Misconduct of Federal Judge Donald L. Graham: judicial misconduct

Showing posts with label judicial misconduct. Show all posts

Wednesday, July 16, 2008

U.S. Dist. Judge Donald L. Graham Construes Recusal Statute To His Liking and Sets About Wreaking Havoc

Wednesday, July 16, 2008

J.L. Edmondson

c/o Thomas K. Kahn, Clerk
U.S. Court of Appeals for the 11th Circuit
56 Forsyth St. N.W.
Atlanta, Georgia 30303

RE: Complaint of Misconduct Against U.S. Dist. Judge Donald L. Graham[1]

Dear Judge Edmondson:

Please consider this complaint along with my prior complaints to further buttress my argument that Judge Graham has engaged in a pattern and practice of disregarding prevailing legal standards. On January 8, 2008, the Committee On Judicial Conduct And Disability, with whom you apparently disagree, proclaimed:

[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.

See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement. I refer you specifically to the following complaints: No. 01-0054;No. 01-0054-Judicial Council;No. 01-0068;No. 01-68-Judicial; Council;No. 02-0052;No. 02-0059;No. 05-0008;No. 05-0011;No. 05-0012;No. 05-0013;No. 05-0020;No. 05-0021 and the Complaints dated June 25, 2008 and July 9, 2008 and the Motion for Reconsideration.

It is somewhat ironic that Judge Graham doesn’t respect your authority either even though you have been Judge Graham’s chief protagonist and apologist. Judge Graham has totally disrespected you and the opinion you authored in Bradley Murray v. Ray W. Scott, Jr., B.A.S.S., Inc., 253 F.3d 1308 (11th Cir. 2001).

Background Facts

I filed an employment discrimination lawsuit against the Highlands County Board of County Commissioners and Heartland Library Cooperative and other governmental entities and individual government employees in February 1999. The case was originally assigned to then Chief Judge Edward Davis who retired. On February 20, 1999, Judge Davis allowed me to proceed in forma pauperis, "IFP", or to proceed without paying the required filing fee for a lawsuit. Docket Entry No. 3. This case was ultimately assigned to Judge Donald L. Graham and Magistrate Frank Lynch Jr., Case No. 99-14027-CV-Graham/Lynch. After protracted litigation, the case was dismissed, not on the merits of the case, but based upon banned and irrelevant out of court constitutionally protected and legal communications between Highlands County and Mason. "R&R" (D.E. 766), Order adopting R&R (D.E 791). See Banned Communications, http://mmason.freeshell.org/OverRuleFirstAmendment.htm.

In June and July 2000, Maria Sorolis and Brian Koji, Allen, Norton & Blue asked the Magistrate to grant them preliminary injunctions that required me to contact them before I could talk to the government defendants. These orders required me, a nonlawyer, living in Sebring, FL to contact private attorneys some 90 miles away in Tampa, FL . These orders were granted on June 19, 2000 and July 25, 2000 in part 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). This order is dated June 19, 2000,

“Plaintiff shall correspond only with Defendants' counsel including any requests for public records.” (DE #246). “Plaintiff shall be prohibited from contacting any of the Defendants, including their supervisory employees and/or the individual Defendants, regarding any matter related to this case.” (DE #246). This order is dated July 25, 2000.

Judge Graham has expressly stated that the issuance of the injunctions by Magistrate Judge Frank Lynch, Jr. was not "clearly erroneous nor is it contrary to law." See Docket Entry No. 407. However, Congress and the law disagree as the law expressly states that: "Notwithstanding any provision of law to the contrary— 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). I appealed this matter, but the Eleventh Circuit just issued an unpublished opinion and ignored the above orders and Judge Graham’s failure to disqualify. This appeal, Case No. 01-13664-A , has been referred to as the “appeal from hell”. See mcneilmason.wordpress.com, post entitled “Eleventh Circuit Case No. 01-13664: The Appeal From Hell”.

On September 20, 2001, Judge Graham rendered a pre-fling injunction sua sponte, or on his motion and without notice to the litigant Marcellus M. Mason. See Docket Entry Number 878, (D.E. # 878) . Page 3, of this document boldly asserts: THIS CAUSE came before the Court sua sponte. This sua sponte issued pre-filing injunction, though clearly void, formed the basis of a criminal contempt complaint and conviction. See mcneilmason.wordpress.com, post entitled “Eleventh Circuit Sits Idly By While A Clearly Void Sua Sponte Issued Pre-Filing Injunction Wreaks Havoc On A Man’s Life”.

ALLEGATIONS OF MISCONDUCT SUPPORTED BY THE RECORD

Judge Graham has usurped authority by making decisions in a case, 99-14027-CIV, where he was legally disqualified. On May 7, 2002, Judge Graham issued an order recusing himself from Case No. 99-14027-CIV-Graham for “contempt proceedings only” by stating that:

[T]he undersigned district judge, to whom the above styled case has been assigned, hereby recuses himself for contempt proceedings only and refers the case the Clerk of Court for reassignment for contempt proceedings only pursuant to 28 U.S.C. § 455 and Local Rule 3.6..

See (D.E. #908). If your published opinions and that of the Eleventh Circuit mean anything, then Judge Graham was acting without legal authority for all actions taken in Case No. 99-14027-CV-Graham after May 7, 2002.

But when a district judge considers recusal, he must consider his potential conflict with regard to the overall case, not just his potential conflict for each separate issue or each stage of the litigation. See United States v. Feldman, 983 F.2d 144, 145 (9th Cir. 1992) ("[W]hen a judge determines that recusal is appropriate it is not within his discretion to recuse by subject matter or only as to certain issues and not others.").

See Bradley Murray v. Ray W. Scott, Jr., B.A.S.S., Inc., 253 F.3d 1308 (11th Cir. 2001). "Once a judge has disqualified himself, he or she may enter no further orders in the case.... His power is limited to performing ministerial duties necessary to transfer the case to another judge (including the entering of `housekeeping' orders." See In re: Bellsouth Corporation, In re: Terry Price and Lehr, Middlebrooks, 334 F.3d 941 (11th Cir. 2003)(quoting Moody v. Simmons, 858 F.2d 137, 143 (3rd Cir.1988)).

Judge Graham has used his usurped authority by taking the following adverse and abusive actions against me when he had no legal authority to act in Case No. 99-14027.

On 09/13/2002, Judge Graham entered a final judgment against me which awarded $200,000 in legal fees against me. (D.E. #911).
On 12/20/2002, Judge Graham has arrogated his own authority by arbitrarily denying the right to appeal in forma pauperis when he had no authority to act. (D.E. #927).
01/04/2005, Judge Graham refused to disqualify himself again. (D.E. #931).
I submitted several requests to file motions for relief under Rule 60(b)(4) that Judge Graham failed to act on or to properly file with the Clerk of Court. These requests were dated: (1) December 11, 2004; (2) Friday, December 24, 2004; (3) December 28, 2004; (4) January 03, 2005. However, Judge Graham hand selected a request to file a motion and did actually file that request. See Letter dated 12/16/04, (D.E. #932). Judge Graham is cherry picking requests to file motions that he does not have the legal authority to decide.
01/9/2005, Judge Graham ordered me to come from my home in Sebring, FL to Fort Pierce, FL, some 80 miles for a “status conference” in Case No. 99-14027-CV. (D.E. #933).
On 1/14/05, Judge used this “status conference” not to decide any motion, but to “advise” me “not to file any future pleadings” in a case that he had disqualified from. See (D.E. #934). Judge Graham used the so-called “status conference” for intimidation. In this unsigned document, (D.E. #934), Judge Graham ordered someone to file a document stating: “Mr. Mason cautioned that his actions may have adverse affect on his criminal case.” There was absolutely no discussion of the merits of the one page requests to file motions that I had submitted. Judge Graham knew that I was on probation at the time. Judge Graham ordered, Frank Smith, U.S. Probation, Robert Waters, Assistant U.S. Attorney, and Lynn Waxman, an appellate attorney, to be present at this “status conference”. Judge Graham refused to memorialize his usurped “authority and “commands” to writing. Judge Graham attempted to sua sponte modify the sua sponte issued pre-filing injunction of September 20, 2001, (D.E. #878). Rather than write an order himself, Judge Graham had a clerk to file an unsigned piece of paper.
On 02/14/2005, Judge Graham has arrogated his own authority by arbitrarily denying the right to appeal in forma pauperis when he had no authority to act. See Order dated 02/14/2005 (D.E. #939). As a result of this adverse action, I lost my right to appeal his abusive behavior.

Judge Edmondson could you please help stop this man from terrorizing me and my family? It appears Judge Graham is above the law and will not be disciplined under any set of circumstances. Judge Edmondson, please keep in mind that other Judges and the legal community is watching how you handle this matter.

Sincerely,

Marcellus M. Mason

214 Atterberry Drive

Sebring, FL 33870

[1] An online version of this complaint is available at: http://mmason.freeshell.org/372c/Complaint_07152008.doc ; This document has embedded clickable links for ease of investigation by the Judicial Council and other interested parties. This complaint will also be featured in a post at http://donaldlgraham.blogspot.com .

Monday, June 09, 2008

State Court Judges Are Held to Higher Standards Than Federal Judges

THESIS: "Judicial Independence" at the federal level does not work because the evidence presented here will prove that federal judges simply will not discipline other federal judges. Judicial Independence equals non-accountability. U.S. District Judge Donald L. Graham has escaped discipline and possible removal for acts that state court judges would have been removed and/or severely disciplined for. For a concrete example of this assertion, see post entitled "Contempt Abuse Is Misconduct Under State Law But Is Not Judicial Misconduct Under the Federal Statutes". Chief Circuit Judge J.L. Edmondson, Eleventh Circuit, U.S. Court of Appeal, has statutory responsibility under the Judicial Misconduct and Disability Act, 28 U.S.C. § 351, et.seq. for investigating allegations of misconduct for federal judges in Florida, Alabama, and Georgia. However, Judge Edmondson has used a negative definition of judicial misconduct in such a manner that you can not possibly state a legitimate claim of misconduct against one of his colleagues. Judge Edmondson does not have a positive definition of judicial misconduct; consequently, he can keep saying "no that's not it". Additionally, Judge Graham has exhibited a reckless disregard for binding U.S. Supreme Court precedents with apparent impunity. See Florida Judge Thumbs His Nose at U.S. Supreme Court Ruling on Poor People’s Right to Access The Courts , Florida Judge Thumbs His Nose at U.S. Supreme Court Rulings on Due Process And Attorneys’ Fees, Is U.S. Dist. Judge Donald L. Graham Willfully Defying The United States Supreme Court? Judge Edmondson is of the apparent belief that a federal judge can make bad faith legal errors and escape discipline because the complaint is "directly related to the merits of a decision or procedural ruling". However, the State of Florida and other states disagree. "[T]he Florida Supreme Court has expressly held that a judge’s legal rulings can be the subject of judicial disciplinary proceedings." State of Florida, JUDICIAL QUALIFICATIONS COMMISSION,INQUIRY CONCERNING A JUDGE, NO. 06-52, CHERYL ALEMAN CASE NO. SC07-198. See also Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371("a judge who commits legal error which, in addition, clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights,intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty is subject to investigation."); In re Commission on Judicial Tenure, Rhode Island Supreme Court, No. 2003-512-M.P.(22-14) (quoting In re Curda, 49 P.3d 255, 258 (Alaska 2002))(“[L]egal error may amount to judicial misconduct if it is repeated, motivated by bad faith, accompanied by intemperate or abusive conduct, or irremediable by appeal.”). Judge Edmondson's contorted view of the law and ethics would hold federal judges to a lower standard than that expected of state court judges. Is Judge Edmondson's view of the Judicial Misconduct and Disability Act, 28 U.S.C. § 351, et.seq. consistent with the intent of Congress?

Not Judicial Misconduct

Judge Edmondson has expressly stated that each of the following documented acts of misconduct are not misconduct under the Act.

Lying and Intentionally misrepresenting the law.

Refusing to rule on a motion for a preliminary injunction during the entire pendency of the lawsuit from November 1999 to June 20, 2001 or about 19 months.

Judge Graham falsely completed a Civil Justice Reform Act Report, “CJRA” to conceal the fact that he had a motion for a preliminary injunction pending for more than 17 months.

Usurping authority by allowing a Magistrate, Frank Lynch Jr., to issue preliminary injunctions two times.

Usurping authority by allowing a Magistrate to dictate to a non-lawyer that he must seek the permission of private attorneys in order to speak with a local government.

Usurping authority by allowing a Magistrate to set restrictions on how Florida Public Records are to be accessed.

Allowing scores of motions to go undecided for months.
Intentionally misstating material facts in order to render a pre-filing injunction.

Disrespecting several well-established Supreme Court decisions proscribing certain acts of Judges.

Judge Graham has repeatedly and improperly denied access to the courts by arbitrarily denying in forma pauperis, “IFP”, petitions 18 separate times.
Judge Graham has been involved in possible criminal behavior by issuing a void sua sponte pre-filing injunction which ultimately formed the basis of a criminal contempt complaint and conviction.

Judge Graham used the criminal contempt process to force the withdrawal of a lawsuit.

Judge Graham awarded a massive $200,000 in attorney’s fees to Highlands County against an indigent plaintiff, Marcellus Mason, not on the quality of the underlying lawsuit, but based upon Judge Graham’s speculation about Mason’s motive.

Judge Graham attempted to circumvent the appellate process by using intimidation.

These allegations and others fully documented at: (1)http://mmason.freeshell.org/CoreAllegations.htm; or (2)Documented Acts of Misconduct by U.S. Dist. Judge Donald L. Graham. As of this date, the Judges at the Eleventh Circuit have allowed Teflon Don to escape rebuke and condemnation as Judge Graham has not been punished in any way for these acts. For example, many of these allegations were mentioned in a direct appeal and simply ignored by the appellate panel, see “Eleventh Circuit Case No. 01-13664: The Appeal From Hell“. Petitions for mandamus met with a similar fate, see for example, Case No. 01-15754, “Eleventh Circuit Disses The U.S. Supreme Court Chooses To Protect Judge Graham“. Judge Graham's Chief Judge, S.D. Fla., Federico Moreno offered the following tepid "indorsement":

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

See Letter dated April 4, 2008.

JUDICIAL MISCONDUCT DEFINED

Judicial Misconduct has been defined by Jeffrey M. Shaman, DePaul University Law, Steven Lubet, Professor, Northwestern University Law, James J. Alfini President and Dean, South Texas College of Law, U.S. Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit, in part as:

Judicial action taken without any arguable legal basis —and without giving notice and an opportunity to be heard to the party adversely affected—is far worse than simple error or abuse of discretion; it’s an abuse of judicial power that is “prejudicial to the effective and expeditious administration of the business of the courts.” See 28 U.S.C. § 351(a); Shaman, Lubet & Alfini, supra, § 2.02, at 37 (“Serious legal error is more likely to amount to misconduct than a minor mistake.

See Opinion online at: http://www.ca9.uscourts.gov/coa/newopinions.nsf/
F822E1DE5540855A8825708B0081F154/$file/0389037o.pdf?openelement .

“[A] judge is guilty of “oppression in office” when that judge intentionally commits acts which he or she knows, or should know, are obviously and seriously wrong under the circumstances and amount to an excessive use of judicial authority.” State v. Colclazier, 2002 OK JUD 1, 106 P.3d 138.

“Where honesty or integrity are at issue, a single action can result in a finding of judicial misconduct.” In re District Judge Ronald F. Kilburn, Case No. 90-478, (Vermont Supreme Court 1991)(citing In re Hill, 152 Vt. 548, 572-75, 568 A.2d 361, 373-75 (1989)). See http://dol.state.vt.us/SUPCT/157/op90-478.txt.

“Canon 3A(5) is violated where there is a pattern of unreasonable delay or where a particular instance is so lacking in legitimate justification that it is willful. See Matter of Long, 244 Kan. 719, 724, 772 P.2d 814, 818 (1989) (Canon 3A(5) violated where delay is “significant, extensive, and unjustified”); Sommerville, 364 S.E.2d at 23 n.3 (sanctions appropriate under Canon 3A(5) where there is a pattern of delay resulting from either willful neglect of, or manifest inability to effectively perform, judicial duties); Matter of Alvino, 100 N.J. 92, 97 n.2, 494 A.2d 1014, 1016 n.2 (1985) (delay can violate Canon 3A(5) if “willful” or “typical of the judge’s work”);” See URL:http://www.libraries.vermont.gov/SUPCT/157/op90-478.txt.

“Legal error and judicial misconduct are not mutually exclusive.” In Re Feinberg, 5 NY3d 206,New York State Commission on Judicial Conduct.

The University of New Mexico, Institute of Public Law, Judicial Education Center, has put together a Judicial Ethics Handbook which defines judicial misconduct.

If Judge Edmondson had an affirmative definition like the ones described above, then Judge Graham would have to disciplined. If the states are able to cite and list specific examples of judicial misconduct, then there is no reason why the federal judiciary can not do the same. To simply say, no that is not misconduct as Judge Edmondson does reflexively, is not enough.