Note: Formatting of the original has been lost
Original was a newspaper message
ON FREE SPEECH AND DUE PROCESS
and lawlessness in the name of the law
By Udo Birnbaum
Happy New Year!
As we embark on a new year, I want to share a little of my experiences of the last eight (8) years that made me work for a regime change in our District Court.
A $62,255.00 fine?
My position is best seen through the prism of the recent "frivolous lawsuit" "sanction" (fine) of $62,255.00 put on me, accused among other things, of "making a mockery of all lawyers and the entire legal system", when I was the one who was sued!
Criminal or civil fine?
First, this fine must certainly set some sort of record in the 294th District Court. They file all kinds of stuff, good and ridiculous, but nobody gets fined.
Second, this sanction (fine) is patently UNLAWFUL because it is not a civil sanction at all, but a CRIMINAL sanction, imposed without full due criminal process, including a finding beyond a reasonable doubt (by a jury).
The U.S. Supreme Court in United Mine Workers v. Bagwell(1994):
"Whether a contempt is civil or criminal turns on the "character and purpose" of the sanction involved. Thus, a contempt sanction is considered civil if it "is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court."
The Texas Court of Criminal Appeals, No. 73,986 (June 5, 2002):
"The distinction between civil and criminal contempt has been explained as follows:
The purpose of civil contempt is remedial and coercive in nature. A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey some order of the court where such obedience will benefit an opposing litigant. … …Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court."
So what had I done?
I had broken no rules or Order, and the judge did not find such, so the judge had
no need to "coerce" me regarding anything. There was no order or ever a warning. The sanction order does not even hint at wrongs! (just "the Court is of the opinion that the movants … … are entitled to prevail") NOTHING. So what had I done that was so terrible?
"In assessing the sanctions, the Court has taken into consideration that although 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 suits against the individuals" (Sanctions hearing)
The answer is that I was sanctioned because I "had" made a civil RICO counterclaim in the case TWO years ago, a long ago completed act, that somehow now suddenly "affronted" the judge!
(Note: They file counterclaims all the time, but not civil RICO. I was the first.)
RICO (Racketeer Influenced and Corrupt Organizations Act) is the "anti-racketeering" law used to fight organized crime. But it also has a civil part ("civil RICO") that outlaws "gangster-like" conduct by any and all persons, even though they are not part of what we normally think of as organized crime.
Lawyers and judges hate civil RICO with a passion, but it is the law of the land:
"Any person injured in his business or property by reason of a violation of [RICO] may sue therefor …. and shall recover threefold ……" 18 U.S.C. §1964(c) "civil RICO" statute.
And no less than the U.S. Supreme Court encourages civil RICO claims, citing:
"a congressional objective [of civil RICO] of encouraging civil litigation to supplement Government efforts to deter and penalize the respectively prohibited practices. The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, "private attorneys general", dedicated to eliminating racketeering activity" Rotella v. Wood (1998)
An issue of public importance
So what, if anything was the District Court trying to vindicate in assessing this horrific sanction on me? Its authority not to have to hear civil RICO cases? Not to hear complaints of corruption by lawyers in this court, when I have a First Amendment right to speak out on racketeering, an "issue of great public importance", and particularly so in my defense!
So what is the message in the fine?
Don't make RICO claims.
Don't speak out on racketeering.
Don't speak out on corrupt lawyers
Don't represent yourself in court
We will run over you, NEVER MIND THE LAW.
With the stroke of a pen you can be fined to the tune of $62,255.00
If you appeal, the judgment already has a $20,000 escalator built in
You can't do anything about it.
Judges are absolutely immune
The District Attorney won't help you, nor will the State Bar, nor the Commission on Judicial Conduct
LAWLESSNESS! Just the sort of "respectively prohibited practices" that civil RICO was enacted to deter.
Weighing the evidence
At a hearing, one year ago, the judge "found" that he saw no evidence of a RICO violation in my one foot tall stack of evidence, and kept me from showing my RICO claim and evidence to the jury. Had I not asked for trial by jury to weigh the evidence? What was the judge expecting me to bring? "Minutes" of racketeers' meetings, or confessions?
The Rules of Procedure of course do not allow a judge to weigh the evidence. At "summary judgment" he is supposed to look at my evidence "in light most favorable" to me, and that one foot stack looked at "in light most favorable to me" is that there was a RICO violation!
The judge can, of course, decide if there was an "element" of law missing in my claim, but civil RICO has no "elements" of law. It is the law. Civil RICO is one of the few civil causes based on a statute. (and a criminal statute at that)
Note: Most civil cases are torts, i.e. based on the common law of precedent, and have "elements" of law. For example it cannot be negligence not to paint one's house green, for one does not, as a matter of law, have a duty to do so.
Re-weighing the evidence
Then curiously after the trial, the judge comes back again to weigh, finding that "there was nothing presented to the court in any of the proceedings since I have been involved that suggest any basis in law or in fact that support[my civil RICO claims]". Had not the judge previously decided not to allow me to argue or present evidence of my RICO claims?
So why did the judge not fine me one year earlier, when he first found "no basis"? And "no basis in law or in fact"? Is not civil RICO the law of the land?
My Right to show my best case
Not only am I expected to show my best case, but I have the Right to show my best case (civil RICO), to show the "pattern of racketeering activity", so that the jury can understand that the evidence does not show what the plaintiff says it shows, but that his whole suit is another act of "racketeering activity".
Civil RICO paranoia
Civil RICO, properly pleaded, has to go to a jury. (No party or the judge ever said that I did not plead it right).
(Note: "Pleadings" is one's case on paper stating all the "elements". See above)
Now only about one in 270 civil cases is disposed of by jury. What if everybody who was mad at a lawyer sued him under civil RICO, claiming the lawyer was using his relationship with the court to "defraud him of honest judicial service"? (A scheme to defraud of honest service violates RICO as a matter of law, if the mail was used in any way by anyone to execute the scheme, and lawyers mail lots of documents)
Secondly, if pleaded right, the matter should of course have to go to the grand jury too, for RICO is a criminal statute. But then there are other lawyers associated with this lawyer, and a judge, and should we refer them also?
Come down on Mr. Birnbaum to the tune of $62,255.00! Send a message to stop this dangerous precedent of pro se (self-represented) people acting as "private attorneys general" from speaking out in the court (under civil RICO) against racketeering by lawyers!
The RIGHT solution
Refer RICO complaints to the grand jury or the Justice Department. That is what I asked the judge to do in the first place, and appoint an auditor as was required in this particular case. (Rules of Procedure)
It would have been, and still is, that simple. I have, of course, by now made a criminal complaint of retaliation and official oppression for having spoken out on corruption.
More info at:
Public service message Udo Birnbaum 540 VZ CR 2916, Eustace, TX 75124