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"Unpublished Opinions" that violate clearly established law and are offensive to the "rule of law"
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A comprehensive look at the misconduct of Judge Graham and how the Eleventh Circuit conspires to conceal this misconduct.
TRICKERY PAGE
Tricks Used by the Eleventh Circuit to Undermine Appeal Rights
JUDGE EDMONDSON MAKES MOCKERY OF JUDICIAL MISCONDUCT COMPLAINTS
Underming an Appeal Right
See how the Eleventh Circuit undermines an appeal that attacks  Judge Donald L. Graham for misconduct. The Allegations of misconduct never reach the light of day.  Additionally, the Eleventh Circuit is also adept at undermining a petition for mandamus to conceal Judge Graham's misconduct. 
ABUSE OF INHERENT AUTHORITY BY JUDGE DONALD L. GRAHAM
Judge Graham's Blog
A quick summary of Judge Donald L. Graham's Lawless and Arrogant Behavior
Refusal to Discuss Appellate Issues
Describes how the Eleventh Circuit evades  issues on appeal in order to get the desired outcome.  The Eleventh Circuit is quite adept at this tactic. 




Judges ED CARNES, CHARLES R. WILSON, and PHYLLIS A. KRAVITCH:

"We need not discuss what  District Court Judge Donald L. Graham did because he is absolutely immune"

Note:

This web page is also available at, FEDERAL JUDGE VIOLATES FIRST AMENDMENT, TENTH AMENDMENT RECEIVES ABSOLUTE IMMUNITY, which is better written and organized.  This page is gradually being phased out.  

A new lawsuit against U.S. Dist. Judge is being considered and the case for abrogating absolute immunity is fully set forth at: U.S. Dist. Judge Donald L. Graham: A Test Case For Abrogating Or Modifying Absolute Immunity.


In Yet Another Landmark "unpublished Opinion", the Eleventh Circuit refuses to discuss what Judge Graham did or the legality of what Judge Graham did.  In a mere conclusory fashion, it simply asserts, by fiat, that Judge Graham has absolute immunity.

PUTRID AND BLANTANT DISHONESTY
Among other things, Judge Donald L. Graham is a liar and a bully. Judge Graham's miscreant behavior is only matched by other Federal Judges attempt to conceal his blatant misconduct.  For a fully documented case study of Judicial Misconduct and how federal judges mock the laws and rules with respect to punishing rogue federal judges. See mmason.freeshell.org/methods.htm.


DOCUMENT CONTENTS






IMMUNINITY FOR DISRESPECTING THE LAW-U.S. CONSTITUTION AND STATUTES


Judge Graham and his Magistrate, Frank Lynch, Jr. were given immunity for totally disrespecting the U.S. Constitution and the Congress by simply ignoring statutes passed by Congress. Judge Donald L. Graham and his Magistrate, Frank Lynch, Jr., violated the following:
  • (1) 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 injunctive relief... 28 U.S.C. § 636(b)(1)(a)


  • 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.  Amendment I, U.S. Const. 


  • The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. 
  • Amendment X, U.S. Const.  

Specifically, Judge Graham, Magistrate Judge Frank Lynch, Jr. are of the opinion that a federal magistrate can:

  • Issue an injunction.

  • Prohibit direct communication with the government, Highlands County Board of County Commissioners, Sebring, FL.

  • Make rules regarding Florida Public Records Act, where the federal government has absolutely no jurisdiction.

“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).   

 

“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”  Case No. 99-14027-CIV-Graham, (DE #246).


PRE-ANALYSIS GUIDE
The central question to ask when you read the "opinion" below is:  What is Judge Donald L. Graham given absolute immunity from?  From reading the "opinion", you have absolutely no idea what Judge Graham did, consequently, a reasonable-minded person can only come to the same conclusion as the Eleventh Circuit.  The Eleventh Circuit simply ignores all arguments against absolute immunity. 

When one reads the arguments made by the Assistant US Attorney for Judge Graham having immunity, the puzzle starts to fill in little more, however one is still left with the question:
What is Judge Donald L. Graham given absolute immunity from?  The tactic used by the AUSA is somewhat amusing in that she simply parses or peruses the complaint looking for phrases that are prejudicial and sentences that will not overcome judicial immunity.  She does not respond to the substantive legal arguments in the Complaint or the Appeal brief as to why Judge Graham does not have absolute immunity.




QUESTION #1:  DOES THE MERE FACT THAT A JUDGE DONS A ROBE  AND SITS IN THE COURTHOUSE AND DRAFTS ANY ORDER HE SEES FIT ENTITLE HIM OR HER TO JUDICIAL IMMUNITY?

QUESTION #2:  IS A JUDGE ACTING IN A JUDICIAL CAPACITY IN A CIVIL SUIT WHEN HE RENDERS AN ORDER PROHIBITING DIRECT COMMUNICATION WITH THE GOVERNMENT OUT OF COURT BY A PRO SE PLAINTFF, OR WHEN HE PROHIBITS DIRECT REQUESTS TO THE GOVERNMENT FOR PUBLIC RECORDS UNDER FLORIDA LAW?



LINKED AND REFERENCED DOCUMENTS ONLINE

  1. ORIGINAL COMPLAINT FILED IN DISTRICT COURT.  The complaint was filed in state court and removed to fedeal court by Judge Graham so that U.S. District Judge Moore could hear the case.  The Complaint was subsequently amended, but the core allegations against Judge Graham remained intact. 
  2. JUDGE GRAHAM'S OR APPELLEES' BRIEF
  3. APPELLANT'S OR MARCELLUS MASON'S BRIEF
  4. THE ELVENTH CIRCUIT'S OPINION
  5. DIRECT GOVERNMENT SPEAKING PROHIBITIONS OR INJUNCTIONS RENDERED BY JUDGE GRAHAM.  Injuction dated June 19, 2000, (D.E. #201)Injunction dated July 25, 2000, (D.E. #246)





Eleventh Circuit's
Unpublished Opinion, Case No. 01-14310

The district court correctly dismissed the claims against District Court Judge Graham, Magistrate Judge Lynch, and attorneys Kojos and Sorolis for failure to state a claim.  Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a claim if it is clear that, as a matter of law, no set of facts consistent with the pleadings could be proven that would entitle the plaintiff to relief.  See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). <>Viewing the facts in a light most favorable to Mason, we find that he fails to state a cognizable First Amendment claim against Judges Graham and Lynch that would entitle him to relief under § 1983, § 1985 or § 1986. Moreover, judges are entitled to absolute judicial immunity for all acts undertaken in their official capacity unless they acted in "clear absence of all jurisdiction." See Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000).  Neither party disputes that the alleged constitutional violations arose out of actions taken by Judges Graham and Lynch in their official capacities.  While Mason alleges that the orders issued by both judges were "illegal and void ab initio" he fails to plead any facts that show that the judges did not act within their legitimate jurisdiction. Therefore, absolute immunity precludes § 1983, § 1985 and § 1986 claims against Lynch and Graham.
judicial
 
 
 THE US ATTORNEY'S CLAIM FOR JUDICIAL IMMUNITY
If you read the brief by Judge Graham's attorney, Assistant U. S. Attorney, Kathleen M. Salyer, you won't be able to tell what Judge Graham is being sued for.  Ms. Salyer uses a slick technique called "prevarication" by diverting attention away from the central point, or in this case, the reason why Judge Graham was sued.   Judge Graham was sued because he issued two injunctions that the Plaintiff/Appellant asserted violated his ABSOLUTE First Amendment right to communicate with the government directly.  The following are the factual reasons AUSA Salyer says Judge Graham has absolute immunity: 

In this case, all of the allegations in the complaint concerning Judge Graham and Magistrate Judge Lynch involved acts in their official capacities. All three counts in the complain concerning these defendants (Counts 14-16), arose from their involvement as the district court judge and magistrate judge, respectively, assigned to Mason v. Heartland Library Cooperative et al., SDFL Case No. 99-CV-14027, Graham/Lynch (see R1:31 at 110-79; see also R1:31 at  114 ("[t]his case was originally assigned Honorable Judge Davis and subsequently reassigned to Donald L. Graham") ; R1:31 at 115 ("Frank Lynch was assigned as the Magistrate Judge shortly after the lawsuit was filed"). Thus. under the first prong of the Stump test, both defendants are entitled to absolute immunity.

  

As to the second prong, there are no allegations in the complaint that these defendants acted in the clear absence of all jurisdiction. The allegations in the complaint alleged only that Magistrate Judge Lynch failed to offer proper legal support for certain orders (sec R1:31 at  120, 123, 126, 139, 141), that he was without the legal authority to issue an injunction (id. at  122); that both defendants issued orders that allegedly were "illegal and void ab initio" (see id. at  128, and had no jurisdiction with respect to the Florida Public Records Act (see id. at  130, 132, 158); and that Judge Graham failed to address certain legal issues in a final order in Case No. 99-CV-14027 (see id. at  146). These allegations simply do not amount to claims of extrajudicial acts on the part of either defendant that would defeat a claim of absolute immunity. See Bolin, 225 F.3d at 1239 (judicial immunity applies even where judges act are in excess of his or her discretion, provided the judge does not act in "clear absence of all jurisdiction"). Thus, the district court properly dismissed Masons complaint as frivolous for failure to state a claim upon which relief could be granted.

 
 
 

ACTS COMMITTED BY JUDGE GRAHAM THAT PROMPTED THE LAWSUIT
 
 

APPELLANT'S OR MARCELLUS MASON'S BRIEF AND LEGAL ARGUMENTS AGAINST JUDICIAL IMMUNITY OR ABSOLUTE IMMUNITY


Pages 26-27, Initial Brief, asserts the following facts which abrogates any judicial or absolute immunity:

 

1.       Defendants Graham and Lynch do not have absolute immunity. 

Mason repeatedly attacked these illegal orders, 99-14027, (Doc. 201)(Doc. 246), and the district court has adamantly refused to cite legal authority for its actions each time.  This case was dismissed based upon the Defendants’ motions for sanctions in the form of dismissal and the sole basis for the dismissal of this action was Mason’s alleged violations of court orders, (Doc. 201);(Doc. 246).  See 99-14027, (Doc. 511);(Doc. 646);(Doc. 766);(Doc. 791).  The Appellees have failed to argue the legality of the court orders that led to the dismissal of this case, (Doc. 201);(Doc. 246).  These orders, (Doc. 201);(Doc. 246), stated:

“Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.”  (DE #201).   

 

“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”  Case No. 99-14027-CIV-Graham, (DE #246).

           

Defendants Graham and Lynch’s sole factual basis for claiming absolute immunity is the mere assertion that:

What is certain is that the judges' actions with respect to Plaintiff all occurred within the context of the civil case which was properly pending before the court.

 

Defendants Graham and Lynch offer no other facts to support their claim of absolute immunity.  The Defendants have utterly failed in their legal duty to explain, nor have they even attempted to explain, why they should be afforded absolute immunity.  The mere fact a decision was made “within the context of the civil case which was properly pending before the court” does not entitle the Judge to absolute immunity.  See Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997)(rejecting absolute immunity for comments made to the press about a pending case properly before the court.); Harper v. Merckle, 638 F.2d 848 (5th Cir. 1981)(communications to the press and to city officials not afforded absolute immunity even though Judge had criminal proceeding pending).  Essentially Graham and Lynch have stated that they have absolute immunity merely because they said so, and Plaintiff or nobody else need question their unsupported legal conclusions.  Respected jurists, who are not delusional, have stated that this type of response is simply not good enough.  “But the conduct of a judge surely does not become a judicial act merely on his own say-so.  A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity.”  (quoting Justice Stewart, dissenting) Stump v. Sparkman, 435 U.S. 349, 367 (1978).  “The proponent of a claim to absolute immunity bears the burden of establishing the justification for such immunity.”  Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993)

Pages 27-41, Initial Brief, asserts the following legal reasons why judicial or absolute immunity for Judge Graham is not appropiate:

Some rights are so clearly established that case law is not necessary.  The Eleventh Circuit has has expressly stated:

Case law is not always necessary to clearly establish a right. A right may be so clear from the text of the Constitution or federal statute that no prior decision is necessary to give clear notice of it to an official.  Also, a general constitutional rule set out in preexisting case law may apply with obvious clarity to the specific circumstances facing the official.  The official's conduct may be so egregious that an objective and reasonable official must have known it was unconstitutional even without any fact-specific caselaw on point.

Rowe v. Fort Lauderdale, 2002 U.S. App. 885, *19 n. 10, 15 Fla. Weekly Fed at C241 n. 10 (11th Cir. 2002).

 

GENERAL PRINCIPLES OF ABSOLUTE IMMUNITY

“As a class, judges have long enjoyed a comparatively sweeping form of immunity, though one not perfectly well defined.”  Forrester v. White, 484 U.S. 219, 226 (1988).  “A long line of this Court's precedents acknowledges that, generally, a judge is immune from a suit for money damages.”  Mireles v. Waco, 502 U.S. 9, 10 (1991).  “[I]mmunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for  nonjudicial actions, i.e., actions not taken in the judge's judicial  capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.”  Id. at Pg. 12. 

 

  1.  The judges’ acts were not judicial in nature.

The relevant cases demonstrate that the factors determining whether an act by a judge is a 'judicial" one relate to the nature of the act itself i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.”  Stump v. Sparkman, 435 U.S. 349,363 (1978).  “It is the nature of the function performed - adjudication - rather than the identity of the actor who performed it - a judge - that determines whether absolute immunity attaches to the act.”  Forrester v. White, 484 U.S. 219, 220 (1988).  “An act is non-judicial if it is one not normally performed by a judicial officer or if the parties did not deal with the judge in his official capacity.”  King v. Love, 766 F.2d 962 (6th Cir. 1985).  See also Mireles v. Waco, 502 U.S. 9, 12 (1991); Emory v. Peeler, 756 F.2d 1547, 1553 (11th Cir. 1985); Slavin v. Curry, 574 F.2d 1256, 1263 (5th Cir. 1978).  The mere fact that a judge commits an act does not make the act judicial in nature.  In King v. Thornburg, 762 F. Supp. 336, 341-2 (S.D.Ga. 1991)(citing Harris v. Deveaux, 780 F.2d 911 (11th Cir. 1986), the Court, following the dictates of the Eleventh Circuit Court of Appeals, focused on the following four factors in determining whether a judge's conduct constituted a judicial act:

 (1)the precise act complaint of . . . is a normal  judicial function;

(2) the events involved occurred in the judges chambers;

(3) the controversy centered around a case then pending  before the judge; and

(4) the confrontation arose directly and immediately out of a visit to the judge in his official capacity.

Applying these factors to the instant case yields that the trial court violated three of the four prongs.  Specifically, it is not a judicial function for a United States District Court to direct that the Plaintiff, a non-lawyer, must notify a private for profit attorney in order to request Public Records under Florida Law.  Defendants have not cited any case in the entire history of the United States where any other federal judge felt that he or she has this power.  As to the second prong, the events that led to the issue of the orders in question did not occur in the Judge’s chambers, or in any courtroom.  Presumably, the orders in question were issued in the Judge’s chambers, but the alleged conduct occurred out of the presence of the Court and at least 80 miles away from the Fort Pierce Division, S.D.Fla.  The controversy did not arise directly and immediately out of a visit to the judge in his official capacity.  The controversy arose out of an alleged visit to the Plaintiff’s own government in his hometown of Sebring, Florida, which is at least 80 miles away from Fort Pierce. 

            The orders in question were not “judicial in nature” because there was absolutely nothing to adjudicate because Mason has a First Amendment right to communicate with his government without seeking the permission of private for profit attorneys.  The orders of June 19, 2000 and July 25, 2000, (Doc. 201), (Doc. 246), are void because they are unconstitutional.  The Southern District of Florida has explicitly adopted the Rules Regulating The Florida Bar.  See Rule I, Standards For Professional Conduct[1] (“Acts and omissions by an attorney (emphasis added) admitted to practice before this Court, individually or in concert with any other person or persons, which violate the Rules of Professional Conduct, Chapter 4 of the Rules Regulating The Florida Bar shall constitute misconduct and shall be grounds for discipline…”).  See also Rule 3, Retention Of Membership In The Bar Of This Court[2].  The pertinent comments to Rule 4-4.2, R. Regulating Fla. Bar specifically states the following:

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.

 

“[T]he particular phraseology of the constitution of the United States confirms and strengthens the principle,  supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument."  Marbury v. Madison,  1 Cranch 137 (1803).  “The limits placed by the First Amendment on the Government extend to its judicial as well as legislative branch.”  Equal Emp. Opp. Comm. v. The Catholic Univ., 83 F.3d 455 (D.C. Cir. 1996)(citing Kreshik v. Saint Nicholas Cathedral of the Russian Orthodox Church of North America, 363 U.S. 190, 191 (1960)).  Mason has a plenary right to petition the government about any subject he so desires and is never required to seek the permission of private for profit attorneys that live 90 miles away in order to speak to his government.  “It is fundamental that the First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”  Legal Services Corporation v. Velazquez, 531 U.S. 533, 548 (2001).  Mason did not lose his right to communicate with the government directly when he filed his lawsuit.  The district court punished the Plaintiff for exercising his right of “free speech” by dismissing a meritorious lawsuit.  99-14027, (Doc. 766)(Doc. 791).  Mason has a clear right to communicate with his government about the matters in this controversy, litigation notwithstanding.  “[T]here is nothing that prohibits one party to a litigation from making direct contact with another party to the same litigation.  These rules are designed to regulate the conduct of nonlawyers, and simply do not apply to the conduct of nonlawyers.”  E.E.O.C. v. McDonnell Douglas Corp., 948 F.Supp. 54, 55 (E.D.Mo. 1996).  The communication between the government and an individual is not generally subject to judicial oversight.  Mason had no reasonable expectation that a federal judge would attempt to administer the Florida Public Records Act.  See Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979)(“ Such acts were not judicial because they were not functions normally performed by a judge, and were not "to the expectations of the parties"”);Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997); Harper v. Merckle, 638 F.2d 848 (5th Cir. 1981).  Every jurisdiction in the United States has affirmed a citizen’s right to petition the government even in the midst of bitter litigation.  See 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);  In Re Discipline Of Schaefer, 117 Nev. Adv. Op. No. 44, 36173 (Nev. 2001); In Re Hurley, Case No. No. 97-6058 SI, (8th Cir. 1997); Jones v. Scientific Colors, Inc., Case Nos. 99 C 1959/00 C 171 (N.D.Ill. 2001); 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);  Restatement of the Law (Third) The Law Governing Lawyers, §99. Cmt. K., pg. 76. Reynoso v. Greynolds Park Manor, Inc, 659 So.2d 1156, 1160 (Fla.App. 3 Dist. 1995). 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 (5th Cir. 1993); 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).  There has been no other competent court of jurisdiction in the entire history of the United States to direct a non-lawyer to seek the permission of a private for profit lawfirm in order to communicate with his government. 

            Previously, the Appellees have inferred that a federal judge has the “inherent power” to regulate Mason’s out of court and private communications with his government, however this assertion is sadly mistaken and counter to the Supreme Court’s opinions.  (Doc.3 , pg. 9)[3]; Defendants Koji and Sorolis Response To Plaintiff’s Motion for Summary Judgment, pg. 9);(Doc. 3, pg. 3). “It is true that the exercise of the inherent power of lower federal courts can be limited by statute and rule, for "[t]hese courts were created by act of Congress."  Chambers v. NASCO at 501 U.S. 47.  “What the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly.”  Rutan v. Republican Party Of Illinois, 497 U.S. 62, 77-78 (1990).  “The First Amendment would, however, be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints so long as no law is passed that prohibits free speech, press, petition, or assembly as such.  We have therefore repeatedly held that laws which actually affect the exercise of these vital rights cannot be sustained merely because they were enacted for the purpose of dealing with some evil within the State's legislative competence, or even because the laws do in fact provide a helpful means of dealing with such an evil.”  Mine Workers v. Illinois Bar Assn., 389 U.S. 217 (1967).  “The right to petition government for redress of grievances — in both judicial and administrative forums — is ‘`among the most precious of the liberties safeguarded by the Bill of Rights.’  Because of its central importance, this right is ‘substantive rather than procedural and therefore cannot be obstructed, regardless of the procedural means applied.’"  Graham v. Henderson, 89 F.3d 75 (2nd Cir. 1996) (quoting United Mine Workers v.  Illinois State Bar Ass'n, 389 U.S. 217, 222 (1967)). 

            The Defendant judges’ acts were of an administrative, legislative, and prosecutorial nature.  “When a court official acts in a capacity in which he is not called upon to exercise judicial or quasi-judicial discretion, he is not entitled to absolute judicial immunity.”  Richardson v. Koshiba, 693 F.2d 911 (9th Cir. 1982).  ‘[J]udges do not receive immunity when acting in administrative, legislative, or executive roles.”  Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997)(citing Forrester v. White at 484 U.S. at 229-30, 108 S.Ct. at 545-46).  To say that: (1) “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.”  Case No. 99-14027-CIV-Graham, (DE #201);” and (2) Plaintiff shall correspond only with Defendants’ counsel including any requests for public records; and Case No. 99-14027-CIV-Graham, (DE #246); is a clear example of rule-making and/or administration.  “[J]udicial immunity has not been extended to judges acting to promulgate a code of conduct for attorneys.”  Forrester v. White at 484 U.S. 229.  Florida Courts have made it abundantly clear that the rule-making and policy with respect to Florida Public Records is function of the legislature, not the judiciary.  See Tober v. Sanchez, 417 So 2d 1053, 1055 (App. Dist. 3 1982).  It couldn’t be any clearer that Graham and Lynch were attempting to impose ABA Model Rule 4.2[4] and its equivalents upon Mason.  The U.S. Supreme Court in Supreme Court Of VA. v. Consumers Union, 446 U.S. 719, 731 (1980) held that “propounding the Code [State Bar] was not an act of adjudication but one of rulemaking.”  However, unlike the Judges in Consumers Union, federal judges in the state of Florida have no statutory authority or constitutional authority to promulgate state bar rules for non-lawyers or lawyers either, therefore Defendants Lynch and Graham are not entitled to legislative immunity.  See Rule 3, Retention Of Membership In The Bar Of This Court (noting that the Rules Regulating the Florida Bar are promulgated by the Supreme Court of Florida).  There is no code of conduct for non-lawyers, therefore Lynch and Graham created one.  This is a legislative act.  After Lynch and Graham created their code of conduct for laymen, they then decided to bring charges for violations of their code.  (99-14027, Docs. 766, 791).  This is an act of law enforcement.  See Lopez v. Vanderwater, 620 F.2d 1229 (7th Cir. 1980)(holding that a judge “is not immune from liability for his prosecutorial acts.”).  See also Smith v. Shook, 237 F.3d 1322, 1324 (11th Cir. 2001)(holding that a citizen lacks standing to sue because a prosecutor does not exercise its discretion to bring an action).  Along this vein, the Court in Sevier v. Turner, 742 F.2d 262 (6th Cir. 1984) ruled that the Defendant Judge did not have absolute immunity because the Judge “undertook prosecutorial duties that constituted nonjudicial acts” by initiating criminal prosecutions against fathers who were in arrears on their child support payments.  Similarly, in the instant case, the Magistrate initiated a civil contempt charge against Mason because Mason allegedly violated the Court’s administration plan of the Florida Public Records Act by submitting his public records request to his government directly, and not to their private for profit attorneys.  The administration of the Florida Public Records Act as called for by the orders, (Doc. 201)(Doc. 246), in the instant case, is not normally performed by a federal judge in the exercise of his duties.  See Henderson v. State, 745 So.2d 319 (Fla. 1999) “[W]e do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially-created rules of procedure…”  See also Scotto v. Almenas, 143 F.3d 105, 111 (2nd Cir. 1998)(“ [t]he more distant a function is from the judicial process, the less likely absolute immunity will attach.”).  See also Harris v. Harvey, 605 F.2d 330 (7th Cir. 1979)(holding that the Judge’s act in public criticizing a defendant before his court was not judicial in nature in that the acts of the Judge were not to the expectations of the parties).  Similarly, in Harper v. Merckle, 638 F.2d 848 (5th Cir. 1981)[5], the Court held that the Judge did not have absolute immunity notwithstanding the fact Judge’s act in holding the Plaintiff in contempt were judicial in nature because the Plaintiff had no reason to believe to that the Judge could hold him in contempt for domestic problems.  In the instant case, Mason had no reasonable expectation that he could be held in civil contempt by a federal judge for exercising his constitutional and statutory rights under Florida law to ask his government for public records.  If the orders, (99-14027, (Doc. 201, 246)), in question were violative of some statute, or if Mason had behaved in some illegal manner in communicating with his government, then the Defendants proper remedy would have been to seek the assistance of some prosecutor.  The Court in Gregory v. Thompson, 500 F.2d 59, 65 (9th Cir. 1974), held that a judge was not entitled to absolute immunity because the judge acted like a police officer. 

 

  1.  The Judges in this matter acted in complete and total absence of all jurisdiction.

”“Law 101” or “Judge 101” requires that a Judge, federal, state, or otherwise decide the matter of jurisdiction first.  Federal courts are courts of limited jurisdiction.  They possess only that power authorized by Constitution and statute, (internal citations omitted), which is not to be expanded by judicial decree.  It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction."  Kokkonen v. Guardian Life Ins 511U.S.375(1994). “[B]efore rendering a decision . . . every federal court operates under an independent obligation to ensure it is presented with the kind of concrete controversy upon which its constitutional grant of authority is based; and this obligation on the court to examine its own jurisdiction continues at each stage of the proceedings, even if no party raises the jurisdictional issue and both parties are prepared to concede it.”  Bischoff v. Osceola County Florida, 222 F.3d 874, 878 (11th Cir.2000).  “It is not proper for federal courts to proceed to a merits question despite jurisdictional objections."  In re Madison Guaranty Savings & Loan Association, 173 F.3d 866; 335 U.S. App. D.C. 327 (C.A.D.C. 1999).  In Case No. 99-14027-CIV, Mason repeatedly and incessantly challenged the jurisdiction of the court, however, the Court absolutely refused to state where it got the legal authority to issue the orders in question.  See for example, and note that this list is not collectively exhausted, Case No. 99-14027 see Plaintiff’s motions and responses, (Doc. #200);(Doc. #239); (Doc. #262);(Doc. #264);(Doc. #284);(Doc. #334);(Doc. #509);(Doc. #515);(Doc. #526);(Doc. 554);(Doc. 632, pg. 5);(Doc.#633);(Doc. 652);(Doc. 663); (Doc. 735); (Doc. 736); (Doc. 738); (Doc. 783); (Doc. 787, pgs 2-3); (Doc. 810); (Doc. 812); (Doc. 813); (Doc. 817); (Doc. 829), (Doc. 845);and the court’s orders: (Doc. 201);(Doc. 246);(Doc. #279);(Doc. 281);(Doc. #407);(Doc. #514);(Doc. #524);(Doc. #528);(Doc. #634);(Doc. 673);(Doc. 744);(Doc. 745);(Doc. 766);(Doc. 791);(Doc. 868);(Doc. 874);(Doc. 882, pgs. 1-2), and relevant Defendants’ responses and motions, (Doc. 199); (Doc. 199);(Doc. 231);(Doc. 274);(Doc. 275); (Doc. 348);(Doc. 511);(Doc. 559);(Doc. 639);(Doc. 646);(Doc.690); (Doc. 823);(Doc. 834); (Doc. 838);(Doc. 841); (Doc. 859).  Additionally, in the instant case, Defendants Graham and Lynch and the Court itself have refused to address the legality of the orders in question.  See (Doc. 52);(Doc. 56); Objections To R&R, pgs. 13-14.

“A judge acts in the clear absence of all jurisdiction if the matter upon which he acts is clearly outside the subject matter jurisdiction of the court over which he presides.”  King v. Love, 766 F.2d 962 (6th Cir. 1985) [A] judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.”  Mireles v. Waco at 502 U.S. 12.  "When a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of jurisdiction, judicial immunity is lost."  King v. Thornburg, 762 F. Supp. 336, 341 (S.D.Ga. 1991)(citing Rankin v. Howard, 633 F.2d 844, 849 (9th Cir. 1980)). “Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible.”  Tucker v. Outwater, 118 F.3d 930 (2nd Cir. 1997)(quoting Bradley).  Had the defendants in this matter done a minimal amount of research or had they verified the law as quoted to them by the plaintiff, the defendants would have known that a federal judge simply does not have the legal authority to tell the plaintiff that he must contact a private attorney before communicating with his government.  Intuitively, given American values, such a notion is inane on its face and anathema to everything America stands for. 

Plaintiff shall correspond only with Defendants’ counsel including any requests for public records  (DE #246).  Congress did not grant the federal judiciary with jurisdiction over the administration of the Florida Public Records Act, or Chapter 119, Florida Statutes.  “Courts created by statute only have such jurisdiction as the statute confers.”  Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 820 (1988).  Public records, under Florida law, are not any of the federal government’s business.  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. “  Amendment X, United States Constitution.  As a result of the Tenth Amendment, Congress could not grant the federal government jurisdiction over Florida Public Records even if wanted to.  The Federal Rules of Civil Procedure do not create federal jurisdiction.  In re Infant Formula Antitrust Litigation, MDL 878 v. Abbott Laboratories, 72 F. 3d 842, 843 (11th Cir. 1995).  The fact that litigants have a case before the district court is not a license for the district judge to interject into every matter involving the litigants.  Graham and Lynch had absolutely no reason to believe that they could stick their noses’ in Marcellus M. Mason, Jr.’s private business with respect to his alleged communications with his government regarding public records. 

The Court acted in complete violation of all jurisdiction because the Defendants, Sorolis, Koji, and Highlands County, lacked standing to ask the Court, Graham and Lynch, to grant them the requested injunctions.  The Defendants suffered no injury as a result of Mason’s alleged requesting of public records under Florida law without asking for the permission of private for profit attorneys.  See Bischoff v. Osceola County Florida, 222 F.3d 874, 884 (11th Cir.2000) (“ plaintiffs must establish that they have suffered some injury in fact as a result of the defendant's actions”).  See also Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  It is absurd to even argue that a public entity can be damaged by merely complying with the requirements of state law that it receive and process public record requests.  “[I]f a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action;”  Dykes v. Hosemann, 776 F.2d 942, 947 n. 17 (11th Cir. 1985)(quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 352, 20  L.Ed. 646 (1872)).  See also Harper v. Merckle, 638 F.2d 848 (5th Cir. 1981); Tucker v. Outwater, 118 F.3d 930 (2nd Cir. 1997)(quoting Bradley).  Dykes, which quotes Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 352, and its example of the probate judge exceeding his jurisdiction by trying a criminal case is dispositive and indistinguishable from the instant case.  In the instant case, the Graham/Lynch duo was given absolutely no authority to administer public records under Florida Law.  Dykes, makes abundantly clear that the Graham/Lynch duo clearly acted in violation of subject matter jurisdiction. 

            “[T]he third element in the concept of jurisdiction as used in the context of judicial immunity necessitates an inquiry into whether the defendant's action is authorized by any  set of conditions or circumstances.”   Wade v. Bethesda Hospital, 337 F. Supp. 671, 673 (S.D. OH 1971).  See also Gregory v. Thompson, 500 F.2d 59 n. 2 (9th Cir. 1974).  Using this criterion, the Court in Wade concluded that the defendant Judge did not have absolute immunity because the Judge could not order the sterilization of an individual under any set of circumstances.  Similarly, in the instant case, a federal judge can not order Mason to submit his Florida public records request to private attorney under any set of circumstances.  In a case that is roughly analogous to the instant case, Maestri v. Jutkofsky, 860 F.2d 50 (2nd Cir. 1988), the Court held that the judge did not have absolute immunity because the judge acted in clear violation of all subject matter jurisdiction by causing an arrest of a citizen in a neighboring jurisdiction. 

The best evidence that the Graham/Lynch duo acted in clear violation of all subject matter jurisdiction is the behavior of the Defendants themselves in this case.  Defendants Graham. Lynch, Sorolis, and Koji have refused to answer interrogatories with respect to subject matter jurisdiction.  See (DE #9), (DE #10), and Plaintiff’s Motion To Compel Defendants Graham, Lynch, And Sorolis’ Answer To Plaintiff’s First Interrogatory For Graham, Sorolis, And Lynch And Plaintiff’s Motion For Sanctions, dated March 7, 2002.

 

1)       The Tenth Amendment precluded the judges in this matter from having jurisdiction over Mason’s communications with respect to Public Records requests under Florida law. 

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. “  Amendment X, United States Constitution.  Florida’s right to regulate its own public records predates the adoption of the Constitution and as a result of this fact the Tenth Amendment precludes the federal government or federal judges from administering Florida public records.  See Cook v. Gralike, 531 U.S. 510, 519 (2001)(holding that pre-existing powers “proceed, not from the people of America, but from the people of the several States; and remain, after the adoption of the constitution, what they were before…”).  “The validity and conclusiveness of a Florida decree must be tested by Florida law; it can be given no greater force in a federal court than it ought to have in the courts of the state by whose authority it was rendered.”  Parker Bros. v. Fagan, 68 F.2d 616, 617 (5th Cir. 1934)[6].  Congress “has enacted that the state law shall be the rule of decision in the federal courts.”  Sibbach v. Wilson & Co., 312 U.S. 1, 10 (1941).  The state of Florida does not require Mason to seek the permission or consent of a private for profit attorney prior to making public records request; in fact, if Highlands County had failed to produce public records even if Mason failed to gain the permission of their private for profit attorneys, Mason could have filed both civil charges and a criminal complaint pursuant to chapter 119 Florida Statutes no matter what a federal judge says.  Defendants’ Graham and Lynch’s orders create an absurd anomaly in this respect.  This absurd proposition is only made possible by the illegal interference and acts of usurpation by Graham and Lynch. 

Assuming the Magistrate had jurisdiction to direct that the “Plaintiff shall correspond only with Defendants' counsel including any requests for public records, the orders would still be improper because Florida Courts don’t feel they have the right to take such liberties.  We would be less than candid if we did not acknowledge that, as the present case demonstrates public agencies are placed at a disadvantage, compared to private person’s, when faced with potential litigation claims.  It is also pertinent to observe that the wisdom of such a policy resides exclusively within the province of the legislature.”  Tober v. Sanchez, 417 So 2d 1053, 1055 (App. Dist. 3 1982).  "[W]e do not equate the acquisition of public documents under chapter 119 with the rights of discovery afforded a litigant by judicially-created rules of procedure  Henderson vs. State Of Florida, 745 So. 2d 319, 325-6; (Fla. 1999).  "Courts cannot judicially create any exceptions, or exclusions to Florida's Public Records Act."  Board of County Commissioners of Palm Beach County v. D.B.,784 So. 2d 585, 591 (Fla. 4th DCA 2001).  See also Wait v. Florida Power and Light Company, 372 So. 2d 420, 425 (Fla. 1979) (“We find no authority to support the argument that Florida Power & Light, by engaging in litigation before a federal forum, has somehow given up its independent statutory rights to review public records under chapter 119. The fact that Florida Power & Light simultaneously engaged in litigation before a federal agency does not in any way prevent its use of chapter 119 to gain access to public documents.”).  The Federal Rules of Civil Procedure did not give Graham and Lynch the right to interfere with Mason’s right to public records under Florida Law.  “[T]he State of Florida has the right to extend to its citizenry greater protections than those afforded by the federal constitution.  Adams v. State, 448 So.2d 1201, 1203 n.1 (Fla.App. 3 Dist. 1984)(citing Sambrine v. State, 386 So.2d 546, 548 (Fla. 1980)). “Within our federal system the substantive rights provided by the Federal Constitution define only a minimum.  State law may recognize liberty interests more extensive than those independently protected by the Federal Constitution.  If so, the broader state protections would define the actual substantive rights possessed by a person living within that State.”  Mills v. Rogers, 457 U.S. 291, 300 (1982).  Under the Florida Constitution, and pursuant to Section 119.01, Fla.Stat., plaintiff has absolute right to request public records from his state government without seeking the permission of private for profit attorneys.  See  § 119.01, et.seq., Fla.Stat[7]., Article 1, Section 24, Fla. Const[8]. “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, 621 (S.D.W.V.1998).  See also Camden v. State of MD. 910 F.Supp 1115 (D.Md. 1996).  “In giving federal courts `cognizance' of equity suits in cases of diversity jurisdiction, Congress never gave, nor did the federal courts ever claim, the power to deny substantive rights created by State law or to create substantive rights denied by State law.”  Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999)(quoting Guaranty Trust Co. v. York, 326 U.S. 99, 105 (1945)).  See also 28 U.S.C. § 2072[9] (“Such rules shall not abridge, enlarge or modify any substantive right”); Semtek International Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503 (2001).  [C]ourts "are not at liberty to create an exception where Congress has declined to do so.  Freytag v. Commissioner, 501 U.S. 868, 874 (1991).  “It is not the place of the judiciary to disregard the guidelines set by Congress.”  Traficanti v. U.S., 227 F.3d 170, 175 (4th Cir. 2000).  See also Kahn v. Shevin, 416 U.S. 351, 356 (1974)(“courts do not substitute their social and economic beliefs for the judgment of legislative bodies, [which] are elected to pass laws.”). 

 

C.     Judges are not immune from prayers for declaratory and injunctive relief. 

Even though a judge maybe immune from an action for money damages, the judge would not be immune from an action for equitable relief.”  Slavin v. Curry, 574 F.2d 1256, 1264 (5th Cir. 1978).  See also Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986) (“Immunity does not extend, however, to actions for   prospective injunctive relief.”).  Mason specifically requested injunctive and declaratory relief.  See Complaint, pgs. 16, 17, ¶¶150, 156, 163. 

 

D.      Defendants claim of absolute immunity perverts the doctrine and evinces absurdity. 

“[A] general principle of the highest  importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself.”  Stump v. Sparkman, 435 U.S. 349, 355 (1978).  If absolute immunity is applied to this case, then there is nothing that would stop a federal judge from issuing directives that litigants “before it” must drive at a speed that is ten miles per hour slower than the posted speed on the highways and roads or be punished by the federal court.  Along this same vein and following this same contorted logic, a federal judge would be granted immunity for rendering an order stating that “Plaintiff shall not fish in a state park on a Saturday.”  Why quit here, why not allow a federal judge immunity for rendering orders stating that litigants before shall not spank their kids on Sunday?  If absolute immunity is applied in the instant case, the door would be open to allow a federal judge to do anything he likes or promulgate any “legislation” even if such actions circumvent the will of the Congress, the Constitution of the United States, Florida Statutes, and the Florida Constitution. 



[1] See Addendum

[2] See Addendum

[3] Appellees cite several cases in support of this “inherent authority” theory.  ie. Phipps v. Blakeney, 8 F.3d 788 (11th Cir. 1993); Banco Latino, S.A.C.A. v. Gomez Lopez, 53 F. Supp. 2d 1273, 1277 (S.D. Fla. 1999); Telectron, Inc. v. Overhead Door Corn., 116 F.R.D. 107, 126 (S.D. Fla. 1987); Day v. Allstate Insurance Co., 788 F.2d 1110 (5th Cir. 1986); M&M Medical Supplies & Serv.,Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1992).  These cases are not dispositive for several reasons.  Firstly, these cases deal with private actors, not the government.  Secondly, these cases do not address litigant’s right under Florida Law for public records.  Thirdly, these cases don’t address First Amendment rights of non-lawyers. 

[4] See Addendum

[5] See Bonner, supra.

[6] See Bonner, supra.

[7] See Addendum

[8] See Addendum

[9] See Addendum








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