It's here! Judge Land took his time with this one. For a history of the case, see this previous diary. He begins by quoting Justice Cardozo:
Membership in the bar is a privilege burdened with conditions. [A lawyer is] received into that ancient fellowship for something more than private gain. He [becomes] an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice
More below the fold.
Judge Land's Order in Rhodes vs. MacDonald - more from the Introduction:
When a lawyer files complaints and motions without a reasonable basis for believing that they are supported by existing law or a modification or extension of existing law, that lawyer abuses her privilege to practice law. When a lawyer uses the courts as a platform for a political agenda disconnected from any legitimate legal cause of action, that lawyer abuses her privilege to practice law. When a lawyer personally attacks opposing parties and disrespects the integrity of the judiciary, that lawyer abuses her privilege to practice law. When a lawyer recklessly accuses a judge of violating the Judicial Code of Conduct with no supporting evidence beyond her dissatisfaction with the judge’s rulings, that lawyer abuses her privilege to practice law. When a lawyer abuses her privilege to practice law, that lawyer ceases to advance her cause or the ends of justice.
DISCUSSON
A. The Attorney General
Ms. Taitz alleges that the undersigned may have discussed this case with the Attorney General of the United States. In support of this accusation, counsel submits the affidavit of Robert D. Douglas. Mr. Douglas states that on the day of the hearing in the Cook case, he saw in the “coffee shop” across the street from the federal courthouse someone whom he recognized as Eric Holder, the Attorney General. Mr. Douglas’s identification is based upon what he describes as the Attorney General’s “distinguishing features: his trim upper lip mustache, not large of stature and general olive complexion.” (Douglas Aff., Sept. 26, 2009.) The affidavit further states that Mr. Douglas “new [sic] instantly that it was none other than Eric Holder, the current Attorney General of the United States.” (Id.) Mr. Douglas has apparently never seen the Attorney General in person, but Mr. Douglas states that he recognized the Attorney General because he had seen Mr. Holder on television.
The undersigned has never talked to or met with the Attorney General. As to whether the Attorney General took time out of his busy schedule to visit an “obscure” “coffee shop” in Columbus, Georgia on July 16, 2009, the Court cannot definitively say because the Court was not there. What the Court can say is that no reasonable attorney would rely upon this affidavit in support of a legal argument in a court of law. See, e.g., Fox v. Prudential Fin., 178 F. App’x 915, 919 (11th Cir. 2006) (per curiam) (finding that reasonable person would not find partiality based on bare allegations and unsupported conclusory statements that “secret discussions” took place between defendant and court). To use this “evidence” in support of a false and misleading accusation that a judge had an ex parte conversation with someone whom the judge has never spoken to or even met is additional proof of a pattern of frivolous and outrageous conduct on the part of Ms. Taitz. 6
6Minimal research reveals that the Attorney General was in Los Angeles on July 15 and July 16, the same time Ms. Taitz claims he was in Columbus, Georgia, 2,000 miles away. E.g., Press Release, U.S. Department of Justice, Attorney General Eric Holder to Visit Los Angeles to Address Southwest Border Strategy, Violence Against Women and Gang Prevention (July 14, 2009), available at http://www.reuters.com/... Press Release, U.S. Department of Justice, Attorney General Announces $500,000 Recovery Act Grant for California Transitional Housing Program (July 16, 2009), available at http://www.usdoj.gov/...
B. Stock Ownership
Counsel’s contention that the undersigned has a financial interest in this case is perhaps more preposterous than the phantom visit with the Attorney General. In the main action by Captain Rhodes, Plaintiff sought an injunction enjoining her from being deployed to Iraq. The outcome of that action had no financial ramifications other than perhaps to Captain Rhodes and the U.S. Army. The action certainly did not implicate Microsoft or Comcast, the two investments specifically referred to in counsel’s motion. (See Mot. to Recuse 2.) Moreover, that action has terminated in Defendants’ favor, with Captain Rhodes having discharged Ms. Taitz and indicating she no longer wished to pursue it. Thus, the legal matter from which counsel seeks recusal of the undersigned is the sanctions proceeding against her. While that proceeding will certainly affect Ms. Taitz’s financial condition, it is fantasy to suggest that these proceedings will in any way affect the fortunes of Microsoft and Comcast. Furthermore, counsel’s suggestion—that if she were to succeed on her frivolous claim, and as a result the President were removed from office, that these two companies would suffer as a result–is so speculative and ridiculous that it is not worthy of additional comment. The Court must nevertheless remind counsel that she has been fired by her former client, who has made it clear that she no longer wishes to pursue the matter. Therefore, counsel cannot possibly succeed on her main claim that she maintains would topple Microsoft and Comcast because she has no means to appeal the Court’s dismissal of that claim.
C. Sua Sponte Imposition of Monetary Sanctions
Ms. Taitz argues that the undersigned should be recused because a judge cannot sua sponte act as “prosecutor, judge, and jury” in imposing monetary sanctions that are designed as a penalty to punish and deter lawyer misconduct. (Mot. to Recuse 17.) Once again, counsel ignores the law. Rule 11 specifically authorizes the sua sponte imposition of monetary sanctions for these purposes. Fed. R. Civ. P. 11(c)(3); cf. Donaldson, 819 F.2d at 1558 (finding that due process does not require courts to follow criminal contempt procedures when imposing monetary sanctions under Rule 11). Furthermore, it is likewise well settled that the Court has the inherent authority to impose such sanctions. See Chambers v. NASCO, Inc., 501 U.S. 32, 42-43 (1991). The Court recognizes that such action is serious and that the lawyer must be given due process before the sanction is imposed.
This requires that the Court notify counsel of the conduct and allow counsel an opportunity to respond. To suggest that the Court has not done so in this case is simply wrong. The Court outlined in its previous order the sanctionable conduct. Counsel was given ample opportunity to respond. In fact, she filed a twenty-two page response. Counsel’s contention that this Court, which is most familiar with counsel’s conduct, must recuse so that another judge may be burdened with counsel’s frivolous arguments is meritless.
D. Judicial Bias
Ms. Taitz maintains that the undersigned should recuse because of bias. In support of her bias claim, she relies upon three things: 1) the tone of the Court’s previous rulings; 2) the expedited nature in which those rulings were made; and 3) the substance of those rulings, which she extrapolates into a personal attack on the Court, suggesting that the rulings indicate that the Court would have denied access to civil rights claims had the undersigned been on the bench during the civil rights movement.
The Court makes no apology for the tone of its previous orders. They were direct and strong but apparently not strong enough. They certainly do not demonstrate personal bias. They do demonstrate a lack of tolerance for frivolous legal claims asserted by lawyers who should know better. A Court’s insistence that lawyers comply with their duty to follow the rules and their obligations as officers of the Court is not a legitimate basis for recusal.
Counsel’s contention that the expedited nature of the Court’s rulings demonstrates that the Court had prejudged the case is laughable. First, as the Court has noted previously, counsel sought expedited consideration. She sought an injunction enjoining the U.S. Army from deploying her client, which was to occur within days of the filing of her Complaint. Yes, the Court ruled quickly. Had the Court not done so, counsel undoubtedly would have accused the Court of some conspiracy to delay ruling until after the deployment had occurred. Furthermore, although the Court is not personally familiar with the pace of legal decision making in counsel’s home state of California, the Court notes that Georgia courts have long recognized that the expedited nature of a decision does not detract from its quality. As observed by the Georgia Supreme Court long ago:
Both observation and experience teach, that the human mind acts with increased power according to the pressure put upon it. Give it time and it acts slowly. Force it to decide promptly, as the General is required to do on the battle-field, and the statesman in the midst of revolutions, and the same mind will do the work of a month in a moment; and what is more, will do it better. True, the effect upon the individual himself, is most exhausting, but the public does not suffer.
Thornton v. Lane, 11 Ga. 459, 491 (1852).
Finally, counsel insists that her substantive claims are so meritorious that only a biased judge would find them frivolous. Comparing herself to former Supreme Court Justice and civil rights icon Thurgood Marshall, counsel likens her plight to Justice Marshall’s epic legal battle to desegregate American schools and public places. Quite frankly, the Court is reluctant to even dignify this argument by responding to it, but it captures the essence of counsel’s misunderstanding of the purpose of the courts and her misunderstanding of her own claims. Yes, Justice Marshall had to extend then-existing law to prevail in Brown v. Board of Education, 347 U.S. 483 (1954). But he did so by persuading the Court that the de jure discrimination against black schoolchildren violated their rights under the existing Fourteenth Amendment to the Constitution—a fundamental truth that had been recognized years earlier by Justice Harlan in his eloquent and prescient dissent in Plessy v. Ferguson, 163 U.S. 537, 555-56 (1896) (Harlan, J., dissenting). Justice Marshall’s arguments were a logical extension and certainly a necessary modification of then-existing law. Counsel in this case cannot articulate how the President’s ineligibility to hold office, even if proven, violates an Army officer’s individual constitutional rights such that it would authorize that officer to disobey a deployment order. Counsel has likewise never cited any legal authority or made any reasonable argument as to why the traditional abstention doctrine should not have been applied here. Finally, Justice Marshall had real evidence that black children were being sent to inferior segregated schools based solely on the color of their skin. He had credible evidence as to the impact of inferior segregated schools upon the schoolchildren forced to attend them by their government. Justice Marshall was also able to articulate how this conduct on the part of the government violated the Fourteenth Amendment, an amendment clearly designed to assure that the government finally recognized the promise of the Declaration of Independence:
that all men are created equal.
Counsel here has an affidavit from someone who allegedly paid off a government official to rummage through the files at a Kenyan hospital to obtain what counsel contends is the President’s “authentic” birth certificate. Counsel here makes no coherent argument connecting the Constitution’s presidential citizenship requirement to a violation of her client’s individual constitutional rights. Counsel here points to no legal authority—in the Constitution or elsewhere—that could be extended or expanded to create an exception to the well-established doctrine of abstention, which disfavors judicial interference in the internal affairs of the military.
To suggest that an Army officer, who has received a medical education at the expense of the government and then seeks to avoid deployment based upon speculation that the President is not a natural born citizen, is equivalent to a young child, who is forced to attend an inferior segregated school based solely on the color of her skin, demonstrates an appalling lack of knowledge of the history of this Country and the importance of the civil rights movement. Counsel’s attempt to align herself with Justice Marshall appears to be an act of desperation rather than one of admiration. For if counsel truly admired Justice Marshall’s achievements, she would not seek to cheapen them with such inapt comparisons.
In summary, counsel, dissatisfied with the Court’s rulings and “seeing the writing on the wall,” now seeks to escape accountability for her misconduct during this litigation. She shall not be allowed to do so. Her motion to recuse and motion for enlargement of time have no merit and are accordingly denied as frivolous.
Regarding sanctions:
II Reaffirmation of the appropriateness of sanctions
Contrary to counsel’s suggestion, the courts do not refrain from
entering political debates because of bias or personal disinterest.
They do so because the Constitution, within which counsel attempts to
wrap herself, prevents their encroachment into the political sphere.
That does not mean that judicial decisions do not often have political
consequences, nor does it mean that the judiciary cannot rule upon
issues that may overturn actions by the political branches when they
are contrary to the Constitution. But it is clear that the
Constitution does not contemplate that the judiciary will participate
in the selection or removal of the President, unless an individual can
clearly demonstrate that his individual constitutional rights are
somehow violated by the process. A generalized claim that the
President is unqualified does not fall within this narrow exception
and is best addressed to the First branch of government, not the
Third.
The absolute absence of any legitimate legal argument, combined
with the political diatribe in her motions, demonstrates that Ms.
Taitz’s purpose is to advance a political agenda and not to pursue a
legitimate legal cause of action. Rather than citing to binding legal
precedent, she calls the President names, accuses the undersigned of
treason, and gratuitously slanders the President’s father. As the
Case 4:09-cv-00106-CDL Document 28 Filed 10/13/2009 Page 28 of 43
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Court noted in an earlier order, counsel’s wild accusations may be
protected by the First Amendment when she makes them on her blog or
in her press conferences, but the federal courts are reserved for
hearing genuine legal disputes, not as a platform for political
rhetoric and personal insults. Simply put, no reasonable basis
existed for counsel to believe that her legal cause of action was
legitimate under existing law or under a reasonable extension or
modification of existing law. Thus, counsel’s Complaint on behalf of
Captain Rhodes was frivolous.
Although the Court found the Complaint frivolous, the Court did
not impose sanctions upon that finding alone. The Court did notify
counsel of its conclusion, as it had a duty to do, in order to prevent
future similar filings. Defying that admonition, counsel immediately
sought reconsideration of the Court’s order. In doing so, she did not
challenge with contrary legal authority the legal basis for the
Court’s decision—abstention—nor did she attempt to distinguish the
authority cited by the Court. She didn’t even mention it.
Local Rule 7.6 authorizes a motion for reconsideration when
“absolutely necessary.” M.D. Ga. R. 7.6. Reconsideration is
“absolutely necessary” only where the movant demonstrates that (1)
there was an intervening development or change in controlling law, (2)
new evidence has been discovered, or (3) the court made a clear error
of law or fact. McCoy v. Macon Water Auth., 966 F. Supp. 1209, 1222-
23 (M.D. Ga. 1997). Counsel simply had no basis for concluding that
reconsideration was appropriate here, much less absolutely necessary.
Case 4:09-cv-00106-CDL Document 28 Filed 10/13/2009 Page 29 of 43
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Instead, she continued her political diatribe against the President
and baseless accusations against the Court. Her argument that she
should have been given more time to respond before the Court issued
its ruling, when she had requested the expedited consideration, is so
shockingly devoid of reality that it is difficult to know how to
respond. It is beyond dispute that filing a motion for
reconsideration of an order when no reasonable basis exists under
existing law or under an extension or modification of existing law to
modify that order is sanctionable under Rule 11.
In addition, an attorney, as an officer of the Court, has an
obligation to use legal proceedings for the legitimate purpose of
pursuing a lawful cause of action. It is not appropriate to use
briefs or motions to make personal attacks on opposing parties or the
Court. As the Supreme Court observed, “if the ruling is adverse, it
is not counsel’s right to resist it or to insult the judge—his right
is only respectfully to preserve his point for appeal.” Sacher v.
United States, 343 U.S. 1, 9 (1952). Calling the President a usurper
and mocking his father as treacherous and disloyal to the British
Crown added nothing to the advancement of Plaintiff’s legal cause of
action. It provides good rhetoric to fuel the “birther agenda,” but
it is unbecoming of a member of the bar and an officer of the Court.
Likewise, accusing a judge of treason and suggesting that the federal
courts are under the thumb of the Executive Branch for no reason other
than the judge ruled against you may be protected by the First
Amendment when made outside of court proceedings, but it has no place
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More from II. Reaffirmation of the Appropriateness of Sanctions
Adoption of counsel’s legal theory would make the judiciary the arbiter of any dispute regarding the President’s constitutional qualifications. Our founders provided opportunities for a President’s qualifications to be tested, but they do not include direct involvement by the judiciary. In addition to the obvious opportunity that exists during a presidential campaign to scrutinize a candidate’s qualifications, the framers of the Constitution provided a mechanism for removing a President who “slips through the cracks,” which is how counsel describes President Obama. Upon conviction by the Senate of treason, bribery, or other high crimes and misdemeanors, the President can be removed through impeachment. U.S. Const. art. II, § 4; see also id. art. I, §§ 2 & 3. Thus, if the President were elected to the office by knowingly and fraudulently concealing evidence of his constitutional disqualification, then a mechanism exists for removing him from office. Except for the Chief Justice’s role in presiding over the trial in the Senate, that mechanism does not involve the judiciary. Id. art. I, § 3, cl. 6
One can readily see the wisdom of entrusting the elected representatives of the people with the ultimate decision as to whether a President should be removed from office rather than litigating the issue in our courts. Although counsel’s present concern is the location of the President’s birth, it does not take much imagination to extend the theory to his birthday. Perhaps, he looks “too young” to be President, and he says he stopped counting birthdays when he reached age thirty. If he refused to admit publicly that he is older than the constitutional minimum age of thirty-five, should Ms. Taitz be allowed to file a lawsuit and have a court order him to produce his birth certificate? See U.S. Const. art. II, § 1, cl. 4. Or perhaps an eccentric citizen has become convinced that the President is an alien from Mars, and the courts should order DNA testing to enforce the Constitution.7 Or, more to the point, perhaps the Court should issue a nationwide injunction that prevents the U.S. Army from sending any soldier to Iraq or Afghanistan or anywhere else until Ms. Taitz is permitted to depose the President in the Oval Office. The federal courts were not established to resolve such purely political disputes or to assist in the pursuit of a political fishing expedition, particularly when that intrusion would interfere with the ability of the U.S. Army to do its job.
7The Court does not make this observation simply as a rhetorical device for emphasis; the Court has actually received correspondence assailing its previous order in which the sender, who, incidentally, challenged the undersigned to a “round of fisticuffs on the Courthouse Square,” asserted that the President is not human.
Conclusion
CONCLUSION
The Court takes no joy in reaching the conclusions it has reached
in today’s Order. As correctly observed by Judge William Schwarzer
from the Northern District of California:
Of all the duties of the judge, imposing sanctions on
lawyers is perhaps the most unpleasant. A desire to avoid
doing so is understandable. But if judges turn from Rule
11 and let it fall into disuse, the message to those
inclined to abuse or misuse the litigation process will be
clear. Misconduct, once tolerated, will breed more misconduct and those who seek relief against abuse will instead resort to it in self-defense.
While the Court derives no pleasure from its imposition of sanctions
upon counsel Orly Taitz, it likewise has no reservations about the
necessity of doing so. A clearer case could not exist; a weaker
message would not suffice.
As explained above, counsel’s Motion to Recuse (Doc. 24) and
Motion for Enlargement of Time to Respond to the show cause order
(Doc. 25) are denied. Counsel Orly Taitz is hereby ordered to pay
$20,000.00 to the United States, through the Middle District of
Georgia Clerk’s Office, within thirty days of the date of this Order
as a sanction for her misconduct in violation of Rule 11 of the
Federal Rules of Civil Procedure.11
The Court further directs the Clerk of this Court to send a copy
of this Order to the State Bar of California, 180 Howard Street, San
Francisco, CA 94105, for whatever use it deems appropriate.
IT IS SO ORDERED, this 13th day of October, 2009.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
Case 4:09-cv-00106-CDL Document 28 Filed 10/13/2009 Page 43 of 4
He also suggests in a footnote that the fine money be donated to the National Infantry Foundation at Fort Benning in "recognition of our brave soldiers who do their duty regardless of the personal sacrifice required and their own personal political beliefs," and directs the U.S. DA to prepare a brief outlining whether such a sanction can be used for this purpose.
It's a 43 page document - I'll add some more excerpts shortly.
$20,000! O RLY?
Oh, Orly says she WILL NOT PAY.
UPDATE This diary wouldn't be complete without the NUTS correspondence - from the CA case but pure comedy gold.
And here's the Holder Affidavit referenced above, if you haven't had enough laughs today.
UPDATE 2 For those keeping score, Orly's Record of Failure.
UPDATE 3 Regarding the CA case, Orly has submitted a report alleging the President has used "multiple social security numbers," based on an internet search by a private investigator in Ohio, one Susan Daniels. I anxiously await Judge Carter's response to this new revelation.
UPDATE 3 Previous filings in this GA case are here.
UPDATE 4 From comments, Orly is set to appear on the Joy Behar show tonight. HLN (CNN Headline News) at 9:00. Oops! Promo for the segment - Orly says Judge Carter has scheduled January jury trial - FALSE!
UPDATE 5 Orly on HLN now with Joy Behar, starts off by calling Judge Land CORRUPT. On nat'l television. Go for it Orly! Dig the hole deeper.