How, on a DEAD case, TWO visiting judges, ONE hearing a motion to remove the OTHER from the case, ONE judge from the bench, the OTHER from the witness box, managed to assess a $125,770 FINE ("sanction") against a 67 year old non-lawyer on April 1, 2004.
For having filed (out of desperation) a ONE page motion, SIX (6) MONTHS AGO!
A masterpiece of accomplishment? or April fools?
"If there is insanity around, well, some
of us gotta have it!"
$125,770 "sanction" docket entry -- best viewed printed More "sanctions"?
ONE: Hon. Ron Chapman, Senior judge, assigned to hear a "motion to recuse"
OTHER: Hon Paul Banner, Senior judge, assigned to hear a suit over "open account"
Non-lawyer: Udo Birnbaum, was sued because beavers had built a dam on his farm
Lawyer: Frank C. Fleming, sued Birnbaum claiming $38,121.10 "worth" of work in suing the ex-Van Zandt district judge and other state judges for racketeering.
All "arising from" a dam built by BEAVERS!
Watch YOUR fire ants -- or YOU could be next
It was April 1, 2004, "April Fools Day", and I was driving into town for yet another hearing in our district court.
The whole thing had started in 1995 when I was sued because BEAVERS had built a dam. Before that I had retired as an electrical engineer from Texas Instruments in Dallas, and was living peaceably on my farm in Van Zandt County, taking care of my cows and ninety (90) year old invalid mother, and had only known the courthouse from getting automobile license tags and paying taxes.
Even today, the beavers are still in court, after NINE years, with their THIRD judge, Hon. Ron Chapman, just assigned to the case.
"Legal fees" and "legal fees" for collecting on "legal fees"
"Smoke Old Mold -- The ONLY cigarette that is ALL filter!"
But today's hearing before Judge Chapman was on a case where FOUR years ago I was sued by a Dallas lawyer, in the name of his "Law Office", claiming I owed $18,121.10 on a supposed unpaid OPEN ACCOUNT for "legal services". There of course never was an "open account", not with a $20,000 non-refundable prepayment "for the purpose of insuring our availability in your matter", and the lawyer retainer agreement plainly stating, "We reserve the right to terminate …for your [Birnbaum] non-payment of fees or costs". Also, an "open account" is where the parties are as buyer and seller, where there is a sale, followed by a delivery, such as between a lumber yard and a house builder, where there is actual delivery of "goods", or where a repairman delivers "services".
My paying a lawyer a non-refundable "up-front" retainer does not fit into that category! Then neither do BEAVERS building a dam on a live creek provide a "cause of action" for a lawyer to sue! Then of course my paying that lawyer in the first place does not make sense, certainly not in hindsight. All this was going through my mind as I was looking back over the last NINE years.
Anyhow, the judge on the beaver case did not submit the proper question to the jury. Neither did the judge on the "open account" case.
Add to this that the supposed $38,121.10 "legal services" had been for suing Tommy Wallace, then 294th district judge, other state judges, the Van Zandt district attorney, several lawyers, plus assorted court personnel for racketeering (18 U.S.C. § 1964(c) "civil RICO") regarding the beaver dam scheme. The lawyer had talked me into it, but his suit in the Dallas federal court had NO WORTH because judges are absolutely immune from liability. Anyhow, I finally fired the lawyer, and waved bye-bye to my non-refundable $20,000 retainer.
Yet a year later he comes back to file this $18,121.10 "open account" suit against me in Judge Wallace's court, to collect on "legal fees" for suing this very judge! There was of course method in this apparent madness, for if I had not made what is called a "mandatory counterclaim", under oath, denying the "account", it would have been "deemed" true, and the lawyer would have gotten by with it, lest the judge were honest, instead of going strictly by the letter of the Rules of Civil Procedure.
But since I did deny the account, under oath, the judge was supposed to appoint an auditor to determine the "state of the account", as the Rules say. But he did not. But that is another story.
$62,885 FINE for being "well-intentioned"?
they file cases in the court all the time, BUT … …
Not only did I deny the account, but I also filed a counterclaim under the anti-racketeering statute ("civil RICO) regarding the $20,000 I had been fleeced out of, and asked for trial by jury. Instead the "visiting judge", Hon. Paul Banner, himself "weighs" the evidence, and FINES ("sanctions") me $62,885 for that piece of paper, stating:
"Mr. Birnbaum may be well-intentioned and may believe that he had some kind of real claim as far as RICO there was nothing presented to the court in any of the proceedings since I've been involved that suggest he had any basis in law or in fact to support his [civil RICO] suits against the individuals, and I think -- can find that such sanctions as I've determined are appropriate." (as caught by the court reporter)
Filing a lawsuit is of course constitutionally protected conduct (First Amendment). And a court is to examine the acts or omissions of a party or counsel, not the legal merit of a party's pleading. (McCain, 858 S.W.2d at 757). And civil contempt sanctions are only to "coerce" one to do or not do something, like make child support payments, as previously ordered by a court, NOT to punish for a completed act. Punishment by civil process is UNLAWFUL, period. I had appealed those issues, to the Dallas appeals court, and then to the Texas supreme court, and they had just denied hearing the case, without giving a reason.
So even though this "open account" case against me was clearly no longer in the local trial court, yet here we were about to have another "hearing" in what was clearly a DEAD case as far as the 294th district court was concerned!
"Oh what tangled webs we weave,
when first we practice to deceive!"
The "hearing" was to hear "motion to recuse Judge Banner". "Motion" is "legalese" for the normal way of doing things before a judge, i.e. "moving" that something be "moved" a certain way, i.e. that a certain thing happen or not happen.
"Recusation", according to Blacks Law Dictionary, is "in civil law, a species of exception or plea to the jurisdiction, to the effect that a particular judge is disqualified from hearing the cause by reason of interest or prejudice". My "motion to recuse" was for the judge to step aside, i.e. asking for a different judge, because this judge's "impartiality might reasonably be questioned", to use the phrase out of the Rules of Civil Procedure.
On a motion to recuse a judge has TWO choices, 1) sign an "order of recusal", recusing himself, and asking that another judge be assigned, or 2) signing an "order of referral", asking that another judge be assigned to "hear" if he should be "recused", or allowed to stay. Anyhow, that was what we were here for, to hear "motion for recusal of Judge Banner".
I should of course not have had to ask Judge Banner to step aside, for he should not have been doing anything, yet there he had been, in September, 2003, while the case was in the appeals court, working with opposing counsel, to file "findings" to support the $62,885 FINE, and painting me as some sort of monster to the judicial system, when he had clearly found me "well-intentioned".
No judge should of course been assigned to "hear" a recusal, because the case was DEAD, and Judge Banner certainly signed no order asking another judge to come "hear" if he should be allowed to stay on the case. But here we were, on April 1, having just such "hearing"!
Ready, get set, GO -- but WHERE?
Hon. Ron Chapman had been assigned to hear the recusal, but that was way back in October, 2003, SIX months ago. Then it took about a month for the piece of paper assigning him to find its way into the files in the court. Then nothing happened. The assignment had appeared for a short time at the web site for the First Administrative Judicial Region in Dallas (www.firstadmin.com) who assign judges, then the posting had suddenly disappeared.
Judge Chapman made the national news when he was assigned to Tulia, Texas, and released a whole bunch of black prisoners who had been convicted on drug charges based solely on the testimony of an undercover officer, who had made "lawman of the year", but who had made the whole thing up. Via the internet I also learned that Judge Chapman ran for U.S. Congress in 2002, Texas 5th district, and was defeated by Republican Jeb Hensarling.
Judge Chapman had once before been assigned to this case in 2001 to hear an earlier motion to recuse Judge Banner, but had let Judge Chapman stay. Nevertheless, I had high hopes regarding Judge Chapman now being assigned to hear my "motion for recusal".
The hearing was to be in the downstairs county courtroom because district court was already going on upstairs. I did not believe anybody would show up, till I saw Judge Banner, whom I had subpoenaed to be present as a witness. I did not expect him to actually come, judges do pretty much as they want to. Then I saw Frank Fleming, the opposing lawyer, and someone with Judge Banner whom I did not recognize, but presumed to be some judge sent down to hear the matter. I did not recognize him as Judge Chapman, although I had been before him for about two hours in the fall of 2001.
"If one does not know where one is going, ANY road will lead there"
How about, "Let's try the JURY ROOM"
We somehow started talking in the hall and wound up in the upstairs jury room sitting around the large table. Fleming handed me a two-page motion for sanctions against me. The man at the end of the table introduced himself as Judge Chapman.
Fleming wanted to start with his motion for sanctions. I stated that Fleming had SIX months to file such, if he wanted to, and that this came under the "no surprises" rule, that there be no "surprises", and that I be given time to properly respond to it. The assignment of Judge Chapman of course had been only to hear a motion to recuse, i.e. decide whether Judge Banner should stay as judge, NOT to hear anything "in the case":
"This assignment is for the purpose of the assigned judge hearing a Motion to Recuse as stated in the Conditions of Assignment. This assignment is effective immediately and shall continue for such time as may be necessary for the assigned judge to hear and pass on such motion."
Judge Chapman, on the other hand, seemed to recognize that something was wrong, and was thinking out load that he was not sure whether he could remove Judge Banner from the case, since then ANOTHER judge would have to come in. Fleming wanted to get back to his motion for sanctions. I again said that such was a "surprise", and should be addressed at another time.
Judge Chapman wanted to know where the case stood, and I told him that the Texas Supreme Court had two days ago just denied to hear the case, and Fleming agreed. Next Chapman wanted to know whether there was any other litigation associated with the case, and I handed him a copy of a complaint for what is called "declaratory relief" under the Civil Rights statutes I had filed in the Tyler federal court, not seeking any damages, but asking them to declare that the $62,885 fine Judge Banner had assessed was "contrary to law", and should be declared as such. There was of course no reporter present in the jury room.
Fleming complained that he had not been given a copy of my federal complaint. I told him that was because he was not a "party" to that case, only Judge Banner, and the ones I was to pay that $62,885 to.
It must have been about this time that Chapman recognized who I was, stating that he heard my October 2001 motion to recuse Judge Banner, and that he would probably also hear the motion for sanctions today, or to that effect.
The purpose of bringing a witness of course is to "examine" him in a court proceeding, before a court reporter, and Judge Banner, as a subpoenaed witness, certainly had no place in this off-the-cuff proceeding. Anyhow, after about twenty minutes or so of this, we drifted out into the hallways again. The judges wound up somewhere near the coffee pot on the second floor, while I settled for a downstairs bench.
Small-talk in the halls
County commissioners were still in the county courtroom, and would be in there for another 30 minutes or so. Judge Chapman and Judge Banner had settled on the bench in the hallway close to me. Both judges were quite friendly, and Judge Banner wanted to know about my background. I told him I was born in Houston, of German parents, but that they went back when I was one year old, and that I grew up in Germany during World War II, to come back here as a thirteen year old, go to high school in Houston, then on to college at Rice, then worked for Texas Instruments in Dallas, ultimately to retire to a farm in Van Zandt county. I told the judges that I was writing a book, and this information, plus a lot more about my childhood in Germany, could be found on my web page. It also contains all my court documents, and Fleming would later be complaining that whenever his name was typed into any internet search engine, one would always arrive at my web site.
But Judge Banner already knew a lot about me, for at the time of the trial in April 2002, I was running as an independent for county judge, and he had been concerned whether this would have an influence on the jurors in that trial.
I left the judges talking on the bench, letting them know I would be just outside the door right in front of them, sitting on the wall of the main entrance, and someone to come and get me when it was time.
Finally, the "real thing"
Into an actual courtroom!
The county commissioners finally finished, and we moved into the county courtroom. Of the two big tables in front of the bench, Fleming chose the one by the window, and I settled at the one near the door. Next I went to the court reporter to find out her name and where I might order a transcript of this hearing and to give her my name and address. It is a shame that courts are not in the 21st century, where one can make a six hour video recording for a dollar or two, instead of having a court reporter take it down, manually, and to have to pay literally thousands of dollars for it, at $4.00 per page, and yet not have ALL of it show up on the record, certainly not the pauses, intonations, puzzled looks, and the like. But that is another matter. Anyhow, the recollections below are to the best of my ability.
Judge Chapman called the case, this time from the bench, and administered the oath to tell the truth, etc. I am not sure whether Fleming went first, or whether I did, we more or less did everything at the same time, from one table to the next, with the court reporter, settled near the empty witness box, somehow doing her best.
There was no one in the audience except someone who had come along with me, and there was of course Judge Banner, but I do not know where he settled down in the courtroom. It may have been in the jury box, but I am not sure, but I do remember asking that he be put "under the Rule". It is a term lawyers use, I have never heard under exactly what Rule, for asking a witness not to be present till called, and to remain outside the courtroom, and Judge Banner went out into the hall.
I was trying to show that Judge Banner's impartiality "might reasonably be questioned" not only because of the $62,885 sanction he had put on me, never mind whether it was lawful or not, but also that there was something drastically wrong when Fleming, while the case is in the appeals court, and starting with no more than Judge Banner's finding of "well-intentioned", comes up with a "finding" for Judge Banner to sign, that finds me "vindictive", "harassing", having made "threats", that my claim was "vacuous", "manufactured", "intimidating", "simply for spite", and all other kinds of hate-words in there, and Judge Banner signed it!
My point was that under such circumstances, Judge Banner's "impartiality might reasonably be questioned", at the present time, and that he should be removed from doing anything more to the case.
I do not remember all the "objections" Fleming made, that either what I was talking about was not "relevant", "material", or whatever, that it was either "before", or "after" and was therefore not relevant. I did get Judge Banner on the witness stand, and asked him point blank if under the present circumstances he could be impartial towards me, and his answer was "yes". That of course begged the question as to whether there was anything for him to do in the case, or to have been doing!
$125,770 in "sanctions"
In a DEAD case?
Anyhow Judge Chapman quickly denied the motion to recuse Judge Banner, and proceeded to go into Fleming's motion for sanctions against me. That of course should have put Judge Banner back in charge, and Judge BANNER should have been on the bench, if there was indeed to be a hearing "in the case" on Fleming's motion for sanctions. But then NOBODY should have been here today. The case was DEAD!
Then Fleming started lighting into me, naming all the reasons I should be sanctioned. First for even questioning the "impartiality" of Judge Banner. Also for "suing Judge Banner", when my Civil Rights complaint had been not for damages, like an ordinary suit, but procedural and solely for "declaratory relief", i.e. simply asking a federal judge to rule that what Judge Banner had done was "contrary to law".
Fleming was complaining that I had sued him, when he was just the lawyer, and that everything he did was as the lawyer. Lawyers seem to think that they are free to do ANYTHING as a lawyer. I tried to explain that it was exactly BECAUSE Fleming was a lawyer, that his conduct of lying in the court rose to such a level that it actually violated the anti-racketeering statute ("civil RICO").
Filing a lawsuit is of course constitutionally protected conduct, and they file lawsuits all the time. Besides that, why are we here, at a hearing on a "motion to recuse Judge Banner", arguing the merits of my civil rights suit for declaratory relief against Judge Banner, or the merits of my suit against lawyer Fleming, and on April 1, and on a DEAD case?
Anyhow Judge Chapman assessed $125, 770, in unconditional fines against me, doing exactly DOUBLE the thing that I had been complaining about regarding Judge Banner, i.e. the unconditional $62,885 fine he had assessed against me.
I had done my very best to show that unconditional punishment, which is not "coercive", where one does not have "the keys to one's release", such as paying child support, or sitting in jail till one testifies, is UNLAWFUL by civil process, so says no less than the U.S. Supreme Court!
On "finality of litigation"
The case was DEAD!
From the scratching Judge Chapman put on the back of Fleming's motion for sanctions, as I later found filed in the case, I remember the exact words Judge Chapman spoke. Judge Chapman "did not get it", meaning the law about "keys to one's release". Under his heading of "Complete & full access to cts.", he wrote:
"Our jurisprudence envisions finality of litigation after the parties have availed themselves of the remedies available under our law,
"You now have the keys on whether there are any further proceeding in this case in the future. Please be aware that any further actions might result in further sanctions."
I clearly do NOT have the "keys to my release" from this UNLAWFUL $125,770 sanction. Also if there is any issue as to "finality", what were we doing here today on a DEAD case?
The scratching Judge Chapman did on the back of Fleming's motion for sanctions is interesting, to say the least. I see the amount of the original sanction of $62,885 by Judge Banner, then a 2 below it, multiplied out to be $125,770. The entry on the case on the docket sheet gives further clues:
"grounds for sanctions do exist and the Ct. assesses said sanctions for [Birnbaum's] violations of Rule 13 of the TRCP and/or Sections Rule 10.001 et seq/ TCPRC in the amount of $1,000 for actual damages and $124,770 for exemplary damages against Birnbaum who is Ordered to pay said sums to [Westfalls]. [Westfalls'] attorney is instructed to draft a proposed Order and submit a copy of same to [Birnbaum]. (emphasis added)
Judge Ron Chapman.
Exemplary (punitive) court sanctions are of course UNLAWFUL by CIVIL process!
" Déjà vu all over again"
I go home puzzled, having expected better than this from Judge Chapman. Then at 9:55 p.m. that same night, April 1, 2004, I receive a copy of Fleming's proposed order for Judge Chapman to sign. Below are just a few of the phrases:
· "Birnbaum's claims were groundless, vacuous, manufactured, and totally unsupported by any credible evidence whatsoever"
· "The testimony of Birnbaum … … was biased, not credible, and totally uncorroborated by any other evidence"
· "Birnbaum filed a pleading containing a completely false and outrageous allegation that Judge Banner had conducted himself in a manner that showed bias and lack of impartiality"
· "Birnbaum's difficulties with judges and the repeated allegations of a lack of impartiality have had nothing at all to do with the conduct of the judges that Birnbaum has appeared before, but instead, is a delusional belief held only inside the mind of Birnbaum. (a mightical MEDICAL diagnosis!)
· "The award of exemplary and/or punitive damages is not excessive"
· "The award of the exemplary and/or punitive damage award is narrowly tailored to the harm done" ($124,770?)
Judge Chapman had said none of this! This is a repeat of what I had been complaining about to Judge Chapman about Judge Banner, where Fleming had faxed the likes over to Judge Banner late one evening, which had no basis is fact (remember "well-intentioned"?) and Judge Banner faxed me back immediately the next morning at 8:52 a.m., stating, "I have this date signed and mailed to Mr. Fleming the Findings of Fact and Conclusions of law as received from Mr. Fleming".
But that was AFTER I that evening recognized what Fleming and Banner were up to in this case, DEAD even then in this court, and out of desperation the next morning, Sept. 30, 2003, ran to the courthouse to file at 7:56 a.m. my "Motion for Recusal of Judge Banner" that was the subject of this April 1, 2004 hearing.
When in doubt -- PUNT
But this time, with Judge Chapman also assigned to hear the case I had filed against the lawyer who had started it all with his BEAVER dam case, and also assigned to the BEAVER dam case against me, and with Fleming laying the groundwork at this "motion to recuse Judge Banner" for more sanctions against me because of my suit against Fleming, and Judge Chapman threatening more sanctions against me, I decided I have but one choice, that they are after me, "To hell with the law, this man is rocking our boat, and has to be stopped, never mind the Constitution!"
I type out TWO simple "motion for non-suit", dropping my cases against the two lawyers, the "beaver dam" lawyer, and Fleming, and file it first thing April 2, 2004. By the Rules of procedure, they HAVE to sign it, lest there are counterclaims, of which there are none.
Judge Donald Jarvis has signed my non-suit against Fleming. Judge Chapman has not signed my non-suit against the beaver dam lawyer, nor the $125,770 FINE he pronounced on April 1, 2004.
That leaves only my case in the Tyler federal court seeking "declaratory relief", i.e. that a federal judge declare Judge Banner's $62,885 FINE against me is contrary to law.
Plus of course the original 1995 "beaver dam" case against me, now with Judge Ron Chapman as the judge sitting on that one, set for a "hearing" for July 9, 2004, where despite a UNANIMOUS jury verdict in 1998 of ZERO damages, the lawyer still wants $10,000 in attorney's fees, plus a "permanent mandatory injunction" against me, demanding that water flow UPHILL.
"Oh what tangled webs we weave, when first we practice to deceive!"