Judge Land rebuked in amicus brief regarding Orly’s $20,000 sanction

Judge Land stated he planned to give the $20,000 paid to the court by Orly Taitz to a military non-profit.  I questioned  when I read this  if judges really have the authority to do that.  Well someone else besides Orly is standing up to Judge Land and stating it is illegal for him to “donate” government sanction money to any non-profit.   It should be remembered that Orly is doing all her Obama eligibity suits pro bono.

http://thepostnemail.wordpress.com/2009/10/28/serby-charges-land-with-potential-federal-crime/

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4 Responses to “Judge Land rebuked in amicus brief regarding Orly’s $20,000 sanction”

  1. westsidedavid Says:

    Judge Land said he was considering having the money donated to the national Infantry Foundation, and he asked the government attorneys to research the point to see if it is legal.

    Mr. Selby points out, at excessive length, that this would require congressional approval. Is there anything wrong with the Congress ruling that if this sanction is upheld and the money received, it should go to the National Infantry Foundation? Congressional approval would eliminate Mr. Selby’s concerns and fulfill Judge Land’s wish.

  2. politicaldoc Says:

    Did Judge Land ask Orly’s opposing counsel to research this? Why would he do that? It would seem that this “research” would be done by the judges law clerks.

  3. Victor M. Serby Says:

    To westsidedavid: The length of my brief (11 pages of actual text) was not excessive when one considers that I set forth the full text of the portion of Office of Personnel Management v. Richmond, 496 U.S. 414, 424-430 (1990) on which I relied. In addition, I included the full text of “The Not Yours to Give Speech” by Col. David Crockett, memorialized in “The Life of Colonel David Crockett,” by Edward Sylvester Ellis. See e.g. http://www.juntosociety.com/patriotism/inytg.html . My reason for including the full test of these documents, instead of merely citing to them, is that spoonfeeding ensures that both the harried law clerk, who may not have the time to pull the cited case and read it thouroughly and the casual reader, who certainly does not have the time or the resources to research the backup for my position, to fully understand why I said what I said. Reading the “Not Yours to Give Speech would answer your inquiry as to whether there is “anything wrong with the Congress ruling that if this sanction is upheld and the money received, it should go to the National Infantry Foundation.” Congress cannot give charity! Hey, I could use a spare $20,000. Would it be wrong if Congress voted to give it to me? On the other hand, if Congress wished to allocate $20K directly to Fort Benning, that is their legitimate prerogative. If any US citizen (including the judge) believes that Fort Benning should get an additional $20K apprpropriation, (s)he can call or write to his or her representatives in the House or Senate and request that that an appropriations bill be started for that purpose.

    To politicaldoc: I too thought it was strange that the judge asked the US Attorney to research this for him.

    There was another aspect of the decision that irritated me, but that’s best left up to Orly Taitz to fight. In my opinion, the judge did not have the authority to sanction her $20k, but rather he only had the authority to sanction her $10k under Rule 11 of the Federal Rules of Civil Procedure when he issued a Show Cause Order specifically asking her to show cause why she should not be sanctioned $10k. To increase the amount to $20k, seems to violate her due process rights. http://www.law.cornell.edu/rules/frcp/Rule11.htm

    Judges make mistakes! Justice Cardozo made mistakes. Even Willie Mays dropped a fly ball once in a while. There is a process for correcting those mistakes (not the dropped fly ball). It is impossible for a judge to know everything about every law, but judges should be guided by “judicial sense.” Directing the Assitant US Attorney to brief the position of the United States as to whether a charitable gift can be made of a monetary sanction which the judge himself acknowledged belongs to the US Treasury probably deviates from good judicial practice. Asking his law clerks to thouroughly research this topic would have been more appropriate, and the issue would most likely have died a quiet death. Writing this directive into an opinion that was certain to be under the national spotlight was probably not the best of ideas. [I’m still curious as to what the Assistant US Attorney will have to say on this matter; after all the Order is still in full force and effect and the Assitant US Attorney to whom it was directed is under an obligation to respond.] One thing is for sure: It is obvious from the text of the decision that Judge Land had enough pause to realize that he may not have the power to donate the government’s money to a worthy charity.

    I’m sure that Judge Land is a fine jurist who just made a mistake and would not violate the law. If he were driving in New York City and stated that he would make a “right-on-red” while sitting at a red light, and his passenger told him that it was illegal to do so in New Yok City, I’m sure he would listen. I’m also sure that he now knows that he made a mistake with respect to the issue of the disposition of the sanction.

    On a final note, it is a good thing that our Constitution protects Article III judges in that they “shall hold their Offices during good behavior.” Anyone has a free speech right to criticize the judge’s decision extrajudicially, and anyone has a right to seek leave to file a brief with a court if (s)he feels that there is something fundamentally wrong with the judicial wheels in a matter before that court. Not all will agree with a court’s decision or proposed course of conduct, but that is what we have.

    My intention in writing the amicus brief was to educate those reading it that the Constitution matters. I thought it strange that the court, when asked to review a matter of constitutional concern, stated an intention to donate federal money to a private charity and thereby violate the Constitution and federal law. I did not intend in any way to embarass the judge, but contacting a judge on substantive matters before the court by other than written public communication in the form of a filing before the court is highly improper.

  4. politicaldoc Says:

    Mr. Serby, thank you very much for your comment.

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