Petition for Writ of Certiorari — Reilly v. Weiss

Sspreme Court, U.S

r { . = s

041686 OCT 18 2008

No.

In The Supreme Court of the United States

Paul A. Reilly, ¥3

Petitioner(s)

Alvin Weiss, Philip M. Freedman, Richard C. Camp,

Arlene Albino, Toby Kleinman, Ilene Miklos,

Timothy Welles, Mathias Hagovsky, David

Brodzinsky, James Wulach, and Theresa M. Pagano

Respondent(s)

On Petition for Writ of Certiorari

to the Third Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Paul A. Reilly, Pro Se

153 Park Avenue

Randolph, N.J. 07869

(973) 945 - 1078

QUESTIONS PRESENTED

Former Third Circuit Chief Judge Becker’s testimony before

the Commission on Structural Alternatives for the Federal Courts of

Appeals shows a structured bias against pro se litigants and cases

whereby judicial function(s) are performed by duly appointed

appellate judges in counseled cases but are “abdicated” to staff

attormeys in pro se cases. His reasons are statistics show pro se

cases have no merit and / or are handwritten and / or are “gibberish”

and thus must be accorded less weight. The appellate panel in this

matter merely, but surprisingly, denies that they distinguish pro se

litigants and cases in such manner. The Circuit, denying en banc

review, is silent.

Judge Becker’s candor is exactly related to the issues.

Counseled cases are disposed of by judges to prevent “cases from

slipping through the cracks.” Such slippage in the search for the

truth has a direct bearing as the District Judge twice imposed restraints

on plaintiff's right of access to the court without notice or hearing

prior to judgment. Her Honor subsequently called for the filing of a

brief on a “Motion to Vacate”. The merits have never been addressed

but the order entered disposed of the matter as a motion for rehearing.

(1) Whether the Third Circuit is competent to decide the issues

presented because said judges have “abdicated their judicial duties”

to staff attorneys’; and whether the three judge panel’s denial of the.

facts showing staff attorneys perform judicial functions and the en

banc panel’s knowledge they are likely to be material witnesses

concerning said matters renders the Circuit incompetent to decide

the issues.

(2) Whether restraints on access to the court, first without

notice and hearing, and later by silently changing the motion to

vacate into a motion to rehear violates the right to adequate notice

and opportunity to be heard.

(3) Whether the Circuit and District Court judgments are void.

Table of Contents

Questions Presented a i

Table of Authorities ............:sscesscssseesessseesereseesnnnennaannaanenens TT

Citation of Opinions and Order .........-.-s-sssceseseseeeneneneenenenee |

Statutory Jurisdiction .........scscscecesseeseseeesesseessssanennanananenanenens |

Statement of Facts Material to Consideration ibn 2

Reasons for AHOWINg WII ..........eseeceeeseeeeeeeeeseteneennennnenennnnts 5

CONChISION .......0.:00......0-..ccsseeessossenessnsssnsnnsssnsscsmassonasoonssssess 17

Appendix, Statutes, & Transcript* under Separate Cover

*Transcript of Chief Judge Becker's Testimony before the

Commission on Structural Alternatives for Federal Courts of

Appeals

--

Table of Authorities

2B U.S.C. § 45S ...cccrcccccrsccssscsccscsscccresssnsccsssscssscssosocss 6,10,11

28 U.S.C. § 46 Be 47 .....cccecsccccccccssscccsssenerccssssssccssssscsssssesecs 6

28 U.S.C. § 1254 (1) .......cccccecccssssssceccrecesserecscssncssssconssescoees l

Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3rd

Che, BOTBY wencccsncenscosecscsnsncssacncensesiscssscccsssnsesscntacsssenscondsnsesenen 6

Antoine v. Atlas Turner, Inc., 66 F.3d 105, 106

(6th Cir. 1995) ...........cccccsscsssssssccscsascsccsseecsssasssosceesssssssecees 17

Arnold v. Eastern Air Lines, Inc., 712 F.2d 899, 904

(4th Cir. 1983), cert. den. 464 U.S. 1040 ( UE cincsismnadindeanes 6

Barnes v. Chicago, M. & St. P.R. Co. 122 U.S. 1, 14 (1887)

sil deenenenieivilelaastaiiielssenaciabesintnandnanbunensssebinaeaccsenuiseemeainennennns 17

Berger v. United States, 255 U.S. yc ie Ty, | | neon il

Bouvier’s Law Dictionary, 1856 .............--::s-:sssseseeeceeeeees 9,16

Carter v. Fenner, 136 F.3d 1000, 1005 (Sth Cir. 1998) ...... 17

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542

(19BS) ......00.00:eccsccserssnsecseccscesccsenscorenrecnsesscssosscscnccsscsecsosoeses 15

Eberhardt v. Integrated Design & Construction, Inc., 167 F.3d

861, 871 (4th Cir. 1999) ................ccceceeresseceeseseens en 17

Evans v. City of Chicago, 10 F.3d 474 (7th Cir. 1993) ......... 17

Fad, BR. Civ, BP GS ..nnsecenseccerecesecssscsscoscossvesccseronsessonconns peices 15

iil

cana ue neeanstinasas apmemammammmmaaiialiia:. |

Fed. R. Evid. G05 ............csecsscssesscsnssnsersnssceseennssnsnsenssnsoreets 10

Fed. R. Evid. 605, Notes of Advisory C ommittee on Rules

ee _cuasnssusansnnnsonnansancnasnouscssssssnsnnstsattsacicsneneenaannns 11,13

Forman v. Davis, 371 U.S. 178 ( 19G2) .........csccseoccccceseseseees 16

Fuentes v. Shevin, 407 U.S. 67, BO (1994) ....eeeeeeeeeeeeeeeeeeee 14

Gagliardi v. McWilliams, 834 F.2d 81, 83 (3rd Cir. 1987) ... 15

Goldberg v. Kelly, 397 U.S.. 254, 268 (1970) ......-----2eeeeee+ 15

Herzog Contracting Corp. v. McGowen Corp., 976 F.2d 1062,

1065 (7th Cir. 1992) ........----cecesseseeseressesensnsnsnsenserbocsencnensens 16

In Re Center Wholesale Inc., 759 F.2d 1440, 1448 (9th Cir.

In Re Hartford Textile Co., 613 F.2d 388, 390 (2nd Cir. 1979),

cert. den. 447 U.S. 907 ........-.-c--secsesnssesnserssenenesnsnennscenesnenes 15

In Re Oliver, 682 F.2d 443, 445 & n.5 (3rd Cir. 1982) ......- 15 -

In Re School Asbestos Litigation, 977 F.2d 764, 778 (listing

cases) (3rd Cir. 1992) ......-----c-cccesreneereesessessnensnsssenscesseeeees 6

Inmates of Suffolk County Jail, 129 F.3d at 622: Cody v. Hillard,

304 F.3d 767, 774 (8th Cir. 2002) | «.------------- lndialeioltie 16

Jackson v. Virginia, 443 U.S. 307, 337 & n. 10(1979) (Stevens,

J. GRRE) oan a.-------n2nensansnnsonennnsaensnenceusnsenseasencenenensserorees 6

Kugler v. Helfant, 421 US. 117, 124-125 & n.4 ( >) 6

iV

Lilieberg v. Health Services Acquisition Corp., 486 US 847, $58

11.7 (1988) ...cscesccssescsscsceessesseesessescsecesssensnssecasensecesscensneenens 10

Liteky v. United States, 114S. Ct. | 147, 1153 (1994) ........ 10

Mayor & Alderman of the City of Vicksburg v. Henson, 231 U.S.

259, 269 (1913) ..cescecercescsecsceresceectenssssressseneesnenassaceanesens sens 15

Michigan Sur. Co. v. Service Mach. Corp., 277 F.2d 531 (Sth

Cir. 1960) .u.....ececceesessceccsscssceccsecsscsccsecsrsensssssssnesensensensensans 17

Morgan v. United States, 304 U.S. 1, 18 (1938) ..........220- 15

Morris v. Gilmer, 125 U.S. 315, 325-326 (1889)..........--. 5,14

Mullane v. Cen. Hanover Trust Co., 339 U.S. 206, 314(1950)14

Nguyen v. United States, 539 U.S: 69 (2003) .....2c2ceeeeeeeeeeeees 5

Old Wayne Mut. Life Ass'n. v. McDonough, 204 U.S. 8,17

(1907) ......:-cscscscssssssssssesscscscecssnsssesesscacnsnansasesorarosocosacosacasoes 16

Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) ....... 17

Osterneck v. Ernest & Whinney, 49 U.S. 169, 174-177 (1989)

sdcbiemnistatiaandensnan detainee siesnesitieibcsaiensibaeeitatiese am

Rehnquist, William H., The Supreme Court (Revised and

Updated) First Vantage Books Edition, NYC, 2002. ............. 7

Reynolds v. Stockton, 140 U.S. 254,268 (1891 ..........-eeeeeee 17

Sladana v. Kmart Corp., 260 F.3d 228, 232 (3rd Cir. 2001) 14

State of Minnesota v. Northern Securities Co., 194 U.S. 48, 62

Switzer v. Coan, 261 F.3d 985, 989 (10th Cir. 2001) .... 12,14

U.S. v. One Toshiba Color Television, 213 F.3d 147, 156-157

(3rdCir. 2000) .............scccererersceeserosesenes entodecieccosesesseesssaesuns 15

United States v. Sorrells. 714 F.2d 1522. 1527 n.6 (1 1th Cir.

BORD) .....-nccococcnssecessecsssectocscssnscssnesscssssssososossocsssscessspesesessenns 12

United States v. Lewis, 833 F.2d 1380, 1385-86 (9th Cir. 1987)

United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950) ..16

United Switch & Signal Div., American Standard Inc. v. United

Radio and Mac. Workers of America, Local 610, 900 F.2d 608,

612 (3rd Cir 1990) .............cccscccescseeseseenseneenesenecsnnesnnnnnenees 17

Virgin Islands v. Gereau. 523 F.2d 140, 147-48

(3d Cir. 1975) ........ccccceeccecsccscssncssenscenssensssosssscssenssensssenseenes 12

White v. New Hampshire Dept. of Employment Security, 455

U.S. 445, 451-452 (1982) ..........cccecseeesseercenecsnreesnnscnrsennsens 16

Windsor v. McVeigh, 93 U.S. 274, 282 (1876) .......----ssss+ 17

Wm. Cramp Sons v. Curtis Turbine Co., 228 U.S. 645, 651-652

(9913) cccerccssesececesnessocsnsrseccoscesssnsnsunessennssascsssnssnenessinnena 6,12

Yohn v. Love, 76 F.3d 508, 516 (3rdCir. 1996) ...........---+-+ 25

Zinermon v. Burch, 494 U.S.. 113, 132 (1990) ..........-.--+-++- 24

vi

CITATION OF OPINIONS AND ORDERS

The opinion of the court of appeals, dated, March 10, 2004, is

unreported. | V 5-11. Motion for Rehearing with Suggestion for

Rehearing En Banc was denied in an order dated July 19, 2004. 3

LV 86-87. The opinions and orders of the district court filed from

December 26, 2001 and July 18, 2002, (specific references are

made below) are also unreported. LV 12-45.

JURISDICTION

The judgment of the court of appeals was entered on March 10,

2004. A petition for rehearing with suggestion for rehearing en banc

was denied on July 19, 2004.

The District Court has jurisdiction pursuant to 28 U.S.C. § 1331

and § 1343 . Itison remand from the Third Circuit Court of Appeals.

LV 16.

The jurisdiction of this court is invoked under 28 U.S.C. 1254(1).

STATEMENT

The Plaintiff respectfully petitions for a writ of certiorari to review

the judgment of the United State Court of Appeals for the Third

Circuit in this case.

1. On November 13, 2001 the Clerk of the District Court of New

Jersey requested the defendants’ attorneys each submit a form of

order on mandate, noting the order of the district court is affirmed.

1 V 16-27. The submissions all stated the Complaint was dismissed

as to the particular defendants with prejudice. I V 28-37. The circuit

order however dismissed without prejudice to the minor. I V 82.

On November 26, 2001 the district court judge was informed of

the discrepancy, | V 48, and Plaintiff subsequently submitted a form

of order. LV 44-51. Between November 30, 2001 and March 6,

2002 the district judge entered orders on mandate dismissing the

complaint with prejudice and did not mention it was dismissed without

prejudice to the minor. | V 28-37. Furthermore, without notice or

opportunity to be heard, the district judge issued a directive that

“ordered the Clerk of the Court not to accept further motions

regarding this matter; ***. 1V 15. Appeal was taken January 2,

2002. LV_12.

2. In a sua sponte order entered April 25, 2002 the district judge

issued far reaching restraints on Plaintiff's access to the courts and

again the order was entered without notice or opportunity to be

heard prior to entry. LV 39-42. This order was appealed May 1,

2002. 1 V_12.

3. On May 14, 2002 Plaintiff wrote the district judge noting the

April 29, 2002 motion to vacate and stay the April 15, 2002 had

not been docketed. I V 52-53. The Letter went on to note the

circuit had had been informed. Id. The district judge responded by

Stating she had received the aforesaid letter and was (1) construing

it as a “motion to vacate” and (2) that a brief may be filed in support

of the motion. | V 50. The brief was “received” on May 16, 2002,

but never entered on the docket. I V_56. The brief argued the

restraints were void (1) for lack of notice and opportunity to, be

heard and (2) the procedure offered the average person as judge

the possible temptation not to hold the balance nice, clear and true.

LV 56-70.

4. On July 15, 2002 the district judge entered an order which treated

the motion to vacate as a motion for reconsideration and consequently

affirmed the April 11, 2002 order. 1 V 44. Appeal was taken August

14, 2002. LV 43.

5. On September 5, 2002 a motion for disqualification and to correct

the record was filed in the district court, LV 70—78, and the district

court was asked to dispose of said motion on September 27, 2002.

When no answer was forthcoming the circuit court was asked to

accept an appeal from the denial of all post judgment motions and /

or for the exercise of its supervisory power to dispose of all pending

matters. 1 V 46. |

6. On March 10, 2002 the circuit court “ordered and adjudged”

that the district court orders be modified, consistent with its opinion.

LV 5-11.

7. The court held that Plaintiff’s motion to disqualify the three judge

panel was denied. The per curiam opinion found the bases of the

motion to be “that Third Circuit judges have abdicated their

responsibilities in pro se to staff attorneys [and] [h]is allegation is

not true — the judges of this court personally read and consider each

brief and motion filed in cases on which they preside. Thus, they

find no basis under 28 U.S.C. § 455 for recusal and no basis for

disqualification of staff attorneys.

8. The circuit also held the lack of notice and opportunity to be

heard in the district court prior to the entry of judgment was “cured”

by “Reilly’s letter to, Judge Hochberg’s letter to Reilly, Reilly’s brief.

Although the May 2, 2000 authorization of a “motion to vacate”,

| V_50, may fulfill the district “[cJourt’s desire to give adequate

notice” | V 9, the Circuit panel offers no foundation in fact or law

that “the previous lack of notice * * * was cured, i.e. becomes

adequate notice, by providing the plaintiff with the requisite

opportunity to be heard in opposition to and reconsideration of the

April 11, 2002” Id.

9. It was further held that the “threat to sue the judicial officers who

rendered decisions against him in federal court * * * do not * * *

standing alone * * * warrant [] the entry of an order barring further

filings. IV 9.

10. The circuit panel did however state that given the context of the

order, the protracted nature of the proceedings, and the numerous

meritless (as opposed to frivolous) filings, the court was justified in

entering some sort of restraints IV 9.

11. The panel concluded the district judge’s order was overbroad

and restrained “[a]ny claim against any defendant which can be traced

back to this litigation is controlled by this order.” IV 10

12. Accordingly, plaintiff is restrained from filing any new case,

proceeding, motion other litigation document in state or federal courts

dealing with the issues resolved in Reilly v. Weiss, D.N.J. Civ. No.

97-cv-09883, without specific written permission of the district

Court.” LV 10

REASONS FOR GRANTING THE PETITION

The question submitted to this court concerns the competency

of lower tribunals who have presided in this matter and whether

they have acted beyond the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s supervisory

power. This is, for the following reasons, a substantial question

requiring this Court’s attention.

1. This Court has long said:

“I]f the record discloses a controversy of which

the court cannot properly take cognizance, its duty

is to proceed no further and to dismiss the suit, and

its failure or refusal to do what, under the law

applicable to the facts proved, it ought to do, is an

error which this court, upon its own motion, will

correct, when the case is brought here for review.

The rule is inflexible and without exception * * *

the statute does not prescribe any particular mode

in which such fact may be brought to the attention

of the court * * * However done, it should be upon

due notice to the parties to be affected by the

dismissal.” Morris v. Gilmer, 125 U.S. 315, 325-

326 (1889).

“If the record does not affirmatively show

jurisdiction in the circuit court, we must, upon our

own motion, so declare, and make such order as

will prevent that court from exercising an authority

not conferred upon it by statute.” State of Minnesota

v. Northern Securities Co., 194 U.S. 48, 62 (1904).

Accordingly, this court must and has addressed the controversies

of whether a tribunal is properly constituted. When an appellate

court is not properly constituted it is no court at all. Nguyen v. United

5

States, 539 U.S. 69 (2003) (Court of appeals consisting of two

Article If judges and one Article IV judge does not have the authority

to decide petitioner’s appeal). So too, “where the question is not

merely an error committed by the circuit court of appeals in failing

to decide the merits, but an error resulting from the fact that the

circuit court of appeals which passed upon the case was virtually no

court at all, because not organized in conformity to law.” Wm.

Cramp Sons v. Curtis Turbine Co., 228 U.S. 645, 651-652 (1913)

(An appellate court is improperly constituted for the reason that a

district court judge who enters a pro forma decree below is

disqualified from participating in the appellate review of that decree. ).

Disqualify means to debar legally (citation omitted). * * * That is

synonymous with lack of legal capacity, i.e. with inability to serve.”

Arnold v. Eastern Air Lines, Inc., 712 F.2d 899, 904 (4" Cir. 1983),

cert. den. 464 U.S. 1040 (1984) citing 28 U.S.C. § 46(b) and 28

U.S.C. § 47._ A court that is incompetent by reason of bias to

adjudicate the issues pending before it is not only an extraordinary

circumstance in the sense of presenting a highly unusual factual

situation, but an extraordinary circumstance causing great, immediate

and irreparable harm. Kugler v. Helfant, 421 U.S. 117, 124-125 &

n.4 (1975) (citations omitted). Thus when a justice, judge or

magistrate is disqualified pursuant to 28 U.S.C. § 455 the court is

not properly constituted because “virtually every court of appeals

has recognized” that disqualified “judge’s do not adjudicate cases

that they have no statutory power to hear.” Alexander v. Primerica

Holdings, Inc., 10 F.3d 155, 163 (3 Cir. 1993) quoting In Re

School Asbestos Litigation, 977 F.2d 764, 778 (listing cases) (3rd

Cir. 1992).

This Court has long been sensitive to the inherent dangers arising

from “delegating to staff assistants more and more work that we

once expected judges to perform.” Jackson v. Virginia, 443 U.S.

307, 337 & n. 10 (1979) (Stevens, J., dissenting). Indeed, certain

structures are candidly frowned upon:

“It is one thing to do the work yourself, and it is another

thing to simply approve the recommendation of

wae

another person who has done the work. * * * I would

feel entirely different about a system that assigned the

preparation of “bench memos” - memoranda that sum-

marize the contention of the parties and recommend

a particular result in an argued case - to one law clerk

in a large pool of clerks.” Rehnquist, William H., The

Supreme Court (Revised and Updated) First Vantage

Books Edition, NYC, 2002, p. 235.

Such a structure is in place in the Third Circuit Court of Appeals

and that structure renders said tribunal incompetent to adjudge the

issues before it. The facts showing that the Third Circuit Court of

Appeals is not competent are (1) Judge Becker’s testimony to the

Commission on Structural Alternatives for the Federal Courts of

Appeals and (2) certain Circuit Judges’ admission that they have

been or the Circuit Justices are likely to be material witnesses in the

proceeding.

First, when Judge Becker gave testimony, as Chief Judge of the

Circuit, to the Commission on Structural Alternatives for the Federal

Court of Appeals, his voluntary and self-acknowledged purpose

_was to provide a description of how the Third Circuit does its work.

“I would like to begin with a brief description of how appellate

judges do their work.” 145 T 12-19. (Public Hearing, Thursday,

April 16, 1998, New York, New York, Commission on Structural

Alternatives for the Federal Courts Of Appeals (Gross, Neil R.,

Court Reporters and Transcribers, 1323 Road Island Ave., N. W.,

Washington, D.C. 20005-3701) (“page no. Transcript, transcript

line no.”’)).

He went on to testify that counseled cases are treated in accord

with the demands of an Article [II Tribunal. In counseled cases judges

“get the briefs and the motion papers or what have you and you

read them.” 146 T 16-18. “[I]f you have someone else read the

briefs and tell you what is in them * * * that would be, in my view,

an abdication of our duties.” 146-147 T 21-2. “The most critically

important duty of federal appellate judges, that is, to listen and read

the briefs and read the papers” cannot be delegated. 148 T 11-20.

7

Moreover, according to Judge Becker, relying heavily on law

clerk drafts of opinions in counseled cases cannot be done because

while” appellate commissioners and appellate magistrates and staff

attorneys are capable people * * * [t}hey are not Article III judges.

And if you miss, things will between the cracks. If you miss 2 or 3 or

4 percent cases, that is in my view a very serious matter.” 150 T 11-

17. Towards this end “it is the duty of every circuit judge to contribute

to keeping up the consistency and coherency of the Circuit law.”

146 T 12 - 15. For these reasons and facts “[w]e don’t do that in

the Third Circuit. We do not use staff - - staff attorneys never look

at a counseling case in the 3rd Circuit. They do pro se cases valine”

“147 T 9-12. Incontrast to that of counseled cases, staff attorneys”

do pro se cases” because “you have to discount them and give them

a much lower weight” 167 T 2-5. Pro se cases are disregarded

because the judges “really need an interpreter * * * they are written

in long hand and sometimes it is gibberish * * * “the vast majority of

them. the statistics show, really have no merit at all.” 147 T 15-20.

“[S]taff attorneys perform a very important role in presenting

them to us in an efficient way so that we can read them.” 147 T 20-

22. The way that staff attorneys present the pro se case is by the”

{p] reparation of memoranda of law and fact and a recommendation

as to disposition * * *.” 3d Cir. IOP 13.2(b). However, it is the

“duty of every judge to contribute to keeping up the consistency

and coherency of the Circuit law * * *.” 146 T 12- 15. And, by

being a master of the circuit law “I don’t mean having a staff attomey

or law clerk look it up when the occasion occurs. 157 - 158 T 20-

1. Inso far as responsibility for the maintenance of the consistency

and coherency of Circuit law, I don’t see how you can delegate

that. * * * There is no substitute for a judge having in his or her head

knowledge of the law of his or her circuit * * *.” 148-149 T 21-11.

Thus, while “the most critically important duty of appellate judges,

that is, to listen and read the briefs and read the papers” cannot be

delegated in counseled cases, 148 T 17-19, pro se litigants find that

“critically important function” is abandoned to the staff attorneys.

So too, the judges cannot “rely more heavily on law clerk drafts

of opinions * * * because the critically important thing in terms of

8

this delegation is while appellate commissioners and appellate

magistrates and staff attorneys are capable people * * * (t]hey are

not Article III judges.” 150 T 10-15. Yet the judges also delegate

this “critically important” function to staff attorneys, who are

mysteriously somehow better qualified as “interpreter[s]” of pro se

submissions and “gibberish”, and those interpretations are presented

to the judges in memorandums of law and fact and recommendations

for disposition so that the judges’ may understand them. But just as

Article III is of no moment in pro se cases, the search for the truth is

also of no moment because the Article ITI judges’ performance of

these duties is, at best, necessary to prevent counseled “cases from

slipping through the cracks.” 150 T 14-17. This is not necessary in

pro se cases because in disposing of pro se cases, as opposed to

counseled cases, “you have to discount them and give them a much

lower weight,” 167 T 2-5, they “really need an interpreter * * *

they are written in long hand and sometimes it is gibberish * * *”

and “the vast majority of them, the statistics show, really have no

merit at all.” 147 T 15-17.

Second, the March 10, 2004 per curiam opinion of judges

Roth, Ambro and Smith shows that the Circuit Judges have been

or are material witnesses in the proceeding. It reads in relevant

part:

“To the extent it is construed as a motion to

disqualify all circuit judges and disqualify staff

attorneys, is denied. Reilly bases his motion on an

allegation that Third Circuit judges have abdicated

their responsibilities in pro se cases to staff

attorneys. His allegation is not true — the judges

of this court personally read and consider each

brief and motion filed in cases on which they

preside.” LV_ II, n.4.

It is axiomatic that “[a] judge cannot be a witness in his own

cause (‘Judex non potest esse testis in propri caus’)”. Bouvier’s

Law Dictionary, 1856 citing 4 Co. Inst. 279. From 1821 to

9 E

1974, the content of 28_U.S.C. § 455 and its predecessor

provide:

“Any justice of Judge of the United States shall

disqualify himself in any case in which he has a

substantial interest, has been of counsel, is or has

been a material witness, or so related to or

connected with any party or his attorney as to

render it improper, in his opinion, for him to sit on |

the trial, appeal, or any other proceeding therein.”

Lilieberg v. Health Services Acquisition Corp..

486 US 847, 858 n.7 (1988); Liteky v. United

States, 114 S. Ct. 1147, 1153 (1994).

The Congress expressly requires that justice, judge or

magistrate be disqualified in certain circumstances. 28 U.S.C. §

455. Particularly,

“[a]ny justice, judge or magistrate shall

disqualify himself in any proceeding * * *

[where he has served in government

employment and in such capacity participated

as * * * [a] material witness concerning the

proceeding * * *; 28 U.S.C. § 45 , or

“[i]s to the judge’s knowledge likely to be a

material witness in the proceeding. 28 U.S.C. §

455 (b) (5) (iv).

The Federal Rules of Evidence supports this conclusion. Rule

605 reads: |

“The judge presiding at the trial may not testify in

that trial as a witness. No objection need be

made to preserve the point.” Fed. R. Evid. 605.

10

Furthermore, disqualification pursuant to statute is mandatory

and may not be waived. So too, no justice, judge, or magistrate

shall accept from the parties to the proceeding a waiver of any

ground for disqualification enumerated under subsection (b).

Where the ground for disqualification arises only under subsection

(a), waiver may be accepted provided it is preceded by a full

disclosure on the record of the basis for disqualification. 28

U.S.C. § 455(e).

The policy reason for this prohibition is not hard to

understand.

“To commit to the judge a decision upon the truth of

the facts gives chance for the evil against which the

section is directed. The remedy by appeal is

inadequate. It comes afier the trial and if prejudice

exists it has worked its evil and a judgment of it in a

reviewing tribunal is precarious. It goes there

fortified by presumptions, and nothing can be more

elusive of estimate or decision than a disposition of

a mind in which there is a personal ingredient.

Berger v. United States, 255 U.S. 22 1921).”

The rule provides an “automatic” objection. To

require an actual objection would confront the

opponent with a choice between not objecting, with

the result of allowing the testimony, and objecting,

with the probable result of excluding the testimony

but at the price of continuing the trial before a judge

likely to feel that his integrity had been attacked by

the objector.” Fed. R. Evid. 605, Notes of Advisory

Committee on Rules.

“The comprehensive and inflexible character of the

probation was intended to prevent resort to consent

of the party or parties as a means of qualifying a

judge to participate in the decision of a case in the

circuit court of appeals, when without such consent,

because of the prohibition of the statute, he would

be disqualified from so doing, - a purpose whose

public policy is not difficult to understand. Wm.

Cramp Sons v. Curtis Turbine Co., Supra, 228

U.S. at 650. |

“While the district judge may personally know this allegation is

false, such knowledge is not a proper basis for judicial notice.”

United States v. Lewis, 833 F.2d 1380, 1385-86 (9th Cir. 1987):

United States v. Sorrells. 714 F.2d 1522. 1527 n.6 (1 1th Cir.

1983): Virgin Islands v. Gereau. 523 F.2d 140, 147-48 (Gd Cir.

1975). :

“A judicially noticed fact must be one not subject to

reasonable dispute in that it is either (1) generally

known within the territorial jurisdiction of the trial

court or (2) capable of accurate and ready

determination by resort to sources whose accuracy

cannot be reasonably questioned.” Fed. R. Evid.

201(b). The confidential, internal workings of the

federal judiciary do not seem to fall into either

category: they are inherently outside the realm of

general knowledge and there are no ready sources

for incontestable confirmation of the facts in

question here. Contestability and disputation are

critical considerations here. We do not mean to

suggest that a court could never take judicial notice |

of its own internal procedures. The problem is that

the procedures in question here entail the central |

allegation of impropriety in the case, and the judicial

officers accused of that impropriety would be both

the conduit and source of the confidential

information vindicating those procedures.” Switzer

v. Coan, 261 F.3d 985, 989 (10" Cir. 2001).

12

“In view of the mandate of 28 U.S.C. § 455 that a

judge disqualify himself in “any case in which he ...

is or has been a material witness,” the likelihood

that the presiding judge in a federal court might be

called to testify in the trial over which he is presiding

is slight. Nevertheless the possibility is not totally

eliminated.

The solution here presented is a broad rule of

incompetency, rather than such alternatives as

incompetency only as to material matters, leaving

the matter to the discretion of the judge, or

recognizing no incompetency. The choice is the resuit

of inability to evolve satisfactory answers to

questions which arise when the judge abandons the

bench for the witness stand. Who rules on

objections? Who compels him to answer? Can he

rule impartially on the weight and admissibility of

his own testimony? Can he be impeached or cross-

examined effectively? Can he, in a jury trial, avoid

conferring his seal of approval on one side in the

eyes of the jury? Can he, in a bench trial, avoid an

involvement destructive of impartiality? The rule of

general incompetency has substantial support. See

Report of the Special Committee on the Propriety

of Judges Appearing as Witnesses, 36 A.B.A.J. 630

(1950); cases collected in Annot. 157 A.L.R. 311;

McCormick § 68, p. 147; Uniform Rule 42;

California Evidence Code § 703; Kansas Code of

Civil Procedure § 60-442; New Jersey Evidence

Rule 42. Cf. 6 Wigmore § 1909, which advocates

leaving the matter to the discretion of the judge,

and statutes to that effect collected in Annot. 157

A.L.R. 311.” Fed. R. Evid. 605, Notes of Advisory

Committee on Rules. ;

Furthermore, at this stage of the proceedings, plaintiff's allegations

must be accepted as true and construed in the light most favorable

to plaintiff. Switzer, supra, 261 F.3d at (citations omitted).

Conversely, assuming for the sake of argument that the judges’

testimony were appropriate, the judges must do more than just rest

upon mere allegations, general denials, or vague statements. Sladana

v.K C 260 F.3d 228, 232 (3 Cir. 2001)(citati

omitted). But they do not. Opinion, p.6, n. 6 (His allegation is not

true — the judges of this court personally read and consider each '

brief and motion filed in cases on which they preside.”).

2. Just as the court must provide due notice to the parties to be

affected when a court cannot properly take cognizance of a

controversy, Morris, supra, 125 U.S. at 325-326, so too a tribunal

cannot take action without meeting the requirements of notice and

opporturiity to be heard.

“For more than a century the central meaning of

procedural due process has been clear: ‘Parties whose

rights are to be affected are entitled to be heard; and in

order that they may enjoy that right they must be first

notified.” It is equally fundamental that the right to notice

and an opportunity to be heard ‘must be granted ata

meaningful time and in a meaningful manner.’ Fuentes

v. Shevin, 407 U.S. 67, 80 (1994) (citations omitted).

This Court has also held that:

“{a]n elementary and fundamental requirement of due |

process in any proceeding which is to be accorded |

finality is notice reasonably calculated, under all

circumstances, to apprise interested parties of the

pendency of an action and afford them an opportunity

to present their objections.” Mullane v. Central

Hanover Trust Co., 339 U.S. 206, 314 (1950).

“{ T]he root requirement of the Due Process Clause is

14

—e

‘that an individual be given an opportunity for a hearing

before he is deprived of any significant protected

interest. *“ Vv ion V.

Loudermill, 470 U.S. 532, 542 (1985).

Fed. R. Civ. P. 65 (a & bj provide specific pre-deprivation

procedures to be followed when issuing temporary, preliminary or

permanent restraints. Since there was no pre--deprivation hearing

due process is violated because “where a pre-deprivation hearing is

available prior to final deprivation it must be provided regardless of

the post-deprivation remedy.” Zi v

132.1990). Furthermore, constitutionally inadequate notice renders

the judgment void. v visi

147, 156-157 (3rdCir. 2000).

The hearing must not only be at a meaningful time and ina

meaningful manner, Vv

(citations omitted), but must be tailored to the capacities and

circumstances of those who are to be heard. Id. At 268-269.

Adequate notice requires disclosure of all issues to be discussed

and sufficient time to prepare. Yohn v. Love, 76 F.3d 508,516 Grd

Cir, 1996). The use of such measures against a pro se plaintiff should

be approached with particular caution * * *. In Re Oliver, 682 F.2d

443, 445 & n.5 (3rd Cir. 1982). The district court must assume the

burden to notify the party to be enjoined and to invite response. In

Re Hartford Textile Co. 613 F.2d 388, 390 (2nd Ci 1979

den. 447 U.S. 907. Indeed, the district court must provide prior —

notice and an opportunity to oppose an order that enjoins the clerk

of that court from accepting papers for filing before the order is

instituted. In Re Oliver, 682 at 446; Gagliardi v. McWilliams, 834

F.2d 81,83 (3rd Cir. 1987). Absent a full, fair, potentially effective

opportunity to defend the right to a hearing is a barren one. Morgan

v ‘

It is well settled a decree is to be construed with reference to the

issues it was meant to decide. Mayor & Alderman of the City of

Vicksburg v. Henson, 231 U.S. 259, 269 (1913). A motion to

vacate is not a motion to reconsider because they serve different

15

purposes and produce different consequences. Herzog Contracting

Corp. v. McGowen Corp., 976 F. 7th Cir. 1992).

Rule 59(e) serves the purpose of reconsidering matters properly

encompassed in a decision on the merits. Osterneck v. Ernest &

Whinney, 49 U.S. 169, 174-177 (1989); era

Dept. of Employment Security, 455 U.S. 445,45 1-452 (1982). 6

questions the correctness of the judgment. New Castle County, 933

F.2d 1162, 1176 (3 Cir. 1991).

A motion to vacate may be filed pursuant to Rule 59(e) and Rule

60(b). Forman v. Davis, 371 U.S. 178 (1962). But “vacate” has a

particular meaning. Its usage means “to annul, to render an act void.”

Bouvier’s Law Dictionary, 1856 Ed. To vacate a judgment “clears

the path for future relitigation of the issues between the parties and

eliminates a judgment.” United States v. Munsingwear, Inc., 340

U.S. 36, 40 (1950). It means to “wipe[] the slate clean, not only

rendering the decree sterile but also eviscerating any collateral effects

and indeed casting a shadow on the past action taken under the

decrees imprimatur * * *.” f Suff il, 129

F.3d at 622; Cody v. Hillard 3d 7 4 (8" Cir. 2002).

3. The aforesaid orders-are void. First, a Court order that is

inconsistent with due process is void and relief is mandatory.

“It is a rule as old as the law, and never more to be

respected than now, that no one shall be personally

bound until he has had his day in court; by which is

meant until he has been duly cited to appear, and has

been afforded an opportunity to be heard. Judgment

without such citation and opportunity wants all the

attributes of a judicial determination; it is judicial

usurpation and oppression, and never can be upheld

where justice is justly administered.” Old Wayne Mut.

i "nev > 7

16

et a Nt Bt RL

“The judgments mentioned, given in the cases supposed, would

not be merely erroneous, they would be absolutely void, because

the court, in rendering them, would transcend the limits of its authority

in those cases.” Windsor v. McVeigh, 93 U.S. 274, 282 ( 1876) ;

See also, Reynolds v. Stockton, 140 U.S... 254,268 (1891); Barnes

v. Chicago, M. & St. P. R. Co. 122 U.S. 1, 14 (1887); United

Switch & Signal Div., American Standard Inc. v. United Radio and

Mac. Workers of America, Local 610, 900 F.2d 608, 612 (3rd Cir

1990); Eberhardt v. Integrated Design & Construction, Inc., 167

F.3d 861. 871 (4th Cir. 1999) quoting US. v. Schwartz, 976 F.2d

713.217 (4th Cir. 1992); Antoine v. Atlas Turner, Inc., 66 F.3d

105. 106 (6th Cir. 1995 quoting In Re Edwards, 962 F.2d 641,

644 (7th Cir. 1992); Carter v. Fenner, 136 F.3d 1000, 1005 (Sth

Cir, 1998); In Re Center Wholesale Inc., 759 F.2d 1440, 1448 (

High Tec Indoor Garden Supply, 55 F.3d 1311, 1317 (7th Cir.

1995):Carter, 136 F.3d at 1005; Evans v. City of Chicago, 10 F.3d

474 (7th Cir. 1993); Michigan Sur. Co. v. Service Mach. Corp.,

277 F.2d 531 (5th Cir. 1960).

CONCLUSION

For all of the foregoing reasons the petition of certiorari should

be granted.

May 26, 2005

Res ctfully submitted,

_

Paul A. Reilly, Pro se

18

ae e