Leo C. Donofrio, a retired attorney in New Jersey, has an appeal before the US Supreme Court. The appeal is the result of a lawsuit filed against the New Jersey Secretary of State, Nina Mitchell Wells. The lawsuit states that Ms. Wells did not adequately perform her statutory duty to ensure the integrity of ballots and the electoral process for the November 4th, 2008 election. Mr. Donofrio presented the facts regarding the case on Tuesday, November 12, 2008. Below is an exerpt that reveals the experience Mr. Donofrio had with the US Supreme Court:
“On Sunday evening, I left New Jersey in order to be in DC to file the application before the court closed at 4:30 PM. This would assure that the Supreme Court had a chance to stay the popular vote in the National Election before election day polls opened.
26. The Application For Emergency Stay was filed by me on Monday November 3rd, 2008, at 3:33 PM. A few minutes later, while still in the Supreme Court, I phoned the Stay Clerk, Mr. Danny Bickell, and we spoke for 7:00 minutes (according to my phone log). I told Mr. Bickell the whole story insisting that the Court Rule required the Application to be delivered promptly to Justice Souter. Mr. Bickell assured me that Justice Souter would have the case on his desk that evening if my papers were in order, which they were.
It was very important that the Court Rules be followed since I didn’t expect Justice Souter to grant the application, but I was ready to resubmit it to Justice Clarence Thomas with along with a letter to His Honor and ten copies of the original application shoulld he pass it on to the entire Court.
27. I arrived at the SCOTUS on Monday Nov 3rd, got the case filed and stamped at 3:30PM, then went back inside and pleaded with the stay clerk for 7 minutes (as shown by my phone log) to please follow the rules and get this on Justice Souter’s desk as was required by Rule 22(1):
“1. An application addressed to an individual Justice shall be filed with the Clerk, who will transmit it promptly to the Justice concerned if an individual Justice has authority to grant the sought relief.” (Emphasis added.)
Mr. Bickell agreed that if my papers were in order, Justice Souter would receive the case that night, sometime after 4:30 pm.
“Rule 22(6). The Clerk will advise all parties concerned, by appropriately speedy means, of the disposition made of an application.”
It’s important that the disposition be delivered by “speedy means” because the denial of a stay sets the trigger for resubmission to a Justice of your choice under Rule 22(4).
28. The next day, election day, I received no message from the Court. I went back to the SCOTUS on Election Day with my sister who is also retired from the practice of law (she was an Assistant DA in Detroit for many years), and was told Mr. Bickell wasn’t available to speak with me. And he was not picking up his phone.
29. On Thursday, I finally got through to Mr. Bickell and was informed by him that the case was never passed on to Justice Souter because Mr. Bickell didn’t think it was an appropriate Application. I was absolutely astounded. He made a substantive law judgment thereby effectively impersonating a Supreme Court Justice. Mr. Bickell told me that I should have made a full Petition for Writ of Certiorari and since I didn’t then my stay application was defective. And that’s not only illegal for him to make such a decision, but this decision itself is not grounded in law or precedent, but rather the exact opposite. And I told him he was flat out wrong, because :
- I followed the Court Rules perfectly
- he and I spoke all about this on Monday in a seven minute phone conversation wherein he agreed to forward the Application
- the case was properly before the court from the Supreme Court of NJ
- the precedent was Bush v. Gore where no Petition was necessary since the court decided to treat the Stay application as a full Petition for Writ of Certiorari.
It’s not the Clerk’s job job to play Supreme Court Justice. The stay clerk’s job is to collect the papers and pass them onto the Justices, but as to this action Mr. Bickell basically made a substantive judgment of law and denied my application on his own. That must be criminal in some way, perhaps impersonating a US Supreme Court Justice, or subordination of Judicial intent? It’s just wrong and Mr. Bickell needs to be called on it.Either he did this on his own volition or somebody pressured him to do it. After explaining the precedent in Bush v. Gore, where the Supreme Court treated the Stay application as a Petition for Cert. and then granted that virtual Petition, he blinked and agreed to Docket the case.[See Bush v. Gore, page 1, http://www.law.cornell.edu/supct/html/00-949.ZPC.html ]
Mr. Bickell also stated that, “Justice Souter will deny it and so will Justice Thomas”, but I wouldn’t let it go and finally he agreed to Docket the case.
30. The next day, I checked the Supreme Court Docket and the case had finally been docketed but in a completely incorrect manner. Mr. Bickell docketed the case incorrectly as follows (this is from my recording of the original Docket):
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 6 2008 Application (08A407) for injunction pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Three glaring errors:
- The case was actually filed and stamped received on November 3rd, not November 6th as Mr. Bickell had listed above.
- My application was for a “Stay” not an “injunction”. Filing for an injunction does not bring expedited review, while a Stay is entitled to the most expedited review the SCOTUS has to offer. The distinction is very important.
- I never submitted a full Petition nor did I submit a letter stating any such intention to do so. The Stay Clerk just took this out of thin air. He made it up out of the blue. Nothing in my Application indicates I intended to file a full Petition for Write of Certiorari. There was no time for that. The proper procedural tool was a Stay application as per the precedent set in Bush v. Gore.
31. I then called Mr. Bickell and left three loud and direct messages to the effect of, “Fix my docket or I’m going to suggest criminal charges against you as well as a civil suit against the Clerk’s office.” I also told Mr. Bickell that I suspected he was being pressured from within, and that he should inform whoever was pressuring him that I’d kept solid phone records and that my pleadings were stamped, “Nov. 3rd.”
32. Later than morning, I checked the US Supreme Court docket search engine again, and saw that Mr. Bickell had corrected the Docket to reflect that the case had been filed on November 3rd and he also now had it listed as a “Stay” application.
However, this second Docket listing was equally bizarre. Whereas the first Docket listing discussed a pending application for injunction, the new Docket reflected that Justice Souter had already denied the Stay application a day earlier on Nov. 6th, which is very confusing since this was now Friday November 7th and the first Docket listed no such disposition.
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Nov 3 2008 Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Nov 6 2008 Application (08A407) denied by Justice Souter.
None of this makes any sense. Calling this activity “unorthodox” is to be very kind. It’s Judicial misconduct and perhaps it’s even worse.
The reference to a “pending” Petition is incorrect and should be removed because it effects the favor-ability of review available to the case as resubmissions for Stay applications are not looked on favorably if the Stay denial is “without prejudice”. If I were actually in the process of submitting a full Petition for Cert., which I’m not, then the denial might be considered “without prejudice”, and in that case, Mr. Bickell might , once again, decide not to pass on the Stay Application to Justice Clarence Thomas.
Seeing as how the Electoral College is just one month away, this is still an emergency, and Bush v. Gore is still precedent. I have made no submission of a full Petition, so the Docket is still incorrect as I intend to resubmit the “Stay Application” this week and the case will live or die on the resubmission.
These Court Rules are no joke. They have a purpose. On Monday November 3rd, Mr. Bickell disposed of my Application acting as if he were a United States Supreme Court Justice. That’s certainly bad enough, if not criminal, but then he did nothing between then and Thursday November 6th to notify me, certainly not by “speedy means”, of the disposition of my Stay Application. This is Judicial misconduct.
Mr. Bickell took my cell number on Monday Nov. 3rd, and had I been notified properly, by a phone call, that my Stay Application was not going to be forwarded to Justice Souter, then I could have corrected Mr. Bickell as I did on Thursday Nov. 6th.
This case was stopped in its tracks starting in the Appellate Division and leading right to the US Supreme Court. The shame of the delay lies in the fact that the case was bi-partisan and should have been decided before the election when nobody knew what the outcome would be. Now, once Obama is disqualified, which I believe will be the final disposition of this case, it’s going to cause so much more pain to the country.
The law and the facts of this case have the ability to strip Obama of the Presidency just as the law and the facts of this case would have had the power to also strip McCain of the Presidency if he had won. I argued the same law as to McCain and Roger Colera as well as Obama.
This is NOT the way the US Supreme Court usually does business. And the citizens of this country should be angry that this institution has slipped to this level.
“I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.”
Leo C. Donofrio, Pro Se”
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