Friday, December 16, 2011

Judge Snow recuses himself!

Judge Snow finally recused himself from the Michael's Law lawsuit.

Before becoming a federal judge, Judge Snow was a former Arizona Court of Appeals Judge. He worked in the same building with three of the defendant judges. Documents from the Arizona Supreme Court, supplied in Plaintiff's Motion for Disqualification, show that Judge Snow worked with two of the defendants on Committees!

It is reasonable to assume that Judge Snow knew-and still knows-all of the defendant judges on sight and on a first name basis. By law, he should have recused on his own at the start of this case. Three months into it, it took a formal motion to make it happen. But he finally recused.

Pending before the new judge is a similar motion to disqualify the Arizona State Attorney General from defending the Justices of the Arizona Supreme Court. There are numerous conflicts of interest and ethics violations when the Executive branch defends the Judicial branch in a constitutional violation of separation of powers.

As expected, the AG has moved for dismissal of the case, and that is pending also.

Below is the text of our blogger's Reply. As always, the footnotes and Exhibits in the PDF add color. Hope to post the PDF's real soon. In the meantime, use your free PACER account to view them for case 11-CV-1896 in the Arizona District Court.


Plaintiff replies to defendants' response, follows through with new evidence alluded to in my motion, and quotes a recent ruling on Judicial Bias from the Ninth Circuit from a case in Arizona.


Defendants see bias favorable to them

It's said you can't make an argument from silence. Even though defendants were silent in their response, they have not been entirely silent on this matter.

After I filed my complaint, I received the usual Consent to Exercise of Jurisdiction by a US Magistrate Judge (form AO 85) from the court. Instead of mailing the consent form to one defendant and asking them to forward it along to the other five and then mail it to the Clerk, I waited for the appearance of counsel. (In the expectation that defendants would use one attorney, which would be easier to deal with logistically.)

Immediately after learning of counsel (via Defendant's [sic] Motion to Dismiss (Doc. 18), received in the mail on Wednesday or Thursday), I sent opposing counsel the form a few days later (Saturday), along with a letter of explanation.

In my letter (computer copy attached in Exhibit 1), I sent the Ninth Circuit's Order that this District was under a judicial emergency due to Judge Roll's murder in Tucson. I suggested it would be a courtesy to the court to consent to a magistrate judge, especially in light of what a federal judge told some litigants in his court. (See letter.)

On the assumption opposing counsel desires to be courteous to the court, one would expect opposing counsel would be indifferent to consent.

Nevertheless, in an email follow up (Exhibit 2), opposing counsel declined to consent to a magistrate judge. Why? The inference—and the appearance— is that defendants wish to keep their former colleague as judge here.

Committee Assignments

In Plaintiff's Motion to Disqualify Judge Snow, I presumed it was easy to discover in which committees Judge Snow worked along side any of the defendants. (Doc. 25, 2:11) I have obtained such discovery.

Of course, Judge Snow knows whom he knows. But for the record, per Exhibit 3, Judge Snow worked with defendant Judge Brutinel in the Task Force on the Code of Judicial Conduct. And Judge Snow worked with defendant Judge Bales on the Committee on Judicial Education and Training. At a minimum, these associations establish the specter of personal bias toward defendants, requiring disqualification, per the Ninth Circuit.

The Ninth on Judicial Bias

Given that Judge Snow has served on the Task Force on the Code of Judicial Conduct, the following quotes should not be necessary. But for the record, I quote the Ninth Circuit on recusal.

Now, Chief Judge Kozinski has said, "Whenever I see a block quote I figure the lawyer had to go to the bathroom and forgot to turn off the [copy/paste] function on his computer. Let's face it, if the block quote really had something useful in it, the lawyer would have given me a pithy paraphrase."

It is true that I will cut and paste the following from the Ninth. But considering I would have said all this myself (and did say some of this sua sponte in my motion, Doc. 25), on the assumption that no one can say it better than the Ninth; and that it is, by definition, pithy; and that the same words carry more weight coming from the Ninth than from me, I submit the following text.

This is from Hurles v. Ryan, an "exceptional" case of first impression, as here. Most citations omitted.

A. Clearly Established Supreme Court Precedent

"A fair trial in a fair tribunal is a basic requirement of due process." Indeed, the "legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship." This most basic tenet of our judicial system helps to ensure both litigants' and the public's confidence that each case has been fairly adjudicated by a neutral and detached arbiter. An appearance of impropriety, regardless of whether such impropriety is actually present or proven, erodes that confidence and weakens our system of justice.

While most claims of judicial bias are resolved "by common law, statute, or the professional standards of the bench and bar," the Due Process Clause of the Fourteenth Amendment "establishes a constitutional floor." To safeguard the right to a fair trial, the Constitution requires judicial recusal in cases where "the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable." "The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S.Ct. 2252, 2262, 173 L.Ed.2d 1208 (2009). [FN3]

FN3. We cite to Caperton, the Supreme Court's recent decision regarding judicial bias, throughout this opinion. Although, as the dissent points out, Caperton is not controlling insofar as it announces new "clearly established Supreme Court precedent" that post-dates the state court decision at issue here, we refer to it where we find its analysis of established Supreme Court jurisprudence helpful to our resolution of the case. We read Caperton to announce no new rule of law that would affect our analysis here.

(*1310) . . . A claimant need not prove actual bias to make out a due process violation. Indeed, the Supreme Court has pointed out that it would be nearly impossible for a litigant to prove actual bias on the part of a judge. Caperton, 129 S.Ct. at 2262-63; ("[W]hen the trial judge is discovered to have had some basis for rendering a biased judgment, his actual motivations are hidden from view, and we must presume the process was impaired." It is for this reason that the Court's precedents on judicial bias focus on the appearance of and potential for bias, not actual, proven bias. Due process thus mandates a "stringent rule" for judicial conduct, and requires recusal even of judges "who would do their very best to weigh the scales of justice equally" if the risk of bias is too high.

In determining what constitutes a risk of bias that is "too high," the Supreme Court has emphasized that no mechanical definition exists; cases requiring recusal "cannot be defined with precision" because "[c]ircumstances and relationships must be considered." . . . The Supreme Court has just re-affirmed this functional approach. See Caperton, 129 S.Ct. at 2265-66. . . .

The Supreme Court's judicial bias doctrine has evolved as it confronts new scenarios "which, as an objective matter, require recusal." Caperton, 129 S.Ct. at 2259. The most basic example of probable bias occurs when the judge " `has a direct, personal, substantial pecuniary interest in reaching a conclusion against [one of the litigants].' " . . . (*1311) However, financial conflicts of interest are not the only relevant conflicts for judicial bias purposes. See Caperton, 129 S.Ct. at 2260 (explaining that judicial bias doctrine encompasses "a more general concept of interests that tempt adjudicators to disregard neutrality"). The Court has thus required recusal if the judge "becomes 'embroiled in a running, bitter controversy' " with one of the litigants; if she becomes "enmeshed in matters involving [a litigant],"; or "if the judge acts as 'part of the accusatory process,' At bottom, then, the Court has found a due process violation when a judge holds two irreconcilable roles, such that her role as an impartial arbiter could become compromised. . . ."

(*1315) The burden is on the judge to disqualify herself, even if a party never seeks recusal. . . . (“A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.”) (emphasis added); see also, e.g., 28 U.S.C. § 455(a) (same). . . .

(*1321) Finally, the Supreme Court has never required evidence of “personal animus” in order to demonstrate judicial bias. . . . This comports with the Court's longstanding rule, which the dissent recognizes, that a petitioner need not demonstrate actual bias in order to succeed on his claim. See Caperton, 129 S.Ct. at 2262–63.

Since this story has been picked up in the Press (WND, a major news outlet on the Internet. See Exhibit 4 as an exemplar) and is probably headed for the Ninth, it is all the more important for the public's confidence in the Judiciary that this case is seen to be fairly adjudicated by a neutral and detached arbiter. Any appearance of impropriety, regardless of whether such impropriety is actually present or proven, erodes that confidence and weakens our system of justice.

Therefore, as it appears unseemly for a federal judge to sit on a case involving his former recent state court brethren/colleagues, public confidence in the judiciary and law requires the judge to disqualify himself and the burden is on the judge to do so here.

No comments: