“No matter how long we’ve been together Edith, you still, as the kids say, ‘turn me over’.” Ashton O’Dwyer files for rehearing at 5th Circuit.

We have some new documents in the ongoing saga of Ashton O’Dwyer v the local federal court system and a quick update on the criminal case. Let’s tackle the appeal of the dismissal of his Judicial misconduct complaint by quoting from a recent email Ashton sent to the 5th Circuit:

I recall getting very “angry” at St. Amant’s letter of 7/02/09, because:(1) I aver, upon information and belief, that St. Amant is an “enabler” and co-conspirator with Dennis, and is as culpable as Dennis or any of the other judges in connection with the dismissal of Case No.08-30052; (2) I thought that St. Amant was “setting me up for a fall”, which unfortunately became reality, when Chief Judge Jones dismissed my Complaints summarily, without even reading my Complaints, much less considering my exhibits; and (3) St. Amant’s letter indicated to me that the Chief Judge (no doubt with St.Amant) was not even reading my quite detailed Complaints of Judicial Misconduct of: (a) 4/14/09, 4/16/09 and 4/27/09, which meticulously detailed with precision: (i) Continue reading ““No matter how long we’ve been together Edith, you still, as the kids say, ‘turn me over’.” Ashton O’Dwyer files for rehearing at 5th Circuit.”

The Price We Pay For “Pro-Business” Courts

As I’ve said in prior posts, I firmly believe Americans can no longer claim we’re “a government of laws not of men” as John Adams, our 2nd US President once pronounced. Adams’ words came to epitomize the venerable “rule of law” in America. In his era, the critical debate was “rule of law” vs. “rule of man.” The prospect that America might become “a government of men not of laws,” is exactly what Adams and our founders feared most, and warned us to stay away from. In their day, “rule of man” referred to the British King George III, who . . . well, just take a look for yourself:

In 1776, the year of our Declaration of Independence, Thomas Paine anonymously wrote a pamphlet titled Common Sense which stated: “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” Adams, a contemporary of Paine, expounded on Paine’s Common Sense, and made sure the Massachusetts Constitution of 1780 included the words “a government of laws not of men.”

In Adams’ and Paine’s day, the King was law, and he served no one except himself. Today, billionaire monopolies are the “King makers.” By purchasing our legislatures, individual judges and elected officials, they bastardize “the rule of law.” Their aim is make America a government of men, not law. This is what happens every day in Latin America, and why we call them “third world.” If we acquiesce, and accept their bastardization of America’s founding premise, we’re right back where we started in 1776. Put another way:

we cannot let this ↓ Continue reading “The Price We Pay For “Pro-Business” Courts”

Jim Brown hits one out of the Park: Edith Jones and other ultra conservative ideologues tarnish the reputation of the 5th Circuit Court of Appeals

Thursday, May 28, 2009

Baton Rouge, Louisiana



Before the President made his choice this week for a new nominee to fill the coming vacancy on the United States Supreme Court, the White House undertook a nationwide search. There were parameters. The pick was certain to be a woman. But by even the widest stretch of standards to be met by any nominee, one thing was pretty clear from the start. No judge serving on the Fifth Circuit Court of Appeals in New Orleans was given the slightest consideration.

It’s true that the Fifth Circuit is heavy laden with Republican appointees. But that has not been a major stumbling block for the new President so far. His most recent major appointment, the new Ambassador to China, went to Republican Governor John Huntsman, who had set up an exploratory committee to run against President Obama in 2012. And the final choice made on Tuesday of this week, Court of Appeals Judge Sonia Sotomayor, was initially appointed to the federal bench by President George H. W. Bush.

Being a federal court of appeals judge has become almost a prerequisite to ascending up to the Supreme Court. Every present judge on the Court was elevated from the federal court of appeals system. So one would think the three women on the Fifth Circuit Court of Appeals, all from either Louisiana or Texas, would have been given a perusal review. No way, say the close court watchers. Their qualifications or lack thereof, speak for themselves.

The chief judge is one Edith Jones, who received international notoriety a few years back when she ruled that a fellow named Calvin Burdine, convicted of murder and sentenced to death row, received a fair trial even though his court appointed lawyer slept through a good bit of the trial. A sleeping attorney didn’t’ seem to bother Jones, who wrote in upholding the conviction that “we cannot determine whether the defense counsel slept during a critical stage of Burdine’s trial.” So, according to Jones, it’s OK to nap a bit during a trial if you are representing a defendant who could be (and in this case was) given the death penalty. Just pick and choose when you doze off. Continue reading “Jim Brown hits one out of the Park: Edith Jones and other ultra conservative ideologues tarnish the reputation of the 5th Circuit Court of Appeals”

A bit more on the Appraisal Clause NFIP style as Edith Jones strikes again: Dwyer v Fidelity National Part 1

We’ve seen some brain dead decisions out of Edith Jones at the 5th Circuit. Some thought her infantilized analysis of anti-concurrent causation in Leonard could not be beat for setting new lows in judicial ignorance but Dwyer v Fidelity National might give Leonard a run for it’s money. We’ve been sitting on this case for several weeks now trying to find a way to fit it in. With State Farm’s counsels outrageous behavior in Kuehn v State Farm as our foil we’ll find how insurers are using appraisal at the court house steps as a way of dragging out litigation. In Dwyer we’ll also  find some old fashioned wind-water ambiguity and how the NFIP, Fidelity and it’s lawyers successfully exploited it before insurer friendly 5th Circuit Judge Edith Jones.  Let’s start with a short synopysis of the case courtesy of the 5th Circuit Court of Appeals:

The Dwyers purchased an SFIP (Standard Flood Insurance Policy) from Fidelity to protect their home in Slidell, Louisiana, obtaining $250,000 coverage for the building and $100,000 for its contents. Hurricane Katrina’s wind and flood buffeted the home in August 2005. Following inspection by an independent adjuster, Fidelity paid the policy limit for contents and $86,6291 for flooding-related building damages.

The Dwyers seem very responsible homeowners buying both the maximum amount of flood insurance allowed by law as well as wind insurance. Fidelity National, the nation’s largest WYO “Write Your Own” (Government backed Flood insurance) carrier wrote the NFIP coverage while Travelers underwrote the Dwyers wind coverage. As we’ll see this case is somewhat strange and includes the intersting undercurrent in that Dave Maurstad’s expedited claims procedures were evidently not followed in terms of the blanket tender of the flood policy, perhaps because the inherent conflict of interest involved when the WYO carrier also underwrites wind coverage was not present in this case as the Dwyers used a dedicated NFIP WYO underwriter to handle their coverage and thus their adjustment. (Rebecca Mowbray’s coverage of the linked GAO report can be found here.)

On February 21, 2006, Dwyersent a certified letter to both Fidelity and Traveler’s Insurance Company (“Traveler’s”), whose homeowner’s insurance policy on the Dwyer dwelling covers wind damage. The letter stated that a contractor’s estimate to repair the house was roughly $100,000 more than the combined amounts paid by Fidelity and Traveler’s. Dwyer wrote that neither he nor the contractor could accurately distinguish between wind and flood damage, so Dwyer recommended each company pay the additional expenses in proportion to the amount it had already paid. Based on this calculation, he requested an additional $85,471.89 from Fidelity.

We get a hint Ms Jones marches to the beat of a different insurance law drummer to the point of judicial activism preferring to ignore literally hundreds of years of case law as the case synopsis concludes: Continue reading “A bit more on the Appraisal Clause NFIP style as Edith Jones strikes again: Dwyer v Fidelity National Part 1”