"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, August 29, 2015

Alex Kozinski litigation saga: the history of recusals. Recusal # 1, Judge Dean D. Pregerson

On 9/24/2012 a group of lawyers filed a class action on behalf of several named plaintiffs as class representatives in the U.S. District Court in the Central District of California.

The case was about defects of a all-electrical vehicle, NISSAN LEAF.

The case was assigned Case No. 2:12-cv-08238 and two judges (as is the rule in federal cases):

  1. Judge Dean D. Pregerson, and
  2. Magistrate Judge Patrick J. Walsh, who is the author of this wonderful document - an article asserting that the "reality" of civil federal litigation is not trials any more, but settlements and motion practice, and that lawyers had better learn that and conform with that "reality".  A scary assertion by a judge who is sworn to abide by the U.S. Constitution which, in its 7th Amendment, clearly provides for a right to a jury trial in federal breach of contract cases, same as many federal statute provide by their clear texts.
Let's note for now that Judge Dean D. Pregerson was appointed to the seat vacated by judge A. Wallace Tashima who was appointed to the U.S. Court of Appeals for the 9th Circuit.

Let's also note that Judge Dean D. Pregerson, of the U.S. District Court for the Central District of California, is the son of judge Harry Pregerson, a 92-year-old judge who still works as part of the U.S. Court of Appeals for the 9th Circuit.  Judge Harry Pregerson is the longest serving judge in the history of the 9th Circuit, having served on the bench of the 9th Circuit since November 2, 1979 (for 36 years this year).

Appointment of a son to a court from which appeals go to the father was completely inappropriate, even though the father was by that time relegated to the "Senior" status.  He still was a judge deciding appellate cases from his son's court, which created a huge appearance of imporpriety.

Yet, at the point of assignment Judge Dean D. Pregerson did not recuse himself, nor did he make any disclosures about his father as the judge of the court to which possible appeals will go.

Yet, on 10/15/2013 things became even more complicated when an objector "appeared" in the action, together with his wife.  I will explain in a separate blog why I put "appeared" in quotation marks and what was inappropriate in the way the objector "appeared" in the action.

The name of the objector was Alex Kozinski, the then Chief Judge of the U.S. Court of Appeals for the 9th Circuit, a judge who was working with Judge Pregerson's father as his colleague, by the filing time of the lawsuit, for 27 years, and as his superior - for 5 years.

As to Judge Dean D. Pregerson who presided over the case of Alex Kozinski as a party, Alex Kozinski as a Chief Judge of the U.S. Court of Appeals for the 9th Circuit had the following authority:

(1) appellate authority to reverse Judge Dean D. Pregerson's cases (not necessarily his own) and thus create a bad record of reversals for the judge;
(2) disciplinary authority.

Judge Kozinski, as the Chief Judge of the 9th Circuit and Judge Dean D. Pregerson's employer, could also create difficulties for further employment of Judge Dean D. Pregerson's super-elderly father, should Judge Dean D. Pregerson "err" against Judge Kozinski as a party objector.

In his "objections" filed on 10/15/2013 Alex Kozinski and his wife, attorney Marcy Tiffany, made the following frivolous and sanctionable statements:

Any other lawyer would have been sanctioned for such "arguments" because they were:

(1) uncivilized;
(2) contained accusations of bad faith without grounds for it against an attorney;
(3) were frivolous because they claimed the plaintiffs' counsel had to conduct discovery before considering a settlement, which is not the law.

Neither Alex Kozinski nor his wife Marcy Tiffany were sanctioned for the contents of their frivolous objections by Judge Dean D. Pregerson, son of Alex Kozinski's long time colleague (and subordinate at that time) Judge Harry Pregerson.

On 11/05/2013 Alex Kozinski and his wife Marcy Tiffany filed "Amendment to Objections".

That same day, Judge Dean D. Pregerson recused from the case, starting a long string of recusals in that case.

I must note that Alex Kozinski not only knew that he is proceeding as a party in the court that is subordinate to his court and to him personally as the Chief Judge of the federal appellate court in that jurisdiction, but meant to use his influence as the chief appellate judge for that court from the very beginning.

Even though Alex Kozinski did not put that into his "objections", later on, in a video interview published on YouTube on November 14, 2014, after three judges recused and the action was stayed for mediation, Alex Kozinski then admitted that even before he filed his objections, he wanted to file them because he did not want to allow certain issues to be handled in a certain way in his Circuit. 

Alex Kozinski specifically said in the video interview pertaining to his decision to file an objection - "Not in the 9th Circuit" (watch the video at the bottom of the article; if the video interview is promptly removed because of criticism in this blog, I have a copy).

Knowing his power, knowing that he has disciplinary authority over presiding judges - and attorneys - in a case where he appeared as a party, knowing that both judges and attorneys would be afraid to make a motion to transfer venue, it was the obligation of Alex Kozinski, ethically, to make such a motion for transfer because of appearance of impropriety.

Alex Kozinski did not make such a motion and the case proceeded in the Central California District Court.

What floored me were the actual reasons for Judge Dean D. Pregerson's recusal.

Here is the order of Judge Dean D. Pregerson's self-recusal dated November 5, 2013, more than a year after September 24, 2012 when Judge Pregerson was assigned to the case.

As reasons for his self-recusal, Judge Dean D. Pregerson wrote:

       "I have a social relationship with the Objectors. 
        Additionally, I have leased an electric vehicle from
        a different manufacturer and I have discussed
        with Objector Kozinski the attributes of objector's

So, IN ADDITION to disqualifications because 

(1) Judge Dean D. Pregerson's father Judge Harry Pergerson is a judge on the appellate court where potential appeals from Judge Pergerson's decisions will go; and

(2) that "Objector Kozinski" is his father's administrative superior; and

(3) that "Objector Kozinski" is Judge Dean D. Pregerson's disciplinary authority;

Judge Dean D. Pregerson also:

(4) had a social relationship with both Alex Kozinski and his wife;

(5) leased a vehicle similar to the one that was subject of litigation, albeit from another manufacturer; and

(6) Judge Pregerson discussed with Alex Kozinski the "attributes of his vehicle" - the very vehicle defects of which are the subject of litigation.


If a judge had a "social relationship" with the Chief Judge of the appellate court to which appeals from the judge's decisions routinely go, WTF (excuse my French) the judge is even DOING in that court, on any cases?

And, Judge Dean D. Pregerson only thought to disclose this "social relationship" with the Chief Judge of the appellate court only over a year into the litigation?

And the same about discussing with a potential class member attributes of a vehicle, thus obtaining extrajudicial knowledge that a judge may not obtain for any litigation?

And - the most interesting thing is that, when filing his and his wife's Objections (they were filed Pro Se, but in the same docket, Docket 50), Alex Kozinski KNEW that he was in a "social relationship" with the presiding judge, and KNEW that he "discussed the attributes" of his vehicle which is subject of litigation, with that presiding judge.

And said nothing - no disclosure to the opposing counsel at all.

Wow.  Wow.  Wow.  The arrogance of the judicial brethren surpasses any imagination.

Yet, there is more to come in the recusal saga within Alex Kozinski litigation saga.

Stay tuned.

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