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The honorable Attorney Hemenway, continues his hard hitting response...

v. Civil Action No. 08-2254 (JR)
(Second Part of Two Parts Submitted March 16, 2009)

There is no specific analysis of the three “objective prongs” of the Rule and how they were violated by the undersigned and what standard will be sued to assess the violations of those three prongs of the Rule which it seems to believe that the undersigned violated. Nor did the Court have any opportunity to observe the conduct of the undersigned for purposes of assessing a violation of Rule 11, given that the case was dismissed on motion without any hearings of any sort and with little having been filed other than the complaint, an amended complaint, and a motion to dismiss.

As another circuit has put it, when the case has been dismissed without trial, due process may require “some kind of hearing.” Davis v. Crush, 862 F.2d 84 (C.A.6th 1988). Id. Certainly if the undersigned is going to be sanctioned in the stead of and in place of his co-counsel because of their activities and involvement in other cases around the country, then the undersigned is entitled to a hearing to bring out just what these activities outside of the four corners of this case are,

In an extremely well-known Rule 11 case decided soon after the 1983 Amendments to Rule 11, the court held that whether a hearing on sanctions should be ordered depends on the facts of the particular case. An important factor is the judge’s participation in the proceedings and knowledge of the facts. Here the Court has not participated in any proceedings because there have been none. Nor has the Court participated in any of the proceedings around the country for which it is now holding the undersigned accountable, or seeking to do so. Rather the Court is operating on hearsay in such a broad manner that a segment of the public cannot help but see it as improper political motivation from which judges should distance themselves and avoid. Donaldson v. Clark, 819 F.2d 1551, 1561 (C.A.11th 1987) A hearing is particularly required here and I request one because the Court is dealing in hearsay about matters that are factually disputed, where there are issues of credibility. See Chamaikin v. Yefimov, 932 F.2d 124 (C.A.2d 1991). The Court is quite willing to damage my professional reputation by displacing its general dislike of the actions of my co-counsel in other proceedings in which I was not involved and of which the Court has no personal knowledge and was not a participant.

In an earlier case cited in the Wright & Miller discussion of Rule 11 which did not involve Rule 11 itself but rather monetary sanctions paralleling those under Rule 11, it was said: [t]here are, in fact, several compelling reasons why notice, an opportunity to prepare a defense, and a hearing are required before sanctioning counsel. These procedural requirements will assure that: (1) attorneys will have an opportunity to prepare a defense and to explain their questionable conduct at a hearing; (2) the judge will have time to consider the severity and propriety of the proposed sanction in light of the attorneys’ explanation for their conduct; and (3) the facts supporting the sanction will appear in the record, facilitating appellate review. Miranda v. Southern Pacific Transportation Company, 710 F.2d 516, 522-23 (Hug, J.) (C.A.9th 1983) cited in Wright & Miller at 755 Here the Court has referred to a number of facts outside of the record of this particular case and, therefore, the undersigned is particularly entitled to a hearing to get the truth of those matters into the record. This may require the Court to authorize some discovery.

The Court’s generalizations begin at the outset of its memorandum, p. 1, where it speaks of the occupant of the White House at this time as having been not been properly “vetted.” “[V]etted” is, needless to say, not a term of art in the law and, as pointed out in our first installment, and assumes facts outside the four corners of this case not pled in the complaint.

What was required was that we cite “some” legal authority for our argument, which we did repeatedly.

Yet the Court ignored the authority we cited and paid no attention to it, going outside of the record, mischaracterizing what we said and making unsupported non-specific assertions of violations of the requirement for a warrant in law or a good faith modification, extension, of that law or development of new law. In fact there is no established law as to what we have alleged and asserted other than that which we have cited. Further, it has been held by controlling authority that Rule 11 allows pleading based on evidence reasonably anticipated after further investigation or discovery. Rotella v. Wood, 120 S.Ct. 1075, 528 U.S. 549, 145 L.Ed.2d 1047 (2000).

Here we have alleged in the complaint, allegations which must be taken as true for purposes of a dismissal motion, that there are facts which point to the underlying crucial fact that the defendant Obama is not a “natural born citizen” within the constitutional meaning of that phrase. Unfortunately, the Court seems anxious not only to prevent our reaching the truth of the matter but to “chill” us and any others who may attempt to reach the truth of the matter. The Court does so by non-professional language and inference regarding concepts of issue and claim preclusion which are not warranted in law or supported by factual grounds.

I wish to point out that at the pleading stage of a case, which the Court never got beyond, a court is not well positioned to determine whether a complaint such as ours is filed for improper purposes. Rothman v. City of Chicago, 2003 WL 21148180 (D.C.Ill.2003) Yet the court has impugned my integrity. I want to repeat what I wrote in the first portion of my response to the Court’s “Show Cause” demand submitted earlier today, March 16, 2009, as required by the short notice of 11 days given me by this Honorable Court. During World War II, when only 17 (I am now 82) I volunteered to enlist in the infantry of the Army of the United States as a private. I remember well when I was being trained for deployment asking myself the question of what I should do if I were ordered to do something by a superior officer which was not legal, which is what we are alleging could well happen here. When I was promoted to the rank of Second Lieutenant, Infantry, these concerns deepened, because my actions would then affect the lives of my 40 men. This is a very serious question for any who have worn the uniform, and it was particularly serious then, in time of war. There is no support for the Court’s questioning our intentions and purpose here on the issue of legitimacy of the holder of the office of President of the United States.

Respectfully submitted,
John D. Hemenway D.C. Bar #379663
4816 Rodman Street, NW
Washington DC 20016
(202) 628-4819
NOTE: This is the second of two parts of the Show of Cause submitted
to this Court in response to the Order of March 05, 2009 requiring
Attorney Hemenway to Show Cause within 11 days why he should not
be sanctioned under Rule 11 (b) of the Federal Rules of Civil Procedure."

Highlights listed and emphasis given, IMO.

Full document found here:
Hollister Supplemental Show of Cause 03-16-091

76 posted on 03/20/2009 1:19:24 AM PDT by rxsid
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To: rxsid

God bless and protect that attorney. He’s got guts.
Are you an attorney .. and do you know if he has
recourse to a higher court or a change of venue?

77 posted on 03/20/2009 8:00:31 AM PDT by STARWISE (They (LIBS-STILL) think of this WOT as Bush's war, not America's war- Richard Miniter)
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To: rxsid

Does this all boil down to the fact that the judge felt this was tried in the “court of public opinion” and because BO was elected (shudder) he doesn’t have to hear it?

I admire their determination to have this case heard. God bless them.

78 posted on 03/20/2009 8:12:58 AM PDT by azishot (I just joined the NRA.)
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