LIT COMMENTARY

If you are not familiar with the background to this article, the run-up to this order to seal is detailed and can be found by reviewing the Judge’s page and the Burkes intervention page.

UPDATE

On Tuesday, 31st March, 2020, the motion to unseal the Burkes’ motion to disqualify Judge Pryor was denied ‘by the court’, signed by the clerk.

On Friday, 6 March 2020, the Eleventh Circuit Judge Jill A. Pryor Ordered the Motion to Disqualify (denied) be Sealed

On Sat., 7th March, The Intervenors (Burkes) Fired Back with a Motion to Unseal

MOTION TO UNSEAL BURKES’ MOTION TO DISQUALIFY

Appellants, Joanna Burke and John Burke (“Burkes”), now file a Motion  to unseal the ORDER of single Circuit Judge Jill A. Pryor, dated Friday 6^th March, 2020.  In support thereof would show the court as follows:

The Burkes will keep this fairly concise, but not as brusque as the “one-liner” denying the motion to disqualify Judge Pryor – perhaps she needed time to focus on her tardy financial disclosure report for 2018, which is still outstanding according to Lauren Spolidoro, Counsel, Committee on Financial Disclosure. The Burkes are eager to receive the untimely 2018 report, considering the amount of real estate sold and other financial transactions in that very busy year for Judge Jill Pryor.

First Amendment and Constitutional Law Professor Eugene Volokh

The Burkes reference the recent case in which Mr. Volokh intervened, in similar circumstances to the case before this court. The Burkes attach the final order unsealing the documents (Exhibit A). Mr. Volokh’s article can be reviewed online at “The Volokh Conspiracy”[1]

This court should be familiar with Mr. Volokh. He was invited to speak at the Federalist Society Annual Convention in Washington, D.C. in November 2019[2]. The specific panel: “Freedom of Speech and Private Power”[3], which seems rather appropriate in this instance.  Fellow circuit Judge Britt C. Grant[4] was the moderator.

The Burkes cite the following quotes from his editorial;

“The background, experience, and associations of the judge are important factors in any trial. When a judge’s impartiality is questioned it strengthens the judicial process for the public to be informed of how the issue is approached and decided.” Application of Nat’l Broadcasting, Inc., 828 F.2d 340, 345 (6th Cir. 1987).

“This First Amendment right of access extends to “documents and records that pertain to a proceeding in which one or more parties seek to disqualify a judge for bias,” Application of Nat’l Broadcasting, Inc., 828 F.2d at 345, because “experience and logic” support such a right, id. at 344 (internal quotation marks and citation omitted).

“Indeed, the courts that have considered restrictions on the publication of home addresses of government officials, especially when the addresses are connected to disputes about government action, have generally held that the restrictions violate the First Amendment.”[5]

“Such home and vacation home addresses should likewise not be viewed as confidential for sealing purposes, since the right of public access to court records is derived in part from the First Amendment.”[6]

“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 13 (1986) (citation omitted).

“This observation is especially apt for disqualification decisions, where questions—well-founded or not—about a judge’s ability to fairly decide a case have already been raised.”

The Burkes recognize the motion has been denied by Judge Pryor. It is within her legal supremacy. As such, this court may also take the view that no injury could be  attributed to the Burkes current appeal by sealing the Burkes Motion to Disqualify. However, that would be error.

If the court holds the view that the Burkes could not be injured in this case, the same applies to Judge Pryor. The motion is case specific and she has already ruled on the motion. The parties have all received copies. There is nothing that warrants sealing of this motion.

Mr. Volokh has made a clear case that the Judge, even begrudgingly,  has to accept the information contained in the Burkes motion is public and to seal it would be in violation of the First Amendment.

“When a motion to disqualify a judge is “based on the judge’s ownership interest in certain real estate, the public must be able to learn the location of that property so as to be able to effectively understand and investigate the merits of the motion”

The Burkes motion does not contain any information which requires such an order. After all, it is all based on public information.

The Judge also had an opportunity to correct any inaccuracies or seek to redact[7] any personal information that she believes may have been present and which would have been allowed in law. However, Judge Pryor elected to enter a “one-liner” denying the motion. In other words, she voluntarily “waived”[8] any error at that time.

The Burkes, as Intervenors appealed to this court after lower court Judge Kenneth Marra denied both intervention as a right or permissively. Intervenors argued, if  ‘as a right’ intervention was denied then, in the alternative, they were entitled to permission from the lower court ‘permissively’.  The Burkes argued various levels of permissive intervention, but relevant to this motion, that they should be allowed access to SEALED[9] documents (which was denied).

At this moment, we have a Judge who not only refuses to recuse, she now orders that the Burkes Motion to  Disqualify is sealed. How can the Burkes obtain an impartial decision from Judge Pryor when she is now also guilty of the same acts as the lower court, by sealing documents?

The Burkes know the answer. The Burkes will have to rely upon the “Noah’s Ark Doctrine”[10] in this appeal.

The Burkes now formally request the motion to disqualify is unsealed. Due Process of Law, the First Amendment, the Rule of Law and the Rule Under Law (“Nobody is Above the Law”) command this motion should be granted.

Respectfully submitted,

[1] https://reason.com/2020/02/04/judge-orders-heavy-redaction-of-motion-to-recuse/

[2] On November 14, 2019, The Federalist Society opened its 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC with a speech by Governor Ron DeSantis (FL). Governor DeSantis focused his remarks on the Florida Supreme Court and the balance of powers in the federal government; https://www.youtube.com/watch?v=brPjDXTdXIA

[3] See https://www.youtube.com/watch?v=b0X5UVsm2ws

[4] Court of Appeals profile; http://www.ca11.uscourts.gov/judges/hon-britt-c-grant and Federalist Society profile; https://fedsoc.org/contributors/britt-grant

[5] See Publius v. Boyer-Vine, 237 F. Supp. 3d 997, 1020-21 (E.D. Cal. 2017) (preliminary injunction case) (home addresses of legislators); Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1247 (N.D. Fla. 2010) (home addresses of police officers); Sheehan v. Gregoire, 272 F. Supp. 2d 1135, 1139 (W.D. Wash. 2003) (home addresses of police officers). But see Bui v. Dangelas, 2019 WL 7341671 (Tex. Ct. App. Dec. 31, 2019) (nonprecedential) (upholding injunction ordering the removal of comments containing a private individual’s home address, because plaintiff showed “the probable risk of irreparable injury—in the form of physical violence—… in the context of active threats against [plaintiff] by others”).

[6] (see Part III.A, supra); and that is especially so when, as here, the addresses are relevant to a dispute about whether the judge should be disqualified.

[7] Sealing over redaction is an abuse (of implied authority).

[8] “An argument not made is waived, whether based on federal law, the law of the forum state, or the law of a foreign state. See Pruitt v. P.P.G. Industry, Inc., 895 F.2d 734 (11th Cir. 1990) ” Continental Tech. Servs. v. Rockwell Intern, 927 F.2d 1198, 1199 (11th Cir. 1991).

[9] “The Burkes also notified the lower court that if Intervention of Right and Permissive Intervention based on (a) and (b) above is denied, in the Burkes’ reminder letter to this Court, they requested Intervention for the reduced purpose of access to sealed files and documents which will aid them with the current case, on appeal at the Court of Appeals for the Fifth Circuit, (see Doc. 359) citing the Larry Flynt intervention to unseal documents, which was granted on appeal to the US Court of Appeals for the 8th Cir., Case No. 14-1187 (2015).” – Burkes Brief, p.51-52.

[10] There are two Judges left on a 3-panel decision. The question is, does Noah believe these two Judges are honest? Do they follow the rule of law and the code of conduct? Are they worthy of admittance to the Ark?

?Intervenors appeal to CA11 after Judge Marra denies intervention as a right or permissively. Intervenors argue if permissively, they should be allowed access to SEALED docs. Judge Jill Pryor denies Motion to Disqualify. Two weeks later SEALS docs. ? @VolokhC #appellatetwitter pic.twitter.com/YycCyyIpDX

— LawsInTexas (@lawsintexasusa) March 7, 2020

What is the Noah’s Ark Doctrine? @TheFlaBar @flcourts @GACourts @blaw @ReutersLegal @MotherJones @HuffPostPol @Ocwen_Help @CFPB @CFPB_Watch @illinoiscourts @SupremeCourt_TX @JudgeDillard @atlblog @HoustonChron @TexasLawyer @cnn @ABCPolitics @SCOTUSblog https://t.co/ft6GU0pYwS pic.twitter.com/dgpO2eFofW

— LawsInTexas (@lawsintexasusa) March 7, 2020