Sen. Lindsey Graham appeared to confirm this week one of the greatest fears for civil libertarians in the aftermath of the burning of the Qu’ran (Koran) by Rev. Terry Jones. With Muslims murdering innocent people as a protest to the book burning, Senator Graham has called for Congress to go hold people accountable for such acts. The message is clear and predictable: if someone’s exercise of free speech has caused problems, limit the free speech.
In the video above, Graham states “I wish we could find a way to hold people accountable.” He stresses “[f]ree speech is a great idea, but we’re in a war.” Of course, neither he nor his colleagues ever bothered to declare war. Likewise, Obama did not even consult with Congress before going to war in Libya.
Fortunately, the Constitution still exists to bar such impulses against free speech. Notably, however, China is arresting people who are viewed as destabilizing the country with their art and ideas. Now some members of Congress want to join countries in a type of criminal blasphemy law — an idea that Obama appeared to accept in supporting a resolution under pressure from Arab allies on protecting religion from critics.
Free speech is designed to protect us against our own leaders — like Sen. Graham. It is not enjoyed at the whim of the U.S. Senate. And, by the way, the diaper genie is a “great idea.” Free speech is what defines us as a people.
Jonathan Turley
The only fees were filing fees which I paid since I was the plaintiff and one transcript fee which I paid. There weren’t any witness expenses because there weren’t any witnesses. There weren’t any discovery expenses because there wasn’t any case management plan. No subpoenas were issued from the case.
First, don’t plead your appeal to me. Because I don’t care.
Second, the “deal” was you wanted proof in the form of a statute – in this case the equivalent of asking me to prove a negative because no such statute exists ergo no such statute is the basis for the judge’s authority other than the general grant of authority to sanction you or hold you in contempt as found in 18 U.S.C. § 401.
You can’t always get what you want. Even in law.
In light of the fact that there is no statute that says what you want it to say?
I found the next best thing: a SCOTUS ruling that says what the law is absent said statute.
The law is that the judge has the power to fashion appropriate sanctions to the misconduct. Absent a spot on statute or citing the Constitution itself? Something doesn’t get more law than SCOTUS precedent.
The law is the law and if you want to quibble because it’s not in the form you wished it was in as opposed to the form it actually exists in?
Suck it up, buttercup.
And if you don’t want to live up to your word?
It’s not the first time I’ve dealt with delusional liars.
I wasn’t forum shopping. I would have tried my case in front of Nottingham if he had let me. The only reason I went to DDC is because he said I couldn’t try it in the District of Colorado.
BIL: With all the citations of statues KS bandies about, never once does she refer to case law that I have seen. Of course, I have not read all her verbal diarrhea. I have to wonder if she does not know case law exists or if she simply does not know how case law works. And I would bet you the price of a bowl of etouffee that she does not have a clue as how to Shepardize an issue. Would she recognize Shepard’s Citations if it ran up and bit her on the derriere.
Please refer me to the relevant citation in the Federal Rules of Civil Procedure or in Title 28 because we are talking federal court only
such a rule would arguably violate the jurisdictional limitation of the Rules Enabling Act: that the Rules “shall not abridge, enlarge or modify any substantive right,” 28 U.S.C. § 2072(b). Cf. Ortiz v. Fibreboard Corp., 527 U.S. 815, 842 (1999)
See also Goddard, 14 Cal. 2d, at 54, 92 P.2d, at 808 (stating that a dismissal “with prejudice” evinces “[t]he intention of the court to make [the dismissal] on the merits”). The primary meaning of “dismissal without prejudice,” we think, is dismissal without barring the defendant from returning later, to the same court, with the same underlying claim. That will also ordinarily (though not always) have the consequence of not barring the claim from other courts, but its primary meaning relates to the dismissing court itself. Thus, Black’s Law Dictionary (7th ed. 1999) defines “dismissed without prejudice” as “removed from the court’s docket in such a way that the plaintiff may refile the same suit on the same claim,” id., at 482, and defines “dismissal without prejudice” as “[a] dismissal that does not bar the plaintiff from refiling the lawsuit within the applicable limitations period,” ibid.
We think, then, that the effect of the “adjudication upon the merits” default provision of Rule 41(b)–and, presumably, of the explicit order in the present case that used the language of that default provision–is simply that, unlike a dismissal “without prejudice,” the dismissal in the present case barred refiling of the same claim in the United States District Court for the Central District of California. That is undoubtedly a necessary condition, but it is not a sufficient one, for claim-preclusive effect in other courts.
opinion SEMTEK INT’L INC. V. LOCKHEED MARTIN CORP. (99-1551) 531 U.S. 497 (2001)
Another piece of the pie Kay…The court can dismiss it with prejudice and it is not supposed to be refiled…same basic issues, same parties…different court….yep…sounds like grounds for contempt…
Kay you have answered the question for me….sometime a court will condition a dismissal upon the understanding that if it is refiled you will be responsible for costs associated with the original filing…if you refiled the same action in another venue….without paying the costs that you so vehemently proclaim are not payable…then guess what…you made your own reservations for incarceration….can’t you see that…it is called forum shopping….the court can dismiss it and if the same basic issues are refiled…its still forum shopping….
And yes…once you filed the paperwork…you became an officer of the court…this is because you acted as your own attorney…. that is plain to me…
The deal was statute not judicial interpretation
I didn’t “abuse the judicial process” either. I didn’t file any fraudulent statements. I didn’t fail to comply with discovery orders. I didn’t fail to disclose insurance companies.
Dismissal. This severe sanction should generally not be imposed until the affected party has been warned and given a chance to take remedial action, and then only when lesser sanctions, such as dismissal without prejudice and assessment of costs, would be ineffective.
Also, that didn’t happen.
OS,
Thanks.
I was starting to wonder if somehow I had ceased to speak English. 🙂
Listen verrrrry carefully.
The statute is 18 U.S.C. § 401
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as –
(1) Misbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official
transactions;
(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command.”
That bolded part? Officer of the Court or not? This means you.
As to a statute and statutory authority? There it is. 18 U.S.C. § 401. Disbelieve it all you like.
As to the sanctions barring you from future litigation and the courts ability to fashion appropriate sanctions? That’s found in CASE LAW, not STATUTES. Not all law is statutory and you’d know this if you were a lawyer.
I provided a relevant cite to case law with is Chambers v. NASCO, Inc., 111 S. Ct. 2123, 2132-33 (1991), which states “a primary aspect” of court’s discretion to invoke inherent sanction power “is the ability to fashion an appropriate sanction” for abuse of judicial process.
This includes sanctions barring you from future litigation on the issue at bar. You are looking for something that does not exist in the form you wish it to exist in. Law is not practiced based upon wishful thinking.
However, I did prove that there is legal foundation for what the judge did.
That you don’t like that it’s not codified into statute is irrelevant.
I still expect you to live up to your word – AS PROOF WITH CITES HAS BEEN PROVIDED – and never blog here again.
It was impossible for me to P.O. Nottingham because I didn’t meet him, no hearings at all until he set a Contempt of Court hearing. The only possible explanation I know of for what he did was that he was bribed in one way or another and I suspect it had to do with a credit card at the Denver Players.
I suppose it is possible that I have PO judges in general by complaining about Nottingham but Nottingham has not accused me of defamation. I have the same address and telephone number as I have since 2002, listed on PACER, and have not heard from him. I wrote to Nottingham’s attorney Stephen Peters a couple of times and asked him why what Nottingham did to me wasn’t a crime and he never wrote back.
You know that it would be easy for judges to decide that they don’t want to extend rights to certain races, people with certain sexual orientations etc.
I didn’t file the lawsuit in the second court until it was dismissed in the first court. It wasn’t simultaneous. In fact I filed a Rule 60b(3) motion.
There wasn’t a jury trial.
The term vexatious litigant doesn’t appear in the U.S. code nor in the Code of Federal Regulations. And I have a letter from the USMS saying they don’t have any record of vexatious litigation.
I was NOT declared a vexatious litigant in court.
The only state that has a vexatious litigant statute is California,
Australia declared a man vexatious for suing tobacco companies.
Sorry Bill none of those apply to me
As we discussed Nottingham objected to what I did when I wasn’t in his court room.
And I am not an officer of the court.
And there was no law for a “lawful writ”. A writ isn’t lawful just because it is from a judge. As we discussed it needs a statute
28 U.S.C. 1927 applies only to lawyers
rule 11 allows only monetary sanctions
I think the discovery sanctions result in dismissal. In any case, they weren’t cited w me, we didn’t get as far as discovery.
If there was something about enjoining parties from bringing other litigation, then that would apply to the cause of action whether there was a lawyer or not. In my case they said it was only pro se litigation based on related series of events.
Can you be more specific please — I’m looking for a statute.
Bil: That is a great exposition of the Rule. As you know, like Kay, I am not a lawyer such as you are, but that is as clear as a sunny day in the mountainous to me. You do not file a lawsuit in another court if you do not like the way it is going in the first courtroom. To do such an idiotic thing would never even occur to me. I have worked in enough jails and prisons to know they are interesting to visit but I do not want to live there. For one thing, I do not care for the food or sleeping accommodations.
Kay never got the memo that the first rule of litigation is: Don’t do stuff that pisses off the judge.
Rule number two: See Rule #1.
Ksy’s obsessing on this, ad nauseum, makes it abundantly clear why she was declared a, “Vexatious Litigant.”
Well tough shit, Kay, because . . . again, it’s indeed 18 U.S.C. § 401 that gives the court the power to hold you in contempt whether you like it or not.
“18 U.S.C. § 401
A court of the United States shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as –
(1) Misbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official
transactions;
(3) Disobedience or resistance to its lawful writ, process,
order, rule, decree, or command.”
For a complete list of sanctions the court may impose, I suggest “Section 20.15 – Sanctions” from The Manual for Complex Litigation, 1995 ed., which can be found here: http://www.lectlaw.com/files/lit12.htm
It states in part (note the bolded section):
“20.15 Sanctions
.151 General Principles
.152 Sources of Authority
.153 Considerations in Imposing
.154 Types
20.151 General Principles
The rules and principles governing the are the same in complex as in other litigation, but the potential of sanctions requires careful attention in complex litigation because misconduct may have more severe consequences. Because the litigation will generally be conducted under close judicial oversight and control, there should be fewer opportunities for sanctionable conduct to occur.
If the court’s management program is clear, specific, and reasonable – having been developed with the participation of counsel – the parties will know what is expected of them and should have little difficulty complying. The occasions for sanctionable conduct will therefore be reduced. Indeed, the need to resort to sanctions may reflect a breakdown of case management. On the other hand, the stakes involved in and the pressures generated by complex litigation may lead some parties to violate the rules.
Although as a general matter sanctions should not be a means of management, the court needs to make clear its willingness to resort to sanctions, sua sponte if necessary, to assure compliance with the management program. -fn.19
The design of the case management program should anticipate compliance problems and include prophylactic procedures, such as requiring parties to meet and confer promptly in the event of disputes and providing ready access to the court if they cannot resolve them. In addition, the court should inform counsel at the outset of the litigation of the court’s expectations about cooperation and professionalism. Perceptions of the limits of legitimate advocacy differ; advance guidance from the court can reduce the need for sanctions later. Though at times unavoidable, sanctions should be considered a last resort.
The court should exercise its discretion with care and explain on the record or in an order the basis for its action and the purpose to be achieved. Sanctions may be imposed for general or specific deterrence, to punish, or to remedy the consequences of misconduct. Sanctions proceedings can be disruptive, costly, and may create personal antagonism inimical to an atmosphere of cooperation. Counsel should therefore avoid moving for sanctions unless all reasonable alternatives have been exhausted.
20.152 Sources of Authority
The primary codified sources of authority to impose sanctions in civil litigation are 28 U.S.C. 1927 and Fed. R. Civ. P. 11, 16, 41, and 56(g). -fn.20 Sanctions relating to discovery are authorized by Fed. R. Civ. P. 26, 30, 32(d), 33(b)(3)-(4), 34(b), 35(b)(1), 36(a), and, most prominently, Rule 37. -fn.21 Under limited circumstances sanctions may also be imposed under local rules. -fn.22
Sanctions may also be imposed through the exercise of the court’s inherent powers. -fn.23 The court may resort to this power even where the conduct at issue could be sanctioned under a statute or rule; the court should, however, avoid resort to its inherent power if the statute or rule is directly applicable and adequate to support the intended sanction. -fn.24
The court may assess attorneys’ fees pursuant to its inherent power, but when sitting in diversity should avoid doing so in contravention of applicable state law embodying a substantive policy, such as a statute permitting prevailing parties to recover fees in certain classes of litigation. -Fn.25
Because the applicable standards and procedures and the available sanctions will vary depending on the authority under which the court proceeds, it needs to decide on the choice of the authority on which it will rely and make that choice clear in its order. For example, 28 U.S.C. 1927 authorizes the assessment of costs and fees against an attorney only – it therefore cannot provide authority to impose sanctions on a party.
20.153 Considerations in Imposing
In considering the imposition of sanctions, the judge should take these factors into account:
* the nature and consequences of the dereliction or misconduct;
* the person(s) responsible;
* the court’s discretion under the applicable source of authority to impose sanctions and to choose which sanctions to impose;
* the purposes to be served by imposing sanctions, and what is the least severe sanction that will achieve the intended purpose; and
* the appropriate time for conducting sanctions proceedings.
With respect to the consideration of the nature and consequences of the dereliction or misconduct, the court should take these factors into account:
* whether the act or omission was willful or negligent;
* whether it directly violated a court order or a federal or local rule;
* its effect on the litigation and the trial participants;
* whether it was isolated or part of a course of misconduct or dereliction; -fn.26 and
* the existence of any extenuating circumstances.
Rule 11 substantially limits the authority of the court to impose monetary sanctions, but they may still be available in unusual cases or under other rules or powers.
If monetary sanctions are warranted, they should generally be imposed only on the person(s) responsible for the misconduct; if assessed against counsel, they should be accompanied by a direction not to pass the cost on to the client.
It may be appropriate to sanction the client or the client and attorney jointly. If the proper allocation of responsibility between counsel and client is unclear, its determination may raise problems; by pitting the attorney against the attorney’s client, it can create a conflict of interest. -fn.27 In addition, it may require inquiry into potentially privileged communications. -Fn.28 The court should seek the least disruptive alternative, which may be to impose joint and several liability on both counsel and client, -fn.29 or to defer the matter of sanctions until the end of the litigation. -Fn.30
Some types of nonmonetary sanction, such as dismissal, default, or preclusion of a claim or evidence, will or may affect the outcome. They should be imposed only in egregious circumstances and only after consideration of the following factors:
* the policy favoring trial on the merits;
* whether the sanction will further the just, speedy, and inexpensive determination of the action;
* the degree to which the sanctioned party acted deliberately and knew or should have known of the possible consequences;
* the degree of responsibility of the affected client;
* the merits and importance of the claim(s) affected;
* the impact on other parties or the public interest; and
* the availability of less severe sanctions to accomplish the intended purpose.
20.154 Types
In imposing the least severe sanction adequate to accomplish the intended purpose, the court can select from a broad range of options. -Fn.31 These include the following:
* Reprimand. For most minor violations, particularly a first infraction, an oral reprimand will suffice. In more serious cases, a written reprimand may be appropriate.
* Cost shifting. The purpose of Rule 11 sanctions is deterrence rather than compensation; the rule therefore permits cost shifting only in “unusual circumstances.” -fn.32 In contrast, many of the discovery rules (primarily Rules 26(g) and 37) and Rule 16(f) (dealing with pretrial conferences) require or permit cost shifting in specified situations. Under 28 U.S.C. 1927, Fed. R. Civ. P. 56(g) (depositions), and its inherent power, the court may order cost-shifting sanctions for actions taken in bad faith.
* Denial of fees or expenses. The court may decline to award otherwise recoverable attorneys’ fees and expenses, or order counsel not to charge them to their client, when incurred through dilatory or otherwise improper conduct, or in proceedings brought on by such conduct.
* Remedial action. Counsel and parties may be required to remedy a negligent or wrongful act at their own expense, as by reconstructing materials improperly destroyed or erased.
* Grant/denial of time. Improper delay may justify awarding opposing parties additional time for discovery or other matters, -fn.33 or denying otherwise proper requests for extension of time.
More serious sanctions, reserved for egregious circumstances, include the following:
* Demotion/removal of counsel. An attorney may be removed from a position as lead, liaison, or class counsel, or (in an extreme case) from further participation in the case entirely. Such a sanction, however, is likely to disrupt the litigation, may cause significant harm to the client’s case and the reputation of the attorney or law firm, and can conflict with a party’s right to counsel of its choosing.
* Removal of party as class representative. Before imposing this sanction, the court should consider ordering that notice be given to the class under Rule 23(d)(2) to enable them to express their views concerning their representation or intervene in the action. -fn.34
* Enjoining party from commencing other litigation. While there is a strong policy against denying access to the courts, a party may be enjoined from commencing other actions until it has complied with all orders in the current action, or from bringing, without court approval, other actions involving the same or similar facts or claims.
* Preclusion/waiver/striking. Failure to timely make required disclosures or production, raise objections, or file motions may be grounds to preclude the introduction of related evidence, deem certain facts admitted and objections waived, strike claims or defenses, or deny the motions, including those seeking to amend pleadings or join parties. -fn.35
* Dismissal. This severe sanction should generally not be imposed until the affected party has been warned and given a chance to take remedial action, and then only when lesser sanctions, such as dismissal without prejudice and assessment of costs, would be ineffective.
* Vacation of judgment. The court may vacate a judgment it has rendered if procured by fraud. -fn.36
* Suspension/disbarment. The court may initiate proceedings to suspend an attorney from practice in the court for a period of time or for disbarment. -fn.37
* Fine. The court may assess monetary sanctions apart from or in addition to cost shifting, even without a finding of contempt. The amount should be the minimum necessary to achieve the deterrent or punitive goal, considering the resources of the person or entity fined. – fn.38
* Contempt. The court may issue a contempt order under its inherent authority, -fn.39 statute, -fn.40 or rule. -fn.41 The order should indicate clearly whether the contempt is civil or criminal. The procedure and possible penalties will depend on that determination and the nature and timing of the contemptuous act. -fn.42
* Referral for possible criminal prosecution. Where the misconduct rises to the level of a criminal offense, -fn.43 the matter may be referred to the U.S. Attorney’s Office.”
Now . . . I’ve answered your inane question twice.
The court has the authority to both jail you for contempt (18 U.S.C. § 401) and to bar you from litigation for egregious violations of court orders and procedures (Chambers v. NASCO, Inc., 111 S. Ct. 2123, 2132-33 (1991), which states “a primary aspect” of court’s discretion to invoke inherent sanction power “is the ability to fashion an appropriate sanction” for abuse of judicial process).
So there’s a precedent, if not a statute, that allows you to be barred from litigation for contempt. You abused the process because of your layman’s incompetence. You got smacked down pretty hard for it but the court has the power to do what the court did as a matter of statutory authority viewed in the light of precedent.
I now expect you to live up to your word and never blog here again.
In the attorney bills discussing a proposed No Pro Se order they were passing around but never filed, they mentioned the All Writs Act as a possible justification. But they never filed that in court in the form of a motion and Nottingham didn’t cite it either.
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court, which has jurisdiction. 28 USC § 1651. Writs
Although the [All Writs ] Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate. Pennsylvania Bureau of Correction v.
United States Marshals Service. 474 US 34
I’m not asking for 18 USC 401 which refers to “lawful” order. I’m asking for a “law” behind a “lawful order” meaning a statute allowing an injunction against fee paid pro se litigation something similar to the copyright law, the patent law, laws about dumping chemicals, laws about discriminatory housing, and laws related to fraudulent tax returns. The Prisoner Litigation Reform Act only applies to prisoners and only applies to fee waivers.
Sure, find a statute that says that a judge can order that a free citizen can’t represent themselves in a federal court if they pay a filing fee and I won’t blog here again.
It’s not the All Writs Act — I already have case law for that.