Judge Coles denies claims by Doyle of misconduct and recuses himself anyway. A decision without a difference.
Early the morning of the 6th our reporter was asked to record a pre-trial conference and to provide recording services of what was said at the bench, for the Defendant, who is representing herself in divorce proceedings with her husband, a lawyer, and is requesting money so she can hire a lawyer.
It seems the act of walking to the bench to place the recording device at a location that would allow the Rule 76H to actually be effective, was considered by Judge Kelly to be ‘advocating’ for a party to the case.
You can hear Judge Kelly admonish the reporter on the audio link below.
Perhaps if everyone coming to court recorded for themselves what was being said, the conduct of lawyers and judges might improve to the point the amount of lying would be reduced to a manageable amount. One Judge, in another case, opined that if a lawyer didn’t consider what he was doing was a conflict of interest, he had no need to disclose the ‘potential’ conflict to the client. WHAT? Wouldn’t you like to have a recording of that judge? In this case the Defendant relates that during this recording the Plaintiff’s lawyer was less than ‘accurate’. Now that victims are aware of Rule 76H we wonder how long it will be after victims of lawyers and courts start using the Rule, before it will be removed from the Rules of Civil Procedures.
We’re told by sources in the courthouse that “Victim Advocates” practice more law in the courtroom than a reporter doing a favor for a Pro Se victim of the Family Court System does by providing an audio recording device to assure the Defendant can have their own unadulterated version of what transpired.
Our Maine courts get a D+ or an F depending on the rating service used.
First it’s more than a little creepy that a lawyer, Michael Waxman, is so over the top to keep a mother from seeing her own daughter. Waxman overrode Moskowitz who issued an Order for unsupervised visitation. Waxman went so far as to forbid even supervised visitation, in violation of the Court and Moskowitz.
This woman hasn’t seen her daughter in years and apparently that’s okay with Judge Waxman, er Judge Moskowitz. What do you have to do in Judge Moskowitz Courtroom to get him to enforce his own Order for goodness sakes? What crime has this woman committed that was so heinous that it would prevent visitations? None, which we know of to date.
We’re told by sources that Waxman, an heir to the Finard Real Estate Fortune, may hold great financial sway over many people in Maine and elsewhere. Sources also believe that Waxman may have threatened to “ruin” anyone that goes against him. Whatever power Waxman is wielding he sued D.A. Anderson, defied Judge Waxman’s own Order, and got ZERO displine from the Board of Overseers (please remember the Board seems to protect lawyers like Waxman from complaints from the non-lawyers).
This is an excellent example of how our courts acting with what looks like malice, set out to destroy families, children, and anyone that tries to help them from outside the cloistered legal profession.
Subject: Re: website removal
Date: Wed, 1 Feb 2012 15:41:04 -0500
Thanks for doing this. I shall discuss it with Igor. I can tell you that I am not willing to agree to alter my law firm web site -- www.waxmanlaw.us in any substantial manner, and I shall not permit my client to agree to that. We did not agree to that on the record yesterday, so that may have to be specifically excepted.
And the more I think of it, the less I am convinced that this Court has any power over ME in any fashion.
Pickering Investigations LLC Phone (207) 266-7297
93 Beech Hill Road email@example.com
Blue Hill, ME 04614 Fax (207) 374-3687
Cumberland County District Attorney's Office
142 Federal Street
Portland, Maine 04101
Dear Ms. Anderson,
I feel compelled to bring information to your attention that may constitute the crime of Criminal Contempt of Court. On January 31, 2012 at approximately 10:30am in the Portland Judicial Center in Court Room 9 a hearing was being held. The presiding judge was the Honorable Jeffrey Moskowitz. Attorneys for the defendant were Judy Potter and Ardith Keith. Attorney for the plaintiff was Michael Waxman.
At the end of the proceeding, defendant's attorney Judy Potter asked Judge Moskowitz about the defendant's right to have visitation with the minor child in question. Judge Moskowitz responded that there is a court order in place that allows the defendant to see her child. The attorney for the plaintiff, Michael Waxman, stated that his client will not honor that court order. The judge responded that there was a court order in place and it was to be adhered to. Things got out of hand at this point and attorney Waxman stood up, pointed his finger at the judge and stated, "I'm telling you" that the court order will not be honored. I will defer to the recording and or transcript as to the exact words and the tenor of the exchange. Waxman raised his voice to the judge and some would describe it as yelling at the judge.
The proceeding was disrupted by attorney Waxman's willful disregard of Judge Moskowitz's orders and his outburst made it impossible for attorney Potter to engage the judge so she could give her opinion and information. click here
STATE OF MAINE
SUPREME JUDICIAL COURT
SITTING AS THE LAW COURT
Law Docket No. CUM-14-227
MICHAEL A. DOYLE
TOWN OF FALMOUTH et al
ON APPEAL FROM THE SUPERIOR COURT COUNTY OF CUMBERLAND
Michael A. Doyle
3 Shady Lane
Falmouth, Maine 04105
TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………….ii
Table of Cases……………………….……………………….......ii
II. THE DECISION FROM WHICH APPEAL IS TAKEN…...4
III. STATEMENT OF FACTS………………………………….4
IV. ISSUES PRESENTED……………………………………...5
1. Court error in allowing redactions and deletions........5
2. Court error in denying review of materials ...............5
A. Standard of Review…………...……………………12
B. Applicable Precedents…………..………………….12
C. Constitutional Issues…………….…………………12
The case arises out of the Appellant’s FOAA request for the AT&T cell phone bills paid for by the Appellee for a cell phone provided to the Superintendent for her use without restriction. Appellant asked for copies of the bills for the Superintendent’s cell phone for a period of three months.
The Town paid the bills and did not seek reimbursement from the Superintendent.
The Appellee refused to provide copies and instead provided heavily redacted copies for all calls (calls and text messages). The Appellee redacted all numbers and text messages which the Superintendent claimed were (1.) personal or family, (2.) calls to or from parents that the Superintendent claimed would involve student information or would lead to student information, and (3.) calls to or from school staff that would disclose personal numbers that were in fact cell phones provided by the school.
Appellant submits that the entire AT&T bill is a public record and that he is entitled to copies without redactions. There is nothing in the law allowing these redactions from a public record. Probably many of these calls to and from the Superintendent were made during business hours, but this information was redacted but may have been in the materials submitted in camera which Appellant was not allowed to see.
The percent of calls redacted or deleted in sample pages for the months of September and October in Superintendent’s Exhibit C-1 was in excess of
90% on some pages.
Also, the Appellee was permitted to submit materials in camera, which allegedly described the phone numbers, dates, and times before redaction and marked as Superintendent’s C-2 in the March 31, 2014 letter from Attorney Felmly. The Appellee also submitted a spreadsheet with unredacted information marked as Exhibit D-1. The Court denied
Appellant’s request to review those and challenge that material. Appellant submits that he should have been allowed to inspect any materials relied on by the Court. “While Doyle has requested that the redacted information be provided to him so he can litigate the case, that cannot be done without disclosing the exact information which the School Department seeks to withhold – and which, on this record, the court finds the School Department is entitled to withhold”, in the Order at paragraph 10.
The Order of the Court allowed the Appellee to redact any information regarding phone numbers or texts which she claimed were private, personal, family, parents, and staff phone numbers. This included redaction of even the dates and times the phone numbers were dialed so Appellant cannot confirm they were made during business hours.
II. THE DECISION FROM WHICH APPEAL IS TAKEN
The Appeal is taken from the Order of the Superior Court Dated April 25, 2014.
III. STATEMENT OF FACTS
1. The Superintendent was provided a cell phone by the Appellee at no cost and without restriction as to its use.
2. The teachers and other staff were also provided cell phones at no cost by the Appellee without restriction on use.
3. The service provider was AT&T, which submitted monthly bills for the cell phones that were paid by Appellee.
4. The typical bill would list the following information: date of phone call or text message, number called or text to or from, the time of the call or text, and the duration of the call.
5. It is difficult to determine the number of deleted or redacted data due to it being removed in blocks. The Appellee redacted most of the data on the bills in question.
IV. ISSUES PRESENTED
Appellant Doyle submits that the issues now before this Court are as follows:
1. Did the Superior Court err in permitting redactions and deletions of the phone numbers, the dates, the times, and duration of the phone calls and texts the Appellee claimed were personal, teacher phone numbers, and calls to parents?
2. Did the Superior Court err in denying Appellant’s request to review materials submitted by Appellee in camera which the Superior Court relied upon in making its decision?
Under 1 MSRA Sec. 402. 3. Public Records the phone bills sought by Appellant are public records, “…received or prepared for use in connection with the transaction of public or governmental business or contains information relating to the transaction of public or governmental business, except:…”
Appellant asks the Law Court to apply “strict construction of any exceptions to the required public disclosure”, as in Moffett v. City of Portland.
Appellee asked for and the Superior Court granted protection to “personal phone numbers of public employees” when the statue only protects “home phone telephone number(s)” and “personal cellular number(s) 1 MRSA Sec. (O)(1). Appellee concedes these were not personal cell phone numbers under this portion of the law in Superintendent’s Affidavit Paragraph 8, covering the free phones provided by the School, “I also redacted telephone records and billing information of other public employees with a cell phone issued by the School Department that were included on the same cell statement.”
The Superior Court also permitted redaction of call records made to “Personal phone numbers of family or friends, as well as the phone numbers the Superintendent called relating to her private affairs.” (Superintendent’s Affidavit at paragraph 3. b. and c.) Once again, the phone-bill itself, in its entirety, is a public record, and as such, must be by law, provided to the requestor under an FOAA request, unredacted and undeleted. One part of this effort to gain these public records is to ascertain what percentage of the Superintendent’s workday is devoted to ‘family, friends, and private affairs’ while being compensated in excess of $10,000 per month.
The third category of calls that were redacted, were calls to and from parents. In her Affidavit the Superintendent stated at Paragraph 5, “The telephone conversations that I had with students’ parents were conversations involving current students and their education in the Falmouth School Department.” We discuss our opposition to this characterization later. This is a broad conclusory statement and Appellant believes it is likely that other non-student topics were discussed. Appellees made a choice not to post certain numbers in a directory. Does that decision trump the current FOAA law? It is reasonable to expect numbers of parents and students are disclosed in some fashion through the school website in its “Parents Portal Login”. Appellant seeks access to this portal to ascertain what is made available to the parents that may in fact, constitute another “public document”.
Appellee has cited Blethen Maine Newspapers, Inc. v. State of Maine. That case involved a criminal statue that protects records from a FOAA request. There is no comparable confidentiality provision in the FOAA law. Appellee mistakenly confuse the protection of witnesses and other persons but not government employees. In the instant case there is no statue protecting government (municipal) employees’ phone numbers that are paid for and are provided by the taxpayers, on a public document, the cell phone statement.
Appellee has cited Paul A. Cyr v. Madawaska School Dept. in this case redacted information was related to personnel records, which is protected by law. Telephone numbers, dates, and times of calls are not protected. Cyr also restated “…statutory exceptions to the FOAA must be strictly construed”.
Appellee cited Winifred B. French Corp. v. Pleasant Point Passamaquoddy Reservation. The Law Court held the reservation was not acting as a municipality on that occasion so the FOAA did not apply. The Town ofFalmouth and the School Dept. of Falmouth is, and has always acted, in its role as a municipality in this action. Appellee has cited Smith v. Maryland seeking protection of a privacy right in phone numbers. The U.S. Supreme Court rules in that case there is no privacy interest for phone numbers dialed.Appellee has cited Wiggins v. McDevitt, a case involving a personal tax return. The only public record portion was the information relating to income from services of process. The Court held that this part was a public record. Nothing was redacted from the public record portion.
The Superior Court reviewed items in camera submitted by Appellee. This allowed Appellee to make arguments for exceptions to the FOAA law that do not exist, it barred Appellant from examining the documents, questioning witnesses about the documents, and the right to present arguments for the Appellant’s position and to call witnesses for that position. Essentially the Superior Court presented Appellant with a Catch 22 situation, in the Order at paragraph 11, “…Doyle has offered no evidence or argument that would call into question the reliability of the showing made by the School Department.” Appellant wasn’t able to prove he was entitled to the data because he wasn’t allowed by the Court to challenge the opinion of Appellee as to what was required by law to be provided in the FOAA request.
The redacted spreadsheet supplied by the Appellee to the Appellant marked, as Exhibit D-2 by the Appellee was merely conclusory on her part when the Superintendent labeled calls as friend, family, or public employee’s school provided cell phone numbers. How could the Court verify these unsupported claims by Appellee without Appellant’s presenting evidence and questioning witnesses as to the authenticity of those very claims? The Superior Court erred in the Order at paragraph 5 by focusing on the contents of calls to “friends, family, and personal affairs” as not public records as they are not used in the “transaction of public or governmental business”. Every phone number, date, time of call or text, and duration of call is however a public record on the bill from AT&T, paid for by the taxpayers of the Town of Falmouth, and as such, Appellant is entitled to copies of the phone bill unredacted and undeleted in their entirety. Staff members using their school provided phones have no protection for those numbers called or received on those phones. “There is no school policy…which prohibits school staff from using their school issued cell phones for personal calls.”, Superior Court Order at paragraph 2. School issued cell phone numbers would not be protected from requests for any public document they may appear on such as the cell phone bills paid for by Appellee. Even claims of calls to parents would not be protected if the calls were to discuss school construction or renovations, projects, or School Board candidates she supported and requested the same parents support or vote for these projects and candidates. Something we know was done during an election by at least email and possibly by cell phones also. Without access to all numbers dialed, texted, and received, we cannot determine the amount of campaigning that was conducted by Appellee in calls and text communication to parents.
It should also be noted that calls (numbers) received by Appellee were redacted or deleted. Appellant would in turn argue that Appellee had no authority or standing to alter a public document containing data belonging to another person or entity by redacting or deleting that data (the caller’s phone number) from that public document.
Finally, the Superior Court also erred in paragraph 14 of the Order, “The additional information sought by Doyle does not fall within the category of public records subject to disclosure under the Freedom of Access law.” The Appellee made a choice by free will, to take a taxpayer funded electronic device, the cell phone, and to use it freely for personal needs and thereby waived any confidential protection that may have attached to it under all parts of the law for both protected and unprotected data contained therein.
A. Standard of Review.
1. Whether the Appellee met its burden of proof establishing that the materials could be redacted under the FOAA law.
2. Whether Appellant was entitled to unredacted and undeleted copies of the bills as a matter of law.
3. Whether Appellant was deprived of his rights to review and challenge the in camera documents.
B. The Applicable Precedents.
The precedents selected by Appellant as useful for analytical purposes in this
appeal is summarized as follows: None were located
C. The Constitutional Issue.
Phone numbers are not protected under the Constitution.
This Order should be vacated and the Appellee be ordered to supply the cell phone bills in question undeleted and unredacted.
Dated: Falmouth, Maine
July 28, 2014
Michael A. Doyle, Pro Se
3 Shady Lane
Falmouth, Maine 04105
TABLE OF AUTHORITIES
Table of Cases:
Moffett v. City of Portland, 400 A.2d 340 (Me. 1979)…………………..….6
Wiggins v. McDevitt 473 A.2d 420 (Me. 1984)…………………….……….9
Blethen Maine Newspapers, Inc. v. State of Maine 2005 ME 56………..…..8
Winifred B. French Corp., v. Pleasant Point Passamaquoddy Reservation 89
Paul A. Cyr v. Madawaska School Dept. 2007 ME 28……………………...8
Smith v. Maryland, 442 U.S. 735 (1979)……………………………………9
Freedom of Access Act 1 MSRA Section 400 at seq. ……………………..6
JUDGE: To form an opinion after careful consideration
TYRANT: A ruler who has no legal limits on his or her power by law or constitution.