Federal Law

Did Judge Don Willett Replace Judge Edith Clement Due to a Judicial Complaint in this High Profile Redistricting Case?

Judge Clements dissent included inappropriately partisan and disrespectful attacks on other federal judges in a dissenting opinion, said the complainant.

LIT UPDATE

A fast turnaround by Court of Appeals for the Fifth Circuit single judge Clement, in an order denying any and all relief to the Burkes.

Single [unconstitutional] Senior Judge Clement order summarized;

(a) Allowing perjury to be committed before the Fifth Circuit by the Appellees when they filed a certificate of conference stating that they contacted the Burkes and the Burkes did not reply when in fact the Appellees did not contact the Burkes.

(b) Allowing the amended brief to be stricken and sealed, in contradiction of the courts acceptance of the brief.

(c) Refusing to provide public information about a 5th Circuit judicial complaint (against the judge who issued this order, namely Judge Edith Brown Clement) in violation of the rules.

August 4, 2020

Circuit Mediation and Judicial Support Office
Attn: Shelley E. Saltzman
Legal Analyst
United States Court of Appeals
Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130-3408

BY EMAIL ONLY;
Shelley_Saltzman@ca5.uscourts.gov ;
pro_se@ ca5.uscourts.gov

Dear Ms Saltzman

JUDICIAL COMPLAINT AGAINST SENIOR JUDGE EDITH CLEMENT BROWN

We are reaching out to you regarding the Judicial Complaint against Judge Edith Brown Clement: On April 9th, 2019, Austin civil rights attorney Jim Harrington 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 reasons;

  • You contacted us directly regarding the processing of our 2020 judicial complaint against Senior Judge David Hittner of S.D. Texas, Houston Division.
  • We sought the answers to our questions via a motion in this court, a copy of which is attached, which was denied by a single judge – none other than Judge Clement herself (a copy of her order is attached).

We seek to obtain the following. The request is time sensitive:

  • A copy of the judicial complaint by Mr. Harrington.
  • A copy of the memorandum, if the case was disposed and/or a copy of related correspondence regarding the current status of the complaint against Judge Clement
  • Information confirming if Judge Clement recused in the case and/or how she was replaced by Judge Don Willett in the Thomas v. Bryant Appeal No. 19-60133 (5th Cir. Aug. 1, 2019).

We look forward to your earliest reply with details as requested and/or the name and contact information where we can obtain this information, should you not be the party responsible for providing this public information to the Burkes, upon request in writing.

Respectfully

s/ Joanna & John Burke

Joanna Burke & John Burke

46 Kingwood Greens Dr.,
Kingwood, TX, 77339
Tel: (281) 812-9591
Fax: (866) 705-5076
Email; kajongwe@gmail.com

Copy: Clarification Motion re Judge Clement & Order Denying request by Judge Clement.

The Complaint of Judicial Misconduct Against U.S. District Judge Harry Lee Hudspeth (October 21, 2016);

“This order will be available immediately in the public record, consistent with the requirements of 28 U.S.C. § 360(b), and will be placed on the website of the Fifth Circuit Court of Appeals. Pursuant to Rules for Judicial-Conduct and Judicial Disability Proceedings Rule 24(a)(2) and (a)(5), it is ordered that the names of the subject judge and the complainant shall be disclosed.”

EMAIL, Aug. 4, 2020:

Automatic reply: JUDICIAL COMPLAINT; re JUDGE EDITH BROWN CLEMENT.

Shelley Saltzman via fedcourts.onmicrosoft.com
6:20 PM (39 minutes ago)
to me (joanna)

I am out of the office.

Please contact the Circuit Mediation and Judicial Support Office at 504.310.7799 if you need an immediate response to your inquiry.

———–

6:59 PM (0 minutes ago)

to Shelley, pro_se

I am hard of hearing (Joanna) as explained before. We also require correspondence in writing from the court(s) to ensure we have a record of any and all correspondence. We submitted a copy of this email to the pro_se address (which you said was acceptable in the Hittner complaint). We assume our correspondence will be forwarded to the right person or we respectfully request an alternative email for the person in charge during your absence.

Are you not just working remotely? We assume most are working remote during the pandemic.

We look forward to your reply.

Stay safe.

Sincerely
Joanna and John Burke
kajongwe@gmail.com

p.s. we have copied pro_se again in this communication.

United States Court of Appeals for the Fifth Circuit

No. 20-20209

JOANNA BURKE; JOHN BURKE, PlaintiffsAppellants,

versus

 MARK DANIEL HOPKINS; SHELLEY HOPKINS; HOPKINS LAW, P.L.L.C., DefendantsAppellees.

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 9th, 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

[1] See Wikipedia (which easily identifies senior status judges, unlike the Fifth Circuit website); https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Fifth_Circuit

[2] See Yahoo! News publishing Law.com article, April 2019; https://news.yahoo.com/misconduct-complaint-alleges-5th-circuit-013225518.html

[3] See http://www.ca5.uscourts.gov/other/judicial-conduct-matters/filed-on-or-after-sept-17-2015

[4] See for example, the Complaint of Judicial Misconduct Against U.S. District Judge Harry Lee Hudspeth (October 21, 2016), which states, in part;

“This order will be available immediately in the public record, consistent with the requirements of 28 U.S.C. § 360(b), and will be placed on the website of the Fifth Circuit Court of Appeals. Pursuant to Rules for Judicial-Conduct and Judicial Disability Proceedings Rule 24(a)(2) and (a)(5), it is ordered that the names of the subject judge and the complainant shall be disclosed.”

http://www.ca5.uscourts.gov/docs/default-source/default-document-library/complaint-of-judicial-misconduct-against-u-s-district-judge-harry-lee-hudspeth-(october21-2016-order).pdf?sfvrsn=2

[5] Or in the alternative, reference to the docket entry motions or orders relevant to this appointment of Judge Willett, replacing Judge Clement, be it recusal or otherwise.

DAVIS, W. EUGENE

COSTA, GREGG J.

WILLETT, DON R.

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