I think Levy did as well as possible, but it was an impossible task. She deserved the sanctions and should receive more
What arguments can be used to rebut Levy's points, including the allegation that the judge did not give Taitz due process and chose to handle the matter himself instead of referring to another judge?
What arguments can be used to rebut Levy's points, including the allegation that the judge did not give Taitz due process and chose to handle the matter himself instead of referring to another judge?
It should be noted that Levy had a difficult client and an impossible task.
Orly was given notice and an opportunity to respond. That is all that applies to this process. She was properly awarded sanctions.
Doc 13, entered 9/16/2009, advised "Plaintiff's counsel is hereby notified that the filing of any future action in this Court, which are similarly frivolous, shall subject counsel to sanctions."
Doc 17, entered 9/18/2009, stated,
In her most recent tirade, Plaintiff’s counsel seeks reconsideration of the Court’s order dismissing this action. Instead of seriously addressing the substance of the Court’s order, counsel repeats her political diatribe against the President, complains that she did not have time to address dismissal of the action (although she sought expedited consideration), accuses the undersigned of treason, and maintains that “the United States District Courts in the 11th Circuit are subject to political pressure, external control, and... subservience to the same illegitimate chain of command which Plaintiff has previously protested.” (Pl.’s Emergency Req. for Stay of Deployment 2.) This filing contemptuously ignores the Court’s previous admonition that Plaintiff’s counsel discontinue her illegitimate use of the federal judiciary to further her political agenda. The Court finds that the claims and legal contentions asserted in the present motion are not warranted by existing law and that no reasonable basis exists to conclude that Plaintiff’s arguments would be accepted as an extension, modification, or reversal of existing law. Simply, put the motion is frivolous. Moreover, the Court further finds that Plaintiff’s motion is being presented for the improper purpose of using the federal judiciary as a platform to espouse controversial political beliefs rather than as a legitimate forum for hearing legal claims. Counsel’s conduct violates Rule 11 of the Federal Rules of Civil Procedure, and sanctions are warranted. Accordingly, Plaintiff’s motion for reconsideration (Doc. 15) is denied, and counsel for Plaintiff is ordered to show cause why the Court should not impose a monetary penalty of $10,000.00 upon Plaintiff’s counsel for her misconduct. Counsel shall file her response to this show cause order within 14 days of today’s order.
That is NOTICE. She had an OPPORTUNITY to respond to the Notice. What she did with the opportunity is her problem. She chose to file a motion for the judge to recuse himself (Doc 24), and a "Motion for Enlargement of Time to Respond to the Court's September 18, 2009, Order to Show Cause," (Doc 25) Docs 24 & 25 were entered on 10/2/2009.
With Doc 26, Orly filed an Exhibit for her Motion for Recusal entered on 10/4.
Doc 27 was an administrative entry regarding transcripts and when they might be available.
Doc 28 is the judges ORDER entered on 10/13 which denied 24 & 25, and imposing the sanction of $20,000.
Levy at 4 cites "a 43 page ruling by the District Court Judge which imposed an additional $10,000 sanction under Rule 11(c)(3) which amounted to a new sanction for yet another reason."
There is but one sanction imposed, that being $20,000. I suppose the best outside hope is to find she only received notice of a $10,000 sanction.
The Sua Sponte argument was addressed by Judge Land at 18-19:
C. Sua Sponte Imposition of Monetary Sanctions
Ms. Taitz argues that the undersigned should be recused because a judge cannot sua sponte act as “prosecutor, judge, and jury” in imposing monetary sanctions that are designed as a penalty to punish and deter lawyer misconduct. (Mot. to Recuse 17.) Once again, counsel ignores the law. Rule 11 specifically authorizes the sua sponte imposition of monetary sanctions for these purposes. Fed. R. Civ. P. 11(c)(3); cf. Donaldson, 819 F.2d at 1558 (finding that due process does not require courts to follow criminal contempt procedures when imposing monetary sanctions under Rule 11). Furthermore, it is likewise well settled that the Court has the inherent authority to impose such sanctions. See Chambers v. NASCO, Inc., 501 U.S. 32, 42- 43 (1991). The Court recognizes that such action is serious and that the lawyer must be given due process before the sanction is imposed. This requires that the Court notify counsel of the conduct and allow counsel an opportunity to respond. To suggest that the Court has not done so in this case is simply wrong. The Court outlined in its previous order the sanctionable conduct. Counsel was given ample opportunity to respond. In fact, she filed a twenty-two page response. Counsel’s contention that this Court, which is most familiar with counsel’s conduct, must recuse so that another judge may be burdened with counsel’s frivolous arguments is meritless.
To the Levy argument at 6, that "there were three nested or interlocking sua sponte Rule 11 sanctions in this matter," this is simply hogwash. He cites the 9/16, 9/18 and 10/13 Orders.
9/16 (Doc 13) order cautioned Orly that further frivolous filing would result in sanctions. It did not impose any sanction.
9/18 (Doc 17) order Orly to show cause why sanctions should not be imposed. It did not impose any sanctions.
10/13 (Doc 28) imposed the sanction. There is but one.
At 7, Levy argues, "Of the three orders, only one, the September 18, 2009 order, attempted to follow the proper procedure under Rule 11 and even this is questionable since Appellant was not able to file her actual response due to the imposition of the subsequent October 13, 2009 sanctions. However, since these were interlocking Rule 11 sanctions, failure to provide adequate notice and opportunity to respond in one would vitiate its successor that relied upon the previous finding."
Why was she unable to file her response? She was given an Order to Show Cause (OSC). She had the opportunity. She was given the OSC on 9/18 and given 14 days to respond. Judge Land's Order on 10/13 was issued after more than 14 days had elapsed, and her opportunity to respond had expired. Orly had an opportunity and chose to use it committing further sanctionable misconduct with her recusal motion.
As for the "requirement" to have notice and opportunity to respond to a caution, that's ridiculous. And requiring notice and an opportunity to respond to an OSC is stupid. That is what the OSC does. It is a notice of the opportunity to respond. She was notified that she had a 14 day opportunity to respond and show cause why she should not be sanctioned. What does she want? A notice that she is going to get a notice and an opportunity to respond and argue against getting a notice?
At 8, "Appellant, despite her many alleged pleading's transgressions, still was entitled to notice and an opportunity to respond to each of the Rule 11 sanctions...."
Yep. Each sanction. All one of them. And she was.
At 12, "In theory the Attorney General could have jetted over to the coffee shop across the street from the court house where the affiiant claims to have spotted Mr. Holder...."
In theory, Orly might have had evidence that Eric Holder visited a coffee shop. There is no assertion that Eric Holder was seen doing anything. The affiant recognized Holder as "not large of stature." "In high school, towering above his classmates and teachers at 6 feet 3 inches tall, [Holder] passionately debated how to rid African-Americans of their second-class status." (NYT) Even if Holder visited a coffee shop, it presents no cause for recusal of Judge Land.
At 14, re Offutt v. United States, 348 U.S. 11, and offering the case to another judge, that was a case involving criminal contempt and committing the defense counsel for ten days. This does not concern a criminal contempt and Orly is not entitled to the rights of a criminal defendant. She was entitled to notice and opportunity to respond, typical of an administrative process. She received that to which she was entitled.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Syllabus
In a criminal trial in a Federal District Court, the judge became personally embroiled with the defense counsel in a protracted wrangle, during which the judge displayed personal animosity and a lack of proper judicial restraint. At the close of the trial, acting under Rule 42 (a) of the Federal Rules of Criminal Procedure, the judge summarily found the defense counsel guilty of criminal contempt for "contumacious and unethical conduct... during the trial," and ordered him committed for ten days. The Court of Appeals, while agreeing that counsel was guilty of reprehensible misconduct, found that "appellant's conduct cannot fairly be considered apart from that of the trial judge," and reduced the punishment to 48 hours in affirming the conviction.
Held: in the exercise of this Court's supervisory authority over the administration of criminal justice in the federal courts, the contempt conviction is set aside and the cause is remanded to the District Court with a direction that the contempt charges be retried before a different judge. Cooke v. United States, 267 U. S. 517. Pp. 348 U. S. 11-18.
93 U.S.App.D.C. 148, 208 F.2d 842, reversed.
Trying to apply that set of facts to Orly is a stretch.
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