Connect with us

Eleventh Circuit

April Fools Parade of Undesirable Lawyers in Florida

LIF provides a detailed analysis of sanctioned lawyers in April 2021’s list of disciplined attorneys and who hold membership with the Florida Bar.

Published

on

Lawyers Behavin’ Badly in the Sunshine State (April 2021 List)

The Florida Supreme Court in recent court orders disciplined 17 attorneys, disbarring three, revoking the licenses of one, suspending 10, and reprimanding three.

MAR 17, 2021 | REPUBLISHED BY LIT: MAR 17, 2021

The public reprimand falls short of the necessary discipline in this case. Allen lost his position at his law firm as a result of the complaint yet the Florida Bar’s final disposition is a public slap? We disagree with this sanction.

Curtis Lee Allen, P.O. Box 16553, Temple Terrace, public reprimand and directed to attend a Professionalism Workshop effective immediately following a February 4 court order. (Admitted to practice: 1994)

In one matter, Allen became unprofessional in his questioning of a witness who he believed was repeatedly lying.

In another case, the trial court entered an order stating it had to intervene and set case management directives for both Allen and opposing counsel due to their unprofessional behavior toward each other.

In a third matter, the trial court entered an order finding that Allen engaged in unprofessional and aggressive behavior.

(Case No: SC20-1470)

The “Amlong” case has a lengthy history including appeals to the Eleventh Circuit and a very hefty legal bill at the end of it all for the Amlongs. In April’s Florida Bar list herein you’ll see sanctions for Bill Amlong and  attorney Jennifer Daley – all stemming from this one case.

William Robert Amlong, 500 N.E. 4 St., Suite 200, Ft. Lauderdale, suspended for 91 days effective 30 days following a February 4 court order. (Admitted to practice: 1985)

Amlong failed to properly supervise his associate and failed to take action to ensure that his associate complied with discovery requests and honestly advise the parties and the court of the facts.

Amlong acted in bad faith in pursuing frivolous claims and concealing evidence in a manner that vexatiously multiplied the proceedings.

(Case No: SC17-150)

Carl Robert Anderson, 5627 W. Cavedale Dr., Phoenix, AZ, suspended for 91 days effective 30 days following a February 16 court order. (Admitted to practice: 2005)

In Arizona, Anderson represented a homeowners association that was managed by a property management company.

He allowed the employees of that company to perform secretarial and paralegal work for him. In some instances, the work was for cases unrelated to the HOA matters.

In cases, Anderson failed to timely respond to discovery requests and failed to notify the clients of the requests.

Judgments were subsequently entered against his clients and he failed to notify them of the judgments.

This is a reciprocal discipline action based on the order filed by the State Bar of Arizona.

(Case No: SC19-422)

Brandon Joshua Barker, 3300 S. Dixie Hwy., Suite 1-775, West Palm Beach, suspended effective 30 days following a February 11 court order. (Admitted to practice: 2012)

The Florida Supreme Court ordered Barker to show cause by December 28, 2020.

Barker failed to file a response and was held in contempt and suspended until he has fully responded in writing to an official bar inquiry.

(Case No: SC20-1790)

Jennifer E. Daley, 500 N.E. 4 St., Fl. 2, Ft. Lauderdale, suspended for 91 days effective 30 days following a February 4 court order. (Admitted to practice: 1990)

Daley made false statements to opposing counsel, failed to disclose material facts, and obstructed opposing counsel’s access to evidence.

She also acted in bad faith in violation of 28 U.S.C. §1927.

(Case No: SC17-142)

David A. Fernandez, 4705 26 St. W., Bradenton, disciplinary revocation with leave to apply for readmission in five years effective 30 days following a February 18 court order. (Admitted to practice: 2010)

Fernandez was hired to serve as the closing agent and title agent for the sale of a home and was found guilty of multiple rules.

In additional matters pending at the grievance committee and staff level, Fernandez was accused of missing deadlines, failure to communicate with clients, engaging in a conflict of interest, being disqualified and removed as counsel in a matter due to a conflict, misusing client funds being held in his trust account, and conduct involving dishonesty or misrepresentation.

(Case No: SC20-670)

Andrew C. Hill, 11916 Trevally Loop, Apt. 311, Trinity, suspended effective 30 days following a February 3 court order. (Admitted to practice: 2007)

Hill was held in contempt of the court’s order dated June 27, 2019, due to a finding of probable cause for misconduct that occurred during his probation period in violation of Rule 3-5.1(c).

(Case No: SC20-1754)

Stephen Hillebrand, 46 N. Washington Blvd., Suite 20, Sarasota, disbarred effective 30 days following a February 4 court order. (Admitted to practice: 1983)

Hillebrand failed to diligently represent three clients;

failed to reasonably communicate with the clients;

and failed to complete the client’s representation to the detriment of the clients.

Hillebrand failed to appear at his scheduled sworn statement and failed to participate in the disciplinary proceedings.

(Case No: SC20-686)

Andrew David Hodes, 20512 Via Marisa, Boca Raton, suspended for 60 days and ordered to attend The Florida Bar’s Ethics School effective 30 days following a January 21 court order. (Admitted to practice: 2011)

Hodes drafted a quit claim deed for his client.

In error, Hodes listed the grantee as the client/petitioner, rather than the decedent’s brother as their retainer spelled out. The decedent’s son signed the incorrect deed and had it notarized.

After Hodes received the signed and notarized deed, he changed the date on the quit claim deed and changed the name of the grantee from the petitioner to the decedent’s brother.

Hodes then recorded the altered deed.

Thereafter, civil litigation was initiated regarding the ownership of the property, and the court found that Hodes committed acts of fraud, misrepresentation, forgeries and/or material alterations regarding the subject property and title to same.

Hodes’ intent was not to deceive or make a material misrepresentation, but rather, to correct the aforementioned errors that Hodes had made on the deed.

(Case No: SC20-1163)

Diane Marie McGuire, 42 Snapper Ave., Key Largo, public reprimand effective immediately following a February 11 court order. (Admitted to practice: 1990).

McGuire was found in contempt of court for failing to respond to official Bar inquiries

(SC20-1472).

William E. McManus, Jr., 119 E Watauga Ave., Johnson City, TN., disbarred effective March 22 following a February 18 court order. (Admitted to practice: 2002)

McManus was charged with bribery of a public servant, a felony offense in Tennessee.

McManus consented to disbarment in Tennessee and Florida.

This is a reciprocal discipline action based on the Tennessee Supreme Court’s order dated June 26, 2020.

(Case No: SC20-1694)

This lawyer’s residence is valued at $2.4M. How much of that purchase price came from this lawyer’s thievin’ antics? Time will tell but we start with just shy of $800k of misappropriation in the Bar petition below.

Enrique Miranda, 7820 SW 117th St., Miami, suspended by petition for emergency suspension effective immediately following a February 11 court order. (Admitted to practice: 1984)

Miranda presents a clear and present harm to the public for the inappropriate disbursement of escrow funds, misrepresentations about the funds held in trust, and violation of the fiduciary duty owed to both the remitter and the beneficiary of the funds deposited.

A petition for emergency suspension is granted by the Florida Supreme Court when The Florida Bar presents clear and convincing evidence that a lawyer appears to be causing great public harm (see Rule 3-5.2(a)) and also constitutes a formal complaint so that the matter is fully investigated and final disciplinary action is ordered.

(Case No: SC21-183)

Theft of Funds (Escrow)

PETITION FOR EMERGENCY SUSPENSION

This petition of The Florida Bar seeks emergency relief and requires the immediate attention of the court pursuant to Rule 3-5.2 of the Rules Regulating The Florida Bar. The Florida Bar seeks the emergency suspension of Enrique Miranda, Attorney No. 436119, from the practice of law in Florida based on facts that establish clearly and convincingly that Enrique Miranda appears to be causing great public harm as will be shown by facts supported by the affidavit of Mr. Thomas C. Duarte, Staff Auditor for the Miami Branch of The Florida Bar, attached hereto as Composite Exhibit “1,” as follows:

1. The filing of this Petition for Emergency Suspension has been authorized by the Executive Director of The Florida Bar.

2. Respondent, Enrique Miranda, is and at all times hereinafter mentioned, was a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

3. Respondent is currently the subject of two bar disciplinary matters which have been assigned The Florida Bar File Nos. 2020- 70,563(11D)(MES) and 2021-70,151(11D)(MES).

4. The bar’s investigation of this matter has indicated that respondent represents the clear and present harm contemplated by Rule 3- 5.2, and that his emergency suspension should be effected forthwith.

The Florida Bar File No. 2020-70,563(11D)(MES)

5. In the Florida Bar File No. 2020-70,563(11D)(MES), respondent agreed to act as escrow agent pursuant to the terms of a funds escrow agreement between Xeon Holding Limited (Complainant) and C.L. Campos Assesoria Empresarial (Campos). The agreement set forth the terms and conditions upon which respondent could disburse the $200,000.00 deposited into his trust account pursuant to the agreement.

6. The agreement required respondent to disburse $100,000.00 to Campos for pre-transaction expenses, and further required respondent to hold $95,000.00 in his trust account until all conditions precedent were met. The remaining $5,000.00 represented respondent’s fee.

7. Rather than complying with the terms of the agreement, respondent disbursed nearly all of the deposited funds within fifteen days of receipt.

8. He did not disburse the first $100,000.00 to Campos for the purpose of paying pre-transaction expenses as directed by the terms of the agreement, but rather disbursed $186,000.00 to various persons and entities who appear to be unrelated to the transaction governed by the agreement.

9. When the conditions precedent did not materialize for the disbursement of the remainder of the funds, complainant directed respondent to refund the $95,000.00 that was supposed to be remaining in trust. Respondent replied to this request by indicating that he was ill and would return the funds when he was well. Thereafter, respondent stopped responding to communications from counsel for complainant.

10. Upon inquiry by the bar, respondent made misrepresentations regarding the status and location of the $95,000.00 he was required to hold in trust. Respondent stated that on the date the condition precedent was due to occur, he was holding $98,615.00 in trust.

The Staff Auditor’s review of respondent’s trust account demonstrated this to be false. The balance in the trust account on the relevant date was $13,465.00.

Indeed,throughout the entirety of the six month period in which the investor was attempting to secure a refund of the funds that were to remain in trust, the balance in respondent’s trust account was insufficient to refund the amount owed, ranging instead between $4,429.00 and $13,465.00.

11. Approximately six months after complainant began requesting a refund of the $95,000.00, respondent finally returned same from funds recently deposited into his account from a law firm that appears to be unrelated to the transaction and/or escrow agreement.

The Florida Bar File No. 2021-70,151(11D)(MES)

12. In the Florida Bar File No. 2021-70,151(11D)(MES), while the bar’s investigation into the above described misconduct was actively pending, respondent received a deposit into his trust account in the amount of $581,008.79.

13. Thereafter respondent received what purported to be a contract governing these funds from Mr. Aldo Algandona, a person previously known to respondent. The purported contract indicated the funds were deposited as part of a renewable energy project that Algandona was developing in Panama, and that the funds were deposited for his benefit.

14. Respondent made no effort to communicate with the other party to the transaction. Instead, respondent relied solely on Algandona’s representations and disbursed the funds to him.

15. However, these funds were not the subject of a valid contract, but rather resulted from a wire fraud scheme. The couple remitting the funds believed they were making a deposit on the purchase of a home in North Carolina. The fraudster in this case hacked into the email account of the law firm/closing agent and changed the wiring instructions from the correct account to respondent’s trust account.

16. As escrow agent, respondent owed a fiduciary duty to both the remitter and the beneficiary of the funds deposited. See ie.,The Florida Bar v. Joy, 679 So. 2d 1165, 1167 (Fla. 1996).1
As such, minimal due diligence1 In Joy, this Court held, “Regardless of the escrow agent’s other relationships or duties to the principal parties (lawyers often hold funds in escrow where their client is one principal and some other non-client is another principal party) when principal parties agree upon an escrow agent, by undertaking to act as such, the escrow agent establishes a new legal relationship to the principal parties and by an expressed agreement or by agreement implied in law, agrees to certain basic inherent matters.

The relationship established is that of principal and agent and involves the escrow agent being an agent of, and owing a fiduciary duty to, all of the principal parties.

In the absence of an express agreement, written or oral, the law will imply from the circumstances of the escrow that the agent has undertaken a legal obligation (1) to know the provisions and conditions of the principal agreement concerning the escrowed property, and (2) to exercise reasonable skill and ordinary diligence in holding and delivering required respondent to make contact with the party remitting the funds and to confirm his or her understanding of the purpose and agreement regarding the funds.

17. Had respondent conducted the due diligence required of a fiduciary, the fraud in this transaction would have been discovered before the funds were disbursed from respondent’s trust account. At this time, although the bank was able to recover a portion of the funds respondent improperly disbursed, $5,934.79 of the defrauded homebuyer’s funds remain unaccounted for.
Conclusion

18. Respondent’s abject failure to uphold his fiduciary obligations to the remitter of the funds in both of the above referenced matters demonstrates that he represents the clear and present harm contemplated by Rule 3-5.2, and that his emergency suspension should be effected forthwith. This is especially true here, where he improperly disbursed the funds in the second case at a time when he was already under investigation for improper disbursements from his trust account in the first possession of the escrowed property (i.e., to disburse the escrowed funds) in strict accordance with the principals’ agreement.” matter, and where he made misrepresentations to the bar regarding the transaction.

19. The enclosed affidavit of Mr. Thomas C. Duarte is used by the bar to support this Petition for Emergency Suspension.

20. By reason of the foregoing, respondent has violated the following Rules Regulating The Florida Bar: 3-4.3 (Misconduct and Minor Misconduct), 4-1.15 (Safekeeping Property), 4-8.1 (Bar Admission and Disciplinary Matters), 4-8.4(c) (A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 5-1.1 (Trust Accounts).

WHEREFORE, based on the aforementioned facts, the bar asserts respondent has caused, or is likely to cause, immediate and serious harm to clients and/or the public and that immediate action must be taken for the protection of respondent’s clients and the public. Therefore, pursuant to Rule 3-5.2, The Florida Bar respectfully requests this court to:

A. Suspend respondent from the practice of law until further order of this court.

B. Order respondent to accept no new clients from the date of this Court’s order and to cease representing any clients after 30 days from the date of this Court’s order. Within the 30 days from the date of this Court’s order, respondent shall wind down all pending matters and shall not initiate any litigation on behalf of clients. Respondent shall withdraw from all representation within 30 days from the date of this Court’s order. In addition, respondent shall cease acting as personal representative for any estate, as guardian for any ward, and as trustee for any trust and will withdraw from said representation within thirty days from the date of this court’s order and will immediately turn over to any successor the complete financial records of any estate, guardianship or trust upon the successor’s appointment.

C. Order respondent to furnish a copy of the suspension order to all clients, opposing counsel and courts before which Enrique Miranda is counsel of record as required by Rule 3-5.1(h) and to furnish Staff Counsel with the requisite affidavit listing all clients, opposing counsel and courts so informed within 30 days after receipt of the court’s order.

D. Order respondent to refrain from withdrawing or disbursing any money from any trust account related to respondent’s law practice until further order of this court, a judicial referee appointed by this court or by order of the Circuit Court in an inventory attorney proceeding instituted under Rule 1-3.8, and to deposit any fees, or other sums received in connection with the practice of law or in connection with respondent’s employment as a personal representative, guardian or trustee, paid to respondent after issuance of this Court’s order of emergency suspension, into a specified trust account from which withdrawal may only be made in accordance with restrictions imposed by this Court. Further, respondent shall be required to notify bar counsel of The Florida Bar of the receipt and location of said funds within 30 days of the order of emergency suspension.

E. Order respondent to not withdraw any money from any trust account or other financial institution account related to respondent’s law practice or transfer any ownership of any real or personal property purchased in whole or in part with funds properly belonging to clients, probate estates for which respondent served as personal representative, guardianship estates for which respondent served as guardian, and trusts for which respondent served as trustee without approval of this court, a judicial referee appointed by this court or by order of the Circuit Court in an inventory attorney proceeding instituted under Rule 1-3.8.

F. Order respondent to notify, in writing, all banks and financial institutions where the respondent maintains an account related to the practice of law, or related to services rendered as a personal representative of an estate, or related to services rendered as a guardian, or related to services rendered as a trustee, or where respondent maintains an account that contains funds that originated from a probate estate for which respondent was personal representative, guardianship estate for which respondent was guardian, or trust for which respondent was trustee, of the provisions of this Court’s order and to provide all the aforementioned banks and financial institutions with a copy of this Court’s order. Further, respondent shall be required to provide bar counsel with an affidavit listing each bank or financial institution respondent provided with a copy of said order.

G. Order respondent to immediately comply with and provide all documents and testimony responsive to a subpoena from The Florida Bar for trust account records and any related documents necessary for completion of a trust account audit to be conducted by The Florida Bar.

H. Authorize any Referee appointed in these proceedings to determine entitlement to funds in any trust account(s) frozen as a result of an Order entered in this matter.

Respectfully submitted,

The two year suspension is below par for this case. This is the Cays Club Ponzi Scheme which earned the key directors lengthy sentencing, e.g. 40 years in jail. This lawyer was an integral part of the fraud replacing old funds with new investors. He should be in jail, but receives only 2 years suspension. Perhaps this is keeping with the fact that Donald Trump pardoned the 40 year directors sentence before leaving office in January 2021. We believe disbarment was the only sanction that would be acceptable. This is a “political” sanction in our personal opinion and one that revolves around ‘real estate investments’. Enough said.

Charles Paul-Thomas Phoenix, P.O. Box 742, Sanibel, suspended for two years effective 30 days following a January 28 court order. (Admitted to practice: 2001)

Phoenix was counsel for a vacation rental management company that was operating as a Ponzi scheme.

Phoenix signed a non-prosecution agreement with the U.S. Attorney’s Office agreeing to cooperate in the prosecution of the company’s executives in exchange for not being prosecuted himself.

In the agreement, Phoenix admitted to certain conduct constituting rule violations, including making false statements and failing to timely withdraw from his representation of the company despite his knowledge of its illegal activity.

(Case No: SC17-585)

Michael Anthony Saracco, 520 Brevard Ave., Cocoa, suspended for 45 days effective April 12 following a February 11 court order. (Admitted to practice: 2012)

Saracco failed to provide diligent and competent representation to a client in connection with filing an action against the client’s mortgage lender and failed to keep the client reasonably informed regarding the legal matter.

Saracco failed to respond to a motion to dismiss in the matter as well as an order to show cause, resulting in dismissal of the case without prejudice.

At his client’s request, Saracco filed a new lawsuit in federal court to preserve the claim. The court ultimately permitted Saracco to withdraw from the case.

Saracco provided a full refund to the client.

(Case No: SC21-141)

S A Siddiqui, 405 Gianna Way, St. Augustine, suspended for three years effective 30 days following a February 1 court order. (Admitted to practice: 2005)

In one matter, Siddiqui failed to competently and timely pursue the client’s family law matter and misrepresented to the client the status of the case.

In a second matter, Siddiqui failed to competently represent the client in his criminal case and failed to appear for jury selection.

In a third matter, Siddiqui failed to appear for court and misrepresented to the court that he did not receive notice of the court hearing.

(Case No: SC19-653)

Erik Donald Ulano, 4309 Bluewater Ave., Spring Hill, disbarred effective immediately following a February 18 court order. (Admitted to practice: 2002)

Beginning on October 1, 2018, Ulano became ineligible to practice law in Florida for not paying his Bar membership fees for fiscal year 2018-2019.

While he was ineligible to practice, Ulano repeatedly appeared in court in Hernando County on behalf of his client.

Ulano also failed to respond to the Bar’s inquiries and failed to participate in the disciplinary proceeding.

(Case No: SC20-749)

LIF is absolutely appalled at the sanction in this case.

Francisca Johanna Wider, 10843 White Aspen Ln., Boca Raton, public reprimand and attendance at The Florida Bar’s Ethics School effective immediately following a February 1 court order. (Admitted to practice: 1998)

In 2014, Wider prepared a last will and testament naming herself as the personal representative and providing for a sole beneficiary of the estate.

On June 29, 2016, the testator died.

Wider telephoned the sole beneficiary and informed her that she was “mentioned” in the will but did not tell the woman that she was the sole beneficiary of the estate.

Thereafter, Wider took possession of the entire contents of the deceased’s condominium and arranged for the removal of all the contents without the consent of the beneficiary.

Misrepresentations were made by Wider regarding the beneficiary’s status as sole beneficiary.

(Case No: SC19-317)

“The Locksmith With a Will”

Francisca J. Wider, Attorney

Francisca was born and raised in The Netherlands before coming to the United States to earn her Juris Doctorate from Nova Southeastern University’s Shephard Broad Law Center.

She was formerly an Assistant General Counsel with the State of Florida, Department of Banking & Finance and the Office of Financial Regulation, providing regulatory oversight of Florida’s financial services providers.

At Schwartz & Wider, P.A., Francisca focuses on probate and trust administration, as well as comprehensive estate and medicaid planning.

FOR INFORMATIONAL PURPOSES ONLY

(Schwartz is not part of the Bar Complaint, however, he was a witness on legal documents)

Richard A. Schwartz

Richard Schwartz is a retired Miami-Dade County Court Judge.

He is a Florida native, graduated from Miami Beach High School, University of Florida and the University of Miami School of Law.

Since retiring from the bench and moving to Boca Raton, he has focused on elder law and estate and medicaid planning.

COMPLAINT OF THE FLORIDA BAR

The Florida Bar, Complainant, files this Complaint against Francisca Johanna Wider, Respondent, pursuant to the Rules Regulating The Florida Bar and alleges:

1. Respondent is and, at all times mentioned in the Complaint, was a member of The Florida Bar, admitted on October 6, 1998 and is subject to the jurisdiction of the Supreme Court of Florida.

2. Respondent resided and practiced law in Palm Beach County, Florida, at all times material.

3. The Fifteenth Judicial Circuit Grievance Committee “C” found probable cause to file this Complaint pursuant to Rule 3-7.4, of the Rules Regulating The Florida Bar, and this Complaint has been approved by the presiding member of that committee.

4. In 2014, Respondent prepared Inge W. Fruth’s Last Will and Testament (hereinafter the “will”). (Attached hereto as TFB’s Exhibit 1 is a copy of the will.)

5. Respondent was named the Personal Representative in Ms. Fruth’s will.

6. Grace Barona, a neighbor and friend of Ms. Fruth, was named as the sole beneficiary of Ms. Fruth’s estate in Ms. Fruth’s will.

7. On June 29, 2016, Inge Fruth passed away.

8. In July of 2016, Respondent telephoned Ms. Barona and informed her that she (Ms. Barona) was “mentioned” in the will and that Respondent would call Ms. Barona in three weeks, upon Respondent’s return from vacation.

9. Unable to locate a key to Ms. Fruth’s condominium, Respondent used a locksmith to have a key made.

10. Respondent advised the property manager that there were no heirs or beneficiaries and since she (Respondent) was the Personal Representative, she would handle the condominium unit and its contents.

11. Without authorization, Respondent took possession of the entire contents of Inge Fruth’s condominium and arranged for the removal of all of the contents.

12. In August of 2016, after the contents of Ms. Fruth’s condominium had been removed, Respondent telephoned Ms. Barona and informed her that she was the sole beneficiary of Ms. Fruth’s estate.

13. On or about August 13, 2016, Respondent arrived at Ms. Barona’s place of residence. Without full and adequate disclosure of the consequences of the execution of the document, Respondent procured Ms. Barona’s signature on a document titled, Joinder, Waiver and Consent (hereinafter “Waiver and Consent”). (Attached hereto as TFB’s Exhibit 2 is a copy of the Waiver and Consent.)
14. Ms. Barona signed the Waiver and Consent with only a limited explanation by Respondent that the signature on the form was necessary to probate Ms. Fruth’s will.

15. The Waiver and Consent waived and consented to the part of the Petition for Administration which sought Respondent’s appointment as the Personal Representative.

16. On August 15, 2016, Respondent filed the Petition for Administration in the Seventeenth Judicial Circuit in and for Broward County, Case No. PRC-16- 0003527.

17. On August 18, 2016, Respondent filed the Waiver and Consent.

18. Ms. Barona retained legal counsel who advised her that the form she had signed provided Respondent consent to serve as the Personal Representative of the estate.

19. On August 24, 2016, Ms. Barona’s attorneys filed a document titled, Beneficiary Grace Barona’s Notice of Withdrawal of Waiver and Consent to the Extent Consent was Given to the Appointment of Francisca Wider to be Appointed Personal Representative (hereinafter “Notice of Withdrawal”).

20. On September 6, 2016, Ms. Barona’s attorneys filed a document titled, Beneficiary Grace Barona’s Objections and Motion to Strike from Ex Parte Calendar the Application of Francisca Wider for Appointment as Personal Representative (hereinafter “Objection to Appointment”).

21. The Notice of Withdrawal and the Objection to Appointment sought the withdrawal of the Waiver and Consent and objected to Respondent’s appointment as the Personal Representative based on Respondent’s failure to disclose material information and Respondent’s actions of removing valuable items in Ms. Fruth’s home without any accountability. (Attached hereto as TFB’s Composite Exhibit 3 are the Notice of Withdrawal and the Objection to Appointment.)

22. On December 8, 2016, the parties entered into a Settlement Stipulation wherein Ms. Barona’s legal counsel would replace Respondent as the Personal Representative, among other things.

23. In response to Ms. Barona’s Bar Complaint, Respondent takes the position that the Settlement Stipulation bars Ms. Barona from filing a Bar Complaint and that by filing a Bar Complaint, Ms. Barona has breached that agreement. (Attached hereto as TFB’s Composite Exhibit 4 are Respondent’s response to the Bar Complaint dated May 22, 2017 and the Settlement Stipulation.)

24. In furtherance of this position, in Respondent’s response to the Bar Complaint, Respondent stated, in pertinent part:
It is my position that this stipulation precludes Ms. Barona from pursuing any actions against me for anything that may have happened or was alleged to have happened prior to the execution of the Stipulation. There is nothing in the complaint that relates to any actions or alleged actions by me that occurred after the execution of the agreement. Therefore, this complaint by Ms. Barona should be dismissed.

(See p. 2 of Respondent’s response to the Bar Complaint in TFB’s Composite Exhibit 4.)

25. The language in the Settlement Stipulation that Respondent relies on reads as follows:

10. The Barona Parties and the Fruth Estate hereby remise, release, acquit, satisfy, and forever discharge the Wider Parties of and from any and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever… from the beginning of the world to the day of these presents, including but not limited to the Fruth Estate proceedings, except as expressly set forth in this Settlement Stipulation. (See ¶ 10 of the Settlement Stipulation in TFB’s Composite Exhibit 4.)

26. On October 28, 2017, in response to additional inquiries by the Bar, Respondent further stated, “Ms. Barona acted in bad faith by breaching this agreement. Depending on the outcome of this matter, I will consider what, if any, action to take regarding this willful breach of contract.” (See p. 1 of Respondent’s October 28, 2017 letter to the Bar, attached hereto as TFB’s Exhibit 5.)

27. Threatening to retaliate against a person who filed a bar complaint and/or entering into an agreement with a client to not write to The Florida Bar or to voluntarily withdraw a bar complaint if already submitted, is conduct prejudicial to the administration of justice.

28. By reason of the foregoing, Respondent has violated the following Rules Regulating The Florida Bar: 3-4.2 [Violation of the Rules of Professional Conduct as adopted by the rules governing The Florida Bar is a cause for discipline.]; 3-4.3 [Misconduct and Minor Misconduct]; 4-1.3 [A lawyer shall act with reasonable diligence and promptness in representing a client.]; 4-4.1(a) [In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.]; 4-8.4(a) [A lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.]; 4-8.4(c) [A lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation ….];
4-8.4(d) [A lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice ….]; and 5-1.1(e) [On receiving funds or other property in which a client or third person has an interest, a lawyer must promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer must promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, on request by the client or third person, must promptly render a full accounting regarding the property.].

WHEREFORE, The Florida Bar prays Respondent will be appropriately disciplined in accordance with the provisions of the Rules Regulating The Florida Bar as amended.

Respectfully submitted,

Barona’s Withdrawal of Waiver and Consent to Wider’s Appointment as Personal Representative

1. The Barona Waiver and Consent was signed by Barona without full and adequate disclosure of the consequences of the execution of the document and the ethical considerations regarding the preparation of a Will by an attorney which also names that same attorney to be the personal representative of the decedent’s estate.

Barona’s executed her signature on August 13, 2016 Waiver and Consent with only a limited explanation by Wider (with Barona under a time pressure few minutes on her way to work) that the signature on the form was necessary to probate the Will of the Decedent.

2. Barona, who is the sole beneficiary of the Estate, now withdraws and cancels her August 13, 2016 Waiver and Consent to the limited extent her Waiver and Consent waived and consented to that part of the Petition which seeks the appointment of Wider as the Personal Representative of the Estate.

3. Barona’s limited withdrawal of the Waiver and Consent will not prejudice the parties or the Court because her withdrawal is being filed with the Clerk and the Court and is being served upon the parties prior to the Court acting upon the Petition.

4. Barona was not sophisticated or experienced with Court proceedings on August 13, 2016. Based upon subsequently receiving an explanation (from counsel other than Wider or a member of her law firm) of the issues regarding the circumstances of when an attorney can ethically and legally prepare a Will which names that same attorney as the personal representative, she has determined she signed the Waiver and Consent in error to extent she is claimed to have consented to the appointment of Wider as personal representative.

Objection and Motion to Strike as to Wider’s Appointment

5. The Decedent’s Will which is the subject of the Petition names Wider as the Personal Representative (Article V.A, at page 2). The cover page of the Will also states it was “prepared by” Wider. Wider also notarized the execution of the Will (at page 7) and one of the witnesses was Richard Schwartz, a member of Wider’s law firm.

6. Wider’s role in being named by her client, Fruth, as the putative Personal Representative of Fruth’s Estate, calls into question the applicable conflict of interest provisions of Florida Bar Rules 4-1.7 and 4-1.B(a) of the Rules of Professional Conduct (full disclosure to client, client to be advised of desirability of seeking independent counsel, client to give informed consent, with a writing signed by the client, etc.), as well as the official commentary thereto.

7. The papers submitted by Wider in connection with her Petition and ex parte application for the granting the Petition do not reflect any documentation regarding the conflict of interest disclosures and client consent of the type recommended or required by Rule 4-1.B(a) for the Court to be able to appoint Wider as Personal Representative.

8. Barona submits that the matter of Wider’s appointment as Personal representative should not be treated as an ex parte matter. Unless and until those issues are properly presented and  explored — in a contested, evidentiary hearing — Wider should not be appointed as Personal Representative.

9. Barona is also concerned that valuable items in the Decedent’s home have been disposed of by Wider without any accountability.

Barona only learned recently from Wider herself that Wider got access to the locked apartment (under possibly questionable circumstances), after her entry she changed the locks, and that Wider claims to have disposed of the personal property and papers inside the apartment under circumstances that did not make sense to Barona, based on Barona’s knowledge of Fruth.

Barona is also concerned about other property of Fruth being placed at risk or being disposed of in a manner which would be contrary to Barona’s interests or desires.

WHEREFORE, Barona prays for entry of an Order acknowledging her withdrawal of the Waiver and Consent to the extent of the appointment of Wider as Personal Representative of the Estate, sustaining her objection and granting her motion to strike as to the appointment of Wider as Personal Representative at the August 30, 2016 ex parte calendar or otherwise, and for any other appropriate relief.

As an official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the more than 108,000 members of The Florida Bar. Key discipline case files that are public record are posted to attorneys’ individual online Florida Bar profiles. Information on the discipline system and how to file a complaint are available at www.floridabar.org/attorneydiscipline.

Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline.

Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that includes a rigorous background check and retaking the Bar exam. Attorneys suspended for periods of 91 days and longer must undergo a rigorous process to regain their law licenses including proving rehabilitation. Disciplinary revocation is tantamount to disbarment.

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



Appellate Circuit

A Chiefly Notorious 3-Panel Doubles Up On the Award of Sanctions Against a Pro Se Litigant

We order Watkins to pay double the costs, reasonable attorneys’ fees and to assess those fees and double costs against Watkins.

Published

on

The Triple Panel Doubles Up On the Pro Se

 REPUBLISHED BY LIT: SEP 18, 2021

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-11573

Non-Argument Calendar

D.C. Docket No. 1:19-cv-04345-ELR

ROBERT L. WATKINS, PRO SE

Plaintiff – Appellant,

versus

CAPITAL CITY BANK & GUARANTY,

As a defendant as it had merged with FMB, EDWARD J. TARVER,

successor in interest to Farmers and Merchants Bank,

GOODMAN, MCGUFFEY, LLP, ROBERT LUSKIN,

KEVIN C. PATRICK,

Defendants – Appellees.

Appeal from the United States District Court for the Northern District of Georgia

(September 15, 2021)

Before WILLIAM ‘SO MANY LIES’ PRYOR, Chief Judge, BERT ‘REPUTATION IS EVERYTHING’ JORDAN and BRITT ‘NO JUDICIAL OATH’ GRANT, Circuit Judges. PER CURIAM:

Robert Watkins appeals pro se the dismissal with prejudice of his complaint against and the award of attorneys’ fees and costs to his former attorney, Edward J. Tarver, Capital City Bank & Guaranty, and its counsel, Goodman McGuffey, LLP, Robert Luskin, and Kevin C. Patrick. We affirm.

Watkins abandoned any challenge he could have made to the dismissal of his complaint and to the order awarding the defendants their attorneys’ fees and costs. Despite obtaining four extensions of time from this Court and an opportunity to correct his deficient brief, Watkins chose to relabel his complaint as his initial brief.

Watkins does not dispute that his claims against all the defendants were untimely, see O.C.G.A. § 9-3-33, and barred by res judicata.

He also does not dispute that the defendants were entitled to the expenses they incurred to defend against a complaint he filed after two federal judges warned him that “continuing the pursuit of frivolous litigation may result in sanctions, injunction, and/or other appropriate relief.”

“We read briefs filed by pro se litigants liberally,” but Watkins has abandoned his opportunity to contest the dismissal of his complaint or the award of sanctions against him. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

The defendants jointly request that we sanction Watkins for pursuing a frivolous appeal. See Fed. R. App. P. 38.

Rule 38 states, “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Id.

The defendants argue that Watkins has badgered them for almost two decades, this appeal constitutes the sixth time he has forced them to respond to “the same claims” in this Court, and this appeal “is without legal merit and presented to further harass [them] and needlessly increase the costs of litigation.”

Watkins has not responded to the motion.

Rule 38 exists “to assess just damages in order to penalize an appellant who takes a frivolous appeal and to compensate the injured appellee for the delay and added expense of defending the district court’s judgment.” Burlington N. R. Co. v. Woods, 480 U.S. 1, 7 (1987).

Watkins’s serial litigation warrants an award to the defendants for their expenses in defending this appeal. See United States v. Morse, 532 F.3d 1130, 1133 (11th Cir. 2008) (sanctioning pro se litigant).

We order Watkins to pay double the costs the defendants have incurred in this appeal and remand with instructions for the district court to calculate reasonable attorneys’ fees and to assess those fees and double costs against Watkins.

We AFFIRM the dismissal of Watkins’s complaint and the award for the defendants’ expenses in the district court, we AWARD SANCTIONS of double costs and attorneys’ fees to the defendants under Rule 38 for this appeal, and we REMAND for the district court to assess reasonable attorneys’ fees and double costs for the defense of this appeal.

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



Continue Reading

Appellate Judges

Let’s Talk Judge Priscilla Owen and Abortion Rather Than Focus on Kenneth Marra’s Judicial Nomination

Let’s be clear that the opposition to Justice Owen was all about abortion. Justice Owen is a friend of President Bush from Texas.

Published

on

EXECUTIVE SESSION

______

NOMINATION OF KENNETH A. MARRA, OF FLORIDA,

TO BE UNITED STATES  DISTRICT JUDGE

FOR THE SOUTHERN DISTRICT OF FLORIDA

[Senate]
[Pages S8340-S8350]
From the Congressional Record Online through the Government Publishing Office www.gpo.gov]

SEPT 9, 2002 | REPUBLISHED BY LIT: AUG 31, 2021

[Congressional Record Volume 148, Number 112 (Monday, September 9, 2002)]

The PRESIDING OFFICER. Under the previous order, the hour of 1 p.m.
having arrived, the Senate will proceed to executive session and
proceed with the consideration of Executive Calendar No. 889, which the
clerk will report.

The legislative clerk read that nomination of Kenneth A. Marra, of
Florida, to be United States District Judge for the Southern District
of Florida.

The PRESIDING OFFICER. The Senator from Vermont.

Mr. LEAHY. Madam President, I do believe that Judge Kenneth Marra
will be confirmed to the U.S. District Court for the Southern District
of Florida. I have heard of no opposition.

This is a judge who got strong bipartisan support in the Senate Judiciary Committee,
which usually guarantees a confirmation on the floor. When that happens, the
Democratic-led Senate will confirm its 74th judicial nomination made by
President George W. Bush.

This will also be the 25th judicial emergency vacancy that we have
filled since I became chairman last summer, and the 18th since the beginning of this year.

The confirmation of Judge Marra will bring additional resources to
the U.S. District Court for the Southern District of Florida. Judge
Marra was nominated to fill a new position Congress created by statute
to address the large caseload, particularly the immigration and
criminal cases, facing the Federal court in Florida.

He is one of three Federal judicial nominations on the Senate Calendar for action.
I recall during the past administration, the Clinton administration,
we all worked very hard in cooperation with Senator Graham and Senator
Mack to ensure that the Federal court in Florida had its vacancies
filled promptly with consensus nominees. Due to the bipartisan
cooperation between one Democrat Senator and one Republican Senator and
a Democratic President, the Senate was able to confirm 22 judicial
nominees from Florida, including 3 nominees to the Eleventh Circuit.
But it is unfortunate that this tradition of cooperation, coordination,
and consultation has not continued with the current administration.

By my recollection, it was only the nomination of Judge Rosemary
Barkett of the Florida Supreme Court to the Eleventh Circuit that
generated any significant controversy or opposition. I do recall that
she was strongly

[[Page S8341]]

opposed by a number of Republican Senators because they did not agree with her judicial philosophy.

Those voting against her included  Senators Hatch, Grassley, McConnell, Specter, and Thurmond,as well as Senators Lott, Nickles, and Hutchison of Texas.

They have an absolute right to do that, of course. I respect that right.

Judge Barkett received the highest rating of the ABA, “well qualified,” and yet 36 Republicans voted against her confirmation, even though she had the
strong bipartisan support of her home State Senators.

Recent claims by  some that it is unprecedented to vote against a judicial nominee with a “well qualified” rating and to vote against her
based on her judicial philosophy thus ring hollow.

Unfortunately, that is not the way the administration has dealt with
Senators Graham and Nelson now. But it is a tribute to Senator Graham
and Senator Nelson that we have made the progress we have had. They
could very easily have exercised their right as Senators and refused to
accept the nominees of President Bush. Of course, they would go no
further under the blue-slip policy that both Republicans and Democrats
strongly support. But they have been more than gracious in their
willingness to support these nominees. That is why they have gone
through.

This Democratic-led Senate has expeditiously moved President Bush’s
judicial nominees. We have worked hard to provide bipartisan support
for the White House’s nominations in spite of an almost unprecedented
lack of willingness on the part of the White House to work with us.

In fact, I have been here 26 years: During the terms of President
Ford, President Carter, President Reagan, President George Herbert
Walker Bush, President Clinton, and now President George W. Bush. This
administration is the least willing of any White House during all that
time–Republican or Democrat–to work with the Senate on judicial
nominations. But even without that cooperation, even with the
unprecedented lack of cooperation, we are making progress.

I would like to discuss the progress we have made. This chart shows
what has happened in the 15 months the Democrats have controlled the
Senate. Contrast that to the Republicans’ first 15 months when they
controlled the Senate. In less than 15 months of Democratic control of
the committee, we have held more hearings for more nominees, voted on
more nominees in committee, and confirmed more nominees than the
Republicans did in their first 15 months of control of the committee in
1995 and 1996.

We have confirmed more of President George W. Bush’s Federal trial
court nominees in less than 15 months than were confirmed in the first
2 years of his father’s Presidency. In fact, we confirmed more in the
first 15 months than the Republicans were willing to confirm in their
last 30 months.

I mention this because there seems to be some idea that somehow the
Democratic-led Senate is holding up judges. I think most of the
Presidents with whom I have served would have been delighted to have
had a Senate as cooperative as we have been.

Let me repeat that. In 15 months, Democrats have done more on
judicial confirmations than Republicans did in 30 months.
They, on the other side, do not want to compare our record of
accomplishment in evaluating judicial nominees with theirs in their
prior 6 1/2 years of control. They do not want to own up to their
delay and defeat through inaction of scores of judicial nominees during
the last administration.

All too often the only defense of their record we hear is the claim
that President Clinton ultimately appointed 377 judicial nominees, 5
fewer than President Reagan. This statement overlooks the fact that the
Republicans only allowed 245 of President Clinton’s judicial nominees
to be confirmed. That averages, incidentally, to about 38 confirmations
per year during their 6 1/2 years of control. We confirmed 74 judicial
nominees in less than 15 months, including 13 to the circuit courts. I
believe we have reported 80 out of the Judiciary Committee.

I mention this because of the persistence of the myth of inaction in
face of such in the face of such a clear record of progress by
Democrats. After a while, if someone keeps distorting the facts, if
someone keeps stating things that are not true, people actually come to
believe it is true. I am reminded of what Adlai Stevenson once said. I
will quote him:

I have been thinking that I would make a proposition to my
Republican friends . . . that if they will stop telling lies
about the Democrats, we will stop telling the truth about
them.

The truth is, of course, as these charts show, that we have a pretty
good record of accomplishment despite the lack of cooperation from the
administration.

With today’s vote, the Democratic-led Senate will confirm its 74th
judge–exceeding the number of circuit and district court nominees
confirmed in the last 30 months of Republican control of the Senate. We
have done more than Republicans did, and we have done it in less than
half the time.

We have confirmed more of this President’s nominees, both circuit and
district court nominees, in less than 15 months, than were confirmed in
the comparable 15 months of the first term of former President Reagan,
the first President Bush, and President Clinton.

Let’s take a look at what has happened in the first 15 months. With
today’s vote, the Democratic-led Senate has confirmed 74 of this
Republican President’s judicial nominees in less than 15 months.
Under President Reagan–and incidently, I might point out, he had a
Senate of his own party–there were 54 confirmation in the first 15
months. Under George H. W. Bush, there were 23; for the first 15 months
of President Clinton, 45. Incidentally, that is with a Senate under the
control of his own party. And now, in 15 months, under President George
W. Bush, we have had 74 judicial confirmations–74. By any standard you
want, here is a case where a different party than the President has
controlled the Senate, and we have done more than was done for
President Reagan when his own party controlled the Senate, for
President Bush when another party controlled the Senate, for President
Clinton when we, the Democrats, controlled the Senate.

It shows we can move and will move, and we have been doing that
notwithstanding the fact that there has been less cooperation from the
White House than I have seen with either Democratic or Republican
Presidents in 26 years in the Senate.

It is unfortunate. President Bush will probably get a record number of his judges  through at the current pace of confirmations.

But I have to think how much better it could be done with less rancor and with even a modicum of cooperation.

We have acted fairly and expeditiously notwithstanding the fact that Democrats have felt very concerned that for year after
year after year after year in many of the circuit courts of this
country, Republicans refused to even hold hearings for the nominees,
even though they had the highest ratings of the American Bar
Association.

They would not even hold hearings, to say nothing about having a vote.

Then when the Republicans came in, suddenly there was an emergency;
they had to fill the vacancies in those circuits. Their obstruction
created the problem. But notwithstanding that, in many of those cases
where Democrats were not allowed to even have a hearing year after year
after year, we have in the last 15 months moved forward with hearings
and votes, and positive votes, on the vast majority of his judicial
nominees.

I have no idea what political game is being played at the White
House. I know the people are very nice. Judge Gonzalez is a very nice,
very polite person. He is charming to be with. But the cooperation is
not there. The President is very nice, very charming. But the
cooperation is not there. We could do far better if they would just
pick up the phone and call the last three people from the last three
Republican administrations–they do not even have to call a Democratic
administration–and see how well this could be done.

As the distinguished ranking member, my good friend from Utah, knows,
I went down several times and worked with the Clinton White House so
they could have cooperation with, and they did cooperate with,
Republican Senators in moving through judges. I would hope that with
that precedent in mind, some might do the same.

Democrats have reformed the process for considering judicial nominees
to

[[Page S8342]]

ensure bipartisan cooperation and greater fairness. For example, we
have ended the practice of secretive, anonymous holds that plagued the
period of Republican control, when any Republican Senator could hold
any nominee from his or her home state, his or her own circuit or any
part of the country for any reason, or no reason, without any
accountability. We have returned to the Democratic tradition of
regularly holding hearings, every few weeks, rather than going for
months without a single hearing. In fact, we have held 23 judicial
nominations hearings in our first 13 months, an average of almost two
per month.

In contrast, during the six and one-half years of Republican control,
they went 30 months without holding a single judicial nominations
hearing. By holding 23 hearings for 84 of this President’s judicial
nominees, we have held hearings for more circuit and district court
nominees than in 20 of the last 22 years during the Reagan, first Bush,
and Clinton Administrations.

As this chart shows, we have held more hearings for President Bush’s
judicial nominees in less than 15 months than were held in 15 months
for any of the past three Presidents. In the first 15 months of the
first term of President Reagan, 17 judicial nominations hearings were
held. In the first 15 months of President George H.W. Bush’s term, 11
hearings were held. And, in the first 15 months of President Clinton’s
first term, 14 judicial nominations hearings were held. In contrast, we
have held 23 hearings in less than 15 months. That is almost as many as
were held in the first 15 months of the terms of the first President
Bush and President Clinton combined. We have more than exceeded the
number of hearings held in the last 30 months of Republican control of
the Senate, when they held only 15 hearings.

While some complain that a handful of circuit court nominees have not
yet had hearings, they fail to acknowledge that Democrats have held
hearings for more of President Bush’s circuit court nominees, 18, than
in any of the six and one-half years in which the Republicans
controlled the Committee before the change in majority last summer.
Republicans have utterly failed to acknowledge this fairness and
progress under the Democratic majority. The myth of obstruction of
judicial nominees fits their political strategy better than the truth.

The years of Republican inaction on a number of circuit court
vacancies has made it possible for Democrats to have several
“firsts,” or astounding accomplishments in addressing judicial
vacancies. For example, we held the first hearing for a nominee to the
Sixth Circuit in almost five years (that is more than one full
presidential term) and confirmed her, even though three of President
Clinton’s nominees to the Sixth Circuit never received a hearing or a
vote. We held the first hearing on a Fifth Circuit nominee in seven
years (including the entire period of Republican control of the Senate)
and confirmed her last year, while three of President Clinton’s Fifth
Circuit nominees never received hearings or votes on their nominations.

We held the first hearing on a Tenth Circuit nominee in six years, and
we have confirmed two of President Bush’s nominees to the Tenth
Circuit, while two of President Clinton’s nominees to that circuit
never received hearings or votes. We held the first hearing for a
Fourth Circuit nominee in three years, for Judge Roger Gregory, and the
first hearing for an African American nominee to that court in United
States history, even though Judge Gregory and four other nominees to
that circuit (including three other African Americans) never received
hearings or votes during Republican control of the Senate. These are
just a few examples of the historic accomplishments of the Democratic-
led Senate which debunk Republican myths that Democrats caused the
vacancy crisis, are delaying judicial appointments or have been
retaliating for years of obstruction on circuit court vacancies by
Republicans.

There were only 16 circuit court vacancies when Republicans took over
the Senate in January 1995. Unfortunately, from January 1995 until
Republicans relinquished control and allowed the Judiciary Committee to
be reorganized in the summer of 2001, circuit court vacancies more than
doubled from 16 to 33. Republicans executed a partisan political
strategy to hold vacancies open on the circuits for a Republican
president to fill. It would certainly have been easier and less work
for Democrats to retaliate for the unfair treatment of the last
President’s circuit court nominees. We did not. We have been, and will
continue to be, more fair than the Republican majority was to President
Clinton’s judicial nominees.

Here is another chart that shows that more of President Bush’s
judicial nominees have been given committee votes than the nominees of
prior presidents. Unlike my Republican predecessor, I have scheduled
hearings and votes on district and circuit court nominees whom I do not
support. The Judiciary Committee has voted on 82 judicial nominees and
favorably reported 80. In less than 15 months, we have voted on more of
President Bush’s district and circuit court nominees than were voted on
in the first 15 months of any of the past three Presidents. Moreover,
we have voted on more nominees in less than 15 months than were voted
on in the first 15 months of Presidents Reagan and George H.W. Bush
combined, or Presidents George H.W. Bush and Clinton combined. We have
even voted on more nominees in less than 15 months than were voted on
in the last 30 months of Republican control of the Senate, when 73
nominees were voted on by the Committee.

Because we have moved quickly and responsibly, the number of
vacancies is not at the 153 mark it would be had we taken no action.
Vacancies have been reduced to 79 and are headed in the right
direction. On July 10, 2001, with the reorganization of the Senate, we
began with 110 vacancies. When Republican gained control of the Senate
in 1995 the federal judicial vacancies numbered 65. The vacancies
increased during their six and one-half years to more than 110. Under
the Democratic majority, by contrast, the number of vacancies is being
significantly reduced. Despite the large number of additional vacancies
that have arisen in the past year, with the 61 district court
confirmations we have as of today, we have reduced district court
vacancies to 50, almost to the level it was at when Republicans took
over the Senate in 1995.

In fact, when we adjourned for the August recess we had given
hearings to 91 percent of this President’s judicial nominees who had
completed their paperwork and who had the consent of both of their
home-State Senators. That is, 84 of the 92 judicial nominees with
completed files had received hearings.

When we held our most recent hearing on August 1, we had given
hearings to 66 district court nominees and we had run out of district
court nominees with completed paperwork and home-State consent. Only
two district court nominees were eligible for that hearing. This is
because the White House changed the process of allowing the ABA to
begin its evaluation prior to nomination. This change has cost the
federal judiciary the chance over the last year to have 12 to 15 more
district court nominees on the bench and hearing cases, because now the
ABA can only begin its evaluation once the nomination is submitted to
the Senate. The ABA also must wait until the Administration provides
the Senate with the nominee’s public questionnaire, and lately the
nominees’ documents have been arriving on a delayed basis, as well.
Indeed, many of the two dozen nominations most recently received will
likely not get hearings before adjournment this year in large measure
because the White House unilaterally changed the process for
consideration and has built additional delays into it.

In January I had proposed a simple procedural adjustment to allow the
ABA evaluation to begin at the same time as the FBI investigation, as
was the practice in past Republican and Democratic Administrations over
50 years. Had this proposal been accepted, I am confident there would
be more than a dozen fewer vacancies in the federal courts. Instead,
our efforts to increase cooperation with the White House have been
rebuffed. We continue to get the least cooperation from any White House
I can recall during my nearly three decades in the Senate. Yet, even
with such lack of cooperation from the White House, the Senate has set
an impressive rate of confirming judicial nominees.

[[Page S8343]]

Here is another chart that shows how Democrats have dramatically
reduced the time between nomination and confirmation of circuit court
nominees. Since the Democrats assumed the majority last July, the
average time to confirm circuit court nominees has been drastically
reduced to 147 days, from a high during the most recent years of
Republican control of 374 days. We have reduced the average time from
nomination to confirmation to two-and-a-half times less than the
average time to confirmation during Republican control during the 106th
and 105th Congresses when it took an average of 374 and 314 days,
respectively, to confirm President Clinton’s circuit court nominees.
The Judiciary Committee has reported two more circuit court nominees
favorably to the Senate. We have held hearings on 18 circuit court
nominees and the Judiciary Committee has already voted on 17 of those
18 nominees.

In spite of the obstacles the White House has put in the way of their
own nominees through their lack of consultation and cooperation, we
have been able to have a productive year while restoring fairness to
the judicial confirmation process. I regret that the White House has
chosen the strident path that it has with respect to judicial
nominations, especially to the circuit courts. As several Senators
noted last week, the Administration does not have carte blanche to
insist on an ideological takeover of the Courts of Appeals with
activist ultra-conservative nominees intended to tip the balance in
circuits around the country. The total number of district and circuit
court confirmations now stands at 74, and there remain a few weeks left
in this session. So while we have been working hard and productive, the
Judiciary Committee and the Senate have not become a rubber stamp.
I am proud of the efforts of the Senate to restore fairness to the
judicial confirmation process over this time. The Senate Judiciary
Committee is working hard to schedule hearings and votes on additional
judicial nominees, but it takes time to deal with a mess of the
magnitude we inherited. I think we have done well by the federal courts
and the American people, and we will continue to do our best to ensure
that all Americans have access to federal judges who are unbiased,
fair-minded individuals with appropriate judicial temperament and who
are committed to upholding the Constitution and following precedent.
When the President sends judicial candidates who embody these
principles, they will move quickly, but when he sends controversial
nominees whose records demonstrate that they lack these qualities and
whose records are lacking we will take the time needed to evaluate
their merits and to vote them up or down.

I would like to thank the Members of the Judiciary Committee who have
labored long and hard to evaluate the records of the individuals chosen
by this President for lifetime seats on the federal courts. The
decisions we make after reviewing their records will last well beyond
the term of this President and will affect the lives of the individuals
whose cases will be heard by these judges and maybe millions of others
affected by the precedents of these decisions of these judges.
Before anyone takes for granted how fairly Democrats have treated
this President’s judicial nominees, receiving up or down votes, they
should take a look at how poorly judicial nominees were treated during
the 6\1/2\ years of Republican control of the Senate. In all, several
dozen judicial nominees of President Clinton never received a hearing
or a vote.

When confronted with this, Republicans often lament that about 50 of
the first President Bush’s judicial nominees did not get a hearing
before the end of the session in Congress in 1992. What they
consistently fail to mention about this, however, is quite revealing.
That year, the Senate confirmed more of President George H.W. Bush’s
judicial nominees than in any year of his presidency. He had 66
judicial nominees confirmed that year, but the Senate simply could not
get to the other 53 nominees he submitted in response to the creation
of dozens of new judgeships. So, even though some of his nominees were
returned, the Senate confirmed a substantial number, 66, of his
judicial nominees in the 10 months they were in session that year,
which was an election year, by the way.

Perhaps coincidentally, 66 is the highest number of judicial
confirmations in one year that Republicans ever allowed President
Clinton to reach. They averaged 38 judicial confirmations per year. In
the last two years of the Clinton Administration, Republicans allowed
only 33 and 39 judges to be confirmed, respectively in 1999 and 2000.
President George H.W. Bush had 66 confirmations in his last year of
office, an election year. In President Clinton’s last year in office
only 39 judges were confirmed, during Republicans control. In 1996,
Republican allowed only 17 judges to be confirmed, none to the circuit
courts. In those two election years combined Republicans allowed only
56 confirmations. In 1992, an election year, Chairman Biden pushed
through 66 confirmations.

Unlike Democrats in 1992, Republicans cannot honestly claim that they
moved a substantial number through but could not get to them all.
Confirming only 39 judicial nominees in 2000 and returning more than
that, 41, in that year alone, simply does not compare with what
happened in 1992 when Democrats worked hard to move through 66 of the
first President Bush’s judicial nominees in the space of 10 months. If
66 was such an easy number to reach, why did Republicans reach that
level only once in six years of control? The answer is easy. They did
not want to do so. I think Republicans wanted to ensure that they never
treated President Clinton better than the best year of former President
Bush (his last year) and they wanted to ensure that President Clinton
did not beat President Reagan’s number of confirmations, as a matter of
partisan pride.

Had Republicans kept up the pace of confirmation set by Democrats in
the first President Bush’s last year and the first two years of the
Clinton Administration, President Clinton would have appointed
substantially more than the 377 judges who were ultimately confirmed in
his two terms as president, and the Democratic-led Senate Judiciary
Committee would not have begun last July with 110 vacancies.
Ironically, perhaps, Democrats have been so fair to President George W.
Bush, despite the past unfairness of Republicans, that if we continue
at the current pace of confirmation and vacancies continue to arise at
the same rate, then Bush will appoint 227 judges by the end of his
term. If he were elected to a second term, at the current pace, he
would amass 454 judicial confirmations, dramatically more than
President Reagan, who Senator Hatch often calls the all-time champ.
This, too, demonstrates how fair Democrats have been. Perhaps some may
say we have been foolishly fair, given how Democrats were treated in
the past. We have exceeded the pace set in 1992, 1993 and 1994, with 74
confirmations to date in little more than a year.

In fact, when we adjourned for the August recess we had given
hearings to 91 percent of this President’s judicial nominees who had
completed their paperwork and who had the consent of both of their
home-State Senators. That is, 84 of the 92 judicial nominees with
completed files had received hearings.

Any way you look at the numbers, raw numbers or percentages,
comparisons with the prior six years of Republican control or with
prior Congresses and Republican presidents, the Democrats have done
more in less time. We have been more fair by far. Yet we have been
unfairly labeled as obstructionist because we have not been able to
have hearings for every single judicial nominee in the short period we
have been in the majority. This President still has over two years left
in his term.

I withhold the remainder of my time.

The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. Madam President, I rise today to respond to some of the
amazing assertions made by my distinguished colleague and friend from
Vermont. Of course, I do so with some trepidation because each time we
have a back and forth like this one, I help my colleague further the
impression that he is out to create and that he has done a good job of
creating, especially with the press.

The impression my colleague is seeking to create is that both sides
come to

[[Page S8344]]

the table with unclean hands in the matter of confirmations. It is a
false impression and it provides a smokescreen of the stark reality of
the poor performance of the Judiciary Committee this past year and
during this session.

Naturally, my friend takes pride in his accomplishments this year,
but not all of them. Let me list a few he misses. President Reagan took
pride in nominating the first woman to the Supreme Court. My Democrat
colleagues have now presided over the “Borking” of the first woman in
history, and one of the leading women jurists in this country,
Priscilla Owen.

My colleague has also set a new record for a Judiciary Committee
chairman. He has voted in 1 year against more judicial nominees than
any chairman in the 212 years of the Republic. Moreover, most of my
Democrat colleagues on the Judiciary Committee have voted against more
judicial nominees in this last one year than I have in my 26 years on
the Judiciary Committee. I voted against only one Clinton nominee, only
one, but as painful as that was, I did it standing straight for all to
see in the disinfectant light of the Senate floor, not in the shadows
of a committee vote.

Also, in rejecting Justice Owen, my Democrat colleagues rejected for
the first time in history a nominee who has received the American Bar
Association’s unanimous rating, highest rating of well qualified, the
rating that earlier this year they announced to be the gold standard
for judicial nominees and which, of course, they now criticize because
the independent body has rated President Bush’s nominees as highly
qualified as any we have ever seen.

In other words, Priscilla Owen, who had the support of both home
State Senators, which is a requisite for consideration by the
Committee, who had the highest rating given by the American Bar
Association for a judicial nominee, who is a supreme court justice in
Texas, and who, by anybody’s measurement who is fair, is in the
mainstream of American jurisprudence, was dumped unceremoniously in the
committee by a 10-to-9 party vote, a partisan party vote at that, and
without giving her nomination the chance of being brought up on the
floor of the Senate where I believe she would have passed, if not
overwhelmingly, certainly comfortably.

I have heard my colleague from Vermont defend against that by listing
the 42 judicial nominees who did not get confirmed by the end of the
Clinton administration. He doesn’t point out that there were 54
nominees left hanging at the end of the first Bush administration when
they were in charge. And he does not explain that most, if not all, of
the nominees left hanging at the end of the Clinton administration,
however qualified, did not progress because either they were nominated
too late or did not have their home state Senators’ support or had
other problems that we cannot address.

In an attempt to cloud up the rejection of Justice Owen’s nomination,
I have also heard my colleagues point to the Clinton judges from Texas
in particular who never got a hearing. One said at the Owen hearing
that I did not give them a hearing. It was a very unfair
characterization, and I will respond to it now.

As my friend knows well enough, neither of those nominees had the
support of their home state Senators. This prevented me, and would have
prevented the distinguished Senator from Vermont, if he were in my
shoes, from scheduling a hearing for them. In part, this was because
President Clinton ignored the Texas Senators and the Texas nominating
commission in making those nominations. The practice of honoring the
home State Senators is not one I put in place; it was put in place
under Democrat leadership of the committee, and appears agreeable to
both parties.

Today, Democrat Senators from the States of North Carolina,
California, and Michigan have prevented the Judiciary Committee from
holding hearings on six of President Bush’s original Circuit Court of
Appeals nominees who were nominated a year and a half ago, some of the
greatest nominees I have seen in the whole time I have been in the
Senate and on the Judiciary Committee, now 26 years.

I know there are those who seem to justify wrong in childlike fashion
with the intellectual crutch of, “They did it, too.” Let me say that
we Republicans have never done what was done to Justice Owen. I can’t
think of anything in history that compares to that. Some Democrats have
attempted to leave the impression that Republicans have unclean hands
so as to soften the scrutiny of what was done to Justice Owen. The
American people will see through this.

But let me assure you, none of those nominees who did not get
hearings would trade places with Charles Pickering of Mississippi or
Priscilla Owen of Texas. It is beyond peradventure that they would
prefer to be ghosts of nominations past than called racists, unjustly
called racists, and have their fine records of public service soiled by
the Judiciary Committee.

I am heartened to know that beyond the overwhelming support from her
home State of Texas and scores of op-eds written across the country in
support of the Owen nomination, Justice Owen’s nomination to the Fifth
Circuit has received editorial support from over 24 newspapers
published across the Nation and across the political spectrum. I have
previously submitted these for the Record.

Prior to the vote in Committee, only three newspapers, in fact–in
New York, Los Angeles, and San Francisco–had come out firmly against
the nomination.

I am heartened by this national support not just for the sake of
Justice Owen, but because at her hearing I expressed alarm at the
efforts of some to introduce ideology into the confirmation process. I
am heartened that editorial and op-ed writers across the country
reflect not only support for Justice Owen but also the near universal
rejection of this misguided effort to make the independent Federal
judiciary a mere extension of Congress and less than the independent,
coequal branch it was intended to be.

Let me respond further to my good friend from Vermont. He is right
that in this session so far the Senate has confirmed 73 judges. There
is much eagerness in my friend’s voice asserting that this number
compares favorably to the last three sessions of Congress during which
I was chairman.

Although I am flattered to hear my record used as the benchmark for
fairness, I am afraid this does not make for a fair comparison because
I was never chairman during any of President Clinton’s first 2 years in
office.

Let me repeat that. I was never chairman of the Judiciary Committee
during any President’s first 2 years in office. I am glad to say,
therefore, that the proper comparison is not, as they say, about me.

My colleague speaks of the last 15 months when I was chairman, but
this compares apples to oranges.

During President Clinton’s first Congress, when Senator Biden was the
chairman of the Judiciary Committee, the Senate confirmed 127 judicial
nominees. And Senator Biden achieved this record despite not receiving
any nominees for the first 6 months–in fact, Senator Biden’s first
hearing was held on July 20 of that year, more than a week later than
the first hearing of this session, which occurred on July 11, 2001.
Clearly, getting started in July of year one is no barrier to the
confirmation of 127 judges by the end of year two. But we have
confirmed only 73 nominees in this session.

Senator Biden’s track record during the first President Bush’s first
two years also demonstrates how a Democrat-led Senate treated a
Republican President. Then-Chairman Biden presided over the
confirmation of all but 5 of the first President Bush’s 75 nominees in
that first two-year session. Chairman Thurmond’s record is similar. The
contrast to the present could hardly be starker.

Mr. President, we are about to close President Bush’s first 2 years
in office having failed the standards set by Chairmen Biden and
Thurmond. That is nothing over which to be proud. We still have 80
vacancies on the courts, and 32 emergency vacancies.

Mr. President, one final point about Justice Owen. Much of the
opposition against her was driven by interest groups that advocate for
the right to abortion. Yet in Justice Owen we had the first nominee we
have considered this session who has, as a judge, read those cases,
cited them, quoted them, applied them and followed them. She did,
however, interpret the new Texas parental notice law and sought in one

[[Page S8345]]

particular case to make it rarer to bypass than some of her colleagues
on the court, although the Texas Supreme Court agreed in most all other
respects.

Of course, the charge that she is a judicial activist was a cynical
trick of words from Washington special interest lobbyists who have made
their careers taking positions without letting the words of the
Constitution stand between them and their political objectives.

Why did they oppose her? Ironically enough, they are doing so because
they do not like the Texas statute requiring parental notice in cases
of abortions for children. Justice Owen voted to give the statute some
meaning. Justice Owen’s opponents think a minor should always be able
to avoid the Texas Legislature’s standards. It is the groups allied
against Justice Owen who are the judicial activists, the ones who are
looking to achieve in the courts an outcome that is at odds with the
law passed by the elected legislators.

Let’s be clear that the opposition to Justice Owen was all about abortion.

But in Justice Owen’s case, it was not that she opposed
abortion rights–no decision of hers ever denied that right.

I fear  that the opposition to Justice Owen is not about abortion rights
exactly, but something much more insidious–it was not about abortion
rights exactly but about abortion profits.

Simply put, the abortion industry is opposed to parental notice laws
because they place a hurdle between them and their clients–not the
girls who come to them, but the adult men who pay for the abortions.

These adult men, whose average age rises the younger the girl is, are
eager not to be disclosed to parents, sometimes living down the street.

At $1,000 per abortion and nearly 1 million abortions per year, the
abortion industry is as big as any corporate interest that lobbies in
Washington. They not only ignore the rights of parents to hide their
young daughters’ abortions, they also protect sexual offenders and
statutory rapists.

And who are the lobbyists for the abortion industry? Exactly the same
cast that has launched an attack on Justice Owen. One wonders, as
columnist Jeff Jacoby did in the Boston Globe, who are the extremists
on this issue, who is out of the mainstream? Not Justice Owen–82
percent of the American people favor consent and notice laws such as
Justice Owen interpreted–86 percent in Illinois.

I will say it again, while my colleagues continue in general to apply
an abortion litmus test, the assault against Justice Owen was not about
abortion rights, it was about abortion profits. It is not about a
woman’s right to an abortion, it is about assailing parental laws that
threaten the men who pay for abortions. It is whether parents should at
least know, not even consent to, but just know, when a minor child is
having an abortion paid for by an adult.

Let’s speak truth to power.

Justice Owen was picked to be opposed because she is a friend of President Bush
from Texas.

She was opposed by an axis of profits.

This axis of profits combines the money of trial
lawyers and the abortion industry to fund the Washington special
interest groups, and spreads its influence to the halls of power in
Washington and in State courts across this country.

The Opposition against Justice Owen was intended not only to have a
chilling effect for women jurists that will keep them from weighing in
on exactly the sorts of cases that most invite their participation and
their perspectives as women, but also on all judges in all State courts
who rule on cases the trial lawyers want to win and cash in on.

When my colleagues voted against her, they chose to besmirch a model
young woman from Texas, who grew up, worked hard and did all the right
things–including repeatedly answering the call of public service at
sacrifice of personal wealth and family. My Democrat colleagues voted,
in effect, against the American promise of fairness.

This is a young woman who gave up a lucrative career to give public
service on the Texas Supreme Court, and who deserves to be on the Fifth
Circuit Court of Appeals.

Such a vote should have taken place in the light of this Senate
floor, but the American people will hear of the result notwithstanding
the shadows.

I only hope the American people will repair the damage done to the
Constitution when they vote in November.

I have reviewed Mr. Marra’s distinguished career and I can say, without hesitation, that he will be an excellent addition to the
prestigious Southern District of Florida.

Mr. Marra comes to the federal bench with a unique and extremely
useful qualification: Judge Marra is a former Social Studies teacher at
Elmont Memorial High School in Elmont, New York. After teaching high
school for several years, Judge Marra inexplicably decided to change
career paths and went to law school, graduating from Stetson University
College of Law in 1977. He then went to work for the United States
Department of Justice as part of its honor law graduates program. While
at the Department of Justice, he was involved in litigation which
sought to protect the land, water and mineral rights of Native
Americans from encroachment and to regain such resources that had been
wrongfully lost over the years.

After three years with the Department of Justice, Judge Marra joined
the law firm of Wender, Murase & White of Washington, D.C., where he
was involved in patent and trademark litigation, corporate law and
litigation in the area of federal Indian law. In 1984 Judge Marra
joined the law firm of Nason, Gildan, Yeager, Gerson & White. He worked
at that firm for the next twelve years focusing on commercial
litigation and representing clients at both the trial and appellate
levels. Judge Marra gained experience in a variety of matters,
including antitrust, contracts, construction defects, condominium and
homeowner association disputes, and employment and housing
discrimination.

In 1996 Judge Marra was appointed to the Fifteenth Judicial Circuit
in Palm Beach County, Florida. He has served in the civil, family and
criminal divisions.

Judge Marra will make a fine member of the Federal bench.

I reserve the remainder of my time.

The PRESIDING OFFICER. The Senator from Vermont is recognized.

Mr. LEAHY. Madam President, I am sure it was inadvertent that when
the distinguished Senator from Utah was talking about the editorials
against the nominee, Priscilla Owen, he said there were only three
against.

I refer, for example, to the Atlanta Journal-Constitution, and I will
quote from it and then put the whole editorial in the Record.
I ask unanimous consent that articles in opposition to her be printed
in the Record.

There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the New York Times, Sept. 4, 2002]

The Wrong Judge

Priscilla Owen, President Bush’s latest nominee to the
United States Court of Appeals for the Fifth Circuit, has
been at times so eager to issue conservative rulings in cases
before her on the Texas Supreme Court that she has ignored
statutory language and substituted her own views. This
criticism comes not from the “special interest groups” she
has charged with misstating her record, but from Alberto
Gonzales, President Bush’s own White House counsel.

Mr. Gonzales, who served with Justice Owen on the Texas high
court, once lambasted her dissent in an abortion case for
engaging in “unconscionable . . . judicial activism.” Mr.
Gonzales says today that he nonetheless supports the
elevation of Justice Owen. We do not.

In choosing a nominee for the Fifth Circuit–the powerful
federal appeals court for Texas, Mississippi and Louisiana–
President Bush has looked to the extreme right wing of the
legal profession. Even on Texas’ conservative Supreme Court,
Justice Owen has distinguished herself as one of the most
conservative members. A former lawyer for the oil and gas
industry, she reflexively favors manufacturers over
consumers, employers over workers and insurers over sick
people. In abortion cases Justice Owen has been resourceful
about finding reasons that, despite United States Supreme
Court holdings and Texas case law, women should be denied the
right to choose.

Justice Owen’s views are so far from the mainstream that,
on those grounds alone, the Senate should be reluctant to
confirm her. But what is particularly disturbing about her
approach to judging is, as Mr. Gonzales has identified, her
willingness to ignore that text and intent of laws that stand
in her way.

In an important age discrimination case, Justice
Owen dissented to argue that the plaintiff should have to
meet a higher standard than Texas law requires.

Justice Owen has also shown a disturbing lack of
sensitivity to judicial ethics.

She has raised large amounts of campaign contributions
from corporations and law firms, and

[[Page S8346]]

then declined to recuse herself when those contributors have
had cases before her. And as a judicial candidate, she
publicly endorsed a pro-business political action committee
that was raising money to influence the rulings of the Texas
Supreme Court.

After the Senate Judiciary Committee rejected Judge Charles
Pickering, another far-right choice, for a seat on the Fifth
Circuit earlier this year, the Bush administration declared
that it would not be intimidated into choosing more centrist
nominees. Sadly, the administration has lived up to its
threat. In this dispute the Senate is right: the
administration should stop trying to use the judiciary to
advance a political agenda that is out of step with the views
of most Americans.

Justice Owen is a choice that makes sense for Justice Department ideologues who want to turn the courts into a champion of big business, insurance companies and the religious right. But the American people deserve better. Justice Owen’s nomination should be rejected.
____

[From the Los Angeles Times, July 23, 2002]

Ideologues All in a Row

Last year President Bush eliminated the American Bar Assn.
from the process of vetting potential judicial nominees, a
role it performed ably and in a nonpartisan way for the nine
presidents before him. Now he relies on the ideological tests
of the very conservative Federalist Society.

Not surprisingly, the men and women who pass this rigid
test look remarkably alike on the bench. They often side with
business in disputes involving employee rights, consumers and
the environment. They strongly oppose abortion, and their
opinions reveal a strong streak of judicial activism dressed
up as traditional principle.

Priscilla Owen is among them. A protege of Bush confident
Karl Rove, who engineered her 1994 election to the Texas
Supreme Court, Owen is a nominee to a seat on the U.S. 5th
Circuit Court of Appeals. She comes before the Senate
Judiciary Committee today to defend a record of indifference
to the problems of most Americans.

Senators should ask her why, for example, she voted to
reverse a jury verdict in favor of a woman who had sued her
health insurance company for refusing necessary surgery to
remove her spleen and gallbladder. Her colleague on the Texas
high court, Alberto Gonzales, now Bush’s top legal advisor,
dissented, writing that Owen’s decision turned the legal
standard in that case “on its head.”

Gonzales, a solid conservative himself, also took issue
with Owen in an abortion case that should draw tough
questions from Sen. Dianne Feinstein (D-Calif.), chairwoman
of today’s hearing. Texas law allows pregnant teenagers in
some instances to seek permission from a judge to have an
abortion without their parents’ consent. Owen has staunchly
opposed such “judicial bypasses.” In one case, Gonzales,
wrote, Owen’s opinion would have “create[d] hurdles that
simply are not found in the . . . statute” and would be “an
unconscionable act of judicial activism.” in other cases,
her colleagues have accused her of “inflammatory rhetoric.”
For all this, Owen’s nomination puts Feinstein in a tough
spot. She was chairwoman last March when the Judiciary
Committee rejected Charles Pickering, another Bush pick for
the 5th Circuit. She is anxious to avoid being labeled
obstructionist. But given her repeated calls for mainstream
nominees, not to mention her long support for abortion
rights, Feinstein should vote no, and so should her
colleagues.

Although it is now one of the most conservative appellate
federal courts, the 5th Circuit has a long and honorable
history–defending civil rights during the 1960s and the
rights of asbestos workers, systematically deceived and
injured by their employers, in the 1970s. Owen would add
nothing positive to that legacy.

Americans want independent, common-sensical and capable
judges, not those whose political ideology–from either
direction–wins them a nomination. As long as Bush continues
to exclude the American Bar Assn. from the nomination
process, he should not be surprised that his choices draw
fire.
____

[From the San Antonio Express-News, July 21, 2002]

Bush Court Choice Should Be Rejected

Once competency is established, the most important
qualification for a judge is commitment to following the law
as it is written–regardless of personal philosophy.
Justice Priscilla Owen is clearly competent, but her record
demonstrates a results-oriented streak that belies
supporters’ claims that she strictly follows the law.

Because of Owen’s record as a member of the Texas Supreme
Court, the Senate Judiciary Committee should reject her
nomination to sit on the U.S. 5th Circuit Court of Appeals.
Her most infamous opinions involve cases in which minors
were seeking a legal bypass allowing them to get an abortion
without parental consent.

In those cases, she consistently landed in a small court
minority that opposes such bypasses, while a majority of her
fellow judges on an all-Republican court upheld the law as
legislators wrote it.

Former Justice Al Gonzales clearly pointed that out. In an
opinion that countered a dissent she supported, he wrote:
“To construe the Parental Notification Act so narrowly as to
eliminate bypasses, or to create hurdles that simply are not
to be found in the words of the statute, would be an
unconscionable act of judicial activism.”

Now serving as President Bush’s White House counsel,
Gonzales is defending his former state court colleague.
However, opinions she wrote in the parental consent cases
show a clear line between strict constructionist judges and
activists.

Owen, who remains on the state’s high court, is an
activist.

In recent years, judicial nomination struggles on Capitol
Hill have become a game, played by both parties, or petty
obstructionism.

The Senate should not block a judicial nominee simply
because he or she is more conservative or more liberal than
the Senate’s majority party.

It also should not engage in petty personal attacks. But
concerns about Owen go to the heart of what makes a good
judge.

When a nominee has demonstrated a propensity to spin the
law to fit philosophical beliefs, it is the Senate’s right–
and duty–to reject that nominee.

A hearing on Owen’s nomination is set for this week.

Although Owen should be rejected for a lifetime
appointment, the Democrat-controlled Senate should have given
her a hearing long ago. Bush nominated Owen on May 9, 2001.
Owen and the president were owed better treatment. Even
nominees who are destined for rejection deserve timely
consideration, and the Democrats should pick up the pace in
considering Bush’s judicial picks.

During his years as Texas governor, Bush did a masterful
job of selecting quality, moderate judges. But his decision
to nominate Owen is a disappointment.

We urge Bush to take more care in future nominations and
return to his previous policy of nominating judges who
believe in the law more than any ideological agenda.
____

[From the San Francisco Chronicle, July 23, 2002]

Feinstein’s Decisive Moment

Sen. Dianne Feinstein, D-Calif., faces a momentous
decision. Today, the Senate Judiciary Committee will hold
hearings on Priscilla Owen, the president’s candidate for a
lifetime appointment to the United States Court of Appeals
for the Fifth Circuit. With the committee divided along party
lines, Feinstein could cast the decisive vote.

When George W. Bush became president, he excoriated
judicial activism and vowed to nominate justices who
interpret the law, instead of trying to rewrite it.

Priscilla Owen simply does not satisfy the president’s own
criteria for this position. According to a report issued by
People For the American Way, a liberal advocacy group, Owen
has demonstrated a disturbing pattern of overruling the law
when it clashes with her conservative ideology.

In one case, for example, Owen’s dissenting decision would
have effectively rewritten a key Texas civil rights law by
making it more difficult for employees to prove
discrimination. Her colleagues on the bench–mostly Bush
appointees–wrote that her ruling “defies the Legislature’s
clear and express limits on our jurisdiction.”

With respect to reproductive rights, Owen advocated a far
more restrictive interpretation of the Texas law that allows
a minor to obtain an abortion without parental notification.
Her dissent prompted then-Justice Alberto Gonzales, now the
White House counsel, to write that her opinion constituted
“an unconscionable act of judicial activism.” Gonzales,
naturally, now expresses the White House party line, hailing
Owen’s integrity and ability. “I’m confident she will follow
the law as defined by the Supreme Court,” Gonzales was
quoted as saying in the San Antonio Express-News.

But close observers of her Texas record are less confident
of her objectivity. Danielle Tierney, a Planned Parenthood
spokeswoman from Texas, said Owen has “a record of active
opposition to reproductive and women’s rights.”

Owen has also tried to finesse laws that protect public
information rights, the environment, and jury findings.

The point is, Owen has created a strong record of “rewriting”
the law when it does not match her conservative convictions.

This is why it is vital that Feinstein reject this  nomination.
____

[From the Dallas Morning News, July 16, 2002]

Justice Owen: Perpetrator or Victim of Politics?

her activism has been extreme, even by texas standards

(By Craig McDonald)

Texas Supreme Court Justice Priscilla Owen, who faces a
Senate Judiciary Committee hearing Thursday on her nomination
to the 5th U.S. Circuit Court of Appeals, flunks the stated
judicial criteria of both President Bush and the Democratic
chairman of the Judiciary Committee.
Although the president nominated Justice Owen, she flunks
his own pledge to appoint “strict constructionists” who
narrowly interpret laws rather than write opinions promoting
a political agenda. “I want people on the bench who don’t
try to use their position to legislate from the bench,” Mr.
Bush has said. Yet Justice Owen’s record on the Texas Supreme
Court is one of a judicial activist who seeks to make laws
from the bench.

[[Page S8347]]

Justice Owen also flunks the criteria of Senate Judiciary
Committee Chairman Patrick Leahy, who has pledged to stop any
“ideological court packing.” Justice Owen’s record has
established her as an ideological extremist out of the
mainstream–even on the all-conservative Texas Supreme Court.

Justice Owen’s extreme opinions have mobilized a large
coalition of Texas organizations working to stop her
appointment. The groups fighting her nomination range from
the Texas chapter of the American Association of University
Women to the Women’s Health and Family Planning Association.

They include the AFL-CIO, the National Association for the
Advancement of Colored People, Planned Parenthood, the Texas
Civil Rights Project, the Texas Abortion Rights Action League
and others.

While each of those organizations has its own reasons for
opposing Justice Owen, my group–Texas for Public Justice–is
particularly troubled by the fact that she has amassed a body
of rulings that advance the agendas of the special interests
that bankrolled her judicial campaigns. Thirty-seven percent
of the $1.4 million that Justice Owen raised for her Supreme
Court campaigns came from donors with a direct stake in case
in her court.

Letting special interests bankroll judicial campaigns has shattered public confidence in Texas courts.

A 1999 Texas Supreme Court poll found that 83 percent of Texans,
79percent of Texas lawyers and 48 percent of Texas judges say
campaign contributions significantly influence judicial
decisions.

Commenting on the poll, U.S. Supreme Court Justice Anthony Kennedy said, “The law commands allegiance only if it commands respect. It commands respect only if the public thinks judges are neutral.”

Since Justice Owen joined the high court in 1995, she has
written and joined a slew of opinions that favor businesses
over consumers, defendants over plaintiffs and judges over
lawmakers and juries. A 1999 study by Austin-based Court
Watch found that individuals won just 36 present of their
cases during Justice Owen’s tenure, compared to a win rate of
66 percent for businesses, 70 percent for insurers and 86
percent for medical interests.

While all nine Texas Supreme Court justices are pro-business conservatives, Justice Owen and Nathan Hecht became an isolated bloc of extremist dissent about 1998.

Masquerading as “strict constructionists,” Justices Owen
and Hecht have promoted the interests of big business and the
far right with much less restraint than their fellow Texas
justices. That ultraconservative activism is all the more
disturbing, given that it mirrors the agenda of the top
donors to their judicial war chests.

In making lifetime appointments to federal appeals courts,
the president and the Senate can–and should–do better.

Justice Owen lacks criminal trial experience, has taken more
than $500,000 in judicial contributions from interests with
cases in her court and has produced a body of activist
opinions that are extremist–even by Texas standards.
____

[From the San Antonio Express-News, July 21, 2002]

Judge Owens Flunks Bush’s Own “Strict Constructionists” Test

(By Jan Jarboe Russell)

In a perfect world, there wouldn’t be “liberal” judges or
“conservative” judges, there would just be good judges.
After all, if you ask ordinary people what they want in a
federal judge, what they want are judges who are fair,
learned and impartial, judges who have the ability to lay
aside their own political views and do their public duty.

Why then is it so darn hard to find these kind of plain-
and-simple judges? The answer, of course, is the dreaded P
word; politics. The ongoing battle in the Senate Judiciary
Committee over the nomination of Priscilla Owen to the 5th
U.S. Circuit Court of Appeals is a perfect example of how
politics is making a certifiable mess of America’s judicial
system.

In seven years on the Texas Supreme Court, the only way
moderate-thinking people in Texas survived Owen’s relentless
ultra-conservative dissents was to toughen our stomachs and
take her many efforts to rewrite our state laws one day at a
time. This is a woman who has consistently ruled against
consumers, has routinely overturned decisions of juries, has
curtailed access to public records, and by anyone’s measure
is an avid anti-abortion ideologue.

Mind you: the Texas Supreme Court is no bastion of
liberalism. The nine members of the court are 100 percent
pedigree Republican, but Owen was such a right-wing activist
she managed to earn the nickname “Justice Enron” for
accepting $8,600 in Enron campaign funds in one year–$1,000
of it from Kenneth Lay himself–and turning around the next
and writing an opinion that saved Enron $225,000 in school
taxes.

As one of only nine states in the nation with the sorry
system of electing our judges with expensive campaigns paid
for by the very lawyers and businesses that come before these
judges for justice, Texas gets exactly the kind of justice we
deserve. In the case just mentioned, for example, Enron paid
for the privilege of robbing the public school children of
Spring, a Houston suburb, of their rightful share of taxes.

I don’t expect President Bush to nominate judges to the
federal bench with whom I agree politically. But I do expect
Bush to nominate people to lifetime positions on the federal
bench who meet Bush’s own standards of “strict
constructionists,” judges who will interpret rather than
write the law. Owen fails the Bush test.

In no less than a dozen cases in which the Texas Supreme
Court was asked to allow a pregnant teenager to bypass the
state’s parental notification requirement and have an
abortion, Owen voted every time to deny the bypass and
created hurdles that were not written in the state’s law. In
one case, when lawyers for a high school senior requested
that the court act quickly on the girl’s request for
permission to bypass the notification requirement, Owen wrote
a dissent that asked: “Why then the rush to judgment?” The
girl was in the 15th week of pregnancy at the time.

Owen’s rulings in these abortion notification cases were so
strident that Alberto Gonzales, now Bush’s White House
counsel but then a member of the Texas Supreme Court, wrote
in a majority opinion that Owen and two other dissenting
justices were thwarting the clear intent of the law. To
accept their reasoning, he wrote, “would be an
unconscionable act of judicial activism.”

Gonzales finds himself in the role of reluctant cheerleader
for Owen. In a telephone interview from his office in the
West Wing the other day, Gonzales claimed that he never
accused Owen of judicial activism and believes she would be
an excellent judge. His opinion has written in black-and-
white only two years ago–he clearly called her dissent an
“unconscionable act of judicial activism”–but maybe in his
struggle to find the gray, Gonzales meant that he thought all
of three of the judges were unconscionable. Who knows?

Politics makes people parse words very carefully.

Owen’s political credentials are indeed impressive. She is
a protege of Karl Rove, the president’s political adviser,
and it is Rove who is pushing her judicial nomination. But
politics should not be the primary measure of a judge’s
ability to administer justice.

As much as it pains me to say it, Justice Enron should stay
put in Texas.
____

[From the Houston Chronicle, July 31, 2002]

DiFi, Owen Would Be Very Odd Couple

(By Cragg Hines)

Sen. Dianne Feinstein, a wonderfully calm, cool
Californian, loves to be the swing vote. It increases the
sense that she is unbought and unbossed, and it makes her
political currency slightly more valuable than that of
colleagues who fall predictably one way or another on an
issue.

Part of this is political tromp l’oeil, an illusion so
strong that it’s difficult to tell it’s not genuine. For,
when the roll is called, only rarely is Feinstein not
reliably found where she sought to be–in her regular center-
left Democratic pew.

Which brings us to the nomination of Justice Priscilla Owen
of the Texas Supreme Court to be a judge on the 5th U.S.
Circuit Court of Appeals, a place where the conservative
judicial activist, corporate suck-up and made member (blood
oath?) of the Federalist Society has no earthly place being.

Feinstein ran last week’s hearing by the Senate Judiciary
Committee on Owen’s nomination and said she was “keeping an
open mind” regarding President Bush’s determination to give
Owen lifetime employment. (For the forgetful: Bush and Owen
both got their start in statewide politics as clients of the
White House political high priest, Karl Rove.)

Feinstein’s self-advertised “open mind” is about the only
hope for supporters of Owen. The Judiciary Committee’s nine
Republicans need one of the panel’s 10 Democrats to vote with
them to get the nomination to the floor.

If the nomination is not cleared by the committee, it’s
dead. None of this sending it to the floor without a
recommendation in a Senate with a one-vote Democratic margin
and run by Majority Leader Tom Daschle, D-S.D.

(Owen opponents would still like to hear something definitive from two other Demoracts–Sen. Joseph R. Biden, Jr. of Delaware, who did not show up for last week’s hearing, and the enigmatic gentleman from Wisconsin, Sen. Russell D. Feingold–but the focus is on Feinstein.)

Owen’s opponents believe that Feinstein will eventually
vote against the Texas jurist, but they cannot be absolutely
certain. Feinstein is not about to help them divine the
oracle at the moment.

“I’ve been giving it a great deal of thought,” Feinstein
said this week as the Senate headed toward summer recess.

“I’m not going to let my decision be known, but at an
appropriate time, I will.

“What I’ve said, and I’ve taken this position, I think,
rather scrupulously, is that I don’t make up my mind until
after the hearing.”

There was little in the hearing that should lead Feinstein,
or any senator, to believe that Owen is anything but the very
bright, very ideological, very driven hard-right jurist
revealed in her work over the last seven years on Texas’
highest civil court.

Finally, Sen. Richard J. Durbin, D-Ill, asked Owen directly
about her position on abortion.

“My position is that Roe v. Wade has been the law of the land for many, many years . . . ,”

Owen said, noting that decision had been modified
(and made more restrictive bysubsequent rulings).

“None of my personal beliefs would get
in the way of me applying that law or any other law.”

[[Page S8348]]

But Owen’s record, in a series of recent abortion-related
cases, suggests otherwise. In all but one of the cases, Owen
sought to tweak and torture the Texas law to something not
intended by the Legislature.

Feinstein was listening to all of this and, one assumes,
took it on board. In case she didn’t, an editorial in The Los
Angeles Times the morning of the hearing should have helped:

The work of Owen and similarly situated conservative jurists “reveal(s) a strong streak of judicial activism dressed up as traditional principle.”

The home state newspaper parsed Feinstein’s situation: She
also chaired the hearings earlier this year in which the
Judiciary Committee rejected Bush’s nomination of Charles
Pickering of Mississippi for a seat on the 5th Circuit Court.

“She is anxious to avoid being labeled obstructionist,”
The Times said of Feinstein. “But given the repeated calls
for mainstream nominees, not to mention her long support of
abortion rights, Feinstein should vote no, and so should her
colleagues.” Feinstein said she weighs such opinion but that
it is not dispositive.

One piece of baggage Feinstein would like to discard in the Owen matter is that her vote will have anything to do with a business relationship that the senator’s husband, Richard C. Blum, has with Dr. James Leininger of San Antonio, a generous supporter of Owen’s judicial campaign.

“I’ve never met (Leininger), talked with him, seen him,
heard from him–and that’s that,” Feinstein said. Nor, she
said, “have I ever talked to my husband about this, nor has
he ever talked to me about it.”

So Feinstein should be able to vote against Owen with a
clear conscience.

Mr. LEAHY. In part, this article says:

Senate Judiciary Committee Chairman Patrick Leahy has held
hearings on 82 Bush judicial nominations, 80 of which have
been approved by the committee. Most of those nominees have
been pro-life conservatives whose performance on the bench
the committee still judged to be fair and professional. For
example, last week the committee unanimously reported on
President Bush’s choice of Federal District Judge Reena Raggi
of New York for the U.S. Circuit Court of Appeals for the
Second Circuit.

Parenthetically, I might add that Judge Raggi was originally
appointed by President Ronald Reagan, a conservative Republican who
promised to appoint only judges who satisfied his litmus test.

The American people appreciate balanced judging, and thanks
to the Senate Judiciary Committee, they’re getting it.

I ask unanimous consent that the editorial be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Through constant repetition, conservatives have managed to
make a code phrase out of “judicial activism,” applying it
to rulings that in their mind go beyond the words in
legislation or the U.S. Constitution. But conservatives
themselves are hardly immune from the problem.

Case in point: Texas Supreme Court Justice Priscilla Owen, rejected last week for the 5th U.S. Circuit Court of Appeals by the Senate Judiciary Committee because of her record of making law from the bench. The committee made the right decision for the American people.

Owen’s activist judging has gone so far beyond the statutes
enacted by the Texas Legislature that she was even criticized
by fellow conservatives on the state Supreme Court, including
Alberto Gonzales, who is now Bush’s White House counsel.

On abortion, age and employment discrimination, insurance
and tax matters, the former corporate oil lawyer repeatedly
embellished the plain language of the law to rewrite it to
conform with her own ideological views. She also found ways
to side consistently with corporations, including Enron,
which contributed generously to her Supreme Court election
campaign.

President Bush has accused the Senate Judiciary Committee
of blind partisanship, but the facts don’t bear that out. In
less than two years, the Democratic-controlled committee has
approved more Bush nominees for the federal bench than the
Republican-controlled Senate Committee did in six years with
President Clinton.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has held
hearings on 82 Bush judicial nominations, 80 of which have
been approved by the committee. Most of those nominees have
been pro-life conservatives whose performance on the bench
the committee still judged to be fair and professional. For
example, last week the committee unanimously confirmed Bush’s
choice of Federal District Judge Reena Raggi of New York for
the 2nd U.S. Circuit Court of Appeals.

Nevertheless, Bush lashed out angrily at the Owen defeat:
“I don’t appreciate it one bit, and neither do the American
people.”

Quite the contrary, Mr. President. The American people
appreciate balanced judging, and thanks to the Senate
Judiciary Committee, they’re getting it.

Mr. LEAHY. Madam President, I ask unanimous consent for 1 more
minute, with another minute to be given to the Senator from Utah.

Mr. REID. Will the Senator yield?

Mr. LEAHY. Yes.

Mr. REID. I was going to go into a quorum call for 5 or 6 minutes
anyway. If the Senators would like 3 more minutes each or something,
that is fine. Otherwise, I will go into a quorum call.

Mr. LEAHY. Madam President, I ask unanimous consent for that time.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LEAHY. Madam President, there was a suggestion made–I am sure
inadvertent–by the distinguished Senator from Utah that it was
unprecedented to see a nominee with a well-qualified rating be voted
against. Actually, the Senator from Utah has voted against such a
person, like Judge Rosemary Barkett of Florida, as have a number of
others. But then there were a whole lot of others who we can say were
not voted against? Why? Because they were never allowed to have a vote
during Republican control of the Senate.

This is a partial list of nominees who never had a vote, but they had
the highest rating possible: H. Alston Johnson from the Fifth Circuit
was never given a hearing by the Republicans; James Duffy from the
Ninth Circuit was never given a hearing; Kathleen McCree Lewis from the
Sixth Circuit was never given a hearing or a vote; Judge James Lyons,
from the Tenth Circuit, was never given a vote or a hearing; Allen
Snyder, from DC, had a hearing but no vote; Judge Robert Cindrich, from
the Third Circuit, was never given a hearing or a vote; Judge Stephen
Orlofsky, from the Third Circuit, was never given a hearing or a vote;
Judge Andre Davis, from the Fourth Circuit, was never given a hearing
or a vote; and Enrique Moreno, of the Fifth Circuit, was never given a
hearing and never given a vote.

These are people with the highest possible rating from the ABA.
Republicans can say they never voted against them. Why? Because they
were never brought up and never given a vote. If they had been given a
vote, they would have known where they stood.

My good friend from Utah, perhaps inadvertently, thought I was
comparing a time when he was not chairman. I do compare a time when he
was chairman. I will take the first 15 months that he was chairman with
a Democratic President.

The Democratic President nominees got 14 hearings in 15 months; the
Republican President nominees, under my chairmanship, got 23 hearings.
Nominees who received hearings under Republicans were 67; under the
Democrats with a Republican President, 84.

Nominees confirmed, 56; in the same period of time, it was 74 with
us.

Nominees voted on in committee: They allowed 61 during that 15
months. We have had votes on 82 of this President’s judicial nominees.
It is nice to say nominations are not being handled fairly. The fact
is, if we used the Republican precedent as a mark of fairness, we would
not have to do anything else for the rest of the year because we are
way beyond what they did.

I reserve the remainder of my time.

Mr. HATCH. Madam President, how much time remains on each side?

The PRESIDING OFFICER. The Senator from Utah has 4 minutes 5 seconds.

Mr. HATCH. How much on each side?

The PRESIDING OFFICER. The Senator from Vermont has 7 seconds.

Mr. HATCH. Madam President, again, the Senator from Vermont and I are
friends, but I totally disagree with what he has been saying. It is a
smoke screen.

Allow me to address the fate of nominees first sent up by the first
President Bush. In fact, some pending today without a hearing who were
nominated by the first President Bush nearly 10 years ago.

These are nominees still on the list after 10 years that the Democrats have not
allowed to come up:

Terrence Boyle for the Fourth Circuit and John Roberts for the DC Circuit,

considered one of the two or three greatest appellate lawyers in the country
before the Supreme Court; Henry Saad for the Sixth Circuit; Ronald Leighton
for the Western District of Washington; and Richard Dorr for the Western District
of Missouri.

All five of these nominees were nominated by the first President Bush,
better than 10 years ago, but never received committee action at that
time. I hope they, too, will soon

[[Page S8349]]

receive their long-awaited hearings and confirmation votes.
By the way, there were 42 left over at the end of the Clinton
administration. Nine of them were put up so late, there was no way
anybody could have gotten them through. That brings us down to 33, and
of the 33, there were others who did not have the support of both home-
State Senators. There were those who, for one reason or another, could
not make it.

Contrast that when Bush 1 left office and the Democrats were in
control. There were 54 left over. That is 11 more than were left when
President Clinton left office.

If you want to talk statistics, I can talk them all day long, and I
can tell you we have been much more fair than what we have seen in the
first 2 years of the Bush 2 administration.

I suggest that instead of spending our time talking about the same
small handful of Clinton nominees, we should focus on the ones pending
before us today who never saw the light of day the last time the
Democrats controlled the Senate.

Justice Owen, for instance–and this is an important point–is
literally the first one in history who had the support of both-home
State Senators, the highest rating of the American Bar Association, and
was voted down in committee and not even given a chance to have a vote
on the Senate floor.

Currently, there are 80 empty seats on the Federal judiciary. That is
a 9.3-percent vacancy rate, one of the highest in modern times. This
means that 9.3 percent of all Federal courtrooms are presided over by
an empty chair.

There are currently 21 nominees who are slated to fill positions
which have been declared judicial emergencies by the Administrative
Office of the Courts. Of those, 11 are Circuit Court of Appeals
nominees.

Only 5 of President Bush’s first 11 circuit court nominees nominated
on May 9, 2001–a year and a half ago almost–have had hearings. In
other words, the Judiciary Committee has taken no action whatsoever on
nearly half of the circuit court nominations that have been pending for
over 16 months.

There is no reason for this other than stall tactics. All of these
nominees received qualified or well-qualified ratings from the American
Bar Association.

There were 31 vacancies in the Federal courts of appeals on May 9,
2001, and there are 28 today. The Senate Democrats are trying to create
an illusion of movement by creating great media attention and
controversy concerning a small handful of nominees in order to make it
look like progress. But we are not making any progress in filling
circuit vacancies.

President Bush has responded to the vacancy crisis in the appellate
courts by nominating a total of 32 top-notch men and women to these
posts–but the Senate is simply stalling them. Over the past year, the
Senate has confirmed only 13. There are still 19 Circuit Court nominees
pending in Committee. By comparison, at the end of President Clinton’s
second year in office, we had confirmed 19 circuit judges and had 15
circuit court vacancies.

There were only two Circuit Court nominees left pending in committee
at the end of President Clinton’s first year in office. In contrast,
there were 23 of President Bush’s Circuit Court nominees pending in
Committee at the end of last year.

Some try to blame the Republicans for the vacancy crisis, but that is
bunk. At the end of the 106th Congress when I was chairman, we had 67
vacancies in the Federal judiciary. During the past 9 months, the
vacancy rate has been hovering right around 100. Today is at 80.
Some think that the point of “advise and consent” is to match
statistics from previous years. This rear-view-mirror driving is
nonsense. The Senate has a duty to exercise its advice and consent, and
it has done so on only 40 percent of President Bush’s appellate court
nominations so far this Congress. The question is not: How many judges
should we let President Bush have? The question is: Is the Senate
getting its work done?

The Sixth Circuit Court of Appeals, which encompasses the states of
Michigan, Ohio, Kentucky and Tennessee, has only 8 of 16 seats filled,
leaving that court half-empty. The President has nominated 8
individuals to fill these vacancies, but only two have received a
hearing, despite the fact that two of these nominees have been pending
since May 9, 2001.

The U.S. Court of Appeals for the District of Columbia is also
functioning far below its normal capacity, with 4 out of 12 authorized
judgeships currently vacant. Although the President nominated Miguel
Estrada and John Roberts on May 9, 2001, to fill seats on this Court,
they have not yet been given a hearing.

The PRESIDING OFFICER. The Senator’s time has expired.

Mr. LEAHY. Madam President, last year when the Republicans controlled
the Senate Judiciary Committee, they did not hold one hearing on
President Bush’s nominees. We have done 82.

Mr. GRAHAM. Mr. President, I would like to thank the Judiciary
Committee for recognizing the needs of Florida and favorably reporting
the nomination of Judge Kenneth A. Marra.

Ken Marra, a skilled and respected Judge in Florida’s Fifteenth
Circuit, has been nominated to serve as a Federal judge in the busy
Southern District of Florida. If confirmed, he will fill a newly
created and much needed judgeship position.

Judge Marra’s solid qualifications make him an ideal candidate for
service on the Federal bench. A circuit judge since 1996, he currently
serves in the Palm Beach County Court’s civil, family and criminal
divisions. Before his tenure as a circuit judge, Judge Marra spent 16
years practicing commercial litigation in Palm Beach County and
Washington, DC. He also served as a trial attorney with the United
States Department of Justice.

Judge Marra is a graduate of the State University of New York at
Stony Brook and earned his law degree from the Stetson University
College of Law in 1977. Before attending law school, the judge taught
social studies to high school students in New York.

The strength of Judge Marra’s nomination is evident from the strong
support that he has earned from his local bar.

When asked to comment on his nomination for a January 4 Palm Beach Post
article, Amy Smith,president of the Palm Beach County Bar Association, said,

“He is an absolutely perfect choice: impeccable background, extremely intelligent, consistently one of the highest rated judges in the judicial evaluations done here.”

Ms. Smith said;

Marra’s judicial demeanor “is gracious and humble. The President couldn’t have made a better choice.”

When the Palm Beach County Bar Association released its biennial
survey of circuit and county judges earlier this spring,

Judge Marra ranked the highest in the neutrality and fairness category, with 63 percent of the attorneys rating him as “outstanding.”

In Florida, Judge Marra submitted his application to a judicial
nominating committee comprised of a diverse group of Floridians, who in
turn recommended three candidates to the President for consideration.
Senator Bill Nelson and I interviewed these candidates.

In summary, Mr. Marra is an intelligent, well-respected, and
qualified candidate for the Federal bench.

I appreciate the Senate’s consideration of Judge Marra’s nomination
and look forward to working with my colleagues to confirm additional
nominees to Florida’s Southern and Middle Districts, two of the largest
and busiest judicial districts in the country.

The PRESIDING OFFICER. All time has expired.

The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Kenneth A. Marra, of Florida, to be United
States District Judge for the Southern District of Florida? The yeas
and nays have been ordered. The clerk will call the roll.

The bill clerk called the roll.

Mr. REID. I announce that the Senator from Hawaii (Mr. Akaka), the
Senator from Illinois (Mr. Durbin), the Senator from Iowa (Mr. Harkin),
the Senator from Connecticut (Mr. Lieberman), the Senator from Maryland
(Ms. Mikulski), the Senator from Washington (Mrs. Murray), are
necessarily absent.

Mr. NICKLES. I announce that the Senator from Colorado (Mr. Allard),
the Senator from Missouri (Mr. Bond), the Senator from Kentucky (Mr.
Bunning), the Senator from Colorado

[[Page S8350]]

(Mr. Campbell), the Senator from New Hampshire (Mr. Gregg), the Senator
from North Carolina (Mr. Helms), the Senator from Arkansas (Mr.
Hutchinson), the Senator from Pennsylvania (Mr. Santorum), the Senator
from Alabama (Mr. Sessions), the Senator from Alabama (Mr. Shelby), the
Senator from New Hampshire (Mr. Smith), the Senator from Pennsylvania
(Mr. Specter), are necessarily absent.

The PRESIDING OFFICER (Mr. Nelson of Florida).

Are there any other Senators in the chamber desiring to vote?

The result was announced–yeas 82, nays 0, as follows:

[Rollcall Vote No. 211 Ex.]

YEAS–82

Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Brownback
Burns
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Hagel
Hatch
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Sarbanes
Schumer
Smith (OR)
Snowe
Stabenow
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden

NOT VOTING–18

Akaka
Allard
Bond
Bunning
Campbell
Durbin
Gregg
Harkin
Helms
Hutchinson
Lieberman
Mikulski
Murray
Santorum
Sessions
Shelby
Smith (NH)
Specter

The nomination was confirmed.

Mr. REID. I move to reconsider the vote.

Mr. LEAHY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

The PRESIDING OFFICER. Under the previous order, the President will
be notified of the Senate’s action.

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



Continue Reading

Appellate Circuit

Judge Kenneth Marra’s Random Assignment Questioned. Judge Bill Pryor Affirms.

Chief Judge Zloch had picked Judge Marra as his successor and he was entitled to do that as Chief Judge for the Southern District Court.

Published

on

Sec. & Exch. Comm’n v. Lauer, 610 F. App’x 813 (11th Cir. Apr. 21, 2015)

REPUBLISHED: AUG 27, 2021

WILLIAM PRYOR, Circuit Judge

[DO NOT PUBLISH] D.C. Docket No. 9:03-cv-80612-KAM Appeal from the United States District Court for the Southern District of Florida Before TJOFLAT, WILLIAM PRYOR, and BARKSDALE, Circuit Judges . WILLIAM PRYOR, Circuit Judge: 

Honorable Rhesa H. Barksdale, United States Circuit Judge for the Fifth Circuit, sitting by designation.

In this appeal, we must decide whether to set aside a judgment for over $60 million against Michael Lauer. In 2008, the Securities and Exchange Commission obtained the judgment against Lauer on the basis of violations of multiple securities laws.

Lauer appealed the judgment to our Court and we affirmed.

Sec. & Exch. Comm’n v. Lauer, 478 F. App’x 550, 558 (11th Cir. 2012).

Lauer then moved to vacate the judgment as void under Federal Rule of Civil Procedure 60(b)(4), and he moved to vacate the judgment under Rule 60(d)(3) for fraud on the court. The district court denied relief and Lauer’s requests for discovery.

We affirm.

I. BACKGROUND

In 2003, the Commission filed a civil enforcement action against Lauer and his management groups, Lancer Management Group, LLC, and Lancer Management Group II, LLC, and alleged that he violated numerous securities laws in his management of multiple hedge funds.

The “Request for Commission Action” form that the Commission used to initiate proceedings against Lauer was signed by four of the five commissioners, but two of those commissioners had initials signed next to their names that did not match their initials.

On the same day that it filed the complaint, the Commission moved, ex parte, for a temporary restraining order to freeze Lauer’s assets and for an order to appoint a receiver. The district court appointed the receiver, granted the restraining order, and scheduled a hearing for a preliminary injunction to enforce the same terms as the restraining order, including the asset freeze.

The hearing became unnecessary because Lauer consented to the preliminary injunction.

The district court later granted Lauer’s request to modify the asset freeze so that Lauer could sell various properties he owned, pay off any encumbrances, and remit the remaining proceeds to the receiver, who would pay all of Lauer’s outstanding legal fees and then pay Lauer $10,000 per month in living and legal expenses.

Not satisfied with this arrangement, Lauer moved to reconsider the asset freeze so that he would not have to sell any property. At the hearing on his motion, Lauer told the district court he “would prefer the court to just vacate the original order to modify [his] request,” so that he would not have to sell his house.

The district court reinstated the original asset freeze order.

Also in 2003, the British Virgin Islands Financial Services Commission began an investigation into Lauer and his hedge funds.

The Financial Services Commission hired Deloitte & Touche, an accounting firm, to prepare a report for use in litigation against Lauer and the funds. Deloitte & Touche prepared the report using “publicly available information” and documents provided by the Financial Services Commission.

The local attorney for Lauer’s hedge funds, Simon Pasco, hired Milton Barbarosh, a professional business evaluator, to analyze the Deloitte & Touche report. Barbarosh’s lawyer then told the Securities and Exchange Commission that Barbarosh was willing to work as a confidential informant. Barbarosh provided the Deloitte & Touche report to the Commission.

In 2004, Lauer moved to transfer venue from the Southern District of Florida to a district court in New York or Connecticut. The Commission opposed the motion and asserted that key witnesses would be inconvenienced by a transfer, including Barbarosh; George Levie, who allegedly produced bogus valuations for the hedge funds; and Lawrence Isaacson, who ran one of the shell corporations that Lauer manipulated.

The district court denied Lauer’s motion.

Barbarosh, Levie, and Isaacson each invoked their Fifth Amendment right against self-incrimination to avoid being deposed.

In May 2004, Lauer filed a motion to recuse Chief Judge William Zloch, 28 U.S.C. §§ 144, 455, based on the Chief Judge’s alleged “palpable predetermination of the defendant’s guilt.”

Lauer cited the Chief Judge’s comments at a hearing on the asset freeze. After Lauer had complained of the difficulty of defending the action on only $10,000 a month, the Chief Judge responded that legal processes can be difficult:

The Court: Some of these processes are painful, Mr. Lauer.

Mr. Lauer: Well, I concur, your honor. That’s why I wanted to resolve them as quickly as possible.

The Court: Are they any less painful by the way that you used your process of marking the close?

Mr. Lauer: We were not marking the close, Your Honor.

The Court: You weren’t.

Mr. Lauer: No, absolutely not. We said that under oath. And I am—as I said, I was pleading to have an early trial as early as possible—

The Court: All right.

Mr. Lauer: —so we can resolve the issue.

Lauer also argued that the Chief Judge’s consistent pattern of ruling against Lauer and his “condescending tenor” supported recusal.

Chief Judge Zloch denied the motion because Lauer failed to allege personal instead of judicial bias.

In June 2004, the case was randomly selected by the Clerk of Court for reassignment,

“to insure the fair and impartial reassignment of cases from the calendars of the respective judges of the court to the calendars of the new judges of the court.”

The case was reassigned to Judge Marcia Cooke, who had joined the court a month earlier.

Judge Cooke recused herself soon after and transferred the case back to Chief Judge Zloch, who then recused himself and referred the case to the Clerk for random reassignment.

The case was reassigned to Judge Marra.

In a declaration attached to his motion to vacate, Lauer alleges that he called Judge Marra’s chambers to find out how she had been assigned the case and that one of her law clerks told him that

“[Chief] Judge Zloch had picked Judge Marra as his successor and that he was entitled to do that as [C]hief [J]udge .”

In 2012, Lauer asked the Clerk by mail how the reassignment process happened. The Clerk confirmed that the assignment had been random.

In 2008, the district court granted summary judgment against Lauer and in favor of the Commission and ordered disgorgement, a payment of prejudgment interest, and a civil penalty.

Lauer appealed to our Court, and we affirmed the district court on all grounds.

Lauer, 478 F. App’x at 558.

In 2013, Lauer moved to vacate the judgment as void under Federal Rule of Civil Procedure 60(b)(4), and he moved to vacate the judgment due to fraud on the court based on Rule 60(d)(3).

He also moved the district court to grant an evidentiary hearing and to allow him to take discovery. The district court denied all relief.

II. STANDARDS OF REVIEW

This appeal is governed by two standards of review.

First, we review de novo the denial of a motion under Rule 60(b)(4).

Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001).

Second, we review for abuse of discretion the denial of a motion under Rule 60(d)(3) based on fraud on the court.

See Cox Nuclear Pharm., Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2007).

And we review for abuse of discretion decisions about discovery.

United States v. R&F Props. of Lake Cnty., Inc., 433 F.3d 1349, 1355 (11th Cir. 2005).

III. DISCUSSION

We divide our discussion in three parts.

First, we explain that Lauer has failed to establish that the judgment is void.

Second, we explain that Lauer has failed to establish a fraud on the court.

Third, we explain that the district court did not abuse its discretion when it denied Lauer discovery and an evidentiary hearing.

A. Lauer Fails to Establish that the Judgment is Void.

Federal Rule of Procedure 60(b)(4) provides that a court may “relieve a party or its legal representative from a final judgment” if “the judgment is void.”

Fed. R. Civ. P. 60(b)(4).

“[A] void judgment is one so affected by a fundamental infirmity that the infirmity may be raised even after the judgment becomes final. The list of such infirmities is exceedingly short . . . .”

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270, 130 S. Ct. 1367, 1377 (2010) (internal citation omitted).

“Rule 60(b)(4) applies only in the rare instance where a judgment is premised either on a . . . jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard.”

Id. at 271, 130 S. Ct. at 1377.

“[I]t is well-settled that a mere error in the exercise of jurisdiction does not support relief under Rule 60(b)(4).”

In re Optical Techs., Inc., 425 F.3d 1294, 1306 (11th Cir. 2005) (internal quotation marks and citation omitted).

And the “law is clear that Rule 60(b) may not be used to challenge mistakes of law which could have been raised on direct appeal.”

Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co., 198 F.3d 1332, 1338 (11th Cir. 1999).

Where a “party has been afforded a full and fair opportunity to litigate . . . the party’s failure to avail itself of that opportunity will not justify Rule 60(b)(4) relief.”

Espinosa, 559 U.S. at 276, 130 S. Ct. at 1380.

“Rule 60(b)(4) does not provide a license for litigants to sleep on their rights.”

Id. at 275, 130 S. Ct. at 1380.

And “[u]nder the ‘law of the case’ doctrine, the findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.”

Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005) (internal quotation marks and citation omitted).

Lauer makes six arguments that the judgment is void:

(1) the asset freeze unconstitutionally deprived him of the right to use his own funds to hire counsel;

(2) the Commission did not properly authorize the action against Lauer;

(3) the district court lacked subject matter jurisdiction;

(4) the Commission interfered with his attorney-client relationship;

(5) Chief Judge Zloch displayed impermissible bias;

and

(6) the entry of prejudgment interest was improper.

All of his arguments fail.

We explain each argument in turn.

1. The Asset Freeze Did Not Deny Lauer Due Process.

Lauer argues that the district court unconstitutionally denied him the use of his own funds to spend on legal counsel because it entered an injunction that froze all of his assets, but this argument fails.

We affirmed the freeze of Lauer’s assets in his earlier appeal.

See Lauer, 478 F. App’x at 554.

Although Lauer argues that we did not address his argument about a denial of due process, the law of the case “comprehends things decided by necessary implication as well as those decided explicitly.”

Transamerica Leasing, Inc., 430 F.3d at 1331 (internal quotation marks and citation omitted).

In his earlier appeal, “Lauer argue[d] that the asset freeze was improper because it did not provide for his living or litigation expenses,” but we held that the district court did not abuse its discretion.

Lauer, 478 F. App’x at 554.

If the district court had denied Lauer his right to counsel, that decision would have been an abuse of discretion.

See, e.g., Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir. 2004)

(“A district court abuses its discretion if it applies an incorrect legal standard or follows improper procedures.”) (internal quotation marks and citation omitted).

Because we rejected it already, Lauer’s argument is barred.

2. The Commission Approved the Action Against Lauer.

Lauer argues that the judgment must be vacated because the Commission never approved the action against him.

The document used to initiate the action against Lauer was signed by four out of five commissioners, with one abstaining.

But two of the commissioners had two sets of initials next to their names, and the second pair of initials did not match each respective commissioner’s initials.

Lauer argues that this irregularity proves that the action was not approved by the required majority of commissioners.

Lauer’s argument fails.

The Commission used its seriatim process to initiate the action. Under that process, the commissioners individually consider the matter and then report their votes to the Secretary.

17 C.F.R. § 200.42(a).

Lauer has pointed to no statute or regulation that requires a commissioner to use only his personal signature to report his vote.

And the minor potential irregularity does not overcome the “presumption to which administrative agencies are entitled—that they will act properly and according to law.”

Fed. Commc’n Comm’n v. Schreiber, 381 U.S. 279, 296, 85 S. Ct. 1459, 1470 (1965).

3. The District Court Had Subject Matter Jurisdiction.

Lauer argues that the district court lacked subject matter jurisdiction to decide the case, but his argument fails.

According to Lauer, the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78pp, one of the acts that Lauer violated, “does not authorize or empower the SEC to force registration, regulate or undertake enforcement actions against foreign companies, whose shares are listed exclusively on offshore exchanges.”

But Lauer admits that the Supreme Court ruled that this type of alleged defect is not jurisdictional in nature, Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 253-54, 130 S. Ct. 2869, 2876-77 (2010).

Even if Lauer could prove that the district court erred,

“a mere error in the exercise of jurisdiction does not support relief under Rule 60(b)(4),”

In re Optical Techs., Inc., 425 F.3d at 1306 (internal quotation marks and citation omitted).

4. The Commission Did Not Violate Lauer’s Due Process Rights When It Obtained the Deloitte & Touche Report.

Lauer argues that the Commission interfered with his attorney-client privilege when it enlisted Barbarosh to obtain the Deloitte & Touche report from Pasco, an attorney for the hedge funds in the British Virgin Islands, but his argument fails.

Lauer could have raised this issue in his merits appeal, but he did not do so.

The trial transcripts upon which Lauer relies were available to him during his merits appeal, and he even cited them in his reply brief before our Court.

See Scutieri v. Paige, 808 F.2d 785, 794 (11th Cir. 1987) (“Evidence that is contained in the public records at the time of trial cannot be considered newly discovered evidence.”)

Lauer was “afforded a full and fair opportunity to litigate” and cannot now seek relief under Rule 60(b)(4).

Espinosa, 559 U.S. at 276, 130 S. Ct. at 1380.

Moreover, the report that the Commission obtained was not privileged. The report was produced by an accounting firm, for the British Virgin Islands Financial Services Commission, for use in litigation against Lauer.

And the firm “based” the report “on [its] review and analysis of the documents provided by the [British Virgin Islands Commission] and took into account publicly available information.”

Even if the Commission interfered with Lauer’s attorney-client relationship, its actions were not “so outrageous” that they “constitute[d] a constitutional violation.”

United States v. Ofshe, 817 F.2d 1508, 1516 (11th Cir. 1987).

The only benefit that the Commission obtained was access to a report that was not privileged.

5. Chief Judge Zloch Did Not Impermissibly Fail to Recuse Himself or Rig the Reassignment of the Case.

Lauer argues that Chief Judge Zloch behaved impermissibly in two ways.

First, Lauer alleges that the Chief Judge should have recused himself when Lauer moved for his recusal, 28 U.S.C. §§ 144, 455.

Second, Lauer alleges that Chief Judge Zloch impermissibly influenced the reassignment of the case to Judge Marra.

Both arguments fail.

Yet again, Lauer could have raised these arguments in his merits appeal, but he failed to do so.

The relevant motions and reassignments took place years before the district court granted summary judgment in favor of the Commission.

And Lauer’s alleged conversation with Judge Marra’s clerk occurred in the same timeframe.

The only “new” evidence that Lauer includes in his motion to vacate is a series of communications with the Clerk of the District Court, in which the Clerk confirms that the process was random.

Lauer’s “failure to avail [himself] of th[e] opportunity [to litigate] will not justify Rule 60(b)(4) relief.”

Espinosa, 559 U.S. at 276, 130 S. Ct. at 1380.

Lauer’s arguments also fail on the merits.

“[A]dverse rulings alone do not provide a party with a basis for holding that the court’s impartiality is in doubt.”

United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (internal quotation marks and citation omitted).

And “bias and prejudice, to be a basis for disqualification, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.”

United States v. Clark, 605 F.2d 939, 942 (5th Cir. 1979).

The comments that Lauer cites do not suggest that Chief Judge Zloch was personally biased.

Chief Judge Zloch’s comment—

“Are they any less painful by the way that you used your process of marking the close?”

—was based on an exchange in which the Chief Judge explained to Lauer that legal processes can be difficult.

When Lauer immediately denied “marking the close,” the Chief Judge said “[y]ou weren’t . . . [a]ll right” and the hearing continued.

And Lauer has failed to establish any mishandling of the reassignment process.

Lauer argues that, despite denying his motion to recuse, Chief Judge Zloch later sua sponte recused himself “without providing a reason,” and “[j]udges don’t recuse themselves without a reason.”

But the change in judge was hardly mysterious.

The case was selected for random reassignment to a new judge to maintain a balanced workload within the district.

Judge Cooke, to whom it was reassigned, recused herself, so the case was returned to Chief Judge Zloch.

Chief Judge Zloch then recused himself so that the case would be randomly reassigned again, and this time it was Judge Marra who drew the assignment.

Lauer’s correspondence with the Clerk confirms that this process was random.

6. The Judgment is Not Void on the Basis of the Grant of Prejudgment Interest.

Lauer argues that the district court erred when it granted the Commission an award of almost $19 million in prejudgment interest because the interest was based on frozen assets to which Lauer had no access, but this argument is frivolous.

The award of prejudgment interest has nothing to do with jurisdiction or due process, and cannot be the basis of a motion under Rule 60(b)(4).

Moreover, Lauer made this argument in his merits appeal, and we rejected it.

See Lauer, 478 F. App’x at 557-58.

B. Lauer Fails to Establish that the Commission Committed a “Fraud on the Court.”

Lauer argues that we must vacate the judgment because the Commission committed a “fraud on the court” when it told the district court that it planned to call witnesses who asserted their Fifth Amendment right against self-incrimination and refused to be deposed.

Under Rule 60(d)(3), we can “set aside a judgment for fraud on the court.”

Fed. R. Civ. P. 60(d)(3).

Lauer must prove the fraud by “clear and convincing evidence.”

Booker v. Dugger, 825 F.2d 281, 283 (11th Cir. 1987).

And “[f]raud on the court is . . . limited to the more egregious forms of subversion of the legal process, . . . those we cannot necessarily expect to be exposed by the normal adversary process.”

Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir. 1985) (internal quotation marks and citation omitted)

(holding that perjury does not establish fraud on the court).

Lauer’s argument fails for two reasons.

First, Lauer could have raised this argument in his merits appeal.

The factual basis for the argument comes from transcripts from a criminal trial that took place from April to July of 2010, almost two years before our Court issued its decision in Lauer.

Second, Lauer has not established by “clear and convincing evidence,” Dugger, 825 F.2d at 283, that the Commission intentionally deceived the district court when it stated that it would call Barbarosh, Isaacson, and Levie as witnesses.

“[W]hatever else it embodies, [fraud on the court] requires a showing that one has acted with an intent to deceive or defraud the court.”

Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir. 1995).

Lauer has not established that the Commission knew that these witnesses would never testify. At best, Lauer established that the Commission had a strained relationship with Barbarosh, Isaacson, and Levie.

In August 2003, the Commission informed their attorney that it did not consider them confidential informants and that they must produce certain documents or face “appropriate action.”

Their attorney was nonplussed by the tone of the messages, but he responded that his clients still “intend[ed] to fully cooperate and remain available to assist the Commission with any and all non-privileged matters.”

And even when they invoked their Fifth Amendment rights rather than be deposed, at least two of them stated that they did so with the hope that they could still testify at a later time.

Accordingly, Lauer has failed to prove that the Commission committed a fraud on the court.

C. Lauer is Not Entitled to Additional Discovery or an Evidentiary Hearing.

Lauer argues that he should have been granted discovery on the questions whether the Commission approved the action against him and whether Chief Judge Zloch influenced the reassignment of the case to Judge Marra, but we disagree.

A district court does not “abuse its discretion both [where] it had a detailed record of the evidence before it and [where a party] did not adequately indicate how further discovery or a hearing would have aided the court’s determination.”

Scutieri, 808 F.2d at 795.

Lauer’s argument that the complaint was not properly approved runs counter to the presumption that an agency follows the law, see Schreiber, 381 U.S. at 296, 85 S. Ct. at 1470, and he has presented no reason to believe that additional discovery would prove otherwise.

Lauer also fails to explain what further discovery would accomplish regarding his claim of judicial bias.

Notwithstanding Lauer’s self-serving declaration, written a decade after the fact, the record evidence confirms that the process was handled correctly.

IV. CONCLUSION

We AFFIRM the denial of Lauer’s motions.

YOUR DONATION(S) WILL HELP US:

• Continue to provide this website, content, resources, community and help center for free to the many homeowners, residents, Texans and as we’ve expanded, people nationwide who need access without a paywall or subscription.

• Help us promote our campaign through marketing, pr, advertising and reaching out to government, law firms and anyone that will listen and can assist.

Thank you for your trust, belief and support in our conviction to help Floridian residents and citizens nationwide take back their freedom. Your Donations and your Voice are so important.



Ala. Educ. Ass’n v. Bentley (In re Hubbard), 803 F.3d 1298 (11th Cir. Oct 14, 2015)

A panel including Marra (by designation) and Tjoflat (6 months after this case).

Heatherwood Holdings, LLC v. HGC, Inc., 746 F.3d 1206 (11th Cir. 2014). A panel including Marra (by designation) and Tjoflat.

Just barely a year later, Marra is cleared by Tjoflat and Pryor along with Barksdale.

Harrison v. Culliver, 746 F.3d 1288 (11th Cir. 2014)

Another panel including Marra (by designation) and Tjoflat.

Zann v. Deputy, No. 12-16013 (11th Cir. Aug. 16, 2013)

Another panel including Marra (by designation) and Tjoflat.

Broussard v. Maples, 535 F. App’x 825 (11th Cir. 2013)

Another panel including Marra (by designation) and Tjoflat.

United States v. Lang, 732 F.3d 1246 (11th Cir. 2013)

Another panel including Marra (by designation) and Tjoflat.

United States v. Campbell, 765 F.3d 1291 (11th Cir. 2014)

Another panel including Marra (by designation) and Tjoflat.

Continue Reading

Most Read

Copyright © 2021 LawsInFlorida.com is an online brand name which is wholly owned by Blogger Inc., a nonprofit 501(c)(3) registered in Delaware | Caricatures by DonkeyHotey