Do judges who throw cases know their bad case law undermines the legal system and harms others? —How to Legal

“We found it very hard to believe that it was actually true, that so many judges were breaking the law. I mean, these are judges. They’re lawyers. Judges interpret the law. They enforce the law. They don’t break the law. But judges very rarely receive any kind of scrutiny, federal judges in particular. And they’re used to being sort of the king and queens of their own domain.” —- James V. Grimaldi, The Federal Law That 138 Judges Have Broken, WSJ, October 1, 2021

Hello and welcome back to How to Legal. First, a lot has happened concerning the courts since the last installment of How to Legal. Most notably, how the Wall Street Journal’s investigation exposing judicial misconduct at the federal level with the Free Law Project led to tangible meaningful judicial reform.

See: James V. Grimaldi “President Biden Signs Judicial Ethics Law Bolstering Stock Disclosures: Supreme Court justices, federal judges now required to promptly report their finances; legislation comes after WSJ investigation,” WSJ, May 13, 2022.

In the most expansive investigation of ju­di­cial stockholdings in the U.S., @wsj, @coulterjones @joe_palazzolo and I so far have found 152 federal judges violating U.S. law by overseeing 1,076 court cases involving companies whose stock they or family own https://t.co/yyFaV0r5xv

— JamesVGrimaldi (@JamesVGrimaldi) May 13, 2022

Indeed, it matters that a judge recuse themselves instead of breaking their oath, and the rule(s).

Investigative, impact, and accountability journalism matters.

In addition, another light is shining on the courts, and that’s the problem for some people employed at the courts.

See for e.g.: Ann E. Marimow, “Court revives sexual harassment lawsuit targeting federal judiciary.” Washington Post, April 26, 2022; and Ann E. Marimow, “Judges accused of sex discrimination, bullying, internal survey shows,” Washington Post, May 16, 2022.

It reads in part:

“… [C]urrent and former courthouse employees who acknowledged having witnessed misconduct described their reluctance to file formal complaints against their superiors. They cited fears of retaliation and distrust that the federal judiciary’s system for workplace accountability, which tasks judges with policing one another, ultimately would resolve their concerns.

“There is no point to reporting,” said one survey respondent, “because discipline is nonexistent.”

“Judges accused of sex discrimination, bullying, internal survey shows,” Washington Post,

Court employees should be able to expect that they are safe and won’t suffer harm from judges who break their oaths of office.

In addition, when it is determined that officers of the court, lawyers, clerks, and court personnel looked the other way, and/or actively took measures to cover up judicial misconduct, they need to be held accountable too. This will send a message and serve as a deterrent. Silence is complicity.

An omission is guilt under the eyes of the law.

Unfortunately, based on the following Washington Post report, it appears, at this juncture, that a U.S. court is more concerned about a leak exposing judicial misconduct instead of protecting their employees from judicial misconduct. What does that say?

See: Ann E. Marimow, “Court to investigate leaked survey alleging misconduct among judges: Disclosure of the confidential survey has amplified criticism of the judiciary among some in Congress, where pending legislation would extend to the judiciary’s 30,000 employees the same antidiscrimination rights afforded to other government employees,” Washington Post, May 20, 2022.

Just like employees who work at the courts, people who appear in U.S. courts should have a reasonable expectation that they are appearing in court with oath-following, ethical officers of the court.

Unfortunately, based upon reporting exposing oath, law-breaking judges, we know that is not always the case. We also know that when parties call out a judge, it does not necessarily mean the judge will self-correct, or that there will be any accountability until they are publicly exposed.

All of this might provide some insight into why oath-breaking American judges have gotten away with it for so long. There is no self-policing in the judicial system. There are court employees who protect dishonest, unethical judges. This undermines the integrity of justice system.

See for e.g.: Erik Ortiz, “Robed in secrecy: How judges accused of misconduct can dodge public scrutiny: Thousands of complaints are filed against judges every year, but very few result in discipline. Ethics experts say the time for states to transform the judiciary is now.” NBC, December 26, 2021.

Would you want to work for an unethical, oath-breaking judge?

Would you want to appear in court with an unethical, oath-breaking judge when you are seeking relief and redress?

Pause.

As such, because we here at How to Legal (it’s just me) respect and admire the oath-following judges who conduct proper proceedings, cannot be bought off in some way, and do not ignore or try to cover up misconduct, we’re going to look at the docket in U.S. Dominion, Inc. v. Sidney Powell et al.

In my opinion, this defamation, and deceptive trade practices case is particularly informative because it involves defendants who are lawyers.

They are also lawyers whose alleged defamatory statements reportedly played a role in fueling domestic terrorism, and sedition, in connection with the January 6th attack on the U.S. Capital.

In this installment of How to Legal we will see and learn:

Remember, don’t overload and burnout when you How to Legal. There’s a lot of information here. Pace yourself. Scroll down to whatever is of interest to you. You can bookmark How to Legal and come back later. Nobody learns about the legal system in a day. I didn’t. Lawyers don’t. I’m still always learning.

Thank you for coming back to How to Legal so we can focus on fixing real problems.

Okay, let’s do this.

What is et al?

When you are looking up court cases, you will sometimes see “et al” at the end of a party’s name. To translate legalese we turn to the ever reliable, dictionary.law.com (Law.com) for guidance.

et al.

n. abbreviation for the Latin phrase et alii meaning “and others.” This is commonly used in shortening the name of a case, as in “Pat Murgatroyd v. Sally Sherman, et al.”

dictionary.law.com

Here, in this case, U.S. Dominion, Inc. v Sidney Powell, “et al” initially included Sidney Powell’s law firm. But shortly thereafter it would also include Rudolph W. Giuliani, and Mike Lindell’s My Pillow, Inc.

Below you will find out why.

Politics-Free Zone

First, as always, when you are learning How to Legal, remember to think like a judge is supposed to think. Take off any political glasses you may be wearing, and remove any biases, and preconceived notions you may have. Try to stay neutral, and impartial.

Whether you love or loathe Dominion, Inc. or Attorney Sidney Powell is irrelevant.

The integrity of the judicial process is based upon impartial judges, following the rules, and their oaths, faithfully applying the laws, and proper procedures. This is also necessary to preserve democracy. #SaveDemocracy

Learn judicial oaths, canons, and rules by seeing them in action. Real case demonstration

Given the controversies with the Supreme Court and reporting exposing judicial misconduct, we will follow another docket to see the judicial canons, rules, and oaths in action. While we (it’s just me) have been following defamation dockets, you can follow the docket in all types of cases. The rules are the rules. The oaths are the oaths. The judicial canons are the canons.

Judges know the rules, they know how to break them, and how to try to cover up judicial misconduct.

See for e.g.: Todd Bookman, “N.H. Circuit Court Judge Arrested on Felony Evidence Tampering Charges,” New Hampshire Public Radio, February 11, 2021; and Faith Karimi, “A former Texas judge is sentenced for accepting cash bribes stashed in beer boxes,” CNN, September 26, 2019.

So to prevent being deceived by fake news about ethical judges conducting a proper proceeding we’re going to simplify Dominion, Inc. v Sidney Powell et al’s docket, just like we did with Dershowitz vs CNN, and Nunes et al v Lizza, Hearst.

Thereby, we’ll focus on the legal briefs, and skip over the administrative filings, like attorneys filing notices of appearances, time extension requests, and the like.

Here we go.

Case background

U.S. Dominion, Inc. v Sidney Powell et al is being heard in the U.S. District Court in the District of Columbia. Plaintiff Dominion, Inc. is suing Defendant Attorney Sidney Powell (et al) over alleged defamatory statements she made regarding Dominion, Inc. and the 2020 Presidential Election.

Here is the court’s website so you can read the rules, i.e. the judge’s personal rules, attorney rules, local rules, etc.

You may follow the docket (1:21-cv-00040) at Court Listener if you don’t have a Pacer account.

Okay, let’s do this.

Following the docket

Step 1: On January 8, 2021, Plaintiff Dominion, Inc filed their 100 + page complaint with over 100 exhibits against Defendant attorney Sidney Powell.

Step 2: On January 25, 2021, Plaintiff Dominion filed a notice of “related cases” requesting that two related cases they filed against different defendants be enjoined with Dominion, Inc. v Sidney Powell.

Step 2: What’s a notice of related cases?

In brief, related cases share the commonality of the same party and the same subject matter in more than one case. By consolidating… in other words, combining related cases, one court presides over all of the related cases, instead of having two, three, or four judges (whatever the number of related cases is) presiding over each case individually.

You can learn more about related cases within the Federal Rules of Civil Procedure, see for e.g.:

Rule 42. Consolidation; Separate Trials

(a) Consolidation. If actions before the court involve a common question of law or fact, the court may:

(1) join for hearing or trial any or all matters at issue in the actions;

(2) consolidate the actions; or

(3) issue any other orders to avoid unnecessary cost or delay.

(b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial.

LII Federal Rules of Civil Procedure

Here, as Rule 42 states, and as we saw with the judicial canons, it is against the rules (and common decency) for a judge to drive up unnecessary costs and create delays. Any judge who does that is a rule-breaking judge who also violated Canon 3A(5) and their judicial oath.

Canon 3A(5)

In disposing of matters promptly, efficiently, and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases to reduce or eliminate dilatory practices, avoidable delays, and unnecessary costs.

Prompt disposition of the court’s business requires a judge to devote adequate time to judicial duties, to be punctual in attending court and expeditious in determining matters under submission, and to take reasonable measures to ensure that court personnel, litigants, and their lawyers cooperate with the judge to that end. (underline mine)

Code of Conduct for U.S. Judges

See also: 28 U.S. Code § 453 – Oaths of justices and judges

“I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.”

Cornell Law School Legal Information Institute

… do equal right to the poor and the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me…

Okay, moving forward, the two related cases which Dominion requested to be enjoined (combined) with US Dominion, Inc. v Sidney Powell were:

i) US Dominion, Inc., et al, v Rudolph Giuliani, Civil Action No. 1:21-cv-00213. It was filed on January 25, 2021. Here is Dominion’s Complaint against Rudolph Giuliani (107 pages with 227 exhibits).

If you do not have a Pacer account, you can follow the court docket and review the legal briefs and exhibits at Courtlistener.

ii) The second related case is US Dominion, Inc. v My Pillow, Inc., Civil Action No. 1:21-cv-00445. It was filed on February 22, 2021. Here is Dominion’s Complaint against My Pillow (115 pages with 348 exhibits).

Here again, you can follow the court docket and review the legal briefs and +300 exhibits at Courtlistener if you do not have a pacer account.

Okay, so to recap, by consolidating— by combining the related cases, it would mean that one judge, Hon. Carl J. Nichols, would rule on three complaints, three motions to dismiss; three oppositions to dismiss, and three replies at the same time in one court.

As opposed to three different judges, in different courts, ruling on each case individually.

I hope that’s clear.

Okay, let’s keep following the docket.

Step 3: On March 22, 2021, Defendant Sidney Powell filed a motion to dismiss (as opposed to an Answer – see local rules for other pleading options she could have chosen instead of filing a motion to dismiss).

To simplify the steps, hereinafter, the related cases are: “a” is Defendant Rudolph Giuliani and “b” is Defendant My Pillow.

Step 3 (a), 3 (b): Meanwhile in Plaintiff Dominion’s related cases against Rudolph Giuliani, Civil Action No. 1:21-cv-00213 here, and My Pillow, Inc., Civil Action No. 1:21-cv-00445 here the defendants, Rudy Giuliani and My Pillow’s lawyers are also filing Motions to Dismiss.

Step 4: On May 3, 2021, Plaintiff Dominion, Inc. filed an opposition to Defendants Sidney Powell’s motion to dismiss. (I uploaded it at Lawyer submits inapplicable case law. Dirty Tricks? Oops?—How to Legal if you wish to read it)

Step 4 (a), 4 (b): Meanwhile in Plaintiff Dominion’s related cases against Defendant Rudolph Giuliani here, and Defendant My Pillow, Inc. here Plaintiff Dominion is also filing oppositions to Defendants Rudy Giuliani’s and My Pillow’s Motions to Dismiss.

Step 5: On May 24, 2021 Defendant Sidney Powell filed her reply.

Step 5 (a), 5 (b): In Dominion’s related cases, Defendants Giuliani and My Pillow are also filing replies.

Next step during a proper judicial proceeding

In summary, after the “reply” is filed at this stage in the litigation, it is about the court determining whether the case moves forward or should be dismissed, based on the parties’ legal briefs (1 motion to dismiss; 1 opposition to the motion to dismiss, and 1 reply) and the complaint.

Now the parties are waiting for a ruling from the judge.

For more information on the initial stages of litigation from lawyers, see Initial Stages of Federal Litigation Overview, by Attorneys Marcellus McRae and Roxanna Iran, Gibson Dunn & Crutcher LLP with Holly B. Biondo and Elizabeth Richardson-Royer, with Practical law litigation.

See also Cornell Law School’s Legal Information Institutes “Civil Procedure.”

Less than three months after Defendant Sidney Powell filed her reply, on August 11, 2021, the Honorable Carl J Nichols ruled. He enjoined (consolidated … combined) the related cases (Giuliani (a) and My Pillow (b)) with US Dominion, Inc., v Sidney Powell, and promptly moved the case forward.

From the get-go, you can see that Federal District Court Judge Carl J. Nichols is conducting proper proceedings.

Judge Nichols did not reject Plaintiff Dominion’s notice of related cases, ignore the evidence in those cases, and tell the attorneys they can refile it again after they had already filed it and run up unnecessary legal fees.

He did not unduly burden the parties by refusing to rule, and creating delays by insisting that the parties redo their briefs. A judge who did that would be creating repetitious and/or frivolous filings — canon violations according to the judicial canons (see below).

Just like we saw in Dershowitz v CNN, and Nunes et al v. Lizza et al, the judges ruled following their oaths, canons, and the rules, whether you liked the outcome or not.

Are repetitious and/or frivolous filings permissible?

Based on judicial oaths, canons, and case law, repetitious, frivolous filings, and/or both, show improper judicial proceedings.

See also: Judges & Lawyers Oaths, Codes & Rules—How to Legal

See for e.g., the attorneys’ oath in Alabama:

Alabama:

I do solemnly swear (or affirm) that I will demean myself as an attorney, according to the best of my learning and ability, and with all good fidelity, as well to the court as to the client; that I will use no falsehood or delay any person’s cause for lucre or malice, and that I will support the Constitution of the State of Alabama and of the United States, so long as I continue a citizen(or legal resident) thereof, so help me God. (underline mine)

Oaths of Admission of all 50 States lawyers

See also for e.g., the following New York case law: Raghavendra v. Fenn, (SIL), 2019 WL 4963257, at *6 (E.D.N.Y. Oct. 7, 2019) (implementing anti-filing injunction and noting that every filing, no matter how repetitious or frivolous required “some portion of the institution’s limited resources”) (internal quotation marks omitted).  Raghavendra v Fenn.

Thus, based on the aforestated, officers of the court — judges, lawyers, clerks, and court personnel, know it is against the rules (and common decency) to subject a party to repetitious and/or frivolous filings. These ruling breakers leave evidence (aka the repetitious and frivolous filings) of their misconduct evidence on dockets.

People do not file lawsuits to be abused by oath-breaking officers of the court, who don’t follow the rules, and abuse their authority for some unjust gain (unless anyone believes judges like to abuse parties for the fun of it). Judges violate their oath when they refuse to rule and insist on repetitious and frivolous filings. These judges also give bad actors a free pass to keep doing whatever they were doing in.

This could be dangerous.

Bad actors could continue to harm the plaintiff by disseminating more defamation and fake news. This potentially could also harm others like fellow judges.

See for e.g.: Marshall Cohen and Holmes Lybrand, “‘We’re getting all kinds of threats’: Judge says defiant US Capitol rioters are fueling threats from Trump supporters,” CNN, October 22, 2021.

Which judges, which court(s), and which lawyers and law firm(s) would intentionally give aid and comfort to parties who fuel domestic extremism? Remember these would be officers of the court who took an oath to support and uphold the Constitution and laws of their respective State(s) and instead violated them.

Okay, that was a lot of information to take in. Let’s take a music break and get up and move around. Remember when you How to Legal to take breaks, stretch, and be good to yourself. Your neck and back will thank you.

For me, my music pick is more Talk Talk. Talk Talk’s “Talk Talk.” What about you? (Talk Talk’s official YouTube channel)

Learn from judges who conduct proper proceedings

Read Federal District Court Judge Carl J Nichols’s ruling in Dominion v. Powell, Giuliani, and My Pillow Inc, et al at Courtlistener.

As Judge Carl J Nichols’ order confirms, he remained impartial.

For instance, he did not complain or criticize Plaintiff Dominion regarding the length of their complaints (+300 pages), the number of exhibits (300+) they filed with their pleadings, or his workload.

Now, let’s look at the proper application of defamation elements.

Did Judge Carl J Nichols move forward all the alleged provable true/false defamatory statements (libel/slander, libel per se/slander per se) read in context, as all judges do who faithfully discharge their duties when they apply defamation law, or did he address some of them, leaving the parties to guess which ones? A judge who would do this is demonstrating they are a judge who does not faithfully apply the law.

Answer: Judge Nichols addressed all of the alleged defamatory statements, including the statements that fell under defamation per se where damages are presumed. He denied all the Defendants (Sidney Powell, Rudolph Giuliani, and My Pillow’s) motions to dismiss in their entirety and promptly moved the case forward.

Why wouldn’t he? Only a judge thwarting justice in high damage (multi-million/billion dollar) cases for some unjust gain would not faithfully apply the law and break rules, right?

Did Judge Carl J Nichols ignore the pleadings regarding actual malice or other alleged malfeasance in the complaint?

ANSWER: No. See ruling beginning at page 19.

Did Judge Nichols look at the attached exhibits (+400) and among the facts he called out, did he call out a lawyer who had filed what appeared to be an altered exhibit, or did he give the attorney a free pass to keep filing altered exhibits?

Answer: Judge Nichols called out the attorney/defendant who allegedly filed an altered exhibit, as all oath-following judges would do. No one can obtain justice, or negotiate a settlement that reflects the damages, in a court with a judge who gives a lawyer a free pass to file altered exhibits. To verify see: Altered exhibits and pleadings—How to Legal

Did Judge Nichols cite applicable case law and reject Defendants’ inapplicable case law or did he echo-chamber Defendants’ inapplicable (apples to oranges) case law?

Answer: Judge Nichols cited applicable case law. This should be a given, especially in a case where a judge knows defendants’ statements played a role in fueling domestic terrorism and what many consider sedition, right?

To verify see also: Lawyer submits inapplicable case law. Dirty Tricks? Oops?—How to Legal … See also: Will a judge give a lawyer a free pass to break the rules?—How to Legal and see below.

Did Judge Nichols faithfully apply applicable case law to other counts (here, in this case, the count of deceptive trade practices), and include Dominion’s pleadings regarding the motive behind the statements, or did he cite inapplicable case law, ignore the motive, pleadings, and exhibits?

ANSWER: Judge Nichols applied applicable case law and included Dominion’s motive pleadings. As we saw above, he did not ignore exhibits or improperly try to throw out counts based on inapplicable case law. See deceptive trade practices legal standard beginning at 13. See also specifically,

Int’l Brominated Solvents Ass’n v. Am. Conf. of Governmental Indus. Hygienists, Inc., 625 F. Supp. 2d 1310, 1318 (M.D. Ga. 2008). But the court reached that conclusion only after distinguishing other cases in which the defendant had a “financial interest” in the promulgation of its statements, id.; when such an interest exists, there is no requirement that the defendant be engaged in the trade and commerce of goods at issue, see Davita Inc. v. Nephrology Assocs., P.C., 253 F. Supp. 2d 1370, 1380 (S.D. Ga. 2003) (permitting a deceptive trade practices claim to proceed when plaintiffs pleaded that defendant made false and misleading comments, statements disparaged plaintiffs’ services and business, and maliciousness was ascertainable from complaint). Dominion, in contrast, has pleaded that Powell had a financial interest in the promulgation of her statements. See supra at 23. (underline mine)

Dominion, Inc. v. Powell, Giuliani, and My Pillow Inc,, Hon. Carl Nichols Order, Docket Number 45, p. 27-28

If a lawyer claims a statement in a defamation case is an opinion, “non-actionable,” “imaginative expression” or “rhetorical hyperbole,” does it make it true?

Okay, let’s keep looking deeper at the proper application of defamation law. Indeed, just because a lawyer, an officer of the court, claims a statement is an opinion, and non-actionable, in legal briefs, it does not necessarily make it true.

Here we can quickly verify this by Hon. Nichols’ ruling begins at p. 14 as we also saw in Hon. Raag Singhal‘s ruling in Florida.

Remember, in defamation law, the statements in question must be read in context. If a judge does not read them in context, they are not faithfully applying defamation law according to defamation law.

IV. Analysis, A. Statements of Fact or Opinion.

Powell alone argues that her statements cannot be defamatory because no reasonable person could conclude that they were statements of fact. According to Powell, her statements were either “opinions” that cannot be proven true or false or “legal theories . . . made in the context of pending and impending litigation.” Powell’s Mot. at 43–44

For a statement to be actionable as defamatory, it must at least express or imply a verifiably false fact about the plaintiff. Milkovich v. Lorain Journal Co., 497 U.S. 1, 19–20 (1990). And while statements of opinion regarding matters of public concern cannot be defamatory if they do not contain or imply a provably false fact, they are actionable if they imply a provably false fact or rely upon stated facts that are provably false. Id. at 20. “In deciding whether a reasonable factfinder could conclude that a statement expressed or implied a verifiably false fact about [the plaintiff], the court must consider the statement in context.” Weyrich v. New Republic, Inc., 235 F.3d 617, 624 (D.C. Cir. 2001).[1]

Powell contends that no reasonable person could conclude that her statements were statements of fact because they “concern the 2020 presidential election, which was both bitter and controversial,” Powell’s Mot. at 38, and were made “as an attorney-advocate for [Powell’s] preferred candidate and in support of her legal and political positions,” id. at 39. As an initial matter, there is no blanket immunity for statements that are “political” in nature: as the Court of Appeals has put it, the fact that statements were made in a “political ‘context’ does not indiscriminately immunize every statement contained therein.” Weyrich, 235 F.3d at 626. It is true that courts recognize the value in some level of “imaginative expression” or “rhetorical hyperbole” in our public debate. Milkovich, 497 U.S. at 2.[ii]  But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.[iii]

Dominion, Inc. v. Powell, Giuliani, and My Pillow Inc,, Hon. Carl Nichols Order, Docket Number 45, p. 14-16

Statements are defamatory if “they imply a provably false fact…”

Here again, as we saw in Dershowitz v CNN — cases in different jurisdictions, one fact remains the same. The common “opinion” defense fails when the statement contains a provable true, false fact about the plaintiff–direct or implied.

In addition, when a lawyer claims a statement is “imaginative expression” or “rhetorical hyperbole,” it does not necessarily make it true either (see citations [ii] below).

Citations

[i] Powell argues that Colorado law applies to Dominion’s defamation claim. Powell’s Mot. at 22. But because Colorado also uses the Milkovich standard to determine whether a statement is actionable, see NBC Subsidiary (KCNCTV), Inc. v. Living Will Ctr., 879 P.2d 6, 9–13 (Colo. 1994), the Court need not reach the choice-of-law question.

[ii] Such “imaginative expression” or “rhetorical hyperbole” is permitted under the theory that “the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); Snyder v. Phelps, 562 U.S. 443, 460–61 (2011). But that free trade of ideas depends on a common understanding of the facts, which is undermined by provably untrue statements.

[iii] MyPillow appears to similarly argue that the First Amendment grants some kind of blanket protection to statements about “public debate in a public forum.” MyPillow’s Mot. at 10. Again, there is no such immunity. See Weyrich, 235 F.3d at 626. Instead, the First Amendment safeguards our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” Tah v. Global Witness Publ’g, Inc., 991 F.3d 231, 240 (D.C. Cir. 2021) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)) (internal quotation marks omitted), by limiting viable defamation claims to provably false statements made with actual malice.

Dominion, Inc. v. Powell, Giuliani, and My Pillow Inc,, Hon. Carl Nichols Order, Docket Number 45, p. 13

How an oath-following judge handles a party’s request to analyze a claim using different state law

Now, we are going to take a quick revisit to Judge Nichol’s citations to Citation [i] to learn how a judge handles a request by a party to analyze a claim using another state law.

This is important to know because sometimes cases are transferred to another jurisdiction, and a question of which state law to use to analyze a claim/cause of action/ tort may come up.

Citations

[i] Powell argues that Colorado law applies to Dominion’s defamation claim. Powell’s Mot. at 22. But because Colorado also uses the Milkovich standard to determine whether a statement is actionable, see NBC Subsidiary (KCNCTV), Inc. v. Living Will Ctr., 879 P.2d 6, 9–13 (Colo. 1994), the Court need not reach the choice-of-law question.

Based on the aforestated, oath-following judges promptly move a case forward. They simultaneously address different state laws. They do not violate oaths, canons, rules, laws, and common decency, by abusing their authority and insisting on time-consuming, repetitious filings. Any judge who does this is knowingly causing undue delays, running up legal fees for fellow lawyers — and violating judicial canons.

Malicious, yes?

See also the defendants’ failed arguments regarding personal and subject jurisdiction, and additional attempts to use other state laws beginning at C. Deceptive Trade Practices Claims p. 27.

Delay in justice is injustice.

— Walter Savage Landor

If a judge fails to perform their basic duty, failing to rule, does their mask fall off and show who they are –— cruel, callous oath/rule-breaker judges?

As aforestated above, by knowing the oaths, canons, and rules you can identify the judges who are oath-following and apparent two-faced judges who are callous and oath-breaking.

As Reuters reported a callous judge fails to perform their basic duty when they fail to rule.

From the Reuters investigation, “Thousands of U.S. judges who broke laws or oaths remained on the bench“:

“Callous indifference:” How a judge left children in limbo by repeatedly failing to perform her most basic duty: ruling on cases.

Montgomery Circuit Court Judge Anita Kelly hears time-sensitive family matters such as child custody, adoption and divorce – cases in which a child remains in limbo until she rules.

Starting in 2014, court and judicial commission records show, word of years-long delays in her cases began to emerge from foster parents, lawyers, social workers and appeals court judges. Commission officials are barred by law from discussing the case, but Reuters pieced together the scope of the investigation through juvenile court records, public documents and interviews with people involved.

In May 2014, foster parents Cheri and Travis Norwood filed a complaint about Kelly with the judicial commission. They alleged the judge’s incompetence led to a traumatic, years-long delay in which a foster child who began living with the Norwoods as an infant was taken away from them at age 3 ½ and returned to live with her teenage biological mother.

“If Judge Kelly thought they should have been together, fine,” Travis Norwood said in an interview. “Why didn’t this happen sooner? Because children can’t wait. You can’t freeze a child, hold her in suspended animation until her mother is ready.”

Social workers who heard about the Norwood complaint forwarded their own concerns about Kelly’s conduct in several other cases. Nonetheless, the commission dismissed the Norwood complaint in early 2015, finding “no reasonable basis to charge the judge.”

Over the next year, more red flags emerged. State appeals court judges raised concerns about Kelly’s “continued neglect of her duty,” citing at least five cases that had untenable delays. In November 2015, a supreme court justice criticized the nearly three years it took to determine one child’s fate.

“Thousands of U.S. judges who broke laws or oaths remained on the bench,” Reuters

How a judge who follows their oath conducts themselves if they are unable to preside over a case, there’s a judicial vacancy, and/or they have a heavy caseload.

While the Reuters reporting involves cases at the state level, because we (it’s just me) are always learning here at How to Legal, at the federal level, if a judge cannot move a case forward for any reason, an ethical judge does not violate their oath, canons, or rules, by ignoring a case, and/or by insisting on repetitious or frivolous filings, an ethical judge recuses. An ethical judge requests a replacement or a visiting judge to preside over the case, according to:

1. 28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge;
2. Rule 63. Judge’s Inability to Proceed; and
3. visiting judges.

What’s a visiting judge?

The United States Courts provide the answer.

Visiting Judges

Federal judges work to ensure equal justice under the law. Learn about the different kinds of federal judges and the cases they hear...

Visiting judges who may sit by designation and assignment in any other federal court having a need for their service. They provide temporary assistance not only when a court’s own judges must disqualify themselves, but also to help meet the caseload needs arising from vacancies, lack of sufficient judgeships, specific emergencies, and other workload imbalances.

United States Courts

See also: “Judge blocks Donald Trump’s effort to countersue rape accuser E Jean Carroll: New York judge accuses ex-president of ‘bad faith’ in tactics that would have further delayed defamation lawsuit,” The Guardian, March 11, 2022.

US district judge Lewis Kaplan in Manhattan said a ruling for the one-term Republican would needlessly cause further delays for Carroll’s lawsuit, which began in November 2019.

He also accused Trump of engaging in “bad faith” to prevent Carroll, 78, from pursuing a case that could have been decided long ago.

The defendant’s litigation tactics, whatever their intent, have delayed the case to an extent that readily could have been far less,” Kaplan wrote.

The Guardian, March 11, 2022.

Indeed. There are bad faith officers of the court.

This may explain why some cases promptly move forward, while other cases don’t. There are oath/rule following judges and oath/rule breaking judges. There are also oath/rule following lawyers and oath/rule breaking lawyers.

Ethical versus unethical.

If judges, who know the rules, did not recuse and still don’t recuse, despite seeing the damage their judicial misconduct has been causing the nation, these judges can be identified by reading dockets and court filings.

See more reasons when and why judges must recuse here.

In addition, if a judge fails to recuse, when they should have recused, and they are hellbent on throwing a multi-million dollar damage case, it should not be surprising to see them violate other rules.

Judicial misconduct is dangerous. Misconduct can give malignant parties, and John Does, a free pass to keep doing whatever it was they were doing.

But here, as demonstrated, in Dominion v. Sidney Powell et al, by following the docket, and reading the legal briefs, you would know and can confirm, that the Hon. Carl J. Nichols “faithfully and impartially discharged” his duties, 28 U.S.C. § 453.

He protected the Constitution of the United States, 5 U.S.C. § 3331, whether you liked the outcome or not.

This is not a judge who is in the tank with one party in a defamation lawsuit where there’s big money on the line.

In this case, Plaintiff Dominion is seeking over a billion dollars in damages.

Do oath-breaker judges who throw cases know their bad case law undermines the legal system, and democracy and can harm others? Visual demonstration

You decide.

Given all the reporting exposing judicial misconduct, and how dark money may adversely affect the court, and the rule of law, remember in an earlier How to Legal — Lawyer submits inapplicable case law. Dirty Tricks? Oops?  we did a real case demonstration to explain what a “table of authorities” is by using legal resources. 

Click this link if you missed it or need a refresher.

Now I will show you where you can SEE when cases aka “authorities” are being cited in other cases without having to read tons of cases. To be clear, this is where a lawyer cites a previously decided case as an “authority” for their legal positions.

To demonstrate, let’s look at the landmark defamation case, New York Times v Sullivan.

If you missed it, or need a refresher, go to Freedom of Speech: What’s slander? What’s Libel? —How to Legal.

Judges’ opinions can and are cited in other cases as “authorities.” The last time I checked New York Times v Sullivan at casetext.com it had been cited as an “authority” in over 6,550 (six thousand, five hundred and fifty) other cases.

This is among the reasons why rulings were vacated after the Wall Street Journal investigation showed judges who broke laws when they did not recuse, and they should have. It’s a big deal that judges follow their oaths given their cases can be cited as an authority in other cases.

Ethical judges vacate rule-breaking judges rulings to preserve the integrity of the U.S. justice system

Here, we can see an example of an ethical judge preserving the integrity of the justice system when U.S. District Judge Cathy Ann Bencivengo vacated a ruling by a rule-breaking judge. See Alison Frankel, “StarKist to 9th Circuit: Trial judge’s stock ownership dooms class cert rulings,” Reuters, December 1, 2021. It reads in part:

The other significant development that occurred after en banc arguments was an Oct. 19 ruling by U.S. District Judge Cathy Ann Bencivengo of San Diego in Driscoll v. Metlife Insurance. Bencivengo was assigned to the Metlife case after Sammartino recused herself in August because of a financial interest in Metlife. Sammartino had already granted summary judgment to the defendants in the case when Bencivengo got the case. Bencivengo vacated that judgment, finding that, regardless of whether Sammartino was aware of her conflict, she had been in violation of judicial qualification law for the entire duration of the case. To allow Sammartino’s ruling for Metlife to stand, Bencivengo wrote, “risks undermining the public’s confidence in the judicial process.” (underline mine)

Allison Frankel, “StarKist to 9th Circuit: Trial judge’s stock ownership dooms class cert rulings,” Reuters, December 1, 2021.

So, as demonstrated here, when a judge breaks a rule(s), their rulings must be vacated to preserve the integrity of the justice system.

Indeed judges who broke the rules must recuse. See: “Federal Judge Files Recusal Notices in 138 Cases After WSJ Queries,” WSJ, November 2, 2021.

As demonstrated below, every day they don’t they are undermining the justice system. As demonstrated above, you can see how quickly rulings may be cited in other cases as “authorities.” Below is a screenshot I took from casetext.com. Dominion Inc. v Powell et al has already been cited in another case as an authority.

But since you are here learning How to Legal, you can have confidence in Federal District Court Judge Carl J Nichols’ ruling in Dominion Inc v Sidney Powell et al because you are following dockets, reading court filings, and seeing for yourself that this judge follows his oath, canons and the rules.

This way you can see he is not a judge who is in the tank with one party, in a defamation lawsuit where there’s big money on the line. In this case, Plaintiff Dominion is seeking over a billion dollars in damages.

You can also have confidence in more judges, like U.S. District Judge Cathy Ann Bencivengo, who vacates rulings when oath, rule-breaking occurs during a proceeding(s).

Do you see? The more you learn about the justice system, the more you will appreciate, and respect the oath-follower officers of the court, who stand firm against corruption, politics, violations, dark money, and the like.

Recall, officers of the court are: “[a]ny person who has an obligation to promote justice and uphold the law, including judges, clerks, court personnel, police officers, and attorneys (who must be truthful in court and obey court rules).” Nolo

Officers of the court are duty-bound to uphold the law and promote justice. As such, they are required to self-police.

This would involve notifying victims/survivors of judicial misconduct, and vacating rule/oath- breaker rulings. If courts don’t self-police more people will likely be harmed, including potentially their colleagues.

See for e.g.: Marshall Cohen and Holmes Lybrand, “‘We’re getting all kinds of threats’: Judge says defiant US Capitol rioters are fueling threats from Trump supporters,” CNN, October 22, 2021.

Remember judges know the rules, they know how to break them and how to try to cover up judicial misconduct.

See: Dean Shalhoup, “Former Nashua district court judge arrested, charged with tampering with records, falsifying evidence,” The Telegraph, Feb 11, 2021; Todd Bookman, “N.H. Circuit Court Judge Arrested on Felony Evidence Tampering Charges,” New Hampshire Public Radio, February 11, 2021; and Faith Karimi, “A former Texas judge is sentenced for accepting cash bribes stashed in beer boxes,” CNN, September 26, 2019

Judges who tamper with records, chip away at democracy, make a mockery out of the rule of law, and intentionally undermine the integrity of the justice system.

Peaceful solutions to remedy judicial misconduct

See: Are judges supposed to cover up misconduct and potential crimes? —How to Legal

Okay, let’s wrap this up.

Words matter. Defamation matters. Deceptive trade practices matter. Ethical officers of the court matter. Exposing oath-breakers and holding them accountable matters. You never know how many people can be hurt until you do.

I hope you feel empowered by this latest installment, and are learning a lot thanks to the good side of the Internet. #SaveDemocracy.

Thank you for spending time at How to Legal. Stay tuned for the next installment.

Next up: Are lawyers supposed to cover up judges and lawyers misconduct according to the rules?—How to Legal

Time to sign off, get up, stretch, and move around. Learning How to Legal is empowering, but it can be draining too, so please pace yourself.

This time, for me, my music pick is Peter Murphy’s “Cuts You up.” What about you? See Peter Murphy’s official website.

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Legal Disclaimer

Nothing on this website may be construed as legal advice. While I have litigated as a pro se plaintiff when Reuters and Wall Street Journal’s reporting exposed judicial misconduct, I am not a lawyer. 

This information is for educational purposes. If you need legal advice, please consult with a licensed professional in your area.

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Updated to include “Judge blocks Donald Trump’s effort to countersue rape accuser E Jean Carroll: New York judge accuses ex-president of ‘bad faith’ in tactics that would have further delayed defamation lawsuit,” The Guardian, March 11, 2022.

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