NOTICE OF MOTION
Pursuant to 28 U.S.C. §§ 144, 455, and Fifth and Fourteenth Amendment to the Constitution (Due Process), Plaintiff Sheryl Moulton motions this Court for recusal and disqualification of Judge Robert C. Jones from hearing and considering this case in the instant matter.
This motion is based upon the instant notice, the memorandum and affidavit of bias in support of motion for disqualification and recusal of Judge Jones contained infra, the Due Process Clause of the Fifth Amendment, Fourteenth Amendment, 28 U.S.C. §§ 144, 455, all other relevant constitutional, statutory, a case law authority, this Court’s inherent and supervisory powers, and such further argument as may be presented at any hearing on this motion.
MEMORANDUM IN SUPPORT OF MOTION FOR
DISQUALIFICATION AND RECUSAL OF JUDGE ROBERT C. JONES
I. INTRODUCTION
The case now before this Court is a retaliatory action by attorney, Gayle A. Kern, in response to Defendant Doe’s litigation (see Request for Judicial Notice) alleging a homeowners’ association (“HOA”) fraud scheme by Lakeside Plaza Condominium Association.
Defendant’s home at 1000 Beck St. #366, Reno, Nevada was illegally foreclosed due to this HOA fraud scheme. Gayle Kern is a public figure, state actor and serves as legal counsel to Lakeside Plaza Condominium Association.
Defendant asserts immunity for petitioning the illegal foreclosure and HOA fraud scheme and Kern’s alleged unlawful actions including, inter alia, obstruction and conspiracy to obtain fraudulent restraining orders against homeowner victims/whistleblowers, such as Defendant Doe. Doe knows of at least 3-4 other homeowner victims of alleged unlawful restraining orders due to whistleblower retaliation.
Department of Justice is currently prosecuting several HOA fraud (similar to the one perpetrated at Lakeside Plaza Condominium Association). See Exhibit 1
Defendant, as an HOA fraud, illegal foreclosure victim whistleblower, has suffered including but not limited to: false arrest, loss of liberty (through fraudulently-obtained restraining orders, threats of death and bodily harm, wire fraud (computer hack, email and bank accounts compromised), illegal foreclosure and extortion of life savings. While Defendant does not accuse plaintiffs for all these criminal actions, Defendant does believe plaintiffs obstructed justice, conspired and/or had knowledge to several of these crimes, as so presented through evidence, herewith.
Furthermore, Defendant does not accuse this Court of any intentional wrongdoing, and oversight is certainly possible, however, due to the continued pattern of this Court’s possible “oversights” and “mistakes”, Defendant requests Judge Jones recuse and disqualify himself from these proceedings, in order to achieve a fair hearing. These are very serious issues, and Defendant contends this Court must provide for a “fair and even playing field” in order for justice to be achieved.
II. FACTUAL ALLEGATIONS
Defendant addresses, hereinafter, “plaintiff”, “Kern” “Gayle A. Kern” to concurrently mean and represent collective plaintiffs, both “Gayle A. Kern, Esq. and Gayle A. Kern, Ltd.”. Gayle A. Kern, upon knowledge and belief, acted in agency with her business, Gayle A. Kern, Ltd.
Defendant Doe, hereinafter, makes the following allegations.
1) PERJURY BY GAYLE A. KERN, ESQ.
in another case where Judge Jones presided, involving Gayle A. Kern (same party in this case). Sanctions were never ordered against attorney Gayle A. Kern by Judge Jones. See Johnson v. Truckee River Highlands HOA, LLC, (D. Nevada) Case No. 3:09-cv-00587-RCJ-VPC, Docs. 15-2 and 29. See Request for Judicial Notice, See Exhibit 2
2) CONTINUING PATTERN OF PREJUDICE TOWARDS LITIGANTS IN SUITS AGAINST GAYLE A. KERN, PHIL FRINK & ASSOCIATES OR EUGENE J. BURGER, EUGENE BURGER MANAGEMENT CORPORATION
as so proven by Doe’s cases (see Exhibit 7), see victim, witness affidavits. See Johnson v. Truckee River Highlands HOA, LLC, (D. Nev. 2009), Doc. 198; See Exhibits 3, 4, 5
3) EXTRAJUDCIAL SOURCE PREJUDICE BY JUDGE JONES
Plaintiffs Kern contend “The judges and the magistrate judges in Reno are familiar with the facts of this case, having decided three of Moulton’s cases, and having a pending action by her in the Reno division…” See Moulton v. Kern, (D.Nev. 2010 2:10-cv-02264-PMP-GWF), Doc. 23 ¶8.
In this instant case, Plaintiffs Kern reinforce, yet again, the familiarity of Doe’s cases by Nevada District Court judges and magistrates, “The judges and the magistrate judges in Reno are familiar with the facts of this case, having decided all five (5) of Defendant’s cases.” See Plaintiff's Opposition to Defendant's Motion to Quash Service and Dismiss Complaint Doc. 22 ¶8.
4) EX PARTE COMMUNICATIONS (alleged) BY JUDGE JONES
with opposing counsel Kevin Brown, Esq. (from prior case) See Moulton v. Eugene Burger Management, Gayle A. Kern, et al. 3:08-cv-00176-RCJ –RAM, (D.Nev. 2007)
September 16 Eugene Burger Management and Lakeside Plaza defendants filed a motion to dismiss. Id. at 131
January 14, the very same day Doe attempted settlement negotiations Kevin Brown, counsel for Eugene Burger Management and Lakeside Plaza defendants, and prior to Doe having any knowledge of the impending dismissal of the case, Judge Jones “conveniently” dismissed Kevin Brown’s clients the very SAME DAY.
Doe contends these “negotiations” with Brown were most likely done in “bad faith” by Brown for his clients mostly likely to throw off suspicions of alleged ex parte communications. Id. at 137, 138.
Kevin Brown, when questioned if he had ex parte communications, neither admitted nor denied having ex parte communications with Judge Jones. See Moulton v. Eugene Burger Management, Gayle A. Kern, 3:08-cv-00176-RCJ –RAM, (D.Nev. 2007), Docs. 137, 138, See Exhibit 6.
Within (1) month of the alleged ex parte communication by Judge Jones and Kevin Brown, Esq., Judge Hicks recused himself in case Moulton v. Kern 3:11-cv-00087-RCJ-RAM (D.Nev 2011) and the case was “conveniently” reassigned to Judge Robert C. Jones. See Moulton v. Kern 3:11-cv-00087-RCJ-RAM (D.Nev. 2011), Doc. 8, 9.
Judge Jones has now been “randomly” assigned to (6) six Doe cases involving HOA fraud, embezzlement, extortion and/or illegal foreclosure.
5) ABUSE OF PROCESS IN (6) SIX OTHER CASES (DENIAL OF HEARINGS BY JUDGE JONES DUE, IN PART, TO KERN PARTIES’ INTERFERENCE WITH DEFENDANT’S ACCESS TO THE COURT)
Kern’s and other parties’ actions to obstruct Doe’s access to the courts through fraudulently-obtained restraining orders and other malicious abuses of process. See Exhibits 7, 8
6) JUDGE JONES NEVER RULED ON AN IFP DEPRIVING DOE’S DUE PROCESS
Doe’s In Forma Pauperis application was never approved by Judge Jones, therefore, summonses were never issued, depriving Doe of due process. Defendant had to file the case again due to impending statute of limitations. See Moulton v. Gayle A. Kern, (D. Nev. 2:10-cv-02264-PMP -GWF), Dockets 2, 36
7) FINAL JUDGMENT HAS YET TO BE FILED VIOLATING FED.R.CIV.P. RULE 58 FOR CASE MOULTON v. KERN 3:11-cv-00087-RCJ-RAM
More than 150 days have passed and yet, this Court has failed to file final judgment in violation of Rule 58. See Moulton v. Kern 3:11-cv-00087-RCJ-RAM; See Exhibit 8 (last couple pages of docket)
Based on the foregoing actions of unsanctioned perjury, abuse of process, ex parte communication (alleged), extrajudicial source (prejudice), Judge Jones must be disqualified from this case.
While Defendant Doe has the utmost regard and respect for Judge Jones, he has repeatedly violated Defendant’s constitutional right to due process by abusing judicial process.
Judge Jones dismissed Doe’s prior case, Moulton v. Eugene Burger Management, Gayle A. Kern, 3:08-cv-00176-RCJ-RAM (Docket # 126), without apparent good cause stating: “no genuine issue of material fact…to Plaintiff’s Fair Debt Collection Practices Act claim” when, in fact, there was substantial evidence and on point authority proving otherwise.
III. ARGUMENT
A. FED.R.CIV.P. 4 (E), 4 (M) AND N.R.C.P. 4D, 4 (E)(1) AND 4 (E)(2) MANDATE DISMISSAL OF THIS CASE
Defendant Doe, respectfully, does not recognize the jurisdiction of this Court as she was never served a copy of the summons and complaint as required per Fed. R.Civ. P. 4 (e), 4 (m) and N.R.C.P. 4d, 4 (e)(1) and 4 (e)(2). Furthermore, more than 120 days have passed, requiring dismissal of this case under Fed. R.Civ. P. 4 (m).
B. LACK OF JURISDICTION
The Nevada Supreme Court has held that a plaintiff's cause of action arises where the particular defendant resides at the time of the alleged tortious conduct. Alberding v. Brunzell, 601 F.2d 474, 477 (9th Cir.1979); Lewis v. Hyams, 26 Nev. 68, 63 P. 126 (1900); Wing v. Wiltsee, 47 Nev. 350, 223 P. 334 (1924) [emphasis added]
Secondly, since this matter arises out of an HOA contract (CC&Rs) that was grounded upon fraudulent terms (i.e. securities fraud, antitrust fraud), jurisdiction is not properly grounded.
In determining whether to transfer or dismiss a case, the court may consider: “the relative injustice imposed on the parties…" See Johnson v. Payless Drug Stores Northwest, Inc., 950 F.2d 586, 588 (9th Cir. 1992)
C. TIME-BARRED BY STATUTE OF LIMITATIONS
Although, Plaintiffs do not allege with any specificity, it is highly likely that alleged claims will be time-barred by statute of limitations, Nevada is two years, Nev. Rev. Stat. 11.190 (4)(c).
D. LAWSUIT MUST BE DISMISSED FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED PER FED.R.CIV.P. RULE 12 (B)(6) – CURRENT LAWSUIT IS RETALIATORY
Kern’s instant lawsuit is merely retaliatory in response to Defendant’s litigation against her for claims including, but not limited to RICO and FDCPA.
Kern plaintiffs simply fail to state a claim against Defendant Doe and dismissal under Rule 12 (b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990).
To sufficiently state a claim to relief and survive a 12 (b) (6) motion, the pleading “does not need detailed factual allegations” but the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 .
Mere “labels and conclusions” or a “formulaic recitation of the elements of a cause of action will not do.” Id. Rather, there must be “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. In other words, the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (citing Twombly v. Bell Atl. Corp., 550 U.S. 554, 555).
"[A] Rule 12 (b)(6) dismissal may be based on either a 'lack of cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable legal theory.'" Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008)
E. EX PARTE (ALLEGED) COMMUNICATIONS WITH OPPOSING COUNSEL (FROM PRIOR CASE)
Judge Jones’ allegedly had ex parte communications with attorney Kevin Brown (prior case), and is a basis for disqualification and recusal.
Black’s Law Dictionary defines “ex parte” as “on one side only; by or for one party; done for, in behalf of, or on the application of, one party only.” Black’s continues: “A judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken for granted at the instance of and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.”
As noted in Wright, Miller, and Cooper, Federal Practice & Procedure: Jurisdiction §3543 (Disqualification of Judges), although §455 (b) speaks in terms of personal knowledge, case law holds that a judge is also disqualified on the ground of bias or prejudice if ex parte communication has been made purporting to advise the judge of the facts of the case (citing Price Bros.Co. v. Philadelphia Gear Corp., 629 F.2d 444 (6th Cir. 1980), cert. denied, 454 U.S. 1099, 102 S.Ct. 674 (1981) and United States v. Furst, 886 F.2d 558 (8th Cir. 1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878 (1990)).
Parallel rules of professional conduct likewise long have forbidden lawyers to engage in ex parte communications. Rule 3.5 (b) of the ABA Model Rules of Professional Conduct (Model Rules) states that “[a] lawyer shall not ... [c]ommunicate ex parte with [a judge] except as permitted by law.” Rule 3B (7) of the ABA Model Code of Judicial Conduct (MCJC) provides generally that, except as authorized by law, judges may “neither initiate nor consider ex parte or other communications... concerning a pending or impending proceeding.”
Allison, “Combinations of Decision-Making Functions, Ex Parte Communications, and Related Biasing Influences: A Process-Value Analysis, ” 1993 Utah L. Rev. 1135, 1197 (1993). The vice is not just that ex parte communications undermine the reliability of the adversary process; they cast doubt on the impartiality of the judge and, as Allison puts it, may thereby undermine “institutional legitimacy.”
A California judge was publicly admonished for sending an email to a party’s lawyer disclosing the court’s intended ruling and seeking the lawyer’s input. Public Admonishment of Caskey Order (California Commission on Judicial Performance 1998) cited in Shaman, Lubet, et al., Judicial Conduct and Ethics § 5.01, at 159 .
In Re: Brooks, 383 F.3d 1036 (D.C. Cir. 2004) (a special master, appointed in connection with litigation concerning the mismanagement of Indian trust accounts, should have been recused from contempt proceedings brought against various government employees involved in the litigation, because the special master was party to numerous ex parte communications with witnesses and third parties); Cobell v. Norton, 334 F.3d 1128 (D.C. Cir. 2003).
F. “EXTRAJUDICIAL SOURCE” PREJUDICE - GAYLE A. KERN ALLEGEDLY COMMITTED PERJURY IN JUDGE JONES’ COURTROOM (IN AN “EXTRAJUDICIAL” CASE)
Defendant Doe contends that Judge Robert C. Jones' allowance of alleged perjury (from an extrajudicial case), perpetrations of fraud, and abuses of process by Plaintiffs Kern are deemed "extrajudicial" prejudice and, therefore, mandate Judge Robert C. Jones' disqualification and recusal from this case. Defendant contends the seemingly allowed perjury in Judge Jones’ courtroom, by Gayle A. Kern, Esq. seems to exhibit clear (favoritism) to Kern Plaintiffs.
Additionally, alleged ex parte communications between Judge Robert C. Jones and attorney Kevin Brown would also be deemed "extrajudicial" prejudice. Both instances, of alleged “extrajudicial” source of prejudice against Defendant Doe, not only deprive her due process, but require the disqualification and recusal of Judge Jones pursuant to 28 U.S.C. § 144, 455.
In addition, this now makes (7) seven HOA fraud cases involving Doe, all “randomly” assigned to Judge Jones with the some of the same parties. Six (6) of Doe’s HOA fraud cases were previously dismissed. Judge Jones is too close to this present case to remain impartial.
28 U.S.C. § 144 requires disqualification in two situations: (1) when the alleged bias stems from an extrajudicial source and is the basis of an opinion on the merits (see United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)) and (2) when a favorable or unfavorable predisposition, "even if it springs from the facts adduced or the events occurring at trial, ... is so extreme as to display clear inability to render fair judgment." Liteky v. United States, 114 S.Ct. 1147, 1155, 127 L.Ed.2d 474 (1994).
The Supreme Court held in Liteky, “alleged bias must usually stem from an extrajudicial source.” Id. at 554-56, 114 S.Ct. 1147. The Court held that: "…opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." [emphasis added]. See also Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th 1999); Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir.1988).
“[T]he alleged prejudice must result from an extrajudicial source and parties cannot attack a judge’s impartiality on the basis of information and beliefs acquired while acting in his or her judicial capacity.” Boyd v. State, 321 Md. 69, 77, 581 A.2d 1, 5 (1990) (quoting United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir. 1988)).
28 U.S.C. § 455 requires the disqualification of federal judges "if a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might 1373*1373 reasonably be questioned." Sakellar v. Lockheed Missiles and Space Co., 765 F.2d 1453, 1457 (9th Cir.1985); United States v. Jaramillo, 745 F.2d 1245, 1248 (9th Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 2142, 85 L.Ed.2d 499 (1985). We have applied the standards of § 455 even when the statute has not been asserted. Sakellar, 765 F.2d at 1457.
Ninth Circuit has held, “We review the denial of a recusal motion for abuse of discretion.” Sewer Alert Comm. v. Pierce County, 791 F.2d 796, 798 (9th Cir.1986).
In addition, even Plaintiffs Kern contended “The judges and the magistrate judges in Reno are familiar with the facts of this case, having decided three of Moulton’s cases, and having a pending action by her in the Reno division…” See Moulton v. Kern, (D.Nev. 2010 2:10-cv-02264-PMP-GWF), Doc. 23, ¶8.
In the instant case, Plaintiffs Kern reinforce, yet again, the familiarity of Moulton’s cases by District Court judges and magistrates, “The judges and the magistrate judges in Reno are familiar with the facts of this case, having decided all five (5) of Defendant’s cases.” See Plaintiff's Opposition to Defendant's Motion to Quash Service and Dismiss Complaint Doc. 22 ¶8.
There is clear precedent for disqualification and recusal of Judge Jones under 28 U.S.C. § § 144, 455.
G. ABUSE OF PROCESS EVOLVING FROM PERPETRATIONS OF FRAUD ON THE COURT AND INJURIES TO OFFICER OF THE COURT
Plaintiffs Kern have obstructed justice throughout now at least (6) cases presented by Defendant Doe through including, but not limited to: conspiring to fraudulently obtain restraining orders (see Exhibit 8), calling police to harass Defendant Doe (see Exhibit 8), making false statements in federal court.
In addition, Gayle A. Kern allegedly perjured herself in Judge Robert C. Jones’ courtroom (See Exhibits 3, 4, 5). Defendant Doe contends that Judge Jones’ failure to sanction Kern for perjury constitutes an “extrajudicial” prejudice depriving Defendant of her constitutional right to due process.
Tort of abuse of process requires misuse of a judicial process. Ninth Circuit ruled, "[T]he essence of the tort ‘abuse of process’ lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.” Id. (internal quotations and citation omitted). See Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1037 (9th Cir. 2008)
Restatement (Second) of Torts (1981):
The party claiming abuse of process must prove the following elements:
(1) a person use (2) legal process, whether criminal or civil, (3) against the party (4) primarily to accomplish a purpose for which it was not designed and (5) caused harm to the party (6) by the abuse of process.
"[A] defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case." Henry v. Gill Industries, Inc., 983 F. 2d 943 (9th Cir. 1993) (quoting Adriana Int'l Corp., 913 F.2d at 1412).
Citing United States v. Polakoff, 121 F.2d 333 (2d Cir.), cert. denied, 314 U.S. 626, 62 S.Ct. 107, 86 L.Ed. 503 (1941):
The statute, 18 U.S.C.A. § 241, goes back to § 2 of the Act of Mar. 2, 1831, 4 Stat. 487, 488, of which § 1 ___ now 28 U.S.C.A. § 385 ___ defined the power of the United States courts to punish for contempt. See Sinclair v. United States, 279 U.S. 749, 762, 49 S.Ct. 471, 73 L.Ed. 938, 63 A.L.R. 1258; Ex parte Savin, 131 U.S. 267, 274, 9 S.Ct. 699, 33 L.Ed. 150; United States v. Potash, 2 Cir., 118 F.2d 54, certiorari denied 61 S.Ct. 1103, 85 L.Ed. ___. It provides that "whoever corruptly * * shall endeavor to influence, intimidate, or impede any * * * officer in or of any court of the United States * * * or who corruptly * * * shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein" shall be subject to a fine or imprisonment or both.” [emphasis added]
“Any fraud connected with the presentation of a case to a court is a fraud upon the court, in a broad sense.” Moore & Rogers, Federal Relief from Civil Judgments, 1946, 55 YALE L.J. 692 n. 266. There is a powerful distinction between perjury to which an attorney is a party and that with which no attorney is involved.
Citing Giglio v. United States, 405 US 150 (S.Ct. 1972) “As long ago as Mooney v. Holohan, 294 U.S. 103, 112 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with "rudimentary demands of justice." This was reaffirmed in Pyle v. Kansas, 317 U.S. 213 (1942). See also Napue v. Illinois, 360 U.S. 264 (1959).
“The district court should have granted a new trial if: (1) the prosecution actually presented false testimony; (2) the prosecution knew or should have known that the testimony was false; and (3) the false testimony was material to the outcome of the trial.” See Hein v. Sullivan, 601 F.3d 897, 908 (9th Cir. 2010).
In light of Gayle A. Kern’s false statement in federal court and perjury in Judge Jones’ courtroom, Defendant Doe has been severely deprived of due process throughout the course of her (6) six illegal foreclose/HOA fraud cases, in addition to the case now before Judge Jones.
H. IMPARTIALITY IS QUESTIONABLE MANDATING RECUSAL AND DISQUALIFICATION PER 28 U.S.C. §§ 144, 455
This case involves, among other things, alleged civil rights violations by the depriving Defendant of her procedural and substantive due process rights under the 14th Amendment to the United States Constitution to be free from arbitrary deprivation of property and liberty interests. Plaintiffs’ actions have deprived Doe of her rights to due process of law.
Doe, in a prior case, filed Motion for Recusal of Judge Jones on February 24, as Doe had sustained deprivation of due process. Judge Jones did not recuse himself. See (3:11-cv-00087-RCJ-RAM), Doc. 12.
A reasonable person, with knowledge of the pertinent facts as recited herein, would conclude that Judge Jones’ impartiality might reasonably be questioned.
28 U.S.C. § 455 provides, in pertinent part:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;…
(e) No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification. [emphasis added]
28 U.S.C. § 455 (a) requires a judge to disqualify himself in any proceeding in which his impartiality might reasonably be questioned. “The goal of section 455 (a) is to avoid even the appearance of partiality, ” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860 (1988) (quotation marks omitted), and thus “what matters is not the reality of bias or prejudice but its appearance, ” Liteky v. United States, 510 U.S. 540, 548 (1994). In other words, so long as a judge’s impartiality might reasonably be questioned, recusal is required “even though no actual partiality exists…because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible.” Liljeberg, 486 U.S. at 860 (quotation marks omitted); See also Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991) (quotation marks omitted); Caperton v.A.T. Massey Coal Co., Inc., 129 S.Ct. 2252 .
Under § 455, a judge "does not have to subjectively biased or prejudiced, so long as he appears to be so.” Liteky, 510 U.S. 540, 553 n.2 (1994). The test is "whether or not given all of the facts of the case there are reasonable grounds for finding that the judge could not try the case fairly, either because of the appearance or the fact of bias or prejudice." United States v. Conforte, 624 F.2d 869, 881 (9th Cir. 1980).
The Supreme Court held in Liljeberg, 486 U.S. 847, 860 (1988) held that "the goal of section 455 (a) is to avoid even the appearance of partiality.” "[J]ustice must give the appearance of justice" Levin v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954).
"We conclude that there is a serious risk of actual bias— based on objective and reasonable perceptions..."See Caperton, 129 S. Ct. 2252
Pursuant to the language of Section 455 (a), "what matters is not the reality of bias or prejudice but its appearance." Liteky v. United States, 510 U.S. 540, 548 (1994). Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), the Tenth Circuit’s decision in United States v. Cooley, 1 F.3d 985 (10th Cir. 1993), and the Ninth Circuit’s decision in Preston v. United States, 923 F.2d 731 (9th Cir. 1991).
US v. Microsoft Corp., 56 F. 3d 1448 (D.C. Cir. 1995) "require such further proceedings to be had as may be just under the circumstances, " 28 U.S.C. § 2106 (1988), allow us to reassign this case to a different judge on remand. See Liteky v. United States, ___ U.S. ___, ___ _ ___, 114 S.Ct. 1147, 1156-57, 127 L.Ed.2d 474 (1994). To do so, we need not find actual bias or prejudice, but only that the facts "might reasonably cause an objective observer to question [the judge's] impartiality." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 2205, 100 L.Ed.2d 855 (1988).[2]
The Ninth Circuit held in US v. Bosch, 951 F. 2d 1546 (9th Cir. 1991)"[I]t is equally clear that the judge's failure to withdraw — given the evidence of possible bias — undercuts "the integrity and reputation of the judicial process, " Bustillo, 789 F.2d at 1367, and "`seriously affect[s] the fairness... of judicial proceedings, '" Young, 470 U.S. at 15, 105 S.Ct. at 1046 (quoting Atkinson, 297 U.S. at 160, 56 S.Ct. at 392 (1936)). Indeed, the Supreme Court has indicated that the right to an impartial judge ranks among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 827-28 n. 8, 17 L.Ed.2d 705 (1967) (citing Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927)); see also, United States v. Perkins, 937 F.2d 1397, 1407 n. 2 (9th Cir.1991) (O'Scannlain, J., dissenting). [emphasis added]
The ABA standard is firm and uncompromising: it urges judges to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary";[8] it implores them not to "convey or permit others to convey the impression that they are in a special position to influence the judge";[9] and it specifically advises that when an attorney in a case is a friend of the judge, the judge should disqualify himself if (a) the judge feels incapable of disregarding the relationship and (b) others cannot reasonably be expected to believe that the relationship will be disregarded.[10] The trial judge's comments on the record in this case demonstrate that he could not ignore his close 1557*1557 relationship with the prosecutor, and they dispel the objective impression of neutrality. [quotation marks omitted]
The denial of a recusal motion is reviewed for abuse of discretion. Jorgensen v. Cassiday, 320 F.3d 906, 911 (9th Cir.2003). Under 28 U.S.C. § 144, if “the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, ․ [he] shall proceed no further․” Under 28 U.S.C. § 455 (a), “Any ․ judge ․ shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Under both recusal statutes, the substantive standard is “ ‘[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.’ ” United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997) (quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986)).
“Recusal is required when a "reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits.” In re Mason, 916 F.2d 384, 385 (7th Cir. 1990); Nat'l Union Fire Ins.Co., 839 F.2d at 1229.[7]
In Liljeberg, 486 U.S. 847, 861 (1988), this Court stated that "in determining whether a judgment should be vacated for a violation of § 455 (a), it is appropriate to consider [i] the risk of injustice to the parties in the particular case, [ii] the risk that the denial of relief will produce injustice in other cases, and [iii] the risk of undermining the public’s confidence in the judicial process." 486 U.S. 864 (emphasis added).
In performing this analysis, the Court “must bear in mind that … outside observers are less inclined to credit judges’ impartiality and mental discipline than the judiciary itself will be, ” and in “a close case, the balance tips in favor of recusal.” Id. at 912, 914 (quotation marks omitted). Perry v. Schwarzenegger (9th Cir. 2010) citing United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (quotation marks omitted). [emphasis added]
In Preston v. United States, 923 F.2d 731 (9th Cir. 1991), the Ninth Circuit disqualified a trial judge pursuant to 28 U.S.C. s 455 (a) because he previously had been "of counsel" to a law firm that represented a non-party with an interest in the litigation. Preston, 923 F.2d at 732. Despite the absence of any claim of actual bias, see id. at 734, the Ninth Circuit held that there was "no way... to purge the perception of partiality in this case other than to vacate the judgment and remand the case to the district court for retrial by a different judge, " id. at 935. The Ninth Circuit reached that conclusion despite acknowledging "that a retrial will involve considerable additional expense, perhaps with the same result as the first trial." Id.
The facts of this case would plainly lead a reasonable person to conclude that Judge Jones’ impartiality might be questioned and therefore, he should be disqualified and recused from this case pursuant to 28 U.S.C. §§ 144, 455 and Nevada Code of Judicial Conduct Rules Rule 2.11
I. DUE PROCESS DEPRIVATIONS AND APPARENT “FAVORITISM” TO KERN PLAINTIFFS BY JUDGE JONES’ FAILURE TO REPRIMAND GAYLE A. KERNS’ PERJURY (IN ANOTHER CASE)
While Judge Jones’ actions may or may not be intentional, the fact remains that Judge Jones’ actions contributed to Defendant Doe losing her home (to illegal foreclosure), life savings and liberty due to continued abuses and perpetrations of fraud on this Court by Plaintiffs Kern and other parties throughout the course of (6) six prior cases filed by Doe.
Judge Jones’ actions (in conjunction with Plaintiffs’ and other parties’ actions) have caused Defendant to lose significant amount of money to this Court (in legal filing costs) for (6) six federal cases, thereby, also violating Defendant’s right to implied honest services.
Considering the continuing deprivations of due process, is reasonable to request disqualification and recusal of Judge Jones.
"The neutrality requirement helps to guarantee that life, liberty or property will not be taken on the basis of an erroneous or distorted conception of the fact or the law. See Matthews v. Eldridge, 424 U.S. 319, 344 (1976)…, by ensuring that no person will be deprived of this interests in the absence that the arbiter is not predisposed to find against him." citing Marshall v. Jerrico, 446 US 238, 242, 100 S.Ct. 1610, 64 L. Ed. 2d 182 (1980). [emphasis added]
"It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgment in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violations of the principles of the Constitution." Downs v. Bidwell, 182 U.S. 244 (1901).
"[A] defendant suffers prejudice if the plaintiff's actions impair the defendant's ability to go to trial or threaten to interfere with the rightful decision of the case." Henry v. Gill Industries, Inc., 983 F. 2d 943 (9th Cir. 1993) (quoting Adriana Int'l Corp., 913 F.2d at 1412).
"Not only must the tribunal harbor no actual bias against the person facing a deprivation of his property interests, but "justice must satisfy the appearance of justice." Marshall, 446 U.S. 238, 243 (1980) '(quoting Offutt v. United States, 348 U.S. 11, 14 (1954)
The Supreme Court held in Caperton v. AT Massey Coal Co., Inc., 129 S. Ct. 2252 ,
"It is axiomatic that "[a] fair trial in a fair tribunal is a basic requirement of due process." Murchison, supra, at 136, 75 S.Ct. 623. As the Court has recognized, however, "most matters relating to judicial disqualification [do] not rise to a constitutional level." FTC v. Cement Institute, 333 U.S. 683, 702, 68 S.Ct. 793, 92 L.Ed. 1010 (1948). The early and leading case on the subject is Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). There, the Court stated that "matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion." Id., at 523, 47 S.Ct. 437.
"Litigants are entitled to a judge who is detached, fair, and impartial." Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 531 (9th Cir.1986).
In re Murchison, 349 U.S. 133, 136 (1955) the Court examined the due process clause of the Constitution stating: "A fair trial in a fair tribunal is a basic requirement of due process. Fairness, of course, requires an absence of actual bias in the trial of cases."
Citing In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988) "Due process requires notice and an opportunity to be heard and the standard for measuring the adequacy of these procedural protections increases in proportion to the significance of the interest at stake." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).
Dismissal of Doe’s prior federal cases, along with allowing unsanctioned perjury by Gayle A. Kern in Jones’ courtroom, deprive Doe of a fair hearing and due process, therefore, Judge Jones must recuse and disqualify himself to prevent any appearance of partiality.
J. JUDGE JONES MAY BE A “MATERIAL WITNESS” TO AN ALLEGED CRIME OF PERJURY COMMITTED BY GAYLE A. KERN, ESQ. AND MUST BE DISQUALIFIED PURSUANT TO 28 U.S.C. § 455
The fact that Judge Jones, whether intentionally or unintentionally, allowed Gayle A. Kern to, essentially, commit an alleged crime of perjury in his courtroom, without sanction, in another case, seemingly proves “deep-seated favoritism [towards Plaintiffs Kern] that would make fair judgment impossible. ”
Since Judge Jones seemingly allowed a perpetration of fraud (perjury) in his courtroom by Gayle A. Kern, it is highly likely, Defendant Doe will call Judge Jones as a material witness, therefore, pursuant to 28 U.S.C. § 455, Judge Robert C. Jones must disqualify and recuse himself from this case.
The 1974 revision of 28 U.S.C. § 455 reads (excerpt):
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
"(b) He shall also disqualify himself in the following circumstances: …(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:...
(iv) “Is to the judge's knowledge likely to be a material witness in the proceeding.
K. RECUSAL AND DISQUALIFICATION OF JUDGE ROBERT C. JONES PURSUANT TO 28 U.S.C. § 144 AND 28 U.S.C. § 455 DEEM IT NECESSARY DUE TO EXTRAJUDICIAL PREJUDICE AND ASSOCIATED DEPRIVATIONS OF DUE PROCESS
28 U.S.C. § 144 states:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
The federal disqualification statute, 28 U.S.C. § 455 (a), provides that, “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
L. CONTINUED ABUSES OF DISCRETION WARRANT REVIEW BY NINTH CIRCUIT
The denial of a recusal motion is reviewed for abuse of discretion. Jorgensen v. Cassiday, 320 F.3d 906, 911 (9th Cir.2003). Under 28 U.S.C. §144, if “the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, ․ [he] shall proceed no further․” Under 28 U.S.C. §455 (a), “Any ․ judge ․ shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Under both recusal statutes, the substantive standard is “‘[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.’” United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997) (quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir.1986)).
IV. CONCLUSION
For all the foregoing reasons, Defendant’s motion for recusal and disqualification of Judge Robert C. Jones should be granted.
Dated: October 7
Respectfully submitted,
JANE DOE, a.k.a. SHERYL MOULTON
By: /s/Jane Doe, a.k.a. Sheryl Moulton
Jane Doe, a.k.a. Sheryl Moulton
In Pro Per
DECLARATION OF JANE DOE, ALSO KNOWN AS SHERYL MOULTON
I, Jane Doe, a.k.a. Sheryl Moulton, hereby declare:
1. As a victim of crime, whistleblower of homeowner association fraud and, due to personal safety concerns and threats of retaliation, I have assumed the identity of “Jane Doe” (a.k.a. Sheryl Moulton).
2. I am Defendant, pro se in this matter and have personal knowledge of the facts stated herein.
3. I am a California resident. I have lived and resided in California for most of my life.
4. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this Declaration was executed on 7th day of October in California.
/s/Jane Doe, a.k.a. Sheryl Moulton
Jane Doe, a.k.a. Sheryl Moulton
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