Friday, July 1, 2016
If robots are already used to resolve disputes, why not humans of litigants' choice?
If the Ebay customers resolve their disputes through an online dispute-resolution website, that's ok.
If the same people engage a human to help them resolve the dispute or advise about it, that would be a crime of unauthorized practice of law.
Now, if robots are allowed to practice law, why not humans, ALL humans, without license restrictions?
Even though it is now recognized that regulation of the legal profession drives prices for legal services out of reach for most customers, and not only in the U.S., to the point that in Holland people are now allowed to be advised in divorces by robots - which improves access to justice.
Isn't it silly, not to mention unfair to those who are in need of advice and assistance with access to courts that robots are allowed to improve access to justice, but unlicensed individuals of people's choice are not?
Ins't it silly not to allow unlicensed humans to do what unlicensed robots are already doing - in the U.S., too?
It is the beginning of the robot v human discrimination, isn't it?
I wonder who will be the first human who will file such a lawsuit, to invalidate unauthorized practice of law (UPL) statutes on grounds that UPL is allowed to robots.
The U.S. Supreme Court reduces the 4th of July to a joke while the U.S. Court of Appeals for the 7th Circuit tries to take the dignity of the U.S. Constitution back - a little bit, somewhat
Federal Rule of Civil Procedure 8 provides for a "claim-pleading", not factual pleading.
In fact, factual pleadings were, since long ago, deemed implausible, because such rules require people to plead enough facts to survive the lawsuit before discovery, and often under the circumstances when the proof is within exclusive possession of the defendants.
That is even more true when the parity of power between the plaintiffs and the defendants is squarely with the defendants, when the defendants are the government and the plaintiffs are lay individuals.
Yet, the U.S. Supreme Court chose to actually re-create the factual pleadings, FRCP 8 be damned, in two cases:
1) Bell Atlantic Corp. v Twombly, 550 U.S. 544 (2007), and
2) Aschcroft v Iqbal, 556 U.S. 662 (2009),
prompting a cartoonist to describe civil rights cases dismissed because they did not satisfy the court-invented factual pleading amendment to the FRCP 8 and FRCP 9 as "twomblied in the iqbals".
After these two cases, the majority of civil rights cases are dismissed, and only a very small fraction of civil rights cases reach beyond discovery and to trial. The courts, this way, obtained a result, reduction of their overloaded docket - but at the sake of fairness and with the help of violating the law and blocking real victims of constitutional violations from having any remedy for those violations against the government perpetrators.
In Bell Atlantic Corp. v Twombly, 550 U.S. 544 (2007), see description of the case also here, the court changed a decades-old rule, which was in compliance with FRCP 8, the claim-pleading standard, that a civil (and a civil rights) case in federal court will not be dismissed unless there may be NO set of facts under which the claim could be valid - a difficult standard for the defendants to meet before discovery, and the intention of FRCP 8 to adjudicate claims on the merits and not on pleadings.
Twombly was an antitrust case alleging anti-competitive behavior of telecommunications companies.
The court in Twombly indicated that certain pled facts, while being admissible circumstantial evidence of a conspiracy, are not enough, per se, to carry the claim of violation of the antitrust, Sherman Act.
In other words, the U.S. Supreme Court usurped the function of the jury, in violation of hte 7th Amendment, and claimed that a civil rights plaintiff must plead enough admissible facts for a jury to find for the Plaintiff, at the outset of the case and before discovery, including discovery of evidence in exclusive possession of the defendants,
When Twombly was decided, legal scholars already said that it rendered a motion to dismiss unconstitutional.
In Aschcroft v Iqbal, 556 U.S. 662 (2009), see description of the case also here, the U.S. Supreme Court has added insult to injury and allowed judges to consider their own experience and
Aschcroft v Iqbal was a politically charged case where the U.S. Supreme Court held that governmental officials cannot be charged for failure to supervise their subordinates engaging in racial and religious discrimination of suspects detained after September 11, 2001 attacks.
The court in Iqbal dismissed the case for conspiracy among governmental officials, defendants in the action, to engage in a conspiracy to discriminate because the plaintiffs could not provide facts in the pleadings that would allow the court to "draw inferences" of such discrimination.
Since a federal court would not draw inferences against the government until proof of conspiracy is provided, and proof cannot be provided until discovery, and even then, the evidence may be circumstantial and subject to a jury determination whether, on such facts, conspiracy should be found, after Iqbal, no conspiracy can be proven until plaintiffs, using their limited or, often, non-existent resources, wrangle from the government some kind of a confession of a conspiracy to violate their constitutiona rights - which, as any reasonable person would understand, is an unrealistic possibility.
Moreover, FRCP 9(b) specifically states that it does not require to show meetings of the mind at the pleading stage:
"[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally".
Yet, the court in Iqbal, and federal courts throughout the country after Iqbal universally violate this rule in civil rights actions by demanding that the civil rights plaintiffs put into pleadings facts showing "malice, intent, knowledge, and other conditions of the mind" of governmental defendants.
In Iqbal, the U.S. Supreme Court also allowed judges to become unsworn witnesses, and thus, advocates in the proceedings on behalf of defendants by allowing judges, in considering a motion to dismiss a case, to draw and rely upon the judge's own experiences (unknown to the plaintiffs).
It is irrefutable that Iqbal and Twombly was protective of the government and was aiming to undermine, and did effectively undermine, the civil rights litigation based on existing statutes and rules.
The U.S. Supreme Court in Iqbal and Twombly acted like a crook helping crooks - let's call a spade a spade - in telling the injured victims of constitutional violations: "haha, you cannot prove it - because we hold the evidence you need that you can get only through discovery? - tough, case tossed before discovery because you cannot prove it".
After Iqbal, some practicing attorneys cautiously stated that while the pleading rules did not change (only technically, FRCP 8 and 9 did not change), "the game" changed:
But, practicing attorneys, in their dual rope-balancing act of pleasing the court while advertising their knowledge to gain more paying clients, sometimes do not pay attention how crass their comments may be.
The author of the above quoted article, Robert L. Rothman, an attorney from Georgia, didn't notice, apparently, when putting his "game changing" comment in the very first, "catch", paragraph, of his article, that equating adjudication of human rights violations with a "game" being played is (1) inappropiate, and (2) revealing - because that is EXACTLY what the government, and the courts turned the promise given to people in the Civil Rights Act, of providing a remedy for constitutional violations: and that is a game, and a rigged game.
Let's note that in both cases, Twombly and Iqbal, the U.S. Supreme Court dismissed the action based on a new "rule" that it JUST CREATED, which means - when the plaintiffs were pleading their case, those new rules did not exist, and the plaintiffs, or their attorneys, did not have notice of those rules.
And, of course, such a drastic change of rules as occurred in Iqbal and Twombly, severely restricting civil rights plaintiffs' access to court, guaranteed by the 1st Amendment, and barring victims of unconstitutional conduct by government officials to have effective legal remedies for their injuries, is a matter of POLICY, of LEGISLATIVE POLICY, which is NOT within the Article III authority of federal courts to adjudicate, but is within the EXCLUSIVE authority of the U.S. Congress to deal with.
The U.S. Supreme Court cannot change rules by interpretation, it has no such authority under Article III of the U.S. Constitution which describes authority of federal courts.
Yet, the U.S. Supreme Court treated Twombly, its own interpretation of Rule 8, and an ultra vires interpretation, unlawfully changing the Rule, and not the original text of Rule 8, as controlling itself in deciding Iqbal, a further amendment through interpretation of Rule 8.
Consider the possibilities of this game-rigging strategy.
You have a rule you do not want to comply with.
You know that the highest court of the country acts mostly like a political body, picking and choosing cases for its limited docket only when it wants to either issue some sensationalized case and garner some political capital for further perks, speeches, trips and books from the legal establishment, or to help the government escape liability under existing statutes.
With that in mind, you pitch at that body a catch they cannot miss, so they take the case and decide it your way (for how much in bribes I can only imagine - what? U.S. Supreme Court judges were never caught in conflicts of interest? They did not just decide U.S. v McDonnell, practically legitimizing and thus encouraging the bribing of government officials in the United States?).
You have a rule.
You rig the rule once.
The next time you are requested to rig the rule, in reviewing of the rule, you use in rigging the rule not the text of the rule itself, but your previous - rigged - interpretation of that rule, to rig it further.
That's the logic of Rule 8 and 9 turned into civil rights lawsuits "twomblied in the iqbals" en masse.
Legal scholars were not as forgiving to the change of rules as practicing attorneys whose livelihood depends on "may we please the court", no matter what kind of misconduct the court may be committing on the attorneys' watch. (The best example of that cowardly behavior is the Kids for Cash scandal in Pennsylvania where a judge was selling kids for money into juvenile detention facilities FOR YEARS, while many attorneys knew about it, but kept mum, and that starts from the prosecutor or prosecutors of such cases who KNEW that juveniles' rights were violated and built their careers on it.)
After Iqbal, U.S. Senator Arlen Specter from Pennsylvania introduced a "Notice Pleading Restoration Act", but, Senator Specter was voted out of office in 2011 (when he was already critically ill with cancer), and the bill was not enacted. Senator Specter, who tried to make a difference for us all and to restore to Americans their right to a jury trial in civil rights cases, guaranteed by the 7th Amendment to the U.S. Constitution, died in 2012.
Senator Specter's memory should be honored this coming July 4, 2016 for what he was trying to do for all of us.
While attorneys matter-of-factly claimed "game change", and Senator Specter introduced a bill to kill the Twombly/Iqbal rigging of the 7th Amendment, legal scholars squarely called Iqbal (which was based on Twombly) unconstitutional.
So, before rigging Rule 8 and Rule 9, the U.S. Supreme Court and lower federal courts - sworn to uphold the U.S. Constitution, and every provision and Amendment to it - actually rigged the 7th Amendment to the U.S. Constitution, claiming that the way to interpret it is
There was no logic or LEGALITY in that "historic test", but, with the help of that "test", the right of Americans, under their own U.S. Constitution, to the jury trial in civil rights cases was rigged - and is continued to be rigged every day by courts applywing Twombly and Iqbal, which cuts off the 7th Amendment right to a jury trial allowing judges to make factual considerations, drawing on judges' own experience and "common sense" - as judges understand it.
So, while we are about to celebrate the 240th anniversary of this country's Declaration of Independence from Britain, the absolute monarchy AND FROM ITS LAWS, our celebration is rigged and dampened by our own courts, starting with the top one, the U.S. Supreme Court, because those same laws that we as a country claimed independence from in a war where many of Americans laid down their lives to achieve that independence, are jammed right down our throats through various "historic tests" - like the one described above - which restrict our constitutional rights based on the death grip of ancient British common law, the very common law that people fled from to America in the first place.
That's why I perceived the news that the U.S. Court of Appeals for the 7th Circuit recently overturned a case where a judge, following the U.S. Supreme Court encouragement and directive in the Iqbal case to draw upon the judge's "experience", actually googled the case and based his determination of dismissal of an excessive-force civil rights lawsuit against the police upon newspaper articles.
I obtained the docket of the case from the lower court, and it is a saga of retaliation of Senior U.S. District Court Judge Milton I. Shadur against pro se injured (and now incarcerated) plaintiff Joseph Felton that I will describe in a separate blog.
For now - Joseph Felton won his appeal, and I hope he will be given a new judge on remand, because, judging from the docket, Judge Milton I. Shadur, date of birth June 25, 1924 who just turned 92 of age, has no energy to handle this case properly and is unable to treat Joseph Felton fairly.
By the way, in 2010 the same 7th Circuit reversed and remanded a too-lenient conviction by Judge Shadur of a politician convicted of corruption, to another judge. The defendant was Edward Vrydolyak, date of birth December 28, 1937, a white male and a powerful Cook County official in Chicago.
This is Vrydolyak advocate judge Shadur:
I wonder if the two are relatives - looks like it by the facial features, but what is beyond dispute is that both of them are old white powerful males, and one supports the other, in violation of his duties and the law.
In 2015, the wonderful white man Edward Vrydolyak, who was given an extremely - and inappropriately - lenient treatment by Judge Shadur that led to the reversal of 2010, was at the center of a federal tax-evasion indictment.
And, of course, you do not have to ask what race plaintiff Joseph Felton is.
Here is his picture.
From his decisions and conduct in Felton's lawsuit, Judge Shadur appears to be an elderly white racist thinking that injuries inflicted by the police upon a black man should not be chargeable in civil rights litigation per se - looks like, doesn't it?
Judge Shadur also recused from the lawsuit of Michael Jordan, a black litigant, and a famous black litigant, in June 2014, and retaliated against Michael Jordan's attorney who claimed bias.
That happened 2 months after Judge Shadur dismissed pro se black civil rights plaintiffs Joseph Fenton's lawsuit, 4 days after it was filed and before it was even served:
Note what the judge said in Docket 5, date September 8, 2014:
"It is frankly an affront to the judicial system for Felton to attempt, like alchemists of the Middle Ages, to transmute base metal into gold. Section 1915A(b)(1) amply justifies the dismissal of both Felton's Complaint and his action as frivolous, and this Court so orders."
No service on defendants.
No discovery.
No jury.
Just Judge Shadur acting as the replacement of judicial process and who mocked the injured plaintiff and tossed his claim of excessive police force that, the plaintiff claimed, caused his injuries. So, to toss the complaint, Judge Shadur had to also decide the issue of causation, without a medical expert, discovery or jury.
Judge Shadur undoubtedly acted here as an advocate for government defendants and mocked the civil rights plaintiff.
That behavior was noted by the 7th Circuit in another case when in November of 2014, the same year, the 7th Circuit reversed a sex-bias case decided by Judge Shadur, also because of bias, here is the full opinion.
The federal court specifically noted the "unmistakable (and to [the court] incomprehensible) tone of derision that pervades [Judge Shadur's] opinion"
Yet, after all of that, Judge Shadur was still allowed to stay on the bench and continue, same as another 92-year old federal judge who had multiple reversals, Manuel T. Real of a U.S. District of California and who remains on the bench despite an astounding number of reversals indicating, same as with Judge Milton Shadur, senility, and thus disability and incompetence and unfitness for the bench.
As to the detailed story of how white Judge Shadur tossed black civil rights plaintiff Joseph Felton's excessive force case and what misconduct Judge Shadur engaged in to discriminate against Joseph Felton after the dismissal, interfere with his right to appeal and punish him for appealing the dismissal, stay tuned.
This coming weekend is the 4th of July weekend.
Our rights that the 4th of July celebrates, for the 240th time, are obtained by many Americans who gave their lives for us to have those rights.
Let's not allow our errant government officials to take those rights away.
What the 7th Circuit did in overturning Judge Shadur - again - is one step in the right direction to restore one of our major rights taken away by federal courts through Iqbal and Twombly and similar decisions.
The 7th Circuit reversed Judge Shadur for what Iqbal and Twombly allowed - for drawing upon the judge's own experience, however obtained (here, Judge Shadur obtained his extrajudicial experience by reading newspaper accounts of the chase of plaintiff Fenton).
We need to put pressure on the U.S. Congress to restore our rights under the 7th Amendment to the U.S. Constitution for a jury trial in civil rights litigation.
For a separate blog about Judge Shadur's discrimination against black pro se civil rights plaintiff Joseph Felton, stay tuned.
In fact, factual pleadings were, since long ago, deemed implausible, because such rules require people to plead enough facts to survive the lawsuit before discovery, and often under the circumstances when the proof is within exclusive possession of the defendants.
That is even more true when the parity of power between the plaintiffs and the defendants is squarely with the defendants, when the defendants are the government and the plaintiffs are lay individuals.
Yet, the U.S. Supreme Court chose to actually re-create the factual pleadings, FRCP 8 be damned, in two cases:
1) Bell Atlantic Corp. v Twombly, 550 U.S. 544 (2007), and
2) Aschcroft v Iqbal, 556 U.S. 662 (2009),
prompting a cartoonist to describe civil rights cases dismissed because they did not satisfy the court-invented factual pleading amendment to the FRCP 8 and FRCP 9 as "twomblied in the iqbals".
After these two cases, the majority of civil rights cases are dismissed, and only a very small fraction of civil rights cases reach beyond discovery and to trial. The courts, this way, obtained a result, reduction of their overloaded docket - but at the sake of fairness and with the help of violating the law and blocking real victims of constitutional violations from having any remedy for those violations against the government perpetrators.
In Bell Atlantic Corp. v Twombly, 550 U.S. 544 (2007), see description of the case also here, the court changed a decades-old rule, which was in compliance with FRCP 8, the claim-pleading standard, that a civil (and a civil rights) case in federal court will not be dismissed unless there may be NO set of facts under which the claim could be valid - a difficult standard for the defendants to meet before discovery, and the intention of FRCP 8 to adjudicate claims on the merits and not on pleadings.
Twombly was an antitrust case alleging anti-competitive behavior of telecommunications companies.
The court in Twombly indicated that certain pled facts, while being admissible circumstantial evidence of a conspiracy, are not enough, per se, to carry the claim of violation of the antitrust, Sherman Act.
In other words, the U.S. Supreme Court usurped the function of the jury, in violation of hte 7th Amendment, and claimed that a civil rights plaintiff must plead enough admissible facts for a jury to find for the Plaintiff, at the outset of the case and before discovery, including discovery of evidence in exclusive possession of the defendants,
When Twombly was decided, legal scholars already said that it rendered a motion to dismiss unconstitutional.
In Aschcroft v Iqbal, 556 U.S. 662 (2009), see description of the case also here, the U.S. Supreme Court has added insult to injury and allowed judges to consider their own experience and
Aschcroft v Iqbal was a politically charged case where the U.S. Supreme Court held that governmental officials cannot be charged for failure to supervise their subordinates engaging in racial and religious discrimination of suspects detained after September 11, 2001 attacks.
The court in Iqbal dismissed the case for conspiracy among governmental officials, defendants in the action, to engage in a conspiracy to discriminate because the plaintiffs could not provide facts in the pleadings that would allow the court to "draw inferences" of such discrimination.
Since a federal court would not draw inferences against the government until proof of conspiracy is provided, and proof cannot be provided until discovery, and even then, the evidence may be circumstantial and subject to a jury determination whether, on such facts, conspiracy should be found, after Iqbal, no conspiracy can be proven until plaintiffs, using their limited or, often, non-existent resources, wrangle from the government some kind of a confession of a conspiracy to violate their constitutiona rights - which, as any reasonable person would understand, is an unrealistic possibility.
Moreover, FRCP 9(b) specifically states that it does not require to show meetings of the mind at the pleading stage:
"[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally".
Yet, the court in Iqbal, and federal courts throughout the country after Iqbal universally violate this rule in civil rights actions by demanding that the civil rights plaintiffs put into pleadings facts showing "malice, intent, knowledge, and other conditions of the mind" of governmental defendants.
In Iqbal, the U.S. Supreme Court also allowed judges to become unsworn witnesses, and thus, advocates in the proceedings on behalf of defendants by allowing judges, in considering a motion to dismiss a case, to draw and rely upon the judge's own experiences (unknown to the plaintiffs).
It is irrefutable that Iqbal and Twombly was protective of the government and was aiming to undermine, and did effectively undermine, the civil rights litigation based on existing statutes and rules.
The U.S. Supreme Court in Iqbal and Twombly acted like a crook helping crooks - let's call a spade a spade - in telling the injured victims of constitutional violations: "haha, you cannot prove it - because we hold the evidence you need that you can get only through discovery? - tough, case tossed before discovery because you cannot prove it".
After Iqbal, some practicing attorneys cautiously stated that while the pleading rules did not change (only technically, FRCP 8 and 9 did not change), "the game" changed:
But, practicing attorneys, in their dual rope-balancing act of pleasing the court while advertising their knowledge to gain more paying clients, sometimes do not pay attention how crass their comments may be.
The author of the above quoted article, Robert L. Rothman, an attorney from Georgia, didn't notice, apparently, when putting his "game changing" comment in the very first, "catch", paragraph, of his article, that equating adjudication of human rights violations with a "game" being played is (1) inappropiate, and (2) revealing - because that is EXACTLY what the government, and the courts turned the promise given to people in the Civil Rights Act, of providing a remedy for constitutional violations: and that is a game, and a rigged game.
Let's note that in both cases, Twombly and Iqbal, the U.S. Supreme Court dismissed the action based on a new "rule" that it JUST CREATED, which means - when the plaintiffs were pleading their case, those new rules did not exist, and the plaintiffs, or their attorneys, did not have notice of those rules.
And, of course, such a drastic change of rules as occurred in Iqbal and Twombly, severely restricting civil rights plaintiffs' access to court, guaranteed by the 1st Amendment, and barring victims of unconstitutional conduct by government officials to have effective legal remedies for their injuries, is a matter of POLICY, of LEGISLATIVE POLICY, which is NOT within the Article III authority of federal courts to adjudicate, but is within the EXCLUSIVE authority of the U.S. Congress to deal with.
The U.S. Supreme Court cannot change rules by interpretation, it has no such authority under Article III of the U.S. Constitution which describes authority of federal courts.
Yet, the U.S. Supreme Court treated Twombly, its own interpretation of Rule 8, and an ultra vires interpretation, unlawfully changing the Rule, and not the original text of Rule 8, as controlling itself in deciding Iqbal, a further amendment through interpretation of Rule 8.
Consider the possibilities of this game-rigging strategy.
You have a rule you do not want to comply with.
You know that the highest court of the country acts mostly like a political body, picking and choosing cases for its limited docket only when it wants to either issue some sensationalized case and garner some political capital for further perks, speeches, trips and books from the legal establishment, or to help the government escape liability under existing statutes.
With that in mind, you pitch at that body a catch they cannot miss, so they take the case and decide it your way (for how much in bribes I can only imagine - what? U.S. Supreme Court judges were never caught in conflicts of interest? They did not just decide U.S. v McDonnell, practically legitimizing and thus encouraging the bribing of government officials in the United States?).
You have a rule.
You rig the rule once.
The next time you are requested to rig the rule, in reviewing of the rule, you use in rigging the rule not the text of the rule itself, but your previous - rigged - interpretation of that rule, to rig it further.
That's the logic of Rule 8 and 9 turned into civil rights lawsuits "twomblied in the iqbals" en masse.
Legal scholars were not as forgiving to the change of rules as practicing attorneys whose livelihood depends on "may we please the court", no matter what kind of misconduct the court may be committing on the attorneys' watch. (The best example of that cowardly behavior is the Kids for Cash scandal in Pennsylvania where a judge was selling kids for money into juvenile detention facilities FOR YEARS, while many attorneys knew about it, but kept mum, and that starts from the prosecutor or prosecutors of such cases who KNEW that juveniles' rights were violated and built their careers on it.)
After Iqbal, U.S. Senator Arlen Specter from Pennsylvania introduced a "Notice Pleading Restoration Act", but, Senator Specter was voted out of office in 2011 (when he was already critically ill with cancer), and the bill was not enacted. Senator Specter, who tried to make a difference for us all and to restore to Americans their right to a jury trial in civil rights cases, guaranteed by the 7th Amendment to the U.S. Constitution, died in 2012.
Senator Specter's memory should be honored this coming July 4, 2016 for what he was trying to do for all of us.
While attorneys matter-of-factly claimed "game change", and Senator Specter introduced a bill to kill the Twombly/Iqbal rigging of the 7th Amendment, legal scholars squarely called Iqbal (which was based on Twombly) unconstitutional.
So, before rigging Rule 8 and Rule 9, the U.S. Supreme Court and lower federal courts - sworn to uphold the U.S. Constitution, and every provision and Amendment to it - actually rigged the 7th Amendment to the U.S. Constitution, claiming that the way to interpret it is
- to pin constitutional rights of present-day U.S. citizens to a jury trial in federal court,
- guaranteed to people in the U.S. by the U.S. Constitution, the 7th Amendment that was ratified in 1791, 15 years AFTER the U.S. was created as a country separate and distinct from the British monarchy with which Americans went to war and laid down their lives to gain their country's independence
- to how the right to a jury trial was understood in that monarchy, England, in 1791.
There was no logic or LEGALITY in that "historic test", but, with the help of that "test", the right of Americans, under their own U.S. Constitution, to the jury trial in civil rights cases was rigged - and is continued to be rigged every day by courts applywing Twombly and Iqbal, which cuts off the 7th Amendment right to a jury trial allowing judges to make factual considerations, drawing on judges' own experience and "common sense" - as judges understand it.
So, while we are about to celebrate the 240th anniversary of this country's Declaration of Independence from Britain, the absolute monarchy AND FROM ITS LAWS, our celebration is rigged and dampened by our own courts, starting with the top one, the U.S. Supreme Court, because those same laws that we as a country claimed independence from in a war where many of Americans laid down their lives to achieve that independence, are jammed right down our throats through various "historic tests" - like the one described above - which restrict our constitutional rights based on the death grip of ancient British common law, the very common law that people fled from to America in the first place.
That's why I perceived the news that the U.S. Court of Appeals for the 7th Circuit recently overturned a case where a judge, following the U.S. Supreme Court encouragement and directive in the Iqbal case to draw upon the judge's "experience", actually googled the case and based his determination of dismissal of an excessive-force civil rights lawsuit against the police upon newspaper articles.
I obtained the docket of the case from the lower court, and it is a saga of retaliation of Senior U.S. District Court Judge Milton I. Shadur against pro se injured (and now incarcerated) plaintiff Joseph Felton that I will describe in a separate blog.
For now - Joseph Felton won his appeal, and I hope he will be given a new judge on remand, because, judging from the docket, Judge Milton I. Shadur, date of birth June 25, 1924 who just turned 92 of age, has no energy to handle this case properly and is unable to treat Joseph Felton fairly.
By the way, in 2010 the same 7th Circuit reversed and remanded a too-lenient conviction by Judge Shadur of a politician convicted of corruption, to another judge. The defendant was Edward Vrydolyak, date of birth December 28, 1937, a white male and a powerful Cook County official in Chicago.
This is Vrydolyak advocate judge Shadur:
I wonder if the two are relatives - looks like it by the facial features, but what is beyond dispute is that both of them are old white powerful males, and one supports the other, in violation of his duties and the law.
In 2015, the wonderful white man Edward Vrydolyak, who was given an extremely - and inappropriately - lenient treatment by Judge Shadur that led to the reversal of 2010, was at the center of a federal tax-evasion indictment.
And, of course, you do not have to ask what race plaintiff Joseph Felton is.
Here is his picture.
From his decisions and conduct in Felton's lawsuit, Judge Shadur appears to be an elderly white racist thinking that injuries inflicted by the police upon a black man should not be chargeable in civil rights litigation per se - looks like, doesn't it?
Judge Shadur also recused from the lawsuit of Michael Jordan, a black litigant, and a famous black litigant, in June 2014, and retaliated against Michael Jordan's attorney who claimed bias.
That happened 2 months after Judge Shadur dismissed pro se black civil rights plaintiffs Joseph Fenton's lawsuit, 4 days after it was filed and before it was even served:
Note what the judge said in Docket 5, date September 8, 2014:
"It is frankly an affront to the judicial system for Felton to attempt, like alchemists of the Middle Ages, to transmute base metal into gold. Section 1915A(b)(1) amply justifies the dismissal of both Felton's Complaint and his action as frivolous, and this Court so orders."
No service on defendants.
No discovery.
No jury.
Just Judge Shadur acting as the replacement of judicial process and who mocked the injured plaintiff and tossed his claim of excessive police force that, the plaintiff claimed, caused his injuries. So, to toss the complaint, Judge Shadur had to also decide the issue of causation, without a medical expert, discovery or jury.
Judge Shadur undoubtedly acted here as an advocate for government defendants and mocked the civil rights plaintiff.
That behavior was noted by the 7th Circuit in another case when in November of 2014, the same year, the 7th Circuit reversed a sex-bias case decided by Judge Shadur, also because of bias, here is the full opinion.
The federal court specifically noted the "unmistakable (and to [the court] incomprehensible) tone of derision that pervades [Judge Shadur's] opinion"
Yet, after all of that, Judge Shadur was still allowed to stay on the bench and continue, same as another 92-year old federal judge who had multiple reversals, Manuel T. Real of a U.S. District of California and who remains on the bench despite an astounding number of reversals indicating, same as with Judge Milton Shadur, senility, and thus disability and incompetence and unfitness for the bench.
As to the detailed story of how white Judge Shadur tossed black civil rights plaintiff Joseph Felton's excessive force case and what misconduct Judge Shadur engaged in to discriminate against Joseph Felton after the dismissal, interfere with his right to appeal and punish him for appealing the dismissal, stay tuned.
This coming weekend is the 4th of July weekend.
Our rights that the 4th of July celebrates, for the 240th time, are obtained by many Americans who gave their lives for us to have those rights.
Let's not allow our errant government officials to take those rights away.
What the 7th Circuit did in overturning Judge Shadur - again - is one step in the right direction to restore one of our major rights taken away by federal courts through Iqbal and Twombly and similar decisions.
The 7th Circuit reversed Judge Shadur for what Iqbal and Twombly allowed - for drawing upon the judge's own experience, however obtained (here, Judge Shadur obtained his extrajudicial experience by reading newspaper accounts of the chase of plaintiff Fenton).
We need to put pressure on the U.S. Congress to restore our rights under the 7th Amendment to the U.S. Constitution for a jury trial in civil rights litigation.
For a separate blog about Judge Shadur's discrimination against black pro se civil rights plaintiff Joseph Felton, stay tuned.
Wednesday, June 29, 2016
You criticize a judge? Here's the new law for you: 28 ex parte communications and counting
I continue to report about misconduct of federal judge Norman Mordue and former Magistrate David Peebles (whose term expired on May 16, 2016, but he continues to pretend he is a judge).
On May 13, 2016 I filed a motion to recuse Judge Mordue and David Peebles citing numerous ex parte communications of the court with the parties and counsel about pending motions regarding my right to legal fees for 3.5 years of representation in that civil rights lawsuit (which settled, based on my work, but without paying me, on June 17, 2016).
Plaintiffs new attorney, the delightfully ... disingenuous Woodruff Carroll filed an affidavit with the court on May 31, 2016 (Docket No. 151) where he claimed, under oath, two diametrically opposite things:
1) that the court discussed multiple issues (Mr. Carroll dutifully listed those) at an ex parte in person hearing for which I received no notice; but
2) that there was no ex parte communications and those issues - from a still pending motion that I filed on May 13, 2016 (Docket No. 112) are "resolved" at the hearing.
The transcript of that hearing was then sealed, Docket 144, and the court proceeded happily to engage in more ex parte communications with parties and counsel.
I actually undertook to count the number of times when Judge Norman Mordue and David Peebles engaged in ex parte communications regarding my rights and pending motions.
28.
28 times.
11 ex parte communications before I filed a motion to recuse BECAUSE of ex parte communications and 17 ex parte communications after I filed that motion to recuse. And the issue whether there were ex parte communications was "resolved", according to attorney Woodruff Carroll, on June 3, 2016, at yet another ex parte communication.
I was not given notice of any of that.
Go figure, it appears that the U.S. District Court for the Northern District of New York has a new rule - ex parte communications are now not only legitimate, but fashionable.
Mr. Carroll also filed a Memorandum of Law with the court where he claimed about 10 times that all my claims of case-fixing and ex parte communications are "crackpot", that's Mr. Carroll's new legal term for "irrefutable documentary evidence of judicial and attorney misconduct".
Of course, when somebody discusses motions against you in an ex parte manner
Apparently, I must accept that laws do not apply to me - because, as Mr. Carroll claimed, I was suspended from the practice of law for suing public officials. That interesting suggestion never appeared in my disciplinary proceedings, or my order of suspension, so it would be interesting to depose Mr. Carroll about his sources of information.
In fact, I argued to the disciplinary court that my disciplinary proceedings are politically motivated.
Now Mr. Carroll, after some ex parte communications with Judge Mordue (who I sued) and David Peebles (who I also sued) reports to me in a Memorandum of Law (Docket 151-1) that the real reason of my suspension, which is not reflected in the record, is because I sued public officials (including, I understand, David Peebles).
And that my motion to recuse - for ex parte communications documented in the record - are "crackpot", and that I have an ability to "turn a traffic ticket into a felony" for myself.
In other words - why did you, stupid Mrs. Neroni insist on the rule of law?
By the way, Mr. Carroll actually calls me "Tatiana", that's the only person, other than his nearly-70 year old client Dara Argro who he calls by their first names in pleadings, others he knows to address respectfully. And, by the way, I did not permit Mr. Carroll to call me by my first name, we never met, never talked on the phone, and the only time I want to meet Mr. Carroll is in court when I will sue him for fraud and fraud upon the court.
What transpires from Mr. Carroll's delightfully disingenuous Memorandum of Law (Docket 151-1) is, had I not engaged in professional activity as a civil rights attorney, I would have had my law license and livelihood intact.
Huh?
Isn't Mr. Carroll a civil rights attorney himself - at least, he pretends to be that?
Isn't Mr. Carroll supposed to question the government's motives on behalf of his clients?
Now, Mr. Carroll thinks that had I bent over, had you not insist on your stupid rule of law, Mrs. Neroni, you would have been hunky-dory now, just like him.
By the way, Mr. Carroll had the audacity to claim that I did not practice law for a long time - in a case which I litigated for 3.5 years, through several motions to dismiss and summary judgment, and brought to trial, in a case where Mr. Carroll enriched himself using the fruits of my labor, but tries to block me from being paid - at all, and claiming that my former clients have a "vested interest" IN MY SUSPENSION and will be PREJUDICED if my suspension is reversed.
Figure.
Since you do not want to accept that judges are gods and can do anything on a whim, Mrs. Neroni, since you tried to do SOMETHING to have rampant and pervasive judicial misconduct controlled at least somehow - here are 28 ex parte communications by judges you sued about your rights, Mrs. Neroni, it's the new law for you.
Enjoy.
The problem is though, that if such judicial misconduct is happening towards me, a vocal and well trained legal expert, what is happening with pro se parties?
Just imagine.
On May 13, 2016 I filed a motion to recuse Judge Mordue and David Peebles citing numerous ex parte communications of the court with the parties and counsel about pending motions regarding my right to legal fees for 3.5 years of representation in that civil rights lawsuit (which settled, based on my work, but without paying me, on June 17, 2016).
Plaintiffs new attorney, the delightfully ... disingenuous Woodruff Carroll filed an affidavit with the court on May 31, 2016 (Docket No. 151) where he claimed, under oath, two diametrically opposite things:
1) that the court discussed multiple issues (Mr. Carroll dutifully listed those) at an ex parte in person hearing for which I received no notice; but
2) that there was no ex parte communications and those issues - from a still pending motion that I filed on May 13, 2016 (Docket No. 112) are "resolved" at the hearing.
The transcript of that hearing was then sealed, Docket 144, and the court proceeded happily to engage in more ex parte communications with parties and counsel.
I actually undertook to count the number of times when Judge Norman Mordue and David Peebles engaged in ex parte communications regarding my rights and pending motions.
28.
28 times.
11 ex parte communications before I filed a motion to recuse BECAUSE of ex parte communications and 17 ex parte communications after I filed that motion to recuse. And the issue whether there were ex parte communications was "resolved", according to attorney Woodruff Carroll, on June 3, 2016, at yet another ex parte communication.
- Ex parte letter motions.
- Ex parte orders.
- The docket shows even an ex parte motion for an anti-filing injunction, to prohibit me to file anything without court's permission - filed by attorney Erin Donnelly of Levene, Gouldin and Thompson of Binghamton, NY, I guess, LGT trains its associates to file motions like that ex parte;
- Ex parte telephone conferences.
- Three ex parte in-person meetings, in January, February and June of 2016.
I was not given notice of any of that.
Go figure, it appears that the U.S. District Court for the Northern District of New York has a new rule - ex parte communications are now not only legitimate, but fashionable.
Mr. Carroll also filed a Memorandum of Law with the court where he claimed about 10 times that all my claims of case-fixing and ex parte communications are "crackpot", that's Mr. Carroll's new legal term for "irrefutable documentary evidence of judicial and attorney misconduct".
Of course, when somebody discusses motions against you in an ex parte manner
Apparently, I must accept that laws do not apply to me - because, as Mr. Carroll claimed, I was suspended from the practice of law for suing public officials. That interesting suggestion never appeared in my disciplinary proceedings, or my order of suspension, so it would be interesting to depose Mr. Carroll about his sources of information.
In fact, I argued to the disciplinary court that my disciplinary proceedings are politically motivated.
Now Mr. Carroll, after some ex parte communications with Judge Mordue (who I sued) and David Peebles (who I also sued) reports to me in a Memorandum of Law (Docket 151-1) that the real reason of my suspension, which is not reflected in the record, is because I sued public officials (including, I understand, David Peebles).
And that my motion to recuse - for ex parte communications documented in the record - are "crackpot", and that I have an ability to "turn a traffic ticket into a felony" for myself.
In other words - why did you, stupid Mrs. Neroni insist on the rule of law?
By the way, Mr. Carroll actually calls me "Tatiana", that's the only person, other than his nearly-70 year old client Dara Argro who he calls by their first names in pleadings, others he knows to address respectfully. And, by the way, I did not permit Mr. Carroll to call me by my first name, we never met, never talked on the phone, and the only time I want to meet Mr. Carroll is in court when I will sue him for fraud and fraud upon the court.
What transpires from Mr. Carroll's delightfully disingenuous Memorandum of Law (Docket 151-1) is, had I not engaged in professional activity as a civil rights attorney, I would have had my law license and livelihood intact.
Huh?
Isn't Mr. Carroll a civil rights attorney himself - at least, he pretends to be that?
Isn't Mr. Carroll supposed to question the government's motives on behalf of his clients?
Now, Mr. Carroll thinks that had I bent over, had you not insist on your stupid rule of law, Mrs. Neroni, you would have been hunky-dory now, just like him.
By the way, Mr. Carroll had the audacity to claim that I did not practice law for a long time - in a case which I litigated for 3.5 years, through several motions to dismiss and summary judgment, and brought to trial, in a case where Mr. Carroll enriched himself using the fruits of my labor, but tries to block me from being paid - at all, and claiming that my former clients have a "vested interest" IN MY SUSPENSION and will be PREJUDICED if my suspension is reversed.
Figure.
Since you do not want to accept that judges are gods and can do anything on a whim, Mrs. Neroni, since you tried to do SOMETHING to have rampant and pervasive judicial misconduct controlled at least somehow - here are 28 ex parte communications by judges you sued about your rights, Mrs. Neroni, it's the new law for you.
Enjoy.
The problem is though, that if such judicial misconduct is happening towards me, a vocal and well trained legal expert, what is happening with pro se parties?
Just imagine.
Monday, June 27, 2016
And the cashflow just got better - the U.S. v McDonnell SCOTUS case
On May 20, 2016 I ran a blog about the expected decision against Virginia Governor Bob McDonnell.
I said then, as I am saying now, that what the court was deciding was (1) a non-issue, but, since the court actually chose to decide that case, out of all cases, (2) it is very important to judges, personally.
The court was supposed to decide whether a mere quid pro quo is really corruption.
Appears like Governor McDonnell got a mint from a friend and cannot be blamed for it.
But, the "mint" was actually $175,000 in donations from a businessman for whom Governor McDonnell organized meetings and thus opened doors that would otherwise have remained closed.
And, lo and behold, the U.S. Supreme Court legitimized such "donations" to public officials in exchange for favors, as of today - that is amendment and annihilation of an anti-corruption federal statute through interpretation.
So, arranging for favorable treatment by public officials who are subordinates of the public official who is paid money to do the phone call, is not punishable as corruption.
YAHOO!!!!
As the court decision unrolled, I can envision lines forming of those who want to open the doors into offices of public officials, including U.S. Supreme Court judges, with their feet - because their hands are too busy holding gifts for favors, big and small, like the decision in Governor McDonnell's case.
That's how they did business from time immemorial.
But, at least, in time immemorial they did not have a Constitution and they did not have a court that spits on that Constitution by arranging for cash flow to continue an increase to corrupt public officials
at the time when America's economy is not at its best and when average Americans are financially struggling.
Or, maybe, it is because the economy is not at its best that the U.S. Supreme Court arranged for a sure channel of income for public officials.
So, now even if you catch a public official "arranging" a favor for a "benefactor", even for money, that will be "not unlawful" under U.S. v McDonnell.
Of course, to any reasonable person who is not a governmental official, that is a non-question. Corruption is not just passing money from hand to hand, but passing "pleasantries", tangible and intangible benefits and favors.
So, as of today, Scalia's hunting trips would be legit.
I understand, corruption is so vast in this country that the U.S. Supreme Court got concerned that too many important hosters of hunting trips can be swept in, and all the freebies will be gone.
Of course, the U.S. Supreme Court does not have authority to LEGISLATE and to CHANGE a statute by interpretation.
And, of course, the U.S. Congress has the power to act and AMEND the Hobbs Act defining the punishable act to include what the type of favor that McDonnell did.
Whether the U.S. Congress will do that though, is a question.
After all, under U.S. v McDonnell, U.S. Congressmen may be paid LARGE amounts of money for NOT engaging in an official act of legislating - and that will not be corruption, according to the U.S. Supreme Court.
So - why bother?
I said then, as I am saying now, that what the court was deciding was (1) a non-issue, but, since the court actually chose to decide that case, out of all cases, (2) it is very important to judges, personally.
The court was supposed to decide whether a mere quid pro quo is really corruption.
Appears like Governor McDonnell got a mint from a friend and cannot be blamed for it.
But, the "mint" was actually $175,000 in donations from a businessman for whom Governor McDonnell organized meetings and thus opened doors that would otherwise have remained closed.
And, lo and behold, the U.S. Supreme Court legitimized such "donations" to public officials in exchange for favors, as of today - that is amendment and annihilation of an anti-corruption federal statute through interpretation.
So, arranging for favorable treatment by public officials who are subordinates of the public official who is paid money to do the phone call, is not punishable as corruption.
YAHOO!!!!
As the court decision unrolled, I can envision lines forming of those who want to open the doors into offices of public officials, including U.S. Supreme Court judges, with their feet - because their hands are too busy holding gifts for favors, big and small, like the decision in Governor McDonnell's case.
That's how they did business from time immemorial.
But, at least, in time immemorial they did not have a Constitution and they did not have a court that spits on that Constitution by arranging for cash flow to continue an increase to corrupt public officials
at the time when America's economy is not at its best and when average Americans are financially struggling.
Or, maybe, it is because the economy is not at its best that the U.S. Supreme Court arranged for a sure channel of income for public officials.
So, now even if you catch a public official "arranging" a favor for a "benefactor", even for money, that will be "not unlawful" under U.S. v McDonnell.
Of course, to any reasonable person who is not a governmental official, that is a non-question. Corruption is not just passing money from hand to hand, but passing "pleasantries", tangible and intangible benefits and favors.
So, as of today, Scalia's hunting trips would be legit.
I understand, corruption is so vast in this country that the U.S. Supreme Court got concerned that too many important hosters of hunting trips can be swept in, and all the freebies will be gone.
Of course, the U.S. Supreme Court does not have authority to LEGISLATE and to CHANGE a statute by interpretation.
And, of course, the U.S. Congress has the power to act and AMEND the Hobbs Act defining the punishable act to include what the type of favor that McDonnell did.
Whether the U.S. Congress will do that though, is a question.
After all, under U.S. v McDonnell, U.S. Congressmen may be paid LARGE amounts of money for NOT engaging in an official act of legislating - and that will not be corruption, according to the U.S. Supreme Court.
So - why bother?
Voisine v US: will there be now a new force against police misconduct - battered police spouses?
The U.S. Supreme Court just ruled that domestic abusers cannot buy guns.
Police officers very often engage in domestic abuse - given the stress of the job and the usual impunity.
But, now police officers can be ousted from the force relatively simply - by their battered spouses who have had it.
Because, if the law is to be applied equally, a police officer who is a domestic abuser also cannot have a gun - cannot be given a gun by an employer, on the same rationale as in Voisine v US.
Right?
Police officers very often engage in domestic abuse - given the stress of the job and the usual impunity.
But, now police officers can be ousted from the force relatively simply - by their battered spouses who have had it.
Because, if the law is to be applied equally, a police officer who is a domestic abuser also cannot have a gun - cannot be given a gun by an employer, on the same rationale as in Voisine v US.
Right?
Montana Judge Jeffrey Langdon's sanctions against Attorney Robert Myers are unconstitutional in view of two U.S. Supreme Court precedent
I've just posted a blog about the witch-hunt by the Montana attorney disciplinary authorities against judicial candidate, attorney-whistleblower of judicial misconduct Robert Myers, orchestrated by alcoholic vengeful #JudgeJeffreyLangdon.
The media jumped upon the sensational opportunity to describe sanctions imposed upon Robert Myers by the very judge who he challenged with a motion to recuse, a complaint to judicial conduct authorities, and who he subpoenaed to testify (and the judge quashed his own subpoena).
Yet, I do not see the media discussing that, in view of two recent U.S. Supreme Court precedents, sanctions imposed by Judge Jeffrey Langdon upon attorney Robert Myers are invalid - under a 2015 1st Amendment precedent and under a 2016 due process precedent:
Reed v. Town of Gilbert (June 18, 2015) - content-based regulation of speech is subject to strict scrutiny, and discipline imposed upon an attorney for truthful criticism of a judge was never subjected to strict scrutiny and could never pass strict scrutiny, and
Williams v Pennsylvania (June 9, 2016) - it is a violation of due process, voiding the judicial decision, when a judge acts also as an accuser, and Judge Langdon imposed sanctions upon attorney Myers based on Judge Langdon's own order to show cause where Judge Langdon acted as an accuser, prosecutor and judge.
Judge Langdon also had the audacity of determining credibility of Attorney Myers in his claim against the judge himself, for purposes of sanctioning him (and his wife, since sanctions were based on her income, too), $10,000.
Apparently, Montana disciplinary authorities do not read U.S. Supreme Court precedent, otherwise they wouldn't have started the wasteful and unconstitutional disciplinary investigation in 2016 after Reed (2015) and they would definitely have stopped such an investigation had they read and properly applied Williams v Pennsylvania (June 9, 2016).
The media jumped upon the sensational opportunity to describe sanctions imposed upon Robert Myers by the very judge who he challenged with a motion to recuse, a complaint to judicial conduct authorities, and who he subpoenaed to testify (and the judge quashed his own subpoena).
Yet, I do not see the media discussing that, in view of two recent U.S. Supreme Court precedents, sanctions imposed by Judge Jeffrey Langdon upon attorney Robert Myers are invalid - under a 2015 1st Amendment precedent and under a 2016 due process precedent:
Reed v. Town of Gilbert (June 18, 2015) - content-based regulation of speech is subject to strict scrutiny, and discipline imposed upon an attorney for truthful criticism of a judge was never subjected to strict scrutiny and could never pass strict scrutiny, and
Williams v Pennsylvania (June 9, 2016) - it is a violation of due process, voiding the judicial decision, when a judge acts also as an accuser, and Judge Langdon imposed sanctions upon attorney Myers based on Judge Langdon's own order to show cause where Judge Langdon acted as an accuser, prosecutor and judge.
Judge Langdon also had the audacity of determining credibility of Attorney Myers in his claim against the judge himself, for purposes of sanctioning him (and his wife, since sanctions were based on her income, too), $10,000.
Apparently, Montana disciplinary authorities do not read U.S. Supreme Court precedent, otherwise they wouldn't have started the wasteful and unconstitutional disciplinary investigation in 2016 after Reed (2015) and they would definitely have stopped such an investigation had they read and properly applied Williams v Pennsylvania (June 9, 2016).
Montana supports alcoholic vengeful rogue #JudgeJeffreyLangdon to intimidate, punish for whistleblowing, prevent voter education and prevent election of an honest judicial candidate Robert Myers
According to Montana media sources, a Montana state #JudgeJeffreyLangton, through his law clerk, has turned his political opponent in election campaign, attorney Robert Myers, into disciplinary authorities for the contents of his election campaign ads - disclosing that Judge Langton is dishonest, engaged in ex parte communications and, instead of recusing from the case when caught in engaging in ex parte communications, silenced witnesses and retaliated against the attorney who brought up the issue of ex parte communication - Robert Myers, the judges opponent in the election campaign.
Judge Langton has a history of behavior making him grossly unfit for the bench - in addition to what attorney Myers raised.
Here is Judge Langton, on the right, in a 2005 picture.
In 2005, Judge Jeffrey Langdon was censured and suspended for 31 days (the horror!) for (1) after he pled guilty to driving under the influence, (2) sentenced to probation and (3) violated his term of probation. (The headline refers to another judge, I will run a separate blog dedicated to that particular male chauvinist pig in black robe compared to whom #JudgeAaronPersky is a paragon of propriety).
As to Judge Langdon, consider that usually when people violate probation, they are sent to jail.
Not so for Judge Langdon. The system protected him. Just a censure and a 31-day suspension from the bench.
Here is another article about Judge Langdon describing that he continued drinking in defiance of a court order.
Judge Langdon not only drank after the court prohibited him to do so, placing him on probation, but drunk to the point that he was found by police as "passed out" near his hotel room.
There was a recall effort at the time of Judge Langdon's censure, which apparently, was unsuccessful, so Judge Langdon continued on the bench.
When imposing the censure, the presiding judge reportedly stated to Judge Langdon: "Judge Langton, your past habitual intemperance is a constitutional basis for censure".
This is what Judge Langdon reportedly said at imposition of the discipline of censure:
Instead, Judge Langdon is allowed to:
1) decide a motion to recuse against himself;
2) quash a subpoena against himself;
3) punish an attorney for making a motion to recuse (for catching the judge red-handed in an ex parte communication, with documentary evidence of such ex parte communication) $10,000 based on attorney's behavior AFTER the proceedings in front of judge Langdon concluded.
All of the above indicate that Judge Langdon is not simply bias - he is enraged at attorney Myers and should never be near his cases.
Judge Langton has a history of behavior making him grossly unfit for the bench - in addition to what attorney Myers raised.
Here is Judge Langton, on the right, in a 2005 picture.
In 2005, Judge Jeffrey Langdon was censured and suspended for 31 days (the horror!) for (1) after he pled guilty to driving under the influence, (2) sentenced to probation and (3) violated his term of probation. (The headline refers to another judge, I will run a separate blog dedicated to that particular male chauvinist pig in black robe compared to whom #JudgeAaronPersky is a paragon of propriety).
As to Judge Langdon, consider that usually when people violate probation, they are sent to jail.
Not so for Judge Langdon. The system protected him. Just a censure and a 31-day suspension from the bench.
Here is another article about Judge Langdon describing that he continued drinking in defiance of a court order.
Judge Langdon not only drank after the court prohibited him to do so, placing him on probation, but drunk to the point that he was found by police as "passed out" near his hotel room.
There was a recall effort at the time of Judge Langdon's censure, which apparently, was unsuccessful, so Judge Langdon continued on the bench.
When imposing the censure, the presiding judge reportedly stated to Judge Langdon: "Judge Langton, your past habitual intemperance is a constitutional basis for censure".
This is what Judge Langdon reportedly said at imposition of the discipline of censure:
"My actions, which I daily regret, fell far short of my ethical obligations," he said.
The judge said he isn't blaming his conduct "on alcoholism, job stress or personal misfortunes.
"I chose to drink and I sometimes chose to drink irresponsibly. ... I accept full responsibility and accountability for that misconduct and I alone am responsible for the consequences of my actions.
He said the court-ordered alcohol treatment program he completed gave him "the basic training I needed to start up the steep trail to a better, sober and spiritually centered life."
And, of course, in his statement he referred to God in his statement to the court, as judges do when they want to get some political capital or avoid accountability for misconduct, and claimed that the "experience" will make him a better person and a better judge.
Right.
By the way, the recall effort was supported by a pastor:
The pastor correctly stated that a judge who is drinking, driving and defying court orders by more drinking is an "unfortunate example to our your people and people who have a drinking problem".
That is an understatement of the century, especially for "people who have a drinking problem" and are sent to years in jail for the same offense that Judge Langdon was just censured and not jailed at all.
Apparently, all of the above statements were just bluff to appease the court and retain the job.
In 2012, whether drunk or not, Judge Langdon got involved in a reportedly documented ex parte communication.
An attorney of the party not included into the communication, asked him to recuse.
Judge Langdon refused.
The attorney - Robert Myers - appealed.
The appeal was denied.
The attorney filed a complaint with judiciary disciplinary Commission, the very body who was already very much acquainted with Judge Langdon.
The complaint was dismissed.
Apparently inspired by all of that support, Judge Langdon sanctioned attorney Robert Myers $10,000, and put into the amount of sanctions a consideration regarding Robert Myers' wife's income.
So, Robert Myers' wife, apparently, was made financially responsible for sanctions of her husband.
The history is silent as to whether Judge Langdon was drunk - as he has a habit to be - when making that retaliative decision.
So, let's check how many avenues were exhausted with no real discipline against Judge Langdon:
- Criminal proceedings - no real accountability (Judge Langdon's breath test when he was arrested for drunk driving was reportedly twice the legal limit in Montana, not a petty violation, a serious crime exposing motorists and passengers' lives to danger);
- Probation violation proceeding - no accountability at all, usually violators of probation go straight to jail, Judge Langdon didn't;
- Judicial disciplinary proceeding - resulting in a "censure", like a tongue-lashing, "go forth and do not sin again";
- A recall effort - not successful;
- A motion to recuse - when caught in documented ex parte communication; Judge Langdon chose to preside over that motion himself and deny it;
- Appeal of Judge Langdon's decision refusing to recuse - denied;
- A disciplinary complaint against Judge Langdon regarding the ex parte communication - dismissed, apparently, Montana, same as New York, considers ex parte communications as proper conduct for its judges - at least, for some of them.
Instead, Judge Langdon is allowed to:
1) decide a motion to recuse against himself;
2) quash a subpoena against himself;
3) punish an attorney for making a motion to recuse (for catching the judge red-handed in an ex parte communication, with documentary evidence of such ex parte communication) $10,000 based on attorney's behavior AFTER the proceedings in front of judge Langdon concluded.
All of the above indicate that Judge Langdon is not simply bias - he is enraged at attorney Myers and should never be near his cases.
There was one more way to get Judge Langdon off the bench - to defeat him in the re-election campaign.
That's what attorney Robert Myers undertook to do.
But, to defeat Judge Langdon, attorney Myers had to inform the voters why Judge Langdon is bad news.
So, that's what he did - he ran some campaign ads explaining just that, what Judge Langdon did.
Judge Langdon, whether drunk or sober, decided to play dirty with his political opponent - and immediately had his law clerk send the transcript of attorney Myers' campaign ads to the attorney disciplinary committee.
And, of course, attorney disciplinary authorities of the State of Montana did not look that the judge who referred the attorney was an alcoholic, or that the attorney was right all around that the judge engaged in misconduct (whether he was punished for it or not) and personal retaliation instead of doing his job.
Instead, the disciplinary authorities of the State of Montana targeted the judicial candidate Robert Myers and started a disciplinary investigation against him which, as we know from multiple recent cases of retaliation against attorneys who raise issues of judicial misconduct (#AndyOstrowski and #DonBailey in Pennsylvania, #PaulOgden in Indiana, #ChristineMire in Louisiana, myself in New York), can very well lead to suspension or total loss of law license and livelihood.
So - attorney Myers filed a federal lawsuit for injunctive relief.
The lawsuit raises important issues of 1st Amendment and judicial retaliation. I will report on the case and on the pending motions in the case(for preliminary injunctive relief by attorney Myers and to dismiss by disciplinary authorities) in separate blogs.
Yet, the issue remains that NO MATTER WHAT a judge does - in any state, I have been reviewing information about judicial misconduct across the country for several years - the system, the government which is OUT public servants, in OUR employ, financed by OUR money and who must act for OUT benefit, instead vigorously protects a seating alcoholic judge (who insists to commit misconduct, stifle witnesses and engages in retaliation against whistleblowers despite all of his pledges at the censure hearing to be a "better judge") and viciously attacks whistleblowers.
And, I do not see millions campaigning for recall and impeachment of Judge Langdon - or any other judges who engage in retaliation against whistleblowers of their misconduct.
Instead, we see young future elite lawyers of America argue for continuing support of "judicial discretion" -
- that's the discretion Judge Langdon used to refuse to recuse when caught in the ex parte communication,
- that's the discretion the appellate court used in denying the appeal from that refusal and allowing Judge Langdon to proceed on the case,
- that's the discretion judicial disciplinary authorities used in not prosecuting judge Langdon and dismissing attorney Myers' complaint against him, and
- that's the discretion the attorney disciplinary authorities (who claim quasi-judicial power and absolute judicial immunity in federal court) use to prosecute attorney Myers and not attorney Langdon.
Yet, we do not see open letters from law students condemning THAT use - or, rather, gross abuse, of judicial discretion.
It is up to us, the people, to root out the bad apples like Judge Langdon.
And that should start from opposing discipline against Robert Myers in the media.
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