Claims and Bad Faith Law Blog

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.

   

ASK FOR RIGHT RELIEF, YOU MIGHT GET RIGHT ANSWER.

This article was previously published under the title, JUDGES WILL OFTEN TELL THEM TO STOP,  SO ASK!, on Claims and Issues Blog on Tuesday, July 6, 2021.  Reprinted here with permission.

(Gridview_imagefull/Florida Department of Agriculture and Consumer Services)

Recently some courts have ruled against equal laws.  It seems to me that these rulings depend more on the fact that the people who sued (to get taxpayer money paid to them instead of that money being paid to other people) asked the judges to tell the defendants to stop, instead of asking for damages.  I have said this before.

             In these cases, judges have issued TROs or Temporary Restraining Orders and Preliminary Injunctions stopping the Secretary of Agriculture from applying ARPA or American Recovery Plan Act eligibility requirements that gave preference to Black farmers over White farmers, at least at first, in Faust v. Vilsack, ___ F. Supp. 3d ___, No. 21-C-548, 2021 WL 2409729, at *5 (E.D. Wis. June 10, 2021), or stopping the Small Business Administration from considering applications for federal monies for 21 days from a restaurant revitilization fund provided under ARPA unless during those 21 days the applications were processed without regard to whether the applicants were White males, in Greer's Ranch Cafe v. Guzman, ___ F. Supp. 3d ___, No. 4:21-cv-00651-O, 2021 WL 2092995 (N.D. Tex. May 18, 2021). 

            More judges are ruling like this and so I say it again:  These rulings depend less on the lawyers involved in them and more on the fact that the plaintiffs in these cases, meaning the people who filed the lawsuits, asked the judges to tell the defendants to stop instead of asking for damages.

            A federal judge in Florida told the State to stop when the judge issued a preliminary injunction stopping the State from imposing fines and limits on people who petition to put proposed State constitutional amendments on the ballot.

            This ruling came right after another federal judge in Florida stopped the State from imposing penalties under a new Florida law that would require social media companies to let politicians say whatever they want to say on their websites.  The new Florida law would have allowed Florida to impose penalties up to a Quarter of a Million Dollars.  A day.

            Courts in Maryland are telling the State to stop withholding unemployment benefits from unemployed people during a pandemic.  These lawsuits have been heard at all three levels of courts in Maryland, from the trial court to the intermediate appellate court to the State's highest Court.

            Comfortable people did not file these lawsuits.  The people who filed them include individuals, and they include groups that did not exist before such as "the Unemployed Workers Union" and "the Baltimore-based Peoples Power Assembly."  Significantly, the plaintiffs apparently did not include political parties or established civil rights organizations or other entrenched interests.  These lawsuits were brought by people in Maryland who are affected by the Maryland Governor's  attempted order to force them to take jobs, any jobs.

            The Maryland trial judge was the first judge in these Maryland cases to hold that the State must stop what they were trying to do.  The trial judge issued a "temporary restraining order," effectively another name for a preliminary injunction.  One of the trial judge's reasons is instructive.  It should be followed in other States where governors are trying to block unemployment benefits and so force unemployed workers to take any job that the governors' campaign contributors condescend to give them.

            The Maryland trial judge ruled in part because the State governor "appeared to lack the authority to end the federal program early.  He added that the plaintiffs' stories of economic hardship reminded him that 'the impact of the pandemic has been cruelly uneven.'"  Katherine Shaver, Court Rejects Hogan Request to Block Order Preventing End of Enhanced Federal Unemployment Benefits, WASHINGTON POST, online Monday, July 5, 2021 (emphasis added).

            State governors may lack the authority to end the federal program early.

            Ending the federal program early may violate equal protection of the laws.

            These concepts are not limited to the pen of a trial judge in Maryland.  They apply in every State.  State Constitutions are based on them.  The Federal Constitution guarantees equal protection of the laws in all the States.

            Judges will tell them to stop.  So ask judges to tell them to stop.

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

AT DEPARTMENT OF JUSTICE, EVERYTHING IS CHANGING, NOTHING IS NEW.

This article was first published on Claims and Issues Blog on Thursday, July 1, 2021.  Reprinted here with permission.

Download Brief of the United States in Trump v. Carroll 2d Cir Appeal Case No. 20.3977 filed June 7 2021

Brief of the United States of America in the case of E. Jean Carroll, Case No. 20-3977, Doc. 102, filed June 7, 2021.

One lesson of the last four+ years is clear:  People matter.  The people that make the decisions in our government matter.   Who the prosecutors are, matters.

            Whether we have a Department of Justice or a department of career young attorneys intent on CYA, depends on who is in the department.

            It also very much depends on who really runs the department.

            "Structural checks can be overrated.  The survival of our Republic depends as much, if not more, on the virtue of those in government, particularly the upholding of norms by civil servants, prosecutors and military officials.  We have grown too jaded about things like professionalism and institutions, and the idea of men and women who take their duties seriously.  But as every major moral tradition teaches, no external constraint can fully substitute for the personal compulsion to do what is right."  Tim Wu, What Really Saved the Republic From Trump?, NEW YORK TIMES, online Dec. 10, 2020.

             The personal compulsion to do what is right, the virtue of those in government, particularly the upholding of norms by civil servants:  Were these the characteristics on display of the people that we are looking at in the department of justice?

            Were these characteristics on display from them during the last four+ years?

            Are they on display now?

            Let's look for these characteristics, starting with the individuals featured in the first article in this series, IN MERRICK GARLAND'S DEPARTMENT, PROTECTING 'CAREER YOUNG ATTORNEYS' MEANS "CYA."

            JOSHUA M. SALZMAN.  This is the person who submitted the reply brief to continue Barr's appeal attempting to substitute the United States for the former guy in the lawsuit E. Jean Carroll filed.  She filed a defamation lawsuit after the F.G. allegedly defamed her by calling her a liar after she alleged he raped her.  The United States Department of Justice argued in SALZMAN's reply brief that the defamation was a part of the former guy's official duties.

            During the time of the F.G. and A.G. Barr, JOSHUA SALZMAN worked at Barr's law firm, the department of justice.  He did not always work there; MR. SALZMAN, like some of the others, used to be employed at MERRICK GARLAND'S law firm, WilmerHale. 

            During the time of the F.G. and A.G. Barr, MARK STERN also worked at Barr's law firm.  MARK B. STERN's name is also on the reply brief that MR. SALZMAN filed, appealing for the substitution of the United States in the F.G.'s role as defendant in E. Jean Carroll's lawsuit.

            If their appeal is successful, the United States will become the defendant in that lawsuit; the United States cannot be sued in that lawsuit.  If their appeal is successful, then, it will gut E. Jean Carroll's lawsuit against the former guy. 

            A third lawyer who takes credit for the reply brief in E. Jean Carroll's case is MARK R. FREEMAN.  He is the current Director of the Appellate Staff, Civil Division, in the justice department.  He, too, worked in A.G. Barr's department during the time of the F.G.  He, too, worked in MERRICK GARLAND's law firm before that.

            As we shall see in this series, among other things, MR. FREEMAN reportedly was instrumental in arguing that the F.G.'s General Counsel, Don McGahn, should not testify under subpoena from the U.S. House of Representatives.

            Last but not least, there is Acting Attorney General and MERRICK GARLAND's deputy, BRIAN M. BOYNTON.  He alone among the crew did not also work for the former guy or for A.G. Barr during the time that the F.G. was in office.  His background is in defending large corporations and other things and people -- including one Betsy DeVos, the F.G.'s Secretary of Education, as we shall also see in this series.

            MERRICK GARLAND is responsible for the decisions of these people.  Beyond and to the exclusion of every reasonable doubt, as they say, these are MERRICK GARLAND's decisions.

            There is no better way to conclude this article than by once again quoting from Professor Tim Wu's piece in The New York Times:

          It may sound naïve in our untrusting age to hope that people will care about ethics and professional duties. But Madison, too, saw the need for this trust. “There is a degree of depravity in mankind,” he wrote, but also “qualities in human nature which justify a certain portion of esteem and confidence.” A working republican government, he argued, “presupposes the existence of these qualities in a higher degree than any other form.”

           It is called civic virtue, and at the end of the day, there is no real alternative.

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

BAD FAITH IN THE JUSTICE DEPARTMENT?

This article was originally published with the title, IN MERRICK GARLAND'S DEPARTMENT, PROTECTING 'CAREER YOUNG ATTORNEYS' MEANS "CYA," on Claims and Issues Blog, on Tuesday, June 29, 2021.

Part One, the first part.

Merrick Garland has been portrayed by the incoming administration as something he is not.  Demonstrably not.  To paraphrase the Acts of the Apostles, "you shall know them by their actions." 

          Not by what they say, or what others say about them.

          This is the first in a series.  In it, we will take a look together at the actual things being done by the current department of justice.  In the end, it is a puzzle why they continue to try to protect the things that were done by the previous regime.

    

 

   (Alexander Drago / Reuters)

           Our first example is the decision to continue the appeal to substitute the United States in the place of the former guy sued for defamation by E. Jean Carroll.  The former guy's regime, Bill Barr acting as Attorney General then, tried to substitute the United States for the F.G.  Federal Judge Lewis Kaplan thought about it, before he wrote a 61-page decision listing many, many reasons for denying the motion to substitute the United States to defend Ms. Carroll's defamation action.  It should not be forgotten that Ms. Carroll filed her defamation lawsuit in response to the F.G.'s vehement denial that he raped her.  (The F.G.'s vehemence included the charge that Ms. Carroll was lying, thus she filed the defamation lawsuit.)

           The F.G.'s Attorney General, Mr. Barr, filed an appeal from that ruling.  Then the F.G. and the A.G. left (kind of).  In came President Joe Biden and Merrick Garland to take their places.

 

 
   (Reuters)

           Merrick Garland decided to continue the appeal to substitute the United States for the former guy at taxpayer expense.  It is eye-opening to look at the lawyers who signed the reply brief attempting to substitute the U.S. for the F.G.  This is especially revealing after Mr. Garland's statements that he wants to protect 'career young attorneys' from thinking that what they did when they worked for Barr carries any consequences now.  Surely they must be protected, Mr. Garland said he believes.  Well, let's look at who is being protected now that we have looked at who is doing the protecting.

          The decision to continue the Barr justice department's appeal was taken by:

• BRIAN M. BOYNTON, Acting Assistant Attorney General;
• MARK R. FREEMAN;
• MARK B. STERN, and
• JOSHUA M. SALZMAN.

Three of these lawyers were at the Barr department of justice, following orders.

Three of these lawyers have worked at a law firm called WilmerHale.  So did MERRICK GARLAND. 

Three of these lawyers went to Harvard Law.  So did MERRICK GARLAND.

The three lawyers who went to Harvard Law all agreed to substitute the United States, at taxpayer expense, for the former guy in E. Jean Carroll's defamation lawsuit.  You might have expected something different from their conduct, considering that they each and all went to Harvard Law where they presumably took an Ethics course or two, but you would be wrong if you expected them to behave any differently than they actually did.

Parenthetically, Harvard Law comes up again here.  Judge Lewis Kaplan, who rejected the former guy's/Barr's motion to substitute, also went to Harvard Law.

           So here's the point.  It's not that WilmerHale or Harvard Law are either of them bad, per se.  The point instead is that neither Merrick Garland nor these lawyers are what they are portrayed to be.  "I was only following orders" was a defense that was rejected at Nuremberg circa 1945.  These men -- and they are all of them men, aren't they -- certainly do not need that defense for their actions.  It is equally certain that CYA is also a bad policy for the United States Department of Justice now.

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

WHO, EXACTLY, DOES JUSTICE REPRESENT? PART TWO

A POSTSCRIPT:  The rest of the story.  Part of the rest, anyway.

Rights and Responsibilities.  (Florida Dep't of Agriculture & Consumer Services /  Gridview_imagefull)

The Federal Judge presiding over the Sweet v. DeVos case in the Northern District of California has held that Ms. DeVos has to sit for a deposition. 

          The Judge based his ruling at least in part on the bad faith of the government in disrupting the processing of claims to student debt relief:    "U.S. District Judge William Alsup found evidence of bad faith in the agency’s stated reasons for an 18-month halt in processing debt relief claims [which], among other factors, creates an extraordinary circumstance that warrants making DeVos sit down for a three-hour deposition."  Nicholas Iovino, Betsy DeVos Ordered to Testify in Student Borrower Class Action, COURTHOUSE NEWS, online May 20, 2021.

          Updating my article that posted this morning, "[o]n February 8, 2021 -- 19 days after the Inauguration of President Joe Biden -- Brian M. Boynton filed a motion to quash a subpoena for the deposition of Betsy DeVos."  Mr. Boynton is a new hire helping to run the Biden Justice Department under Merrick Garland.

          And, to say again, Mr. Boynton filed a motion to quash the deposition of the former regime's Betsy DeVos.

          He lost.  The motion was denied.  Absent Mr. Boynton's anticipated appeal on behalf of Ms. DeVos, she will have to sit for her deposition, under oath.  So far, Justice has prevailed in this case, but the department of justice has not.

Thanks to Margaret O'Grady, Esquire at Harvard who is a counsel of record in the Sweet v. DeVos case, and to Ms. Katie Ward of CTPBoston, for the linked Courthouse News Service reporting.

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

WHO, EXACTLY, DOES JUSTICE REPRESENT?

Rights and Responsibilities.  (Florida Dep't of Agriculture & Consumer Services /  Gridview_imagefull)

On February 8, 2021 -- 19 days after the Inauguration of President Joe Biden -- Brian M. Boynton filed a motion to quash a subpoena for the deposition of Betsy DeVos.

           Mr. Boynton filed his motion in the Southern District of Florida, where DeVos was then "a part-time resident."  That was one of the places where, arguably, venue was proper for Boynton's motion to quash.  The case in which Betsy DeVos was subpoenaed for deposition is pending in the Northern District of California.

           Parenthetically, I cannot find an order granting or denying the motion, and I cannot find any evidence that Ms. DeVos has  been deposed.  I have today emailed the lead attorney who requested this deposition, Margaret E. O'Grady, Esquire and if and when I receive her Reply, I will write about it here.

          Back to Mr. Boynton.  More recently, on June 7, 2021 Brian Boynton filed a reply brief for the United States to intervene for the former guy in his appeal from an order allowing E. Jean Carroll's defamation lawsuit to go forward in New York State Court.  Her defamation lawsuit had been pending in state court before the former guy's Barr removed the case to federal court.

          Mr. Boynton was reportedly hired away from a large law firm with experience in representing corporate clients, in order to assist Merrick Garland in running the Justice Department.

          The actions discussed here, and other actions known and unknown, raise urgent questions.  First:  Who, exactly, does Justice represent?

          Next, why is it in the interest of the United States not to have the testimony of Betsy DeVos under oath?

          How is it that any lawyer can argue, without consequence, that denying a rape and demeaning the victim is a part of the official duties of a President of the United States?

          I did not expect to be asking any of these questions with Merrick Garland replacing Bill Barr and Joe Biden replacing the former guy. 

          Did you?

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

GOODBYE 2020, WELCOME IN 2021!

Have a Happy New Year every day of the year to come!

P.S.

We've earned it!

 

POSTSCRIPT TO JURISDICTION.

(Sun Sentinel photograph)

In a postscript to yesterday's article on Jurisdiction, we now have further reports that clarify some of the earlier confusing reporting.  Apparently three lawsuits have been filed by the losing candidate's campaign so far, as previously reported.

           Two of those lawsuits were filed in State Court, not Federal Court, however.  One was filed in Georgia and the other was filed in Michigan.  Both have already been rejected by State Court Judges.

           The third and remaining lawsuit at this time was filed in Federal Court in Pennsylvania.  The announced purpose was to stop the counting of votes already cast.  The Federal Judge presiding over that case rejected that one, as well.  No word yet on the Federal Court's claim to jurisdiction, if any, over State Election Law.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

ARE PLAINTIFFS IN ELECTION CASES DEMANDING FEDERAL ACTIVISM, PREEMPTIVE JURISDICTION?

This article arises from the same common nucleus of operative facts, so to speak, out of which an earlier article published today also arises.

Recently filed elections cases have also caused me to wonder about Federal jurisdiction.

Are the plaintiffs in these elections cases asking Federal Judges to be activists and preempt the jurisdiction of State Courts over State Election Laws?  That seems to be the gist of the lawsuits I have seen reported to date.

There was a lawsuit filed in U.S. District Court in Texas, in which the same person or group of people reportedly filed the same lawsuit they had already lost in the Texas Supreme Court.  Each time the lawsuit challenged the legality of drive-through voting in Harris County (Houston).

Isn't the issue of legality of drive-through voting a matter for the Texas State Courts to decide?

Parenthetically, I understand that the same person or group of people who lost their case in the Texas Supreme Court also lost their case in the U.S. District Court and then they lost again in the Federal Appellate Court.

Different people have filed their own lawsuits which are basically one lawsuit as well, but these people have filed in different States, all in Federal Court.  They have so far filed their lawsuit in Georgia, Pennsylvania, and Wisconsin.

The same losing candidate's campaign organization has reportedly filed three times, once in each of three Federal Courts.  It is confusing.  Apparently two of these same lawsuits were filed to stop counting votes and the third was filed for a re-count.

Isn't the issue of applying State Election Law an issue for State Court Judges to decide? 

I am going to look into the jurisdictional basis if any for asking Federal Courts to preemptively and actively exercise jurisdiction so as to impose their own views of local Election Law in these States.  As I wrote today in the earlier article also arising out of these developments, let's all of us keep an eye on the lawsuits being filed, and on who files them and who pays for them.

Assessing "bad faith" attorney's fees and sanctions, along with many situations requiring good faith and fair dealing, are discussed in § 2:7 in 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).  Attorney's fees awarded in a variety of cases are the subject of §§ 13:12 -13:14 in Volume 2, id.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

"BAD FAITH" ATTORNEY'S FEES EXPOSURE: LITIGIOUS PLAINTIFFS IN ELECTION CASES?

(Photograph Brennan Linsley / Associated Press)

Recently filed litigation has caused me to wonder about "bad faith" attorney's fees liability.  First, let me describe the lawsuits that have caused the wondering.

In Texas, the same person or group of people reportedly filed the same lawsuit more than once challenging the legality of drive-through voting in Harris County (Houston).  They filed in Texas State Court to begin with, ultimately losing at every level all the way to the Supreme Court of Texas, according to the confusing reporting.  Then they filed in a U.S. District Court in Texas and they lost there.  Then they filed an appeal to the Fifth Circuit Court of Appeals.  My understanding is that they lost again there.

Other people have also filed their own "one-note" lawsuit but in different States, all in Federal Court.  In Georgia, Pennsylvania, and Wisconsin there is a lawsuit filed in a Federal District Court in each state by the losing candidate.   The same losing candidate filed in each.  It is confusing, at least before looking more closely at each of these lawsuits, but apparently two are to stop counting votes and the third is for a re-count.  Presumably the votes have already been counted once before the recount litigation was filed, or else there could not be a "recount" yet, but as I say, the reports are confusing.

I want to temporarily put aside the question of Federal jurisdiction to adjudicate State election matters, and concentrate here on the issue of exposure to "bad faith" attorney's fees in Federal Court.

Having laid out the facts for the moment, here now is the law.  My understanding has long been that there can be exposure under Federal Rule of Civil Procedure 11, under Federal Appellate Rules and under State Court equivalents for parties and their lawyers for bad faith in litigation.

Did the defendants and their lawyers even request attorney's fees in any of these cases for having to go through a "Groundhog Day" kind of litigation?

Parenthetically, if they did not request attorney's fees, did they request some kind of sanctions for this conduct?  I am not asking why the Courts did not assess attorney's fees or sanctions; I wonder if the defendants and their lawyers even asked for them.  Why should the defendants have to bear the full burden of their attorney's fees for repeatedly having to defend the same losing propositions?

I am going to look into this exposure in more detail.  In the interim, let's all of us keep an eye on the lawsuits being filed, and on who files them and who pays for them.

Assessing "bad faith" attorney's fees and sanctions, along with many situations requiring good faith and fair dealing, are discussed in § 2:7 in 1 Dennis J. Wall, Litigation and Prevention of Insurer Bad Faith (3d ed. and 2020 Supps. Thomson Reuters West).  Attorney's fees awarded in a variety of cases are the subject of §§ 13:12 -13:14 in Volume 2, id.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

THANK YOU FOR VOTING!

Many people never got the chance we have to vote.  But without them, our votes would not be possible.  We remember them and honor them every time we vote.

Thank you for being a voter.

 

Photo courtesy of Common Ground.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

 

MORE RESOURCES, MORE VOLUNTEER OPPORTUNITIES FOR PROTECTING THE VOTE!

And now a message from the Common Ground Project in Florida:  More resources, more volunteer opportunities for protecting the vote!

(Common Ground Project)

Defend Democracy:

Poll monitors needed!

Can we count on you?

The Common Ground Project is looking for volunteers to assist in our Poll Monitoring and Election Protection Program. This is a large statewide initiative led by our coalition partners: Common Cause, State Voices, and Florida for All. The Common Ground Project is committed to ensuring that all voters have safe and accessible access to casting their ballots and having their voices heard on November 3rd. We are in need of volunteers!

Please join us for this critical work to protect our election. We look forward to working with you as a leader in your community!

Please register to be a poll worker and sign up for one of the following upcoming training opportunities:

• Friday, October 30th at 6 PM
• Saturday, October 31st at 12 PM

As always, please do not hesitate to reach out if you have any questions!

Regards,

Lisa Perry

REGISTER

‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ 

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

TRUST THE VOTE.

And now, a message from Election Protection.  Trust the Vote.

We care about the integrity of our elections and love when election officials quickly fix errors. Some politicians use these errors to make us feel that our votes won’t count. Do not let this affect our confidence in our system or our willingness to vote. #VoteReady.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

AMERICAN BAR ASSOCIATION ANNOUNCES FINANCIAL INCENTIVE FOR LAWYERS ASSISTING VOTERS.

(American Bar Association)

In an email received this morning, the American Bar Association announced it is offering a financial incentive to lawyers who assist voters at this time.  Here is the ABA's announcement:

Volunteering at the polls is an important civic duty that lawyers are especially suited for given the profession's long tradition of civil service. This November, the ABA and MyCase are partnering to give ABA members who volunteer during the general election a $50 credit to ShopABA for their service. Whether you have already volunteered at your local polling place, or plan to volunteer on election day, November 3, you can earn a $50 credit towards books, webinars, CLE and other purchases in ShopABA.*

Register your service by November 6, 2020.

Please read the disclaimer.  This blog article ©2020 Dennis J. Wall.  All rights reserved.

DON'T BE AFRAID, VOTE!

(Photo by Ilene Vegazo.  Used with permission of the artist.)

MEMO TO LAWYERS:  As a lawyer, your clients look to you as a leader. When they ask you about voting, your clients are interested in how they can vote. Be a leader. Familiarize yourself with Florida's voting laws, enough at least to guide your clients on how to engage the voting process.

Which is not the same as telling your clients how they should vote! Everyone has their own opinions about that & respectfully, your clients do not think your opinions are special that way. But clients do look to you for help negotiating the process. Thank you for being a voter.

MEMO TO EVERYONE:

Early Voting began in Florida October 19. Early Voting continues through Saturday, October 31. The Election as you know is on Tuesday, November 3.

Remember to vote!

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

RESOURCES TO PROTECT THE VOTE THIS YEAR.

 

(Brynn Anderson / Associated Press)

Want to help protect the vote this year, but unsure of where to go or what to do?  Here is a list of contacts for places and sources that can help answer your questions.

ELECTION PROTECTION.  This is an umbrella of many different organizations that all have different pieces of election protection, such as Poll Monitors, Social Media Monitors, Legal Volunteers, and On-Call Legal Support, among others.  Telephone 1-866-OUR-VOTE or email grassroots@commoncause.org.

POSTCARDS TO VOTERS.  Just like it sounds, volunteers write postcards with messages provided by campaigns that have signed up with PTV, to addresses that are anonymous as far as names; only mailing addresses are provided.  Volunteers mail postcards on their own dime, so to speak.  For more information, visit www.postcardstovoters.org.

FLORIDA RESTORATION OF RIGHTS COALITION.  You may have heard about this group which works with registering returning citizens to vote.  To find out about their current activities, email them at info@floridarrc.com.

ADOPT A STATE - VOTE SAVE AMERICA.  This group offers ways to contact voters especially in 6 targeted States in which voters will likely affect the outcome of the Election.  Their Email Address is votesaveamerica@crooked.com.

Best of luck and use your best judgment in evaluating these groups, what they have to offer, and your place in it all.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.