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Editors Choice

The Senate Judiciary Committee Has a Responsibility to Forcefully Reject this Judicial Overreach

LIF and LIT has proven beyond a reasonable doubt that there are many rogue judges on our Federal Benches. This request is in direct violation of the US Constitution.

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Principles for Federal Judicial Privacy Legislation
Protection of Judges’ Personally Identifiable Information

Further to our article on Judges wanting God Status and Protection from Scrutiny by Tax Payers and Citizens, the following article transcribes the letter circulating congress and the Judicial Senate Committee…

September 4, 2020
Honorable Lindsey Graham Chairman
Committee on the Judiciary United States Senate Washington, DC 20510

Dear Mr. Chairman:

In my August 19, 2020 letter to House and Senate leadership, I outlined six recommendations approved by the Judicial Conference of the United States to improve judicial security.

That letter was prompted by the July 2020 attack on the family of United States District Court Judge Esther Salas that resulted in the murder of her 20-year-old son, Daniel, and the critical wounding of her husband, Mark.

Unfortunately, too many others in our judicial family have experienced similar tragedy and grief. The murders of United States District Judge John Wood (1979), United States District Judge Richard Daronco (1988), United States Circuit Judge Robert Vance (1989), United States District Judge John Roll (2011), family members of United States District Judge Joan Lefkow (2005), and now the son of United States District Judge Esther Salas were tragic targeted attacks against federal judges and their families.

Unfortunately, threats have greatly multiplied over the past five years and require immediate legislative action to enhance security protections.

Among the recommendations approved by the Judicial Conference is to seek legislation to enhance the protection of judges’ personally identifiable information (PII), particularly on the internet.

Another recommendation is to seek legislation to eliminate the sunset provision in 5 U.S.C. app. § 105(b)(3)(E), which grants the Judicial Conference authority to redact financial disclosure reports.

Other recommendations are for additional appropriations – for the upgrade, installation, and continued sustainment of the Home Intrusion Detection Systems program; for additional deputy U.S. Marshals; and for the Federal Protective Service (FPS) to fund the required upgrades for courthouse security camera systems.

A final recommendation is to support the development of a resource to monitor the public availability of judges’ PII, inform judges of security vulnerabilities created by this information, and where necessary, advise the appropriate law enforcement of an inappropriate communication.

James C. Duff
Secretary

Enclosures

cc:
Honorable Dianne Feinstein
Honorable Cory Booker
Honorable Bob Menendez

The judiciary supports the protection of and prevention of unauthorized release of personally identifiable information of federal judicial officers and their immediate families (“Judges’ Personally Identifiable Information” or “JPII”), particularly such information that is available and distributed through the internet. “Immediate family” includes a judicial officer’s spouse, child, parent, or any blood relative of the judicial officer or the judicial officer’s spouse who lives in the same residence as the judicial officer.

The goal of this legislation is to ensure that federal judicial officers are able to administer justice fairly without fear of personal reprisal from individuals affected by decisions made in the course of carrying out their professional duties. The purposes of the legislation are to remove and/or limit access to JPII from publicly displayed records, as well as to prohibit any person, business, association, or agency from posting, displaying, selling, sharing, transferring, or trading JPII with others. Federal privacy legislation shall not be construed to impair free access to decisions and opinions expressed by judicial officers in the course of carrying out their public duties.
The judiciary recommends enactment of federal legislation that incorporates the following:

1. PROTECTION OF FEDERAL JUDICIAL OFFICERS including the Chief Justice of the United States; the Associate Justices of the Supreme Court of the United States; judges of the United States courts of appeals; district judges and magistrate judges of the United States district courts, including the district courts in Guam, the Northern Mariana Islands, and the Virgin Islands; judges of the Court of Appeals for the Federal Circuit, Court of International Trade, United States Bankruptcy courts, United States Court of Federal Claims, and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior. The legislation shall extend to any individual identified above, whether in active, senior, recalled, or retired status, as well as any individual whose nomination to a position listed above has been transmitted by the President of the United States to the United States Senate and whose nomination remains pending before the United States Senate.

2. PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION of judicial officers and their immediate family members, to include but not be limited to the primary home address; date of birth; social security number; driver’s license number; voter registration information that includes a home address; bank account and credit or debit card information; property tax records and any property ownership records, including a secondary residence and any investment property; birth and marriage records; marital status; personal email addresses; home or mobile phone number; vehicle registration information; family member’s employer, daycare, or school; personal photographs or photographs of a judicial officer’s home; religious, organization, club, or association memberships; identification of children under the age of 18; and any other unique biometric data or piece of information that can be used to identify an individual.

3. PROHIBITION OF PUBLIC DISTRIBUTION OF JPII BY ANY FEDERAL GOVERNMENT AGENCY. Federal government agencies shall have an affirmative duty to prevent the public disclosure of JPII, and upon written request shall remove restricted JPII from internet sites or publicly accessible federal government databases within 48-72 hours of the request.

4. MANDATORY REMOVAL OR REDACTION OF JPII UPON WRITTEN REQUEST SERVED ON ANY PERSON, BUSINESS, ASSOCIATION, OR AGENCY. Upon written request, a person, business, association or agency must, within 48-72 hours of receipt of the request, redact from the public record any existing JPII and may not thereafter knowingly post, display, sell, share, trade or transfer JPII, including publicly accessible and displayed content. No person, business or association shall solicit JPII with intent to do harm to a judicial officer or immediate family member. The written request by a judicial officer, or his or her representative, to remove and/or to redact from the public record JPII of the judicial officer or an immediate family member shall not require a showing of fear of harm or immediate threat and shall remain effective until revocation of the request by the judicial officer or a surviving immediate family member.

5. ENFORCEMENT/REMEDIES shall include a private right of action (including injunctive or declaratory relief), civil enforcement authority by an appropriate federal department or regulatory agency, and limited criminal enforcement authority.

6. PREEMPTION OF STATE LAWS. Federal legislation must mandate and/or provide incentives for the protection of JPII held at the state/county/local level – at a minimum including motor vehicle registration and driver’s license information; real estate transaction and property tax records; and voter registration information that includes a home address. Restricted JPII of federal judicial officers and immediate family members must be exempt from state public information laws. Federal legislation might include grant programs to assist states in complying with these provisions.

Permanent Authority to Redact Sensitive Security Information from Judicial Financial Disclosure Reports

PROPOSED LEGISLATION:

SECTION 1. REDACTION AUTHORITY CONCERNING SENSITIVE SECURITY INFORMATION.

Section 105(b)(3) of the Ethics in Government Act of 1978 (5 U.S.C. App.) is amended by striking subparagraph (E).

BACKGROUND AND JUSTIFICATION:

• The Judicial Conference of the United States seeks legislation to eliminate the sunset provision in 5 U.S.C. app. § 105(b)(3)(E), which grants the Judicial Conference authority to redact financial disclosure reports.

• The need to provide permanent redaction authority is a sensitive security matter. A lapse in redaction authority, which has occurred in the past, creates significant security risks to judges and judiciary employees. Federal judges and judiciary employees, like probation officers, routinely interact with disgruntled litigants and convicted criminals who may bear grudges against them. Without redaction authority, these individuals will be able to learn sensitive information such as the unsecured locations of judges, employees, and their families. Redaction of this sensitive information protects these public servants and their families from harm.

• Judges and certain judicial employees are required to file financial disclosure reports under the Ethics in Government Act of 1978, as amended. Congress has recognized judges and judicial employees have been the subject of assault, threats and harassment. Accordingly, Congress enacted legislation that grants the Judiciary the authority to redact certain statutorily required information in a financial disclosure report in limited instances when the release of the information could endanger a judicial officer or employee or his or her family (The Identity Theft and Assumption Deterrence Act of 1998, Section 7, P.L. 105-318, October 30, 1998.) We thank the Congress for their past support of this critical safeguard.

• Congress has extended the authority to redact six times since 1998. In 2012, Congress passed an extension of the sunset provision through December 31, 2017. Unfortunately, the redaction authority expired on January 1, 2018 because Congress did not take final action on eliminating the sunset provision or renewing the authority. It wasn’t until March 23, 2018, upon enactment of the Consolidated Appropriations Act of 2018 that redaction authority was again extended to December 31, 2027.

• Congress previously has indicated support for legislation to make this authority permanent. As noted in House Report 115-332, the House has consistently supported permanent reauthorization of redaction authority. The House passed permanent redaction authority in 2011 by a vote of 384-0. In October 2017, the Senate Committee on Homeland Security and Governmental Affairs favorably reported to the Senate S. 1584 which provided for permanent redaction authority (see Senate Report 115-172.)

• The Judicial Conference uses its redaction authority carefully and reasonably. Each year a very small percentage of the financial disclosure reports filed contain an approved redaction of some information in the report. In 2019, 4,379 individuals employed in the judicial branch were required to file a financial report and 155 filers, or just 3.5 per cent, requested redaction. Of those, 150 requests were granted in full or in part. Of the 34,612 reports released to the public, only 1,970 contained partial redactions. Although only a small percentage of reports released to the public are approved for any redactions, the written application to examine a financial disclosure report and the ability to withhold sensitive information remain important protections for the judicial officers and employees who are most at risk for facing serious threats and inappropriate communications.

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Editors Choice

Judge Barbara Hobbs Son is Arrested for Attempted Murder. Her ExtraJudicial Intervention is Granted

JQC panel acquitted Judge Barbara Hobbs of attempting to “arrange unmonitored and unrecorded contact” with her son in jail.

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Tallahassee Judge Barbara Hobbs urges state Supreme Court to stick with 60-day suspension

Hobbs has been accused of improperly getting involved after her son’s arrest.

AUG 9, 2021 | REPUBLISHED BY LIT: SEP 5, 2021

Tallahassee Circuit Judge Barbara Hobbs is suggesting the Florida Supreme Court stick with a recommendation that she be suspended for 60 days and face a public reprimand for ethics violations.

Hobbs has been accused by the Judicial Qualifications Commission of improperly getting involved after her son Justin Haynes arrest in Tallahassee on attempted second-degree murder charges, among other charges.

Her attorney, Roosevelt Randolph, wrote in a filing last week that a hearing panel recommended a harsher penalty against his client than had been administered in other cases.

The panel in June found her guilty of inappropriately “representing” her son while he was being interrogated by the Tallahassee Police Department, an issue called a “serious ethical question” by Chief Judge Jonathan Sjostrom during Hobbs’ hearing.

Interrogation of Justin Haynes with Judge Hobbs in Attendance

But the same panel also acquitted her of other ethics charges, including that she tried to “arrange unmonitored and unrecorded contact” with her son in jail.

Nonetheless, the commission’s general counsel, Alexander Williams, wrote in his own filing that

“Hobbs’ conduct was inappropriate (and) did not promote public confidence in the integrity of the judiciary.”

Hobbs was first elected in 2012 to the 2nd Circuit bench, which covers Franklin, Gadsden, Jefferson, Leon, Liberty and Wakulla counties. She currently handles family law cases in Leon County, according to an administrative order.

The court is on its summer hiatus, with the regular release of opinions resuming Aug. 26, 2021. Time-sensitive cases still can be released at any time, spokesman Craig Waters has said.

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Editors Choice

Judges Want to Throw You In Jail if You Share Any Personal Information About Them

And the reason the Judiciary want this is so that blogs like LIT and LIF are unable to share the corruption within the third branch of government.

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Judges propose making disclosure of their personal details a crime

The request to Congress raises serious First Amendment and transparency concerns, critics said.

SEP 24, 2020 | REPUBLISHED BY LIT: JUN 20, 2021

Judges are public officials, not God. We The People cannot allow this request to be pushed through Congress – if you value democracy and a hint of a fair trial in courts in this country.

Judges are not forced into these positions, they choose to be in the profession and they are supposed to follow the rule of law, the U.S. Constitution, which includes the First Amendment. In short, Judges should not receive any preferential security not available to a citizen of the United States of America.

Judge Amy Coney Barrett, a top contender on President Donald Trump’s short list for the Supreme Court, has drawn widespread media attention for her reported membership in People of Praise, a largely Catholic, charismatic religious group.

Another shortlister, Judge Barbara Lagoa, is a longtime member of the Federalist Society, a conservative legal group. Her husband, Paul Huck, is an attorney at Jones Day, a law firm with close ties to the White House and throughout the Trump administration.

Those details — readily found in numerous news stories about the potential SCOTUS nominees — could become illegal for media outlets or anyone else to publish on the internet under a proposal federal judges sent to Congress earlier this month.

Under the suggested legislation, lawmakers would grant judges extraordinary latitude to decide what personal information to exclude from the public eye.

Critics say the effort — framed as an attempt to protect the physical safety of judges and their families — is on a collision course with the First Amendment.

It could also complicate efforts to vet judicial nominees and to assess their conflicts of interest after taking the bench, lawyers say.

The new push to lock down a broad swath of personal information about judges was prompted by a tragic incident in July, in which the son and husband of a New Jersey-based U.S. District Court judge were shot at the doorway of her home — apparently by a deranged attorney who may have been angry over the slow pace of a suit he’d brought challenging the exclusion of women from draft registration.

Federal judges handling high-profile cases in Washington have also experienced threats. Last month, a Long Island, New York man was indicted for leaving a voice mail message containing a vivid threat to kill U.S. District Court Judge Emmet Sullivan, who has been handling the politically contentious prosecution of former Trump National Security Adviser Michael Flynn. The caller also threatened “cutting down” Sullivan’s staff.

On Sept. 4, a group representing federal judges — the executive committee of the Judicial Conference — sent congressional leaders an urgent request seeking “immediate legislative action” to head off future violence and stem a rising tide of threats against judges and their families.

“We are seeking legislation to enhance protection and prevention of unauthorized release of judges’ and immediate family [personal information] particularly on the internet,”

U.S. District Court Judge Claire Eagan told reporters last week following a virtual meeting of the Judicial Conference.

“There is so much talk about cases and about judges, on the internet, that contains personal information.”

Eagan also said the courts are also looking to set up a system to “monitor proactively” personal information and threats to them online and elsewhere.

The letter sent to House and Senate Judiciary Committee leaders did not contain specific legislative language, but did offer a non-exclusive laundry list of information judges want authority to suppress.

It includes judges’ home addresses, dates of birth, Social Security numbers, driver’s license numbers, bank account details, home and mobile phone numbers and vehicle registrations.

However, the list also covers details on judges’ “investment property,” any “family member’s employer,” and “religious, organization, club, or association memberships.”

The proposal urges Congress to create a legally mandatory takedown mechanism that would give anyone 48-72 hours to remove such details “from the public record” if a judge requests their deletion.

The Judicial Conference asked lawmakers to give judges and the government the right to sue to force compliance. The proposal also called for “limited criminal enforcement authority.”

“We’re asking that the legislation require that when a written request by a judge or his or her representative is submitted, this will result in a mandatory redaction or removal of the personal information,” Eagan said.

By its terms, the proposal would apply not only to sitting and retired judges, but to all judicial nominees as long as their nominations are pending before the Senate.

Advocates for court transparency called the proposal a dramatic overreach by the judiciary.

“What they’re saying is the First Amendment doesn’t apply to judges, which is just awful,”

said Gabe Roth of Fix the Court, which advocates for openness at court proceedings and on details about judges’ financial ties.

“Obviously, I’m very sympathetic to the concerns about attacks on public officials, especially judges, [but] I can’t imagine that any lawmaker would take this seriously.”

Legal experts also expressed doubt about whether the provision would meet First Amendment standards, despite the fact that it originated with a panel of federal judges.

“My hope is this is going to get tightened up,”

said University of California at Los Angeles law professor Eugene Volokh.

“It would need to be narrowed considerably in order to survive a challenge under the First Amendment.”

Volokh said that while some of the information would almost never be of public concern, a number of the items on the judicial list could be relevant to whether a judge is being fair or has the appearance of doing so.

“People need to be able to talk about whether a judge needs to recuse due to some conflict of interest,” Volokh added. “These are perfectly legitimate things for people to talk about.”

However, the plan to protect judges’ personal information has one extraordinarily impassioned and powerful voice backing it:

Esther Salas, the New Jersey judge who recently lost her son and saw her husband wounded.

“I am asking everyone to help me ensure that no one ever has to experience this kind of pain,”

she said in an emotional video statement released last month.

“We may not be able to stop something like this from happening again, but we can make it hard for those who target us to track us down.”

“The free flow of information from the internet allowed this sick an depraved human being to find all our personal information and target us,”

the judge declared.

“In my case, the monster knew where I lived and what church we attended and had a complete dossier on me and my family. At the moment, there is nothing we can do to stop it and that is unacceptable.”

The plan the judiciary has offered would appear to give judges greater protection for their personal details than executive branch officials or lawmakers currently receive.

A federal law passed in 2008 makes it a crime to disclose a narrower set of personal information about federal officials, including lawmakers and judges.

It covers only the sharing of a Social Security number, home address, home or mobile phone number, personal email or home fax number.

In addition, under current law, disclosure is only a crime if the release is part of an effort to threaten, intimidate or incite a crime of violence against an official or his or her family.

The statute was used in 2018 to prosecute a former Democratic Senate staffer who released several GOP senators’ home addresses and phone numbers online out of anger at their handling of the confirmation hearings for Brett Kavanaugh.

The judicial proposal seeks to drop the intent requirement and significantly expand the scope of what’s deemed personal information.

Some experts said the nature of the internet does call for placing greater limits on the kind of personal information the public can access about judges and other officials.

“This makes sense to me—to limit the amount of personally identifiable information for both executive branch officials and judicial officials that is available both on the internet and to eight billion people around the world,”

said former State Department legal adviser John Bellinger.

“It shouldn’t just be put up on the internet for anyone to see.”

Bellinger was a vocal opponent of a law Congress passed in 2012 that would have automatically posted many federal employee financial disclosures and investment transactions online.

The law was aimed at cracking down on insider trading, but it drew an outcry from employees across the government who said they feared identity theft, financial scams and even targeting by hostile foreign intelligence agencies.

President Barack Obama signed a repeal of many of the requirements the following year.

The Senate Judiciary Committee routinely asks judicial nominees to list all associations and clubs they belong to and to detail whether any of them discriminate on the basis of race, sex, religion or national origin.

Under the new proposal, those answers could also be put off limits by a judge as personal information. Even if the questions were asked, the answers could be scrubbed before a questionnaire is made public.

Bellinger said criticism of some items on the list judges want to protect sounded “fair” and added he would oppose language that allowed judges to prevent disclosure of their membership in professional groups.

“You shouldn’t be able to hide something like that,” the attorney said. “I don’t know quite how you strike the balance. … The balance has to be struck in a different place in 2020 than it was struck maybe 50 years ago.”

The judiciary has struggled to find that balance in the internet era. In 1999, the crime news site APBNews.com sued the court system after it refused to comply with the site’s request for financial disclosures on every federal judge.

A judicial committee said it feared that posting the information on the internet could expose judges to harm, but Chief Justice William Rehnquist and the broader Judicial Conference eventually reversed that position and released the records.

The lawyer who brought the suit two decades ago, Mark Zaid, said he’s sympathetic to Salas’ concerns and those of other judges. Earlier this year, a Michigan man was indicted for threatening to kill Zaid, apparently over his role representing a key figure in the Trump impeachment saga.

However, Zaid said trying to suppress websites with information about judges seems misguided.

“It’s tricky and difficult and I’m not sure this is the right way to go about it,” said Zaid, who often represents journalists, including from POLITICO.

“We should be careful in the wake of tragedy not to go too far in terms of trying to do the right thing.”

Even some parts of the new proposal unlikely to draw much objection, like protecting details about judges’ and nominees’ minor children, could be tricky to enforce.

Children and family members of nominees have often been introduced by them at confirmation hearings that are open to the public and streamed on the internet, but under the proposal that, too, could be subject to a takedown order and might even be stricken from official transcripts of the event.

Judges’ children might sometimes be legitimate subjects of news coverage, Volokh said.

“You hear stories sometimes that a judge’s child was involved in some crime and then the charges are dropped and then the question is asked: Did he get a sweetheart deal? It’s very hard to talk about that without any identification of the child,” the professor said.

The judiciary is also seeking $524 million to improve security systems at judges’ homes, upgrade video surveillance at courthouses and add 1,000 new deputy marshals.

Spokespeople for House and Senate Judiciary Committee leaders did not respond to requests for comment on the judges’ proposal.

A spokesman for the federal courts, David Sellers, stressed to POLITICO Wednesday that the letter presented an initial round of suggestions and no formal legislative language. He also insisted there is no intent to limit legitimate debate about judicial nominees or court rulings.

“This is very early in the conversation,” Sellers said.

“These are broad principles that are the beginning of a conversation with our Congressional contacts. … Nobody’s goal is to limit transparency that’s needed in assessing judicial nominations or judges in any other capacity. It’s to safeguard the personal data that often is associated with it.”

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Appellate Circuit

Judge Charles Wilson and Judge Lisa Branch Like Nothin’ Better than Reviving a Personal Vendetta

Our refrain remains the same. Check the case history to see if you’re about to be “stitched-up” by a panel which is maliciously assembled to execute personal vendettas.

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In This 2021 Foreclosure Case with Sanctions, two members of the Appellate Panel were on Prior Decisions.

In the case of Judge Wilson, he sat on the Coastal Bank v. Martin case (11th Cir.) and in the case of Judge Branch, she was a Panel member in the $2.7M judgment case referenced herein, the Greenstein v. Bank of Ozarks, while she was a Justice on the Court of Appeals in Georgia State Court. Now, the lawyer who was a named party in that case in relation to CEP–TEN Mile Resorts, is before Branch as a Federal Circuit Judge and both Wilson and Branch are conveniently and non-randomly assigned to the 3-panel in this case.

It’s another example of judicial bias from the Eleventh Circuit. “Our refrain remains the same” and we warn parties to do their homework and look to the lower court and aged history of litigants to see if you’re about to be “stitched-up” by a panel which is maliciously assembled to execute personal vendettas.

MAY 29, 2021

Coastal Bank v. Martin, No. 17-11998 (11th Cir. Nov. 20, 2017)

Greenstein v Bank of the Ozarks,  (GA COA, 2014)

(May 28, 2021)

Before WILSON, MARTIN, and BRANCH, Circuit Judges. PER CURIAM:

More than eight years after Truist Bank foreclosed on Roderick Wright’s and his mother’s homes,1 Wright sued Truist, alleging misconduct related to the underlying loans.

On Truist’s motion, the U.S. District Court for the Northern District of Georgia dismissed Wright’s complaint for failure to state a claim.

Wright argues that the district court erred in dismissing his complaint because:

(1) he pleaded an actionable claim for breach of duty by a notary public,

(2) his Georgia RICO Act claim was not time-barred, and

(3) his substantive claims were adequate to support his claims for punitive damages and attorney’s fees.

Because the district court properly dismissed these claims, we affirm.

Truist requests that we deem Wright’s appeal to be frivolous and award sanctions.

Wright requests that we strike portions of Truist’s motion for sanctions for ad hominem language and for us to award sanctions in his favor.

Because we conclude that Wright’s appeal is frivolous, we grant Truist’s motion for sanctions and remand to the district court for an assessment of attorney’s fees and costs.

As to Wright’s motion to strike and for sanctions, we conclude that the arguments in Truist’s motion for sanctions were not improper and deny Wright’s motion.

1 Truist was then known as the Branch Banking and Trust Company.

I. Background

A. Facts

Wright owned a real estate development business and began banking with Truist around 2000. In March 2010, Truist approached Wright with a restructuring plan for some of his commercial loans.

The plan involved securing and cross- collateralizing the loans with Wright’s and his mother’s homes.

Wright alleges that Truist told him that the restructuring plan would be in his best interests. In reliance on that representation, he subsequently executed the plan.

According to Wright, there were no witnesses or notaries present when he signed the plan documents. Afterwards, he alleges, Truist affixed false notary public attestations and witness signatures to the documents.

Truist then allegedly refused to accept full payoffs of the loans.

In November 2010, several months after the parties executed the restructuring plan, Truist foreclosed on Wright’s and his mother’s homes.

B. Procedural History

On December 16, 2019, Wright filed a complaint against Truist in the Superior Court of Gwinnett County, Georgia. Wright alleged that Truist was liable for breach of duty by a notary public, a violation of the Georgia RICO Act, punitive damages, and attorney’s fees.2

Truist subsequently removed the case to the U.S. District Court for the Northern District of Georgia.

2 Wright also alleged counts of fraud, breach of fiduciary duties, economic duress, and to “set aside improper documents.” Because the district court dismissed these claims and Wright

Truist then moved to dismiss Wright’s complaint for failure to state a claim upon which relief can be granted. In its motion, Truist argued that:

(1) Georgia law does not recognize a private cause of action based on violations of the notary public statutes,

(2) Wright’s Georgia RICO Act claim was barred by the applicable five-year statute of limitations, and

(3) Wright was not entitled to punitive damages or attorney’s fees because he failed to establish his underlying claims.

Wright responded and argued that Truist’s “procurement and participation in the intentional violations of” the notary public statutes was actionable under Georgia law, his Georgia RICO Act claim was timely because it “ar[ose] out of the conduct associated with the execution of [sealed documents]” and was subject to a twenty-year statute of limitations, and his claims for punitive damages and attorney’s fees survived because his underlying claims were adequately pleaded.

The district court granted Truist’s motion to dismiss.

It found that “[i]n Georgia, there is no private cause of action for a claim arising under the notary public statutes,” and that “employers are neither subject directly to nor held vicariously liable for violations of OCGA § 45-17-11 committed by a notary public employed by them.”

It rejected Wright’s argument that a twenty-year statute of limitations applied to his Georgia RICO Act claim because the Georgia RICO Act contains a five-year statute of limitations.

Lastly, it dismissed Wright’s claims for punitive damages and attorney’s fees because it had dismissed all of Wright’s underlying claims.

Wright timely appealed.

2 Wright also alleged counts of fraud, breach of fiduciary duties, economic duress, and to “set aside improper documents.” Because the district court dismissed these claims and Wright does not challenge that decision on appeal, we will limit our discussion to Wright’s remaining claims.

On appeal, Wright argues that the district court improperly dismissed his claim for breach of duty by a notary public because it “misinterpreted case law detailing liability of an employer that procured an employee-notary’s violation of [the notary public statute].”

He also argues that it erred in dismissing his Georgia RICO Act claim because it “failed to recognize that the racketeering activity alleged . . . related to the improper attestations of the notaries subjecting the RICO claim to twenty-year statute of limitations under O.C.G.A. § 9-3-23 because the false swearing and false statements were upon sealed instruments.”

Finally, he argues that because his claim for breach of duty by a notary public and his Georgia RICO Act claim “should be reinstated . . . [his claims] for punitive damages and attorneys’ fees should likewise be reinstated.”

After Wright filed his opening brief, Truist filed a motion for sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927.3

In its 28 U.S.C. § 1927 states:

“Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

Truist argued that Wright’s appeal was frivolous because it was clearly foreclosed by governing law. Truist also made references to the facts that:

(1) Wright’s counsel, Eric J. Nathan, had been sanctioned by this Court in Coastal Bank v. Martin, 717 F. App’x 860, 865–66 (11th Cir. 2017), for failing to disclose controlling authority,

and

(2) Truist had obtained a judgment against Nathan in a separate matter for $2,737,372.61. (LIF Comment: Greenstein v. Bank of the Ozarks, 757 S.E.2d 254 (Ga. Ct. App. 2014).

Based on these facts, Truist suggested that Wright and Nathan were waging a “vendetta” against it.

In response, Wright filed a motion to strike Truist’s motion for containing ad hominem language and requested sanctions.

He argued that Truist “inserted no fewer than eight ad hominem attacks directly, and unnecessarily, attacking the personal credibility and character of Counsel for Wright and Wright himself,” in violation of Eleventh Circuit Rule 25-6.4

According to Wright, it was inappropriate for Truist to mention that Nathan had been sanctioned by this Court or that it had obtained a judgment against Nathan.

He also requested that we impose sanctions against Truist and its counsel under our inherent authority for their purported “continued and pervasive ad hominem attacks.”

3 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.”

28 U.S.C. § 1927 states: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.”

4 Eleventh Circuit Rule 25-6 states: “When any paper filed with the court, including motions and briefs, contains . . . ad hominem or defamatory language . . . the court . . . may without prior notice take appropriate action . . . includ[ing] ordering that: the document be sealed; specified language or information be stricken from the documents; the document be struck from the record; the clerk be directed to remove the document from electronic public access; the party who filed the document either explain why including the specified language or disclosing the specified information in the document is relevant, necessary, and appropriate or file a redacted or replacement document.”

II. Analysis

We review the district court’s grant of Truist’s motion to dismiss de novo, accepting the allegations in Wright’s complaint as true and construing them in the light most favorable to him. McGroarty v. Swearingen, 977 F.3d 1302, 1306 (11th Cir. 2020).

A. Breach of Duty by a Notary Public

Wright argues that the district court erroneously dismissed his claim for breach of duty by a notary public. The district court dismissed the claim because it found that, “[i]n Georgia, there is no private cause of action for a claim arising under the notary public statutes.”
Under O.C.G.A. § 45-17-8(d), “[a] notary public shall not execute a notarial certificate containing a statement known by the notary to be false nor perform any action with an intent to deceive or defraud.” In Anthony v. American General Financial Services Inc., 697 S.E.2d 166, 171–75 (Ga. 2010) (“Anthony I”), the Supreme Court of Georgia held that the notary public statutes do not create a private cause of action. We subsequently adopted that ruling and affirmed a district court’s dismissal of “a private civil claim under the notary fee statute.”5

5 In his complaint, Wright bases his claim for breach of duty by a notary public on O.C.G.A. § 45-17-8(d) in conjunction with O.C.G.A. § 51-1-6. Section 51-1-6 states:

“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party  may recover for the breach of such legal duty if he suffers damage thereby.”

Wright does not make any argument related to O.C.G.A. § 51-1-6 on appeal.

Regardless, in Branch Banking & Trust Co. v. Morrisroe, 746 S.E.2d 859, 861 (Ga. Ct. App. 2013), the Court of Appeals of Georgia held that O.C.G.A. § 45-17-8(d) in conjunction with O.C.G.A. § 51-1-6 does not create a viable cause of action because “[a] duty cannot rest solely on OCGA § 51-1-6 . . . because it merely sets forth general principles of tort law.”

Thus, O.C.G.A. § 51-1-6 does not affect our analysis of whether there is a private cause of action for breach of duty by a notary public under O.C.G.A. § 45-17-8(d).

Anthony v. Am. Gen. Fin. Servs., Inc., 626 F.3d 1318, 1321 (11th Cir. 2010) (“Anthony II”).

Wright ignores these holdings and points to language in Anthony I where the Supreme Court of Georgia stated: “[A]lthough a corporation cannot be directly or vicariously liable for a violation of OCGA § 45-17-11, it still may be liable if it procures or otherwise qualifies as a party to or participating in such a violation by a notary.” 697 S.E.2d at 171;

See id. at 170 (“But under well-established principles, the corporation (or other person) may still be liable if it participates in or procures the notary’s violation. In terms of criminal liability, this is simply the concept of being a party to a crime.”).

He argues that this language permits his claim against Truist to go forward.

But Wright misinterprets this language. Although the Supreme Court of Georgia stated that a “corporation . . . may still be liable if it participates in or procures the notary’s violation,” Anthony I, 697 S.E.2d at 170 (emphasis omitted), it was not creating a private cause of action for violations of the notary public statutes.

Instead, it was merely noting that a plaintiff “may be able to pursue civil liability against [a party who violates the statute] under other applicable tort or contract laws of this State.” Id. at 175.

It is for those claims—for violations of “other applicable tort or contract laws”—that a corporation may be held liable as a joint wrongdoer under the notary public statutes.

See id. at 170 (“[I]n all cases, a person who maliciously procures an injury to be done to another, whether an actionable wrong or a breach of contract, is a joint wrongdoer and may be subject to an action either alone or jointly with the person who actually committed the injury.” (quoting O.C.G.A. § 51-12-30)).

Because the Supreme Court of Georgia and this Court have both clearly held that the notary public statutes do not create a private cause of action, the district court properly dismissed Wright’s claim.6

B. Georgia RICO Act

Next, Wright argues that the district court applied the wrong statute of limitations to his Georgia RICO Act claim.

Under the Georgia RICO Act, “[n]otwithstanding any other provision of law, a criminal or civil action or proceeding under this chapter may be commenced up until five years after the conduct in violation of a provision of this chapter terminates or the cause of action
accrues.” O.C.G.A. § 16-14-8 (2011)7;

See Glock, Inc. v. Harper, 796 S.E.2d 304, 306 (Ga. Ct. App. 2017).

The district court applied this five-year statute of limitations and found that Wright’s claim was “over three (3) years late” because “the most recent action taken by [Truist] relevant to this claim was on May 3, 2011, when it foreclosed on the last of the collateral properties.”8

Wright argues that his Georgia RICO Act claim is subject to the twenty-year statute of limitations of O.C.G.A. § 9-3-23 instead, because the claim arises out of conduct related to the execution of sealed instruments.9

This argument fails for two reasons.

First, the Georgia RICO Act states that the five-year statute of limitations applies “[n]otwithstanding any other provision of law.”10 O.C.G.A. § 16-14-8 (2011).

In his reply brief, Wright argues that “[t]he word ‘notwithstanding’ does not mean that no other rule could apply” and that nothing in the statute “prevent[s] a party from availing itself of a more liberal rule of law such as O.C.G.A. § 9-3-23.”11

But “notwithstanding” means: “Despite; in spite of.” Notwithstanding, Black’s Law Dictionary (11th ed. 2019).

Thus, we conclude that O.C.G.A. § 16-14-8 (2011) supplies the exclusive statute of limitations for Wright’s Georgia RICO Act claim. Because Wright did not file his claim within five years of May 3, 2011, the district court properly dismissed it.

Second, Wright’s expansive interpretation of the twenty-year statute of limitations for sealed instruments has been rejected by the Supreme Court of Georgia.

In Harris v. Black, the Supreme Court of Georgia held that “if suit is brought upon an official bond under seal, for a breach thereof,” then the twenty- year statute of limitations applies. 85 S.E. 742, 747 (Ga. 1915).

But “if the action is brought against the officer individually, and not upon his bond, different periods of limitations may apply according to whether the action sounds in tort or in contract; and if the former, the limitation is dependent upon the particular character of the tort.” Id.

Because Wright’s Georgia RICO Act claim is not a claim “upon an official bond,” it is not subject to the twenty-year statute of limitations of O.C.G.A. § 9-3-23 and was properly dismissed.

6 Even if O.C.G.A. § 45-17-8(d) created a private cause of action for breach of duty by a notary public, Wright’s claim would still fail because he did not meet the four-year statutes of limitations for injuries to realty or personalty under O.C.G.A. §§ 9-3-30 and 9-3-31. See, e.g., Godwin v. Mitzpah Farms, LLLP, 766 S.E.2d 497, 507 (Ga. Ct. App. 2014).

7 O.C.G.A. § 16-14-8 was amended in 2015. Because the amendment was not retroactive, see Glock, Inc. v. Harper, 796 S.E.2d 304, 306 (Ga. Ct. App. 2017), we will apply the version of the statute that was in effect at the relevant time.

8 Wright does not dispute that the statute of limitations on his Georgia RICO Act claim began to run on May 3, 2011.

9 See O.C.G.A. § 9-3-23 (“Actions upon bonds or other instruments under seal shall be brought within 20 years after the right of action has accrued.”).

10 Even though the district court dismissed Wright’s Georgia RICO Act claim based on O.C.G.A. § 16-4-8—the applicable statute of limitations—Wright did not discuss the statute at all in his opening brief.

C. Punitive Damages and Attorney’s Fees

Wright acknowledges that his claims for punitive damages and attorney’s fees must fail if his substantive claims are dismissed.

Because we affirm the district court’s dismissal of his substantive claims, we also affirm its dismissal of his claims for punitive damages and attorney’s fees.

See generally Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1304–05 (11th Cir. 2009).

III. Sanctions

A. Wright’s Motion for Sanctions

Wright argues that we should strike certain language in Truist’s motion for sanctions for being ad hominem and requests sanctions for Truist’s decision to include that language in its motion.

In particular, he contends that it was inappropriate for Truist to mention that Nathan had been sanctioned by this Court for a frivolous appeal or that Truist had obtained a multi-million-dollar judgment against Nathan.

Truist’s motion for sanctions was based, in part, on 28 U.S.C. § 1927.

To prevail on its claim for sanctions under § 1927, Truist was required to “show subjective bad-faith.” Hyde v. Irish, 962 F.3d 1306, 1310 (11th Cir. 2020).

“This standard can be met either (1) with direct evidence of the attorney’s subjective bad faith or (2) with evidence of conduct so egregious that it could only be committed in bad faith.” Id. (quotation omitted);

See Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1242 (11th Cir. 2007) (“A determination of bad faith is warranted where an attorney knowingly or recklessly pursues a frivolous claim or engages in litigation tactics that needlessly obstruct the litigation of non-frivolous claims.” (quotation omitted)).

The facts that Nathan had been sanctioned by this Court for a frivolous appeal and that Truist had obtained a multi-million-dollar judgment against him are clearly relevant to whether Nathan “knowingly or recklessly pursue[d] a frivolous claim.” Amlong, 500 F.3d at 1242.

And because these facts were relevant to Truist’s claims, we decline to strike or seal Truist’s motion or the related filings.

See 11th Cir. R. 25-6 (suggesting that a paper filed with the court may contain arguably ad hominem language where it is “relevant, necessary, and appropriate”).

Because we conclude that it was not inappropriate for Truist to mention these facts, we deny Wright’s request for us to award sanctions.

To award sanctions under our inherent powers, we “must find that the lawyer’s conduct ‘constituted or was tantamount to bad faith.’” Thomas v. Tenneco Packaging Co., Inc., 293 F.3d 1306, 1320 (11th Cir. 2002) (quotation omitted).

In Thomas, we awarded sanctions where the lawyer made:

“(1) insulting remarks about opposing counsel’s physical traits and demeanor,

(2) comments that called into question opposing counsel’s fitness as a member of the bar,

(3) thinly veiled threats aimed at opposing counsel,

(4) a racial slur, and

(5) unsubstantiated claims that opposing counsel was a racist.”

Id. at 1323.

Unlike the lawyer in Thomas, Truist did not engage in conduct “tantamount to bad faith.”

As already discussed, Truist’s mention of the facts that Nathan had been sanctioned by this Court and that Truist had obtained a multi-million-dollar judgment against him was not inappropriate because it was relevant to Truist’s claims under § 1927.

11 Ordinarily, we do not consider an argument raised for the first time on reply.

Mamone V.United States, 559 F.3d 1209, 1210 n.1 (11th Cir. 2009).

But we will address Wright’s argument here to demonstrate that it is frivolous.

B. Truist’s Motion for Sanctions

Truist argues that Wright’s appeal is frivolous and requests that we award attorney’s fees and double costs under Federal Rule of Appellate Procedure 38.

Wright argues that his appeal is not frivolous—specifically, that “[t]he two enumerations of error in this case are essentially issues of first impression in this Court . . . and have not been fully addressed or settled by any Georgia Appellate Court.”

We may impose sanctions under Rule 38 against a party who “raises clearly frivolous claims in the face of established law and clear facts.”

Parker v. Am.Traffic Sols., Inc., 835 F.3d 1363, 1371 (11th Cir. 2016) (quotation omitted);

See Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1359 (11th Cir. 2018).

“[A] claim is clearly frivolous if it is utterly devoid of merit.”

Parker, 835 F.3d at 1371 (quotation omitted).

When determining whether to award sanctions, we may review the “continuous series of events . . . which gave rise to this appeal.”

Bonfiglio v. Nugent, 986 F.2d 1391, 1393 (11th Cir. 1993).

Wright filed a complaint containing at least four counts that were barred by the applicable statutes of limitations, a conclusion that he does not challenge on appeal.

Then, on appeal, he raised two arguments that were directly foreclosed by precedent from the Eleventh Circuit and the Supreme Court of Georgia, and by the plain language of O.C.G.A. § 16-14-8 (2011).

See Bonfiglio, 986 F.2d at 1394 (awarding sanctions where the appellant “stubbornly filed [an] appeal in which he repeate[d] to this Court the utterly frivolous contentions he made in the district court”).

Finally, when Truist filed a motion for sanctions based on this conduct, Wright filed a meritless motion to strike and for sanctions.

Wright’s arguments on appeal were devoid of merit because Anthony I and Anthony II clearly establish that the notary public statutes do not create a private cause of action and because O.C.G.A. § 16-14-8 (2011) clearly establishes a five- year statute of limitations for Georgia RICO Act claims.

More egregiously, Wright did not even mention O.C.G.A. § 16-14-8 (2011)—the applicable statute of limitations, which the district court relied on to dismiss his Georgia RICO Act claim—in his opening brief.

Instead, he waited until his reply brief to argue that O.C.G.A. § 16-14-8 (2011) does not apply here because “[t]he word ‘notwithstanding’ does not mean that no other rule could apply.”

This argument is utterly devoid of merit and Wright has provided no non-frivolous argument why the Georgia RICO Act’s five-year statute of limitations does not bar his Georgia RICO Act claim.

Thus, as a sanction, we order Wright and his counsel to pay double the costs of this appeal, as well as reasonable attorney’s fees to Truist.

See Bonfiglio, 986 F.2d at 1394;

See Taiyo Corp. v. Sheraton Savannah Corp., 49 F.3d 1514, 1515 (11th Cir. 1995) (imposing joint and several liability for Rule 38 sanctions).

“We remand this case to the district court with instructions for it to calculate and assess the attorneys’ fees and costs that [Wright and his counsel are] to pay in connection with this appeal and to order that amount paid.” Bonfiglio, 986 F.2d at 1395.

IV. Conclusion

For these reasons, we affirm the district court’s decision and remand the case to the district court to assess attorney’s fees and costs.

AFFIRMED and REMANDED.

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