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Beware the 'Extreme Judicial Activism' Argument

By William Vogeler, Esq. on May 10, 2018 | Last updated on March 21, 2019

Attorney Omar Rosales made a really bad argument on appeal.

Already facing nearly $176,000 in sanctions for making false statements about opposing counsel, he argued the trial judge engaged in "extreme judicial activism." That cost him another $60,000 sanction from the U.S. Fifth Circuit Court of Appeals.

Undeterred, Rosales says he will appeal to the U.S. Supreme Court. No telling how much that will cost.

More Than 65 Briefs

Rosales told Texas Lawyer that he was disappointed with the Fifth Circuit decision. He said he has filed more than 65 appeals -- including four victories -- with the intermediate court.

"None of my appeals have ever been deemed frivolous," he said.

Of course, the Fifth Circuit disagreed. The appeals panel said his brief was "plagued with references to unrelated areas of law, mischaracterizations of the record and the law, and missing citations."

The sanctions would put many solo practitioners out of business, but Rosales doesn't give up easily. He's still practicing even after a judge banned him from the Texas federal courts last year.

More Than 385 Lawsuits

Judge David Ezra said Rosales "unquestionably acted in bad faith" in six cases. Given that Rosales had filed 385 lawsuits against small businesses for ADA violations, that was only the tip of the iceberg.

Rosales was suspended and sanctioned because he falsified email and said opposing counsel "treats Hispanics like servants and noble savages that need his superlative help and guidance." Rosales told Ezra the fabricated email was a mistake, but the judge didn't buy it.

"By clear and convincing evidence, the record overwhelmingly supports a finding that Rosales' bad faith conduct in these matters has been brazenly dishonest, deceitful, and fraudulent," Ezra said.

On appeal, the Fifth Circuit didn't see that as "extreme judicial activism."

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