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

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Justice Turned On Its Head
Judge Donald L. Graham is Above the Law!!!
 

 

Judge Donald L. Graham

 

This entire blog or website, mcneilmason.wordpress.com, is dedicated to illustrating the extreme measures that judges at the Eleventh Circuit, U.S. Court of Appeal have deployed to keep from disciplining U.S. District Judge Donald L. Graham, "Teflon Don", for abusive behavior and misconduct. Judge Graham has a history of insolence with [dis]respect the United States Supreme Court and binding precedent. See this site, "Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court?".

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Dimitrouleas Reversed While Colleague Judge Donald L. Graham Affirmed by Killing The Appeal, and Eleventh Circuit Uses Unpublished Opinion and Omission(Deception) To Invoke Res Judicata. In each case the Eleventh Circuit chose to deploy an unpublished opinion to affirm and protect Judge Graham while his colleagues suffered reversals in published opinions.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

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

Judicial Independence

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

Judge J. Owen Forrester and the Published Opinion

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

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

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

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

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

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

Judge Donald L. Graham and the Unpublished Opinion

Eleventh Circuit Case No. 02-14646-A

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

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

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

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

See (D.E. #911).

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

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

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

 

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

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

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

The Sua Sponte Issued Pre-Filing Injunction

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

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

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

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

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

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

Right of Access To Courts is Constitutionally Protected

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

Case Law On Pre-Filing Injunctions

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

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

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


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

“Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution." id. 161. "Fairness of procedure is "due process in the primary sense." Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681. In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

Right of Access To Courts is Constitutionally Protected

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

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).

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).

Pre-Filing Injunction

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

Teflon Don Knows he Is Flaunting the Law

Defendant Highlands County filed a lawsuit, Case No. 00-14240, against Mason asking for a pre-filing injunction. However, on January 16, 2001, Judge Graham and his Magistrate Frank Lynch, Jr. said the following:
However, at this point, none those other cases have totally dismissed with prejudice. There are viable claims pending in those cases. * * * While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look for justifying injunctive relief.”
Case No. 00-14240, (D.E. #27, dtd. 1-16-01)(D.E. 33 dtd. 2-13-01). Between January 16, 2001 when Judge Graham made the statement above, and September 20, 2001, when Judge Graham rendered the pre-filing injunction sua sponte, Document No. 878, Mason did not file any new lawsuit. How is possible to go from having "nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look for justifying injunctive relief” to rendering a pre-filing injunction with no new lawsuit filed in between?' Additionally, as further proof that Teflon Don is willfully flaunting the law is the fact that Judge Graham was presented with a motion specifically requesting a due process hearing with respect to the sua sponte issued prefiling injunction of September 20, 2001 on 23, 2002. See Document 914, pgs. 19-24. At page 1, this motion asserts: "The injunction violated Mason’s well-established due process rights. It is inexcusable that a federal judge would knowingly issue this type of injunction in violation of Mason’s due process rights." On January 31, 2003, Judge Graham denied the motion and refused to comply with Mason's due process requests even though Judge Graham was in possession of a motion citing the same cases that are cited on this post.
ORDERED AND ADJUDGED that Plaintiff's Motion to Proceed In Forma Pauperis, Plaintiff's Motion to Disqualify, Plaintiff's Demand to Rescind Inunction and Plaintiff's Motion for Publication (D.E. #914) is DENIED.
Document No. 928. It can not be argued that Judge is not intentionally disrespecting the law.

 

Judicial Misconduct

A feature of this blog is describing conduct that Chief Judge J.L. Edmondson, Eleventh Circuit, and others, do not consider to be judicial misconduct under the Judicial Misconduct and Disability Act, 28 U.S.C. §§ 351-364. This posting will demonstrate that federal judges can intentionally disregard well established law and binding precedent with near absolute impunity. Chief Judge J.L. Edmondson, and others, assert that such acts, even if true, do not constitute judicial misconduct. Moreover, according to Judge Edmondson's interpretation of the law, even if Judge Graham were involved in a pattern and practice of total disregard for clearly established law and binding precedent, such behavior would still not rise to the level of judicial misconduct. See Complaint of Judicial Misconduct No. 05-0011. For more Support, see Complaint Nos. 05-0008, 05-0012, 05-0013, 05-0020, 05-0021. According to Judge Edmondson, even if an invalid sua sponte issued prefiling injunction formed the basis of a criminal contempt complaint and conviction, such conduct would still not be considered judicial misconduct. Switching vernacular for the moment, according to Judge Edmondson there aint no judicial misconduct. Judge Edmondson seems to disagree with his own Judicial Conference who has clearly stated that a pattern and practice of intentionally disregarding clearly established law could be misconduct.

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

http://www.uscourts.gov/library/judicialmisconduct/jcdopinions108.pdf :Pg. 8. Judicial Independence advocates state:
Appellate courts serve as a moderating influence by correcting mistakes made by lower courts. The very function of appellate courts also encourages lower courts to adhere to closely to the law and applicable precedents: If a trial court judge knows that an appellate court is likely to reverse a certain decision, she is less likely to stretch the boundaries of the law.
Constitution Project, THE NEWSROOM GUIDE TO JUDICIAL INDEPENDENCE If the Constitution Project is correct, then Teflon Don should have suffered a reversal on appeal. However, this is not what has happened as the Eleventh Circuit has aggressively fought off all attempts at appellate review of the sua sponte issued pre-filing injunction at issue. See APPELLATE HISTORY: AN EXERCISE IN FUTILITY. Aided by the "unpublished" opinion, the Eleventh Circuit has raised trickery, artifice, and chicanery to new heights or new lows depending upon your point of view. The clear intent of the Eleventh Circuit is not to ever pass on the validity of this sua sponte issued pre-filing injunction and reverse Teflon Don. The Eleventh Circuit has done the schiester lawyer proud.

Constitutional Right of Access To The Courts Generally

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

Case Law On Pre-Filing Injunctions

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

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

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