Federal Law

When the Fifth Circuit Clerks are Implementing the Pro Se Roundabout Doctrine, Always Choose the Authentic Positive Leadership Method when Responding

The Burkes write to Chief Judge Priscilla Owen for answers regarding Judge Edith Brown Clement due to 5th Circuit Clerks roundabout tactics.

LIT COMMENTARY & UPDATE

Glossary;

Pro Se Roundabout Doctrine; Fifth Circuit clerks will be polite while they reply to your request. However, they will cloud the request with irrelevant information. In short, they will ensure that they do not completely comply with your request or fully answer your question. Note; These clerks will maintain this position for as long as possible, even using colleagues as a redirect tactic. Generally, these fellow clerks and colleagues are not in a position to answer the request, it is merely a further delaying tactic.

Authentic Positive Leadership Method; Be polite in return correspondence to the Fifth Circuit clerks but continue to be firm in your requests. Don’t react immediately to negative roundabout doctrine tactics, keep building your case and then when you’ve sufficient evidence, reach out directly to the Chief Judge, citing the violations and where possible support it with Fifth Circuit rules and laws which solidify your argument.

August 5, 2020

The Honorable Priscilla R. Owen
United States Court of Appeals
Fifth Circuit
600 S. Maestri Place
New Orleans, LA 70130-3408

BY EMAIL ONLY;
pro_se@ ca5.uscourts.gov
shelley_saltzman@ca5.uscourts.gov
Dear Chief Judge Owen,

JUDICIAL COMPLAINT AGAINST SENIOR JUDGE EDITH BROWN CLEMENT 

We sent a letter via email to Ms Saltzman yesterday relative to the judicial complaint which was filed in 2019 against Judge Clement. Unfortunately, we have been exasperated by your office and the constant attempts to avoid answering our request.

In light of this, we have reviewed the legal document, one which we have become very familiar, in order to cite the relevant rules therein in the hopes for judicial transparency. Before we do so, let us provide a quick synopsis of our request.

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.

Yesterday we reached out to Ms. Saltzman and expressed why we were doing so;

  • Ms Shelley Saltzman, Legal Analyst, Circuit Mediation and Judicial Support Office, US Court of Appeals for the Fifth Circuit contacted us directly regarding the processing of our 2020 judicial complaint against Senior Judge David Hittner of S.D. Texas, Houston Division.
  • We had sought the answers to our questions via a motion in this court in our pending appeal 20-20209, Burke v. Hopkins, which was denied by a single judge – none other than Judge Clement herself.
  • This information (with enclosures) was supplied to Ms Saltzman.

In the letter, we detailed our request, and expressed it was/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 concluded our letter to Ms Saltzman with this disclaimer; “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.”

Without detailing the many emails to various staff and emails at the Fifth Circuit, the latest response today, 5th August, 2020, came once again from Ms. Saltzman, who has responded as follows;

Please be advised that pursuant to Rule 23(b)(1) set out below, court personnel may not publicly disclose any information about complaint proceedings.

  1. Confidentiality

(b)    Confidentiality in the Complaint Process.

(1)      General Rule. The consideration of a complaint by a chief judge, a special committee, a judicial council, or the Committee on Judicial Conduct and Disability is confidential. Information about this consideration must not be publicly disclosed by any judge or judicial employee, or by any person who records or transcribes testimony except as allowed by these Rules.

A chief judge, a judicial council, or the Committee on Judicial Conduct and Disability may disclose the existence of a proceeding under these Rules when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.

We have read Rules 23 and 24 in great detail.[1] Ms Saltzman did not suggest our request may be considered acceptable under the following;

Rule 23(b)(3) “…and the information and exhibits may be made public.”

Commentary, p. 53; “Under subsection (b)(8), where a complainant or other person has publicly released information regarding the existence of a complaint proceeding, the Judicial Conference, the Committee on Judicial Conduct and Disability, a judicial council, or a chief judge may authorize the disclosure of information about the consideration of the complaint, including orders and other materials related to the complaint proceeding, in the interest of assuring the public that the judiciary is acting effectively and expeditiously in addressing the relevant complaint proceeding.

There is no doubt, the complaint against Judge Clement was public in nature, the internet is full of news articles about Mr. Harrington’s complaint.[2]

Furthermore, without any further information, the Burkes are unable to identify if the complaint is pending, resolved and that creates a problem identifying if the judiciary is acting “effectively and expeditiously” in relation to the complaint and what information is readily available, if any.

And, extremely relevant to our request, which again was not mentioned by Ms. Saltzman in her reply;

Rule 24, Public Availability of Decisions

Without detailing all of Rule 24, we now provide a couple of page citations which help support the Burkes request;

Commentary, p. 55; “The Breyer Committee Report further emphasized that “[p]osting such orders on the judicial branch’s public website would not only benefit judges directly, it would also encourage scholarly commentary and analysis of the orders.” Breyer Committee Report, 239 F.R.D. at 216. With these considerations in mind, Rule 24 provides for public availability of a wide range of materials.”

Commentary, p. 56; “Rule 24(b) makes clear that circuits must post on their external websites all orders required to be made public under Rule 24(a). The judiciary will seek ways to make decisions on complaints filed in their courts more readily accessible to the public through searchable electronic indices.”

The Information Available on the Fifth Circuit Makes it Impossible to Identify Judge Clement’s Complaint: We are also requesting this information as the Fifth Circuit website is not “readily accessible to the public through searchable indices”. We expressed so in our motion before Judge Clement (denied).

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[*], 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].

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

The Burkes are submitting this via email to the pro_se email as that has been the ‘general’ email the court has advised any and all correspondence should flow through during the pandemic.

Secondly, we’ve included Ms. Saltzman email, as she was the point of contact for the pending Snr Judge David Hittner judicial complaint. In other words, we do not have an email for Chief Judge Owen and hopefully this time our letter will be directed expeditiously to your inbox for review.

We thank you for your time and consideration.

As always, stay safe and God Bless.

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

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.”

[1] Guide to Judiciary Policy, Vol. 2: Ethics and Judicial Conduct, Pt. E: Judicial Conduct and Disability Act and Related Materials, Ch. 3: Rules for Judicial-Conduct and Judicial-Disability Proceedings;

http://www.ca5.uscourts.gov/docs/default-source/default-document-library/jud_conduct_and_disability_308_app_b_rev-1_0

[2] Three internet news articles follow;

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