Oh, For Goodness Sake

Birther Lawyers, Their Extracurricular Litigating

Dave Weigel did a piece on Birther lawyers over the summer. He wondered at the quality of legal representation in the Birther movement. And you really do have to wonder.

One of the more amusing quirks of the “birther” movement is the quality of the legal minds in whom Obama birth certificate obsessives are placing their trust — and their occasional donations. Phil Berg, the original “birther” lawyer, has been forced to pay out sanctions for legal malpractice. Orly Taitz, famously, got her law degree from an online correspondence school. And it turns out that Charles Lincoln, who has been assisting Taitz — he provided judges with amended complaints in Keyes et al v. Obama et al last week and he showed up at the last hearing on the case— has been disbarred in California, as well as Florida and Texas.

Since there has been recent news, though not much on legal Birfistan, which is somewhat in the doldrums currently, but on the attorneys/disbarred attorney Weigel mentioned, this update includes their extracurricular litigation activities.

Taken in order, in olden days, when Birtherism was something less than a pup, Birther attorney Philip Berg was sanctioned $10,000 in a malpractice suit stemming from a health claim against a labor union, Holsworth v. Berg. The judge called his conduct, “a blueprint for what not to do when attempting to effectively and honorably perform the duties of the legal profession.”

In 2005, U.S. District Judge J. Curtis Joyner imposed the $10,000 sanction in Holsworth v. Berg:

Finding that a Pennsylvania lawyer had committed a “laundry list of unethical actions,” a federal judge has imposed more than $10,000 in sanctions and ordered the lawyer to complete six hours of ethics training.

U.S. District Judge J. Curtis Joyner’s 10-page opinion in Holsworth v. Berg is packed with criticism of the conduct of attorney Philip Berg of Lafayette Hill, Pa.

“Other attorneys should look to Mr. Berg’s actions as a blueprint for what not to do when attempting to effectively and honorably perform the duties of the legal profession,” Joyner wrote.

“This court has grown weary of Mr. Berg’s continuous and brazen disrespect toward this court and his own clients. Mr. Berg’s actions … are an enormous waste of judicial time and resources that this court cannot, in good conscience, allow to go unpunished,” Joyner wrote.

Judge Joyner was pretty tough on Berg:

The details of Mr. Berg’s course of conduct will be recounted once again in this memorandum, however, so as to remove any modicum of doubt that imposing sanctions in this situation is not only entirely appropriate, but mandatory in order to preserve the integrity of this Court and the American legal system. …

In no way, shape, or form do the “extenuating circumstances” proffered by Mr. Berg even begin to justify, excuse, or explain his unprofessional and unethical course of conduct throughout this matter. These transparent excuses are not only patently insufficient to meet the legal standard for a motion for reconsideration, they are insulting to this Court and demeaning to the legal profession. This type of conduct from Mr. Berg, or any other attorney practicing before this Court, is unacceptable and will not be tolerated.

Berg went on to appeal all this.

On April 17, 2009, the Third Circuit Court of Appeals upheld the Rule 11 sanctions imposed against Berg in Holsworth v. Berg, concluding:

Berg does not challenge the determination to impose sanctions. Rather, he challenges the severity of the sanction, contending that the amount assessed was excessive. We cannot ignore, however, that despite notice of the amount sought, Berg never challenged the severity of the sanctions imposed. In the motion for reconsideration, Berg sought to excuse what he perceived as the reason for the sanctions, but he did not contend that the sanctions were excessive. In Newark Morning Ledger Co. v. United States, 539 F.2d 929 (3d Cir. 1976), we observed that we “generally refuse to consider issues that are raised for the first time on appeal.” Id. at 932. “This general rule applies with added force where the timely raising of the issue would have permitted the parties to develop a factual record.” …Accordingly, we will not disturb the sanctions imposed by the District Court.

Last month, a panel of circuit court judges decided he has to pay $15,849.00 to the Carpenters Health & Welfare Fund of Philadelphia and Vicinity for reimbursement of legal costs–in addition to the original $10,000 sanction.

10/15/2009 Open Document ORDER (MCKEE, SMITH and VAN ANTWERPEN, Circuit Judges) granting Motion by Appellees Carpenters Health & Welfare Fund of Phila and vicinity, et al for Reimbursement of Fees Pursuant to FRAP 38 totaling $15,849.00, filed. Smith, Authoring Judge. (CH)

Text of Order:
***
Motion by Appellees Carpenters Health & Welfare Fund of Philadelphia and Vicinity, et al For Reimbursement of Fees Pursuant to FRAP 38 For Reimbursement of Fees totaling $15,849.00.
***
The foregoing Motion by Appellees Carpenters Health & Welfare Fund of Philadelphia and Vicinity, et al For Reimbursement of Fees Pursuant to FRAP 38 For Reimbursement of Fees totaling $15,849.00 is GRANTED.

The Third Circuit Court of Appeals is the same court through which Berg’s Birther case, Berg v. Obama, dating from November 7, 2008, and with a TRO dismissed by that court in June 2009, made its way to Washington DC. He filed a Motion to Reconsider, which was denied on September 21, 2009 in the US District Court for the District of Columbia. On October 21, 2009, he appealed; dispositive motions are docketed for December 10, 2009.

Dr. Orly Taitz, Esq., (who with her $20,000 sanction is now second to Berg), and Charles Edward Lincoln III, of course, come as a pair. Their extracurricular litigating involves real estate redemption, a dubious process by which a property in or near foreclosure or under some other sort of “cloud” is “quieted” through transfer of title from the owner to another person, who then brings it to court as the new owner of the property deed.

Here is her ad from her web site:

The Taitz, Lincoln firm of paper terrorists plans to bring cases such as these in every state in the Union, but for now, three such cases were out there: Idaho, California and Florida.

In Florida, which is one of the states where Lincoln is disbarred, Taitz has been, in effect, barred from acting as pro hac vice attorney in the US District Court, Southern District of Florida. The case is Rivernider (and Lincoln) v. U.S. Bank National Association. In the Defense Motion to Dismiss, filed on September 24, the transfer of the deed to Lincoln for ten dollars on the $729,000 house is described:

That post judgment transfer is a fraudulent attempt to avoid Defendant’s res judicata argument by creating a Plaintiff that DID NOT EXIST and HAD NO INTEREST in the property when Defendant US Bank was granted Summary Judgment to foreclosure and sell the subject property.

On October 23:

10/23/2009 14[RECAP] ORDER denying 13[RECAP] Unstipulated Motion for Substitution of Counsel; denying 13[RECAP] Motion for Extension of Time to File. Signed by Judge William P. Dimitrouleas on 10/23/2009. (cqs) (Entered: 10/26/2009)

Taitz, Lincoln had until October 30 to respond, which they did on November 2:

10/30/2009 16 First Amended MOTION to Substitute Counsel for Pro Se Litigants ( Responses due by 11/19/2009), MOTION for Extension of Time to Respond to Motion to Dismiss DE 8 by Charles Edward Lincoln, III, Marsha G Rivernider, Robert H Rivernider. (rgs) (Entered: 11/02/2009)

Denied the same day:

11/02/2009 18 ORDER, denying 16 Motion to Amend/Correct; denying 16 Motion for Extension of Time to Respond. Signed by Judge William P. Dimitrouleas on 11/2/2009. (cqs) (Entered: 11/03/2009)

With a last chance to show cause on the Motion to Dismiss by November 12:

11/02/2009 17 SECOND ORDER TO SHOW CAUSE RE: Motion to Dismiss Show Cause Response due by 11/12/2009.. Signed by Judge William P. Dimitrouleas on 11/2/2009. (cqs) (Entered: 11/03/2009)

I am informed by a lawyer experienced in the workings of the federal courts that it rarely, if ever, happens, where an attorney is denied pro hac vice status, and the decision against Taitz will travel with her to serve as a signal in any future court filings in that district (or any federal district) for both the court and the Defense, to deny Taitz such standing. Taitz has never achieved pro hac vice status anywhere in Florida, and this has previously been because of her propensity to not follow local Rules, which require local counsel to front for her, but it hadn’t until now reached the point of denial.

In one of her Birther cases in Georgia, Cook v. Good, a Notice of Appeal was filed and Notice taken by the Eleventh Circuit Court of Appeals on October 6.

In the one in Florida, Cook v. Simtech, while Taitz posted to her web site on September 28 that she was filing an appeal, it hasn’t appeared on the docket that I’ve seen.

I am submitting today a notice of appeal in FL on behalf of Major Cook . While his orders to deploy were revoked by the military, he was a victim of retaliation and the military pressured his employer to fire him. We are seeking damages. Notice of appeal in GA was already filed.

Both Georgia and Florida are in the Eleventh Circuit Court of Appeals and these cases are likely to be combined, since they are the same case, if the Florida appeal has been filed. This could be a very interesting outcome, because Taitz’s litigation history with Judge Richard Lazarra in the US District Court, Middle District of Florida, Tampa Division, who dismissed the case as frivolous, without a hearing, was explosive, ending with her trying and failing to have him recused.

With Judge Clay Land in the US District Court, Middle District of Georgia, Columbus Division, who dismissed Cook v. Good, and who she’s also tried to have recused in her second military case there, Rhodes v. MacDonald, where she has filed a Notice of Appeal, as we all know, it was nuclear.

So is the Eleventh Circuit Court of Appeals ready for Taitz, Lincoln?

Does a bear shit in the woods?