JUDGE DONALD L. GRAHAM "RULINGS" SAYS HE DOESN'T GIVE A DAMN ABOUT THE LAW OR LEGALLY BINDING PRECEDENTS

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Judge Donald L. Graham

TABLE OF CONTENTS

JUDICIAL MISCONDUCT DEFINED

JUDGES WHO HAVE ENDORSED JUDGE GRAHAM'S MISCONDUCT

Chief Judge Federico A. Moreno Declines to Endorse Judge Graham

CORE ALLEGATIONS OF MISCONDUCT

JUDICIAL INDEPENDENCE: CONCEALING MISCONDUCT

BACKGROUND MATERIAL

Litigant's Right to Communicate With Government During Litigation

EXEMPLAR OF JUDGE GRAHAM'S HUBRIS

Judge Graham Rejects U.S. Supreme Court's Rulings On Awarding Attorney's Fees

The United States Supreme Court On In Forma Pauperis

Teflon Don Thumbs Nose At U.S. Supreme Court,
Due Process, And Right of Access To The Courts

Judge Graham Thumbs Nose at Supreme Court's Rulings on Prior Restraints

Case Law On Pre-Filing Injunctions

BANNED OUT OF COURT DIRECT GOVERNMENT COMMUNICATIONS

CODE OF CONDUCT FOR UNITED STATES JUDGES

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

 

The Florida Supreme Court has stated that:
[C]onduct unbecoming a member of the judiciary may be shown by evidence of an accumulation of small and ostensibly innocuous incidents which, when considered together, emerge as a pattern of hostile conduct unbecoming a member of the judiciary.
Inquiry Concerning A Judge, NO. 97-376, Re: Steven P. Shea, Florida Supreme Court, March 23, 2003.

 

"[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.

Judges Who Have Endorsed Judge Graham's Behavior

In a reply to a letter dated July 18, 2001 complaining of Judge Graham's conduct, Judge Edward Zloch, former Chief Judge, S.D. Fla. has stated
Please be advised that I have no jurisdiction over this matter, am precluded from taking any action whatsoever in this case, and am precluded from offering you any legal advice.

The Judge to whom this matter was assigned is one of the very best Judges of this Court and your case is being appropriately handled. I have no authority to review any allegations you make in the documents you submitted. See Judge Zloch's Letter dated Aug. 10, 2001.

 

Chief Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has aggressively defended Judge Graham's behavior.  See Judicial Misconduct Complaint homepage.

Chief Judge Federico A. Moreno Declines to Endorse Judge Graham

Chief Judge Federico A. Moreno was sent a letter on March 25, 2008 and told of the behavior described below and declined to endorse Judge Graham's behavior or deny any of the allegations listed below. In a letter dated April 4, 2008, Judge Moreno wrote:

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

CORE ALLEGATIONS OF MISCONDUCT AND ABUSE OF POWER BY JUDGE DONALD L. GRAHAM
  • Judge Graham and his Magistrate usurped legal authority by allowing a Magistrate to issue an injunction which is prohibited under 28 U.S.C. 636(b)(1)(a)("a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief,...") and ordering Mason not to communicate with his government, Highlands County Board of County Communications.   "[I]t is hereby ORDERED AND ADJUDGED that Defendants' Motion for Preliminary Injunction is GRANTED...Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case." See Docket Entry No. 201. Additionally, Judge Graham prohibited Mason from requesting public records directly from Highlands County. See Docket Entry No. 201.  Among other things, these orders are blatant violations of the First Amendment.  For legal authority, see Overruling the First Amendment. 
  •   Judge Graham and his Magistrate usurped legal authority by allowing a Magistrate to issue an injunction which prohibited direct communication with the Highlands County government by a non-lawyer. "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). " Judge Graham has been both insular and insolent in his apparent belief that has such authority.  Judge Graham has refused to cite legal authority for these orders on multiple occasions. Docket No. 279; Docket No. 281; Docket No. 407; Docket No. 524; Docket No. 528; Docket No. 634; Docket No. 744; Docket No. 745; Docket No.874 Pg. 2; Docket No. 882; Docket No. 890; Docket No. 928; Docket No. 931. Judge Graham's order enjoys absolutely no support in the legal community as every jurisdiction to have considered the matter has rejected this type of order. See "Litigant's Right to Communicate With Government During Litigation", below  Judge Graham's insolence and obstinacy is exemplified below, see EXEMPLAR OF JUDGE GRAHAM'S HUBRIS, section.  Judge Graham has rejected the authority the United States Supreme Court who stated this type of order is an improper prior restraint of free speech.  See Judge Graham Thumbs Nose at Supreme Court's Rulings on Prior Restraints, below.  
  • Judge Graham and his Magistrate usurped legal authority by allowing a Magistrate to issue an injunction that prohibited a litigant from requesting Public Records under Florida law directly from a Florida Governmental agency, Highlands County Board of County Commissioners.  "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. 201. Additionally, Judge Graham prohibited Mason from requesting public records directly from Highlands County. See Docket Entry No. 246.
  • 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 and 466.  At the very same time, Judge Graham was allowing a plaintiff in another 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.  Judge Graham does not dispute that he intentionally lied.  On December 16, 2004, Docket Entry No. 932, Judge Graham was presented with a letter or request to file a motion stating that he, Judge Graham, had lied, Judge Graham denied the right to file the motion without denying the allegation that he had lied.  See Docket Entry No. 931. Even more incredible, the Eleventh Circuit told two lies on two separate occasions in order to cover for Judge Graham's lie. See Lie# 1 and Lie# 2.
  • Judge Graham allowed scores of other important motions to simply linger without addressing them.  Some of these filings languished for as long as eight months.   See Languishing Motions.
  • Judge Graham refused to rule on a motion for a preliminary injunction by Marcellus Mason.  The motion was submitted on November 24, 1999 (Docket Entry No. 39) and was never ruled on by Judge Graham.  It was made moot on June 20, 2001 when Judge Graham dismissed the case because of alleged out of court communications by Mason with the Highlands County Government. Judge Graham's failure to rule on this motion is willful because on August 23, 2000     Mason submitted a  MOTION  for expedited ruling on prior request for preliminary injunction.  (D.E. #288). This motion was denied without explanation on September 6, 2000.   (D.E. #300).  An appeal of the Magistrate's denial of an expedited ruling was made to Judge Graham on September 21, 2000. (D.E. #333). This appeal was denied on November 2, 2000 by Judge Graham. (D.E. #410).  As late as April 2001, or 17 months after Mason filed the motion, the Eleventh Circuit said a mandamus petition was frivolous, because Mason had no right to have his motion decided.  See No Right To have Motion  Decided.
  • Judge Graham falsely completed a Civil Justice Reform Act Report, "CJRA" to conceal the fact that he had a motion for a preliminary injunction pending for more than 17 months.  As a matter of fact, Chief Judge J.L. Edmondson, rather than investigate the matter simply chose to attack Marcellus Mason by stating the following:
    • 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 .
    See Judicial Misconduct Complaint No. 05-008 and Order.
  • Judge Graham rendered a pre-filing injunction, sua sponte, or without notice and opportunity to respond.  Judge Graham has rejected the authority of the United States Supreme Court who has stated that the right of access to the courts is constitutionally protected and as such that any impingement, infringement, or encroachment on a constitutional requires due process. See "The Importance of Due Process" and "Right of Access To The Courts is Constitutionally Protected", below. On September 20, 2001, Judge Graham rendered a pre-filing injunction against the Plaintiff Marcellus M. Mason sua sponte or own his motion. See Docket Entry NO. 878, (D.E. #878, pg. 3). Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. Judge Graham disagrees with the Eleventh Circuit, U.S. Court of Appeal and all other U.S. Courts of Appeals who have decided cases involving pre-filing injunctions.  See "Case Law On Pre-Filing Injunctions", below.  Additionally, this sua sponte issued pre-filing injunction is invalid because it also makes a "finding of bad faith".   Judge disagrees with the Supreme Court's requirement on due process for making "bad faith findings". See "U.S. SUPREME COURT ON FINDING OF BAD FAITH", below. 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.
  • Judge Graham had previously admitted that a pre-filing injunction lacked a sufficient legal basis.  The Defendants, Highlands County Board of County Commissioners and Heartland Library Cooperative filed a separate action, lawsuit, Case No. 00-14240, seeking among other things, a pre-filing injunction.  On February 13, 2001, Judge Graham accepted his Magistrate's Report and Recommendation which stated: "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).  In the period between February 13, 2001 and September 20, 2001, Mason did not file any new lawsuit in the Southern District of Florida. 
  • Judge Graham has been involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction which ultimately formed the basis of a criminal contempt complaint and conviction. See Framing An Innocent Person. “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).  Equally egregious, the Eleventh Circuit, has used all manner of tactics to avoid reviewing this clearly invalid sua sponte issued pre-filing injunction.  See Sua Sponte page.  
  •  Judge Graham outright lied or stated misleading facts in order to justify rendering a clearly void sua sponte issued pre-filing injunction of September 20, 2001, (DE 878). In order to justify a pre-filing injunction a judge has to prove that the legal process has been abused by the litigant filing an extreme amount of frivolous lawsuits. “Absent extraordinary circumstances, such as a demonstrated history of frivolous and vexatious litigation, or a failure to comply with sanctions imposed for such conduct, a court has no power to prevent a party from filing pleadings, motions or appeals authorized by the Federal Rules of Civil Procedure.” Richardson Greenshields Securities, Inc v. Lau, 825 F.2d 647, 652 (2nd Cir. 1987).  Consequently, in order to meet the legal requirements, Judge Graham lied about the amount of lawsuits filed. At pages 1, 2, and 3 of Judge Graham's sua sponte issued pre-filing injunction, he attempts to list eleven lawsuits that he claims were filed by Mason in the S.D.Fla. Mr. Graham states, “Marcellus M. Mason ("Mason") has filed eleven (11)cases and/or counterclaims in this District…”  For the purpose of justifying the injunction,  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. In each of these cases Mason filed petitions to file the lawsuit without payment of filing fees due to financial hardship, in forma pauperis, "IFP".   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 Mason 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 Mason.  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 Mason 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 Graham files to identify a single lawsuit that Mason that was frivolous. 
  • Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit.  Robert Waters, AUSA, in a three way conversation, stated that Judge Graham would drop the impending contempt charge if Marcellus Mason would drop his lawsuit against Judge Graham, however, Marcellus Mason declined.  Marcellus Mason has complained to the FBI and the U.S. Department of Justice and offered to take a polygraph under the penalties of perjury. 
  • Judge Graham awarded a massive $200,000 in attorney's fees to Highlands County against an indigent plaintiff, Marcellus Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham's speculation about Mason's motive.&  Judge Davis who was originally assigned the case prior to retirement allowing Mason to proceed in forma pauperis.  Judge Graham used the sua sponte issued pre-filing injunction to award $200.000 against Mason, a man Judge Graham knew didn't have the money because he was proceeding in forma pauperis.  The award was based upon a void sua sponte issued pre-filing injunction.  See Docket Entry #882.  Judge Graham had pending summary judgment motions that he could have used to determine whether the lawsuit had merit or not but he refused to do so.  Judge Graham has rejected the authority the United States Supreme Court by inherent power to sanction without due process and by failing to follow binding precedent in awarding attorney's fees in civil rights or Title VII cases, see "U.S. SUPREME COURT ON FINDING OF BAD FAITH" and "Judge Graham Rejects U.S. Supreme Court's Rulings On Awarding Attorney's Fees". Judge Graham expressly stated that he was not going to follow the Supreme Court's requirement: "This takes the case beyond the analysis of frivolity."  See Report and Recommendation, "R&R", (D.E. #882, pgs. 4).  Judge Graham expressly found that the underlying lawsuit was not frivolous and had merit. "However, there remain, as this Court recommended, various viable claims for trial." See Report and Recommendation, (D.E #766, pg. 5), and Order Adopting R&R, (D.E. 791).
  • Judge Graham has repeatedly improperly denied access to the courts by arbitrarily denying in forma pauperis, "IFP", petitions.  In forma pauperis, or "IFP" allow indigents to file lawsuits by waiving filing fees. Judge Graham denied 18 IFP petitions for no stated reason.  Judge Graham absolutely refused to cite any reason for his denials.  See IFP denial history.  These 18 separate acts constitutes a defiance of the United States Supreme Court who has said that in forma pauperis may only be denied if the lawsuit is frivolous or the allegation of poverty is untrue.  See "The United States Supreme Court On In Forma Pauperis", below.  As a consequence,  to the extent that Teflon Don denies IFP to proceed on appeal, Judge Graham has necessarily arrogated his authority by denying appellate review of his lawless decisions. 
  • Judge Graham attempted to circumvent the appellate process by using intimidation. “Mr. Mason advised by the court that he is to no longer file pleadings in this case because it is closed.”  See D.E. 934. On January 9, 2005, Judge Graham issued an order that he termed a "Notice of Hearing" in a civil case, 99-14027 to be held on January 14, 2005. See D.E. 933.  This hearing on a civil motion required U.S. Probation and Lynn Waxman, appellate attorney, in a criminal case to be present.  This hearing was held under the guise of deciding Mason's pending one page request to file a Rule 60(b)(4), Fed.R. Civ. P. motion.  At this hearing, Judge Graham kept saying the case is closed. Judge Graham decided something that day but he refused to put in writing because he knew Mason would attack his ruling, so he had court reporter hand write a threatening letter.  See D.E. 934. Judge Graham knows full well that "[e]ven after a judgment has become final and even after an appeal has been lost, Civil Rule 60(b) gives losing parties additional, narrow grounds for vacating the judgment"  GenCorp, Inc. v. Olin Corporation, 477 F.3d 368;2007 U.S. App. LEXIS 3102 (6th Cir., 2007).  

  • 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)[1], (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).

    • [1] http://mmason.freeshell.org/01-14310/de79.pdf

JUDICIAL INDEPENDENCE: CONCEALING MISCONDUCT

The Eleventh Circuit, U.S. Court of Appeal, has refused to test these allegations of misconduct for veracity, much less remedy them.  This is really an incredible story of dishonesty. The methods employed by the Eleventh Circuit to circumvent legitimate appellate review are many and seem to be only limited by the Eleventh Circuit's imagination.  See mmason.freeshell.org/methods.htm. Additionally, the Eleventh Circuit, primarily Chief Judge J.L. Edmondson, has mocked and contorted the Judicial Misconduct Act by refusing to investigate these allegations of misconduct against Judge Graham even though he knows full well that the appellate process has refused to address these allegations of misconduct.  See Judicial Misconduct Home Page. 

BACKGROUND MATERIAL

  

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

“Plaintiff shall be prohibited from contacting any of the Defendants,span >  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. 

 

 

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. On 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).

 

 

EXEMPLAR OF JUDGE GRAHAM'S HUBRIS

As documented  above, Judge Graham had repeatedly refused to disclose the legal authority to issue the orders prohibiting direct communication between Marcellus Mason and his government, the Highlands County Board of County Commissioners; However, again 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

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 sent 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 rec6rd. 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 Rejects U.S. Supreme Court's  Rulings On Awarding Attorney's Fees

The law on awarding attorney's fees in civil rights cases is controlled by the Supreme Court's case, Christianburg Garment Co. v. EEOC , 434 U.S. 412 (1978).  "In sum, a district court may, in its discretion, award attorney's fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.  Christianburg, 434 U. S. 421 .  [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. "  Christianburg, 434 U. S. 422 .

 

 

The United States Supreme Court On In Forma Pauperis

"The federal in forma pauperis 28 U.S.C. §1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit. The statute protects against abuses of this privilege by allowing a district court to dismiss the case "if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious." Denton v. Hernandez, 504 U.S. 25, 27...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."
Neitzke v. Williams, 490 U.S. 319, 324 (1989). [a] court may dismiss a claim as factually frivolous only if the facts alleged are "clearly baseless," [internal citations omitted] , a category encompassing allegations that are "fanciful," "fantastic, "and "delusional,. [A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them. An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely. Some improbable allegations might properly be disposed of on summary judgment, but to dismiss them as frivolous without any factual development is to disregard the age-old insight that many allegations might be "strange, but true; for truth is always strange, Stranger than fiction. Denton v. Hernandez, 504 U.S. 25 (1992).

 

 

Teflon Don Thumbs Nose At U.S. Supreme Court, Due Process, And Right of Access To The Courts

The Importance of Due Process

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

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

Right of Access To The Courts is Constitutionally Protected

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

Orders Issued Inconsistent With Due Process Are Void

A judgment is void if the rendering court acted in a manner inconsistent with due process of law. Wright & Miller, Federal Practice and Procedure § 2862. "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). 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. E.g., s Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001); U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990);Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997); Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown 84 F.3d 137, 143 (5th Cir. 1996)

Effect of Void Order

“A void judgment is from its inception a legal nullity.” Boch Oldsmobile, at 909 F.2d 657, 661 (1st Cir. 1990). Lops v. Lops, 140 F.3d 927, 941 n. 19(11th Cir. 1998) (“something that is null has no legal or binding force.”); Carter v. Fenner, at 136 F.3d 1000 (5th Cir. 1998)(“[a] void judgement is one which, from its inception, was a complete nullity and without legal effect.”). Anderson v. Dunn, 19 U.S. 204, 217 (1821)(“the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.”);

"The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal." Windsor v. McVeigh, 93 U.S. 274;23 L.Ed. 914 (1876).

 

U.S. SUPREME COURT ON FINDING OF BAD FAITH

"A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees,.." Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991).

 

Judge Graham Thumbs Nose at Supreme Court's Rulings on Prior Restraints

"In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on pure speech. " Providence Journal Co, at 820 F.2d 1348. The presumption of unconstitutionally of prior restraints has been described as “virtually insurmountable” by Supreme Court judges and others. In Re Providence , at 820 F.2d 1348 (citing Near, 283 U.S. at 713).In over two centuries, the United States Supreme Court, composed of nine Article 3 judges, has never upheld a prior restraint involving pure speech; however, in this matter, a statutory judge, Magistrate Judge Frank Lynch, Jr. and Judge Donald L. Graham breezes right through this barrier and issues a prior restraint on pure speech with no problem.

LAW ON PRIOR RESTRAINTS

“[P]ure speech –[is]- speech not connected with any conduct..” In Re Providence , at 820 F.2d 1348. “'Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.'; see also Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The Government 'thus carries a heavy burden of showing justification for the imposition of such a restraint.'” New York Times Company v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971);Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963)) . “[T]he principal purpose of the First Amendment's guaranty is to prevent prior restraints.” In Re Providence at 820 F.2d 1348. “Prior restraints are presumptively unconstitutional and face strict scrutiny.” Burk v. Augusta-Richmond County , 365 F.3d 1247 (11th Cir., 2004). "In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on pure speech. " Providence Journal Co, at 820 F.2d 1348. The presumption of unconstitutionally of prior restraints has been described as “virtually insurmountable” by Supreme Court judges and others. In Re Providence , at 820 F.2d 1348 (citing Near, 283 U.S. at 713). The Supreme Court has refused to uphold a “prior restraint” even when the matter of national security was involved. See New York Times, at 403 U.S. 713, above. In Test Masters Educational Services, Inc. v. Singh, 428 F.3d 559, 578 (Fed. 5th Cir., 2005), the district court “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 Fifth Circuit, (citing Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), defined “prior restraints” thusly: Prior restraints are "administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Id. at 579. The Fifth Circuit then expressly declared: “The district court's order enjoining Singh from having any future communication with the specified persons was a prior restraint.” Id. The Court went on to find:
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. *** The cantankerous relationship between these parties is clearly evident from the record in this case. There is enough evidence presented in the record to justify an injunction order prohibiting Singh from threatening or harassing TES, its employees, its staff, TES's counsel, counsel's employees, or counsel's staff. However, the injunction here went beyond enjoining harassing and threatening conduct. The district court's order swept too broadly when it prohibited all communication between Singh and TES employees, staff or TES's counsel, counsel's employees or counsel's staff. Id at 579-80.
If the Plaintiff in Test Masters has the first amendment right to engage in hostility and vitriol with a private entity, then surely Mason has the same right to engage in hostility and vitriol with a government entity like Highlands County that the First Amendment expressly permits, Judge Lynch’s personal notions of civility notwithstanding. Bernard v. Gulf-Oil Co., 619 F.2d 459, is likewise instructive and analogous to the instant case. “Material unequivocally not protected by the Constitution may be the subject of a prior restraint if sufficient procedural safeguards are provided.” Id. at 471. > Stated alternatively, material unequivocally protected by the Constitution may not be the subject of a prior restraint. Mason’s right to “to petition the government for a redress of grievances” or Highlands County is expressly protected by the First Amendment.If the exigencies of the Sixth Amendment do not lessen the burden on those who seek to justify prior restraints, the interests of a civil litigant cannot do so. (internal citations omitted). The "interest of the judiciary in the proper administration of justice does not authorize any blanket exception to the first amendment." . Thus, the general presumption against prior restraints is not mitigated by a claim that the fair and orderly administration of justice is at stake. Id. at 474. The Magistrate’s heretofore undisclosed interest in rendering the “discovery orders” in the instant case clearly does not even rise to level of the Sixth Amendment interests in Bernard, nor the national security interest in New York Times, above. 

 

 

 

 

Case Law On 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).

 

 

BANNED OUT OF COURT DIRECT GOVERNMENT COMMUNICATIONS

Judge Graham prohibited the following lawful communications and dismissed a lawsuit because of these out of court communications between Marcellus Mason and his government, Highlands County Board of County Commissioners.  See Report and Recommendation, "R&R" (D.E. 766), Order adopting R&R  (D.E 791).  These banned communications included:

 
During the week of February 5, 2001, Plaintiff knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. Plaintiff appeared at the office of Fred Carino, Human Resource Director of Highlands County and a supervisory employee of a named defendant in this action, and demanded to view his personnel file. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County’s counsel.
D.E. 511, ¶6, PG.3)   
OOn February 13, 2001, Plaintiff appeared at Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County’s counsel relevant to its defense of his litigation. 

D.E. 511, ¶7, PG.3)   

OOn February 14, 2001, Plaintiff returned to Fred Carino’s office and demanded to view attorney billing records from Defendant Highlands County’s counsel relevant to its defense of his litigation. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County’s counsel. 

D.E. 511, ¶8, PG.4)   

After reviewing the, records, Mr. Mason penned a note to Mr. Carino stating that he wanted unredacted portions of billing records and if he did not get them he will file a lawsuit by February 16, 2001. 

D.E. 511, ¶9, PG.4)   

Mr. Mason returned to Mr. Carino’s office a second time on February 14, 2001 and knowingly violated this Court’s Orders of June 19, 200 and July 25, 2000. He demanded to view Defendant Highlands County’s Insurance Document of Coverage, a document that had previously been produced to him. This request was made directly to Mr. Carino’s office and not through Defendant Highlands County’s counsel. Notwithstanding, the document was produced to him. 

D.E. 511, ¶10, PG.4)   

During this visit, Plaintiff became loud, aggressive, disruptive, and questioned the need for Mr. Carino’s presence during his review of the document. 

D.E. 511, ¶11, PG.4)   

Plaintiffs conduct in violation of this Court’s Orders of June 19, 2000 and July 25, 2000 require a dismissal with prejudice of all of plaintiff’s claims in the above-referenced matter. 

D.E. 511, ¶15, PG.5)

Since April 3, 2001 - subsequent to the Court’s March 27th Order - Plaintiff has repeatedly personally contacted supervisory employees and/or the individual Defendants about matters related to this case. Specifically, Plaintiff sent e-mail communications directly to supervisory employees of the Defendants, which discussed the “no trespass warnings” that were issued against Plaintiff, Plaintiffs tortious interference claim, as well as Allen, Norton & Blue’s “track record” of litigating appeals (including Eleventh Circuit appeals). (Exhibit 1).

 (D.E. 646, ¶10, PG.3)   

Clearly, Plaintiffs “no trespass” and tortious interference claims were an integral part of Plaintiffs present litigation, and involve the same set of facts that Plaintiff continues to rely on in pursuing his present claims. Indeed, Plaintiff’s Fourth Amended Complaint alleged several causes of action based on the issuance of the “no trespass” warnings against Plaintiff. Although Plaintiff’s “no trespass” claims were ultimately dismissed by the Court (D.E.’s #435; 466), Plaintiff has recently indicated his intent to appeal the Court’s dismissal of all claims in his Fourth Amended Complaint. (Exhibit 2). Consequently, the issuance of the “no trespass” warnings against Plaintiff are still part of this present litigation. 

(D.E. 646, ¶11, PG.4)  

In addition, Plaintiff’s communications regarding Defendants’ counsel’s Eleventh Circuit “track record” clearly have no relevance to his state court claim(s), and pertain only to his federal litigation. 

(D.E. 646, ¶12, PG.4)     

All of Plaintiff’s claims arise from the same set of facts and are all related, and he should simply not be allowed to continuously disregard Orders of this Court and blatantly challenge the Court’s authority. 

(D.E. 646, ¶13, PG.4)   

Plaintiff has demonstrated a blatant disregard and disdain for this Court’s authority, as evidenced by Plaintiff’s statement that “ANYBODY, who supports your position. . . is a racist and is part of the problem. I fear no man!!! This includes white men wearing robes” and “I aint afraid of a white men wearing robes of any color.” (Exhibit 1, e-mails dated 4/03/01 at 10:57 a.m. and 4/06/01 at 8:33 a.m. respectively). 

(D.E. 646, ¶14, PG.4) 

 

CODE OF CONDUCT FOR UNITED STATES JUDGES

Federal Judges are governed by the Code of Conduct For United States Judges.  The following canons of the Code appeared to have been violated or least implicated:

  • A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY . Canon 1.  An independent and honorable judiciary is indispensable to justice in our society.  Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges.

  • A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES.  Canon 2.  

  • A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 2A.  Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code.

  • A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE IMPARTIALLY AND DILIGENTLY Canon 3. 

  • A judge should hear and decide matters assigned, unless disqualified, and should maintain order and decorum in all judicial proceedings. Canon 3A(2). 

  • A judge should accord to every person who is legally interested in a proceeding, or the person's lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding.  Canon 3A(4). 

  • A judge should dispose promptly of the business of the court.  Canon 3A(5).  In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay.

 In U.S. v. Microsoft,  253 F.3d 34, 107 (D.C. Cir., 2001), Judge Thomas Penfield Jackson, was excoriated by the court for the following violations of the code:

CCanon 3A(6) of the Code of Conduct for United States Judges requires federal judges to "avoid public comment on the merits of [ ] pending or impending" cases. Canon 2 tells judges to "avoid impropriety and the appearance of impropriety in all activities," on the bench and off. Canon 3A(4) forbids judges to initiate or consider ex parte communications on the merits of pending or impending proceedings. Section 455(a) of the Judicial Code requires judges to recuse themselves when their "impartiality might reasonably be questioned." 28 U.S.C. § 455(a).

All indications are that the District Judge violated each of these ethical precepts by talking about the case with reporters. The violations were deliberate, repeated, egregious, and flagrant.

 In Microsoft, the court considered the preceding violations of the code to be Judicial Misconduct.  In the fact, the conduct described was labeled "Judicial Misconduct."