Claims and Bad Faith Law Blog

NO ARGUING LAW, NO PROVEN FACTS: THE GEORGE SANTOS CASE.

The criminal case of United States v. George Santos has taken a turn that resembles his public persona.  His attorney has filed a Response to two motions to identify the sureties who have co-signed Mr. Santos's $500,000.00 bond.  Mr. Santos's attorney, as expected, opposes both motions, one of  which was filed on behalf of the New York Times and the other one of which was filed on behalf of ABC News and a number of other news organizations.  Download United States v. Santos Response of George Santos. Doc. No. 17 filed 06.05.23 (E.D.N.Y. Cr. Case No. 23-CR-197)

          In the Response, Mr. Santos does not argue the actual law and does not prove the facts of his Response.

          On the law, the Santos Response argues that the standard for sealing documents that supposedly applies in the Third Circuit, should apply in this case pending within the Second Circuit.  According to the Response, the parties seeking to overcome secrecy must prove a compelling interest and offer a narrowly tailored means to secrecy.  This is not the law, not in the Second Circuit and not in the Third Circuit, either.

          The burden everywhere is on the party asking for the secrecy to prove that secrecy serves a compelling interest and is narrowly tailored to serve that interest.  The Santos Response turns the burden of proof on its head, removing his burden to prove secrecy and trying to shift the burden over to the parties seeking disclosure, which of course is the opposite of the law in every federal Circuit, in the Second Circuit ignored in the Santos Response,  as well as in the Third Circuit.

           (Parenthetically, the Santos Response argues for some reason that settlement agreements in civil cases are not sealed under Third Circuit case law.  Third Circuit law is to the contrary, and has been to the contrary for almost 40 years, but the  Response does not address it:  Bank of Am. Nat'l Trust & Sav's Ass'n v. Hotel Rittenhouse Assoc's, 800 F.2d 339, 343-44 (3d Cir. 1986) (holding that "the court's approval of a settlement or action on a motion are matters for which the public has a right to know about and evaluate.").)

          Even applying the test prevailing in the Third Circuit, then, the result is compelling that sureties on a bond for the release of a Member of the United States Congress on criminal charges is 'a matter for which the public has a right to know about and evaluate.'   In its own Order in this case Setting Conditions of Release and Appearance Bond, this Court previously required that the co-signing sureties identify themselves on the bond.   Download United States v. Santos Order Setting Conditions of Release and Appearance Bond filed 05.10.23 (E.D.N.Y. Cr. Case No. 23-CR-197) ( "cosigned by the financially responsible sureties identified on this bond").  The only way to know that the sureties are "financially responsible" is for the Court to accept that as proven, the sureties having been "identified on the bond."  Since the Court must approve the sureties as "financially responsible" for the $500,000.00 bond which they co-signed on behalf of the Member of Congress in this criminal case, this is a matter about which the public has a right to know and evaluate and the identities of the sureties are crucial to this evaluation.

.         The Santos Response also fails to meet its burden to prove the facts which are put forward to support it.  In the Response, Mr. Santos contends that his sureties would be harassed and perhaps even hurt if their identities were revealed to the public.  As factual "support," Mr. Santos attached one (1) hidden report of one (1) labelled threat supposedly called in to the Capital Police Department; we do not know if these representations are true, because Mr. Santos has hidden the report from us and requested that it be sealed, no further explanation given beyond his asking that it be sealed from public view.

          In the end, Mr. Santos's argument is that the two sureties that co-signed his bond (a third pulled out of co-signing it, he says), which again is a $500,000.00 bond in a criminal case against a Member of Congress, should not be made known to the public.

          Resolution of this matter seems simple enough:  The Magistrate Judge should order the sureties' identities to be disclosed to the public in this peculiar case. 

Postscript of Wednesday, June 7, 2023:

After this article was written, and on the same day, U.S. Magistrate Judge Anne Y. Shields ordered disclosure of the identity of the sureties who co-signed the bond in this criminal proceeding against a Member of Congress.  However, the Order is under seal and so is the Bond along with the identity of the sureties, at least until Friday, June 9, 2023.  That is the deadline set by the Magistrate Judge for any appeal from this Order to the U.S. District Judge.

    While as noted the Order of June 6, 2023 is sealed, the docket entry for this Order is open to the public.  Here is the text of  the docket entry for this sealed Order in United States v. Santos, Order entered by Shields, USMJ, filed June 6, 2023 (E.D.N.Y. Cr. Case No. 23-Cr-197):

ORDER: For the reasons contained in the attached Order, the motions to unseal the identities of the Suretors who signed the Bond for Defendant's pretrial release, filed herein at Docket Entries 13 and 14 , are granted. To allow Defendant to appeal this ruling to the District Court, the Clerk of the Court is directed to maintain the attached decision and all previously sealed documents, including the Bond, under seal. Any appeal of this Order must be filed by noon on Friday, June 9, 2023. So Ordered by Magistrate Judge Anne Y. Shields on 6/6/2023. (GO) (Entered: 06/06/2023)

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

CONFESSION OF JUDGMENT, FLORIDA INSURER LAWS, AND BAD FAITH.

This article once again continues the report of changes to Florida insurers' laws in 2022, and again in 2023.

Beyond restricting first-party bad faith actions against property insurers in Florida, the 2022 Florida Legislature also restricted many other claims for relief against property insurers.  Before the provision commented on and republished here yesterday was enacted by the Florida Legislature, for example, the Florida courts had consistently applied the "confession of judgment doctrine" to hold insurance carriers of all kinds liable for their insureds' attorney's fees when:

1. The carrier denied its insured benefits to which the insured was entitled under the policy at issue;
2. The carrier's denial has forced the insured to file suit against the carrier, and
3. The carrier changes position and pays the claim before a judgment has been entered in the insured's favor.[1]

             It was carefully pointed out by a Florida appellate court when its decision was published on November 9, 2022 that "[n]othing in section 627.428(1) or anywhere in the insurance code prevents the entry of a confessed judgment."^[2]  Now it does.

            The barrier to a confessed judgment, or to application of the confession of judgment doctrine if you will, is clear from the quoted change that the Legislature made to Section 624.1551 with regard to property insurers in December of that same year.   From and after the amendment's effective date of December 16, 2022, "any claim for extracontractual damages under s. 624.155(1)(b)," i.e., under the main provisions of the Florida Bad Faith Statute, would depend on proof of "an adverse adjudication by a court of law," among other things, in order to file the action against "the property insurer[.]"[3] 

           In sum to this point, the Florida Legislature enacted changes to Florida's law of bad faith which are likely to be repeated in other jurisdictions.  One is that property insurers have been singled out for a "carveout" from bad faith liability.  In Florida in 2022, the carveout was made by the Legislature in the Florida Statutes.  There does not at first blush appear to be any reason to limit similar restrictions to statutory bad faith actions.  Such restrictions would seem to be readily adaptable to common law bad faith actions.

          Another change enacted by the Florida Legislature in 2022 that is  likely to be replicated and changed again, is the idea of limiting the carveout to just property insurers.  Other insurance carriers, liability carriers and other first-party carriers among the rest, may insist on their own special exemptions from exposure to extracontractual damages of any and all kinds, arguing that such carveouts from liability should not be limited to property insurers alone.  "Beyond the borders of Florida, the appeal of these sorts of statutory changes may be irresistible to property insurers in other jurisdictions.  Beyond geography, the appeal of changes like those made for property insurers by the 2022 Florida Legislature may be irresistible to many other insurers which issue other lines of insurance."[4]

The Confession of Judgment Doctrine and the changes made by the 2022 and 2023 Florida Legislatures to the Law of Insurer Bad Faith, are all discussed in detail in 2 DENNIS J. WALL, LITIGATION AND PREVENTION OF INSURER BAD FAITH § 11:17, Fairly or Reasonably Debatable Claims (West Publishing Co., 3d Edition with 2023 Supplements in process).

[1]The confession of judgment doctrine applied by the Florida courts is well-summarized by the Court in Allstate Fire & Cas. Co. v. Castro, 351 So. 3d 127, 132 (Fla. 1st DCA 2022).   The Castro case involved a claim for uninsured (UM) motorist policy limits.

          In another case, a different appellate court held that it was the legal equivalent of a confession of judgment when a homeowner's insurer paid an appraisal award.  Therefore, the court held in that case, the homeowner's carrier's insureds were entitled to attorney's fees under Section 627.428; they prevailed in an action against their insurance carrier, even though the carrier paid the award before judgment could be entered in favor of the insured.  Bryant v. GeoVera Spec. Ins. Co., 271 So. 3d 1013, 1018-20 (Fla. 4th DCA 2019).  As can be seen from the quotation of Section 624.1551 in the text, it would appear that from and after December 16, 2022,  "the payment of an appraisal award does not constitute an adverse adjudication under this section."

[2] Allstate Fire & Casualty v. Castro, 351 So. 3d at 133.

[3] Fla. Stat. § 624.1551, as amended by 2022 Fla. Sess. Law Serv. Ch. 2022-271, § 2 (S.B. 2-A) (West), effective December 16, 2022.

[4] Wall, Consumers Had No Voice, 45 Ins. Litig. Rptr. at 90.  "The resulting situations are foreseeable, perhaps, but they have not yet taken place.  If and when they do, this article will serve as advance notice, and as a warning."  Id.

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

SUNSHINE LAWS IN FLORIDA (NOT EXACTLY FULL TRANSPARENCY, BUT ...).

This is Sunshine Week!  It's a celebration of transparency laws across the United States.  Here are some of the Sunshine Laws in Florida:

• Florida's Open Meetings Laws, Fla. Stat. §§ 286.011, et seq.
• Florida's Sunshine Laws, Fla. Stat. §§ 119.01, et seq.

    This one is a little misleading if you are not familiar with how Sunshine Laws work, including Florida's.  The Florida statutes offer some 600 exemptions where records are not open to the Sunshine.  These exemptions include when the State acquires land, for example.  Land values are sealed until the State makes a conditional decision to buy the land.  When that happens, the exemption expires.  Then the public has 30 days to check out the transaction -- except of course that the values of the land estimated by the State and the sellers are not public until after the State has already agreed to make the purchase, putting the public in the position of putting the brakes on the land deal f they can do it within 30 days -- and of course less time if they don't know about it for awhile. 

• Florida's Sunshine in Litigation Act, Fla. Stat. § 69.081.

Most if not all States and jurisdictions in the U.S. have exemptions from transparency, not just Florida.  But Florida has as its current Attorney General a person who gratuitously vows whenever Sunshine Week rolls around, as it has again this year, to safeguard transparency under the Florida laws.  General Ashley Moody, what transparent public purpose is served in your evaluation when the State acquires land in the dark, the public is in the dark, and the records about the value of the land in that transaction are private until the land is "conditionally" purchased even though it is the public's money that is used for the purchase?   Thank you.

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved. 

 

 

HUMP DAY IN SUNSHINE WEEK, ALL OVER AMERICA! FLORIDA TOO!

Wednesday of Sunshine Week is a bit of a potpourri.  This recognizes the fact that Sunshine Week is celebrated all over the United States.  For example, here is a YouTube production assembled by The National Archives about Freedom of Information Act requests: 

National Archives Sunshine Week Celebration: Making Access Happen: FOIA at the National Archives.

What could be more timely than the National Archives commenting during Sunshine Week which as I understand it is also celebrated in Mar-A-SomethingOrOther?

On Tuesday, our sister blog published an article about the Fox and Dominion Voting Systems case:  Tuesdays With More Sunshine Week!  And Ashley Moody!  Specifically, the article referenced a pleading filed in that case by Fox on Friday, March 10, 2023.  It is titled, Fox Defendants' Application for Continued Sealing of Summary Judgment Materials, and you can read it here:  Download Fox Defendants' Application for Continued Sealing of Summary Judgment Materials filed 03.10.23 in US Dominion Inc. v. Fox News Netwk. LLC (Del. Super. Ct. No. N21C-03-257 EMD .CONSOLIDATED).

See what you think.   This is the argument in a nutshell, and it goes to the heart of Dominion's defamation case against Fox:  "For a media company like Fox, proprietary newsgathering processes are the kind of competitive business information that justifies maintaining the seal."  This includes sealing "concrete details" of "how editorial decisions are made," "how reporters source their stories," and how Fox conducts its "fact-checks."  (Id., at 12.)  "Prematurely disclosing these other details on Fox's internal and proprietary journalistic processes may allow competitors to appropriate these processes for their own competitive advantage, to Fox's detriment, and may chill future newsgathering activity."  (Id., at 14.)

Convinced?  

Maybe this will change your mind, when you consider that Fox deserves "extra protection" from the Court "[i]n a high-profile case like this".  (Id., at 18.)

Speaking of Fox and yesterday's article, recall Ashley Moody.  If you do not watch Fox regularly, you might not know that Ms. Moody is the current Attorney General of the State of Florida.  You would not be likely to learn that fact from other TV outlets, because she rarely if ever appears anywhere except on Fox shows. She regularly issues a press release at this time of year that she "vows" to "safeguard" Sunshine Laws in Florida.

So, in the spirit of transparency in this Sunshine Week that Ms. Moody has "vowed" to "safeguard," after all, what does the Attorney General of the State of Florida get from Fox, and what does Fox get from the Attorney General of the State of Florida?

  

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

"NO ATTORNEY'S FEES FOR YOU!" ONLY PROPERTY INSURERS NEED APPLY.

 

A Courtroom.  (Pacific Standard)

The risk of paying an insured's  attorney's fees in the event the insured  prevails in litigation with an insurer is one of the factors that insurers must take into account.  This is something that comes to an insurer's attention first at the stage when the carrier decides whether it will deny coverage.  At that stage, the calculus includes the insurer's best guess whether the fact, timing, or context of denying an insured's claim is likely to lead to litigation.

          Once in litigation, most if not all insurers will continue the calculus by estimating the likelihood that its insured  may prevail.  The threat of paying its insured's attorney's fees is a continuing factor in making the insurance carrier's decision whether to affirm or deny coverage, whether that decision is made before or after litigation with the insured has begun.  The threat of paying an insured's attorney's fees cannot be underestimated. 

          In 2022, the statute which previously authorized a prevailing insured to recover its  attorney's fees in litigation caused by its insurer, was changed exclusively for the sole benefit of property insurers. Since the change, policyholders that win their case cannot recover their attorney's fees from a property insurer even if their property insurer was the one that caused the fees to be incurred.   However,  other insurance companies remain subject to the risk.  See Fla. Stat. § 627.428.

          The property insurers were also protected by changes to the Surplus Lines Statute governing Attorney's Fees.  In a mirror image of Section 627.428 applicable to all insurers generally, before 2022 insureds prevailing in litigation caused by their surplus lines insurers could recover their attorney's fees incurred in defending or prosecuting the litigation.  That changed in 2022, as well, but once again  only with respect to property insurers.  Other surplus lines insurance companies remain subject to the risk.  See Fla. Stat. § 626.9373.

Thomson Reuters is publishing the author's forthcoming article, Consumers Had No Voice:  Changes to Property Insurers' Laws in Florida, in the next edition of Insurance Litigation Reporter.

Please read the disclaimer.  ©2023 Dennis J. Wall.  All rights reserved.

THE VOTER VIGILANTES OF MARICOPA COUNTY, FEDERAL LAW & JUDGE: UPDATE.

 

The recent developments in an Arizona federal case surrounding the Voter Vigilantes of Maricopa County are confused and confusing by the mainstream media.  So I went out to the case docket on PACER (Public Access to [Federal] Court Electronic Records).  Here is what I found to be the case.

When last we left the story on Friday, October 28th, a federal judge had entered an order refusing to enjoin the Voter Vigilantes from  voter intimidation.  He said that he could not see how the First Amendment (right of intimidation?) could be reconciled with such an injunction, so he denied the injunction.

That was on October 28th.  Since then, the plaintiffs, augmented by the League of Women Voters, wrote an order together with the defendants reconciling the First Amendment with such an injunction.  Download Arizona Alliance for Ret. Am's v. Clear Elect's USA DE 51 Temporary Restraining Order (Stipulated and Contested) filed Nov. 1 2022 (D. Ariz. No. 2.22.cv.01823.MTL)  The federal judge signed the parties' stipulated Temporary Restraining Order on November 2, 2022 and, apparently emboldened by the parties' ability to write an order, he went further and ordered injunctive relief requested by the plaintiffs to which the defendants had not apparently agreed.

In the stipulated part of the Temporary Restraining Order, the defendants agreed not to carry guns to drop boxes in Maricopa County; to stay away from drop boxes the same 75 feet that Arizona law requires them to stay away from polling places; post a statement on their existing website and social media and on any new social media account they make, that directly contradicts everything they have been writing about drop boxes in Arizona; and other things. 

In the unstipulated part of the Temporary Restraining Order, this federal judge restrained the defendants from doxing any individuals (meaning enjoining them from publishing the names and contact information and such) who wanted to drop off their ballots.  Over the defendants' apparent opposition, this federal judge also enjoined the defendants from saying false things about Arizona voting law "through the close of voting on Election Day 2022."  Download Arizona Alliance for Ret. Am's v. Clear Elect's USA DE 51 Temporary Restraining Order (Stipulated and Contested) filed Nov. 1 2022 (D. Ariz. No. 2.22.cv.01823.MTL)

So, those are some of the things that have actually happened since last Friday, October 28, 2022 in the case of the Voter Vigilantes of Maricopa County.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

ANOTHER GRIEVANCE BOY JUDGE. THIS TIME, MARICOPA COUNTY VOTING VIGILANTES.

(Image by the U.S. District Court for the District of Arizona)

Judge Aileen Cannon of the Southern District of Florida has found notoriety with her recent rulings.

Another judge appointed by the Grievance Boy has been assigned to another case that is significant to the United States of America.  Judge Michael Liburdi has been assigned to rule on the request for a preliminary injunction filed against any continued voter intimidation by Maricopa County, AZ vigilantes.  The lawsuit was filed on behalf of the Arizona Alliance of Retired Americans, et al., in the U.S. District Court for the District of Arizona.

The assignment is stated on the PACER [Public Access to (Federal) Court Electronic Docket] as "random."  A different judge, Judge John J. Tuchi, was assigned when the case was filed on October 24.  Judge Tuchi was appointed by President Obama.  However, Judge Liburdi has now replaced Judge Tuchi. 

Judge Liburdi set a hearing on the plaintiffs' request for a preliminary injunction against voter intimidation, for 1:00 PM (Arizona time) on Wednesday, October 26, 2022.  The case number is 2:22-cv-01823-MTL.

Perhaps we will learn then whether this judge will enjoin voter intimidation in Maricopa County, Arizona, or not.  Stay tuned.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

P.S. to "MEET THE JUDGES WHO RESTORED THE REPUBLIC FOR NOW."

United States Supreme Court (AP / Jacquelyn Martin)

If (some say when) they ask for an emergency blockade of the Eleventh Circuit's decision to allow the United States to continue to investigate criminal violations involving the confidential documents found under a Court-authorized search warrant to investigate criminal violations, and also that part of the Eleventh Circuit's decision to allow the United States to continue to evaluate the damage done to our national security, then it might be worth knowing who the U.S. Supreme Court Justice is who handles emergency applications for a stay of Eleventh Circuit Orders:

U.S. Supreme Court Justice Clarence Thomas.

Think they'll ask for an emergency blockade of the Eleventh Circuit's decision?

Please read the disclaimer.  © 2022 Dennis J. Wall.  All rights reserved.

MEET THE JUDGES WHO RESTORED THE REPUBLIC FOR NOW.

Eleventh Circuit Court of Appeals, Atlanta, Georgia (Image Eleventh Circuit Court of Appeals Website)

On September 21, 2022, a federal appellate court ruled that while its appeal is pending, the United States can use the classified materials it confiscated from the beach resort in South Florida under an authorized search warrant, to investigate whatever crimes may have been committed and to review whatever damage was done to national security.  They also ruled that the United States does not have to submit the classified documents to a special master to review in the meantime.

With their unanimous order, they restored the Republic, at least for now.  Meet the Judges.

JUDGE ROBIN S.  ROSENBAUM is the senior judge among the three judges on this panel.  She has been on the Eleventh Circuit since 2014.  Having turned 56 this year, she is also the oldest of the three judges on this panel.  Judge Rosenbaum is familiar with the inner workings of most of the parties in this case, having worked as a Trial Attorney in the Department of Justice, as an Assistant U.S. Attorney in the Southern District of Florida, as a U.S. Magistrate Judge in the Southern District of Florida, and as a U.S. District Judge in the Southern District of Florida.

A graduate of the University of Miami Law School, she was nominated by President Obama and she was confirmed to the Eleventh Circuit by a vote of 91 to 0.

JUDGE BRITT GRANT was a Justice of the Georgia Supreme Court before she went to the Eleventh Circuit in 2018.  A graduate of Stanford Law School, Judge Grant was confirmed by a vote of 52-46.  She is 44 years old and a Republican by party.

JUDGE ANDREW L. BRASHER rounds out this panel of three Judges.  Judge Brasher turned 41 this year and has been on the Eleventh Circuit since June 2020.  Previously he was appointed a U.S. District Judge in Alabama where he served for about a year before going to the Eleventh Circuit.  A graduate of Harvard Law School, he too is a Republican by party.

Contrary to Mainstream Media and Alternate Media headlines, this decision did not resolve the appeal in favor of the United States, although that is the likely outcome after this ruling.  Also, this panel which decided the motion (called a "motions panel") may not be the same panel of Judges who will decide the entire appeal.  So it's on with the appeal and let's win there!

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

Asking "By What Right" Challenges Their Right to Hold Office. Ever.

(One of the last photographs taken of Abraham Lincoln)

New Mexico and its citizens and its State Courts have all shown the way to challenge the right of insurrectionists to hold -- and run for -- office:  Ask courts to declare by what right those people hold -- or seek -- office under the Fourteenth Amendment, Section 3 of the United States Constitution.  (In litigation, to ask "by what right" usually means pleading the writ of quo warranto or something similar.)

As you may already know, Section 3 of the Fourteenth Amendment was written to bar people engaged in insurrection or rebellion against the United States to ever hold office.  Then, it meant former Confederates.

Now, it means office holders (and office seekers) even though they did not engage in violence so long as the proof in court shows that they did engage in insurrection, as in the case of Download State of New Mexico ex rel. White v. Griffin Findings of Fact Conclusions of Law and Judgment filed Sept. 6 2022 (N.M. Dist. Ct. 1st Dist. Santa Fe County No. D-101-CV-2022-00473).

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved. 

'The Constitution represents popular opinion.'

(Sun Sentinel Handout)

In Download State of New Mexico ex rel. White v. Griffin Findings of Fact Conclusions of Law and Judgment filed Sept. 6 2022 (N.M. Dist. Ct. 1st Dist. Santa Fe County No. D-101-CV-2022-00473), New Mexico District Judge Francis Mathew ruled that because the defendant violated the Fourteenth Amendment, Section 3,  "effective January 6, 2021" the defendant is no longer entitled to hold public office and shall not hold state or federal office in the future.

"Mr. Griffin disregards that the Constitution itself  reflects the will of the people and is 'the supreme Law of the Land.'"  Id., ¶ 67, p. 44.

The Judge who wrote this opinion graduated from Notre Dame the year after I did.  He went on to the University of Notre Dame Law School.  Back in the day, he would have been called "a Double Domer."

Today, he is rightfully called Judge.

Please read the disclaimer.  ©Dennis J. Wall.  All rights reserved.

THE LAW AND UNSEALING SEARCH WARRANT MATERIALS.

 

Editing (LexisNexis)

A recent decision by Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia may shed some light on issues pending in the South Florida case of Trump v. United States.  The issues are masterfully laid out in the Reply Memo of the United States, here:  Download Trump v. United States Doc. No. 48 Response of USA to P's M For Judicial Oversight and Additional Relief filed August 30 2022 (S.D. Fla. No. 9.22-cv-81294-AMC).

The recent judicial decision came in the search warrant materials case of In re Application of Los Angeles Times Communic's LLC to Unseal Ct. Records, Misc. Action No. 21-16 (BAH), 2022 WL 3714289 (D.D.C. Aug. 29, 2022).  Although the L.A. Times Communications Application to Unseal Court Records case involved not private access but rather  public access to Court records, the case involved Court records which are very similar to at least some of the records sought to be unsealed in South Florida, including a search "warrant application, search warrant, supporting affidavit, and docket sheet" and "a motion and accompanying memorandum supporting continued sealing of the redacted portions of the search warrant materials[.]"   Unseal Court Records, 2022 WL 3714289, at *4.

Moreover, with the numbers of interested parties who seek to file amicus briefs or motions to intervene in the Southern District of Florida case accumulating by the day, the precise issues of public access to Court records will or may be litigated. 

For all these reasons, the rulings in the L.A. Times Communications Application to Unseal Court Records case in D.C. may enlighten the proceedings in South Florida.

There were two categories of redactions at issue in the District of Columbia case.  At least some of the materials have counterparts in the South Florida case.  The two categories of redacted materials involved in D.C. are:

(1) those aimed at protecting third-party privacy interests, including, among other things, the “private financial information” of third parties; “information gained from the cooperation of private third-party witnesses[;]; and the descriptions of DOJ's “law enforcement techniques and processes in the course of the investigation,” and (2) those meant to preserve the due process interests of investigative targets “against whom the probable cause allegations in the warrant were made” but were not charged with any criminal offenses.

Unseal Court Records, 2022 WL 3714289, at *6 (record references for internally quoted material omitted).. 

The materials sought to be unsealed are similar in both cases, the one in D.C. and the one in West Palm Beach, but the D.C. case involved a closed criminal investigation and of course the South Florida case involves search warrant and top-secret materials in what are apparently a number of ongoing investigations.  Still, the Unseal Court Records Court's resolution may be helpful in the South Florida case.

As to the first category of redacted materials, the redactions aimed at protecting the third-party privacy interests identified above -- including private financial information, information gained from witnesses, and descriptions of law enforcement techniques, sources and methods in the government's investigation -- the Court in D.C. held that the continued sealing of those materials is appropriate after considering common law and First Amendment presumptions of public access to them.  Unseal Court Records, 2022 WL 3714289, at *6.   The Court's detailed analysis is set forth in id. at *6-*7 and *10.

With respect to the second category of redacted materials, which may be accurately described as "the due process" materials, such materials require a different result depending on an examination of factors such as "misuse of a public office," whether the concealed information has already been disclosed in public, and whether disclosure would harm legitimate privacy or law enforcement interests.  Unseal Court Records, 2022 WL 3714289, at *7.  In the context of the D.C. case, the Court ordered disclosure of "DOJ's proposed redactions intended to preserve the due process interests of investigative targets" who were targets of probable cause outlined in the search warrant but against whom criminal proceedings were closed.  Unseal Court Records, 2022 WL 3714289, at *10.

In South Florida, of course, part of the materials sought to be unsealed are National Defense Information top secrets which have never been disclosed to the public by anyone at this point.  Whether they have been disclosed to anyone at all, is unknown at present.

The parties, their lawyers and the Court in the U.S. District Court for the Southern District of Florida may raise or ignore the rulings in the L.A. Times Communications Application to Unseal Court Records case in D.C.   Whatever choice they make, the Unseal Court Records decision will almost certainly be part of any appeal.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

TFG v. USA UPDATE: WHY IS THIS CASE HERE, JUDGE ASKS.

(C.D. Cal.)

 

On August 23, 2022 Judge Aileen Cannon entered the following paperless Order in Southern District of Florida Civil Case No. 22-cv-1894-AMC, which has been copied from the electronic docket on PACER:

08/23/2022

10

PAPERLESS ORDER: The Court is in receipt of 1 Plaintiff's Motion for Judicial Oversight and Additional Relief. To facilitate appropriate resolution, on or before August 26, 2022, Plaintiff shall file a supplement to the Motion further elaborating on the following: (1) the asserted basis for the exercise of this Court's jurisdiction, whether legal, equitable/anomalous, or both; (2) the framework applicable to the exercise of such jurisdiction; (3) the precise relief sought, including any request for injunctive relief pending resolution of the Motion; (4) the effect, if any, of the proceeding before Magistrate Judge Bruce E. Reinhart; and (5) the status of Plaintiff's efforts to perfect service on Defendant. Signed by Judge Aileen M. Cannon on 8/23/2022. (AMC) (Entered: 08/23/2022)

As we said in an article published yesterday, Judge Aileen M. Cannon was appointed by the alleged owner of the searched premises.

So it's on to Friday, August 26, 2022.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

TFG v. USA CIVIL COVER SHEET: "NO RELATED CASE"?

There is a Civil Cover Sheet in the new civil case addressed yesterday, which I write here for algorithm purposes to protect the innocent as they used to say on Dragnet, as:  TFG v. USA, Southern District of Florida Case No. 22-cv-81294, .  Here is the Civil Cover Sheet:

As we said yesterday, the signature appears to come from Evan Corcoran, Esquire, one of the attorneys of record for the alleged owner of the searched premises.  

Lawyers will immediately recognize the standard question in this form, which is question numbered VI, RELATED/RE-FILED CASES, in particular the standard question in every federal Civil Cover Sheet in the country:

b) RELATED CASES

___ YES  ___ NO  DOCKET NUMBER:

Although this question was left blank in this case, the answer of course is that there is a related case, and its Docket Number is Southern District of Florida Criminal Case No. 22-mj-8332-BER.  That of course is the search warrant case involving the alleged owner's searched premises.

The question is simple.  Why do you think it was not answered?

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

DECLARE YOUR INDEPENDENCE! MAKE EVERY DAY HOPEFUL.

DO WHAT YOU CAN DO.

I am only one, but I am one.

I can do something.

That which I can do, I ought to do.

And that which I ought to do,

By the Grace of God,

I shall do.

I do not know where I first came across this saying.  It seems to me that it applies today every bit as much as it has applied throughout my life, always.

There are people who despair of many things in this country right now.   They could do far worse than putting this saying into effect.  At the moment, nothing attracts more despair than the recent decision of a majority of the U.S. Supreme Court in Dobbs v. Jackson Women's Health Organization.  This is the decision which overruled Roe v. Wade and Casey, rejecting privacy rights over reproductive decisions, with more decisions to come apparently.

Many people say there is nothing to be done.

They are wrong.  They probably mean to say that it will take a long time to overrule Dobbs and to restore privacy rights over reproductive decisions.  But there is definitely something that can be done right now.

Introduce legislation which will enact the law of privacy rights over reproductive decisions.  Base the legislation on Roe v. Wade and Casey as much as those judicial decisions will translate to legislative bills, sure.  But introduce legislation which will enact privacy rights over reproductive decisions.

In the U.S. Congress, we can only be certain that there will be an outcome in the House of Representatives.  We also can be certain what that outcome will be in this case:  The legislation will pass and it will be sent to the U.S. Senate for action there.  Perhaps legislation like this has already passed the House and has been sent to the Senate already.

Leave to the Senate what the Senate will do.

If the measure has passed the House already, pass it again.  Send it again to the Senate. 

Then do it again.

In the Senate, call for a vote.  Filibusters may prevent votes on the substance of the bills, meaning filibusters prevent votes on the bills themselves.  That's fine also.  Regardless, there must always be votes on what the Senators call cloture motions, which are motions to end a filibuster.  Let the cloture votes be recorded, again and again, of all those people in the Senate who deny votes on privacy rights for reproductive decisions.

Record those votes.  There is nothing that politicians fear and dislike more than having their unpopular votes recorded and made public.

Over and over again.

If one of the bills passes both the Senate and the House, perhaps some will say that the process is fruitless because the Supreme Court will strike it down just as a present majority overruled Roe and Casey.  Well, then, if that is the case pass it again.

If the bill passes in 2022, for example, and the Supreme Court strikes it down, when another bill passes – with identical language – say in 2023, the Court did not strike that Act down yet, just the one that passed in 2022.  The current majority think they have the final word?  Let them write the final word, endlessly.  In the meantime, there is more to be done, including in the States.

Please read the disclaimer.  ©Dennis J. Wall.  All rights reserved.

DURHAM DISCLOSURES.

Durham disclosures.  They may not be what you think.

On February 11th, Mr. Durham's office filed his Motion to Inquire Into the defense attorneys' Potential Conflicts of Interest.  U.S.A. v. Sussman, Motion, Doc. 35, filed Feb. 11, 2022 (D.C.D.C. Criminal Case No. 21-582 (CRC)).  It alleged dozens of times that the defense attorneys may have had "potential" and "possible" conflicts of interest that would disqualify them as counsel in the case.

Now any attorney that has filed a motion to disqualify opposing counsel, and I have, knows very well that the way to go is to file a motion to disqualify and meet your burden of proof.  If you cannot meet your burden of proof, you do not file a motion to disqualify opposing counsel.

Mr. Durham's office did not file a motion to disqualify opposing counsel.

The motion they filed is a distraction.  It is a distraction from Mr. Durham's previous filings that prosecuted the case against Mr. Sussman, if any, in motions allegedly filled with innuendo and deception.   This one does not cite cases that support any of the "potential," "possible" alleged conflicts of interest.

One case citation does have a glaring typo, however, that proofing would have found if the motion had been proofed.  Even a computer spell check would have picked up this one.  But perhaps this motion that was filed in federal court and submitted to a federal judge should not, in the end, be remembered for a typo in a case citation by a lawyer.  

There may be more to remember than that.  The prosecutor in Mr. Durham's office that signed this motion is one of a team of prosecutors that a federal judge says withheld evidence in another case.  The federal judge, the Hon. Alison Nathan, is a highly respected federal judge, appointed before January 20, 2017.  The federal judge wrote of Mr. Durham's current assistant that "repeated failures to disclose exculpatory evidence and misuse of search-warrant returns" were errors "so severe that following a jury verdict in [the Government's] favor," both parties requested the Court to vacate the jury verdict.  The Court "vacated the jury verdict and dismissed the charges" with prejudice.  USA v. Nejad, Order, Doc. 397, at 1, filed Feb. 17, 2021 (S.D.N.Y. Case No. 18-cr-224 (AJN)).  Download USA v. Nejad Order Doc.. 397 filed 02.17.21 (SDNY No. 18-CR-224 (AJN))-prosec-misconduct-opinion.

In the same Order, Judge Nathan urged "a full investigation by DOJ's Office of Professional Responsibility of all matters related to prosecutorial misconduct in this case."  Id. at 2.

After entering the February 17 Order, Judge Nathan entered another Order on the same date.  The second Order was filed on Feb. 22, 2021.  The Judge ordered that the prosecutors file declarations (affidavits) explaining their conduct and the prosecutors requested that their testimony be kept a secret.  See USA v. Nejad, 521 F. Supp. 3d 438 (S.D.N.Y. 2021).

Back to February of 2022.  Mr. Durham told the Court in his prosecution against Mr. Sussman that he, Mr. Durham, "would make future filings under seal if they contained 'information that legitimately gives rise to privacy issues or other concerns that might overcome the presumption of public access to judicial documents.'"  Charlie Savage, Durham Distances Himself From Right-Wing Falsehoods, NEW YORK TIMES, Friday, Feb. 18, 2022, at A18.

There you are:  Durham disclosures.   

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

DROWNING THE LAW IN THE BATHTUB: THE DRAFT EXECUTIVE ORDER.

In the past week, articles here, here, and here have explored the draft Executive Order of December 16, 2020 in this space.  We have journeyed through the XO's slight-of-hand diversions from the Attorney General to the Secretary of Defense, from the Attorney General to a new Special Counsel after seizing voting machines used to elect President Biden, and perhaps most insulting to lawyers, or at least to researchers, the XO's citation to the wrong statutes.

          The XO did not update the statutes cited in it, although the newly renumbered statutes had been around for years by the time the XO was written.

          That may have been the result of incompetence, but it is hard to assign incompetence to at least three legal references that are deceptive and misleading.  Today we move from incompetence to deceptive and misleading, from falsehoods to reality.

          One is the reference to an order issued by Judge Amy Totenberg in the Northern District of Georgia before the 2020 election.  Judge Totenberg denied a preliminary injunction to plaintiffs who challenged the voting system that was chosen by the Georgia State government to use in the 2020 election.

          Let's stop and think about that for a moment:  The voting system was chosen by the Georgia State government before the 2020 election for use in the 2020 election.  No-one else, not federal officials or party officials or anyone else chose that voting system, only Georgia State government officials chose it.

          Judge Totenberg pointed out a number of potential flaws in that system, but she refused to stop its use:

Despite the profound issues raised by the Plaintiffs, the Court cannot jump off the legal edge and potentially trigger major disruption in the legally established state primary process governing the conduct of elections based on a preliminary evidentiary record.

(Emphasis added.)  When the full evidentiary record was made after the election, not one but several recounts found the election in Georgia free of any significant fraud in 2020.  There were no more "potential" flaws at that point; by then, they had presumably been corrected or they did not occur in reality.

          Contrary to the assertions in the draft XO.  It must have been delicious for them to quote an order written by the sister of Nina Totenberg, who was and is the long-time Supreme Court correspondent for PBS.  But it was apparently even more delicious for them to mis-quote Judge Totenberg.  Deceptive and misleading.

          Any lawyer knows that a preliminary evidentiary record is likely to be not even remotely close to being a full evidentiary record, perhaps not even in the same neighborhood.  Yet the draft XO represents Judge Totenberg's order to the civilian world as the same thing.  And without pointing out that Judge Totenberg's ruling was to deny the lawsuit even on a preliminary evidentiary record.  Deceptive and misleading.

          Second, the draft XO declares that Coffee County, Georgia "refused to certify its result."  That is flat-out false.  Here is what the Coffee County, Georgia officials actually did and said, in the real world:

"Accordingly, the Coffee County Board of Elections and Registration have voted to certify the votes cast in the election night report.  The election night numbers are reflected in the official certification of results submitted by our office."  Letter from Coffee County Board of Elections and Registration to Georgia Secretary of State Brad Raffensperger, Dec. 4, 2020 (emphasis added).

The Coffee County Board of Elections and Registrations voted to certify the election results in 2020; to say that it "refused to certify" is false.  Just simply false.  And misleading and deceptive.  And perhaps other things, Michaeleen.

          The final thing worth mentioning at this time is the draft XO's similar flaw in its description of voting machines in Antrim County, Michigan.  That description is now the subject of Dominion Voting Systems' lawsuit for libel and slander, so I will not comment further on it except to say that a Committee of the Michigan Legislature with a Republican Chair and a majority of Republican members issued a written report finding that the voting machines in Antrim County did not include any significant fraud.   They also sent a written request to the Michigan Attorney General to take action against those who falsely said that fraud was committed with the voting machines in Antrim County.

          Is there no end?

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

IDENTIFYING THE WOMAN THEIR XO PICKED FOR SPECIAL COUNSEL?

Yesterday's article pointed out the answer to another good question, continuing from an earlier article posted here.  Yesterday's question that springs off the page of the draft XO is why the Secretary of Defense would be directed to use the National Guard.  Why not the Army?  Download Draft Executive Order dated December 16 2020.

          We learned that both answers to the two questions are the same, i.e., the same answer to why not the Army as to why not the Attorney General:  Because they wouldn't do it.

          But there are more questions, including who is the person who would be appointed Special Counsel with full resources "necessary to carry out her duties"?  And why did they need a Special Counsel after they seized the voting machines?

          I'm afraid I haven't come up yet with an answer to why they made a Special Counsel position after they seized the voting machines.  They still had an Attorney General ... oh, right.

          So let's explore the appointment by this order of a Special Counsel with all the resources "necessary to carry out her duties[.]"  These people never used "her" or "she" meaning to be inclusive of everyone, and it is unlikely that they started on "December 16, 2020."  This crowd would not be likely to talk about "her" unless they had a woman already in mind.

          So if they had a woman in mind when they wrote this document, who did they have in mind?  That's not too hard to figure out if only because there were so few women among them.

          There were Elaine Chao and Betsy DeVos.  Unlikely.  They were both already in the Cabinet.  And almost three weeks to the day after this XO was drafted, they would resign.

          What about the lawyers at the time?  One of the lawyers would have been a natural to fill the Special Counsel job this document would make. 

          Cleta Mitchell was a lawyer in good standing with these people.  Two weeks after the XO was written, she was on the January 2nd telephone call when the former guy called to try to intimidate Georgia Secretary of State Brad Raffensperger.  After that call, her law firm "distanced itself" from her, so the reporting goes, and a few days after that she resigned from her law firm.

          According to reports, Sidney Powell is the probable choice.  Reports are already circulating that she would have been the likely pick to be the Special Counsel of this XO.

          Well, whoever it was going to be, this XO says that she would have all the resources at the disposal of the government still in power to do her duties as the Special Counsel of this XO.

          But that still leaves questions about the statutes they invoked, the district judge's order they kind of quoted, and the recount they did not come clean on....

To be continued ....

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

MORE QUESTIONS ABOUT THE DRAFT XO DATED DECEMBER 16, 2020.

The biggest question to my mind about the draft Executive Order dated December 16, 2020 continues to be why the Secretary of Defense and not the Attorney General should be ordered to seize voting machines that were used to elect President Biden.  

          Another good question that erupts  -- not just arises -- from the draft XO is why the Secretary of Defense would be directed to use the National Guard.  Why not the Army?  Download Draft Executive Order dated December 16 2020.

          Same answer as to why not the Attorney General:  Because they wouldn't do it.

          Recall the summer of 2020, specifically, the protests after the death of George Floyd.  In June 2020, Attorney General Barr had to use prison guards and border guards to strong-arm the protestors in the streets of Washington, D.C.   He and his boss the TFG just could not get the Army to do it.  The closest they could get is ordering the 82nd Airborne Division to the outskirts of D.C. before the 82nd Airborne went back to their barracks.

          The Army just wouldn't do it.  They would not fire on their own countrymen.  They wouldn't even beat them up.  Thus the border guards, and thus the prison guards, from all over, who came to Washington instead.

          Also recall that in the Summer of 2020 there was a lot of talk about the TFG invoking the Insurrection Act and using active-duty military to put the rioters away.  The Secretary of Defense at the time was Mike Esper.  He said then that he did "not support invoking the Insurrection Act."  Mr. Esper also said that active-duty soldiers should be used domestically "as a matter of last resort, and only in the most urgent and dire of situations," which did not include the protests against the death of George Floyd.

          As we noted yesterday, Mr. Esper was replaced as Secretary of Defense five months later, in November.  His replacement was one Christopher Miller, who had been a White House aide to TFG.

          The Attorney General obviously learned a lesson from the events of the Summer of 2020.  Others did not.

          So, same answer as before:  The order is not directed to the Attorney General or to the Army because they could not depend on the Attorney General to order that the voting machines be seized, and they could not depend on the Army to do it.

          But there are more questions, including who is the person who would be appointed Special Counsel with full resources "necessary to carry out her duties"?

To be continued ....

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

QUESTIONS RAISED BY THE DRAFT EXECUTIVE ORDER DATED DECEMBER 16, 2020.

The most glaring takeaway from the draft Executive Order of December 16, 2020 to my mind is the assignment to the Secretary of Defense of seizing voting machines used to elect President Biden.

          There are many things wrong with this draft XO, but that is the biggest one I think.  The document recites that "the Secretary of Defense shall seize, collect, retain and analyze" the voting machines "under United States Code Title 42, Sections 1974-1974(e)".  Download Draft Executive Order dated December 16 2020.

          First of all, there aren't any such things as Sections 1974-1974(e) now, and there weren't then.  Those statutes were renumbered long ago and reassigned to 52 United States Code Sections  20701, et seq.

          They do not authorize the Secretary of Defense to do a thing.  The statutes, then and now, give authority to the Attorney General and jurisdiction to the U.S. District Courts, not to the Secretary of Defense.

          And the authority these statutes give is not the authority to seize voting machines.

          So in all this, the question:  Why the Secretary of Defense and not the Attorney General?  Why order the Secretary of Defense to seize voting machines and not not the Attorney General, who is more involved with elections than the Pentagon, after all?

          The Attorney General at the time -- remember that this document is dated "December 16, 2020" -- already showed that he was not inclined to seize voting machines, we now know.  The Secretary of Defense at the time was a protege of TFG, appointed as recently as November 2020.

          The goal was to seize voting machines, so the goal had to include picking someone who was likely to perpetrate the seizure of voting machines rather than oppose it.  This first question has a simple answer.  That's why the Attorney General was not included here.  He wouldn't be likely to go along with it.  Someone else had to be the choice to perpetrate the scheme.

          Really, in the end, simple as that.  But why mobilize the National Guard, and why not the Army?

To be continued ....  

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

 

AFRAID OF THEIR OWN SHADOW. THEY'RE BEING VERY AFRAID.

I have developed a sixth sense for when a decision has already been made, usually when a judge rules against my client.  I will not disguise the fact that I do not agree with the Supreme Court majority's decision against a vaccine mandate in America's workplaces during a pandemic that has killed some 800,000 people so far.  But I do not write because I disagree with the substance of that decision.

          I write instead because nobody signed it.  I noticed that nobody signed the opinion when I saw that it was issued "Per Curiam."  That's a sure sign to any lawyer that the judges on that Court did not put their individual names on it.

          This was also a ruling on an application for a stay.  The ruling was that the Secretary of Labor, acting through the Occupational Safety and Health Administration (OSHA), does not have the power to mandate "that covered workers receive a COVID-19 vaccine[.]"

          This may be another example of the notorious shadow docket, or at least of the notorious use of the shadow docket to reduce publicity and avoid personal accountability.  It is also reasonable to say that judges who do not put their names to the opinions they write are ashamed of them.  The judges that do not sign their names to a decision use the shadow docket because they are afraid of their own shadow.  This decision shows that they are very afraid.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

P.S. TO FIFTH CIRCUIT STAY OF VACCINATING U.S. WORKERS.

Here is the Fifth Circuit panel's stay issued within 24 hours from when the plaintiffs filed their complaint over workers being vaccinated in the U.S.:  Download 5th Cir Next Day Stay Order Filed 11.06.21.

          I just took a look at the name of one of the plaintiffs, "Trosclair Judge Perez L.L.C."  This limited liability company bearing the name of a very wealthy owner of Louisiana supermarkets and other businesses also bears the name of Judge Perez.  Who was he, I wondered?

          Judge Perez is an unusual story.  For starters, he was such a segregationist that he was excommunicated for it.

          He also engaged in pervasive efforts to stop Black people from voting in his Louisiana Parish, efforts that today would be called voter suppression.

          Quite a cast of characters in this litigation.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

FIFTH CIRCUIT, VACCINES, AND HOPE REGARDLESS.

On Friday, the State of Texas and others representing the Republican Party sued to stop the Federal Government from vaccinating the workers of the United States.

          On Saturday, a panel of the Fifth Circuit Court of Appeals (there was no U.S. District Court involvement that I know of) issued a stay to prevent the United States from vaccinating its workers.

          The response in corporate and legal media to this decision within 24 hours of when the complaint was filed, has largely been the usual response to judicial decisions, which is that we don't know what these judges have in mind, and courts are inscrutable.

          That is ridiculous, in this case and in many others.

          Here is the real story in this case:  Two of these three judges on the Fifth Circuit panel were appointed by The Former Guy.  The third was a lawyer for the Republican Party of Texas.  (She is famed not so much for knowing the law as inventing it when she wants; for example, she overruled a Mississippi District Judge about Mississippi insurance law in a case which the Mississippi Supreme Court has rejected by name because it does not represent Mississippi law.)

          That is the panel and what it is likely to do in this vaccine mandate case is not inscrutable.  We can make a reasonable guess what these judges have in mind, based on experiencing what they have left behind during their careers.  Do you really think that the odds are that Republicans will fail with them?

          We cannot truly hope for justice until we know the odds against it.  We cannot know where we are going until we know where we are.  It is my hope that justice will prevail nonetheless, even at the hands of these judges in this particular case.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved. 

AND IN THE DISTRICT COURT, LISA NEWMAN LED THEM TO SUCCESS.

In articles posted here on October 7 on Claims and Issues Blog and here on October 12, we explored together the saga of how the U.S. Department of Justice obtained a preliminary injunction against the Texas abortion law.

          The United States had ten (10) lawyers listed on the docket of that case in the District Court, in other words, the trial court.  After a review of the District Court file, one of those lawyers clearly emerges as the lead attorney in this successful lawsuit in the trial court:  LISA NEWMAN, ESQUIRE.

          Ms. NEWMAN signed all the significant motions and pleadings filed by the United States, including the complaint and the emergency motion for Temporary Restraining Order/Preliminary Injunction.  She was obviously entrusted with great responsibilities by the Department of Justice, and the results show the wisdom of that decision.

          It is interesting that Ms. NEWMAN has only been a Trial Attorney in the Civil Division, Federal Programs Branch since October 2020.  Before that, she did many things of distinction:

• She was a law clerk at the Western District of Texas for two years before she went to the DOJ. (She may have either known, or known of, the federal District Judge in the Western District of Texas who decided this case.  He was on the bench when Ms. NEWMAN clerked in the Western District.)

• She got both her B.A. from the University of Texas, and her law degree from the University of Texas School of Law.

• To say again, the fact that ten lawyers followed Ms. NEWMAN'S lead is a testament to her legal skills.  The current department of justice would be well-advised to look to her lead again in other cases.

Including in Texas's current appeal from its loss to the team led by Ms. NEWMAN in the District Court.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

JUSTICE IS MORE LIKELY THE RESULT OF COMMITMENT, THAN CONNECTIONS.

You may already know that the department of justice's successful efforts to bar the Texas abortion law were led in the District Court by LISA NEWMAN, ESQUIRE.  See AND LISA NEWMAN SHALL LEAD TEN OF THEM ....  If you do not already know that, look for tomorrow's article here as well.

          The doj's success was fleeting, though.  Texas won the initial skirmish on appeal.  A motions panel in the appellate court, which means a panel of judges that was gathered together to hear motions in all the appeals pending in the appellate court, granted Texas' motion to lift the District Court's injunction of the Texas law in this case, as we reported in an article here on Saturday, October 9, 2021.

          Technically, the motions panel only granted a motion to stay the injunction in this case, in other words, to keep the Texas abortion law in place, for so long as it may take for the Fifth Circuit Court of Appeals to decide the motion.  See FIFTH CIRCUIT MOTION PANEL ORDER REINSTATING TEXAS ABORTION STATUTE FOUND!, posted here on Saturday, October 9, 2021.

          In reality, of course, this is the Fifth Circuit.  Things are looking grim for the doj.  The department of justice needs to maximize its chances of reaching the judges who sit on the Fifth Circuit, which covers Texas, if the United States is going to have any chance of prevailing on the merits of this case on appeal.

          The doj replaced the successful trial lawyer, LISA NEWMAN, on the appeal.  That is not unusual, that an appellate lawyer at a big firm, or in this case at the doj, comes in to handle an appeal rather than the trial lawyer who won the case.  In this particular case, it should be noted that NEWMAN is from Texas, went to the University of Texas undergrad, and then went to the prestigious University of Texas Law School.  The judges on the Fifth are likely to listen to her.

          Or they would have been.  Ms. NEWMAN has been replaced on appeal with one DANIEL WINIK, ESQUIRE.  He signed the USA's Opposition to Stay which was filed a day ahead of the deadline.  (Sorry I cannot provide a copy of it here as the blogging platform, Typepad, could not download it to this blog which is a first.  Suffice it to say that Mr. WINIK's memorandum opposed the idea of a stay in the Fifth Circuit which would necessarily reinstate the Texas abortion law.)

          MERRICK GARLAND, did someone tell you this is a good decision, removing the successful trial lawyer from the appeal?  Just asking for the country.

          Mr. WINIK is a White male who went to Yale.  Good luck relating to the judges down in the Fifth Circuit.  Not extremely likely that they'll listen to you, Mr. WINIK, but maybe.  Time will tell.  Not a winning strategy on appeal, in any case.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

FIFTH CIRCUIT MOTION PANEL ORDER REINSTATING TEXAS ABORTION STATUTE FOUND!

(Texas /Austin American Statesman)

After a long search, I have found the Fifth Circuit's Order of October 8, 2021 reinstating the Texas abortion ban statute.  Following recent Fifth Circuit precedent, the Order was issued by a three-judge motions panel without an opinion and without briefing or oral argument.  Technically, the Order is in effect until the Fifth Circuit disposes of the 'emergency' motion to stay the statute pending appeal.

          The United States has been ordered to file a response by Tuesday, October 12, 2021.

You can find the Fifth Circuit motions panel Order here for your ease of reference:  Download Order 5th Circuit Emergency Stay United States v. State of Texas No. 21-50792 (5th Cir. October 8 2021).

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

MR. KELLY'S 8 LAWYERS vs. 3 PROSECUTORS: KELLY GUILTY ON ALL COUNTS.

Mr. R. Kelly was famously found guilty by the jury on all 9 counts, which break down into a gutsy, novel Racketeer Influenced Corrupt Organizations (RICO) count and 8 counts under the Mann Act addressing sexual relations with underage victims.

          Mr. Kelly was defended by 8 lawyers according to the docket on PACER (Public Access to [Federal] Court Electronic Records).  He was successfully prosecuted by three prosecutors from the U.S. Attorney's Office for the Eastern District of New York.

          Each of the three prosecutors is a woman.  Each is a very accomplished, very successful criminal lawyer.

          They were led by ELIZABETH GEDDES, ESQUIRE.  Ms. GEDDES, a member of the U.S. Attorney's Office for 15 years, heads the Civil Rights Section of the Criminal Division at E.D.N.Y.  As is so clearly evidenced by this case, her specialty is the prosecution of racketeering and organized crime.

          Like each of the three prosecutors, Ms. GEDDES has a distinguished resume apart from her work at E.D.N.Y.  She is an adjunct at N.Y.U. in Clinical Law.

          NADIA SHIHATA, ESQUIRE has been with E.D.N.Y. for 10 years and has been the Chief of the Organized Crime and Gangs Section for nearly 2 and 1/2 years.  She graduated from the University of Michigan Law School in 2003, where she was the Editor-in-Chief of the prestigious Law Review.  At Michigan Law, she also received the Order of the Coif, one of the higher honors any law student can receive.

          Ms. SHIHATA's distinguished resume does not stop there, however.    She got an L.L.M. from N.Y.U. in 2008.  She is an adjunct at Columbia Law.

          The third member of the prosecution trio is MARIA E. CRUZ MELENDEZ, ESQUIRE.  She is the Deputy Chief of the Civil Rights Section at E.D.N.Y.  She graduated from Harvard in 2001 and in an unusually positive mark of distinction for Notre Dame Law School, she is a 2006 graduate of Notre Dame Law.

          These accomplished lawyers are demonstrably competent and so they compare very favorably with the department of justice personnel who have appeared in past articles posted here.  The doj could not do better than making use of the talents of these three lawyers in every case they can handle for the United States.

          MERRICK GARLAND, let those who have eyes to see, let them see; let those who have ears to hear, let them hear.  Bring these people in to your depleted department and let them prosecute the January Sixers, and others.  That would be a terrific solution.  The results will speak for themselves.

          The results speak for themselves now.

This article was posted in a slightly different version on Claims and Issues Blog on the last day of September, 2021.  Reprinted here with permission.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

A LITTLE FEDERAL JURISDICTION NEVER HURT ANYONE: JUDGE IMMUNIZES OPIOID-PROFIT-TAKING.

The Department of Justice has filed a Notice of Appeal from a Bankruptcy Judge's ruling approving a settlement in which the Sacklers received immunity from lawsuits arising out of the opioid epidemic.

           The Sacklers are individuals who are not before the Bankruptcy Court in the Bankruptcy filed by Purdue Pharma.

           The Sacklers, as the apparent owners of Purdue Pharma, can accurately be identified as profit-takers from the proceeds of opioid sales generated by their corporation, Purdue Pharma.

          The United States Bankruptcy Trustee's Office in New York has appealed this decision.  Assistant U.S. Trustee LINDA A. RIFFKIN filed the Notice, which also bears the names of DOJ Trial Attorneys PAUL K. SCHWARTZBERG, BENJAMIN J. HIGGINS, and ANDREW VELEZ-AVERA.  A review of the internet for publicly available information also shows Attorneys Schwartzberg, Higgins, and Velez-Avera all as being in the United States Trustee's Office in New York.

          These lawyers deserve credit and so does the DOJ for this decision.  Best of luck to them all, and to their fellow appellate practitioners  representing Certain Canadian First Nation and Metis People, Certain Canadian Municipalities, and the State of Maryland.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

CRUELTY FLOURISHES IN ANONYMITY. SO DOES DESTRUCTION OF CONSTITUTIONAL RIGHTS.

Cruelty flourishes in anonymity.  Vindictiveness is easier in a lynch mob when a person acting alone would not want to have others single out an individual person's behavior.

          It is like that when judges practice issuing unsigned orders without bothering to write opinions let alone sign them.  We have had a rash of unexplained, unsigned orders of late, and two examples came in the same case.

          Many commentators have pointed out that hiding behind unsigned opinions is cowardly.  That is not the subject of this article, and we will say no more about that here.

          Many commentators also write that it is hypocritical for judges to rule in favor of outcomes they desire, without taking responsibility -- or credit or blame, as the case may be -- for the outcomes.  That too is not the subject of this article, and we will not mention it here again.

          The first of the two examples of the practice comes from Texas.  A panel of judges appointed to the Fifth Circuit Court of Appeals ordered a trial judge not to hold a hearing.  The three people on the panel did not write an opinion, and did not sign their order.  They simply cancelled the hearing that another judge had ordered.

          The second of the two examples from the same case also comes from Texas.  Five of the justices on the U.S. supreme court let an infamous anti-abortion Texas law go into effect because there were doubts about the law's constitutionality.  This result was the opposite of what justices would do most of the time in such cases, even if the justices in question personally favored the constitutionally questionable State law.  In this case, though, the five did not even write an opinion, and they did not sign their order.

          Yet we know who they are; that is not the point.  The Fifth Circuit panel in question was headed by Elizabeth Jones, who has never stopped being a leader of her (minority) party.  She was joined by two others.  The Five supreme court members in question are named Alito, Barrett, Gorsuch, Kavanaugh, and Thomas.  So we know who they all are.

          But that is not the point.  The point is that they were supposed to behave as judges, and they did not.  They behaved as power brokers, wielding power for a minority view at that.  Perhaps that is why they stopped being judges and became power brokers.

          Both examples display that the core purpose of anonymity seems to have been a cloak for the elimination of previously recognized constitutional rights.

          In the Fifth Circuit example, the unsigned order eliminated Due Process by the expedient of cancelling a hearing; no-one has the opportunity to be heard when their hearing is cancelled.

          In the supreme court example, the unsigned order eliminated the constitutionally recognized right of a woman to be free from government interference in the early stages of her decision whether to give birth.  I am personally in favor of life, but I am not in favor of vindicating life by eliminating other people's rights.

          The Epistle of James was a part of last Sunday's services in my Church.  James' Epistle is translated in different ways when he wrote about people acting like judges and preferring people with fine clothes over poor people in their churches.  One translation has it that people acting in that way were acting like judges, "and corrupt judges at that."  Another translation has it that people acting in that way were "judges with evil designs."  Jas. 2:4.  Both translations fit these examples.

          There is a proper place in the legal system in place in the United States for short rulings by panels of judges that are not signed by the individual judges on the panel.  These are called "Per Curiam" decisions, meaning that they are decisions issued from the court as a whole.  They are reserved for decisions that are so clear that no opinion is necessary and no individual signature is required.

          They were never meant to be issued when decisions are not clear.

          They were never intended as places to hide.

          To borrow a Biblical phrase that seems apt, they were never meant to disguise evil designs.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

BARR's department 'ISN'T OVER, IT ISN'T EVEN PAST.'

MARK R. FREEMAN, Esquire has been a busy lawyer since 2014 when we started paying his salary with our federal taxes.  He joined the justice department that year.

          There are reports that in January 2020 he argued against the former guy's White House Counsel testifying under a subpoena from the U.S. House of Representatives.

          He definitely argued in January 2020 against unsealing the Mueller Grand Jury testimony and documents so that the House could see it all.

          It is unclear when he became the Director of the Appellate Section of the Civil Division at the
department of justice, but he holds that position now when MERRICK GARLAND is the Attorney General.

          In June 2021, MARK FREEMAN argued in a Reply Brief with his name on it, that the United States should be substituted for the former guy in E. Jean Carroll's lawsuit.  The doj did not have to appeal at all.  It will be remembered that Ms. Carroll sued the former guy for defamation when he called her a liar among other things after she said that the former guy raped her.

          A federal judge denied Bill Barr's motion and that's why there is an appeal.  If the motion had been granted, the United States would become the defendant and Ms. Carroll's lawsuit would be barred because you cannot sue the United States for defamation.

          FREEMAN's brief on the appeal continues to argue that the former guy was performing his official duties when he allegedly defamed Ms. Carroll.

          If the appeal is successful, then Ms. Carroll's lawsuit will be barred.  That is the reason for MARK FREEMAN's brief.  Ms. Carroll's lawsuit will be barred if it is successful.

          Despite media reports, there really is no reason to think that there is a new Attorney General in town.  The same policies are being advanced in -- and rejected in -- the Federal Courts.  See previous articles here, here, here, and here.

          There are many stories in the doj.  This has only been one of them.

This article is reprinted with permission from Claims and Issues Blog.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.