RICO Madness ECF 174

8/12/2019 RICO Madness ECF 174

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Re: Motion to DisqualifYPaul Levy for Conflict of Interest

Honorable Judge George J. Hazel6500 Cherrywood LaneGreenbelt, MD 20770

Re: Kimberlin v. National Bloggers Club,

No, GLH13-3059

Aug 4, 2014

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Dear Judge Hazel:

Sixmonths ago, I filed a motion to disqualifY Attorney Paul Levy because he islaboring under multiple conflicts of interest. That motion has not yet been ruled on

but the conflicts continue and Mr. Levy is using them against me in many adverseways.

As noted in the motion, Mr. Levy used to be my attorney and has consulted with mein a legal capacity on various occasions over the past two decades, including asrecently as 2012. He currently works for Public Citizen Litigation Group. Anorganization that I am working for in an advisory capacity, Protect Our Elections.org, is also currently represented by Public Citizen Litigation Group in acase pending before Judge Richard Leon in the USDistrict Court for the District of Columbia. Public Citizen, Protect Our Elections, K evin Zeese and CraiB Holman v. FEC, No. 14-148 (RJL) Public Citizen is a plaintiff in the case as is attorney Kevin Zeese,who is the attorney for Protect Our Elections. For the past several weeks, I have been working with the attorneys involved with that case regarding a Motion for Summary Judgment that was filed last Thursday. ECF23, 7/30/14. Myinvolvement

in that case, which began as a complaint to the Federal Elections Commission, pre-dated the filing of the instant lawsuit.

I have repeatedly advised Mr. Levy that he is laboring under multiple conflicts of interest and that his conflicts have had and will have an adverse effect on me. As Imade clear in my recusal motion, I never waived the attorney client relationshipwith Mr. Levy,and he cannot do so unilaterally. Despite this, he has refused towithdraw from the case. Instead, he continues to file pleadings and has used thoseconflicts to harm me, and now my teenage daughter.

Yesterday, he published another blog post defaming me, calling into question your

recent rulings, and opining that Judge Grimm followed "the time-honored traditionof dumping his most burdensome and least attractive case onto the docket of anewly-appointed judge:' He stated that my daughter will face withering and harmful cross-examination from the defendants if I file for a preliminary injunction,and used his blog post to once again threaten my family and me for exercising myFirst Amendment rights to redress.

. ..,",

Case 8:13-cv-03059-GJH Document 174 Filed 08/04/14 Page 1 of 7


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"It looks to me as if Brett Kimberlin is digging himself a deeper hole withevery paper he files in the Maryland federal litigation ..... And many of theclaims in his lawsuit are so plainly frivolous that Kimberlin could easily end up being under a vexatious-litigant injunction requiring him to get permission for future pro se lawsuits.

He may well be at the point that he is the one who needs to get out of thelitigation as quickly as possible, lest he make matters worse for himself and his family. Whether he has the self-restraint, and the good judgment, to seek that way out remains to be seen."

Attached.

Judge Hazel, enough is enough from Mr. Levy. He has continued to file pleadings inthis case after I forcefully invoked my attorney client relationship/privilege, and hehas engaged in extra judicial statements in order to try to intimidate me and harmme for exercising my First Amendment rights to redress. And, in a sick twisted way,

he, in his blog post yesterday, has adopted Defendant Walker's "corruption of blood" justification for attacking my teenage daughter. He is blaming me for the bullyingattacks on her, like those who blame the woman for the rape because she woresomething attractive.

I urge you to rule on the Motion to Disqualify and hold a hearing if necessary. If,as Iassert in my motion and declaration, Mr.Levy is laboring under multiple conflicts of interest, he should not be filing pleadings in this case or representing Defendant Aceof Spades. .

Sincerely,

.,"" K;mb"B~



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Friday, August 01,2014

Brett Kimberlin's Dilemma by Paul Alan LevyReaders of this blogmay recall that Brett Kimberlin has filed a defamation action againsttwo dozen bloggers and other defendants; Public Citizen is in the case for the limited purpose of defending the anonymity of one of the bloggers. Since that blog post, there have been a number of developments, including a decision by the trial judge to follow the time-honored tradition of dumping his most burdensome and least attractive case onto thedocket of a newly-appointed judge.

Last week, Kimberlin served on the defense lawyers (but not the pro se defendants) a letter.which he said he was attempting to file under seal, asking Judge George Hazel to allow himto file a motion for a preliminary injunction compelling the defendants to remove from their various web sites the various statements over which he is suing, and barring four pro sedefendants from making future negative statements about him. (The previous judge in thecase, trying to cope with a large number of filing from pro se parties who plainly detest eachother, imposed a pre-motion letter requirement reminiscent of the SONYand EON). Judge

Hazel denied the request and granted it in part - he refused to allow Kimberlin to seek a preliminary injunction over the repetition of statements alleged in the Second Amended Complaint, saying that preliminary relief could only be sought about statements post-datingthe complaint And even then the motion would have to be limited to four defendantsidentified in the letter-request (not including the anonymous blogger).

Kimberlin's filing, and the judge's response, raise a host of interesting issues. For one, the judge's approach to the pre-Amended Complaint and post-Amended Complaint dichotomy. strikes me as odd, because the purpose of a preliminary injunction is to protect againstirreparable injury pending a decision on the merits. If post-complaint statements are notthe subject of the litigation on the merits (Kimberlin having been instructed that his Second Amended Complaint would be the last permissible amendment), why is the judge

in this case the right one to consider a preliminary injunction about those statements?Indeed, a defamation lawsuit over the statements could not be filed in the District of Maryland as a related case because there is no diversity-two ofthe pro se defendants livein Maryland.

Kimberlin's Failed Expectations About the Impact of SuingKimberlin's letter request explains that he expected the suit to induce the defendants to"remove ... the defamatory content outlined in the complaint:' but that the defendants haveuniformly refused any removal while the litigation continued. He goes on to explain theimpact he had hoped his lawsuit would have: "I filed this suit because Defendants would notstop their attacks on my family and me. I hoped that the filing of the suit would causeDefendants to [rein] in their reprehensible conduct" Kimberlin goes on to assert that not

only have the criticisms continued, but that his children have been adversely affected bywhat their friends, and their friends' parents, have learned about him as a result of theattacks, and he puts this forward as a basis for a preliminary injunction. He indicates that,for example, that other parents won't let their children have sleepovers with his daughter.

For the purpose of this blog post, I will assume that there are some blogposts that arehaving an adverse effects on his family and even on his children, although Kimberlin'shistory of prevarication, and indeed convictions for crimes of dishonesty notto speak of the



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dishonesty to which he admitted as quoted in "Citizen K ," make it hard to take anything hesays at face value. But that does not mean he has any chance of getting the posts he doesnot like taken down.

To the contrary, a public figure libel plaintiff gets relief against criticism only if he provesthat the defendants have made false.statements of fact (not rhetorical hyperbole) and proves by clear and convincing evidence that they made the false statements with actualmalice. And if the libel defendants truly believe in the truth of their criticisms, the effect of suing them may simply be to prompt them to repeat and even amplify their criticisms. If the plaintiffis right about falsity and actual malice, of course, this sort of repetition is highlyunwise, because it increases the damages that may be awarded. And the fact thatKimberlin's children have to pay the price of having a notorious father is a tragedy that hiscritics ought to consider. But the decision whether to run such risks rests with thedefendants.

The Strict Rule Against Preliminary Injunctions Against DefamationMoreover, the harms caused by defamation are remedied by an award of damages.Preliminary injunctions to prevent defamation, however serious the effect of the statementson the plaintiffs' reputation, are strictly forbidden by the First Amendment as prior restraints. We at Public Citizen have generally taken a firm stance against preliminaryinjunctions in libel cases because the possibility of getting such injunctions, particularlywhen sought in the plaintiffs home court against a defendant who lives elsewhere, gives plaintiffs too much incentive to pursue meritless libel claims on which they are unlikely tosucceed after full and fair litigation, assuming that the defendant can get that far. It remainsan open question (ably addressed by Dayid Ardia) whether the rule against prior restraints bars a permanent injunction against statements found actionable subject to First Amendentstandards after a full and final adjudication, but the general rule, followed in the FourthCircuit whose precedents govern the Maryland federal trial court where Kimberlin filed suit, is that equity will not enjoin a libel.

Kimberlin has every right to represent himself, of course, but had he consulted with alawyer who could explain how defamation litigation works, he would have learned thatfiling a lawsuit does not necessarily force the defendants either to remove criticisms or tostop making criticisms.

Another way in which filing a defamation suit may cause accusations to be taken down, or atleast deter the defendants from posting new criticisms, is that the defendants may retaincounsel who warn of the high cost of defending against libel suits, and indeed give their clients cautious advice that discourages further criticisms. Such impact can be exacerbated when the plaintiff either has significantly greater financial resources than the defendants,and thus can litigate them into oblivion, or where the plaintiff has sued pro se, and thus canimpose the expenses of litigation on the defendants without incurring any expenseshimself. Reading between the lines of Kimberlin's court filings and his communicationswith defendants and their counsel, Kimberlin may well have been encouraged to expectsuch consequences by defense reactions to previous pro se libel suits that he has filed; heclaims to have received either damages, or promises not to repeat criticisms, from other critics. Again I find it difficult to take anything Kimberlin says at face value given his past, but even ifhe is telling the truth about these past results, that would not establish that hehad good grounds for his complaints about past criticisms, only that he may well have had the benefit of strike suit settlements.



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In this case, that strategy has not paid off because some of the defendants are getting pro bono representation, or perhaps representation under libel insurance policies, while other defendants are just as pro se as Kimberlin is, and hence lacking in the financial incentivesabout litigation costs that might induce them to retract or suspend their attacks. Moreover,many of the defendants have apparently been outraged by Kimberlin's lawsuit against them,and are showing thatthey firmly believe in the truth of their criticisms, and so they aremaking Kimberlin the focus of their public statements even though, had he left them alone,they might well have moved on the other targets. Some of them, indeed, may well be basking in the attention that his lawsuit has given them among other bloggers who detestKimberlin; some are using the suit to appeal for donations.

Kimberlin has been claiming that several defendants are already in discussions with himabout paying him to be dropped from the case - an apparent effort to stampede somedefendants into paying up to avoid being left in the case after other defendants have paid less. I have been asking around, though, and from what I have been told there is nodefendant who admits to being in discussions about paying Kimberlin to settle out of thecase. I challenged Kimberlin on this point, and he did not give me the name of anydefendant who is in discussions abut settlement for a payment of money to Kimberlin.

Kimberlin's Effort to Keep His Materials Under sealKimberlin compounded his problems by asking that his request for leave to file for a preliminary injunction be filed under seal. The Fourth Circuit strongly disfavors the sealingof court filings, and prescribes an arduous course of notice to the public with a detailed justification of sealing, opportunity for any person to object to sealing, and then a detailed ruling that is appealable to the Fourth Circuit by any outside intervenor. Judge Hazel madeshort work of Kimberlin's attempt at sealing - he both ruled on the request and placed bothhis ruling, and Kimberlin's profferred sealed filing, on the public record. Presumably,Kimberlin was given the chance to withdraw the paper instead (as the local rules provide); perhaps he pressed on, and accepted the consequences of public filing, because he wanted a prompt ruling on whether he could move for a preliminary injunction.

Because Kimberlin offered no public justification for this request for sealing, we can onlyspeculate about his reasoning; the best indication is the aspect of the request that says he plans to file under seal affidavits from himself and from a fifteen-year old daughter detailingthe impact of the challenged statements on his family. Presumably, he was hoping toconceal this reference from public scrutiny.

But I find it doubtful that Kimberlin will be able to keep his affidavit, or his child's affidavit,about the harms suffered under seal. In Doe V . Public Citizen, the Fourth Circuit wasunwilling to allow a company to prevent public access to litigation documents reflectingfalse reports that its products had caused certain consumer injuries, and showing the harmthat disclosure could cause its business. Similarly, if Kimberlin wants a court to issueunprecedented prior restraints against his critics, the public is entitled to know what harmsare or are not enough to justif'y such drastic relief.

Will Kimberlin Subject His Daughter to a Public Trial?

Moreover, it does not seem to me likely that submitting affidavits about claimed harm aregoing to be enough - the defendants he seeks to restrain are entitled to be confronted by



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their accusers face-to-face, and to have the chance to cross-examine; and given the intensehostility between the parties that the courts have previously noted, there is no reason tothink these pro se defendants might not want to take their pound of flesh. Indeed,considering that the judge has indicated that Kimberlin needs to make specific showingsabout the harm caused by the specific statements against which he wants relief, thedefendants might well start asking questions about exactly why parents won't let their daughters have sleepovers at the Kimberlin household. Is it because they learned that heused to be a major drug dealer, importing large quantities of drugs from Mexico? Or because he was convicted of a series of bombings that left some people severely injured? Or is it because they learned that a newspaper article in Indiana reported on the murder of thegrandmother of a pre-teen girl who was worried that Kimberlin was going out with adaughter she considered irresponsible so that he could get access to the grand-daughter?Or maybe because, after he got out of jail, and already in his forties, Kimberlin was allegedlysinging rock and roll songs about the joys of sex with teenage girls, and because a DC-area publication that interviewed him about the songs praised him for his honesty about howolder men feel about attractive teenagers. Or,was it some more recent, post-Second Amended Complaint statement that is depriving his daughter of sleepovers?

If Kimberlin seeks relief, he is going to have to show through the testimony of some personwith personal knowledge just what the reasons are that his daughter's friends parents aregiving for getting in the way of his daughter's social life. Presumably, that would be thedaughter herself. The pro se defendants against whom relief is sought might choose tocross-examine her.

In urging me not to pointto the First Amendment as a reason why he cannot get a prior restraint, Kimberlin urged me to consider "the human costs."Butas I see it, Kimberlinneeds to look in the mirror when he is thinking about who is responsible for those costs.And he could easily make it worse if he moves for a preliminary injunction relying on theevidence he has described. We will learn by August 28, the deadline given by the judge for the filing of a preliminary injunction motion, whether Kimberlin is so self-centered that hewould put a teenage daughter though such a public spectacle just so that he can seek anarrow injunction, confined as Judge Hazel has said it must be to post-Second-Amended-Complaint statements by a handful of defendants, indeed an injunction what would beforbidden as a prior restraint and, if issued, subject to summary reversal.

Kimberlin Faces a Vicious CycleIt looks to me as if Brett Kimberlin is digging himself a deeper hole with every paper he filesin the Maryland federal litigation. The news that he was seeking a preliminary injunctionagainst pro se defendant Walker led Walker to post the Washington City Paper interviewwith Kimberlin about his raunchy song lyrics, thus bringing greater attention to the very parts of his past that Kimberlin hopes to conceal. And many of the claims in his lawsuit areso plainly frivolous that Kimberlin could easily end up being under a vexatious-litigantinjunction requiring him to get permission for future pro se lawsuits.

He may well be at the point that he is the one who needs to get out of the litigation asquickly as possible, lest he make matters worse for himself and his family. Whether he hasthe self-restraint, and the good judgment, to seek that way out remains to be seen.



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to get permission for future pro se lawsuits.

He may well be at the point that he is the one who needs to get out of

the litigation as quickly as possible, lest he make matters worse for

himself and his family. Whether he has the self-restraint, and the good

judgment, to seek that way out remains to be seen.


Documents

RICO Madness ECF 174