Tuesday, June 25, 2008
J.L. Edmondson
c/o Thomas K. Kahn, Clerk
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St. N.W.
Atlanta, Georgia 3030
Dear Judge. Edmondson:
Please consider this complaint along with prior complaints to further buttress my argument that Judge Graham has engaged in a pattern and practice of disregarding prevailing legal standards and thereby causing expense and delay to me. I refer you specifically to the following complaints: No. 01-0054;No. 01-0054-Judicial Council;No. 01-0068;No. 01-68-Judicial; Council;No. 02-0052;No. 02-0059;No. 05-0008;No. 05-0011;No. 05-0012;No. 05-0013;No. 05-0020;No. 05-0021
Historically, you have used a
“negative definition” of judicial misconduct.
“A definition which states what a thing is NOT rather than what it is.”[1] This
type of definition is not useful except to allow Judge Graham to escape
scrutiny for his reckless behavior.
Consequently, I have provided you with definitions of misconduct that
have been widely accepted and used by legal authorities including the Judicial
Conference that you are legally bound to follow.
Judicial Misconduct Definitions.
On January 8, 2008, the
Committee On Judicial Conduct And Disability 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.
Judicial Misconduct has been defined by
U.S. Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit
(citing Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor,
Northwestern University Law, James J. Alfini, President and Dean, South Texas
College of Law, Judicial Conduct and
Ethics, § 2.07, at 50 (3d ed. 2000)) , 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.[2]
"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).[3] "It has been said that judicial
independence encompasses making mistakes and committing error, but does not
afford protection to judges who repeatedly ignore the law." Arizona
Supreme Court, Judicial Ethics Advisory Committee, ADVISORY OPINION
92-10,(September 1, 1992). “Legal
error and judicial misconduct are not mutually exclusive.” In Re
Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct.
"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). 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."); Oberholzer
v. Commission on Judicial Performance (1999) 20 Cal.4th 371("a judge
who commits legal error which, in addition, clearly and convincingly reflects
bad faith, bias, abuse of authority, disregard for fundamental
rights,intentional disregard of the law, or any purpose other than the faithful
discharge of judicial duty is subject to investigation.")
Definitions
Lie “to create a false or misleading impression”[4]. Something meant to deceive or give a wrong
impression.
http://www.thefreedictionary.com/lie
Lying by Omission- One lies by omission by omitting an important fact, deliberately
leaving another person with a misconception.[5] “Lying by omission is when an important fact
is omitted, deliberately leaving another person with a misconception. This includes
failures to correct pre-existing misconceptions.”[6].
Prevaricate
to speak falsely or misleadingly; deliberately misstate or create an incorrect
impression; lie.[7]
Judge Graham has been accused
of: 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. These allegations were specifically mentioned
and supported by actual documents in the following cases with the Eleventh
Circuit: Direct Appeal, Case No.
01-13664-A, mandamus, Case No. 01-15754, however there is no mention of these
allegations in any of these actions. It
would appear that a law clerk at the Eleventh Circuit gave himself permission
to simply ignore these very serious allegations because they can not be
denied. This is unacceptable and simply
will not be tolerated. Mr. Donald L.
Graham is going to be held accountable for his actions. Please see URL:
http://mmason/freeshell.org/refusetodiscuss.html; and http://mmason/freeshell.org/trickery/trickery.htm.
Background Facts
The cases discussed here rely
upon a previous case heard by Judge Graham, Case No. 99-14027-CIV-Graham/Lynch.
This case was filed on February 4, 1999. See Docket. The February
4, 1999 date is critical for res judicata purposes. 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.
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).
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, without notice and opportunity to respond.
Page 3 of this document boldly asserts: THIS CAUSE came before the Court sua sponte. This same injunction that
was issued without notice and opportunity to respond also makes a “finding of
bad faith”. At pages 5 and 6, Judge
Graham specifically states: It has become clear to the Court that Mason
is proceeding in bad faith…Such activity is in bad faith and will not be
permitted by the Court. Judge Graham’s own writing in the very sua
sponte issued prefiling injunction of September 20, 2001 recognizes the
right of access to the courts: This screening requirement best balances
the interest in constitutionally mandated access to the federal courts with the
need to protect the Court’s jurisdiction and integrity. See pg.
7, Docket No. 878, (D.E. #878).
Well Established Law
“A court must,
of course, exercise caution in invoking its inherent power, and it must
comply with the mandates of due process, both in determining that the requisite
bad faith exists and in assessing fees.” (emphasis added) Chambers v. Nasco,
Inc.,
501 U.S. 32, 50 (1991).
Pre-filing Injunctins Require 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. Same, 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 ); 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);
The Right of Access To Courts
The right of
access to the Courts is clear according to the U.S. Supreme Court. Bounds v. Smith, 430 U.S. 817 (1977);M.L.B. v. S.L.J., 519 U.S. 102
(1996). The Supreme court has stated the right of access to the courts also
protected by the First Amendment. BE&K Construction
CO. v. National Labor Relations Board et al. 536 U.S. 516 (2001)(”the right
to petition extends to all departments of the Government,” and that “[t]he
right of access to the courts is … but one aspect of the right of petition.”). California Motor Transp.
Co. v. Trucking Unlimited, 404 U. S. 508, 510 (1972)(”The right of access to the courts is indeed but one aspect of
the right of petition.“). See Tennessee
v. Lane, 541 U.S. 509 (2004)(recognizing “the fundamental right of access
to the courts”).
Constitutionally Protected Rights Require Due Process
“The essence of due process is that
deprivation of life, liberty, or property by adjudication be preceded by notice
and opportunity for a hearing appropriate to the nature of the case.” Adams
v. Southern Farm Bureau Life Insurance Company, No. 06-13162 (11th
Cir. 2007)[i], Before EDMONSON, Chief Judge, and BIRCH and WILSON, Circuit
Judges. “Courts as well as citizens are
not free ‘to ignore all the procedures of the law….’. The ‘constitutional
freedom’ of which the Court speaks can be won only if judges honor the Constitution.”
Walker v. City Of
Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950); Anti-Fascist
Committee v. McGrath, 341 U.S. 123 (1951);
Goldberg v. Kelly, 397 U.S. 254 (1970),
Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of
Independence,
445 U.S. 622 (1980); Carey v.Piphus, 435 U.S.
247, 259 (1978); Mathews
v. Eldridge,
424 U.S. 319, 333 (1976).
Order Issued In
Violations of Due Process Are Void.
It is well settled
that an order issued in violation of due process is void. “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 judgment rendered in violation of
due process is void in the rendering State and is not entitled to full faith
and credit elsewhere.” World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by
prohibiting an act, renders it void, if done; otherwise, the prohibition were
nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S.
204, 217 (1821). “’No judgment of a court is due process of law, if rendered
without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass’n
v. McDonough, 204 U.S. 8, 15 (1907).
Litigated
Litigated in
context of res judicata, or claim preclusion and collateral estoppel or issue
preclusion have very specific meanings.
The doctrine of collateral estoppel, or issue preclusion, bars relitigation of an issue of fact or law that has been litigated and decided in a prior suit. The doctrine of collateral estoppel, or issue preclusion, bars relitigation of an issue of fact or law that has been litigated and decided in a prior suit.” McKinnon v. Blue Cross & Blue Shield Of Ala., 935 F.2d 1187 (11th Cir. 1991).
Res Judicata. You
have said: “we do not believe that the
res judicata preclusion of claims that "could have been brought" in
earlier litigation includes claims which arise after the original pleading is
filed in the earlier litigation. Instead, we believe that, for res judicata
purposes, claims that "could have been brought" are claims in
existence at the time the original complaint is filed or claims actually
asserted by supplemental pleadings or otherwise in the earlier action.” Manning
v. The City Of Auburn, 953 F.2d 1355 (11th Cir. 1992)[8]
ALLEGATIONS OF MISCONDUCT SUPPORTED BY THE RECORD
· In Case No.
01-14310, Judge Graham lied when his
court stated that a “judicial finding of lawful discharge” had been made. Judge Graham did not make any finding
relative to the facts of the case, 99-14027.
As stated above, Judge Graham declined to pass on the two summary judgment
motions that were pending. The full
context of this statement is: “the
Plaintiff makes reference to Highlands County's alleged discriminatory behavior
around the time of his prior employment and termination. Indeed, the underlying
termination is fundamental to the Plaintiff's civil rights claims. This is
especially so in light of the fact that the Defendants raise his discharge for
wrongful conduct and the disciplinary action of permanent removal as a
non-discriminatory, legitimate ground for the refusal to re-hire.” (D.E.
#79, Pg. 5)[9], (D.E. #93). “After
one's prior termination has been decided in the employer's favor, it is
convoluted logic to argue that the employer's refusal to re-hire the former
worker was the result of unlawful discrimination. To rule otherwise would
render meaningless any judicial finding of lawful discharge.” (D.E.
#79, Pg. 6).
· Judge Graham
ignored clearly established law and binding precedent in applying res judicata
to a cause of action that did not arise until well after the former lawsuit was
filed and the case was closed. Judge Graham’s application of res judicata is
not only absurd, but impossible given the facts. The EEOC Notice of Right to
Sue Letter, Charge No. 150A1 3119 is dated September
6, 2001, or three months after the former lawsuit was dismissed on June 20,
2001. At page 5 of a Report and
Recommendation, “R&R” it clearly states: “In spring of 2001, a position
for Sign Technician became open with Highlands County. The Plaintiff was not
considered for the position.” As
stated above, the prior lawsuit, Case 99-14027 was filed in February 1999. The instant case, Case No. 01-14310-CIV-GRAHAM/LYNCH, was a
failure to hire case. Additionally, Judge
Graham lied by omitting material facts in his order of May 07 2002. (D.E.
#79) (D.E. #93). The
Eleventh Circuit has rejected this crap in two similar cases, Pleming
v. Universal-Rundle Corp., 142 F.3d 1354 (11th Cir. 1998 and Manning
v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir. 1992). Judge Graham’s
“rulings” has given Highlands County a right to discriminate anytime that I
apply for a job with Highlands County.
· In Case No. 01-14230, Judge Graham awarded attorney’s fees of $5340.00 in violation of
clearly established law and due process.
Judge Graham made this award based upon a sua sponte issued pre-filing
injunction. “Judge Graham has already made a specific finding of bad faith on the
part of the Plaintiff in this and related litigations. “While such a finding of bad faith is not a
prerequisite to the award of attorneys' fees, it does serve as a sufficient
legal platform upon which to base an award of attorneys' fees for the
prevailing party, which are the Defendants herein.” (D.E. #48,
pgs. 2,3), R&R. On January 31,
2002, Judge Graham adopted the R&R and awarded $5340.00 to the defendants. (D.E.
#51)..
Sincerely,
Marcellus M. Mason
214 Atterberry Drive
Sebring, FL 33870
