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United States Court of Appeals for the First Circuit
CHRISTOPHER KING A/K/A/ KINGCAST.NET
FRIENDS OF KELLY AYOTTE ET AL. Defendants-Appellees _____________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
MEMORANDUM IN OPPOSITION TO DEFENDANT-APPELLANTS’ MOTION TO STRIKE AND FOR SANCTIONS AGAINST APPELLAT’S MOTION FOR LEAVE TO FILE INSTANTER: CORRECTED OMNIBUS REPLY BRIEF OF PLAINTIFF-APPELLANT
Christopher King, J.D. 85 Messer Street Suite Two Providence, RI 02909 671.543.8085 firstname.lastname@example.org Plaintiff pro se
MEMORANDUM IN OPPOSITION1 I. RELEVANT BACKGROUND It is axiomatic that parties seeking sanctions in any particular case must come to that case with clean hands. Defendants do not, and they are wrong on the facts as well, as seen in Section II. In point of fact as PlaintiffAppellant pointed out in his Memorandum in Support of his Motion to file a Corrected brief (issued less than one calendar day after he filed his Brief) he wrote: Essentially, counsel for Nashua PD Defendants told Plaintiff-Appellant that he was going to seek sanctions against Plaintiff-Appellant, a common and abusive tactic used throughout this litigation ever since PlaintiffAppellant exposed the fact that Magistrate Landya B. McCafferty never should have heard this case because she and Defendant Ayotte BOTH worked UNDER Defense Counsel Jennifer Parent and Jack Middleton, and that’s a fact. The organization chart submitted in the Lower Court on numerous occasions is now presented for this Court’s review. There is not one single Judge reviewing this case who could honestly say that Appellant should not have been informed of this relationship, and the abject failure in this regard by all Defense counsel, coupled with Judge Barbadoro’s insouciant comment that the Motion to Recuse was “totally without merit” – without any analysis
Defendants-Appellant cite no Decisional law supporting their motion whatsoever, because there isn’t any. Plaintiff-Appellant has searched Lexis all day as surely as they did in the past 3 days after their threat. The threat was issued by Counsel Brian Cullen because he has the least amount of dirt in this case, but as the Court will see, in specific detail, he too is without clean hands.
whatsoever – complements and compounds the problem. Magistrate McCafferty, once confronted with the series other recusals, finally recused herself in the present case in a terse one-sentence Order as other Judges recused themselves without prompting whatsoever, something that Plaintiff-Appellant has never seen in his life.
But that’s not all. At another point in time Defense counsel, falsely accused Plaintiff-Appellant of being disbarred in order to put him down, when in point of fact he was suspended from practice for a year. KingCast directed Defense counsel to the federal conviction, disbarment and apparent reinstatement of New Hampshire lawyer Mike McLaughlin, currently of counsel with Shaheen & Gordon to illustrate the difference.2
Defendants cry about the $150,000.00 figure that Plaintiff-Appellant pointed out, but what they fail to realize is that $2,000.00 to Plaintiff-Appellant, unsubsidized by former Presidential cabinet members….. means more to him than that $150,000.00 ever will to Defendants, ahem.
In any event, Plaintiff-Appellant was compelled to bring this attention to the Court and the related filing was sealed. And that’s still not yet all: Despite counsel’s implications that Plaintiff-Appellant does not know how to comport himself before this Court, in recent history, counsel for Nashua Defendants and/or his client were found in contempt of Court because they don’t want bad information to come out. This happened in case no 1:05-CV00365, infra.
LAW AND ARGUMENT First of all, there is no citation to case law
whatsoever in Appellee’s Motion. That’s because it is ridiculous to start with. The Brief does NOT exceed the word limitation, and that is all that matters. In point of fact, the Corrected Brief actually contains the word count from the first Brief, which is too high. Either way, Counsel for Defendant should pay closer attention to the rules before complaining.
As someone with a bit of trial and appellate experience Plaintiff-Appellant knows how to read. And he knows how to win.3 Second, Plaintiff-Appellant believes there may be minimal typeface deviations, only because the source material was not in Courier New typeface. Briefs are not stricken because of minimal conformance; this is the argument of a desperate Defendant. Third, there are no allegations made against the Nashua Police Department that were not raised in the Court below. Defense Counsel claims there are – without direct reference whatsoever -- are but there are not. He simply does not like the dirty laundry being aired in this Court, but that is part of the reason we have this Court, to review the things that are relevant that the lower Court ignored, and that dirty laundry – including the continued arrests, beatings and macing of innocent civilians and reporters, is germane as to why the Third Amended Complaint should have been GRANTED. This is not rocket science, it is simply Jurisprudence.
For the record, since Defendants have taken Plaintiff-Appellant to task, the facts are that Plaintiff-Appellant has won more criminal defense trials than he lost, and he defeated his former employer, the Ohio AG’s Office, in proving that two policemen made his client a victim of violent crime, after he won his client’s criminal trials and settled the Civil Action sounding in 42 U.S.C. §1983 and First Amendment issues. And that’s a fact. See Ohio Court of Claims V96-61481 at the end of this document. It was a landmark decision, much as this case will be regardless of its outcome.
An award of sanctions for presenting scurrilous material in an Appellant Brief must be awarded only under the most abusive circumstances, made entirely devoid of any plausible Good Faith Argument. It is a standard similar to the one under which Attorney Cullen and/or his client was found in Contempt in Federal Court. That having been said, this is a case of immense importance in the field of Journalism, and as such it is particularly important that the Court grant PlaintiffAppellant the benefit of the doubt, particularly given what happened to him already in the Lower Court with Defendant Ayotte’s former bosses presenting to Magistrate Judge McCafferty without informing KingCast.4 Therefore it is important that recent State Politicians such as Mayor Streeter and Kevin Avard have commended Plaintiff-Appellant and invited him to speak on TV for the Free World to observe. As the Court may readily see other material from a more remote journalist was removed in the Corrected Brief, but the presence of a Republican State Representative journalist concerned about the matter is worthy of Judicial Notice, pure and simple.
All of these attorneys were aware of this situation. Keep in mind that the McCafferty issue is two-fold in complexity: Not only did Judge McCafferty work underneath Jack Middleton and Jennifer Parent – a recent NH Bar President mind you – so too did Kelly Ayotte within 12 months of Judge McCafferty. The U.S. Supreme Court cannot and will not condone that sort of nondisclosure because it is clearly inexcusable.
And if it is not, it also is not sanctionable, nor is the reference to the Politico story in which Defendant Ayotte admitted she had “gone after” Plaintiff-Appellant, then awkwardly tried to mend her words. That is probative of ill-intent, and that is why Counsel for Defendants try to categorize the Politico story as being solely about money, when Plaintiff-Appellant cited to it for several reasons. But as with everything else in this case the Defendants pick and chose what they want to hear, disingenuous to the end. As to Defendants’ whining about how much this case costs, the Defendants would be well-advised to remember Plaintiff-Appellant’s no-cost option to settle this case before NENPA panel, as will be discussed at Oral Argument. For that matter, Plaintiff-Appellant could more justly complain about all of the time, money and resources he expended when Defendant Ayotte “went after him” for no lawful reason as NAACP Legal Chair, only to nol-pross the case after Plaintiff-Appellant sat through voir dire with former Hillsborough lead prosecutor David Horan as counsel. They are nothing but bullies, and they hate the sand that KingCast repeatedly throws in their face. Sadly for them, hatred provides no grounds for sanctions.
Further, the Court must be aware, as noted in the Motion for Leave to File Corrected Brief Instanter, that Plaintiff-Appellant made an attempt to resolve the issue raised by Defense Counsel in the same way he promptly addressed a prior Defamation allegation raised by Attorney Cullen relative to Plaintiff-Appellant’s Journal page. The bottom line in that instance, was this: Basically no matter how much he huffed and puffed, Attorney Cullen and/or his clients were indeed found IN CONTEMPT in FEDERAL COURT and Attorney fees were awarded. And that’s a fact. In any event the exchange on this conflict is below, and it shows a reasonable exchange, nothing sanctionable:
So in this case, in this particular issue, PlaintiffAppellant removed some of the material in dispute that Defendant claims is immaterial (i.e. the Sunlight Foundation information), while leaving information that Plaintiff believes the Court must be aware of by way of FRE 201, such as a PARTY ADMISSION by Defendant Ayotte that she “went after” KingCast.
III. CONCLUSION This case has far-reaching implications and will continue to unfold and to reverberate cross America’s First Amendment landscape whether some chose to ignore it or not. Plaintiff-Appellant told Defense Counsel straight out that he has had enough of the sort of tactics that delay and complicate this case. The Defendants all should have conceded the 28 U.S.C. §455 issue but instead fought back and threatened sanctions and huffed and puffed and still ultimately WERE WRONG. They were wrong again in accusing Plaintiff-Appellant of being disbarred. And they are wrong yet again, here. Lastly, as to a legitimate error, note that PlaintiffAppellant has also inserted direct citations to the Joint Appendix, as seen as his “TR” designations. There is nothing to see here, we need to move along toward Oral Argument and a Decision on our way to the Supreme Court of the United States. Respectfully submitted, /s/Christopher King, J.D. __________________________________ KingCast.net By and through Christopher King, J.D. 617.543.8085m
CERTIFICATE OF SERVICE I the undersigned, solemnly swear that a true copy of this Memorandum was signed and mailed to the Court and that this version was electronically delivered on: 7 February 2013 to: Jennifer Parent and Jack Middleton, Esq. City Hall Plaza 900 Elm Street Manchester, NH 03101 Gordon MacDonald, Esq. Nixon Peabody LLP 900 Elm Street Manchester, NH 03101 Brian Cullen, Esq. 10 East Pearl Street Nashua, NH 03060 /s/Christopher King, J.D. __________________________________ KingCast.net By and through Christopher King, J.D. 617.543.8085m