Did Judge Don Willett Replace Judge Edith Clement Due to a Judicial Complaint in this High Profile Redistricting Case? – Her dissent included inappropriately partisan and disrespectful attacks on other judges in a dissenting opinion, said complainant. https://t.co/ysyvnNOylo

— LawsInTexas (@lawsintexasusa) August 3, 2020

Unconstitutional Senior Judge Clement Allowing perjury to be committed before the Fifth Circuit by Hopkins when they filed a certificate of conference stating that they contacted the Burkes and the Burkes did not reply – when in fact Hopkins did not contact the Burkes. pic.twitter.com/FCqSWrfMCQ

— LawsInTexas (@lawsintexasusa) August 5, 2020

When Litigants are Ordered to File an Amended Brief and End Up More Distressed About the Judges than the Opposing Parties, That’s Not Good for Democracy.

Dishonorably and shockingly, now its a desperate search for judges who can provide a fair hearing.https://t.co/6KYsJfCff8 pic.twitter.com/d5XfHnqB7s

— LawsInTexas (@lawsintexasusa) July 31, 2020

United States Court of Appeals for the Fifth Circuit

No. 20-20209

JOANNA BURKE; JOHN BURKE, Plaintiffs—Appellants,

versus

 MARK DANIEL HOPKINS; SHELLEY HOPKINS; HOPKINS LAW, P.L.L.C., Defendants—Appellees.

Appeal from the United States District Court for the Southern District of Texas

USDC No. 4:18-CV-4543

ORDER:

IT IS ORDERED that Appellees’ opposed motion to strike Appellants’ amended brief is GRANTED.

IT IS FURTHER ORDERED that Appellees’ opposed motion to place Appellants’ Brief under seal is GRANTED.

IT IS FURTHER ORDERED that Appellants’ opposed motion to strike Appellees’ opposed motion to strike Appellants’ brief is DENIED.

IT IS FURTHER ORDERED that Appellants’ opposed motion for a copy of a judicial complaint and resulting opinion/decision/memorandum and the reason Judge Willett was on the panel in Thomas v. Bryant, 938 F.3d 134, 155 n.95 (2019), is DENIED.

     /s/Edith Brown Clement      

EDITH BROWN CLEMENT
United States Circuit Judge

No. 20-20209

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

JOANNA BURKE; JOHN BURKE,
Plaintiffs-Appellants,

v.

MARK DANIEL HOPKINS; SHELLEY HOPKINS; HOPKINS LAW, P.L.L.C.
Defendants-Appellees.

On Appeal from the United States District Court
For the Southern District of Texas, Houston Division;
USDC No. 4:18-CV-4543

DAVIS, W. EUGENE

COSTA, GREGG J.

CLEMENT, EDITH B.

MOTION TO CLARIFY re JUDGE EDITH BROWN CLEMENT

Appellants, Joanna Burke and John Burke (“Burkes”) now file this motion to clarify. The information the Burkes seek is required in advance of any decision to file a constitutional challenge and/or motion to disqualify Judge Clement. The underlying facts are provided below;

3-Panel Judges’ Assigned to this Appeal: As recently identified, the three panel judges appointed to this case are Judge Edith Clement, a senior judge (since 2018)[1] and two active circuit judges, namely Jennifer Elrod and Stephen Higginson.

Senior Judges are Unconstitutional: The Burkes touched on the law supporting this statement in their amended initial brief see; Case: 20-20209, Document: 00515510273, Page: 18, Date Filed: 07/30/2020, incl. footnote 5.

The Judicial Complaint against Judge Edith Brown Clement: On April 9^th, 2019, Austin civil rights attorney Jim Harrington has claimed in a judicial misconduct complaint that Senior Judge Edith Brown Clement of the U.S. Court of Appeals for the Fifth Circuit made inappropriately partisan and disrespectful attacks on other federal judges in a dissenting opinion.

The April 9 complaint noted the underlying case, Thomas v. Bryant, concerned the 2018 Voting Rights Act and alleged gerrymandering of boundaries of a Mississippi senate district that diluted African-Americans’ voting strength. Harrington isn’t a party or lawyer in the case.

“Judge Clement’s statements demonstrated a lack of respect for her fellow federal judges, a lack of judicial temperament, and a failure to maintain and observe the high standards of conduct required of federal judges,” Harrington alleged in his complaint. He claimed her comments violated federal law and the code of conduct for federal judges.[2]

As far as the Burkes can figure out, the appeal courts opinion, including the dissent by Judge Clement, caused the case to continue after the above complaint was filed;  see Thomas v. Bryant, No. 19-60133 (5th Cir. Aug. 1, 2019), 3-panel consisting of Judges Davis, Higginson and Willett with the final two sentences of the opinion stating; “One member of the panel dissents and would reverse the district court’s judgment. Detailed opinions will follow.”

This duly followed, in Thomas v. Bryant, 938 F.3d 134 (5th Cir. Sept. 3, 2019).  The opinion was authored by Judge Davis, who addresses the “dissent” continually in this lengthy opinion. To clarify, Davis would reference both Judge Clement’s dissent and the new dissenting judge who replaced Judge Clement, namely Judge Don Willett.

Judge Willett was quick to join his ousted colleague in dissenting for what many claim in press articles available on the internet, as ‘politically partisan reasons’ (e.g. Judge Willett and Clement are both republican appointees and Judges Davis and Higginson are both democratic appointees).

Specifically, the Burkes highlight the ambiguous footnote 95, wherein Davis states in the final sentence, “Instead, the dissent focuses mostly on issues not before us.” Thomas v. Bryant, 938 F.3d 134, 155 n.95 (5th Cir. 2019).

One can only assume, without further investigation or clarification, Judge Davis is referring to the complainant Harrington’s statements, wherein he states, in part that Judge Clements’ dissent included “inappropriately partisan and disrespectful attacks on other federal judges in a dissenting opinion”. To ratify this claim, the Burkes rely upon Judge Willett’s own footnotes highlighting the dissenting opinion by Judge Clement, see footnotes 47, 56, 76, 77 and 93.

Relief Requested:  The Burkes have scoured and ferreted “The Judicial Conduct Matters”, filed on or after September 17, 2015 looking to find the decision in the judicial complaint against Judge Clement. Alas, due to the intentional obfuscation of this web page[3], e.g. failing to provide decisions and complaints which are sortable, with pagination, filtering, and more for site visitors, the Burkes have been unable to source the result of the complaint filed by Mr. Harrington against Judge Clement [and while she was sitting as a Senior Judge].

In summary, the Burkes seek the following; (i) The Burkes duly request a copy of the original complaint and the resulting opinion/decision/memorandum for this complaint[4] and (ii) The reason why Judge Willett replaced Judge Clement on the panel as discussed above[5]. This will allow the Burkes to make informed and decisive decisions regarding Judge Clement and her inclusion on the Burkes case and 3-panel.

Conclusion:  The Burkes motion to clarify is essential to the Burkes case and the relief requested should be granted.

Respectfully submitted,

DATED: August 2, 2020

DAVIS, W. EUGENE

COSTA, GREGG J.

WILLETT, DON R.