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Inherent Authority Run Amuck
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There is nothing in the United States Constitution about "Inherent Powers" of the courts. See Article III, below. Essentially the Courts of United States have given themselves "inherent power".
Inherent powers' are defined in Black's Law Dictionary as 'powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from express grants[.]' Black's Law Dictionary 782 (6th ed. 1990).
Purpose: Exposing a Culture of Corruption
Corruption is defined as the: "lack of integrity or honesty (especially susceptibility to bribery); use of a position of trust for dishonest gain". URL: http://wordnet.princeton.edu. This website and related websites, mcneilmason.wordpress.com, donaldlgraham.blogspot.com, exposes a "culture of corruption" within the federal judiciary. This web page is part of a collection of web pages on this website, mmason.freeshell.org, that documents Judicial Misconduct and Abuse by U.S. District Judge Donald L. Graham and the extreme measures that his colleagues at the Eleventh Circuit, U.S. Court of Appeals will deploy to conceal the egregious conduct of Judge Graham. The core allegations of misconduct and abuse by Judge Graham are listed and documented at mmason.freeshell.org/CoreAllegations.htm. There are scores of other pages and documents on this website and they are all interlinked.
The American Bar Association, "ABA", is a major proponent of "judicial independence". The ABA feels so strongly about "judicial independence" that it has established a standing committee called the "ABA Standing Committee on Judicial Independence". According to the ABA judicial independence "is the fundamental principle of our democratic republic that provides for a judiciary free from partisan influences; a judiciary that impartially and fairly applies the facts of a case to the applicable law." See abanet.org/judind/home.html. 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. The legislative process is the proper way to change a particular law. Judicial disciplinary processes permit the removal of judges who violate ethical requirements.
URL: http://www.abanet.org/judind/aboutus/home.html. A necessary corollary of ABA's assertion is that federal judges can and will discipline other federal judges. A major purpose of this website and related websites is to prove that the checks on the federal judiciary are virtually non-existent and are easily undermined by fellow judges. There is little or no accountability within the federal judiciary. The web page, mmason.freeshell.org/methods.htm, is a placeholder and a pointer, or a central starting point to other pages that demonstrate that the behavior of a judicial miscreant, Judge Donald L. Graham, that is not remedied by any of the current methods of judicial discipline. The current methods of federal judicial discipline are:
Summary of the Core Allegations which were before the Eleventh Circuit in all attempts at appellate review includes, but definitely is not limited to, the following:
According to Judge Donald L. Graham, his Magistrate, Frank Lynch Jr., and the Eleventh Circuit, U.S. Court of Appeals, each of them have the inherent authority to simply ignore the decisions of the U.S. Supreme Court, U.S. Statutes, the United States Constitution, the Florida Constitution, and the Florida Statutes whenever they see fit. Judge Graham abused inherent authority in the following manner:
BLACK LETTER LAW AND DEFIANCE OF THE US SUPREME COURT
Judge Donald L. Graham has defied the United States Supreme Court and its Opinions. On September 20, 2001, Judge Graham issued an filing injunction or pre-filing injunction against Marcellus Mason sua sponte. (D.E. #878). This order specifically states: “THIS CAUSE came before the Court sua sponte.” (D.E. #878, pg. 3;). United States Circuit Court of Appeals and other jurisdictions have consistently rejected sua sponte issued pre-filing injunctions because they are offensive to due process. For legal authority, see mmason.freeshell.org/RejectSuaSponte.htm In this same sua sponte issued pre-filing injunction, Judge Graham makes a so-called "finding of bad faith". “It has become clear to the Court that Mason is proceeding in bad faith.. Such activity is in bad faith and will not be permitted by the Court.” (D.E. #878, pg. 5, 6, “Bad Faith” section). According to the U.S. Supreme Court, a finding of bad faith requires due process or notice and opportunity to respond. " A court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” (emphasis added) Chambers v. Nasco, Inc., 501 U.S. 32, 50 (1991)" It is a bedrock principle of the United States that an order issued in violation of due process is void. 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.”); Lops v. Lops, 140 F.3d 927, 941 n. 19 (11th Cir. 1998) (“something that is null has no legal or binding force.”). "'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).
One of the most telling and remarkable things, among many other things, about this sua sponte issued pre-filing injunction is number of times the Eleventh Circuit has refused to review it for validity. The number of times the Eleventh Circuit has refused to review this sua sponte issued pre-filing has set a Guinness world record. See Eleventh Circuit, U.S. Court of Appeals, Sets Guinness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction.
The most blatant abuse of inherent authority by Judge Graham was to concoct a "pre-filing injunction" on September 20, 2001 and use this same illegal and void" pre-filing injunction" to gain a criminal conviction against a person who has never been convicted of any crime . After Judge Graham got tired of having to answer relentless inquiries [Judge Graham has never answered this inquiry] into where he derived the legal authority to tell a party [Marcellus Mason] that he could not communicate with his government directly, or request public records directly from his government under Florida law; Judge Graham issued the "filing injunction" on September 20, 2001. The order is void because it was issued "sua sponte" and without the legally required notice and opportunity to respond, or simple "due process". Moreover, Judge Graham deliberately misstated material facts to justify this "pre-filing injunction". The Eleventh Circuit has consistently and persistently refused to allow Marcellus Mason the opportunity to appeal this "pre-filing injunction". See Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction. Even more outrageous than that the Eleventh Circuit struck an appeal brief because they claim the "pre-filing injunction" was "beyond the scope of appeal" and then turned around used the same "pre-filing injunction" that they struck Marcellus Mason's brief for, to affirm Judge Graham. See Putrid Dishonesty:Beyond the Scope of Appeal. Judge Graham then took this void order or "pre-filing injunction" and got a criminal conviction against Mason. The Eleventh Circuit has used all manner of ploys in "unpublished opinions" to disallow Marcellus Mason a chance at appellate review of this illegal and void "pre-filing injunction". See Eleventh Circuit, U.S. Court of Appeals, Sets Guiness World Record For Refusing to Review Sua Sponte Issued Pre-Filing Injunction.
Judge Graham: I can take away your
right to Communicate with your Government
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
It is obvious that Judge Graham disagrees with the First Amendment. On June 13th and July 6th2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate, Frank Lynch Jr.` 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 .
In record speed*, Magistrate Judge,
Frank Lynch, Jr., granted the motions for preliminary injunctions on June 19, 2000, (DE#201),
and July 25, 2000, (DE#246),
Judge Graham's Magistrate, Frank Lynch issued the following
injunctions, enjoining the Plaintiff, Marcellus Mason, Jr. from
communicating with his government, Highlands County Board of County
Commissioners, directly. Judge Graham's
Magistrate, Frank Lynch, Jr., gave the following directive with Judge
Graham's explicit approval:
[D]efendants' Motion for Preliminary Injunction is Granted in that the Plaintiff shall be prohibited
from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case . Plaintiff shall correspond only with Defendants' counsel .
Moreover, Judge Graham and his Magistrate have the legal authority to deny citizen its right to demand public records, under Florida Law, from the government directly. Consider the following:
[P]laintiff shall correspond only with Defendants' counsel including any requests for public records...See (DE#246).
The United States Congress explicitly excluded Federal Magistrate's from issuing injunctions:
“Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court except a motion for injunction relief,…” 28 U.S.C. § 636 (b)(1)(A).
See Docket Entry No. 407 dated November 2, 2000.
On September 20, 2001, Judge Graham affirmed his "inherent authority" to prohibit direct communication with the government by a non-lawyer and stated: "including continual attempts to directly communicate with the Defendants rather their attorneys, the Court enjoined Mason from any further contact with the Defendants or Defendants' employees. Mason, however, ignored the Court's order and continued to contact the Defendants." Docket No. 878. Imagine that, a citizen communicating with the government!
Judge Graham and his Magistrate has had multiple opportunities to cite legal authority for these orders prohibiting direct communication with the government, but adamantly refuses to do so. It is as if Judge Graham is saying, "You will not communicate with the government directly because I said so, the law and the constitution notwithstanding." Marcellus Mason submitted several motions asking Judge Graham and his Magistrate where they got the legal authority to issue the above orders, and each time Judge Graham his Magistrate refused.
The following is represented of Judge Frank Lynch Jr. and Judge Graham's responses.
ORDER ON PLAINTIFFS MOTION FOR CLARIFICATION (DE #262)
The only explanation Mason has received thus far is the negative cite below: If the Plaintiff was represented, his attorney would know that this is proper procedure. .
Judge Graham Defies the First Amendment and the U.S. Supreme Court
"In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on pure speech. " Providence Journal Co, 820 F.2d 1342, 1348 (1st Cir. 1986). 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.
ON PRIOR RESTRAINTS
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.
v. Gulf-Oil Co., 619 F.2d 459
(5th Cir. 1980), 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.”
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.
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.
The Plaintiff alludes to
this Court's rulings, issued June 19 and July 25, 2000, directing that
the should not contact any of the Defendants or individual Defendants,
including their supervisory employees, regarding any matter related to
this case except through their counsel of record. If the Plaintiff was
represented, his attorney would know that this is proper procedure. The
Plaintiff questions this Court's authority to enter an "injunction" as
he calls it preventing him from contacting the parties directly . This
Court has entered numerous orders on this issue in ruling on
Plaintiff's many requests for clarification/to 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. See
(DE#766 , pg 3,
This Court's order of July 25, 2000 further provided that any violations will result in sanctions including recommendation of dismissal with prejudice . In their Motions for Sanctions, Defendants contend that the Plaintiff has violated the June 19th and July 25th Orders in that he has continued to communicate with the Defendants and/or their supervisory employees both personally and through e-mail . See (DE#766 , pg 3, ¶6), (DE#791).
(DE#878), dtd. September 20, 2001
Graham has concluded that Mason was involved in “vexatious and relentless litigation” based upon purely unauthenticated email. 99-14027, (Doc. 878, pgs. 4-6). “Under Fed.R.Evid. 901(a), documents must be properly authenticated as a condition precedent to their admissibility ‘by evidence sufficient to support a finding that the matter in question is what its proponent claims.’" U.S. v.. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000). Mason has consistently denied authoring these emails, in fact, Mason has specifically informed the Court that the Defendants and their counsel were fabricating email and attributing them to this Petitioner. 99-14027, (DE #167)See also (DE #661, Exhibit B, Attached thereto, page 2, ¶6);(DE#803);. However, the Court declined to do anything about it. The Court used its “inherent” or “mystical” powers and authenticated them anyway. 99-14027, (DE #174). The District Court, or Donald L. Graham, supports his decision with quotations from unauthenticated and fabricated email like:
"Anybody who supports your position on this matter is a racist and is part of the problem. I fear no man.!! This includes white men wearing robes.";
2)"You don't have enough Insurance and smart lawyers to outrun the law and defeat me.";
3)"I ain't going to have a handful of white bigots run over me.";
4)"Now go call your daddy in Fort Pierce and see if he can get you out of this mess.
5)".. the hell I would give them, hell like you are getting ain't going to be bully by no racist white man." (Case Number 99-14027, D.E. #646).
Judge Graham's so-called “bad faith” fails the MANDATORY due process requirement. In a bit of hubris, Judge Graham stated; “THIS CAUSE came before the Court sua sponte.” (DE#878). In the entirety of the document there is no mention of notice and opportunity to be heard prior to the issuance of this order. Sua Sponte issued pre-filing injunctions are void because they are offensive to due process. See mmason.freeshell.org/SuaSponte.htm. At page 3 of this order, Judge Graham claims to have inherent authority to issue pre-filing injunction and make a "finding of bad faith". “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.” Byrne v. Nezhat, 261 F.3d 1075 (11th Cir. 2001)(quoting US Supreme Court Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991)). “In addition, the accused must be given an opportunity to respond, orally or in writing, to the invocation of such sanctions and to justify his actions.” In Re Mroz, 65 F.3d 1567,1575 (11th Cir. 1995). For more discussion, see mmason.freeshell.org/badfaith.htm .
willing to lie or at best, tell a half truth to justify this injunction, for example, Judge Graham states:
Plaintiff Marcellus M . Mason ( "Mason") has filed eleven (11) cases and/or counterclaims in this District, all against either the Highlands County Board of County Commissioners, the Highland Library Cooperative and/or various board members or employees of the County and Library .(collectively the "Defendants"). Each case relates to his prior employment by Defendants and Defendants' treatment of Mason after his termination . See (DE#878, pg. 3)
The record clearly states that Mason only "filed" four lawsuits. These four lawsuits were consolidated into one lawsuit, Case No. 99-14027-CV-Graham. See litigation, or Lawsuits Filed.
Judge Graham refused to rule on the merits of the case.
On June 20, 2001, when Judge Graham dismissed this case, both the Plaintiff and the Defendants had summary judgment motion spending that the district court failed to act on. (DE # 507); (DE # 667); (DE# 668); (DE # 706);(DE # 797);(DE # 769);(DE # 770);(DE #785).
Judge Graham and his Magistrate had previously ruled that such an injunction was improper.
Highlands County specifically asked for the type injunction that Judge Graham concocted on September 20.2001. However, on February 13, 2001 and January 16, 2001, Judge Graham and Judge Graham's own Magistrate stated: “While there are other pending cases between these parties, there is nothing near the extent of the litigation which this Court and the Eleventh Circuit Court of Appeals usually look to for justifying injunctive relief.” See Case No. 0014240 (DE 27, pg. 3)(DE 33), URL: http://geocities.com/mcneilmason/secret/00-14240/de27.pdf, http://geocities.com/mcneilmason/secret/00-14240/de33.pdf. In the period between February 13, 2001 and September 20, 2001, I did not file any lawsuit in the S.D. FL.
Judge Graham: I can make you pay $200,000 in attorneys' fees to heavily insured Government Defendants based solely upon my mere speculation about your motives. I don't give a damn if you had a meritorious lawsuit and refused to rule on pending summary judgment motions. I don't give a damn if you were proceeding in forma pauperis in this matter and you are unemployed. See (DE #882).
Judge Graham and his Magistrate used a concocted order and injunction, (DE#878), rendered on September 20, 2001. to justify awarding attorneys' fees to the government defendants on a case that was closed on June 20, 2001. Specifically Graham and his Magistrate stated:
Judge Graham specifically found this present case to be "vexatious and relentless litigation on the part of Mason. " DE #882, pg. 2).Judge Graham refused to rule on the merits of the case.
Judge Graham's order of September 20, 2001, also makes a specific finding of bad faith. DE #882, pg. 3).
On June 20, 2001, when Judge Graham dismissed this case, both the Plaintiff and the Defendants had summary judgment motion spending that the district court failed to act on. (DE # 507); (DE # 667); (DE# 668); (DE # 706);(DE # 797);(DE # 769);(DE # 770);(DE #785).
Judge Graham has eschewed the dictates of the Eleventh Circuit,
his superiors, which have stated:
Sanction orders must not involve amounts that are so large that they seem to fly in the face of common sense, given the financial circumstances of the party being sanctioned. What cannot be done must not be ordered to be done. And, sanctions must never be hollow gestures; their bite must be real. For the bite to be real, it has to be a sum that the person might actually pay. A sanction which a party clearly cannot pay does not vindicate the court's authority because it neither punishes nor deters.Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332 (11th Cir. 2002).
In direct contravention and disrespect of the law, Judge Graham awarded the Defendants a whopping $200,000 in attorneys' fees when he knew Marcellus Mason was proceeding in forma pauperis (See Docket Entry No. 3, awarded by retired Judge Edward Davis before Graham took over the case) and he knew Marcellus Mason was unemployed, and further, that Marcellus Mason's bills were in arrears. In fact Judge Graham's court stated:
The Plaintiff has filed numerous affidavits seeking in forma pauperis status in this and in the many other lawsuits that he has filed. The District Court has denied his request for in forma pauperis status in respect to filing of his lawsuits. DE #882, pg. 6).
Based upon the financial affidavits filed by the Plaintiff herein, this Court finds it hard to believe that he could pay an award of $403,350.00 in attorney's fees . DE #882, pg. 7).
Plaintiff does not appear to have the financial ability to pay anything. Based upon all of the foregoing, this Court is going to recommend to the District Court that the total attorney's fees of $403,350 .00 be reduced to a total of $200,000.00. DE #882, pg. 8).
Clearly, Judge Graham and his Magistrate have exhibited extreme arrogance and hubris.
Judge Graham made his own standard for awarding attorney's fees. For example, Judge Graham's Court stated: “This takes the case beyond the analysis of frivolity.” (DE#882, pg. 4, para. 9). It is settled law that a Plaintiff may not be charge attorneys' fees unless his claims are totally without merit. “[A] plaintiff shouldn't 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. And, needless to say, if a plaintiff is found to have brought or continued such a claim in bad faith, there will be an even stronger basis for charging him with the attorney's fees incurred by the defense.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422(1978). “However, to give meaningful effect to the private civil rights enforcement scheme in Title VII, fees may be awarded to a prevailing defendant in a Title VII case only when an action is unreasonable, frivolous, meritless, or vexatious.” Songer v. St. Helena Unified School District, et al., 2002 U.S. App. LEXIS 17555,*2-3 (9th Cir. 2002); Saman v. Robbins, 173 F.3d 1150, 1157 (9th Cir. 1999); Bass v. Southwestern Bell Telephone Inc., 817 F.2d 44 (8th Cir. 1987); Carlile, III, v. Conoco, Inc., 2001 U.S. App. LEXIS 26498,*9 (10th Cir. 2001); Riddle v. Egensperger, 2001 U.S. App. LEXIS 20889,*6-7 ; 266 F.3d 542; 2001 FED App. 0341P (6th Cir. 2001).
On June 20, 2001, 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).
The Defendants did not prevail on a single issue. Secondly, attorneys' fees should have been denied because the Plaintiff survived multiple Rule 12(b)(6) motions to dismiss. See (DE #191);(DE #192); (DE #227); (DE #45); (DE #466).
It is well-settled law that if a litigant has a valid claim, then the litigant can not as a matter law be guilty of bringing his action(s) in bad faith. Contrary to Judge Graham's personal opinion, the United States Supreme Court has expressly stated that a well founded lawsuit may not be enjoined even if the Plaintiff has a bad motive or a retaliatory motive in bringing the suit. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983)("The filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff's desire to retaliate against the defendant for exercising rights protected by the Act."). Bill Johnson's Restaurants,
We now outline a two-part definition of "sham" litigation. First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized under Noerr, and an antitrust claim premised on the sham exception must fail. 5 Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation.
"A winning lawsuit is by definition a reasonable effort at petitioning for redress and therefore not a sham." id. 60, n.5. "A suit has a reasonable basis in fact if it raises "a genuine issue of material fact that turns on the credibility of witnesses or on the proper inferences to be drawn from undisputed facts." Id. at 745, 103 S.Ct. at 2171. A suit has a reasonable basis in law "if there is any realistic chance that the plaintiff's legal theory might be adopted." Johnson & Hardin Company v. National Labor Relations Board, 49 F. 3d 237 (6th Cir. 1995).
The only pertinent exception for present purposes is the court's inherent authority to award fees when a party litigates frivolously or in bad faith. (internal citations omitted) The bad faith exception permits an award upon a showing that the claim is ‘entirely without color and has been asserted wantonly, for purposes of harassment ordeal, or for other improper reasons.’ Neither meritlessness alone, nor improper motives alone, will suffice. ***Hostility between parties or their counsel ought not to invalidate a lawsuit brought to obtain proper legal relief for potentially meritorious claims.” Colombritov. Kelly, 764 F.2d 122 (2nd Cir. 1985). " Courts will generally not inquire into the motives which actuate the plaintiff in bringing his action, if he has a legal right which he seeks to protect. It is no defense to a valid cause of action that the motive or ulterior purpose of the plaintiff in bringing the suit is based on animosity or malice. Where the plaintiff shows aright to the relief sought, it is immaterial that he is seeking it for purposes other than the ascertainment and enforcement of the rights which here lies." 1 Fla.Jur. 2d, Actions, Section 29, Page 289. See also CHI. R.I. & PAC. RY. v. Dowell, 229 U.S. 102, 114 (1913) (“If the plaintiff had a cause of action which was joint and had elected to sue both tort-feasors in one action, his motive in doing so is of no importance.”); Chi., Rock Island RY. v. Whiteaker, 239 U.S. 421, 424-5 (1915) (“ the motive of plaintiff, taken by itself, does not affect the right to remove" and that "if there is a joint liability he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right.“); Chicago, Rock Island & Pacific Railway Company v. Schwyhart("Again, the motive of the plaintiff, taken by itself, does not affect the right to remove. If there is a joint liability, he has an absolute right to enforce it, whatever the reason that makes him wish to assert the right."); Glorsky v. Wexler, 142 N.J. Eq. 55, 57 (1948) (“[a]n improper motive cannot defeat the enforcement of a lawful right “); Nika v. Danz, 199 Ill.App.3d 296(1990) (“Plaintiff is correct that a party's bad motives in commencing an action are not a valid defense to the action and are immaterial “); Williamson v. Osenton, 232 U.S. 619, 622-3(1914) (“[U]sually the court will not inquire into the motives of a party in doing an act such as making an assignment or changing his domicil, the court will not hold that one is not a citizen of a State when, in fact, he is a citizen, solely because his purpose in becoming such a citizen was to enable him to bring a suit.”).
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
* To appreciate the speed at which these preliminary injunctions were granted, one must consider that on the very day, June 19, 2000, that the Defendants asked the Magistrate to grant them injunctions prohibiting direct communication with the government, Mason had a motion for a preliminary injunction pursuant to Title VII or the Civil Rights Act of 1964. This motion was submitted on November 24, 1999. Judge Graham refused to rule on this motion as this motion was never decided and Judge Ed Carnes, Eleventh Circuit, has stated that Mason does not have a right to have his motion decided. For more discussion on this matter, see No Right to have Motion Decided.