Leo Donofrio, Plaintiff in the case Donofrio v. Wells, last week forwarded an official Allegation of Misconduct against Supreme Court of the United States Stay Clerk Danny Bickell to Chief Justice John Roberts for potentially illegally handling Donofrio’s case as submitted to SCOTUS.

Also, Leo hints at other potential case(s) headed to SCOTUS, potentially revealed this week.

Following is the full text of Leo’s posting as well as for McCarthy v. Briscoe, a case from which Leo is directly pulling to use in his fight at SCOTUS…

DONOFRIO FORWARDS TO CHIEF JUSTICE ROBERTS OFFICIAL ALLEGATION OF MISCONDUCT AGAINST SCOTUS STAY CLERK DANNY BICKELL

This past week, Leo C. Donofrio forwarded to the Honorable Chief Justice John G. Roberts an official allegation of misconduct against SCOTUS stay clerk, Danny Bickell. United States Supreme Court docket no. 08A407, Donofrio v. Wells,is now “Distributed for Conference of Dec. 5th, 2008″ to the full Court meeting in private on that date. The case was the subject of previous sabotage by SCOTUS stay clerk, Danny Bickell (as well asjudicial misconduct by NJ Appellate Division Judge Jack M. Sabatino).Bickell, after receiving the emergency stay application which requested extraordinary relief to stay the national election, took it upon himself to deny the application on the very time sensitive date it was filed, Nov. 3, a day before the election day popular vote.  

As it stands, this case, and the Presidency, now rest in the hands of the nine Supreme Justices, a situation that could have come to pass prior to the votes being counted on election day had Mr. Bickellactually done the job he’s paid to do - be a clerk - as opposed to his specious illegal attempt to play Supreme Court Justice and overrule the long standing precedent of McCarthy v. Briscoe, 429 U.S. 1317 (1976). Please note that the link provided goes to the 5th Circuit follow up action as all links to the actual Supreme Court decision appear to have been mysteriously cut off.

Incredibly, the McCarthy v. Briscoe case provides multiple controlling precedent to the justiciability of the action now before the Supreme Court. No wonder this Supreme Court decision can’t be found online...anywhere. Hopefully, broken links to the case will be resolved as this blog makes the rounds. 

The American people need to familiarize themselves withMcCarthy v. Briscoe 429 U.S. 1317 (1976) (check note 1 when you find the case) in order to understand the precedent which supports the relief requested by Donofrio. 

That case is relevant as to the procedural grounds Mr. Bickellincorrectly (and illegally) applied in denying to pass on Donofrio’s stay application. But more important is that the case also provides supporting precedent for Donofrio in that US Supreme Court Justice Powell, late in the 1976 Presidential cycle, intervened on behalf of 3rd party candidate Eugene McCarthy, and forced the Texas Secretary of State to include McCarthy on the ballots after McCarthy made an emergency application to the Supreme Court.

In the first count of Donofrio’s stay application, he had requested theSCOTUS remove the names of Obama and McCain from New Jersey ballots. (His second count also requested that the SCOTUS stay the national election.) McCarthy v. Briscoe stands for the precedent that the SCOTUS has the power to order a Secretary of State to include or remove names from ballots when a Constitutional issue has been invoked.

The case is also procedurally relevant because Bickell told Donofrio he didn’t submit the stay application to Justice Souter because it failed to meet the criteria of Supreme Court Rule 23.3 in that Donofrio’s NJ Supreme Court request for emergency relief used the words “injunctive relief” instead of the word “stay” and therefore Donofriohad failed to request a stay in the lower court and was not thereafter allowed to come to the US Supreme Court with such a request.

This was a disgusting attempt at one of the worst bluffs I’ve ever seen. Bickell was called with a lightning fast “all in” only to be found holding the infamous 7-2 off suit and the flop, turn and river all failed to connect with his crap holding because:

1. Donofrio did request a “stay” in his initial Appellate Division complaint. Also, the NJ Attorney General’s office argued, in their reply brief, against the court issuing a “stay”.

2. Donofrio’s NJ Supreme Court motion relied on his full lower court record when he requested a “Motion for injunctive relief” from the NJ Supreme Court by way of a signed certification and the submission of a 75 page appendix which Bickell did not have in his possession to review.

3. A stay is ”injunctive relief”. Any first year law student would know that. But Mr. Bickell is a staff attorney at the United States Supreme Court. He knew damn well that the interference he ran was willfull misconduct. 

4. The case has actually been distributed for conference of all nineJustices, a situation Bickell tried to prevent.

5. The case McCarthy v. Briscoe stated,

“Indeed, an application styled as one of for a stay, if it in fact seeks some form of affirmative relief, may be treated as a request for an injunction and disposed of accordingly.”

Isn’t that just amazing. Stay clerk Bickell tried to overturn historic United States Supreme Court precedent when he refused to pass on my stay application based on a false semantic attack not even grounded in law, but rather directly opposed to it. Had Bickell treated the emergency application with the dignity it deserved, the issue of whether Obama and McCain were Constitutionally eligible to be President could have been settled prior to the popular vote.Had Bickell passed the stay application to Justice Souter on Nov. 3,Souter would have denied it straight away, as he did when it was passed on to him on Nov. 6. Then if Bickell had followed US Supreme Court Rule 22.6, which required that Donofrio be notified of the disposition of the stay application “by appropriately speedy means”,Donofrio could have renewed the application to Justice Clarence Thomas on the evening of Nov. 3, or the next morning at the latest, and the SCOTUS could have stayed the popular vote until they made a decision on the merits.  

But Bickell not only failed to pass on the application, he never gaveDonofrio any notice whatsoever until Donofrio finally got through toBickell’s phone on Nov. 6 when Bickell told Donofrio that since he -not a Supreme Court Justice - had disposed of the case, no disposition notice was necessary at all. To hell with Rule 22.6.

Now that the popular vote has been recorded, Bickell has made a difficult situation ever more dangerous as millions of citizens who voted for Obama (and McCain) stand to have their votes voided postelection, a situation my law suit sought desperately to pre-empt.

Now that the case – and the issues discussed therein – have been deemed legitimate by the Court having utilized the extraordinary step (see textbook image below) of distributing for conference a previously denied stay application, Mr. Bickell’s motivations should be thoroughly investigated by the Supreme Court and also by a U.S. Attorney.

Furthermore, Mr. Bickell should be fired and “we the people” need to see that it happens fast before he has the chance to pull the same cheap bluffs on other pending emergency stay applications headed swiftly to the Supreme Court this week. You can expect a very important update on this issue within the next 24 hours.

Below is a clipped page from the ultimate SCOTUS resource text, SUPREME COURT PRACTICE, 8th Edition, page 794:

From McCarthy v. Briscoe (per Justia):

Eugene J. Mccarthy et al., Plaintiffs-appellants, v. Dolph Briscoe, Governor of Texas, and Mark W. White, Jr.,defendants-appellees

United States Court of Appeals, Fifth Circuit. – 553 F.2d 1005

June 13, 1977

1  

Don Gladden, Fort Worth, Tex., John C. Armor, Baltimore, Md., for plaintiffs-appellants.

2  

John L. Hill, Atty. Gen. of Tex., David M. Kendall, 1st Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

3  

Appeal from the United States District Court for the Western District of Texas.

4  

Before AINSWORTH and MORGAN, Circuit Judges, and LYNNE, District Judge.

5  

LYNNE, District Judge:

6  

Plaintiffs-Appellants brought this action pursuant to 42 U.S.C. §§ 1983 and 1985, and 28 U.S.C. §§ 1343(3)(4), 2201, 2281, and 2284 for injunctive and declaratory relief seeking annulment and interdicting future enforcement of Texas laws which prohibit electoral consideration of independent candidates for the offices of President and Vice-President of the United States of America. The suit was filed July 30, 1976, some three months prior to the 1976 presidential election, by presidential candidate Eugene J. McCarthy, two presidential elector candidates pledged to McCarthy, and two voter-supporters of McCarthy. Thereafter, McCarthy gave formal notice of his candidacy for President by filing with Texas’ Secretary of State, appellee White, a Declaration of Intent to Run as an Independent Candidate.

7  

On September 2, 1976, a three-judge court heard the case and adjudicated that Article 13.50(1) of the Texas Election Code is unconstitutional as applied to presidential and vice-presidential candidates, but that McCarthy, having failed to show diligence in his efforts to have his name printed on the Texas ballot and by his late filing of the lawsuit, had made it impracticable, if not impossible, for the court to grant him the injunctive relief sought. Accordingly, the court did not order that McCarthy’s name be included on the ballot. Plaintiffs have appealed from the denial of the permanent injunction.

8  

On September 16, 1976, appellants appealed to this Court for a partial stay and emergency injunctive relief, which were denied on the ground that “the complaint was so lately filed there is insufficient time for a court to devise a petition requirement for ascertaining whether McCarthy has substantial community support in Texas without disrupting the entire election process in that state.” McCarthy v. Briscoe, 539 F.2d 1353, 1355 (5th Cir. 1976).

9  

On September 24, appellants applied ex parte for injunctive relief to Mr. Justice Powell, Circuit Justice, who granted the application and ordered McCarthy’s name to appear on the general election ballot in Texas as an independent candidate for the office of President of the United States in 1976. McCarthy v. Briscoe,429 U.S. 1317, 97 S.Ct. 10, 50 L.Ed.2d 49 (1976). Such order was complied with.

10  

This appeal raises the single contention that the three-judge court erred in failing to grant permanent relief enjoining future application of Article 13.50 of the Texas Election Code by denying independent candidates for President and Vice-President of the United States the right to have their names printed on the general election ballot in Texas. Appellants also seek an award of attorney’s fees.

11INJUNCTION DENIAL

12  

A grant or denial of injunctive relief lies within the trial court’s sound discretion. Frostie Company v. Dr. Pepper Company, 361 F.2d 124 (5th Cir. 1966). Injunctive remedy is discretionary and it is properly withheld when the controversy is not ripe for judicial resolution. Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). In view of the three-judge court’s ruling that the Texas election statute is unconstitutional as applied to presidential candidates, together with Mr. Justice Powell’s order that required Mr. McCarthy to be listed on the 1976 ballot, any possibility that the State of Texas will attempt to enforce the statute in any future presidential election is speculative at best. This Court presumes that Texas will not defy the holding of unconstitutionality in the absence of an injunction.

13  

Moreover, a denial of injunctive relief at this stage would not subject appellants to any immediate or irreparable injury. Whatever imminent hardship existed at the time this suit was filed has already been avoided by the injunction directed at the 1976 Texas ballot. Clearly, the three-judge court did not abuse its discretion by refusing to enjoin future application of a statute whose sanctions have not been set in motion and may never be enforced against the individuals on whose behalf relief is sought. See International Longshoremen’s & Warehousemen’s Union v. Boyd,347 U.S. 222, 74 S.Ct. 447, 98 L.Ed. 650 (1945).

14ATTORNEY’S FEES

15  

This Court is authorized, in its discretion, to allow a reasonable attorney’s fee as part of the prevailing party’s costs. 42 U.S.C.A. § 1988 (as amended by P.L. 94-559, § 2, Oct. 19, 1976). In view of appellant’s lack of success on this appeal, the Court declines appellant’s request for an attorney’s fee.

16  

The judgment appealed from is AFFIRMED.

---

1The complaint was filed in the United States District Court for the Northern District of Texas. On August 6, 1976, the cause was transferred to the Western District

2The other defendant-appellee is Texas Governor Dolph Briscoe

3The hearing was before Circuit Judge Thomas Gibbs Gee and District Judges Adrian A. Spears and John H. Wood, Jr

4Article 13.50(1) of the Texas Election Code provides: “This section applies to nonpartisan or independent candidates for federal, state, district, county and precinct offices in the general election provided for in Art. 2.01. A person may run as a nonpartisan or independent candidate for any such office, other than the offices of President, Vice-President, and Presidential elector, by complying with this section and other applicable provisions of this Code.”

5The validity of the “community support” requirement derives from Storer v. Brown, 415 U.S. 724, 746-47, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)

6Although Abbott dealt with anticipatory review of federal administrative regulations, its warning against premature injunctions has been heeded outside the administrative realm, and is appropriate here. See, e. g., Broderick v. di Grazia, 504 F.2d 643 (1st Cir. 1974)