20191016.Response.and.Motion.to.Disqualify.Grodner.v.Grodner.306P18-2.pdf
Direct link: https://www.ncappellatecourts.org/show-file.php?document_id=255662
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All files in the case COA case P19-308: https://www.ncappellatecourts.org/search-results.php?sDocketSearch=P19-308&exact=1
=========================
No. 306P18-2 THREE-A DISTRICT
SUPREME
COURT OF NORTH CAROLINA
*************************************************
HUNTER F. GRODNER, )
(now
Summerlin) )
Plaintiff-Appellee-Respondent,
)
) From
Pitt County
vs. )
No. (COA) P19-308
)
ANDRZEJ GRODNER,
)
(now
Andrew Grodner)
)
Defendant-Appellant-Petitioner,)
____________________________________)
*************************************************
VERIFIED
RESPONSE TO
MOTION TO
TAX COSTS AND ATTORNEY FEES AND GATEKEEPER SANCTIONS
AND
MOTION TO
DISQUALIFY OPPOSING COUNSEL
*************************************************
(Filed
electronically 16 October 2019)
*****
TO THE HONORABLE SUPREME
COURT OF NORTH CAROLINA:
Defendant-Appellant-Petitioner Andrzej Grodner (currently Andrew
Grodner) ("Defendant"), acting pro se, pursuant to North Carolina
Rules of Appellate Procedure ("N.C.R.A.P.") Rules 25, 34 and 37, the NC Rules of Professional Conduct, NC General
Statutes and case law, as well as the due process provisions and access to the
courts provisions in both the United States and North Carolina Constitutions
and responds to Jeffrey L. Miller's Motion to Tax Costs and Attorney
Fees and Gatekeeper Order and respectfully requests this Court to deny it
because it is not supported by fact and done solely to harass the Defendant.
Consequently, based on Jeffrey L. Miller's knowing and willful false statements
in his most recent Motion as well as volumnus past false statements in front of
this and other tribunals made for the sole purpose of misleading presiding
judges -- in violation of the Rules of Legal
Ethics -- Defendant respectfully requests this Court to strike his
pleadings and to further disqualify Jeffrey L. Miller from any and all legal
matters involving Defendant because his continuing dishonesty prejudices the
Defendant and results in violation of Defendant's due process right. In
support of this Motion, Defendant shows the following:
INTRODUCTION
- As a prefatory matter, Jeffrey L. Miller’s response to Defendant’s petition and motion were not filed timely and should be stricken for that reason alone [fifteen (15) days after the petition was filed and twelve (12) days after the motion was filed].
- Further, it appears that there is no real party in interest and that Jeffrey L. Miller is acting on his own accord. See first paragraph of Defendant’s affidavit. This likewise warrants striking Jeffrey L. Miller’s pleading.
- However, the gravamen of this pleading is that Jeffrey L. Miller routinely makes false, misleading and inflammatory statements both in hearings and in written pleadings that cause real, substantial injury to Defendant, who is acting pro se AND that he has done so again in his latest pleading (as explained below and in the attached affidavit).
- Defendant is well aware that lay people and lay witnesses do not always tell the truth, even in court, even under oath. This comes as a surprise to no one. However it is different when Jeffrey L. Miller, a member of the Bar, especially one acting without any apparent client, makes untruthful statements directly to the Court and in his communications with a pro se litigant (See NC Rules of Professional Conduct 3.3, 8.2, 4.1, 4.3, 4.4(a), 8.4(a),(d),(f)).
- The Courts, at least the ones in Pitt County, have accepted as true Jeffrey L. Miller’s false statements of law and fact because of his status as a lawyer. In fact, as outlined below, Judge Braddy actually stated on the record during a hearing (wherein Defendant’s American and Polish passports were confiscated) that he “believed” Jeffrey L. Miller was telling the truth (about case law authority that Jeffrey L. Miller simply made up and provided no citation) because Jeffrey L. Miller “would be in a lot of trouble with the Bar” if he wasn’t telling the truth. Jeffrey L. Miller wasn’t telling the truth, but Judge Braddy believed him and over 5 years later, Defendant still does not have his American and Polish passports though his elderly father lives in Poland! Instead of acting on his own statement, Judge Braddy filed motion to recuse himself (4 December 2018) after Defendant confronted Judge Braddy about it. Later, Judge Teague removed Judge Braddy because he determined that there was at least the appearance of bias against the Defendant in part because Judge Braddy believed in Jeffrey L. Miller's false statements (8 January 2018 Order), which validated Defendant's claims.
- Jeffrey L. Miller’s false statements were pointed out to the trial court and the North Carolina Court of Appeal. The briefs and record are online (COA17-570), (COA17-813) at the North Carolina Court of Appeal electronic site and this Court may take judicial notice thereof. The courts took no action against Jeffrey L. Miller and did nothing to remedy the injustice. On appeal, Jeffrey L. Miller simply ignored his false assertion of legal authority to revoke a parent’s (American and Polish) passports in a child custody action.
- This seemingly typical judicial mindset (in Defendant’s experience) to believe every statement Jeffrey L. Miller makes - without corroboration - while simultaneously accepting no statements from the Pro Se Defendant as truthful (even with corroboration), makes it literally impossible for him to prevail. This is a denial of due process which has the effect of denying Defendant’s access to the courts.
- Jeffrey L. Miller has done the same thing in his latest filing before this Court and Defendant fears that once again Jeffrey L. Miller’s (unsupported) false, misleading and harassing statements will be accepted as gospel while Defendant’s pro se contentions are rejected out of hand. (See Defendant’s attached affidavit.)
- When a party violates the Rules that we are all expected to abide by, this Court has the inherent jurisdiction - and the duty - to provide a remedy to Jeffrey L. Miller’s misconduct and harm to Defendant. This immediate remedy is to remove Jeffrey L. Miller from any litigation involving Defendant.
SUPPORT IN FACT
10. On 9 October 2019 Jeffrey L. Miller filed with
this Court RESPONSE OF PLAINTIFF-APPELLEE TO PETITIONS AND MOTIONS OF THE
DEFENDANT-APPELLANT; AND, PLAINTIFF'S MOTION TO TAX COSTS AND ATTORNEY FEES
where he made multiple false statements of material fact and misrepresented
legal authority as listed by the attached AFFIDAVIT of the Defendant (EXHIBIT
A).
11. The current filing by Jeffrey L. Miller, where
he provided multiple false statements to the tribunal, is just one of many he
has provided in the past. It is overwhelming to keep track of all of them and
the Defendant updates them via blog entry: False and misleading statements by
Jeffrey L. Miller (very limited selection)
https://grodnerdivorce.blogspot.com/p/false-statements-by-jeffrey-l-miller.html
(current version is attached as EXHIBIT B)
SUPPORT IN LAW
12. This Court has jurisdiction to resolve matters
related to attorney misconduct appearing before it because North Carolina
General Statute § 84-36 specifically states that the Courts retained their
original jurisdiction to address - and remedy - attorney misconduct:
§ 84-36. Inherent powers of courts unaffected. Nothing contained in this Article shall be construed as disabling
or abridging the inherent powers of the court to deal with its attorneys.
13. The inherent powers of courts is also affirmed
by North Carolina State Bar own rules as stated in 27 N.C.A.C. Chapter 1B -
Discipline and Disability Rules, Section .0100 Discipline and Disability of
Attorneys, .0102 Procedure for Discipline, Rule (c)(2):
Rule (c)(2) Inherent Authority of State Courts - The courts of this state have inherent authority to take
disciplinary action against attorneys practicing therein, even in relation to
matters not pending in the court exercising disciplinary authority.
14. The North Carolina State Bar specifies that
attorneys must stop representing a client when he or she violates NC BAR Rules
of professional conduct. Further, that only a judge can disqualify an
attorney, as stated in RULE 1.16 DECLINING OR TERMINATING REPRESENTATION:
(a)(1) Except as stated in paragraph, a lawyer shall not represent
a client or, where representation has commenced, shall withdraw from the
representation of a client if: (1) the representation will result in violation
of law or the Rules of Professional Conduct;: ..............................
(c) A lawyer must comply with applicable law requiring notice to
or permission of a tribunal when terminating a representation. When ordered to
do so by a tribunal, a lawyer shall continue representation notwithstanding
good cause for terminating the representation.
15. The North Carolina Code of Judicial Conduct
explicitly requires judges to maintain proper decorum and discipline attorneys
who run afoul of the rules of legal ethics:
Canon 3(A)(1) A judge should be faithful to the law and maintain
professional competence in it. A judge should be unswayed by partisan
interests, public clamor, or fear of criticism.
Canon 3(A)(2) A judge should maintain order and decorum in
proceedings before the judge. Canon 3(B)(3) A judge should take or initiate
appropriate disciplinary measures against a judge or lawyer for
unprofessional conduct of which the judge may become aware.
16. There is voluminous case law confirming that
judges have jurisdiction, and in fact, a duty to make sure attorneys abide by
the rules of professional conduct, and take appropriate action if necessary. See
Egelhof v. Szulik, 193 N.C. App. 612, 620-21, 668 S.E.2d 367, 373
(2008):
I. Inherent Power of the Court to Discipline Attorneys. The trial court's authority to impose sanctions is not limited to
Rule 11. Sanctions can also be ordered under a court's inherent power to
deal with attorneys appearing before it. North Carolina State Bar v.
Randolph, 325 N.C. 699, 701, 386 S.E.2d 185, 186 (1989). "[I]t has
been held repeatedly that in North Carolina there are two methods by which
disciplinary action or disbarment may be imposed upon attorneys — statutory and
judicial." Id., at 701-02, 386 S.E.2d at 186. "Nothing
contained in [the statutes creating and empowering the State Bar to discipline
attorneys] shall be construed as disabling or abridging the inherent powers of
the court to deal with its attorneys." N.C. Gen.Stat. § 84-36 (2007). This
power includes the power to disbar attorneys appearing before it. See In
re Delk, 336 N.C. 543, 550, 444 S.E.2d 198, 201 (1994). (emphasis added)
17. US Constitution guarantees due process in the
Bill of Rights. In particular, the clause in the Fifth Amendment reads:
"No person shall ... be deprived of life, liberty, or property, without
due process of law," while the clause in the Fourteenth Amendment adds:
"(...) nor shall any State deprive any person of life, liberty, or property,
without due process of law."
SHOWING OF PROPER PURPOSE
18. Because Jeffrey L. Miller has made false
statements before this Court, as outlined in affidavit, therefore this Court
has jurisdiction and duty to sanction him. However, Defendant does not ask for
monetary sanctions or even disbarment, but simply disqualification without any
other consequences. The the purpose is to allow this and any other Court to
properly properly administer justice without prejudice against the Defendant.
19. Because the record shows that it is not possible
to find a judge who would resist false statements by Jeffrey L. Miller
therefore the only remedy is to disqualify him because there is no expectation
that he may every not provide false statements.
20. My experience has been that judges exhibit a
predilection to accept statements made by attorney Miller, who regularly
practices before them, without requiring proof or evidence of the veracity
thereof. For example, Jeffrey L. Miller actually argued in this case that an
appellate case he had personally handled held that NC judges specifically had
the power to seize a parent’s passport in a child custody case.
When the Defendant asked to see Jeffrey L. Miller’s authority, because the
Defendant did not believe (correctly) that any such authority existed, Pitt
County Judge Galen Braddy stated on the record that he “believed” Jeffrey L.
Miller and [would not require Jeffrey L. Miller to provide any citation to his
purported legal support] because Jeffrey L. Miller as a lawyer would “be
in a lot of trouble with the NC State Bar” if he misrepresented that legal
authority. The case Jeffrey L. Miller was referring to was Tabakova v.
Teodorescu, No. COA09-424 (N.C. Ct. App. Feb. 16, 2010) (unpublished and
attached as EXHIBIT C). Neither the trial court’s order or the COA opinion
contained any holding remotely similar to what Jeffrey L. Miller had falsely
represented. Nevertheless, the trial court blindly and blythely accepted
attorney Miller’s false representation over the Defendant’s impotent pro se
objections. This was subsequently brought to the attention of both Pitt
County judges and the North Carolina Court of Appeals, but no court exercised
its duty to sanction Jeffrey L. Miller.
This had the effect of denying the Defendant’s right to due process and
access to the courts. This was the Defendant has had to face. The lawyer is
allowed to make false and misleading statements without support because he is
at (theoretical) risk of disciplinary action for making untruthful statements
AND WIN A LEGAL CONTEST HE SHOULD/COULD NOT HAVE WON.
21. Then when Jeffrey L. Miller's dishonesty is
conclusively established, Jeffrey L. Miller suffers no disciplinary punishment
(which obviously emboldens him) and the incorrect order is allowed to stand for
some unrelated procedural reason and the Defendant is punished for his sincere
efforts to point out the inequity by way of a gatekeeper
order.
22. Due process is guaranteed to litigants in both
the US (via the Fourteenth Amendment) and NC Constitutions. Under the American
system of justice the courts do not gather facts and evidence. That is
the duty of the litigants - and lawyers - who appear before it. Therefore, the
legal process is dependent upon the honesty and the integrity of the litigants
who present the facts and suggest the applicable status of the law. When a
lawyer intentionally misleads the tribunal, as has happened here, the other
party is placed at an unfair advantage, akin to engaging in a fight with one
hand tied behind his or her back. The net effect is the absence of
fairness, which is the essence of due process.
There is in fact no meaningful access to the courts when a lawyer is
permitted to misrepresent the facts to the tribunal, especially when the other
litigant is acting pro se. See NC Rule of Professional Conduct 3.3 Candor
Toward tribunal
(https://www.ncbar.gov/for-lawyers/ethics/rules-of-professional-conduct/rule-33-candor-toward-the-tribunal/)
23. The removal of Jeffrey L. Miller is necessary to
protect Due Process right of the Defendant because there is no legal way to
defend against false statements by Jeffrey L. Miller when he is able to have
judges believe in them.
24. There is no harm to Plaintiff because there is
no pending litigation in divorce and only things related to Defendant, such as
the seizure of his passport.
WHEREFORE, Defendant respectfully requests that this Court to
disqualify Jeffrey L. Miller from any all litigation involving Defendant for
repeated misrepresentations to the courts and for the reasons stated herein
because this is the only remedy to protect Defendant's due process and allow
the Defendant pro se litigant to have a meaningful access to the courts.
Respectfully submitted, this ______ day of
__________, ____.
______________________________
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
Defendant-Appellant, pro se
VERIFICATION
The undersigned pro se
Defendant-Appellant-Petitioner, after being duly sworn, says: The contents of
the foregoing petition are true to my knowledge, except those matters stated
upon information and belief and, as to those matters, I believe them to be
true.
______________________________
Defendant-Appellant-Petitioner
Andrzej Grodner, pro se
(currently Andrew Grodner)
Pitt County, North Carolina
Sworn to and subscribed before me
This ______ (day) of _________(month), _____
(year).
___________________________________
Notary Public
My Commission Expires: ____________
CERTIFICATE
OF SERVICE
I
hereby certify that a copy of the foregoing was served upon all counsel of
record by emailing and mailing a copy thereof by first-class mail, postage
paid, and addressed as follows:
Mr. Jeffrey Miller, Esq.
Miller and Audino, LLP
2510 E. 10th Street
Greenville, NC 27858
252-493-6138
email: jeff@millerandaudino.com
Counsel for Plaintiff-Appellee
This the _____ Day of ________, 2019.
_________________________________
Andrzej Grodner, pro se
(currently Andrew Grodner)
P.O. Box 3571
Greenville, NC 27836
252-558-3040
email: agrodnercase@gmail.com
Defendant-Appellant, pro se
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