Thursday, March 15, 2012

Fear and Loathing in the Tenth Circuit, Part Deux

First read "Fear and Loathing in the Tenth Circuit."
When writing our reply brief recently, I saw, from the other side's brief, that the magistrate's report of July 18, 2011--filed in the district court over two months after we docketed our appeal--had been placed in the appellate record (and of course the Defendants are relying on it). This is wholly improper. The record closed when the appeal was filed.

The report itself is evidence of "pretend litigation": it looks like a decision on the merits, when it is not. All the magistrate had in front of him were "status reports" Judge Kane ordered each side to file, when he came on the case and struck our complaints and all motions on file. No one reading this magistrate's report would know that it is nothing but a post-hoc rationalization of what Kane had already done off the cuff, to make it look like the result of a legal analysis. They would not know Magistrate Hegarty had no motions or briefing in front of him and took no evidence. (Neither, of course, did Kane.) They would not know that we never got any disclosures; were prohibited from doing discovery; and that no scheduling order entered, ever, for the 19 months this case and its companion case were in the district court, in blatant violation of the rules.

We've just been held hostage all this time. So now we have ascended, in the federal court, to the sophisticated scam of "adjudication by status conference." Pretend litigation.

I filed a 35-page objection to the magistrate's report, by the way, pursuant to 28 U.S.C. Sec. 636, and my objections were NOT placed in the record!  Obviously, it is Kane salting the record with things that make it look like we got due process, while leaving out our objections, which show we did not. I have, in fact, already had the magistrate's forgery thrown in my face by the director of the Judicial Discipline Commission, William Campbell, when I regrieved Greg Hobbs in 2011. Campbell angrily said, "You've already had this issue decided against you by a federal court."

No, Mr. Campbell, we haven't: nothing was decided, and the magistrate's report somebody gave you (wonder who) is a forgery. The term "forgery" is apt because this report purports to be the result of an adjudication, when it is nothing of the sort.

The main thing that will save us from these shyster tactics in the federal court, if anything does, is the statute governing appeals from magistrates' recommendations, 28 U.S.C. Sec. 636, because we filed objections to this magistrate's earlier recommendations which were never ruled on. We also filed these objections to the July 18, 2011, forgery which haven't been ruled on. There's a boatload of precedents saying our objections have to be ruled on. The Circuit Court of Appeals cannot consider a magistrate's report.