Crime & Federalism: Will (Possible) Sociopath Use Senator Kennedy

The spectersenateethicscomplaint.com site is gone because the owner let the registration lapse - the domain name is up for grabs if anybody here wants to register it.

Posted by: Aaron | January 22, 2006 at 10:25 AM

http://myopiczeal.blogsome.com/2006/01/20/heimbecker-v-555-associates/

Posted by: JimBD | January 22, 2006 at 09:30 PM

JimBD: Who are you? Is that your blog you linked to?

Posted by: John | January 22, 2006 at 10:19 PM

don't even know enough @ blogs to even work with them I found the link

Posted by: JimBD | January 23, 2006 at 04:07 PM

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FORWARDED COPY FOLLOWS

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A member's father is involved in a late breaking controversy involving Samual Alito, who has been found to have omitted legally required data from a questionnaire he provided to the Senate Judiciary committee.

As it turns out, the member's dad - H. Gerard Heimbecker - had a case before Alito and the 3rd Circuit appellate court in which Alito along with the rest of the 3rd circuit had been asked to recuse themselves. Mr. Heimbecker has since filed a judicial misconduct complaint against Judge Alito.

The request for recusal by Mr. Heimbecker becomes relevant when viewed in light of the question number 23 of the Senate Judiciary Questionnaire which reads in part as follows:

Please provide a list of any instance during your tenure on the Third Circuit that there has been a request for you to recuse yourself from a case, motion, or matter, or when you have otherwise considered recusing yourself from a case, motion, or matter.

Question 23 is then broken down in outline form into 4 explanatory sub-paragraphs that leaves no doubt whatsoever that any request for recusal whether “real, apparent or asserted” is to be disclosed. Not only is the recusal to be disclosed, but also a detailed explanation must be given as to the procedure followed in the final determination and the reason for the decision to recuse or declining to do so.

The fact that Alito omitted the required data is not in dispute by anyone, including Alito himself. The following is from a Washington Post article on the subject: [i]After news of the complaint became public yesterday, Judge Alito wrote to Judiciary Committee Chairman Arlen Specter, Pennsylvania Republican, and advised him of the case. Also, a clerk on the 3rd Circuit wrote to say he had mistakenly overlooked the case because of a clerical error.[/i]

An objective view of the facts would indicate that the claim this omission being a “clerical error” to be dubious at best. Alito’s most recent vote on the case was cast less than three (3) weeks before President Bush had nominated him to the Supreme Court. Not only had Alito’s involvement in “555” been very recent, it had been very protracted. In the time leading up to and directly prior to his nomination, he had voted on it at least 4 times and offered written opinions.

In answering question 23 regarding recusal, Alito and his staff somehow mustered enough clerical efficiency to render a listing of 23 such cases dating as far back as 1990. How is it then that the most recent case which should have been the most fresh in everyone’s mind was somehow omitted? Wouldn’t Judge Alito (or anyone else possessing even a small degree of reading comprehension) have picked up on this glaring “clerical error” immediately through a quick proof-reading of the responses that were submitted?

Posted by: JimBD | January 23, 2006 at 06:24 PM

Dear Mr Mike the Law Man, you've been sent PDF's by email for the 1). Original Motion to dismiss the 3rd Circuit dated Oct 6, 2003, 2). a Request to transfer case to another Circuit sent 1/22/2006, 3). Fax confirmation and letter of Jan 22, 2006 and Dec 16,2005 to WHITE HOUSE informing them of Alito's error, 4). Letter to Alito dated Jan 22, 2006 mentioning Dec 11, 2005 reminder lettter to him about missing recusal case #03-2180. ( What's ironic is that is the letter that inform's him that he either Forgot or didn't - he chose to say "I Forgot". This is a short time before President Bush nominated him for his new post. "Thar's a 'ole lot a fergettin' going on down thar don't ya tink" ) Let me know of ANYTHING else you need concerning this "bizarre case like this one " because you have NO idea HOW right you are and how bizarre it really is. I'll try my best to get it for you. You just CAN'T make this stuff up, this could be the biggest TEST of your lawyer oath.

Posted by: JimBD | January 24, 2006 at 09:37 PM

Mike Esquire, did you get a chance to read the so called 'sociopath's' documents concerning the actions of some slimy lawyers. No doubt you have taken ill and are recuperating from your case of shock and dismay. Justice does prevail - right?

Posted by: JimBD | January 25, 2006 at 05:20 PM

I'm Back! You've ignored the emailed factual filed documents. You understand what they say & mean - your a lawyer, right?.....WWW.NoOneisAbovetheLAW.com tells the real story behind this crap nomination crafted by the infamous manipulating Sen. Specter (D)(R)(?) ......... have a backbone! .......have a decent pair!........have something you can hang your hat on!........... have something your children &/or grandchildren can look to and say "my dad/grandPop" was the one who remembered to the 'Right thing all the time.'

Posted by: JimBD | January 26, 2006 at 07:16 PM

Jim: I read all of the documents you sent me. I am unpersuaded that Judge Alito did anything wrong.

Posted by: Mike | January 26, 2006 at 08:58 PM

So it's OK that one Judge can cover up another Judge? is THAT what you are admitting too? I want to make sure I get the correct answer.

Posted by: JimBD | January 26, 2006 at 09:17 PM

Mike update: not too many peole have this one! go to: http://www.nooneisabovethelaw.com/pages/6/index.htm The infamous 3rd Circuit had J Roth do this one. (She is friends with Sen Biden DE because her husband was also in DE) This is to keep Binden on Specter's side on this issue. But it looks like since she brought up all these old issues Heimbecker did the right thing to respond to them all. Note they didn't publish it.

MEMORANDUM OPINION AND ORDER

RE: In the Matter of a Complaint Filed Under

28 U.S.C. 351. et seq.

J.C, No. 06-04

To facilitate the reading of this Memorandum Opinion by the general public, the footnotes have been moved to the end of the document and the names of any individuals referred to in this document have been inserted. The rebuttal, which will be the basis of an appeal, has been inserted in bold at the appropriate locations. The appeal must be filed by February 27, 2006. It is presumed that the 3rd Circuit will retain jurisdiction should Judge Alito move to the Supreme Court.

JUDICIAL COUNCIL OF THE THIRD CIRCUIT

J.C. No. 06-04

IN RE: COMPLAINT OF JUDICIAL MISCONDUCT

OR DISABILITY

ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351

MEMORANDUM OPINION

(Filed: January 26, 2006)

PRESENT: ROTH, Circuit Judge[i]

This is a complaint filed pursuant to 28 U.S.C. § 351 against a United States Circuit Judge [Judge Alito]. [Judge Alito] has been nominated by the President to a different position within the federal government.[ii] According to [Heimbecker], [Judge Alito], as part of the proceedings before a Senate Committee in regard to his confirmation, was asked in a written questionnaire, "Please provide a list of any instance during your tenure on the Third Circuit that there has been a request for you to recuse yourself from a case, motion, or matter, or when you have otherwise considered recusing yourself from a case, motion or matter."

Judge Alito has admitted failing to include 03-2180 and blamed it on a computer coding error.

The complaint alleges that [Judge Alito] has violated Canon 2A of the Code of Conduct for United States Judges by failing to disclose that he had participated in the consideration of an appeal filed by Heimbecker, in 2003

Canon 2A (2) Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
despite the fact that [Heimbecker], had filed motions seeking the recusal of all judges of the Court of Appeals. [iii]

Judge Roth’s use of the word despite infers that motions seeking the recusal of all judges is unusual when in fact 16 of the 23 cases that Judge Alito submitted on his questionnaire requested mass recusals.
In an "Amendment to Complaint J.C. 06-04," [Heimbecker] avers that after the filing of this complaint became public, [Judge Alito] amended his answer to the questionnaire to include [Heimbecker's] case.

Judge Roth ignores the basis of the "Amendment to Complaint J.C. 06-04," specifically, the failure of Judge Alito to amend his answers to the Senate Committee Questionnaire soon expeditiously, or at the very latest, while testifying before the Committee.
The requests to disqualify which [Heimbecker] alleges [Judge Alito] failed to disclose to the Senate Committee sought the recusal of the entire Court of Appeals and were not addressed specifically any individual conflict of interest which [Judge Alito] may have had.[iv] Instead the motion sought the disqualification of all members of the Court based upon the fact that one of the potential witnesses in the action, [Louis Fryman], was related by marriage to [Judge Becker] a senior judge of the Court

The allegations since the beginning of the litigation involve the subporning of perjury in the original private criminal complaint and the orchestration of moving the case to the federal district court where his brother-in-law, Judge Becker, sat as Chief Judge of the Third Circuit.
and because of [Heimbecker's] disagreement with two prior decisions of the Court denying petitions for writs of mandamus which sought to have [Judge Davis who was] assigned to his case disqualified. [Judge Alito] was not a member of either of the three-judge panels which denied those petitions.

Totally irrelevant.
One of the petitions, however, was submitted to the entire court of nine judges for rehearing. [Judge Alito] was one of the judges who considered the petition for rehearing.

The clerk referred [Heimbecker's] initial motion to disqualify to a three-judge panel of the Court of which [Judge Alito] was a member. That panel denied the disqualification motion as it applied to them and affirmed [Judge Davis's] dismissal of Heimbecker's civil action. [v]

Totally irrelevant.
This is the third complaint of judicial misconduct which Heimbecker has filed based upon answers which judges have given on questionnaires submitted in regard to Senate Committee hearings by judges who had been involved with his cases.

Judge Alito has admitted his failure to include 03-2180 on his questionnaire on this complaint

The two earlier complaints addressed answers given during his Senate confirmation proceedings by the District Judge Davis who decided Heimbecker's civil action.

Not true The first complaint JC 04-35 concerned Judge Davis’s fabrication of his civil career at the Ballard Spahr law firm who represented the defendants in Heimbecker v. 555 Associates et al.

The second complaint J.C 05-16 was concerned with the Appearance of Impropriety on the role of Judge Davis in two cases wherein approximately $2,800.000.00 of taxpayer’s money went to the Specter family law firm while Senator Specter was failing to investigate the perjury of Judge Davis.

Those complaints were Dismissed pursuant to 28 U.S.C. §352(b)(l)(A)(i)(ii) and (iii).

I

The judicial misconduct statute provides a remedy if a federal judicial officer, "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts." 28 U.S.C. § 351 (a). A complaint brought under the statute may be dismissed if it is not cognizable under the statute, is directly related to the merits of a decision or procedural ruling, or is legally frivolous or lacks sufficient evidence to raise an inference of misconduct. 28 U.S.C. § 352(b)(l)(A)(i-iii).

Section 352(b)(l)(A)(ii) (formerly 28 U.S.C. § 372(c)(3)(A)(ii)), which provides for dismissal of complaints related to the merits of a decision or procedural ruling, reflects Congress' concern that a misconduct complaint not be used as vehicle by which disappointed litigants may challenge judicial action or inaction occurring in the course of litigation which is reviewable by appeal or mandamus. [vi] The Senate Report on 28 U.S.C. 372(c) states, "It is important to point out what subsection (c) does not mean; it is not designed to assist the disgruntled litigant who is unhappy with the result of a particular case." S. Rep. No. 362, 96th Cong., 2d Sess. 8 (1980), reprinted in 1980 U.S.C.C.A.N. 4315, 4322.

Judge Alito’s failure to be honest with the Senate Judiciary Committee is the issue raised in the Judicial Misconduct Complaint, not the results of any prior litigation.
II

The complaint must be dismissed pursuant to 28 U.S.C. § 352(b)(l)(A)(i) and (iii) as not cognizable under the statute and legally frivolous or lacking sufficient evidence to raise an inference of misconduct. The conduct complained about does not in any way affect or reflect upon [Judge Alito's] ability to perform his judicial duties with the Court of Appeals, and certainly does not constitute the kind of serious conduct to which the judicial misconduct statute is directed.

What do you call serious? The questions remains why Judge Alito only told the Senate Judiciary Committee about the recusal issue after it was made public and not after he was reminded of his “lapse.”

See Hastings v. Judicial Conference of United States, 593 F.Supp. 1371, 1382-83 (D.D.C.1984). [Heimbecker's] sole assertion is that Judge Alito's allegedly incomplete answer to the Committee's questionnaire will bring the judiciary into disrepute.

Lying to the Senate does bring the Judiciary into disrepute. Further, Heimbecker is asserting Judge Alito’s incomplete answers were meant to prevent the disclosure of Judge Davis’s perjury to the Senate Judiciary Committee from becoming public.
[Judge Alito's] conduct was part of a legislative, and not judicial, proceeding. While there may be instances in which a judge's extra-judicial conduct calls into question the integrity of the judiciary to the point that it may be considered under the statute, this is not one of them. In response to the Committee's question, [Judge Alito] asked the Clerk's Office for the Court of Appeals for a list of all cases in which he considered a motion to recuse. Because of a mistake in the Clerk's Office's computer coding system, [Heimbecker's] case—which did not allege any conflict of interest pertaining to [Judge Alito] aside from his membership on the Court—was not included.[vii] [Judge Alito] has since amended his answer to the Committee's question to include [Heimbecker’s] case.

Judge Alito only amended his answer after this Judicial Misconduct Complaint was filed and then made public
[Judge] Alito has done nothing to call into question the integrity of the judiciary, and his conduct does not come within the scope of the judicial misconduct statute or the Code of Conduct for United States Judges. As one Judicial Council has recently stated, "It is important to note that the overall purpose of the Judicial Conduct and Disability Act is ... to protect the judicial system from further acts by a judicial officer that are detrimental to the fair administration of justice." In re: Complaint of Judicial Misconduct, 425 F.3d 1179 (Judicial Council of the Ninth Circuit 2005). See also In re: Complaint of Judicial Misconduct, 10 F.2d 99 (3rd Cir. Judicial Council 1994). Judge Alito has not engaged in conduct that is detrimental to the fair administration of justice.

The intended scope of the misconduct statute is demonstrated by the legislative history of the predecessor to the current misconduct statute, 28 U.S.C. § 372(c):

It should be stressed that Congress's concern ... was focused on a judge's judicial conduct and not primarily on personal extrajudicial behavior. It was for this reason that separate standard for misbehavior, "conduct prejudicial to the administration of justice by bringing the judicial office into disrepute," was deleted by the Senate Judiciary Committee for fear that such a general disrepute standard directly embodied in the statute could be used to intrude into a judge's personal life unrelated to his or her judicial conduct. See 125 Cong.Rec. S15.385 (daily ed. Oct. 30, 1979) (statement of Sen. Thurmond).

Hastings v. Judicial Conference of United States. 593 F.Supp. 1371, 1382 n. 28 (D.D.C.1984) (As quoted in In re: Charge of Judicial Misconduct, 62 F.3d 320, 322 n.l. (Judicial Council of the Ninth Circuit 1995)). I cannot conclude that there has been "conduct prejudicial to the effective and expeditious administration of the business of the courts" as applied to the federal courts within this Judicial Circuit. Accordingly the complaint is dismissed pursuant to 28 U.S.C. §352(b)(l)(A)(i)and(iii).

/s/ Jane R. Roth

Circuit Judge

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[i] Acting pursuant to Rule 17(F), Rules of the Judicial Council of the Third Circuit Governing Complaints of Judicial Misconduct and Disability.
Chief Judge Scirica decided JC 04-35 . After holding the complaint for 292 days, he decided that, since Judge Davis was not a member of the 3rd Circuit when he committed perjury, the 3rd Circuit lacked jurisdiction. He apparently“recused” himself from deciding this complaint.
Acting Chief Judge Nygarrd decided JC 05-08 . He advised Heimbecker the word “requires” in the statute did not mean mandatory, it meant” aspirational goal”. He apparently “recused” himself from deciding this complaint.
Acting Chief Judge Roth decided this case and “opened the door”.
[ii] Although [Heimbecker] has announced the filing of this complaint to the news media resulting in several media reports, the identity of the Complainant and Respondent will be shielded from disclosure in this decision as required by 28 U.S.C. § 360(a) and Rule 16(A)(1), Third Circuit Rules Governing Complaints of Judicial Misconduct and Disability.

Fortunately, for America the Complainant, in this case Heimbecker, is not bound by the rules intended to shield the outrageous conduct displayed by the 3rd Circuit
[iii] That Canon States:

(2) Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.

(a) A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
[iv] Two separate motions were filed seeking the disclosure of the Court. In the second, which was filed after the three-judge panel had decided the appeal, the judges of the Court were each named individually. The allegations concerning disqualification were the same. To the extent that they concerned him, [Judge Alito] declined to disqualify himself from hearing the appeal. [Heimbecke]r also appears to allege that on the basis of his requests, [Judge Alito] also should have disqualified himself from the consideration of subsequent judicial misconduct complaints which [Heimbecker] filed as to [Judge Davis] and [Judge Scirica],another judge of the Court of Appeals.
As a pro se Complainant Heimbecker doesn’t know what “motions seeking the disclosure of the Court” means.
[v] In its per curium opinion affirming the District Court, the panel noted that [Heimbecker’s] case was, "part of a lengthy series of lawsuits arising out of a decision made in 1994 to deny [Heimbecker] the renewal of his lease to operate a food concession shop in an office building...."

In actual fact, the litigation arose after Heimbecker discovered Ronald Rubin was the Broker of Record for individual’s employed by Rubin who were engaging in real estate without licenses, and when Rubin was questioned, had his lease terminated. Heimbecker moved across the street and that is the end of the lease issue. The licensing issue is the crux of the litigation, from the private criminal complaints to the malicious prosecution action to the insurance fraud.
The District Court had dismissed certain claims in the complaint on res judicata grounds because they had been, or could have been, presented in two separate lawsuits which Complainant had filed in two different county courts. It also dismissed the remaining RICO and contract claims presented in the complaint as being time-barred, or alternatively, because of a lack of standing (as to the RICO claims) or a failure to adequately allege an identifiable loss (as to the contract claims). The dismissal of the complaint was affirmed by the Court. Judge Davis’s failure to disqualify himself was also affirmed for the third time in the Court's decision.

[vi] Effective November 2, 2002 the Judicial Improvements Act of .2002 replaced the former 28 U.S.C. § 372(c), which governed complaints of judicial misconduct or disability, with 28 U.S.C. § 351, et seq. Although certain additions and minor changes were made in regard to the complaint procedures, the substance of the former 28 U.S.C. § 372(c) remains intact.

[vii] A January 20, 2006 letter from Patricia S. Dodszuweit, Chief Deputy Clerk, to [Judge Alito] which explains why [Heimbecker's] motion for disqualification was not detected when a report listing all motions seeking for disqualification which he had considered was prepared for [Judge Alito] attached. Since the case management docketing system only has the capability to search for codes, this inadvertent error caused the motion to be missed.

The question remains, why, since December 11, 2005, when Heimbecker reminded Judge Alito of the “error" ,did Judge Alito during an estimated 700 Questions and 12 hours of testimony after he took the oath to tell the “whole truth” not amend his answer until Heimbecker filed the Judicial Misconduct Complaint and the complaint was made public

Posted by: JimBD | February 07, 2006 at 06:12 PM