# Petition for Writ of Certiorari — Reilly v. Weiss

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1042%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 824

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1042%3A1. Public record. Not legal advice.