsburgh, 427 F. Supp. 593, 595 (D. Mass. 1977).

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

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

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

April 30, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Point of This Post

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

Pertinent Case Background

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

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

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

The Law On Awarding Costs

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

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

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

The US Supreme Court on Costs

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

Goddamn It Because I Said So

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

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

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

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

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

See Docket Entry No. 35.

Appellate Review Was Not An Option

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

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

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

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

Meanspirited And Vindictive

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

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

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

Eleventh Circuit Sticks In The Knife

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

Judicial Misconduct

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

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

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

http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf :Pg. 8.

Judge Graham Misstates Material Facts and Law To Support Pre-Filing Injunction

April 27, 2008

Justice Turned On Its Head

Justice Turned On Its Head

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

Should Judges Be Allowed to Intentionally Misrepresent Material Facts With Impunity?

This post will examine an order rendered by U.S. Dist. Judge Donald L. Graham, “Teflon Don”. The order at issue is a pre-filing injunction or a vexatious litigant injunction that was issued by Teflon Don, sua sponte on September 20, 2001. Though not the point of this post, but it is well settled that a sua sponte issued pre-filing injunction is invalid because it violates due process, or notice and opportunity to respond prior to its issuance. For more discussion and case law on sua sponte issued pre-filing injunctions, see post this site entitled “Judge Graham Disagrees With The 1st, 2nd, 3rd, 4th, 5th, 9th, 10th, 11th, And DC Circuit Courts Of Appeal. The importance of “notice and opportunity to respond” will become readily apparent upon reading this post. Mason actually filed two lawsuits, Case No. 99-14027 and 01-14230; neither of which Judge Graham himself adjudged to frivolous. The purpose of this post is to demonstrate a dishonest tactic used by judges to reach the desired outcome. This post will discuss and document the act of intentionally misstating material facts. Lastly, this post will examine whether intentionally misstating material facts, a despicable and dishonest act, is considered judicial misconduct. Judge Graham has been guilty of outright lying before by intentionally misrepresenting the law to Mason. See Liar Page.

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

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

The Misstated Fact and Misrepresentation

Judge Graham stated that Marcellus Mason filed eleven lawsuits. He then uses inference to suggest that Mason filed eleven lawsuits that lacked merit. As will be proven below, Teflon Don’s words do not match reality because:

  • Mason actually filed one lawsuit at the instance of the pre-filing injunction on September 20, 2001. Technically this one lawsuit was four lawsuits consolidated into one lawsuit in the very early pre-discovery stages at a time when the pro se Plaintiff was unaware of the rules regarding amending complaints.
  • Judge Graham actually counts a lawsuit filed by the Defendant, Highlands County, as a lawsuit filed by Mason. The irony is that the Defendant, Highlands County, filed a lawsuit seeking a prefiling injunction which Judge Graham rejected in February 2001 or just six months before he rendered the filing injunction, sua sponte, of September 20, 2001. Mason initiated no new lawsuits between February 2001 and September 20, 2001.
  • Judge Graham counts five lawsuits in the eleven lawsuits that he claims Mason “filed” where Judge Graham declined to allow Mason to initiate a lawsuit by simply denying in forma pauperis motions without stating a reason for denying the motion. According to Judge Graham’s own definition of “filing”, a lawsuit is not filed until the filing fee is paid. Moreover, Judge Graham has a documented history of denying in forma pauperis motions without stating a reason having done it to Mason 18 times. See IFP History.
  • Judge Graham does not state that he declined to reach the merits of the lawsuit that was filed because he declined to pass upon summary judgment motions that were submitted by the Plaintiff and Defendants. See Docket for pending summary judgment motions. (Doc. 507); (Doc. 667); (Doc. 668); (Doc. 706); (Doc. 797);(Doc. 769);(Doc. 770). Judge Graham chose to dismiss the lawsuit because of alleged hostile and irrelevant out court communications between Mason and Highlands County. See below, “The Dismissed Lawsuit”.
  • In a docket that contains almost one thousand entries, Judge Graham fails to cite one single motion that Mason filed in the case that lacked merit. Rule 11, Fed.R.Civ.P. is designed to punish and deter litigants from filing “frivolous” filings or motions. “Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support.” Lectlaw.com.
  • Judge Graham fails to disclose that his mere speculations about Mason’s motive in filing a lawsuit is immaterial as a matter of law. Consequently, even if Judge Graham was a soothsayer and could somehow prove that Mason had a bad motive in filing a lawsuit, such a motive is not a defense to a well grounded lawsuit.

The Misstated and Misleading “Facts”

In order to justify his pre-filing injunction, Judge Graham made the following statements.

Plaintiff Marcellus M. Mason (“Mason”) has filed eleven (11) cases and/or counterclaims in this District, all against either the Highlands County Board of County Commissioners, the Highland Library Cooperative and/or various board members or employees of the County and Library. (collectively the “Defendants”). Each case relates to his prior employment by Defendants and Defendants’ treatment of Mason after his termination.

Docket Entry No. 878, pps. 3-4.

Mason’s original action against Defendants was case no. 99-14027. (the “Original Action”). After vexatious and relentless litigation on the part of Mason, including continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants” employees. Mason, however, ignored the Court’s order and continued to contact the Defendants.

Docket Entry No. 878, pps. 3-4.

On June 20, 2001, in view of Mason’s repeated refusal to comply with the Court’s rules and orders, the Court dismissed case number 99-14027.

Docket Entry No. 878, pg. 5.

The True Amount of Lawsuits Filed

At pages 1, 2, and 3 of Judge Graham’s sua sponte issued pre-filing injunction, he attempts to list (11) eleven lawsuits that he claims were filed in the S.D.Fla. by Marcellus Mason. See Docket Entry Number 878. According to Judge Graham himself, ” A Complaint is not considered filed until the filing fee is paid.” See 00-14202, (DE #10, dtd. 11-2-2000); 00-14201, (DE #10, dtd. 11-21-2000). Five of these lawsuits had no filing fee paid, and according to Judge Graham, not filed:

These 5 lawsuits were dismissed without prejudice and are “non-suits” simply because Judge Graham denied Mason in forma pauperis status and stated no reason for this denial. Judge Graham has a history of arbitrary denials of in forma pauperis motions, having done it to Mason 18 times without stating a reason. See IFP History.

Of the 6 remaining lawsuits that Judge Graham claims was filed by Mason, Case No. 14240-CV-Graham was actually filed by Highlands County against Mason. Mason even prevailed on this lawsuit as on January 16, 2001, Judge Graham and his Magistrate Frank Lynch, Jr. concluded:

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).

Of the five remaining lawsuits, Case No. 01-14230-CV-Graham, was removed from state court by the Defendants after the injunction of September 20, 2001 where they knew the case would be automatically assigned to Judge Graham. Judge Graham improvidently dismissed this case because of an improperly granted res judicata application. Judge Graham asserts that the claims in this lawsuit was due to be dismissed because of a prior lawsuit, Case No. 99-14027-CV-Graham. Case No. 99-14027-CIV-Graham/Lynch was filed on February 4, 1999. See Docket Entry No. 1. This lawsuit, Case No. 01-14230-CV-Graham, asserts claims due to Highlands County continuing violations of Mason’s rights by issuing a series “No Tresspass Warning” to Mason every six months, 6-30-99, 12-30-99, and 6-26-00, thereby prohibiting Mason from using the Sebring Public Library. See Complaint, Document No. 1, pgs. 24, 25, 29. If you read the Complaint and Exhibits, you will discover that Highlands County issued three “No Tresspass Warning” to Mason after the prior lawsuit, Case No. 99-14027 was filed on February 4, 1999. Judge Graham’s application of res judicata evinces two absurdities. Firstly, in order to apply res judicata to Case No. 01-14230-CV-Graham those claims would have to have existed on February 4, 1999 when the former lawsuit Case No. 99-14027 was filed. This would have been impossible for claims that did not exist until 6-30-99, 12-30-99, and 6-26-00. Judge Graham is of the apparent belief that Highlands County may commit any tortious or illegal act against Mason and not be sued because of this case. In a word, Judge Graham has immunized Highlands County against all future lawsuits brought by Mason. Judge Graham has taken this errant view of the law elsewhere against Mason . See post this site, “Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata“.

Lastly, of the remaining “filed” four lawsuits, Case Nos. 99-14042-CV-Graham, 99-14257-CV-Graham, 99-14314-CV-Graham were consolidated into one case, 99-14027-CV-Graham.

Information regarding the nature of these lawsuits is fully set forth in html form or Microsoft Word.

Honesty and Judicial Opinion Writing

Thesis: A judge’s opinion should accurately portray the facts. A judge’s honesty and integrity lie at the very heart of that system. In re Shenberg, 632 So. 2d 42, 47 (Fla. 1992).

Legal Experts State that Judge’s Opinions Often Don’t Reflect Reality

There is one form of judicial misconduct that I think clinches the case against Judge Edwards’ position: lack of candor in judicial opinions. One of the worst things a judge can do is to ignore or misstate the critical facts or critical legal issues in a case. Since this kind of misconduct is not generally considered a “crime” nor an impeachable offense, it would fall squarely within the realm of judicial misbehavior that Judge Edwards leaves to the judiciary to regulate..
Professor Monroe Freedman:
Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

Self-Regulation of Judicial Misconduct Could be Mis-Regulation, 89 Michigan Law Review 609 (1990). (Code A90N).

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 misstate material facts or outright lie with near absolute impunity. Chief Judge J.L. Edmondson, and others, assert that such acts, even if true, do not constitute judicial misconduct. See Complaint of Judicial Misconduct No. 05-0020. Moreover, according to Judge J.L. 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. Judge Edmondson’s interpretation also holds that the the aggregate of individual acts does not constitute judicial misconduct. See Complaint of Judicial Misconduct No. 05-0011. For More Support, Complaint Nos. 05-0008, 05-0012, 05-0013, 05-0020, 05-0021. Switching vernacular for the moment, according to Judge Edmondson there aint no judicial misconduct.

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

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

http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf :Pg. 8.

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.

LEGAL REQUIREMENTS OF PRE-FILING INJUNCTIONS

“[B]efore a district court issues a pre-filing injunction against a pro se litigant, it is incumbent on the court to make “substantive findings as to the frivolous or harassing nature of the litigant’s actions… To make such a finding, the district court needs to look at “both the number and content of the filings as indicia” of the frivolousness of the litigant’s claims.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). See May vs. Shell Oil Company, 2000 U.S. Dist. LEXIS 14786, *7 (S.D. Fla. 2000)(“courts have a duty to ensure that frivolous or meritless lawsuits do not interfere with their constitutional function:”)[1]; Urban v. United Nations, 768 F.2d 1497, 1500 (D.C. Cir. 1985)(holding that an injunction’s purpose is to fashion a remedy to stem the flow of frivolous actions);Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989)(“Litigiousness alone will not support an injunction restricting filing activities.”); Ruderer v. United States, 462 F.2d 897, 899 (8th Cir. 1972) (“affinity for litigation, standing alone, would not provide a sufficient reason for issuing such an injunction.”).

Nowhere in the sua sponte issued pre-filing injunction does it identify one single lawsuit that Mason filed that was frivolous. As a matter of act, Judge Graham is precluded by law from asserting that D.C. Case No. 99-14027-CV was without merit because Judge Graham refused to rule on pending summary judgments by both Highlands County and Mason. A court does not have the duty to protect itself from non-frivolous litigation. It is not unlawful to prosecute a meritorious action. See Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). “ Access to the courts is a fundamental tenet of our judicial system; legitimate claims should receive a full and fair hearing no matter how litigious the plaintiff may be.” In re Oliver, 682 F.2d 443, 446 (3rd Cir. 1982). It was Judge Graham himself who adopted 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). Furthermore, at no time during any litigation that Mason was involved in did Judge Graham impose any Fed.R.Civ.P. Rule 11 sanctions or threaten to do so for filing motions that lacked a substantial basis.

Importance of Motive in Filing a Lawsuit

“[A}n objectively reasonable effort to litigate cannot be sham regardless of subjective intent.” Professional Real Estate Investors, Inc.,v. Columbia Pictures (91-1043), 508 U.S. 49 (1993). see also Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983)(“The filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the Act.”). “Hostility between parties or their counsel ought not to invalidate a lawsuit brought to obtain proper legal relief for potentially meritorious claims.” Colombrito v. Kelly, 764 F.2d 122 (2nd Cir. 1985). “The rule generally prevailing is that, where a suitor is entitled to relief in respect to the matter concerning which he sues, his motives are immaterial; that the legal pursuit of his rights, no matter what his motive in bringing the action, cannot be deemed either illegal or inequitable; and that he may always insist upon his strict rights and demand their enforcement.” Johnson v. King-Richardson Co., 36 F.2d 675, 677 (1st Cir. 1930) see also MASTERSON et al.v.PERGAMENT, 203 F.2d 315 (Sixth Cir. 1953)(“The motive of the stockholder in filing a derivative action is immaterial.”). “Courts will generally not inquire into the motives which actuate the plaintiff in bringing his action, if he has a legal right which he seeks to protect. It is no defense to a valid cause of action that the motive or ulterior purpose of the plaintiff in bringing the suit is based on animosity or malice. Where the plaintiff shows a right to the relief sought, it is immaterial that he is seeking it for purposes other than the ascertainment and enforcement of the rights which he relies.” 1 Fla. Jur. 2d, Actions, Section 29, Page 289. See also CHI., R.I. & PAC. RY. v. Dowell, 229 U.S. 102, 114 (1913) (“If the plaintiff had a cause of action which was joint and had elected to sue both tort-feasors in one action, his motive in doing so is of no importance.”); Chi., Rock Island RY. v. Whiteaker, 239 U.S. 421, 424-5 (1915) (“ the motive of plaintiff, taken by itself, does not affect the right to remove” and that “if there is a joint liability he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right.“).

The Dismissed Lawsuit, Case No. 99-14027-CIV-Graham/Lynch

Judge Graham states he dismissed a case because of Mason’s “repeated refusal to comply with the Court’s rules and orders“. Case No. 99-14027-CIV-Graham/Lynch was filed on February 4, 1999. See Docket. This was an employment discrimination lawsuit based upon Marcellus Mason’s termination by Highlands County Board of County Commissioners and Heartland Library Cooperative in November 1998. The case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court communications between Highlands County and Mason. See Report and Recommendation,”R&R” (D.E. 766), Order adopting R&R (D.E 791). This case was an involuntary dismissal pursuant to Rule 41(b), Fed.R.Civ.P. due to Mason’s alleged violations of the following orders issued in this case on June 19, 2000, (DE #201), and July 25, 2000, (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 #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.

Incidentally, Mason has maintained that these orders are invalid because they violate the First Amendment, Tenth Amendment, and Magistrate’s Act, 28 U.S.C. § 636(b)(1)(a)(Magistrate may not issue an injunction); however, the Eleventh Circuit has declined to review these orders for validity on multiple occasions. See posting, Eleventh Circuit Repeatedly Refuses To Review Orders For Validity. In a later filed lawsuit, Judge Graham’s Magistrate admitted: the court “dismissed the remaining claims on their merits as sanction for the continued communication of antagonistic emails directly to the defendants in contempt of this Court’s orders“, Case No. 01-14310, (DE #79).

Judge Graham could have decided the case on the facts but he didn’t. On June 20, 2001, when Judge Graham dismissed this case, both the Plaintiff and the Defendants had summary judgment motions pending that the district court failed to act on. (DE # 507); (DE # 667); (DE# 668); (DE # 706);(DE # 797);(DE # 769);(DE # 770);(DE #785). See Complete Docket Listing.

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 havingnothing 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).

Chief Judge J.L. Edmondson Aggressively Defends Judge Donald L. Graham

April 17, 2008

Judge Donald L. GrahamJudge Donald L. Graham

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 Chief Circuit Judge J.L. Edmondson and his cohorts to speak for them. Unlike, Judge Graham and his enablers, 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 Judge Edmondson and his colleagues at the Eleventh Circuit, U.S. Court of Appeals have defined the concept of “judicial misconduct” out of existence. Moreover, the record here will reveal that Judge Edmondson and his colleagues will not mention the allegations of misconduct raised against Judge Graham, much less test them for veracity.

What To Focus On

  • The allegations of misconduct are not denied.
  • The allegations of misconduct are rarely mentioned.
  • The Allegations of misconduct were ignored in the appellate process
    • Usurping Legal Authority
    • Refusing to Rule on a motion for a preliminary injunction
    • Allowing Scores of Motion to Languish
    • Judge attempted to arrogate his own authority by ordering the clerk to return notices of appeals without filing them.

      • intentionally lying and misrepresenting the law;
      • refusing to rule on a motion for a preliminary injunction for more than 15 months;
      • allowing scores of motions to go undecided;
      • and usurping legal authority.
      • The complaint alleges (Core Allegations):
      • intentionally lying and misrepresenting the law;
      • refusing to rule on a motion for a preliminary injunction for more than 15 months;
      • allowing scores of motions to go undecided;
      • and usurping legal authority.
    • See Complaint and Order, Judicial Council Order.

      December 14, 2001, Judge R. Lanier Anderson renders order dismissing the complaint due to:

      The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling”. Additionally, this complainant currently has pending in this court several Petitions for Writs of Mandamus that address this issue. Consequently, pursuant to 28 U.S.C. 372(c)(3)(A) and Addendum Three Rule 4(a)(2) this Complaint is Dismissed.

      When Judge Anderson wrote this order, the Eleventh Circuit had already had denied the mandamus petition, Case No. 01-15754, which he references in his order dismissing this complaint. Consequently, Judge Anderson knows that Judge Graham’s misconduct has not been discussed, much less remedied.


      INTERVENING MANDAMUS

      December 5, 2001, in a terse one page, (Case No. 01-15754), “opinion” denies relief. “The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.”
      January 25, 2002, the Eleventh Circuit refuses to give the basis for its opinion of December 5, 2001 and denies a motion for rehearing or clarification.

      Complaint No. 02-0029

      Judge Graham attempted to use the contempt process to force Mason to drop a lawsuit filed against him.

      In this Complaint, Mr. Mason makes the unsupported allegation that Judge Graham has “improperly and illegally used his office to bring criminal contempt charges against me since the imitation (sic) of my last complaint on February 8, 2002”. Although Mr. Mason does not submit any evidence or documentation in support of his allegation, Judge Graham did in fact issue an Order to Show Cause regarding possible contempt charges against Mr. Mason detailing why Mr. Mason should be charged with criminal contempt, Not one reason cited in this order relates to any complaints having been filed against Judge Graham by Mr. Mason. The allegations that Judge Graham improperly and illegally issued the Order to Show Cause, and that it was issued in retaliation for Mr. Mason having filed complaints against judge Graham are clearly disputed by Mr. Mason’s behavior and obvious disregard for Judge Graham’s Omnibus Order and are “directly related to the merits of a decision or procedural ruling”, Therefore, pursuant to 28 U .S.C. § 372(c)(3)(A) and Addendum III Rule 4(a)(2), this Complaint is Dismissed .

      See Complaint and Order.


      COMPLAINTS FILED IN 2005

      A Series of complaints, Nos. 05-00008, 05-0011, 05-0012, 05-0013, 05-0020, and 05-0021, were filed in 2005. In order to keep Judge Edmondson from viewing allegations of misfeasance, malfeasance, and nonfeasance against Judge Graham in isolation, Mason included the following allegations in all the complaints so that Judge Graham’s record could be viewed in the aggregate.

      Additionally, in 2005, Judge Edmondson knows for certain that Judge Graham has escaped appellate review because the Eleventh Circuit, though fully briefed, refused to discuss whether Judge Graham should have disqualified. Moreover, the Eleventh Circuit declined to discuss the allegations of misconduct and abuse that Mason used to support the thesis that Judge Graham should have disqualified. See, Case No. 01-13664, Unpublished Opinion.


      Complaint No. 05-0008

      Complaint filed January 29, 2005.

      Additionally, Judge Graham knowing falsely created a Civil Justice Act Report that concealed the fact that he had a motion for a preliminary injunction pending for more than 15 months. Judge Edmondson reply to these allegations:

      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. Notwithstanding 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. The allegations of this Complaint are “frivolous”, “successive”, and “appropriate corrective action has been taken”. Therefore, pursuant to Chapter 16 of Title 28 U .S.C. § 352 (b)(I)(ii) and Addendum III Rules 4 (b)(3) and (4) and 18(c) this Complaint is DISMISSED.


      Order 05-0011. Complaint No. 05-0011
      Complaint filed January 31, 2005.
      This complaint, in addition to the core allegations, alleges the following:
      Judge Graham has arrogated his own authority, much like Sadam Hussein, Stalin, Hitler, other infamous autocrats and dictators. Specific acts of misconduct committed by Mr. Graham include, but is not limited to the following:
      Concocting a patently illegal injunction or pre-filing screening under the guise of “inherent authority”. See (D.E. 878), URL: http://mmason.freeshell.org/DE-878/de878.pdf.Using this patently illegal injunction to initiate and gain a criminal contempt conviction. Allowing the Eleventh Circuit to use this patently illegal injunction, (D.E. 878), rendered on September 20, 2001 , to affirm the dismissal of a case, 99-14027-CV-Graham, that closed on June 20, 2001. Imagine that! Allowing the Eleventh Circuit to destroy my right under the “rule of law” to appeal this patently illegal injunction, (D.E. 878).Using intimidation by ordering me, Robert Waters, AUSA, Frank Smith, U.S. Probation, and others to come to a “Status/Motion Hearing” on January 9, 2005. Abusing his office and circumventing the appellate process by ordering me not to file any one page requests to file Rule 60(b) motions and refusing to put this illegal order in writing so that it can be challenged on appeal. July 7, 2005, Judge Edmondson answered these allegations:

      In this complaint, there are only two allegations that have not been determined in previous complaints filed by Mr. Mason against Judge Graham. Mr. Mason first complains that Judge Graham issued a verbal order on January 14, 2005, which advised him not to file any further pleadings with the court . Mr. Mason then complains that this order was not in writing to prevent him from filing an appeal. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling or frivolous or both”, and the allegations of the complaint “lack any factual foundation or are conclusively refuted by objective evidence” . Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.


      Order No. 05-0012. Complaint No. 05-0012

      COMPLAINT FILED FEBRUARY 7, 2005. SPECIFIC ALLEGATIONS OF MISCONDUCT AND JUDICIAL ABUSE

      1. Mr. Graham abused his office by having the U.S. Marshall, Keith L. Kluttz, come and interrogate me at my home on or about February 5, 2004 when he had no earthly reason to do so.
      2. Mr. Graham abused his office by ordering me to come to “Status/Motion Hearing” on January 14, 2005 on a closed civil case, 99-14027.
      3. Mr. Graham conducted a quasi criminal hearing under the guise or cloak of a “Status/Motion Hearing” in a civil matter. The AUSA and U.S. Parole were attendance at this “Status/Motion Hearing”. I was unrepresented by a competent criminal defense lawyer.
      4. Graham ordered me to answer his intimidating questions in violation of my Fifth Amendment rights. Mr. Graham gave me no warning that my statements could be used against me even though the U.S. Attorney and U.S. Probation were in attendance.

      On January 9, 2005, Mr. Graham concocted what he termed a “Status/Motion Hearing” order. This order was then certified on January 10, 2005 by one of Mr. Graham’s clerks. This order specifically demands that the following individuals be there: Frank Smith, U.S. Probation, Robert Waters, AUSA, Lynn Waxman, Appellate Attorney, Maria Sorolis, counsel for Highlands County. This order was picked up by Fedex on January 10, 2005 and delivered to my home on January 11, 2005. Mr. Graham scheduled this hearing for January 14, 2005 at 15:30 in Fort Pierce. Mr. Graham was already scheduled to be in Fort Pierce on this date. Mr. Graham made no effort to talk to me or my appellate attorney about dates that would be convenient to us. Mr. Graham made no prior contact with me or Ms. Waxman. At this hearing, Mr. Graham made absolutely no mention of the merits of any pending motion in the civil case, 99-14027. Mr. Graham kept saying the case was closed and not to ‘file’ anymore Rule 60(b), Fed.R.Civ.P. motions or requests to file Rule 60(b), Fed.R.Civ.P. motions. Mr. Graham asked U.S. Probation about the terms of my probation. Why is this needed in a civil matter?
      For what purpose did AUSA Robert Waters and US Parole Officer Frank Smith attend a “Status/Motion Hearing” in a civil matter? Mr. Graham has refused to put any of the “commands” he made in writing so that they could be held up to public scrutiny. Mr. Graham felt it important enough to hastily concoct a “Status/Motion Hearing”, but not important enough to memorialize is “commands” to writing. Mr. Graham does not have the legal authority to demand, under the threat of arrest, that I attend a “Status/Motion Hearing” on a closed civil case. Mr. Graham had a deputy US Marshall come by my home and interrogate me without the presence of counsel even though criminal contempt case was pending, Case No. 02-14020-CR-Moore. I was questioned by the U.S. Marshall without benefit of having an attorney present. Mr. Graham had no probable cause to send the US Marshal to my house. The mere fact that Mr. Graham disagrees with my unrelenting attacks on his record and personal integrity is not sufficient reason to “sick the dogs on me”, or US Marshal. The US Marshal’s office is not Mr. Graham’s private police force.
      June 27, 2005, Judge Edmondson states:

      In this complaint, there are four allegations that have not been determined in previous complaints filed by Mr. Mason against Judge Graham. Mr. Mason complains that Judge Graham abused his office by ordering him to appear at a Status/Motion hearing held on January 14, 2005, and that Judge Graham scheduled this hearing without any attempt to talk with him or his attorney about dates that were suitable for them. Mr. Mason also complains that Judge Graham ordered him to answer intimidating questions at this hearing without warning that his statements could be used against him even though the U.S. Attorney and U.S. Probation offices were represented and present at this hearing. Mr. Mason further complains that Judge Graham improperly and without good cause sent the U.S. Marshals as his own private police force.

      The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling”, frivolous”. and the allegations of the complaint “lack any factual foundation or are conclusively refuted by objective evidence” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U.S.C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3)(4) and 18 (c) this Complaint is DISMISSED. Order No. 05-0012.

      Complaint No. 05-0013

      Complaint filed February 8, 2005
      In addition to the core allegations, this complaint alleges:
      Mr. Graham abused his office by ordering me to come to a “HEARING ON CONDUCT OF PARTIES DURING PROCEEDINGS” on December 4, 2001 on a closed civil case, 99-14027. The case was closed on June 20, 2001.This case was on appeal since June 25, 2001, consequently, Mr. Graham no longer had jurisdiction over the case. Why do I need to a ““NOTICE OF HEARING ON CONDUCT OF PARTIES DURING PROCEEDINGS” on a closed case? Does Mr. Graham get to order me to come to a hearing anytime he gets ready?
      Judge Edmondson’s reply:

      In this complaint Mr. Mason alleges that Judge Graham abused his office by ordering to appear at a hearing on December 4, 2001, when the case in question, No. 99-CV-14027, was closed and on appeal at the time the hearing was scheduled. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED. Order No. 05-0013.

      Complaint No. 05-0020

      Complaint filed February 16, 2005
      This complaint alleges:
      Judge illegally blocked Mason’s access to the courts by improperly denying motions to proceed without payment, in forma pauperis, on 18 different occasions, while refusing to cite a legal or factual reason for doing so as required by law.
      Graham allowed IFP motions to linger for months in violation of S.D.Fla. Local Rule 7.1.B.3 which calls for a hearing on motion in 90 days. (DE #8, 9-18-2001). Plaintiff’s motion was filed on 3/12/01 (DE #2). It took Graham more than six months to create a reason to deny this motion that was not denied until 9-18-2001. See (DE #8, 9-18-2001).
      Graham deliberately stated misleading facts or outright lied in justifying his injunction of September 20, 2001, (DE 878), by using the very unfiled lawsuits that he denied me IFP status to support this patently illegal injunction . For the purpose of justifying the injunction, (DE 878), Mr. Graham counted the following lawsuits as being “filed”: (1)Case No. 00-14202, (2)Case No. 00-14201, (3)Case No. 00-14116, (4)Case No. 01-14074, (5)01-14078, See pgs. 1-2, DE-878, URL: http://mmason.freeshell.org/DE-878/de878.pdf. Mr. Graham states, “Marcellus M. Mason (“Mason”) has filed eleven (11)cases and/or counterclaims in this District…” According to Mr. Graham’s own definition of “filing”, “A complaint is not considered filed until the filing fee is paid.” See (DE -10) Case No. 00-14201. See also (DE -10) Case No. 00-14202. No filing fee was paid in either of the above cases because Graham arbitrarily denied me the benefit of the in forma pauperis statutes. Using Graham’s own definition there were only 11 minus 5 or 6 lawsuits “filed.” Case No. 00-14240 which Graham also counts was actually filed by Highlands County, not me. Now Graham has only 5 lawsuits filed. Case No. 01-14230 was filed in state court and removed to the S.D. Fla. by Highlands County after Graham crafted the injunction where they knew the case would be assigned to Graham. See Notice of Removal, URL: http://geocities.com/mcneilmason/secret/01-14230/NoticeOfRemoval.pdf. Graham now has only four lawsuits that I filed, not the 11 he concocted. See Litigation Summary, URL:http://mmason.freeshell.org/LitigationSummary.doc . The four remaining lawsuits Case Numbers 99-14042, 99-14257, 99-14314 were consolidated with Case number 99-14027.

      Judge Edmondson’s reply:

      In this complaint Mr. Mason, although worded differently that his previous complaints, re-makes the allegation that Judge Graham denied him access to the courts by summarily denying a string of motions for in forma pauperis and that Judge Graham did not identify either of the only two reasons allowed for such denial. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.

      Order No. 05-0021. Complaint No. 05-0021

      Complaint filed February 19, 2005
      This complaint alleges:
      Mr. Graham should have disqualified himself long before any motion for attorney’s fees had been presented. “Disqualification is mandatory for conduct that calls a judge’s impartiality into question.” U.S. v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001). As this Complaint and previous complaints clearly demonstrate Judge Graham should have disqualified himself because he: (1)he intentionally misrepresented the law; (2)refused to rule on a motion for a preliminary injunction for more than 16 months;(3)usurped legal authority by requiring me to seek the permission of a private law firm to communicate with my government;(4)allowed scores of motions to go undecided; (5)concocted a “pre-filing” injunction;(5)lied on a Civil Justice Act Report;(6)See Section 372(c) complaints docketed under Case Nos. 05-0008, 05-0011, 05-0012, 05-0013, and a complaint dated Wednesday, February 16, 2005 for more reasons Graham should have disqualified. Mr. Graham and his Magistrate awarded the Defendants, Highlands County, a whopping award of $200,000 that he admitted in writing had nothing to do with the law or the “merits”. Mr. Graham even lied in order to award the defendants $200,000 in attorney’s fees. These allegations are fully supported by the following RECORD facts. See (DE #882), URL: http://mmason.freeshell.org/DE-882/de882.pdf . (DE 891), URL: http://mmason.freeshell.org/DE-891/de891.pdf . Judge Graham intentionally lied in order to award attorney’s fees of $200,000. Mr. Graham admitted that he knew the law and was not going to follow it with respect to the awards of attorney’s fees. At page 3 of the Report and Recommendation, Graham and his Magistrate admit that Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978) is the standard for awarding attorney’s fees. Mr. Graham and his Magistrate admit that I had no chance of paying $200,000 in attorney’s fees but awarded it to the defendants anyway. After awarding the Defendants $200, 000 in attorney’s fees against me, Mr. Graham then decided to deny me in forma pauperis status to appeal this travesty. Moreover, Mr. Graham refused to offer any lawful reason for denying me IFP status. See (DE #906), URL: http://mmason.freeshell.org/DE-906/de906.pdf . I prevailed on a summary judgment in a lawsuit filed against me by Highlands County and Mr. Graham refused to award me costs of less than $200.00. See (DE #27), URL: http://mmason.freeshell.org/00-14240/de27.pdf ; (DE #33), URL: http://mmason.freeshell.org/00-14240/Doc33/de33.pdf ; (DE #35), URL: http://mmason.freeshell.org/00-14240/Doc35/1.jpg . Judge Edmondson’s reply:

      In this complaint Mr. Mason repeats allegations, filed in previous complaints, that Judge Graham should have recused himself, that Judge Graham refused to rule on several motions, and that Judge Graham required him to seek permission from a private law firm to communicate with his government. The only new allegation in this complaint concerns the attorney fees awarded by Judge Graham to the defendants in the amount of $200,000. Mr. Mason claims Judge Graham lied in order to grant the fees. The allegations of this Complaint are “directly related to the merits of a decision or procedural ruling” and “successive”. Therefore, pursuant to Chapter 16 of Title 28 U .S .C. § 352(b)(1)(ii) and Addendum III Rules 4(b)(2)(3) and (4) this Complaint is DISMISSED.

      Order No. 05-0021.

      What makes this order particularly offensive is that both Judge Graham, for no stated reason, and the Eleventh Circuit, both denied Mason the opportunity to appeal the $200, 000 judgment. The Eleventh Circuit claimed the appeal of the $200,000 attorney’s fees was frivolous without providing a scintilla of evidence to support its mere fortuitous and self-serving conclusion.
      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.
      EVEN MORE INCREDIBLE IS THE FACT THAT THE ELEVENTH CIRCUIT REFUSES TO REVIEW THIS SUA SPONTE ISSUED PRE-FILING INJUNCTION FOR VALIDITY. SEE mmason.freeshell.org/SuaSponte.htm#AppellateHistory.

  • When Does Judge Graham become Accountable?


    Judge Edmondson’s Attack on the Complainant

    On May 2, 2005, Circuit Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal stated:

    Of the eight complaints not specifically naming Judge Graham as the complained–of judge, five name judges of this Court who served on panels reviewing Mr. Mason’s appeals — panels that affirmed decisions and rulings by Judge Graham. None of Mr. Mason’s judicial complaints have prevailed. All of the complaints that have been resolved to date have been dismissed for some or all of the following reasons: the complaints were (1) plainly untrue; (2) frivolous; (3) successive; (4) conclusively refuted by objective evidence; (5) lacking in factual foundation; (5) lacking in evidence sufficient to raise an inference that misconduct had occurred; or (6) directly related to the merits of a decision or procedural ruling…Eight of Mr. Mason’s twenty-one judicial complaints are still pending before this Court: Complaint numbers 05-0011, 05-0012, 05-0013, 05-0020, 05-0021, 05- 0022, 05-0023, and 05-0036. Six of those complaints name Judge Graham while the other two name judges of this Court who served on panels that affirmed decisions or rulings issued by Judge Graham. Four of the complaints are, on their face, successive. Accordingly, determination of those eight complaints will be held in abeyance pending the resolution of this Show Cause Order

    See Show Cause Order.

    The Perfect Scam

    IMPORTANT BACKGROUND AND CONCURRENT FACTS

    In order to fully understand the lengths that Judge Edmondson and his cohorts at the Eleventh Circuit are willing to go through to conceal the acts of misfeasance, malfeasance, nonfeasance committed by Judge Donald L. Graham, one must read the opinions in the direct appeal, Case
    No. 01-13664
    and mandamus petition, Case No. 01-15754 (“The “petition for writ of mandamus and petition for writ of prohibition” is DENIED.)in conjunction with the complaints listed below. The Eleventh Circuit does not deny the allegations it simply ignores them. In the direct appeal, the Eleventh Circuit acknowledges that it was briefed on the issue that Judge Graham should have disqualified because of the alleged misconduct, however, it refuses to discuss this issue on appeal (“Mason also raises issues that relate to non-sanction matters, … the denial of his motions to disqualify the district court and magistrate judges,“). Similarly, it refuses to discuss this issue in mandamus petition.

    The Eleventh Circuit and Judge Edmondson employed a perfect strategy to conceal these allegations of misconduct. The direct appeal and mandamus orders are non-published. Neither of these opinions have ever been available in the Court’s database or released. Couple this fact, with the fact that the Judicial Misconduct Complaints are kept confidential no one would ever know save this website.

    It is noteworthy and quite revealing that upon reading the complaints and Judge Edmondson’s replies that he does not deny, because he can not, any of the allegations set forth in any of the complaints below.

    The point of the foregoing is that Judge Edmondson and his cohorts knew full well that when these complaints were lodged that the Eleventh Circuit had already refused to address these allegations in the appellate process. Consequently, there is no remedy for these acts of misconduct and abuse.


    Complaint #01-0054

    This complaint raised the following allegations:

    Complaint No. 01-0054. On November 7, 2001, former Chief Judge R. Lanier Anderson, without denying the truth of the allegations, stated:

    Marcellus M. Mason. Jr. filed this complaint against United States District Judge Donald L. Graham, pursuant to Title 28 U.S.C. § 372(c) and Addendum Three to the Rules of the Judicial Council of the Eleventh Circuit. The allegations of the Complaint are “directly related to the merits of a decision or procedural ruling” and/or ‘Action on the complaint is no longer necessary because of intervening events, and intervening events”. Consequently, pursuant to 28 U.S.C. § 372(c)(3)(A) and (3)(B) and Addendum Three Rule 4 (a)(2), this Complaint is DISMISSED.

    On March 5, 2002, the Judicial Council declined to do a review. See Order.


    Case No. 01-0068

    Complaint No. 01-0068

    Complaint filed on November 27, 2001

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:

Judge Graham Refuses to Deny He is a Liar

April 6, 2008



Justice Turned On Its Head

Justice Turned On Its Head

Judge Donald L. GrahamJudge Donald L. Graham


Calling Judge Graham a Liar to His Face

On December 16, 2004, Marcellus Mason filed a one page letter with Judge Graham asking for permission to file a motion stating that Judge Graham should have disqualified for, among other things, lying or intentionally misrepresenting the law. “Mr. Graham, you stated in my lawsuit that I could state a claim under 42 U.S.C. §1981 against a state actor while at the very same time you allowed a Plaintiff to state a claim under 42 U.S.C. §1981 against the very same state actor.” See Docket Entry No. 932. It is a serious charge to accuse a federal judge of lying. If the allegation is false, then it is surely would be contempt. The record clearly demonstrates that Judge Graham has no compunction about concocting a contempt charge out of “whole cloth”. See Framing an Innocent Man.

Judge Graham Refuses to Defend the Integrity of the Court

Judge Graham could have denied the allegation that he was untruthful, but he didn’t. Judge Graham could have stated the allegation was without merit and had no record support. Instead Judge Graham simply gave himself permission to ignore the allegation of untruthfulness by stating:

THIS CAUSE came before the Court upon Plaintiff’s correspondence to the Court dated December 16, 2004 requesting permission to file a motion. The Plaintiff’s stated reason for filing the Motion is that the Court should have disqualified itself because, among other things, it intentionally misrepresented the law to the Plaintiff.
THE COURT has considered the correspondence and the pertinent portions of the record, and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED that Plaintiff’s request is DENIED.

See Docket Entry No. 931.

Record Support for the Lie Allegation

A hallmark for this website and related websites is there is always record support for every allegation made. This post will be no different. Judge Graham lied and intentionally misrepresented the law. Judge Graham told Mason that the law precluded him from asserting claims of intentional discrimination under 42 U.S.C. §1981 against a state actor, Highlands County Board of County Commissioners. See Docket Entries Nos. 435, pg. 3 and
466
. At the very same time, Judge Graham was allowing a plaintiff in nother case Fa Nina St. Germain v. Highlands County, Case No. 00-14094 to assert claims under 42 U.S.C. §1981 against the very
same state actor, Highlands County Board of County
Commissioners. See Summary Judgment, Case No. 00-14094. It might be noted that Ms. St. Germain was represented by counsel, Peter Helwig, Lakeland, FL and Mason was not represented by counsel.

Lying Not Judicial Misconduct

Judge J.L. Edmondson, Chief Judge, Eleventh Circuit, U.S. Court of Appeal has expressly held that lying or intentionally misstating the law is not judicial misconduct. See Complaint 05-0008. The comments to Canon 1, Code of Conduct For United States Judges state:

Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. Although judges should be independent, they should comply with the law, as well as the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation of this Code diminishes public confidence in the judiciary and thereby does injury to the system of government under law.


Judicial Conference: Complaint of Misconduct, Judge Donald L. Graham

April 2, 2008

April 1, 2008

214 Atterberry Drive

Sebring, FL 33870

Judicial Conference
Committee on Judicial Conduct and Disability
Attn: Office of General Counsel
Administrative Office of the United States Courts
One Columbus Circle, NE 39
Washington, D.C. 20544 40

Re: Complaint of Misconduct, U.S. Dist. Judge Donald L. Graham

Dear Sir/Madam:

In order to more easily investigate this matter and keep costs down, this letter has been posted to the Internet at: URL, http://mmason.freeshell.org/JudicialConference.doc or http://mmason.freeshell.org/JudicialConference.htm . I am more than willing to supply documentation to prove any allegation raised here. Please feel free to contact me for any assistance in this matter. These are serious charges that if true, casts a pall over the integrity of the Federal Judiciary. Moreover, it is unfair to other judges to have Judge Graham get away with misconduct, while judges like Judge Manuel L. Real are sanctioned. Chief Justice John G. Roberts Jr., in his 2007 Year-End Report on the Federal Judiciary has stated that “[t]he Judiciary cannot tolerate misconduct. The public rightly expects the Judiciary to be fair but firm in policing its own.”

I have submitted multiple complaints of misconduct against Judge Donald L. Graham, S.D. Fla. to the Judicial Council of the Eleventh Circuit and to the Chief Judge, primarily Judge J.L. Edmondson. These complaints have been dismissed wholesale without any investigation at all. It would appear that Judge Edmondson has defined judicial misconduct out of existence. Each complaint filed against Judge Graham can found at: http://mmason.freeshell.org/372c/ . The following complaints were submitted to the Judicial Council: 01-0054, 01-0068, 02-0052. As the statute changed from 28 U.S.C. §372(c) to §351, new complaints were filed 2005. [05-0008,05-0011,05-0012,05-0013,05-0020,05-0021]. These complaints may also be reached by clicking on their number at the homepage, http://mmason.freeshell.org.

Judge Graham’s misconduct has managed to escape appellate review, both by way of mandamus and direct appeal. The Eleventh Circuit, without denying the allegations of misconduct has simply ignored the issues. It is inconceivable that a Court of Appeal would ignore a jurisdictional issue like whether the Judge should have disqualified or not, however the Eleventh Circuit has done just that. Among other places, this fact is documented at : https://mcneilmason.wordpress.com , See post entitled Are Allegations of Misconduct Reviewable on Appeal? .

I have setup a web portal, http://mmason.freeshell.org/methods.htm , which takes the allegations of misconduct and shows the reader how they were disposed of either by lying or simply ignoring the issues. This page has a flowchart with clickable links. It traces the allegations of misconduct through the appellate process and through Section 351 complaints as well. This page was created so the reader could see the overall picture and the level of dishonesty involved.

Given this matter is extraordinary, I would appreciate it if you would you use your authority to conduct an additional investigation or more accurately conduct an initial investigation since the Judicial Council has never conducted an investigation in the first place. In the alternative, I would appreciate if you would return the matter to the judicial council with directions to undertake an investigation. In an opinion publicly available on the Internet, you have 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 :Pg. 8.

The complaints submitted to the Judicial Council and to the Eleventh Circuit include, but is not limited to, included the following:

  • Lying and intentionally misrepresenting the law. See Documented Lie. Judge Graham told Marcellus Mason that he could not state a claim against a state actor, Highlands County Board of County Commissioners, under 42 U.S.C. §1981 while he was simultaneously allowing a represented Plaintiff in another case to state a claim under 42 U.S.C. §1981 against the very same state actor, Highlands County Board of County Commissioners.
  • Involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction or vexatious litigant injunction which ultimately formed the basis of a criminal contempt complaint and conviction. See Framing An Innocent Person. Sua Sponte means on the Judges own motion and without notice and opportunity to respond prior to the issuance of the injunction. The law and Constitution requires such notice. In Weaver v. Sch. Bd., 2006 U.S. App. LEXIS 8128 (unpublished) (11th Cir. 2006), the Court held that a litigant was entitled to “notice and an opportunity to be heard” before a restriction was imposed on the litigant’s ability to challenge an injunction. “Generally, a judgment is void under Rule 60 (b) (4) “if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if acted in a manner inconsistent with due process of law. (emphasis added)” E.g.,Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001). A void judgment is from its inception a legal nullity. U.S. v. Boch Oldsmobile 909 F.2d 657, 661 (1st Cir. 1990). It is incredible that the Eleventh Circuit has managed to avoid reviewing this sua sponte issued pre-filing injunction by all kinds of dishonest tricks. See http://mmason.freeshell.org/SuaSponte.htm# AppellateHistory.
  • Judge Graham refused to rule on a motion for a preliminary injunction that had been pending for about 19 months. A motion for preliminary injunction was submitted on November 24, 1999, and Judge Graham never ruled on the motion despite repeated requests. See Docket and Entry #39. The case was closed on June 20, 2001. Even more incredible, the Eleventh Circuit, after 17 months stated that I didn’t have a right to have my motion decided. See http://mmason.freeshell.org/junklaw/NoRightToHaveMotionDecided.html or https://mcneilmason.wordpress.com/ , click on You Don’t have A Right to Have Your Motions Decided.
  • Judge Graham used the contempt process and AUSA Robert Waters to force Marcellus Mason to drop an embarrassing lawsuit against Judge Graham. Marcellus Mason has offered to take a polygraph test under penalty of perjury and challenges Judge Graham to do the same. This offer to take a polygraph test has been sent by both letters and email to the U.S. Department of Justice and the FBI. Additionally, Federal Public Defender, Leon Watts was a witness to the conversation. Incidentally, Mason declined to drop the lawsuit. Either Mason has committed a crime or Judge Graham has committed a crime! Both Mason and Judge Graham should be offered polygraph tests!
  • Judge Graham used a void sua sponte issued pre-filing injunction to award attorney’s fees of $200,000 against an indigent Plaintiff whom Judge Graham knew was unemployed. See Docket Entry No. 882 and 891. Judge Graham eschewed and rejected the law and the U.S. Supreme Court which states that attorney’s fees may only be awarded against a Plaintiff if the lawsuit is found to be totally without merit. Judge Graham made no such finding because he could not due to the fact that he failed to evaluate pending summary judgment motions which set forth substantial facts supporting the lawsuit. Christiansburg Garment Co. v. EEOC ,434 U.S. 412, 422 (1978)(“a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.”).
  • Judge Graham falsely completed a Civil Justice Reform Act, CJRA, report in order to conceal the fact that he had failed to rule on the preliminary injunction motion mentioned above. See False CJRA Report. Motions pending for more than six months must be included in the CJRA report. When told of this fact in a Judicial Misconduct and Disability Act complaint, Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeals, simply attacked Marcellus Mason. See Section 351 Complaint No. 05-008.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction in clear violation of law and 28 U.S.C. § 636 (b)(1)(A) which clearly states: Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…” Judge Graham has repeatedly refusing to cite legal authority for such an order. On direct appeal, Case No. 01-13664-A, the Eleventh simply refused to review this injunction for validity while it was quite willing to discuss the Plaintiff’s violation of the same. See http://mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#opinion .
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction to prohibit lawful and protected out of court communication between a citizen and his government. See Docket Entry No. 201. On direct appeal, Case No. 01-13664-A, the Eleventh simply refused to review this injunction for validity while it was quite willing to discuss the Plaintiff’s violation of the same. See http://mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#opinion .
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction placing restrictions on how public records are accessed under the Florida Public Records Act that the Florida Supreme Court has stated is not lawful. See Docket Entry No. 246. Judge Graham has refused to state where a federal judge gets the legal authority to administer public records under the Florida Public Records Act. On direct appeal, Case No. 01-13664-A, the Eleventh simply refused to review this injunction for validity while it was quite willing to discuss the Plaintiff’s violation of the same. See http://mmason.freeshell.org/01-13664/OrderAffirmingTrialCourt/Opinion-OCR.htm#opinion .
  • Allowing scores of significant pre-trial motions to go undecided for months without taking any action. See Languishing Motions. This page list more than 30 filings, including summary judgment motions, that Judge Graham refused to act on.
  • Judge Graham denied in forma pauperis petitions or petition to waive filing fees on at least ten separate for no reason. See History of Arbitrary IFP Denials. In spite of the statutes and the U.S. Supreme Court’s edict that an in forma pauperis application can only be denied if the allegation of poverty is untrue or the action is frivolous. See Denton v. Hernandez, 504 U.S. 25 (1992).

This matter is not untimely because you have stated:

Moreover, there cannot be public confidence in a self-regulatory misconduct procedure that, after the discovery of new evidence or a failure to investigate properly or completely serious allegations of misconduct, allows misconduct to go unremedied in the name of preserving the “finality” of an earlier, perhaps misfired, proceeding. Pgs.8,9.

The Eleventh Circuit has affirmed Judge Donald L. Graham on appeal using unpublished opinions while reversing and excoriating other federal judges at the Southern District of Florida and in the Circuit for the exact same set of facts. The links provided here and below will demonstrate that U.S. District Judge Ursula Ungaro-Benages, S.D. Fla., mmason.freeshell.org/WorldThrust.htm , U.S. District Judge John Antoon II, M.D. Fla., http://mmason.freeshell.org/collins.htm, U.S. District Judge Daniel T. K. Hurley, mmason.freeshell.org/martinez.htm ,S.D. Fla., U.S. District Judge Marvin H. Shoob, N. D. of Georgia, mmason.freeshell.org/pleming.htm, all were reversed and excoriated on appeal while Judge Graham was affirmed for the exact same set of facts.

Judge Graham’s record has been widely distributed via email campaigns and a mailing list that was composed of over 150,000 recipients on a least two occasions. Selected people have received information about Judge Graham on a daily basis. I have multiple websites which depicts Judge Graham’s record. Hundreds of letters and faxes have been sent out to attorneys and judges at all levels. All of my websites have been indexed by all the major Internet Search Engines like Google, Yahoo, MSN, ask.com, and others. Try searching by using “Judge Donald L. Graham.” It is going to be impossible to discipline other judges given Judge Graham’s record. This will build resentment in the judiciary because it shows favoritism and that Judge Graham is above the law.

Judge Graham has never been asked to deny any of the above listed allegations. You need only ask Judge Graham to deny these allegations.

Sincerely,

Marcellus M. Mason, Jr.

You Don’t have A Right to Have Your Motions Decided

March 29, 2008

This article is part of a series and an expose on just how far the Eleventh Circuit, U.S. Court of Appeals will go to conceal the judicial misconduct and miscreant behavior of U.S. Dist. Judge Donald L. Graham. The decisions documented here by the Eleventh Circuit are characterized by extreme dishonesty and are no more than “junk law” that it would not think of publishing. This type of jurisprudence simply cannot be accepted in a free society like the United States of America.


Judge Donald L. GrahamJudge Donald L. Graham

Does a litigant have a right to his or her motion decided?

According to the Eleventh Circuit, U.S. Court of Appeals and Judge Ed Carnes , a litigant does not have the right to have his motion decided. On April 26, 2001, Judge Ed Carnes opined:

His mandamus petition, however, is frivolous because he has failed to establish that he is entitled to mandamus relief to compel the district court to rule on his motion for preliminary injunction.

See Judge Carnes Opinion.


Factual Background

On November 24, 1999, Case No. 99-14027-CIV-Graham/Lynch, Judge Donald L. Graham was presented with a motion for a preliminary injunction. See Docket Entry No. 39. The case was ultimately closed on June 20, 2001 and Judge Graham NEVER decided the motion one way or the other. On or about March 8, 2001, Marcellus Mason filed a petition for mandamus, in forma pauperis or without paying court filing fees due to indigence, with the Eleventh Circuit to force Judge Graham to rule on the pending motion for a preliminary injunction. On April 26, 2001, Judge Ed Carnes, 17 months after the motion was submitted, as fully stated above, ruled that Mason does not have the right to have his motion decided.

The Law and the Right to Have Motions Decided

A Court confronted by a motion authorized by the Rules must decide the motion within a reasonable time…the right of a movant to have a motion decided is so clear that it will be enforced under proper circumstances by mandamus.US East Telecommunications v. US West Inf. Sys., 15 F.3d 261 (2nd Cir. 1994).

Published Decision Reaches a Different Result

Compare the above and Judge Graham to Judge Duross Fitzpatrick, now deceased, in Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (C.A.11 (Ga.), 1997), a published decision, where the Eleventh Circuit stated : “Failure to consider and rule on significant pretrial motions before issuing dispositive orders can be an abuse of discretion.” Wonder how Judge Duross Fitzpatrick would have felt about this disparity?


Links to Other Dishonest Tactics Used By the Eleventh Circuit

A Web Portal On Judge Donald L. Graham and the Eleventh Circuit, U.S. Court of Appeals


Are Allegations of Misconduct Reviewable on Appeal?

March 27, 2008

Judge Donald L. Graham
judgegraham.jpg

A US Circuit Judge On the Potential Dangers of Unpublished Opinions

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

The Meaningless Appeal

Marcellus Mason filed appellate briefs with the Eleventh Circuit, U.S. Court of Appeals, in two separate cases, 01-13364 and 01-15754, accusing U.S. Dist. Judge Donald L. Graham of the following misconduct and mismanagement:

  • Lying and intentionally misrepresenting the law.
  • Refusing to rule on a motion for a preliminary injunction that had been pending for about 19 months.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction in clear violation of law and 28 U.S.C. § 636 (b)(1)(A) which clearly states:
    Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…”
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction to prohibit lawful and protected out of court communication between a citizen and his government.
  • Usurping legal authority by allowing a Federal Magistrate Judge, Frank Lynch Jr., to render an injunction placing restrictions on how public records are accessed under the Florida Public Records Act that the State of Florida does not allow. Judge Graham has refused to state where a federal judge gets the legal authority to administer public records under the Florida Public Records Act.
  • Allowing scores of significant pre-trial motions to go undecided for months without taking any action.
  • Involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction or vexatious litigant injunction which ultimately formed the basis of a criminal contempt complaint and conviction. See Framing An Innocent Person.

In an unpublished opinion, [Case No. 01-13664] the Eleventh Circuit, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus have expressly stated that allegations of judicial misconduct are not reviewable on appeal. Theses allegations were not tested for veracity they were simply ignored. Specifically, in the opinion rendered on October 16, 2002, Judges Stanley F. Birch, Jr., Susan H. Black, and Stanley Marcus asserted:

“Mason also raises issues that relate to non-sanction matters, e.g., .. the denial of his motions to disqualify the district court and magistrate judges…”

See Opinion, page 10. This is the sum total of appellate review as to whether Judge Donald L. Graham should have been disqualified due to misconduct. There is absolutely no discussion as to whether the allegations of misconduct are true or not.

Similarly, a petition for mandamus [Case No. 01-15754] was submitted to the Eleventh Circuit on or about October 2, 2001. This petition accused Judge Graham of misconduct. The Eleventh Circuit, Judges Rosemary Barkett, Jr., Susan H. Black, and Stanley Marcus, simply ignored the allegations of misconduct by stating only the following in a one sentence unpublished “opinion” :

The ” petition for writ of mandamus and petition for writ of prohibition” is DENIED.

mmason.freeshell.org/15754/mandamus_denied.pdf .

mandamus


References
Case No. 01-13664 Appellant’s Brief

Case No. 01-15754 Mandamus Petition