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.

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