Orly Taitz and the Boundaries of Civil Procedure

Quite possibly the single most entertaining jurisprudential moment of 2009 happened this Tuesday, when Judge Clay Land of the U.S. District Court in the Middle District of Georgia finally lost his judicial temper at the antics of Orly Taitz.

Orly Taitz is now infamous for her championing of the “birther” cause, whose adherents believe that Barack Obama was not born in Hawaii, but rather Mumbasa, Kenya, and therefore is ineligible to be President of the United States. We at TheCourt.ca do not use terms like “crazy” to describe individuals or movements; such language would be intemperate. Instead, let us merely say that the possibility that Mr. Obama was born in Kenya can best be described as “extremely unlikely.” (For the sake of comparison, we believe that the possibility of Editor-in-Chief Craig Scott besting Mike Tyson in a boxing match can be described as “much more likely” than the posssibility that Barack Obama was born in Mumbasa.)

Ms. Taitz filed a motion on September 9th on behalf of her client Connie Rhodes, a Captain in the United States Army, for an emergency stay of deployment.  Ms. Taitz argued Ms. Rhodes could not reasonably be deployed to combat when the Commander in Chief of the Army was not an American citizen, and therefore ineligible to issue her orders. The motion was merely the latest gambit in Ms. Rhodes’ lawsuit against Mr. Obama on the same grounds. (Furthermore, this was only one of several cases conducted by Ms. Taitz, all with the same intent to delegitimize Mr. Obama’s citizenship.) Ms. Taitz, responding to verbal admonitions from Judge Land, specifically mentioned that use of Rule 11 of the Federal Rules of Civil Procedure (“Rule 11”) was inappropriate for condemning her suit because

Rule 11 demands more of the Court than use of its provisions as a means of suppressing the First Amendment Right to Petition regarding questions of truly historical, in fact epic and epochal, importance in the history of this nation.

Judge Land disagreed, penning a 14-page opinion on September 16th that dismissed the appeal and specifically warned Ms. Taitz and Ms. Rhodes that their attempts at obtaining a court order in this affair were frivolous and that their evidence was by varying degrees faulty, nonexistent, or both. He was particularly critical of an obviously forged “Kenyan birth certificate” submitted in the original filing. Judge Land then gave Ms. Taitz until October 2nd to explain her actions, warning her that he was considering fining her under Rule 11(c)(1), which allows the court to impose “an appropriate sanction” on an attorney violating Rule 11.

At this point, it seems worthy to discuss Rule 11 and why these events are so noteworthy from a litigator’s standpoint. Rule 11 demands that when lawyers present pleadings, motions, or similar papers to the court, that

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Rule 11 is widely considered to be fairly lenient, with a significant degree of tolerance for legal action that might otherwise be considered ill-advised, unethical, or simply strange. That Judge Land warned Ms. Taitz that she might violate the Rule and threatened her with the prospect of a fine are extremely dramatic steps for an American judge to take; not unprecedented, but certainly significant of how extreme Judge Land’s offense was at Ms. Taitz’s filings. (For the purpose of comparison, Anthony Keyter has been barred from filing lawsuits against the President, his cabinet, and every sitting member of Congress in his home state of Washington over an alleged conspiracy involving, by Keyter’s own count, 14,589 people who participated in a plan to kidnap and murder him. But he has not been fined.)

Undeterred by Judge Land’s warning, Ms. Taitz filed a motion on October 5th demanding that the judge recuse himself from the case the grounds that he was influenced by “direct ex-parte communications with Attorney General Eric Holder, acting on behalf of de facto President Obama,” citing the eyewitness account of one Robert Douglas, who claimed to have seen Mr. Holder in a “little coffee shop directly across from the Court House” – on the same day that Mr. Holder was giving a speech in Los Angeles. Ms. Taitz also argued that

Judge Land may be disqualified because he has equity ownership of certain securities (e.g. Microsoft and Comcast) which are aligned both politically and economically with a key Defendant in this case, namely the de facto President of the United States, Barack Hussein Obama, in such a direct and personal way that it could be said that this Judge has a financial stake in the outcome of the former Plaintiff Captain Connie Rhodes’ original case-in-chief.

This reasoning would of course make any judge’s decision involving the American government suspect if they owned stock in just about any company whatsoever.

Finally, Judge Land’s patience with Ms. Taitz came to an end this Tuesday, when he issued a 43-page order fining Ms. Taitz $20,000 for violations of Rule 11 (noting that he could find no instance of the court previously imposing monetary sanctions in instances such as these). The decision is very readable, even to the layperson, and comprehensively discusses Ms. Taitz’ actions in court and the reasons why the court finds them unacceptable, both on the merits (or lack thereof) of her argument and the manner in which she has conducted herself.

Although it is tempting to excerpt Judge Land’s comments on Taitz’s case and cherry-pick for the most amusing portions, more important is his discussion of Rule 11, given the unprecedented nature of a fine in such circumstances. Judge Land cites the Federal Rules of Civil Procedure’s advisory committee on when a Rule 11 Sanction is appropriate, and to what degree that sanction should extend:

[1] [w]hether the improper conduct was willful, or negligent;

[2] whether it was part of a pattern of activity, or an isolated event;

[3] whether it infected the entire pleading, or only one particular count or defense;

[4] whether the person has engaged in similar conduct in other litigation;

[5] whether it was intended to injure;

[6] what effect it had on the litigation process in time or expense;

[7] whether the responsible person is trained in the law;

[8] what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; [and] [9] what amount is needed to deter similar activity by other litigants[.]

He covers each of these points in detail, answering the first seven points in the affirmative (with explanation) before turning to the question of an appropriate fine.

Judge Land first notes that Ms. Taitz did not respond to his original warning, and instead repeated that behaviour which he considered outlandish. Citing White v. General Motors, 908 F.2d 675 (10th Cir. 1990), as precedent that an attorney warned about a Rule 11 violation has the burden to demonstrate that they are not in fact violating Rule 11, he points out that Ms. Taitz failed to do so.  Since the original proposal of a $10,000 fine did not deter Ms. Taitz, Judge Land finds that clearly that financial sanction was insufficient – hence the doubling.

However, Ms. Taitz, (who previously compared Judge Land to a Soviet “puppet” and herself to Nelson Mandela) has stated that she will not pay the $20,000 fine. This miniature saga (or farce, as one prefers) is clearly not over: Ms. Taitz continues on her crusade and continues to refuse to acknowledge Judge Land’s legal authority as valid. What happens when an attorney violates Rule 11 repeatedly, even after sanction? That is truly a happening without precedent; the amazing thing is that it seems certain to happen.