APPEALS COURT HEARS KAYE v D'AMATO ARGUMENTS

By Michael Horne
[Updated, Friday, November 30th, 2007]
Special to the Readers of milwaukeeworld
The U.S. District Court of Appeals for the Seventh District got a chance to hear arguments Friday, November 30th, 2007 in Case 06-3139, Joseph Kaye v. City of Milwaukee et al. The oral arguments were taped and are available here at Milwaukeeworld.
Kaye's original suit, a RICO case accusing Ald. Michael D'Amato, Julilly Kohler and others of corruption, was laughed out of court by Judge John Stadtmueller last year. He imposed sanctions on Kaye, and ordered him to pay the attorney's fees in the case, which could amount to a ruinous sum.
Kaye, an attorney, wanted to argue his appeal pro se, but the court wisely declined that request, and provided him with a lawyer whose valiant efforts to remedy the many flaws in Kaye's case can be noted below in Document 6, and heard on the tape.
[Update -- I listened to the tape, and the arguments center on very technical items like the violation of Rule 58, which has to do with entry of judgment. Apparently Stadtmueller failed to dot some "i"s and cross some "t"s even though he said, quite unambiguously, that Kaye's complaint stunk and he had to pay all fees associated with the case and that it should never be heard of again. Judge Easterbrook seemed to be aware of the flimsiness of the Kaye case, but apparently this was not a matter immediately at hand. If there are any attorneys or retired federal judges out there who would like to take a stab at interpreting the 33-minute recording for the benefit of us laypeople, go right ahead. I'll be at home caluclating pi to another million digits, which should be quicker and less taxing to the brain.--Ed.]
One does not know ahead of time which judge might be assigned to the hearing, but I'm rooting for either Judge Easterbrook or Judge Posner. Neither are accustomed to suffering fools gladly; their forbearance will be sorely tested in court.
Stay tuned!

PANEL NAMED

The panel of judges has been named for this morning's arguments. The case will be heard by Chief Judge Frank Easterbrook, former chief Judge Joel M. Flaum and Ann Claire Williams.

The following is an excerpt from a decision of Judge Easterbrook on November 14th, 2007 (Case 06-3635; 06-3785). In it the judge excoriates the attorney in the case.

"He has performed below the standard of a pro se litigant; we have serious doubt about his fitness to practice law. The problem is not simply his inability to distinguish between plausible and preposterous arguments. It is his disdain for the norms of legal practice (19 issues indeed!) and the rules of procedure.

"This contains not a single fact and verges on illiteracy … this passage does not contain any argument (it is argument free, though full of assertion).

"We therefore give Barringer 14 days to show cause why he should not be fined $10,000 for his frivolous arguments and noncompliance with the Rules, and why he should not be suspended from practice until he demonstrates an ability to litigate an appeal competently and responsibly."

DOCUMENTS IN THE KAYE CASE:

File Name	Doc	Uploaded	Filed	Description
06-3139_001.pdf	1	10/17/2006	10/17/2006	Appellee Brief (case is being rebriefed)
06-3139_002.pdf	2	11/17/2006	10/17/2006	Appendix (case is being rebriefed)
06-3139_003.pdf	3	07/20/2007	07/19/2007	Amicus Brief
06-3139_004.pdf	4	07/20/2007	07/19/2007	Attached Appendix
06-3139_005.pdf	5	08/21/2007	08/21/2007	Supplemental Brief
06-3139_006.pdf	6	09/10/2007	09/04/2007	Appellant Amicus Reply Brief