Petition for Writ of Certiorari — Robert M. Kowalski, Petitioner v. Executive Committee of the United States District Court for the Northern District of Illinois
Supreme Court briefJul 8, 2019
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In the
SUPREME COURT OF THE UNITED STATES
IN RE: ROBERT M. KOWALSKI;
Petitioner
v.
EXECUTIVE COMMITTEE FOR THE
NORTHERN DISTRICT OF ILLINOIS,
Respondent
On Petition For A Writ of Certiorari to
the United States Court of Appeals
for the Seventh Circuit
PETITION FOR WRIT OF CERTIORARI
Robert M. Kowalski, Esq.
Pro se
Inmate #20190603191
P.O. Box 089002
DIV2-D2-N-45
Chicago, Illinois 60608
INAL
FILED
JUl 0$ 2019
QUESTION PRESENTED FOR REVIEW
Whether the Order of the Executive Committee for the Northern
District of Illinois declaring that an attorney is “loud and disruptive”
and ordering him in custody of the U.S. Marshal for each and every
court appearance based upon factual findings made after ex parte
report(s) made by the U.S. Trustee is a ministerial administrative
action evading judicial review or whether it is a criminal contempt
proceeding without constitutional safeguards?
Whether the U.S. Trustee for a tactical advantage in the
bankruptcy proceedings can seek criminal contempt against an
attorney debtor by an ex parte appearance before the Executive
Committee?
LIST OF PARTIES TO THE PROCEEDING
Pursuant to Rule 14.1(b), the names of all parties appear in the
caption of the case on the cover page.
n
TABLE OF CONTENTS
Page(s)
Question Presented for Review
1
Parties to the Proceeding
n
Table of Contents
in
Table of Cited Authorities
IV
Petition for Writ of Certiorari
1
Opinions Below
1
Jurisdiction
1
Constitutional and Statutory Provisions Involved
1
Statement of the Case
2
Reasons for Granting the Writ
7
Conclusion
14
INDEX TO APPENDICES
Appendix A - Executive Committee Order of October 30, 2018 of the
United States District Court Northern District of Illinois Eastern
Division....................................................................................................
Appendix B - Executive Committee Order of November 27, 2018 of the
United States District Court Northern District of Illinois Eastern
Division ........................................................................................................
Appendix C - Executive Committee Order of December 7, 2018 of the
United States District Court Northern District of Illinois Eastern
Division
Appendix D ■ Order of April 23, 2019 of the United States Court of
Appeals for the Seventh Circuit
m
«
Appendix E - Order of June 17, 2019 of the United States Court of
Appeals for the Seventh Circuit
Proof of Service
IV
Table of Authorities Cited
Page(s)
FEDERAL CASES
Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 197, 86 L.Ed.
192 (1941)........................................................................................................ 11
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct.
1221, 93 L.Ed. 1528 (1949).......................................................................
12
Harris v. United States, 382 U.S. 162, 167, 86 S.Ct. 352, 355, 15
L.Ed.2d 240(1965)......................................................................................
9
In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1967)..,
9
Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1962)........................................................................
8
Steele v. Louisville & NR. Co., 323 U.S. 192, 207, 65 S.Ct. 226, 89
L.Ed. 173 (1944)..........................................................................................
8
Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697 2704, 41 L.Ed.2d 897
(1974)
11
United States v. Wilson, 421 U.S. 309, 315 n. 6, 95 S.Ct. 1802, 1806 n.
6, 44 L.Ed.2d 186 (1975)..................................................................... 9
Wood v. Georgia, 370 U.S. 375, 389, 82 S.Ct. 1364 1372, 8 L.Ed.2d 569
(1962)
11
Baxter International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th
Cir. 2002).......................................................................................................... 8
Habitat Educ. Ctr. v. United States Forest Serv., 607 F.3d 453 (7th
Cir., 2010)......................................................................................................... 13
In re Carlson, 224 F.3d 716, 718 (7th Cir. 2000)..................................... 12
In re Chapman, 328 F.3d 903, 904-05 (7th Cir. 2003)........................... 7
In re Dellinger, 461 F.2d 389, 394 (7th Cir. 1972).................................. 11
In re Davis, 878 F.2d 211, 212 (7th Cir. 1989).......................................... 8
In re Echeles, 430 F.2d 347 (7th Cir. 1970).............................................. 9
In re Husain, 866 F.3d 832 (7th Cir. 2017).............................................. 8
In re Long, 475 F.3d 880 (7th Cir. 2007)................................................... 7
In re Oliver, 452 F.2d 111, 114-15 (7th Cir. 1971).................................. 11
In re Palmisano, 70 F.3d 483, 484 (7th Cir. 1995).................................. 7
In re UNR Industries, Inc., 725 F.2d 1111, 1117 (7th Cir. 1984)........ 12
Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 786
F.2d 794, 795-96 (7th Cir. 1986)
12
v
Schilling v. Walworth County Park & Planning Comm'n, 805 F.2d 272,
274-75 (7th Cir. 1986).............................................................................. 8
United States v. Miller, 495 F.2d 362 (7th Cir. 1974)........................... 8
United States v. Moschiano, 695 F.2d 236, 251 (7th Cir. 1982), cert.
denied, — U.S.
, 104 S.Ct. 110, 78 L.Ed.2d 111 (1983).................... 8
United States v. Napue, 834 F.2d 1311 (7th Cir. 1988)........................ 8
United States v. Palermo, 410 F.2d 468 (7th Cir. 1969)....................... 8
United States v. Seale, 461 F.2d 345, 369-70 (7th Cir. 1972).............. 11
United States v. Solomon, 422 F.2d 1110 (7th Cir.), cert, denied, 399
U.S. 911, 90 S.Ct. 2201, 26 L.Ed.2d 565 (1970).................................... 8
Wallis v. Exec. Comm, of the U.S. Dist. Court (7th Cir. 2013)............ 9
Haller v. Robbins, 409 F.2d 857 (1st Cir. 1969)
8
In re Taylor, 567 F.2d 1183 (2d Cir. 1977)
8
Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th Cir. 2004). 9
Atlantic Fertilizer & Chemical Corp. v. Italmare, S.p.A., 117 F.3d 266
(5th Cir. 1997)..........................................................................
12
Qureshi v. United States, 600 F.3d 523, 526 (5th Cir. 2010)
9
Spruell v. Jarvis, 654 F.2d 1090, 1095 (5th Cir. 1981)........
11
Matter of Heathcock, 696 F.2d 1362, 1366 (11th Cir. 1983)
9
FEDERAL CONSTITUTIONAL PROVISIONS
I Amendment....
IV Amendment...
V Amendment....
XIV Amendment
11
10
10
8
FEDERAL STATUTES
18 U.S.C. Sec. 401 (1976)
LOCAL RULES
9
Federal Rule Civil Procedure Rule 65.1........
12
Federal Rules of Criminal Procedure Rule 42
10
General Rules for the United States District Court Northern District of
Illinois Rules 3.50-3.59............................................................
10
Executive Committee Internal Operating Procedure IOP02
13
vi
?.
Vll
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner, Robert M. Kowalski, Esq. (“Attorney Kowalski”)
respectfully prays that a writ of certiorari issue to review the judgment
below. It is especially chilling Attorney Kowalski was divested of his
constitutional rights to a trial before being held in criminal contempt.
The U.S. Trustee appeared ex parte before the Executive Committee
for a tactical advantage in Attorney Kowalski’s bankruptcy
proceedings. It is incumbent upon this Court to take action to remedy
the prejudicial severe abuse of the judiciary by the star chamber
Executive Committee Order and condemn the U.S. Trustee’s actions.
OPINIONS BELOW
The Executive Committee Order of October 30, 2018 of the
United States District Court Northern District of Illinois Eastern
Division appears at Appendix A. The Executive Committee Order of
November 27, 2018 of the United States District Court Northern
District of Illinois Eastern Division appears at Appendix B. The
Executive Committee Order of December 7, 2018 of the United States
District Court Northern District of Illinois Eastern Division appears at
Appendix C. The Order of April 23, 2019 of the United States Court of
Appeals for the Seventh Circuit appears at Appendix D. The Order of
June 17, 2019 of the United States Court of Appeals for the Seventh
Circuit appears at Appendix E.
JURISDICTION
The date on which the United States Court of Appeals decided
the case was April 23, 2019. A timely petition for rehearing was
denied by the United States Court of Appeals on June 17, 2019, and a
copy of the order denying rehearing appears at Appendix E. This
Court has jurisdiction to review under 28 U.S.C. §1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
A.
Federal Provisions
The First Amendment provides^ “Congress shall make no law
...abridging the freedom of speech, or of the press! or the right of the
people peaceably to assemble, and to petition the government for a
redress of grievances.
The Fourth Amendment states: “The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.”
The Fifth Amendment prohibits: “nor shall any person be ...
deprived of life, liberty, or property, without due process of law.”
The Fourteenth Amendment provides: “No State shall... deprive
any person of life, liberty, or property, without due process of law ....”
STATEMENT OF THE CASE
The Ex Parte Executive Committee Order
On October 30, 2018, Attorney Kowalski received an ex parte
Order emailed to him from the Clerk of the Court for the Northern
District of Illinois Eastern Division entered by the Executive
Committee in this matter (“Executive Committee Order”).
The Executive Committee ex parte Order provides, in pertinent
part:
“The Executive Committee has become aware that Robert M.
Kowalski has been loud and disrespectful of the court and court
personnel. Further, he has become verbally combative with
judges and often refuses to follow court procedures or respect the
authority of the judge.
Mr. Kowalski’s inappropriate conduct has raised concerns
among the Court, the Clerk’s Office, and the U.S. Marshals
Service.
The Executive Committee finds that there is sufficient cause for
concern regarding Mr. Kowalski’s conduct if he is not escorted
during his time in the Dirksen U.S. Courthouse in Chicago,
Illinois or the Roszkowski U.S. Courthouse in Rockford, Illinois.”
(Emphasis added).
The Executive Committee Order then sentences Attorney
Kowalski:
• To “maintain judicial security” to sign in upon arrival at
the courthouse (and surrender his identification card
upon sign-in);
2
•
•
•
To be accompanied at all times by a representative of the
U.S. Marshals Service;
To be subject to further sanctions! and
To the creation of a miscellaneous file and a
miscellaneous docket.
Attorney Kowalski appeared before Judge Cox on July 25, 2018,
August 1, 2018, August 7, 2018, August 13, 2018, August 14, 2018,
September 6, 2018, September 19, 2018, September 20, 2018,
September 26, 2018, October 2, 2018, October 4, 2018, October 9, 2018,
and October 17, 2018, with official court reporters present each time.
Transcripts are available for each appearance. No “inappropriate
conduct” or “refusal to follow court procedures” was noted by the Court.
Attorney Kowalski appeared before Judge Wood on September
12, 2018 and October 24, 2018 again with official court reporters
present each time and transcripts being available. No “inappropriate
conduct” or “refusal to follow court procedures” was noted by the Court.
Prior to that Attorney Kowalski appeared on November 8, 2017
and argued before the Seventh Circuit Court of Appeals in Kowalski v.
Boliker, 17-1952, 893 F.3d 987 (2018). Again, an official transcript is
available and no “inappropriate conduct” or “refusal to follow court
procedures” was noted.
Courts have long recognized that argument is just that argument which may at times be strident, critical and harsh. Van
Duyn v. Smith, 527 N.E.2d 1005, 173 Ill.App.3d 523 (1988) citing Sloan
v. Hatton, 66 Ill.App.3d 41, 42, 22 Ill.Dec. 783, 784, 383 N.E.2d 259,
260 (1978):
"Free speech is not restricted to compliments. Were this not so
there could be no verbal give and take, no meaningful exchange
of ideas, and we would be forced to confine ourselves to
plenitudes and compliments. But members of a free society
must be able to express candid opinions and make personal
judgments. And those opinions and judgments may be harsh or
critical--even abusive--yet still not subject the speaker or writer
to civil liability."
Attorney Kowalski is Khashoggi in the Saudi Arabian Embassy
3
Attorney Kowalski, pursuant to Federal Court Order by Judge
Cox entered on October 5, 2018, appeared as a witness for his 2004
examination in his bankruptcy case at the offices of FDIC-R’s counsel
on October 22 and 23, 2018, an official court reporter was present.
On Friday, October 19, 2018, prior to the upcoming Rule 2004
examination, FDIC-R counsel and Chapter 11 trustee discussed and
developed a concerted scheme for Attorney Kowalski’s examination.
On Monday, October 22, 2018, Attorney Kowalski appeared
without counsel for his Rule 2004 examination. Seeing Attorney
Kowalski solo, FDIC-R and Chapter 11 Trustee plotted a trap for
Attorney Kowalski for October 23, 2018.
On October 23, 2018, during the court-ordered examination,
Attorney Kowalski was assaulted and intimidated by Chapter 11
trustee, Gus Paloian. The Chapter 11 Trustee, bolstered by the FDICR in their planned subterfuge, asserted Attorney Kowalski had
assaulted the Chapter 11 trustee!
Genesis of October 30. 2018 Executive Committee Order
On October 30, 2018, FDIC-R counsel and Chapter 11 Trustee,
without Attorney Kowalski or his counsel present, appeared and
testified before Judge Cox. FDIC-R counsel testified re-writing the
assault upon Attorney Kowalski, into an assault on the Chapter 11
Trustee. The Chapter 11 Trustee also testified that Attorney Kowalski
was “the most menacing, dangerous person.” On October 30, 2018,
Judge Cox issued a rule to show cause against Attorney Kowalski.
Judge Cox did not jail Attorney Kowalski which Messrs. Rein and
Paloian sought.
U.S. Trustee Appears before the Executive Committee
Not entirely satisfied with Judge Cox’s order, FDIC-R counsel
and Chapter 11 Trustee reported the “assault” to the U.S. Trustee, on
an ex parte basis. Thereafter, prompted by the FDIC-R and Chapter
11 Trustee, the U.S. Trustee appeared on an ex parte basis without
notice to Attorney Kowalski before the Executive Committee on
October 30, 2018. The U.S. Attorney’s ex parte report to the Executive
Committee prompting the October 30, 2018 Executive Committee
Order.
On October 31, 2018, Attorney Kowalski requested information
4
relative to the Executive Committee Order noting he has been a
licensed attorney since 1990 and had comported himself accordingly.
He believed the Executive Committee Order had an underlying
improper purpose. How was Attorney Kowalski expected to practice
law while accompanied by a U.S. Marshal in the courthouse? Attorney
Kowalski received a cryptic response on November 9, 2018 stating, “the
Committee will take no further action in this matter.”
FDIC-R Admits Ganging up on Attorney Kowalski
On November 1, 2018, FDIC-R counsel and Chapter 11 Truste,
again testified before Judge Cox. Experiencing a Freudian slip, Mr.
Paloian admitted that he intentionally stood up obstructing Attorney
Kowalski’s path thereby provoking a confrontation! On November 1,
2018, FDIC-R counsel in gleefully admitted to Attorney Kowalski’s
counsel that they had “ganged up” on Attorney Kowalski and “set him
up”.
Judge Cox Punishes Attorney Kowalski with Civil Contempt bv
Incarceration?
Judge Cox, having been provided with the October 30, 2018
Executive Committee Order, finding Attorney Kowalski essentially
dangerous needing a police escort and implying she is unable to
maintain courtroom decorum, was an order which directed her to hold
Attorney Kowalski in contempt to punish him, and accordingly jailed
him with the purge being the production of unknown documents. How
exactly Attorney Kowalski was to “produce documents” while in
custody? This does not exactly provide him with the keys to his own
cell.
Attorney Kowalski taken into custody on November 1, 2018 was
then held in the Metropolitan Correctional Center in the “Special
Housing Unit” which is essentially “the hole” or “solitary confinement”
(and denied access to his counsel) from November 1, 2018 through
November 8th. His solitary confinement was based upon the Executive
Committee ex parte Order finding Attorney Kowalski dangerous.
Clearly, the Executive Committee was manipulated by the U.S.
Trustee in league with the FDIC-R and conflicted Chapter 11
5
Trustee Tor an improper purpose namely to bully and coerce Attorney
Kowalski and get a leg up tactical advantage in the pending litigation.
The U.S. Trustee abjectly fails at its purpose which is to protect the
integrity of the bankruptcy system by acting in active concert and
league with a fraudulent creditor. The U.S. Trustee exceeded its role
to oversee case administration and enforce bankruptcy laws.
Manipulating the Executive Committee with ex parte false claims is
even more egregious when a government agent is using the power of
the Executive Committee to perpetrate a fraud by a creditor upon the
court.
FDIC-R Presents Fraudulent Claims
The FDIC-R has presented fraudulent falsified claims in
Attorney Kowalski’s bankruptcy. Seeking a scapegoat to blame for its
lax sketchy auditing practices, the FDIC-R has presented fraudulent
claims totaling $27,185,728.90. Attorney Kowalski is no crack pot
conspiracy theorist.
Although seeming outlandish, the truth is stranger than fiction.
Attorney Kowalski’s allegations of FDIC-R fraud were verified by none
other than the United States government itself in an official report.
The FDIC was appointed receiver of the failed institution Washington
Federal Bank for Savings (“WaFed”) by the Office of the Comptroller of
the Currency (“OCC”).
US Treasury Verifies FDIC-Rs Fraudulent Claims
The United States Department of the Treasury Office of the
Inspector General (“OIG”) Audit Report, OIG-19-009, authored by
Jeffrey Dye, the Director of Financial Regulation and Oversight filed
on November 6, 2018 details the Material Loss Review of WaFed
(“Audit Report”). The OIG Audit Report by the United States
Department of the Treasury confirms the massive fraudulent loan
scheme perpetrated by WaFed! The FDIC-R is seeking payment upon
the fraudulent falsified loan scheme.
Contrary to the Executive Committee Order, Attorney Kowalski
is not a dangerous crack-pot conspiracy theorist, but rather the
undisputed victim of the failed institution. This massive fraudulent
1 The chapter 11 trustee should have been disqualified due to the
simultaneous representation of the three larges creditors of the estate.
6
falsified loan scheme has been verified by none other than the U.S.
government, itself. Nonetheless, the FDIC-R is continuing to
perpetrate this fraudulent loan scheme against Attorney Kowalski and
the bankruptcy court by intentionally presenting fraudulent loan
claims. In furtherance of the scheme, the FDIOR’s attorneys, Rein
and Paloian, have made false representations to the Court and
manipulated the Executive Committee.
Executive Committee Manipulated to Perpetrate FDIC-R Fraud
Not only is the FDIC-R perpetrating a fraud upon the
bankruptcy court and the U.S. Trustee, but it has enlisted the Court’s
Executive Committee on an ex parte behind-the-scenes “star chamber”
basis to prey upon the hapless debtor, Attorney Kowalski, by branding
him dangerous, all-the-while trampling upon his constitutional rights.
The Executive Committee conducting ex parte proceedings
violates Attorney Kowalski’s constitutional rights and also the Court’s
judicial ethics responsibility to not consider communications made to
the judge outside the presence of the parties or their lawyers. Attorney
Kowalski was not given the opportunity to respond and this ex parte
communication was not for scheduling, administrative or emergency
purposes. It was done specifically so that one party, the FDIC-R,
would gain a procedural, substantive, or tactical advantage as a result
of the ex parte communication, to gain this Court’s assistance to
further its fraudulent loan scheme. This is nothing but a FDIC-R
cover-up of the highest order, victimizing Attorney Kowalski in the
process. How do we know FDIC-R is perpetrating a fraud upon this
Court? Again, the United States Department of the Treasury Audit
Report has officially confirmed the same.
No Day in Court for Attorney Kowalski
Attorney Kowalski filed a Motion to Vacate the October 30, 2018
Order. However, he was unable to present it - the presentment date
being stricken. On November 27, 2018, the Executive Committee
issued an Order denying Attorney Kowalski’s Motion to Vacate without even allowing presentment of the motion.
On April 23, 2019, the Seventh Circuit dismissed Attorney
Kowalski’s appeal for lack of jurisdiction likening the Executive
Committee Order to a ministerial administrative order similar to
7
ejecting an “unruly” customer from a restaurant. This analogy must
fail. An unruly customer is patent to all present who can personally
observe the objectionable behavior. Here, Attorney Kowalski was
castigated as “loud and disruptive” by the Executive Committee
(despite audio tapes to the contrary of all court appearances) based
upon closed door back room whispered conferences between unknown
actors. Moreover, calling the Order as administrative nonetheless fails
to accord with due process considerations as Attorney Kowalski was
not accorded any due process safeguards. On June 19, 2019, the
Seventh Circuit denied Attorney Kowalski’s Motion for Rehearing.
REASONS FOR GRANTING THE PETITION
I.
Whether the ex parte Executive Committee Orders
violated Attorney Kowalski’s Constitutional Rights?
Injunction
The Executive Committee Order has the effect of an injunction
and is therefore appealable. In re Chapman, 328 F.3d 903, 904-05 (7th
Cir. 2003) (per curiam); In re Palmisano, 70 F.3d 483, 484 (7th
Cir.1995); In re Long, 475 F.3d 880 (7th Cir., 2007). The Executive
Committee Order requires Attorney Kowalski to be taken into custody
in the Federal courthouse buildings. It requires Attorney Kowalski to
surrender his identification card to the U.S. Marshal for access to the
buildings. It denies Attorney Kowalski s range of motion within the
courthouses. It interferes with Attorney Kowalski s ability to engage
in dialogue with clerks and court personnel. It interferes with
Attorney Kowalski’s ability to practice law. What client wants an
attorney in federal custody to represent him or her? The U.S. Marshal
prohibits Attorney Kowalski from accessing courtrooms, being in the
physical proximity of court personnel, physically inserting the Marshal
between Attorney Kowalski and the court personnel, presenting a
barrier to dialogue, relegating Attorney Kowalski to having to shout
over the Marshal barrier, and impeding Attorney Kowalski’s simplest
courthouse tasks such as filing a motion, scheduling a date, and
tendering courtesy copies. The Executive Committee Order affects
Attorney Kowalski’s ability to conduct business on a daily basis. It is
undoubtedly an injunction.
Jurisdiction
8
This Court has jurisdiction to hear this appeal. The ex parte
Executive Committee Order imposing sanctions upon Attorney
Kowalski can only be considered a judicial act. The Executive
Committee Order reflects the Committee “became aware” of Attorney
Kowalski’s conduct. The source of the awareness is not disclosed.
Attorney Kowalski believes the FDIC-Rs counsel, Messrs. Rein and
Paloian, are the genesis for the awareness. Attorney Kowalski’s
nebulous conduct is being “loud” and “disrespectful”. Yet, Attorney
Kowalski’s appearances are all recorded on transcripts and Attorney
Kowalski’s courtroom conduct is monitored by U.S. Marshals. No
aberrant courtroom conduct was ever noted! Yet, the Executive
Committee nonetheless “became aware” of the loud disrespectful
conduct by unknown sources. The Executive Committee’s awareness
can only be from testimonial or documentary evidence from unknown
individuals. Entertaining the testimony and judging the credibility of
these unknown individuals can only be a judicial function.
Further, Executive Committee actions such as disbarment of an
attorney is a judicial action. In re Palmisano, 70 F.3d 483 (7th Cir.
1995). Sanctions against Attorney Kowalski is similarly a judicial
action. This Court has jurisdiction over this appeal because the
Executive Committee of the U.S. District Court's imposition sanctions
on Attorney Kowalski is a judicial action rather than an administrative
action. Even though the Executive Committee is an "administrative
arm" of the district court, Palmisano, 70 F.3d at 484, it is capable of
exercising judicial power, Id. at 485. The Committee's action in
prospectively controlling an attorney’s liberty in the courthouse is most
appropriately characterized as a judicial action, because it directly
impacts his ability to access the court. Furthermore, such restrictions
are referred to as "injunctions," see Davis, 878 F.2d at 212, which are
judicial remedies. See Steele v. Louisville & NR. Co., 323 U.S. 192,
207, 65 S.Ct. 226, 89 L.Ed. 173 (1944) ("the usual judicial remedies of
injunction and award of damages"). This Court should be convinced
that the Executive Committee's imposition of sanctions upon Attorney
Kowalski is a judicial action under the general and inherent authority
of the court to control and regulate its own affairs, see Davis, 878 F.2d
at 212; Schilling v. Walworth County Park & Planning Comm'n, 805
F.2d 272, 274-75 (7th Cir.1986); see also Link v. Wabash R.R. Co., 370
U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), this Court has
jurisdiction over this appeal and can proceed to the merits of Attorney
9
Kowalski’s arguments. In re Chapman, 328 F.3d 903 (7th Cir., 2003)
Ex Parte Executive Committee Order Violates Attorney Kowalski’s
Due Process Rights
The injunction violates Attorney Kowalski’s Fourteenth
Amendment right to due process because it was issued without notice
or an opportunity for him to be heard. Ex parte communications are
disfavored. They should be avoided whenever possible and, even when
they are appropriate, their scope should be kept to a minimum. Courts
have discussed in other contexts the dangers of allowing ex parte
proceedings in criminal cases. See, e.g., In re Taylor, 567 F.2d 1183
(2d Cir. 1977); United States v. Miller, 495 F.2d 362 (7th Cir. 1974);
United States v. Solomon, 422 F.2d 1110 (7th Cir.), cert, denied, 399
U.S. 911, 90 S.Ct. 2201, 26 L.Ed.2d 565 (1970); United States v.
Palermo, 410 F.2d 468 (7th Cir. 1969); Haller v. Robbins, 409 F.2d 857
(1st Cir. 1969); U.S. v. Napue, 834 F.2d 1311 (7th Cir., 1988). There is
no secrecy to maintain, no reason to depart from the strong norm that
judicial proceedings are open to public view. See, e.g., Baxter
International, Inc. v. Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002);
In re Husain, 866 F.3d 832 (7th Cir., 2017). Federal courts may not
impose injunctions without giving litigants notice and a chance to
respond. See, e.g., Qureshi v. United States, 600 F.3d 523, 526 (5th
Cir. 2010); Cromer v. Kraft Foods N. Am., Inc., 390 F.3d 812, 819 (4th
Cir. 2004) (collecting cases); Wallis v. Exec. Comm, of the U.S. Dist.
Court (7th Cir., 2013). Further, prior to disciplining Attorney
Kowalski, the essential requirements of any such proceeding are notice
and the opportunity to be heard. In re Ruffalo, 390 U.S. 544, 88 S.Ct.
1222, 20 L.Ed.2d 117 (1967); In re Echeles, 430 F.2d 347 (7th Cir.,
1970).
Ex Parte Executive Committee Order Was an Indirect Criminal
Contempt
The ex parte proceedings before the Executive Committee
violated Rule 42, Federal Rules of Criminal Procedure. The ex parte
October 30, 2018 and November 27, 2018 proceedings were principally
a criminal contempt trial in absentia, and compliance with Rule 42
was required. Federal courts' contempt power is regulated by statute
and rule. 18 U.S.C. Sec. 401 (1976); Rule 42, Federal Rules of
Criminal Procedure; see United States v. Wilson, 421 U.S. 309, 315 n.
10
6, 95 S.Ct. 1802, 1806 n. 6, 44 L.Ed.2d 186 (1975) (Rule 42 applies the
contempt power defined in section 401). Section 401 recognizes two
types of contempt: direct and indirect. Direct contempt is
contumacious conduct committed in the actual presence of the court,
Matter of Heathcock, 696 F.2d 1362, 1365 (llth Cir.1983), and may be
punished summarily, Wilson, 421 U.S. at 316, 95 S.Ct. at 1806. "In the
actual presence of the court" does not limit direct contempts to those
which take place in a courtroom, but some degree of the formality
usually found in the courtroom setting must accompany an exercise of
the judicial function so that the proceedings are "in the actual presence
of the court." Matter ofHeathcock, 696 F. 2d at 1366. There are two
further conditions which must be met before a contempt may be
punished summarily. First, time must be of the essence in dealing
effectively with the contempt. Wilson, 421 U.S. at 319, 95 S.Ct. at
1808; United States v. Moschiano, 695 F.2d 236, 251 (7th Cir.1982),
cert, denied, --- U.S. —104 S.Ct. 110, 78 L.Ed.2d 111 (1983). Second,
there must be some "compelling reason for an immediate remedy." Id.
All other contumacious conduct is indirect contempt the exclusive
remedy for which is provided by Rule 42(b). Harris v. United States,
382 U.S. 162, 167, 86 S.Ct. 352, 355, 15 L.Ed.2d 240 (1965) ("Rule
42(b) prescribes the 'procedural regularity' for all contempts in the
federal regime except those unusual situations envisioned by Rule
42(a) where instant action is necessary to protect the judicial
institution itself').
Attorney Kowalski was charged with four allegedly
contumacious acts: (l) loud and disrespectful of the court and court
personnel; (2) verbally combative with judges! (3) often refuses to
follow court procedures or (4) respect the authority of the judge. All
this conduct, if indeed it occurred, could only be considered a direct
contempt as it took place before the court. Yet, no direct contempt was
noted by any judge before which Attorney Kowalski appeared.
Rule 42(b) provides the exclusive procedure for dealing with
Attorney Kowalski’s alleged conduct. The ex parte Executive
Committee proceedings was flawed violating Rule 42(b) as the
Executive Committee was an improper tribunal to try Attorney
Kowalski’s contempt. The October 30, 2018 and November 27, 2018
Executive Committee Orders clearly hold Attorney Kowalski in
contempt and sentence him to surrender his liberty in order to enter a
federal courthouse suffering a police escort. The Fourth Amendment
11
prohibits this sort of unreasonable seizure by the government. An
attorney subject to discipline might face fine, censure, suspension, or
disbarment, but he would not face deprivations of his liberty or
imprisonment. Attorney Kowalski was not provided with any of his
Fifth or Sixth Amendment rights and was deprived and continues to be
deprived of his liberty and property right in practicing law all without
presentment or indictment, to be informed of the nature and cause of
the accusation, a speedy trial, a public trial, an impartial jury trial,
right to confront witnesses against him, compulsory process, assistance
of counsel, and right against compelled testimony. Because the
proceedings below were not an attorney disciplinary proceeding, the
Executive Committee was not the proper tribunal to try the
proceeding.
The Executive Committee, established by local rules of the
Northern District of Illinois, is charged with administering and
conducting the business of the district court; it is solely an
administrative body. The Executive Committee may conduct attorney
disciplinary proceedings, but it may not hear contempt proceedings.
See Rules 3.50-3.59, General Rules for the United States District Court
Northern District of Illinois; 4 Wright & Miller, Federal Practice and
Procedure: Civil Sec. 1019 (1969). Procedure in a contempt hearing
conducted pursuant to Rule 42(b) is no different than in any other
criminal trial. 8B Moore's Federal Practice p 42.05 (2d ed. 1983).
Whatever else the Executive Committee may be, it is not a "court"
empowered to conduct criminal trials. The Executive Committee
exceeded its jurisdiction in holding Attorney Kowalski in criminal
contempt. The court should accept the petition for writ to reverse.
As an aside, Rule 42(b) notes that if, “the contempt charged
involves disrespect to or criticism of a judge, that judge is disqualified
from presiding at the trial or hearing except with the defendant's
consent.” Where the allegedly contumacious conduct so provokes the
judge reviled that he or she becomes personally embroiled in the
controversy, or where there is such a likelihood of bias or the
appearance of bias that the judge is unable to hold the balance
between vindicating the interests of the court and the interests of the
accused, or where the conduct involves an insulting attack on the
integrity of the judge, then recusal is required. Taylor v. Hayes, 418
U.S. 488, 501, 94 S.Ct. 2697 2704, 41 L.Ed.2d 897 (1974); Spruell v.
Jarvis, 654 F.2d 1090, 1095 (5th Cir.1981); In re Dellinger, 461 F.2d
12
389, 394 (7th Cir.1972). Given the ex parte nature of the proceedings,
it is unknown to which judge the loud disrespect was alleged or the
composition of the Executive Committee panel. Accordingly, Rule
42(b) may be implicated as to recusal. However, for these proceedings
the criminal sanctions and “further sanctions” against Attorney
Kowalski must fail because it is clear that all of the sanctions imposed
by the Executive Committee were the result of the Committee’s
conclusion holding Attorney Kowalski in contempt. Because that
holding was flawed the sanctions must fail.
Attorney’s Spirited Argument is Protected bv the First Amendment
Attorney Kowalski’s loud, disrespectful argument, if any, is
conduct protected by the First Amendment and therefore cannot be
ground for contempt. To be contemptuous a publication must actually
interfere with the orderly administration of justice. Bridges v.
California, 314 U.S. 252, 270, 62 S.Ct. 190, 197, 86 L.Ed. 192 (1941).
An inherent tendency or a reasonable tendency to interfere is not
enough. Id. at 273, 62 S.Ct. at 198. See Wood v. Georgia, 370 U.S. 375,
389, 82 S.Ct. 1364 1372, 8 L.Ed.2d 569 (1962) (in absence of showing of
substantive evil actually designed to impede course of justice,
utterances entitled to protection). Here there is no showing that
Attorney Kowalski’s allegedly loud, disrespectful argument actually
interfered with the administration of justice in any manner; therefore,
this speech is entitled to protection. In re Oliver, 452 F.2d 111, 114-15
(7th Cir.1971).
Attorney Kowalski was not provided with the opportunity to
appear before the Executive Committee and never responded to the
merits of any “awareness” of the Executive Committee. To amount to
contempt, conduct must constitute a material disruption or obstruction
of the judicial process and the court must enter findings concerning
that disruption or obstruction. United States v. Seale, 461 F.2d 345,
369-70 (7th Cir.1972); In re Dellinger, supra, 461 F.2d at 400.
Rippling Prejudicial Effects of the Executive Committee Order
The Orders branding Attorney Kowalski as an enemy of the
state prejudiced Attorney Kowalski in other proceedings. Attorney
Kowalski was greatly prejudiced by the wide distribution of the ex
parte Executive Committee Order to all judges throughout the
courthouse. The Executive Committee Orders advise judges that
13
Attorney Kowalski is a dangerous security risk requiring a police
escort. The Executive Committee Orders are just that Orders directing
all the judges within the Northern District of Illinois and being widely
disseminated.
Upon receipt of the Executive Committee Order, Judge Cox
viewed this as a direct affront to her authority to maintain her
courtroom decorum. Judge Cox immediately jailed Attorney Kowalski
to punish his civil contempt. Judge Cox jailed Attorney Kowalski in
solitary confinement for a week requiring him to purge his contempt by
the production of documents. On November 28, 2018, a day after the
Executive Committee’s November 27, 2018 Order, Judge Cox also
entered an order converting Attorney Kowalski s Chapter 11
reorganization bankruptcy proceedings to Chapter 7 liquidation
proceedings.
On October 24, 2018, a mere six days prior to the Executive
Committee Order, Attorney Kowalski had argued a Motion to Stay
before Judge Andrea Wood in 18-cv05388. The October 24, 2018
Minute Order reflects a decision to be forthcoming in “short order”. On
October 30, 2018, the Executive Committee Order was entered and
distributed. Thereafter, no decision was forthcoming in “short order.”
The Executive Committee Order denying Attorney Kowalski’s Motion
to Vacate was entered and distributed on November 27, 2018. Not
coincidentally, Judge Wood’s Order denying Attorney Kowalski’s
Motion to Stay was denied, the very next day, on November 28, 2018.
Injunctions require the posting of a bond. The purpose of the
bond is to protect pay any damages for losses caused by the injunction
should the party who obtained the injunction and thus caused the loss
fail to pay the damages, then the injured party can proceed against the
surety directly. Fed.R.Civ.P. 65.1. An order denying an injunction
bond, a supersedeas bond (as security for a stay of execution of
judgment), or any other request for security to protect a litigant, is
immediately appealable. E.g., Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); In re
Carlson, 224 F.3d 716, 718 (7th Cir.2000); Olympia Equipment
Leasing Co. v. Western Union Telegraph Co., 786 F.2d 794, 795-96 (7th
Cir.1986); In re UNR Industries, Inc., 725 F.2d 1111, 1117 (7th
Cir.1984); Atlantic Fertilizer & Chemical Corp. v. Italmare, S.p.A., 117
F.3d 266 (5th Cir.1997); Habitat Educ. Ctr. v. United States Forest
Serv., 607 F.3d 453 (7th Cir., 2010). No bond was posted to protect
14
Attorney Kowalski. It would add insult to injury to suggest the ex
parte injunction which prejudices the entirety of the judiciary of the
Northern District of Illinois against Attorney Kowalski is a harm for
which no remedy can be fashioned or for which he suffered no
damages. The appropriate remedy for the Executive Committee’s
action is not merely to vacate the Executive Orders.
Beniamin Franklin at the Cocknit
On January 29, 1774, dutiful servant of the British crown,
Benjamin Franklin was called to appear before King George’s Privy
Council - a select group of the king’s advisors - in an octagonal-shaped
room in Whitehall Palace known as the Cockpit. The Privy Councillors
and common-law judges comprised the Star Chamber. Solicitor
General Alexander Wedderburn unleashed a withering tirade against
Franklin, spurred by the jeers and applause from the audience in the
Cockpit. Up until his Cockpit ordeal, Franklin was steadfastly
committed to achieving “an accommodation of our differences.”
However, Franklin left the Cockpit as a budding American
revolutionary.
Franklin was able to confront his accuser! Attorney Kowalski
was not. Franklin’s Star Chamber was established to ensure fair
enforcement of laws. The Executive Committee is duty bound to
administer and conduct business of the court. IOP02. FDIC-Rs
attorneys appeared before the Executive Committee Cockpit
whispering falsities against Attorney Kowalski subjecting him to
criminal sanctions without notice or an opportunity to be heard.
Franklin’s Star Chamber became synonymous with social and political
oppression through its arbitrary use and abuse of its power. In modern
usage, “star chamber” can mean where a powerful person uses a legal
privilege to condemn a person. Here, the FDIC-R abused its position
with the Executive Committee to condemn Attorney Kowalski in a
secretive proceeding. The United States Constitution prohibits bills of
attainder - the practice of declaring a person guilty of crime and
punishing them often without trial. This conspiratorial framework
cannot withstand constitutional scrutiny or the transparency of our
United States government. Benjamin Franklin left the Cockpit a
revolutionary in the making. Attorney Kowalski left the Executive
Committee cockpit jailed and impoverished. It is incumbent upon this
Court to entertain the writ to end these star chambers. For, once
people lose faith in the rule of law, the door to anarchy opens.
15
CONCLUSION
In light of the above, Attorney Kowalski was denied of his
constitutional rights guaranteed by the First, Fourth, Fifth, Sixth and
Fourteenth Amendments which subjected him to criminal and further
sanctions by the Orders of the Executive Committee based upon ex parte
back room whispers to this star chamber. If the guarantees of democracy
and rule of law are to be upheld, these star chambers must be exposed,
rooted out and harshly condemned. Attorney Kowalski urges that the
petition for a writ of certiorari shouldbe granted.
Dated: June 27, 2019
ispacl
-ODei
Pro se Petitioner
Inmate #20190603191
P.O. Box 089002
DIV2-D2-N-45
Chicago, Illinois 60608
f"
A
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.