Dr. Orly and Alleged Court Clerk Conflict of Interest
by nolu chan
November 17, 2009
With DOC 93 in Barnett (Keyes) v. Obama, Orly Taitz filed an Amended Notice and Motion for Reconsideration to Dismiss," which I have scribd with all four of its attachments.
At pp. 2-3, her Memorandum of Points and Authorities becomes amusing when subject to slight scrutiny. Below is the relevant passage of Orly, featuring two case citations, and I have scribd the opinions of both cited cases, Hamid and Milgard Tempering.
Here, Orly makes all sorts of fantastic claims based on the alleged "newly discovered fact" that Judge Carter hired a new clerk who had been employed by the large firm of "Perkins Coie, a law firm representing the defendant in this case, Mr. Obama." That phrasing is delightfully ambiguous. Does it infer Perkins Coie representation in this case, or does it say Obama is the defendant in this case, and Perkins Coie was involved in some other case representing Obama?
Notably, Perkins Coie never represented President Obama in this case. As noted by the Court in DOC 89, at page 28,
While the original complaint in this matter was filed on January 20, 2009, Defendants were not properly served until August 25, 2009. Taitz successfully served Defendants only after the Court intervened on several occasions and requested that defense counsel make significant accomodations for her to effect service.
The case was filed after Barack Obama became the sitting President. Effective service was made seven months later to the U.S. Attorney Roger E. West on August 25, 2009 as documented by DOC 46, Proof of Service, pp. 1-2. Prior to proper and effective service, nobody ever entered the case as attorney for President Obama. As far as I know, the U.S. Attorney does not work for Perkins Coie.
Robert Bauer, an attorney with Perkins Coie has had no involvement with this case. Mr. Bauer had involvement in another Orly (with Kreep) case, Keyes et al v. Bowen et al. That was against the California Secretary of State.
While Robert Bauer applied to appear pro hac vice in Keyes v. Bowen, Obama was represented by Strumwasser & Woocher, LLP, 10940 Wilshire Blvd., Suite 2000, Los Angeles, CA 90024. The judgment notes that "Michael J. Strumwasser and Aimee Dudovitz appeared on behalf of respondents President Barack Obama, Vice President Joe Biden, and the California Electors." The Compendium of Federal Authority filed by Taitz and Kreep on 2/11/2009 shows service to Strumwasser & Woocher, LLP, not Perkins Coie. Bauer represented Obama in the Berg case of Hollister v. Soetoro.
In the case of Keyes et al v. Bowen et al (including Obama), the Superior Court of California, County of Sacramento dismissed and awarded costs to defendants. Defendant Bowen was awarded "costs in the amount of $350.00," defendant Obama was awarded "costs in the amount of $520.00," And defendant Biden was awarded "costs in the amount of $520.00."
Regarding the millions purportedly expended by Obama, at $520.00 a pop, Obama could defend 1,923 such lawsuits before achieving costs of $1 million.
In a Memorandum Order from the D.C. District Court in Hollister, Hemenway was "reprimanded for his part in the preparation, filing, and prosecution of a legally frivolous suit." The Court noted that "one appropriate sanction, that Mr. Hemenway be ordered to pay the attorneys' fees and expenses that his improper filing made necessary," could not be imposed because no motion had been filed asking for such sanction.
When an appeal was filed in the frivolous action, Robert Bauer sent a letter to Hemenway stating, "[s]hould you decline to withdraw this frivolous appeal, please be informed that we intend to pursue sanctions, including costs, expenses, and attorneys' fees, pursuant to Federal Rule of Appellate Procedure 38 and D.C. Circuit Rule 38." Orly calls that a threatening letter.
MEMORANDUM OF POINTS AND AUTHORITIES
A newly discovered fact, material to this action, that was the reason for most errors in the order, is the fact that on October 1, 2009 Your Honor hired as your law clerk an attorney Siddharth Velamoor, who previously worked for Perkins Coie, a law firm representing the defendant in this case, Mr. Obama. As a matter of fact Perkins Coie was one of the firms opposing the plaintiffs in a prior legal action filed by the plaintiffs in this very case, Keyes et al v Bowen et al specifically for not vetting Mr. Obama as a presidential candidate, as Ms. Bowen didn’t request any vital records and never checked any vital records of Mr. Obama, as she and all the other secretaries of states took his Declaration of a Candidate on it’s face value.
As it is a common knowledge that law clerks do most of the research and write most of the opinions for the judges, the order to dismiss this case was de facto written or largely influenced by an attorney who until recently worked for a firm representing the defendant in this case, and who currently is working as a clerk for the presiding judge, as such most of the order is tainted by bias. This is a clear prejudice against the plaintiffs. The Ninth Circuit rule on conflicts of this nature is quite clear: “However, a reasonable person might be concerned whether a law clerk's advice to a judge would be biased in favor of the position taken by a firm, if the law clerk had worked there before his clerkship, was on a leave of absence, and planned to work there after his clerkship. Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 714 (9th Cir. 1990). “Depending on how an individual judge manages her chambers, a law clerk's role in her decision making may be quite significant. Even if the judge has no reason to recuse herself based upon her own circumstances, a law clerk's relationships might cause the impartiality of decisions from that judge's chambers in which the clerk participates reasonably to be questioned.” Hamid v. Price Waterhouse, 51 F.3d 1411, 1416 (9th Cir. 1995).
In each of the cited cases, the Court of Appeals reviewed the case and found no problem, ruling that there was no impropriety warranting any action.
In paragraph 20 of Hamid the Court of Appeals wrote, "It is to filter out fantastic suggestions like this that the word 'reasonable' is part of the recusal test." It probably would have been wiser not to provide, as the best argument one could find, an opinion with that comeback. The opinion, in general, shreds Orly's attempted argument. I quoted the relevant paragraph 12-24 below.
12 The motion to vacate on the ground that the judge should have recused herself appears on its face to be no more of a Rule 59 than a Rule 52(b) motion, for the same reasons. Nevertheless, our precedents require that we treat a motion to vacate an order of dismissal as a Rule 59(e) motion. Mir v. Fosburg, 646 F.2d 342, 344 (9th Cir.1980). Our precedents also require that we treat a motion which could have been made as a timely Rule 59 motion as though it were so made. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1419 (9th Cir.1984). This liberality has the practical effect of letting appeal wait until the timely post-trial motion has been decided. The 1993 amendments to Federal Rule of Appellate Procedure 4(a)(4) will no doubt obviate this confusion.
13 The appeal was timely as to the merits, not just as to recusal, so we have jurisdiction.
14 The appellants claimed below, and argue here, that Judge Marshall should have recused herself from the case because of her law clerks' employment plans. The motion to recuse Judge Marshall and vacate the judgment on this ground was denied by a different district judge, Judge Byrne. We review the district court's denial of the recusal motion for abuse of discretion, Thomassen v. United States, 835 F.2d 727, 732 (9th Cir.1987), and find none.
15 A federal judge must disqualify herself from any proceeding in which her impartiality might reasonably be questioned. 28 U.S.C. Sec. 455(a). The test for recusal in this circuit is " 'whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.' " Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 714 (9th Cir.1990) (quoting Herrington v. Sonoma Cty., 834 F.2d 1488, 1503 (9th Cir.1987)). Depending on how an individual judge manages her chambers, a law clerk's role in her decisionmaking may be quite significant. Even if the judge has no reason to recuse herself based upon her own circumstances, a law clerk's relationships might cause the impartiality of decisions from that judge's chambers in which the clerk participates reasonably to be questioned.
16 However, "[i]f a clerk has a possible conflict of interest it is the clerk, not the judge, who must be disqualified.... [A] law clerk's acceptance of future employment with a law firm would [not] cause a reasonable person to doubt the judge's impartiality so long as the clerk refrains from participating in cases involving the firm in question." Hunt v. American Bank & Trust Co., 783 F.2d 1011, 1016 (11th Cir.1986), quoted in Milgard, 902 F.2d at 714.
17 Two of Judge Marshall's law clerks' employment relationships are at issue, and they are different. Clerk One served as Judge Marshall's law clerk during the earliest stages of the case at bar, and he subsequently became an associate at Debevoise & Plimpton ("the Debevoise firm"). The Debevoise firm represents one of the named defendants, Price Waterhouse/United States. Clerk One filed a sworn declaration stating that he did no work at all on the case at bar while he clerked for Judge Marshall. He says he read the complaint (a public document) on his last day clerking and put it in Judge Marshall's file, but did not ever discuss the case with the judge or have any other involvement with the case during his clerkship. At the time he left his clerkship, Clerk One did not know that the Debevoise firm would subsequently appear for a defendant.
18 Clerk One had no involvement in the case at bar which would give rise to a disqualification of Judge Marshall. A reasonable person knowing all the facts regarding Clerk One's relationship with the Debevoise firm and his lack of involvement in the case at bar would not conclude that the impartiality of Judge Marshall's decisions in the case should be questioned. The rule laid down in Hunt and Milgard would prevent recusal on account of Clerk One's relationship with the Debevoise firm because Clerk One did not work on the case at bar. His advice to and research for Judge Marshall could not be tainted if he gave no advice and did no research.
19 Judge Marshall's other law clerk, Clerk Two, did extensive work on the case. The question regarding Clerk Two is whether he had a disqualifying relationship with a law firm such that Judge Marshall should have taken him off the case. Mr. Lerach, plaintiffs' counsel, filed a declaration asserting that he had learned that (1) Clerk Two was on a "leave of absence" from Skadden, Arps, Slate, Meagher & Flom ("the Skadden firm") during his clerkship with Judge Marshall, (2) the Skadden firm represented Clark Clifford and Robert Altman, defendants in the case at bar, in a criminal case arising out of their involvement with BCCI, and had accepted service of process for them in the case at bar; and (3) Clerk Two "was scheduled" to return to the Skadden firm when he finished his clerkship, but "at the last moment" instead went to work at a different law firm "in the same building as Skadden, Arps and on a contiguous floor."
20 No reasonable person would suspect that a law clerk was slanting his advice to a judge in favor of a law firm because the clerk subsequently went to work for a different law firm "in the same building ... on a contiguous floor." It is to filter out fantastic suggestions like this that the word "reasonable" is part of the recusal test.
21 However, a reasonable person might be concerned whether a law clerk's advice to a judge would be biased in favor of the position taken by a firm, if the law clerk had worked there before his clerkship, was on a leave of absence, and planned to work there after his clerkship. Cf. Hunt, 783 F.2d at 1015. Clerk Two, however, filed a declaration stating that this was not what had happened. He asserted that he had "terminated" his employment at the Skadden firm prior to his clerkship, and although the firm had made him an offer, he had not resumed employment with the firm and had accepted an offer from a different firm. He also said that during the time he worked on the case at bar for Judge Marshall, he "was unaware" that the Skadden firm represented any clients in matters relating to BCCI, the firm did not appear for anyone in the case, and he had not communicated with anyone in the firm about the case. The Skadden firm in fact has not appeared for any party in the case at bar.
22 Judge Byrne accepted the truth of Clerk Two's representation that he did not know the Skadden firm had a role of any kind relating in any way to the BCCI case. We conclude that Judge Byrne did not abuse his discretion in deciding that Clerk Two's prior association with the Skadden firm required neither his removal from the case nor Judge Marshall's recusal because of his failure to remove himself.
23 Because of the very large number of defendants and law firms involved in this case, the likelihood that a law clerk would have some sort of connection to one of them is higher than in most cases, and the likelihood that that connection would matter is lower. A reasonable observer would more likely see any relationship "as implicit in the special circumstances [of the complexity of the case and large number of parties and law firms involved] rather than as an odd coincidence the failure to avoid which might suggest bias." In re Allied-Signal, Inc., 891 F.2d 967, 971-72 (1st Cir.1989). The question of bias is one of whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. It is not a question of whether a line can be drawn connecting a person within chambers to a person or firm related, no matter how remotely, to a party in the case.
24 We need not determine whether a different conclusion could be reached on the facts. It is enough that Judge Byrne did not abuse his discretion in deciding that Judge Marshall need not have recused herself on account of her law clerks' professional relationships with the two law firms.
In Milgard, Orly has found a case that does nothing for her argument. Orly's argument involves the prior employment of a clerk by a lawfirm involved in the litigation before the court. Milgard involves an employment offer by such a lawfirm that was reported to the court by the clerk involved. The judge recused the clerk from further involvement in the litigation and notified counsel. The Court of Appeals found:
The facts of this case do not indicate that the trial judge abused his discretion in refusing a new trial. Immediately after Ms. Schafer was contacted by counsel for Milgard, Judge Bryan removed her from the case and notified counsel of that fact. Thereafter, he completely sealed her off from the Milgard litigation. It is clear that the judge did everything he could to preserve the impartiality of the court, both in fact and appearance. Thus, his denial of Selas' motion was not an abuse of discretion.
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