Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Case No. 04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation, Defendant.

PLAINTIFF'S REPLY TO DEFENDANT'S RESPONSE TO MOTION FOR DISQUALIFICATION OR RECUSAL UNDER 28. U.S.C. §§ 144, 455(a) and 455(b)(1)

Plaintiff William R. Cadorna ("Plaintiff" or "Mr. Cadorna") hereby replies to Defendant's Response to Plaintiff's Motion pursuant to 28 U.S.C. §§ 144, 455(a) and 455(b)(1) for disqualification and/or recusal of Judge Robert E. Blackburn from this case for manifest bias and prejudice against Plaintiff and his counsel: Many (alleged) conservatives condemn "judicial activism" when it works against their personal interests, or against the interests of their political masters. They find "judicial activism" much less objectionable when it works to their advantage, as when courts construe the plain language of statutes or the Constitution in such as way as to render their protections meaningless, e.g., Sutton v. United Airlines, 527 U.S. 471

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(1999)(legally blind women not disabled under ADA); Kelo v. City of New London, 545 U.S. 469 (2005)(Fifth Amendment permits taking of private property for private uses).1 This Court offered an interesting reflection on "judicial activism" in its January 25, 2002 response to the "Questionnaire for Judicial Nominees" submitted to it by the United States Senate Committee on the Judiciary (attached): The judiciary stands as our constitutional watchdog and vanguard. However, in preserving and protecting the extant constitution, it is not appropriate to expand its purview to resolve social exigencies as a matter of expediency. Instead, the rightful role of the judiciary, including and especially the federal judiciary, is sedulously case by case, issue by issue, litigant by litigant to render reasoned, principled rulings based upon the facts and law unique to each individual case consistent with established principles of stare decisis and free from the personal, political or social agenda of the individual judge or court. Judges, at all levels in both state and federal courts, should be careful to decide the specific issues of the individual case. Although judges should not be ignorant or insensitive to the effects and consequences of their rulings beyond the case before them, it would be inappropriate to allow those redounds to supplant or become the standards in relationship to which an individual case is decided. A judiciary that employs individual plaintiffs as the vehicle for the imposition of far-reaching orders affecting broad classes of individuals is a judiciary that has spuriously expanded its intended and rightful constitutional role and illegitimately usurped the role of the legislature. Any such tendency by the judiciary to use individual cases to impose sweeping, affirmative duties on government and society constitutes unwarranted interference with the democratic, legislative process and violates the constitutional principle of separation of powers. This Court's stated respect for the limits of judicial authority in its testimony to the Senate Judiciary Committee is violently at odds with the profound disrespect for due

In the eyes of many (alleged) conservatives, when federal courts act to thwart the popular will or the plain intent of the Framers in order to protect the wealthy or the powerful, their "judicial activism" is nothing of the kind; it is simply wise fulfillment of Alexander Hamilton's hope, expressed in Federalist Papers 78 and 79, that the federal judiciary would protect the elites from "mob rule".

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process, federal statutes, and the Seventh Amendment displayed in its grant of a new trial to Defendant. This Court still has a chance to reaffirm its devotion to the principle of limited judicial authority so eloquently stated in its testimony before the Senate. Defendant expressly admitted that it refused to reinstate Plaintiff because he was over age 50. Conversely, Defendant impliedly admitted that it would have reinstated Plaintiff had he been younger than 50. Further, Defendant expressly and willfully relied upon what it knew to be nothing more than a misstatement of fact by the Civil Service Commission Hearing Officer in one part of his decision, that Plaintiff retired "prior to dismissal", as additional grounds for refusing to reinstate Plaintiff despite his unlawful discharge. Defendant waived its right to move for a new trial on the basis of alleged misconduct by Plaintiff's counsel. Angelo v. Armstrong World Industries, 11 F.3d 957, 962 (10th Cir. 1993). Defendant never presented, and the Court never found, a single shred of evidence that any alleged misconduct by Plaintiff's counsel caused any prejudice on the part of any juror, or that, even if it any prejudiced occurred, it was not overcome by proper instructions. Yet, this Court inexplicably substituted its judgment for that of the jury, and relieved Defendant of the consequences of its undeniably willful violation of federal law. This was blatant "judicial activism" verging on despotism of the very kind against which the Founding Fathers valiantly rebelled. Governed as it is by men and women of small mind and aspiration who are, at best, strangers to the truth, the City of Denver's inability to grasp this comes as no surprise. Plaintiff remains baffled, however, that this Court has strayed so far from the wisely and judiciously restrained course to which it

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committed in seeking approval by the United States Senate. thinking that this Court will, upon reflection, realize its error.2

Plaintiff cannot help

It would be well to revisit the governing statute, for Defendant blithely ignores its express language, and obviously expects that this Court will do the same. Plaintiff cannot imagine that this Court wishes to thereby confirm what is obvious to all with no stake in this case: that this Court's profound animosity toward Plaintiff's counsel has deprived it of the "appearance of impartiality", and rendered it incapable of presiding over this case in a manner consistent with its Constitutional oath of office. As stated in Plaintiff's motion, the requirements of the original recusal statute, 28 U.S.C. § 1443, were incorporated into 28 U.S.C. §§455(a) and 455(b)(1), but expanded dramatically in their scope and effect: (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; Subsection (a) requires objective evaluation of judicial bias or prejudice. What matters is not the reality of bias or prejudice, but its appearance.
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Recusal is mandatory

If not, Plaintiff remains quite confident that, just as the Tenth Circuit corrected this Court's unduly narrow misreading of Title IX in the Lisa Simpson case, the Tenth Circuit will likewise one day correct this Court's foray into extreme judicial activism in this case. Defendant may perhaps be excused for gloating a bit after suffering such a humiliating defeat, but its fate will ultimately be little different from that of the University of Colorado in the Simpson case.
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"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."

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whenever "impartiality might reasonably be questioned." U.S. v. DeClerck, ___ F.3d ___, No. 07-3136 (10th Cir. 10/24/07); U.S. v. Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000); Rodgers v. Hyatt, 697 F.2d 899, 901 (10th Cir. 1983); United States v. Gigax, 605 F.2d 507, 511 (10th Cir. 1979); Bell v. Chandler, 569 F.2d 556 (10th Cir. 1978); United States v. Ritter, 540 F.2d 459 (10th Cir. 1976). Section 455(b)(1) duplicates 28 U.S.C. §144, but places the obligation to identify grounds for recusal upon the judge, without the need for a party's affidavit. Liteky v. United States, 510 U.S. 548. As predicted, Defendant relies heavily upon the false distinction between "extrajudicial" and "intrajudicial" bias, which distinction was explicitly rejected by the Supreme Court in Liteky. This Court can either follow Liteky as written, with due regard for its disdain for the "extrajudicial source" doctrine, or misuse the "extrajudicial source" doctrine to deny recusal. Defendant argues that this Court should rely upon that very doctrine to avoid confronting the serious questions concerning its impartiality raised by its defamatory attack on Plaintiff's counsel as a pretext for its unconstitutional grant of a new trial. Even if one gives undue credence to the "extrajudicial source" doctrine, this remains that unusual case in which recusal under 28 U.S.C. §455(a) and 455(b)(1) must be based upon a court's "intrajudicial" statements, decisions or orders alone. An adverse decision that finds no support in the record evidence or prevailing law, is based upon highly idiosyncratic, subjective impressions or speculation concerning the thinking or motives of others, and is festooned with perfervid personal attacks and libel upon the personal characteristics, mannerisms, integrity, skills, professionalism and political

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views of counsel cannot possibly be permissible under 28 U.S.C. §§144, 455(a) and 455(b)(1), simply because it purportedly arises from judicial proceedings. This should especially be true in the context of a pattern of hostility reflected in a series of orders or actions that bespeak personal hostility. (§144 Affidavit). Defendant offers no argument in opposition to or refutation of Plaintiff's argument that this Court should apply to itself the same standards for proving bias it applies to employers, instead of relying upon the delusion it is immune to base motives it routinely ascribes to others. Just as the use by an employer of highly subjective factors,

unwarranted personal attacks, and proven falsehoods as pretexts for terminating a member of a protected class requires an inference of unlawful bias and prejudice, this Court's reliance upon such impermissible considerations as a pretext for depriving Plaintiff of his jury verdict and career requires an inference of judicial bias and prejudice. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Piercy v. Maketa, 480 F.3d 1192, 1198 (10th Cir. 2007); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193,1202 (10th Cir. 2006)[citing Burlington N. & Santa Fe Ry. Co. v. White, ___ U.S. ___, 126 S. Ct. 2405, 2414-15 (2006)]. Whatever their source (about which

Plaintiff can only speculate absent the opportunity to depose this Court and other witnesses), this Court's bias and prejudice against Plaintiff and his counsel are manifestly profound, deeply personal, and equally unlawful. Defendant offers no argument in opposition to, or refutation of, Plaintiff's argument that this Court's grant of a new trial is contrary to numerous holdings by the Tenth Circuit in which more serious "misconduct" than that of which Plaintiff's counsel is

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accused was deemed insufficient to support a new trial. Minshall v. McGraw-Hill Broadcasting, 323 F.3d 1273, 1285-87 (10th Cir. 2003); Abuan v. Level 3 Communications, 353 F.3d 1158, 1174-76 (10th Cir. 2003); Powell v. Cobe Laboratories, 208 F.3d 227, 231 (10th Cir. 2000); Webb v. ABF Freight System, 155 F.3d 1230, 123738 (10th Cir. 1998); Mason v. Okla. Turnpike Authority, 115 F.3d 1442, 1456 (10th Cir. 1997); Ryder v. City of Topeka, 814 F.2d 1412, 1424-26 (10th Cir. 1987). Defendant offers no argument in opposition to, or refutation of, Plaintiff's argument that the Tenth Circuit's recent reversal of the grant of a new trial in Evans v. Fogarty, ____ F.3d ____, 082207 FED10, 05-6106 (10th Cir. 8/22/07)(unpublished), shows that this Court erred in granting a new trial to Defendant in the absence of the most extreme circumstances imaginable.4 Defendant offers no argument in opposition to, or refutation of, Plaintiff's argument that Fed.R.Civ.P.59(a) and 60(b)(3) must be construed together and harmonized as defining "other misconduct of an adverse party". Again, under Rule 60(b)(3), only misconduct tantamount to fraud, bribery, or tampering will suffice to overturn a jury verdict. Zurich North America v. Matrix Services, 426 F.3d 1281, 128992 (10th Cir. 2005)[elucidating "fraud . . . or other misconduct by an adverse party"

"We review a trial judge's decision on a motion under Rule 59 for abuse of discretion. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 433-35 (1996) (holding appellate review for abuse of discretion does not violate party's Seventh Amendment right to a trial by jury); Frank v. Bloom, 634 F.2d 1245, 1254-55 (10th Cir. 1980). Yet when appellate review is of a district court's grant of a new trial, we subject that decision to more stringent scrutiny in order that the district court's judgment not be substituted for the jury's." See, also, th Maday v. Public Libraries of Saginaw, 480 F.3d 815, 818-19 (6 Cir. 2007); Forrest v. Beloit Corp., 424 F.3d 344, 352 (3d Cir. 2005); Holmes v. City of Massillon, Ohio, 78 F.3d 1041, 1045-49 (6th Cir. 1996) Walls v. Armour Pharmaceutical Co., 832 F.Supp 1505, 1515-20 (M.D. Fla. 1993). Moreover, the Constitutional propriety of a new trial for prejudice presumed from the circumstances is a question of law, not of fact. Caterpillar Inc. v. Sturman Industries, Inc., 387 F.3d 1358, 1366-67 (Fed. Cir. 2004).

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under Rule 60(b)(3)]. The undersigned's breaches of etiquette were hardly fraudulent or criminal, yet this Court punished Plaintiff as though they were. Defendant offers no argument in opposition to, or refutation of, Plaintiff's argument that a fair reading of the entire record proves that Judge Blackburn kept the undersigned on a very "short leash", and that the undersigned's behavior in the presence of the jury was that of a passionate and effective advocate, almost always courteous and respectful. Defendant offers no argument in opposition to, or refutation of, Plaintiff's argument that Defendant received a trial that was much more than fair. Defendant

does not deny numerous salient facts offered by Plaintiff, including, but not limited to: (1) this Court abruptly terminated Plaintiff's cross-examination of Tracy Howard because counsel complimented Howard for finally giving a "straight answer" to a question he had theretofore stubbornly resisted answering; (2) this Court barred Plaintiff from subpoenaing and cross-examining the City's highest "policy-making officials" or decision-makers; (3) even though Defendant admitted they played no role in Plaintiff's termination, Judge Blackburn permitted Defendant to introduce irrelevant, highly prejudicial information concerning a domestic disturbance and drunken driving citation Plaintiff received in the fall of 2002. (Tr. 1027-29). These were not close calls that could have gone either way under prevailing law. These were blatantly tendentious rulings inconsistent with prevailing law. Neither does Defendant deny that Plaintiff would have had excellent grounds for a new trial had he

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lost, or that, if the jury perceived a "them-against-us" atmosphere in the courtroom, Judge Blackburn and the City, not Plaintiff's counsel, created it. Defendant's suggestion that this Court's hostility to Plaintiff's counsel reflects no hostility toward Plaintiff is nonsense. The imposition of such extreme consequences upon Plaintiff for such minor breaches of etiquette demonstrates that this Court's bias against Plaintiff's counsel is so pervasive that Plaintiff's rights have been unlawfully adversely affected. Charron v. U.S., 200 F.3d 785, 788-89 (Fed.Cir. 1999). As

Defendant does not deny, even if the record presented a close question, this Court would be required to resolve it in favor of disqualification or recusal. Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995); United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993). Defendant's accusation that Plaintiff failed to comply with the Local Rule requiring consultation is mistaken. The undersigned did indeed consult with Assistant City Attorney Chris Lujan concerning Plaintiff's motion for recusal in a telephone conversation in late October. During that conversation, the subject of baseball came up, and, to the undersigned's surprise, Mr. Lujan expressed his support for the Red Sox despite his being a native Coloradan. During that conversation, the parties discussed a number of pending issues, and, among other things, the undersigned sought and received Mr. Lujan's confirmation that Defendant would oppose Plaintiff's motion for disqualification or recusal. After receiving Defendant's response to the motion, the

undersigned contacted Mr. Lujan to discuss Defendant's mistaken assertion that there was no consultation. It became apparent that counsel simply do not remember their

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discussions in the same way. The undersigned then sought and received Mr. Lujan's confirmation that Defendant does indeed oppose the motion, and that Defendant would not insist that Plaintiff re-file the motion in order to comply with Local Rule 7.1. Defendant thinks it clever to quote the works of Lewis Carroll to belittle Plaintiff's counsel for his assiduous resort to all available avenues of recourse. Defendant may

be hanged by its own petard. Defendant has twice been adjudicated a scofflaw, and Plaintiff has thrice been adjudicated beyond blame. Yet, Defendant has never been held accountable, and Plaintiff continues to suffer for a crime he did not commit. Defendant, not Plaintiff, resembles an absurd character in a Carrollian fantasy in which the truth and the law have given way to "Jabberwocky". This Court still has the power to return the parties back to the other side of the looking glass. If it does not, the Tenth Circuit most assuredly will. WHEREFORE, Plaintiff requests that, because of his manifest bias and prejudice against Plaintiff and his counsel, Judge Blackburn be disqualified from further presiding over this case pursuant to 28 U.S.C. §144, and/or that he recuse himself from further presiding over proceedings in this case pursuant to 28 U.S.C. §§455(a) and 455(b)(1). Regretfully submitted this 10th day of December, 2007. MARK E. BRENNAN, P.C.

Mark E. Brennan
P.O. Box 2556 Centennial, CO 80161 (303) 552-9550, 552-9394, 797-7687 ATTORNEY FOR PLAINTIFF

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CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 10th day of December, 2007, a true and correct copy of the foregoing Reply to Defendant's Response to Motion to Disqualify or for Recusal was served via the CM/ECF system on the following: Richard P. Barkley, Esq. Hamid Khan, Esq. Brownstein Hyatt & Farber, P.C. 410 17th Street, 22nd Floor Denver, Colorado 80202 C. Lujan, Esq. and F. Nachman, Esq. Assistant City Attorneys, Litigation City and County of Denver 201 West Colfax, Department 1108 Denver, Colorado 80202

Mark E. Brennan

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