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The tale of two judges (updated)

One could get dizzy from all the spin put on Judge Carter’s remarks in court yesterday and the subsequent orders in Barnett v Obama. I’m going to take the position that all federal judges basically follow the law, but they may vary in style. I thought Judge’s Carter’s style might be better understood by contrasting it with another Federal judge, presented with a similar case.

The case is Hollister v. Soetoro, the court District of Columbia District Court and the Judge, James Robertson. Hollister was Phil Berg’s case, the “interpleader” case in which he tried to force the court to decide  who was really president, Obama or Biden, using a trick from contract law. Berg’s 1st Amended Complaint was filed February 11, 2009 and the same day Judge Robertson issued an order “that defendants need not respond to the amended complaint and that plaintiff’s response to the motion to dismiss is due 2/13/09”. A few motions went back and forth, but the result is that on March 5, less than one month after the amended complaint was filed, the judge dismissed the case.

Judge Robinson declared that the “interpleader” case was “frivolous”. He said:

This case, if it were allowed to proceed, would deserve mention in one of the books that seek to prove that the law is foolish or that America has too many lawyers with not enough to do. Even in its relatively short life the case has excited the blogosphere and the conspiracy theorists. The right thing to do is to bring it to an early end. [Emphasis added.]

Judge Robinson, it seems, is unwilling to waste the court’s time on frivolous lawsuits.

In contrast, Judge David O. Carter seems a more patient sort. He is giving Orly Taitz explanations as to what she does wrong, and even tried to assist her in accomplishing service. He is going through all the forms including scheduling a trial date, even though there may be no trial. Whatever his personal view of the merits of the lawsuit, he is acting in a very measured and objective fashion. On the one hand he promises not to summarily dismiss the case on a technicality (giving glee to the Orly tribe) but on the other hand suggesting that there will be no discovery until the motion to dismiss is dealt with, and leaving a none-too-subtle hint to the US Attorneys that a motion to stay discovery might be in order. [I think part of the confusion here is on the definition of technicality. I suppose failure to meet a deadline for service is technical for one side, and not having standing is considered technical by the other.]

Carter’s even-handed language may lead those of us itching for resolution (either trial or dismissal) to read too much into his statements. In the end, I am confident that he will follow the law, and Orly, if she pays attention, might get a bit of a legal education in the process.

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23 Responses to The tale of two judges (updated)

  1. avatar
    misha September 9, 2009 at 10:13 pm #

    “Orly, if she pays attention, might get a bit of a legal education in the process.”

    From a correspondence school, and television? Surely you jest.

  2. avatar
    Nullifidian September 10, 2009 at 1:42 am #

    This latest hearing, being filled as it was with issues that would normally be hashed out in a magistrate’s office, really brought it home to me that Judge Carter is treating Orly as if she were a pro se plaintiff—and with very good reason. It’s generally held that people who represent themselves should be given every reasonable break, so the real test of the legal merits of the case will come on October 5th. Carter can hand-hold Orly through the basics, but he cannot rewrite her filings for her.

    I do expect the case to be dismissed. Naming Biden and Michelle Obama (!) as defendants without making the pretense of pleading a case against them is frivolous even by her standards.

  3. avatar
    misha September 10, 2009 at 3:53 am #

    Frivolous, thy name is Orly.

  4. avatar
    Expelliarmus September 10, 2009 at 5:59 am #

    I’m sorry, but while these two Judges are quite different in demeanor and style, the PROCEDURE was essentially the same.

    The Docket in Hollister shows the following:

    Berg filed a complaint on December 31 (#1) and submitted returns of service on January 14 (#6, 7), about 2 weeks later. [Unlike Orly, Berg knows how to properly serve a complaint; by contrast, in the re-titled Barnett case, Taitz filed a complaint in January and did not manage to actually complete service until late August – about 7 months after filing the complaint – after a series of orders from the Judge threatening dismissal if she failed to complete service)

    In Hollister, the Defendants appeared, through private counsel, on January 26th, approximately 2 weeks after being served, filing a Motion to Dismiss under Rule 12b. In Barnett, the Defendants appeared, represented by the US Attorneys office, and filed a Motion to Dismiss under Rule 12b on September 4, approximately 10 days after finally being served.

    In Hollister, the plaintiff filed opposition to the motion to dismiss on February 13th, and an order was issued granting the motion on March 5th, about 5 weeks after filing the motion.

    In Barnett, the motion to dismiss has been calendared for hearing October 5, approximately 30 days after the filing of the motion… and we can anticipate that the motion will be granted and a written order filed the same day, assuming that the plaintiffs file their opposition on or before September 21st, as ordered.

    So you can see, things are actually moving a little faster in Barnett, now that Taitz has actually managed to complete service and get the matter into court.

    I think you are confused by orders that issued to prevent various shenanigans by Berg — such as his attempt to file an amended complaint after the motion to dismiss and his separate motion for an interpleader, which is a special type of collateral proceeding that clearly did not apply to this type of case.

    I agree that Judge Carter seems to be more low-key and well-mannered in presentation, and I expect his order to dismiss the case will be written in very matter-of-fact, direct language, with no editorializing.

    But you are mistaken as to the procedure; in each case the dismissals will be the result of motions brought by the defense. The main difference is that Judge Carter has had to schedule 2 hearings to force Taitz to complete service and to resolve issues of representation — issues that never came up in the Hollister case because Berg seems to have mastered the service-of-process part of practicing law, if nothing else.

  5. avatar
    Lupin September 10, 2009 at 7:33 am #

    I don’t know enough about the minutiae of litigation to have an educated opinion. That said, my reading of Judge Carter’s is that he’s putting Taitz et al on a slow boat to China, dotting the is and crossing the ts in the process, perhaps to minimize the silliness in the event of an appeal?

  6. avatar
    Dr. Conspiracy September 10, 2009 at 7:42 am #

    I’ve reviewed the article. My overall theme was correct, the difference between the two Judges is mostly one of style. I read one thing wrong and that led me off on a string of misunderstanding, now corrected. As another commenter stated, Judge Carter is treating Orly like a pro se plaintiff in some ways, explaining thing to her that she ought to already know, and helping her achieve service (rather than dismissing the case for lack of service way back when). [Recall that Orly has never tried a case.] What remains to be seen is whether Judge Carter will order sanctions against Taitz, as Robertson did against Hemenway.

  7. avatar
    Expelliarmus September 10, 2009 at 8:30 am #

    If Judge Carter had dismissed Orly’s complaint for lack of service, it could have been refiled. Similarly, if he had denied Kreep’s request to reinstate the plaintiff’s he represented, their case could have been refiled. A dismissal for failure to serve can only be “without prejudice”, because it is not on the merits. So Carter has done his best to avoid that outcome.

    Taitz has tried to get an early discovery order; Carter denied everything she asked for in the way of discovery.

    When Carter dismisses the case pursuant to the 12b motion, it cannot be refiled — a dismissal on the grounds urged by the defense is considered to be a determination of the merits, and the only way around it will be by appeal. (This is where the birthers are confused: they think, “on the merits” means that Carter will decide whether or not Obama is eligible to be President…. but instead, Carter will simply find that he does not have the jurisdiction or power as a federal judge to consider the issue).

    So Carter is simply playing this by the book.

    I have a feeling that the opinion he issues dismissing the case will be rock solid — but it will be about the issue of justiciability of the claim, not where Obama was born. He’ll say that Congress has the sole power under the Constitution; that its a political issue; and that the parties lack standing. He’ll cite a dozen cases or so to support those statements and order the case dismissed. Then there will be an appeal.

    However, Carter’s courtesy toward Orly might damp down the anger of some of her supporters at the time of the dismissal. He has earned the respect of many of them simply by appearing to listen and to understand the gist of the complaint. He may render his decision in a conciliatory tone — one that takes the time to explain his reasoning in a way that will make at least some of Orly’s supporters believe that they got a fair shake but the case is a lost cause. It will be hard for Orly to turn around on October 6th and label Carter a brownshirt, Nazi, Obot conspirator. She will, of course…. but then again, she might just blame Kreep for the loss. That part remains to be seen….

  8. avatar
    Lupin September 10, 2009 at 10:06 am #

    I agree. My sense is that Justices who do this have an eye towards the Courts of Appeal, and want to make their ruling as ironclad as possible.

    At the risk of being optimistic, my feeling is that J. Carter is carefully preparing to nail the coffin.

  9. avatar
    Bob September 10, 2009 at 10:54 am #

    Hemenway was lucky the judge did not order him to open his checkbook, and still filed an appeal.

    Yes, Judge Carter can see how this case could reappear in his courtroom, so he’s putting in a little extra effort now to make sure he doesn’t have to put in a lot more effort later.

    What he did with Kreep and Taitz was wrong. Kreep’s clients have the right to get out of Taitz’s suit and file their own. As Judge Carter noted, doing so will so things down (which cuts against their argument of urgency), but that was their call to make, not his.

    But in bundling them together, it’ll ultimately get this case out of his courtroom quicker. And perhaps Kreep can help steer the ship; it can’t get any worse with just Taitz at the helm.

  10. avatar
    Bob September 10, 2009 at 11:23 am #

    Appellees’ brief in Hollister v. Soetoro

    Footnote 4 has quite the list of failed birfer cases.

  11. avatar
    Blue in the face September 10, 2009 at 12:34 pm #

    I am still blue in th face trying to post a comment.

  12. avatar
    Dr. Conspiracy September 10, 2009 at 12:55 pm #

    That’s because you’re AXJ, and AXJ is shut down on this blog.

  13. avatar
    Expelliarmus September 10, 2009 at 3:03 pm #

    But Kreep’s clients did not ASK to get out and file their own case — they ASKED to stay in and have their own counsel, which was their absolute right.

    I think the Judge’s call on that was 100% correct. It was unethical for Taitz to name them as plaintiffs without their permission, but once they knew the case was pending and opted to stay in with their own counsel, it was unethical for her to attempt to dismiss them out.

  14. avatar
    nbc September 10, 2009 at 3:20 pm #

    Once dismissed with prejudice, the issue also becomes “res judicata”?

  15. avatar
    Bob September 10, 2009 at 3:24 pm #

    It is a bit hard to tell from the various second-hand accounts, but if the plaintiffs wanted to stay in this case (rather than file their own case), it is of course their right to do so, and to be there with counsel of their choice. It did seem like, though, the judge was dissuading them from doing that, which may be something raised on appeal.

    The reality, of course, is all this means it that there’ll be two oppositions to the motion to dismiss instead of one.

  16. avatar
    Per Son September 10, 2009 at 3:34 pm #

    Is there going to be a transcript for the September 8th hearing. I will finally be able to cut through the spin.

  17. avatar
    Rickey September 10, 2009 at 3:51 pm #

    Bob: The reality, of course, is all this means it that there’ll be two oppositions to the motion to dismiss instead of one.

    That’s correct. Judge Carter will allow both Orly and Kreep to file their own arguments, even if they disgree with each other.

    Kreep at least has lots of experience and presumably knows how to follow the rules of civil procedure.

  18. avatar
    Expelliarmus September 10, 2009 at 4:41 pm #

    That’s what they explicitly said they wanted in the papers filed before the court; see:
    http://nativeborncitizen.wordpress.com/2009/09/10/keyesbarnett-v-obama-doc-45-ex-parte-application-for-order-dismissing/

    It was ORLY who wanted to dismiss them and have them file their own suit — they explicitly said they wanted to be in, with their own counsel.

  19. avatar
    Expelliarmus September 10, 2009 at 4:43 pm #

    Yes, I think so. One more very good reason to nurse the case along toward a binding dismissal order.

  20. avatar
    Bob September 10, 2009 at 5:35 pm #

    One more very good reason to nurse the case along toward a binding dismissal order.

    Which is why it isn’t a good idea to put all your litigants in one suit….

  21. avatar
    Expelliarmus September 10, 2009 at 6:21 pm #

    But the determination of issues in suit #1 can be asserted as collateral estoppel against suit #2, which is why plaintiffs with a minimally competent lawyer would not want to see their claims first litigated in a separate lawsuit with an inept, crazy lawyer.

  22. avatar
    Greg September 10, 2009 at 7:21 pm #

    I think there are some limits to how much res judicata effect a dismissal with prejudice has against non-parties. I think it only has res judicata effects if the claims are identical in the new suit and the non-party’s interest was adequately represented in the earlier case. See Chase Manhattan v. Celotex.

  23. avatar
    Bob September 10, 2009 at 7:30 pm #

    I think there are some limits to how much res judicata effect a dismissal with prejudice has against non-parties.

    I was thinking that as well. Most plaintiffs in these suits lack standing, so it really doesn’t matter if there’s an additional bar in a future lawsuit.

    Keyes, however, has the strongest standing claim; for issue preclusion to attach to him will cause a problem if he decides to sign onto another crazy suit.