In re Michelle Jefferson

[Jacob Rabinowitz]

(( Unable to post in appeals section, and originally posted this in the RageMP area not here. Please delete the old topic and move this one to the appeals section. Thanks! ))

 

In re Michelle Jefferson

On Appeal from Superior Court

 

Case Number: YY-XNNN

Prepared by: Jacob E. Rabinowitz III, Donald J. Wright

 

EMERGENCY INTERLOCUTORY APPEAL AND PETITION FOR INJUNCTION

_______________________________________________

 

Appellant Michelle Jefferson, by and through attorneys Jacob E. Rabinowitz III and Donald J. Wright, makes application to the Appellate Division for an emergency interlocutory appeal of an immediately reviewable matter occurring within Case 24-CV-1034 under 28 U.S.C. 1292(b) and 28 U.S.C. 1292(d)1.

 

I. DENIAL OF APPOINTMENT OF COUNSEL, INFRINGEMENT OF RIGHTS UNDER 28 U.S.C. §1654, ET SEQ.
 

1. Movant submitted a motion for addition of co-counsel with the approval of the plaintiff, asserting her rights under Fed R. Civ. P. 44, Right to and Appointment of Counsel, and 28 U.S.C. § 1654. The trial court issued a responsive order denying the motion for addition of co-counsel. Movant possessed grounds for its original motion as movant has been retained by Plaintiff as substitutional or supplementary counsel for this matter. Furthermore, Movant possesses grounds for this motion as a result of the trial court's denial of the original motion for appointment of additional counsel.
    

2. Plaintiff has a right to appoint counsel of her choosing pursuant to 28 U.S.C. §1654. By the gender/number canon of construction, the singular of any term used in law includes the plural. Here, the word "counsel" adopts the meaning of the plural "counsel" by the applicable canon of construction.
    

3. In justifying its denial of the motion, the trial court is alleged to have abused its discretion in a manner that is subject to immediate review by an appellate court under 28 U.S.C. 1292(b) and (d)1. The trial court's order is immediately appealable and eligible to interlocutory appeal to the appellate division if it involves a controlling question of law as to which there is substantial difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.
    

4. The trial court's denial of the motion deprives Plaintiff of a fundamental right to appointment of counsel which is likely to deprive her of the ability to, through appointed counsel, submit the requisite motions and materials that would advance the ultimate termination of the litigation. The trial court's responsive order impinges Plaintiff's ability to effectively represent her argument through appointed counsel.
    

5. The trial court admits in its denial of the motion that Plaintiff has the right to appoint counsel, but qualifies this right by stating in its order "this right does not supersede the court’s duty to ensure that the litigation process remains fair, orderly, and free from undue delays or procedural complications". The trial court implies that the litigation process would be made unfair, disorderly, or unduly delayed, or procedurally complicated by the introduction of co-counsel in this matter. The trial court's order lacks a justification for its reasoning in making this determination. Neither movant nor plaintiff was given a hearing to determine whether the introduction of co-counsel would tend to introduce such unfairness, disorder, undue delays, or procedural complications.
    

6. The nature of Plaintiff's case is a civil rights matter, which is a particular area of law with its own intricacies and precedents. Movant attorneys Donald J. Wright and Jacob E. Rabinowitz III are both trained and experienced civil rights attorneys whose combined experience exceeds fifty years. As such, any such complications introduced to the proceeding by movant's application, on behalf of the retaining client, are necessary and proper due to the subject matter involved.
    

7. The trial court states in its responsive order, "The court's responsibility extends to managing the docket in a manner that avoids the potential for inefficiency or conflict among counsel, which could ultimately prejudice the Plaintiff or the proceedings as a whole." The trial court alleges, without justification or evidence, that the introduction of co-counsel would prejudice either the Plaintiff or the proceedings. Neither movant nor plaintiff was given a hearing to determine whether the introduction of co-counsel would tend to introduce such prejudice. In making such an order, the trial court has acted sua sponte in a manner that prejudices the proceeding in favor of Defendant.
    

8. The trial court states in its responsive order that "Courts possess broad discretion to make determinations that preserve the integrity of the judicial process, including the authority to limit the participation of counsel when it is necessary to prevent potential conflicts, confusion, or delay." In making this claim, the trial court has failed to substantiate the statute or rule from which it derives this authority. The trial court errantly references Fed R. Civ. P. 1, which is a statement of purpose, as justification. However, Fed. R. Civ. P. 1 is not a substantive rule that is enforceable in this way. The rule does not grant the trial court discretion to take an action such as denying Plaintiff the right to appoint, supplement, or dismiss counsel at her own discretion. Instead, the court has attempted to define for Plaintiff what constitutes effective counsel. 28 U.S.C. §1654 states substantively, "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein." Fed. R. Civ. P. 1 being an administrative regulation that is superseded by 28 U.S.C. §1654, it is subject to the restrictions imposed therein. The superseding statute states clearly that "the parties may... manage and conduct causes therein". The trial court has erred in its failure to substantiate not only a reason why Plaintiff does not possess this right, but has also failed to produce a substantive rule or statute granting the trial court discretion over this specific type of matter. While courts indeed possess discretion over how to apply many rules, this is not such a rule and the trial court is compelled by the sixth amendment as well as the superseding statute to permit Plaintiff her right to appoint counsel.
    

9. The trial court acknowledges that its order will be subject to de novo review if abuse of discretion can be shown in an interlocutory appeal.
    

10. The trial court errantly justifies its order by referencing Landis v. North American Co., 299 U.S. 248, 254 (1936), which held that a stay pending the decision of a case being tried in another district court was an abuse of discretion and that a court may not by its own discretion stay proceedings pending a matter being held in another district court. The precedent referenced is irrelevant to movant's application because there is no second case being tried in another district court. Rather, there is a question of law that must be answered and whose answer may significantly impact the outcome of the present matter being tried before the trial court. As such, the application of this precedent is prima facie erroneous.
     

11. The reasoning that follows the trial court's errant application of Landis begins with a premise that it has discretion over whether to stay such matters. However, as referenced in [10] above, the trial court does not have such discretion under Landis. Rather, the trial court is impelled by the administration of proper justice to stay these proceedings pending appeal because the nature of the appeal to be filed is of a matter that, if the trial court is reversed, would have a substantial and irreparable impact on the ability for this case to proceed. Furthermore, if Plaintiff is denied the ability to have motions, depositions, arguments, evidence, or other items submitted by the co-counsel she intends to appoint, she will have been denied her rights under the fifth amendment and many other related, subsequent statutes.
     

12. The trial court asserts that there is no grounds for interlocutory appeal, however the trial court lacks jurisdiction to prevent the filing of an interlocutory appeal of the responsive order. As such, movants intend to file an appeal immediately and to move the appellate court to enjoin the trial court from continuing proceedings until resolution of the appeal from the responsive order. The trial court further asserts that it finds no significant difference in opinion, but once more the trial court lacks jurisdiction over any interlocutory appeal that may follow. Even while the trial court may assert that it has a legitimate basis, movants have substantial legal basis for disagreement and therefore this matter is immediately appealable under 28 U.S.C. 1292(b).
     

13. The trial court states in its responsive order that Plaintiff is "adequately represented" by counsel. However, neither movant nor existing counsel has been given a hearing to ascertain whether such counsel is adequate. The trial court has acted sua sponte without consulting Plaintiff's counsel of record concerning any inadequacies that may be present. In doing so, the trial court has erred and failed to adequately analyze whether such counsel is adequate given Plaintiff's argument and present legal challenges. The trial court states openly in its responsive order that it may reconsider the necessity of additional counsel "should circumstances evolve in a manner that justifies additional legal representation without compromising the integrity of the proceedings." In making this statement, the trial court reaffirms that it is acting sua sponte to impinge upon Plaintiff's right to "manage and conduct causes therein" as the right is substantiated in 28 U.S.C. §1654.
     

14. The trial court states in its responsive order that proceedings will continue while any subsequent appeal of the order is pending. Movant intends to appeal this immediately reviewable order within the time period prescribed by law, and continuing this case while an appeal is pending would tend to cause irreparable harm to movant's ability as co-counsel to adequately represent Plaintiff, thereby disadvantaging Plaintiff. If movant is unable to timely file motions on behalf of Plaintiff, Plaintiff may not be able to represent her case in the best light.
     

15. Where irreparable harm is likely and demonstrable, the trial court is impelled, by its duty to ensure equal justice under law, to stay proceedings pending review because a successful appeal is likely to do irreparable harm. If the trial court continues proceedings and the appellate court later overturns the order after Plaintiff's counsel has been unable to adequately represent her case, the entire proceeding will be subject to dismissal by the appellate jurisdiction, with a new trial to follow. The trial court has a duty to avoid unnecessary delays in the administration of justice, and an order for a new trial would certainly be such a delay that the trial court is duty-bound to avoid.
     

16. Movant petitioned the district court for a stay of proceedings pending appeal, demonstrating that irreparable harm may ensue from the trial court’s failure to stay.
     

17. The trial court issued a responsive motion denying the motion to stay proceedings, citing Link v. Wabash R. Co., 370 U.S. 626 (1962), (hereafter “Link”). The trial court erred in its application of Link because the cited matter ruled narrowly on the dismissal of actions, not motions, where there was reason for the court to believe a plaintiff was failing to adequately prosecute a case. In the matter underlying Link, the prosecution did not appear for required pretrial conferences and the trial court dismissed the case entirely due to this failure to prosecute. Appellants herein did not engage in any actions that are substantially similar to those described in the syllabus of Link.
     

18. The trial court further contends in its order responsive to the motion to stay proceedings “[the right to counsel], however, does not extend to an absolute entitlement to an unlimited number of attorneys or co-counsel.” The trial court errs by failing to substantiate a legal basis, opinion, rule, or statute that authorizes it to exercise discretion over such a matter.
     

19. The trial court, in justifying its order to deny the motion to stay proceedings, cites Klinghoffer v. S.N.C. Achille Lauro (hereafter “Klinghoffer”). The trial court here errantly applies Klinghoffer in attempting to justify that that there is no controlling question of law because the cause for appeal does not involve “a novel or complex question of law that would alter the course of the litigation in a manner requiring immediate appellate intervention”. Appellant submits that the trial court has impinged upon the right of the Plaintiff in original jurisdiction to have counsel of her own choosing by, sua sponte, restricting how many attorneys Plaintiff may hire and have at her disposal. Appellants here contend that such a question is in fact a controlling question of law because of the grave implications it would have upon a great number of cases if upheld. The trial court contends that “a novel or complex question of law that would alter the course of the litigation in a manner requiring immediate appellate intervention”. Appellant respectfully disagrees. If parties to actions can be limited in the size of their legal team simply at the discretion of a court, then entire legal specialties may be excluded from a party’s repertoire of legal counsel thereby impinging upon their ability to best represent their case. Contrary to the trial court’s belief, the trial court does not have the authority to apply discretion in this way, and in so doing without staying proceedings pending appeal of its order deprives Plaintiff of her right to effective counsel. If trial courts truly have such wide-spanning discretion, departing from general administration of their courtroom and encroaching upon Plaintiff’s ability to choose her own counsel, there are surely grave implications that may prejudice a great number of cases. We contend that, by its very nature and grave consequences that may follow, this question is in fact a novel legal question.
     

20. The trial court further argues in its responsive order to Appellant’s motion to stay proceedings that the movant therein has speculated and failed to substantiate its claim that irreparable harm may flow from the trial court’s failure to stay proceedings. The trial court erred by failing to consider the argument that both timely filing deadlines and the very nature of civil procedure provides that a petitioner may lose an opportunity to make certain arguments if they fail to make the requisite filings or submissions to the court when they are required by the rules of civil procedure. If a brief is not submitted in the correct step of the civil procedure, or if evidence is not submitted at the correct time, there is a high likelihood that such a brief or evidence would be excluded from consideration in the trial at hand. Therefore, since such an exclusion would tend to deny Plaintiff the ability to represent her case in its best form, the case becomes inherently prejudiced against Plaintiff and such prejudice may result in loss of the action. The consequences of the trial court’s failure to stay proceedings are potentially dire, and may result in Plaintiff ultimately losing her case if she is unable to make the best arguments with the correct evidence. Plaintiff-Appellant submits to this court that it did in fact substantiate its reasoning and did not speculate, but rather extrapolated from the mere circumstances of civil procedure and the consequences of breaking step with such procedure.
     

21. The trial court applies Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (hereafter “Winter”) in justifying that Plaintiff-Appellant is not entitled to a stay because it has not substantiated that it is likely to succeed on the merits of its appeal. However, in demonstrating the trial court’s numerous errors in interpreting the controlling case law it attempts to cite, and by the very nature of the trial court’s failure to substantiate, beyond a wholly unsupported claim to discretion flowing from the purpose statement of the Fed. R. Civ. P. 1, Plaintiff-Appellant submits that it has successfully demonstrated that it is likely to succeed on the merits and, in so doing, makes application for a injunctive relief against the trial court, staying the proceeding and enjoining it from continuing such proceeding until the final ruling of this court.
     

22. This court has jurisdiction over underlying matter because it implicates an abuse of discretion. Plaintiff-Appellant has substantiated a comprehensive argument as to why the trial court erred in its application of discretion and implicated a controlling question of law which this court has jurisdiction to rule upon. This court is required by the standards of appellate review to give a reasonable degree of deference to the trial court, however Plaintiff-Appellant contends that it has demonstrated substantive grounds for this court to give no deference and to review this matter de novo.

 

II. GROSS JUDICIAL MISCONDUCT IN ERRANT AND INAPPROPRIATE USAGE OF ARTIFICIAL INTELLIGENCE TOOLS TO EVALUATE CASES AND COMPOSE BRIEFS
 

1. Judge Hockenbeyer’s orders have consistently utilized artificial intelligence over 90 percent, the judgment by Judge Hockenbeyer “Denying the Motion to Reconsider” was detected to have 0 human input, resulting in a decision 100% generated by Artifical Intelligence (AI).

 

2. Although the Federal Rules under Rule 11 permit an attorney to certify a statement that is presented by law clerks, and AI. No such exception exists for a judge. Nor is an attorney permitted to file and certify any document that contains false information. See Smith v. Farwell, et al., No. 2282CV01197 (Suffolk Super. Ct. Feb. 12, 2024), Mata v. Avianca, Inc., 2023 WL 4114965 (2023), and Kruse v. Karlen, No. ED111172 (Mo. App. E.D. Feb. 13, 2024).

 

3. Judicial Canon 1 states that “A Judge Should Uphold the Integrity and Independence of the Judiciary.” As AI is not a sound source of information (referred to as AI hallucinations) a judge’s integrity cannot lie solely on the use of such technology as he has and therefore has permanently tainted the record. Iit is unknown what AI tool he utilized, and where that AI tool pulled its analysis from. A judge who utilizes AI for 100%,  and 94% respectively to rule on our motions is both not impartial or independent.
    

4. The tools used to analyze and detect the use of artificial intelligence include application of Pareto Principle used-word rank distribution detection.
    

5. Judge Hockenbeyer’s actions are inexcusable and provide for a remedy of his recusal, and Plaintiff-Appellants recommend and encourage review by the appellate court and Supreme Court if necessary.
    

Attachments

 

Reference A. AI Detection Analysis of Order Denying Motion for Appointment of Co-Counsel

 

Reference B. AI Detection Analysis of Order Denying Motion to Stay

 

Reference (3) AI Detection Analysis of Order on Motion to Compel Production of Evidence

 

III. PRAYER FOR RELIEF

Plaintiff-Appellant Michelle Jefferson, by and through her attorneys Donald J. Wright and Jacob E. Rabinowitz III, respectfully requests that this court grant the following relief:

1. A temporary injunction granting a stay of the trial court proceedings pending the final order of this court;

2. A permanent injunction enjoining the trial court from restricting further appointment of counsel, and direction that Plaintiff-Appellant Michelle Jefferson factually has such a right to appoint counsel of her choosing in the enumeration she so chooses;

Furthermore, if the trial court proceeds into a further step of the trial court procedure and if such continuance would have an impact on Plaintiff-Appellant’s ability to best represent her case, Plaintiff-Appellant respectfully requests the following relief:

1. A permanent injunction foreclosing on the underlying action, dismissing it without prejudice, and granting a new trial with a new judge.

2. Sanctions and attorney fees at cost of the court.

 

_______________________________________________

Certification. The undersigned swears or affirms, under penalty of perjury, that the information contained herein is truthful to the best of his knowledge.

 

Sworn this 19 day of September, 2024 by:

 

/s/ Jacob E. Rabinowitz

Jacob E. Rabinowitz

Attorney for Plaintiff

[email protected]

 

 Donald J. Wright
Attorney for Plaintiff
[email protected]

[Fabi]

COURT OF APPEALS, SECOND APPELLATE DISTRICT

DIVISION ONE

 

PLAINTIFF: Michelle Jefferson

DEFENDANT: Los Santos Police Department et. al.

 

CASE NUMBER: B19736

 

 

 

Appellant,
 

ORDER GRANTING PETITION FOR TEMPORARY INJUNCTION

_______________________________________________
 

This matter is before the Court for consideration of Ms Michelle Jefferson, through and by Mr Jacob E. Rabinowitz III's and Mr Donald J. Wright's (hereinafter "Appellant") for an emergency interlocutory appeal of an immediately reviewable matter occurring within Case 24-CV-1034. After considering the submissions of the parties and the applicable law, the Court will grant the petiton for a temporary injunction granting a stay of the trial court proceedings, pending the final order of the Court.

 

ORDER

 

The Court finds that the Appellant has met the burden of proof necessary for requesting a temporary stay of proceedings in accordance with 28 U.S.C. § 2283. The petition requesting that the trial court proceeding is stayed until the Court rules on the remaining listed prayer for relief forwarded by the Appellant is GRANTED.

 

_______________________________________________

IT IS SO ORDERED.

 

DATE: SEPTEMBER 19, 2024

 

 

Hon. Michael Rouker 

Associate Justice

Court of Appeals, Second District, Division One

 

 

(( @Kotwica @Jacob Rabinowitz @almightybounter @John Gilbane @nfr.ai @Userone ))

Edited September 19, 2024 by Fabi
Fixed missing phrase.

[Fabi]

COURT OF APPEALS, SECOND APPELLATE DISTRICT

DIVISION ONE

 

PLAINTIFF: Michelle Jefferson

DEFENDANT: Los Santos Police Department et. al.

 

CASE NUMBER: B19736

 

 

 

Appellant,
 

ORDER GRANTING INTERLOCUTORY APPEAL AND PETITION FOR PERMANENT INJUNCTION

_______________________________________________
 

This matter is before the Court for consideration of Ms Michelle Jefferson, through and by Mr Jacob E. Rabinowitz III's and Mr Donald J. Wright's (hereinafter "Appellant") for an emergency interlocutory appeal of an immediately reviewable matter occurring within Case 24-CV-1034 and Appellant's petition for a permanent injunction enjoining the trial court from restricting further appointment of counsel. For the reasons stated herein, the above-referenced emergency interlocutory appeal and petition for permanent injunction are GRANTED insofar as the Court finds them necessary to address the legal deficiencies arrising through the interlocutory orders issued by the trial court. 

 

OVERVIEW OF ACTION

 

The case is a class action brought by Michelle Jefferson against the Los Santos Police Department under 42 U.S.C § 1983 on September 14th, 2024, alleging violations of the fundamental rights of the United States Constitution and laws. Plaintiff challenges the adequacy of the her arrests and citations issued to her throughout the months of August and September of this year. On September 16th, a Motion for Addition of Counsel was forwarded by Mr Jacob E. Rabinowitz III and Mr Donald J. Wright pursuant to 28 U.S.C. §1654 and Fed. R. Civ. P. 44. The Motion was denied on the same day by the Honorable Judge Martin Hockenbeyer. On September 17th, a Motion to Stay was filed by the aforementioned attorneys, which was also denied by Judge Hockenbeyer. An interlocutory appeal was lastly forwarded to this Court on September 19th.

 

SUMMARY OF DECISION

 

Under the the Sixth Amendment of the United States Constitution, 28 U.S.C. §1654 and Fed. R. Civ. P. 44, the Plaintiff has the right to appoint counsel. As such, the Plaintiff the right to appoint, supplement, or dismiss counsel using her own judgement and discretion. Limiting this right, the trial court stated that it "possess broad discretion to make determinations that preserve the integrity of the judicial process, including the authority to limit the participation of counsel when it is necessary to prevent potential conflicts, confusion, or delay". The Court acknowledges the usage of discretion in order to guarantee the preservation of the judicial process' integrity, including, under very limited and exigent circumstances, the limitation of of participating counsel. However, based on the presented facts, the complex nature of the case and the lack of hearings on the matters, the Court finds no objective reason to believe risk of prejudice exists and hence, due to the vitality of this fundamental rights, the Court find imposing such a limitation without proper basis to be abuse of discretion.

 

The Court finds that a permanent injunction is necessary to force the trial court to adequately safeguard the fundamental rights of the Plaintiff, having found no solid legal basis for the denial of additional counsel given the circumstances.

 

ORDER

 

The Court finds that trial court has been deliberately indifferent towards the protection of fundamental right to counsel of the Plaintiff within the meaning of the Sixth Amendment of the United States. For the reasons stated herein, Plaintiff’s interlocutory appeal and petition for permanent injunction are GRANTED. The Court further finds the Plaintiff have established by a preponderance of the evidence that a permanent injunction is appropriate and necessary. The Court specifically finds that Plaintiff have suffered or will suffer irreparable injury if a permanent injunction is not issued.

 

The permanent injunction enjoins the trial court from restricting further appointment of counsel. Appellant factually has a right to appoint counsel of her choosing in the enumeration she so chooses,

 

_______________________________________________

IT IS SO ORDERED.

 

DATE: SEPTEMBER 20, 2024

 

 

Hon. Michael Rouker 

Associate Justice

Court of Appeals, Second District, Division One