Free Motion for Recusal - 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 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") moves 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. As grounds, Plaintiff states: Judge Blackburn's September 27, 2007 Order refulgently displays "deep-seated and unequivocal antagonism that would render fair judgment impossible", and pervasive bias "so extreme as to display clear inability to render fair judgment." Liteky v. United States, 510 U.S. 540, 555-56 (1994). "A reasonable person, knowing all of the relevant facts, would harbor doubts about the judge's partiality." United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). Judge Blackburn's continued participation in this case would violate U.S. Code of Judicial Conduct Canon 3(C)(1)(a).

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The requirements of the original recusal statute, 28 U.S.C. § 1441, 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) was enacted as an entirely new, "catchall" recusal provision. It requires objective evaluation of judicial bias or prejudice. What matters is not the reality of bias or prejudice, but its appearance. Recusal is mandatory 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). 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, 510 U.S. 548. Bias and prejudice, whatever their source, are necessarily "extrajudicial", for they are the antithesis of "equal justice under the law". By definition, they result in the

intrusion of Constitutionally impermissible factors into a judge's decisions. However, in

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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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order to avoid strict enforcement of 28 U.S.C. §§455(a) and 455(b)(1), some federal courts have by judicial fiat repealed 28 U.S.C. §§455(a) and 455(b)(1) through misapplication of the very "extrajudicial source" doctrine those statutes were intended to render obsolete. They apply "extrajudicial source" as an overbroad exception that

swallows the rule and thwarts Congressional intent. Use of the "extrajudicial source" doctrine to deny recusal in this case would violate Plaintiff's Constitutional rights to due process, trial by jury, and equal protection of the law. Lyell v. Renico, 470 F.3d 1177, 1186-87 (6th Cir. 2006). To be sure, the mere fact that an order or decision is adverse does not mean it is the result of bias or prejudice.2 Quite reasonable minds often differ on the construction or application of legal principles. For instance, in this case, Plaintiff pursued sound claims for deprivation of his "substantive due process" rights, because he was found innocent of the charges against him yet denied any remedy (i.e., as in a Stalinist "show trial", he was tried, proved innocent, but nonetheless executed). This Court dismissed those claims because they do not shock its (subjective) "judicial conscience". Plaintiff disagrees, but must concede this was not inconsistent with the unsympathetic treatment of "substantive due process" claims by most appellate courts. This decision manifests an intellectual and legal predisposition, but, standing alone, does not manifest deep personal animosity or bias. Most federal judges would have made the same decision.

This very Court has denied at least three recusal motions based upon mere adverse rulings that were unaccompanied by additional evidence calling its partiality into question. Shell v. Devries, et al., ___ F.Supp.2d ___, D.Colo.No. 06-cv-00318-REB-BNB (6/11/07); Lawton v. Center Stock Co., ___ F.Supp.2d ___, D.Colo.No. 06-cv-01125-REB-MEH (5/21/07); Williams v. Forest Service, ___ F.Supp.2d ___, D.Colo.No. 05-cv01277-REB-BNB (3/1/06).

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On the other hand, 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 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). "Sauce for the [employer] is sauce for the [judiciary]." Judges should apply to themselves the same standards for proving bias they apply to employers, instead of relying upon the delusion they are immune to base motives they routinely ascribe to others. That such impermissible considerations were used as a pretext for depriving Plaintiff of his jury verdict and career requires an inference of judicial bias and prejudice, 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. 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, Judge Blackburn's bias and prejudice against Plaintiff and his counsel are manifestly profound, deeply personal, and equally unlawful.

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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. This Court may, as it has in other cases, attempt to rely upon Liteky to justify use of the "extrajudicial source" doctrine to bar recusal. Liteky expressly abjures such unreflectively reflexive application of the "extrajudicial source" doctrine: In our view, the proper (though unexpressed) rationale for Grinnell, and the basis of the modern "extrajudicial source" doctrine, is not the statutory term "personal" -- for several reasons. First and foremost, that explanation is simply not the semantic success it pretends to be. Bias and prejudice seem to us not divided into the "personal" kind, which is offensive, and the official kind, which is perfectly all right. As generally used, these are pejorative terms, describing dispositions that are never appropriate. It is common to speak of "personal bias" or "personal prejudice" without meaning the adjective to do anything except emphasize the idiosyncratic nature of bias and prejudice, and certainly without implying that there is some other "nonpersonal," benign category of those mental states. In a similar vein, one speaks of an individual's "personal preference," without implying that he could also have a "nonpersonal preference." Secondly, interpreting the term "personal" to create a complete dichotomy between court-acquired and extrinsically acquired bias produces results so intolerable as to be absurd. 510 U.S. 549-50. (Emphasis added). Justice Scalia further emphasized that the "extrajudicial source" doctrine does not immunize judicial bias acquired during trial: It is wrong in theory, though it may not be too far off the mark as a practical matter, to suggest, as many opinions have, that "extrajudicial source" is the only basis for establishing disqualifying bias or prejudice. It is the only common basis, but not the exclusive one, since it is not the exclusive reason a predisposition can be wrongful or inappropriate. A favorable or unfavorable predisposition can also deserve to be characterized as "bias" or "prejudice" because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment. [That explains what some courts have called the "pervasive bias" exception to the "extrajudicial source" doctrine. See, e.g., 5

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Davis v. Board of School Comm'rs of Mobile County, 517 F.2d 1044, 1051 (CA5 1975), cert. denied, 425 U.S. 944 (1976).] 510 U.S. 551. (Emphasis added). In later squarely holding that an "extrajudicial source" is not a condition precedent to recusal, Justice Scalia wrote: For all these reasons, we think that the "extrajudicial source" doctrine, as we have described it, applies to § 455(a). As we have described it, however, there is not much doctrine to the doctrine. The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for "bias or prejudice" recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. ···· [O]pinions 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. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. 510 U.S. 554-55. (Emphasis supplied). Justice Scalia construed 28 U.S.C. §455(a) much more narrowly than Congress intended. 3 Still, he obviously never intended that

Justice Scalia's majority opinion must be read in conjunction with Justice Kennedy's concurrence, in which Justices Souter, Stevens and Blackmun joined, which completely rejected the "extrajudicial source" doctrine 510 U.S. 563-64): "There is no justification, however, for a strict rule dismissing allegations of intrajudicial partiality, or the appearance thereof, in every case. A judge may find it difficult to put aside views formed during some earlier proceeding. In that instance, we would expect the judge to heed the judicial oath and step down, but that does not always occur. If through obduracy, honest mistake, or simple inability to attain self-knowledge the judge fails to acknowledge a disqualifying predisposition or circumstance, an appellate court must order recusal no matter what the source. As I noted above, the central inquiry under § 455(a) is the appearance of partiality, not its place of origin. ···· The Court's "impossibility of fair judgment" test bears little resemblance to the objective standard Congress adopted in § 455(a): whether a judge's "impartiality might reasonably be questioned." The statutory standard, which the Court preserves for allegations of an extrajudicial nature, asks whether there is an appearance of partiality. See Liljeberg, 486 U.S., at 860 ("[t]he goal of section 455(a) is to avoid even the appearance of partiality") (internal quotation marks omitted); United States v. Chantal, 902 F.2d 1018, 1023 (1st Cir. 1990). The Court's standard, in contrast, asks whether fair judgment is impossible, and if this test demands some direct inquiry to the judge's actual, rather than apparent, state of mind, it defeats the underlying goal of § 455(a): to avoid the appearance of partiality even when no partiality exists.

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lower courts read his decision to foreclose recusal for "intrajudicial" bias. 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. To say the least, this Court's Order displays "deep-seated favoritism or antagonism that would make fair judgment impossible." It seethes with highly subjective personal animosity and hyperbole so wildly out of proportion to the nature of counsel's conduct, and so divorced from the reality of the evidence against Defendant, as to leave no doubt it is rooted in the most profound bias and prejudice. Judge Blackburn

impliedly admits that there is little factual support for his Order, when he asks that the reader give greater credence to his subjective perception than to the record evidence: "Simply recounting Mr. Brennan's myriad and varied transgressions does not adequately capture the pervasiveness and magnitude of his prejudicial behavior. The cold transcript does not convey adequately the Gestalt of what transpired during this trial." Similarly, Judge Blackburn accuses counsel of "cockalorum, grandstanding,

bombast, bullying and hyperbole", but cites no concrete examples. At every turn, Judge Blackburn portrays counsel in the least favorable possible light, and mischaracterizes

···· When the prevailing standard of conduct imposed by the law for many of society's enterprises is reasonableness, it seems most inappropriate to say that a judge is subject to disqualification only if concerns about his or her predisposed state of mind, or other improper connections to the case, make a fair hearing impossible. That is too lenient a test when the integrity of the judicial system is at stake. Disputes arousing deep passions often come to the courtroom, and justice may appear imperfect to parties and their supporters disappointed by the outcome. This we cannot change. We can, however, enforce society's legitimate expectation that judges maintain, in fact and appearance, the conviction and discipline to resolve those disputes with detachment and impartiality. The standard that ought to be adopted for all allegations of an apparent fixed predisposition, extrajudicial or otherwise, follows from the statute itself: disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified. Indeed, in such circumstances, I should think that any judge who understands the judicial office and oath would be the first to insist that another judge hear the case."

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counsel's conduct as the product of an improper or unlawful motive.

In Plaintiff's

counsel's case alone, Judge Blackburn applies a singularly particularized standard of conduct to which others are immune, and condemns personality traits and talents that most good trial advocates possess, and for which most are admired. Judge Blackburn condemns Plaintiff's counsel as "oleaginous", "insincere", "impudent", "sophomoric", "puerile", "obsequious", "unctuous", "contumelious",

"insolent", "disgraceful", and "dishonorable".

Yet, Judge Blackburn finds no fault with

Defendant's counsel's many personality flaws, many breaches of courtroom decorum or etiquette, and many deliberate misrepresentations of fact and law to the Court and the jury. He also ignores that Defendant and its counsel did far more than Plaintiff's

counsel to prejudice the jury against Defendant. Judge Blackburn remains oddly silent on Defendant's: abuse of its enormous power to suborn malicious prosecution; reliance upon perjured testimony to prosecute Plaintiff; continued prosecution of Plaintiff despite its knowledge of his innocence; and openly willful age discrimination. Worse yet, Judge Blackburn relies upon statements outside the hearing or presence of the jury to bolster his finding of misconduct and jury prejudice. Judge Blackburn himself "seeded" the record by preventing counsel from explaining or defending his actions or statements, and by peremptorily citing counsel for contempt without notice or an opportunity to be heard. He accuses counsel of rudely interrupting him during a bench conference when, in truth, he would not permit counsel to be heard despite counsel's respectful requests that he be allowed to speak.

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Evidently, the undersigned enraged Judge Blackburn, a former prosecutor, by noting in argument outside the presence of the jury that some prosecutors occasionally suborn perjury or destroy evidence to obtain or sustain convictions, or by describing the highly undemocratic nature of the judicial nomination process.4 (Tr. 1166-96). "[E]ven when angry, a judge must be fair and take care not to cross the line separating righteous criticism from injudicious damnation." U.S. v. Pearson, 203 F.3d 1243, 1278 (10th Cir. 2000). The profoundly "injudicious damnation" in Judge Blackburn's Order becomes manifest after careful review of the exchanges for which he condemns counsel. They were commonly accepted trial tactics, completely unobjectionable, or, even if objectionable, innocuous.5 In the context of a very lengthy trial, inferring

incurable prejudice from them manifests extraordinary bias and prejudice.
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John Roberts is truly brilliant, and eminently well qualified. Nevertheless, President Bush never would have nominated Roberts were he a Naderite populist. He is Chief Justice because he: (1) is very able; (2) made a career of serving the powerful. In Colorado, ex-prosecutors, or those favored by Judge Blackburn's fellow Las Animas native, Dick Wadhams (and those whom Wadhams serves, such as developer Larry Mizel) have in recent years enjoyed favor. Nominating judges because they are predisposed to rule in ways that please their political sponsors is hardly a Republican phenomenon. Democrats do the same. It is one of the principal reasons big corporations, unions, and other special interests have turned the U.S. Capitol into a virtual brothel, and otherwise unremarkable men such as Norm Brownstein and Steve Farber are so influential in both parties. They have access to massive campaign chests, and straddle both parties in order to maintain access for their clients to politicians of both parties. (Their former partner, Cole Finegan, was Denver City Attorney throughout this proceeding.) Fortunately, Article III sometimes makes for very pleasant surprises, e.g., Justice Sandra Day O'Connor, J.D., Stanford Law School, 1949, and most judges are quite admirably fair-minded despite their origins in an undeniably corrupt political system. 5 At 633, the undersigned asked Hart: "In fact, you used the badge to commit the theft of my client's career, didn't you?" At 820, the undersigned asked Plaintiff, in discussing his prosecution for theft: "And so you continued to be entitled to the constitutional presumption that you were innocent of any crime?" At 821, the undersigned asked Plaintiff, without objection by Defendant, to explain why he filed suit in federal court after the City refused to reinstate him when he was exonerated of theft: "Why get involved in this big old lawsuit in this beautiful courtroom for the better part of a week or more and take up the time of a lot of people that undoubtedly have many other concerns in their lives? Why not settle for what the judge said?" Plaintiff's response was: "Well, Judge Criswell in his decision said that he could not reinstate me because I had ­ I was over the age of fifty, and according to this statute, I was not ­ or I could not be a fireman for the City & County of Denver anymore." At 826, the undersigned simply started his next question before realizing that an objection had been registered, apologized to the Court, and awaited the Court's ruling. At 830, as Plaintiff faded into confusion during his testimony, the undersigned simply sought to correct a misstatement by him. At 838, he simply raised the question of whether the Court would allow questioning on a subject if it were relevant to Plaintiff's substantive due process claims. At 1043, he asked Plaintiff whether the City voluntarily remedied his unlawful termination after it received Mike Brown's written confession that he had committed

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During the undersigned's cross-examination of former Chief Rod Juniel, Judge Blackburn properly responded to Defendant's constant objections with genial observations such as, "It's cross-examination. It's tough cross-examination, but it's fair" (Tr. 1409); it was just "good, old-fashioned cross-examination" (Tr. 1495); and "inbounds cross-examination" (Tr. 1502). With the passage of time, his memory of His serene

counsel's cross-examination has become distorted beyond repair.

description at trial was more reliable. Judge Blackburn attacks the undersigned's quip about Plaintiff's nemesis, Frank Hoffman (nicknamed "Lurch"), as "sophomoric and puerile". This quip had its purpose: to provoke an angry outburst from Hoffman that would expose him as much less equanimous than he pretended to be on the stand. Throughout his Order, Judge Blackburn invariably presumes against Plaintiff and for Defendant. Obligated to view the record in the light most favorable to Plaintiff, Courtney v. Safelite Glass Corp., 811 F. Supp. 1466, 1471 (D. Kan. 1992), he instead views it in the light most favorable to Defendant. This is patent evidence of bias and prejudice. Judge Blackburn's sudden change of heart, fifteen months after trial, concerning the regularity of the trial he so vigorously regulated is mystifying. It is also strong
perjury and obstruction: "Did Mr. Wesoky then contact you after this confession came to light and say, Mr. Cadorna, I am very sorry, it appears the City made a terrible mistake, we allowed someone to perjure himself and obstruct justice in furtherance of our prosecution of you at the same time your Civil Service Commission appeal was pending?" At 1052, he asked Plaintiff: "Bill, weren't you just jumping up and down happy when you got Criswell's decision and didn't you want to send him a bouquet of roses and say, "Thank you for not giving me my job back!"? At 1250, he asked Frank Hoffman, Plaintiff's nemesis, if, in management training he received, they all sat in a circle and sang, "Kumbaya". At 1254, he asked Hoffman whether he intended to save the City's resources when he set Plaintiff up to be fired for shoplifting. Pages 1301-02 are cited by the Court, but are devoid of any remotely arguable impropriety. At 1316, the undersigned asked a compound question, and was properly instructed to correct it. At 1318-19, he asked, after the Court sustained his objection that Asst Chief Caldwell's evasive answer was non-responsive: "I asked you, Chief, and I know you don't want to answer it, but let's give it another shot, I asked you, where is it written in Denver Fire Dept. policies that an allegation of misconduct by a firefighter must be reduced to writing in order for any action to be taken?" Page 1320 is cited by the Court, but is devoid of any remotely arguable impropriety. In examining Tracy Howard, the undersigned exposed that Howard did not consider Plaintiff's service record (Tr. 1981), and implied that he regarded Plaintiff as guilty until proven innocent. (Tr. 1385-86).

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evidence he is motivated by improper considerations unrelated to counsel's conduct. Contemporaneously, Judge Blackburn obviously perceived no passion or prejudice that would interfere with the jury's deliberations. His extensive instructions reminded the jury that counsel's statements are not evidence and should not influence their decision. If Judge Blackburn had any reason during trial to believe that the proceedings had been irretrievably tainted by passion or prejudice, he would never have allowed the jury to decide the case, and would have sua sponte ordered a mistrial. If Judge Blackburn had any reason to doubt after the verdict that the proceedings had been completely fair and untainted by passion or prejudice, he would undoubtedly have ordered a new trial sua sponte under Fed.R.Civ.P. 59(e).6 The jury deliberated conscientiously for over three hours, and no longer, because Plaintiff proved his case and Defendant mounted a poor defense. In Miller v. Eby

Realty, 396 F.3d 1105, 1110 (10th Cir. 2005), the Tenth Circuit inferred no prejudice from jury deliberations of three hours. Yet, Judge Blackburn seizes upon the equal length of deliberations in this case to infer prejudice. He applies an unlawful

presumption of irregularity, and adopts the least plausible explanation for the verdict. The jury's facially neutral question: "May the jury award lawyers' fees?", did not indicate to whom fees might be awarded. There is no evidence the entire jury sought an answer to this question, or that they had already reached a unanimous verdict when the

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If questions existed in Judge Blackburn's mind, or in Defendant's "mind", whether the jury had complied with the Judge's instructions, the Judge and Defendant had appropriate means at their disposal to clarify the basis of their verdict. They did not use them. The sole basis for Judge Blackburn's Order is his apparently spectacular ability, comparable to its prodigious vocabulary, to read the juror's minds. That he prefers to rely upon his own speculation and subjective impressions, as opposed to the truth, to support his Order is the greatest possible manifestation of bias and prejudice.

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question was asked. To the contrary, they continued deliberating for nearly two hours. It was a reasonable question from sophisticated laypersons. At the time, neither Judge Blackburn nor Defendant voiced concern that it betrayed passion or prejudice.7 Judge Blackburn strains to justify his Order by likening the undersigned's conduct to a few cases in which other federal courts have upheld the grant of a new trial, but ignores numerous Tenth Circuit decisions proving his grant of a new trial erroneous. 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, 1237-38 (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). Fed.R.Civ.P.59(a) and 60(b)(3) must be construed together and harmonized as defining "other misconduct of an adverse party". 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, 1289-92 (10th Cir. 2005)[elucidating

Yet, he now relies upon such highly suspect "authority" as Ballarini v. Clark Equipment Co., 841 F. Supp. 662, 667 (E.D. Pa. 1993) to justify overturning the jury verdict because they raised that question. In Ballarini, the trial court was foreclosed from granting judgment notwithstanding the verdict because the defendant had not moved for judgment as a matter of law. In the guise of granting a new trial, the court granted judgment as a matter of law on key questions of liability. Allegations of misconduct by the plaintiff's counsel were not decisive. In the few cases cited by Judge Blackburn to support a new trial, the degree of misconduct proven was far, far greater, and was aided and abetted by a complaisant judge who neither controlled the misconduct nor cured it with appropriate instructions. That was certainly not the case here. The undersigned did not engage in "ad hominem disparagement of the adverse attorney and ... client" in the jury's presence, as occurred in McEnrue v. N.J. Transit Rail Operations, Inc., No. 90-4728 (JBS) 1993 (U.S. Dist. Lexis 15528 (D.N.J. Sept. 30, 1993). Unlike the blatant, egregious conduct in Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 284 (5th Cir. 1975) and Hopson v. Riverbay Corp., 190 F.R.D. 114 122 (S.D.N.Y. 1999), the undersigned did not attempt to introduce significant facts not in evidence, make numerous misstatements of fact to the jury, Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 207 (3d Cir. 1992), or engage in outrageous disparagement, likening opposing parties or counsel to "Mafia" kingpins, Nazis, or other notorious criminals. Cf. Koufakis v. Carvel, 425 F.2d 892, 904 (2d Cir. 1970).

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"fraud . . . or other misconduct by an adverse party" under Rule 60(b)(3)].

The

undersigned's breaches of etiquette were hardly fraudulent or criminal, yet Judge Blackburn has punished Plaintiff as though they were. In Evans v. Fogarty, ____ F.3d ____, 082207 FED10, 05-6106 (10th Cir. 8/22/07), the Tenth Circuit very recently reversed the grant of a new trial under Rule 59, emphasizing such drastic infringement upon a litigant's Seventh Amendment right to a jury trial may be upheld in only the most extreme circumstances.8 Such circumstances do not exist in this case. Judge Blackburn is possibly the least laissez-faire judge before whom the undersigned has appeared. His plaint that he lost control of the trial to the undersigned would be risible were its consequences not so catastrophically unconstitutional. A fair reading of the entire record, consisting of 1,663 pages (not including the Mike Brown deposition), 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. (See Trial Excerpts, Exhibits 7, 8, 9, 10, 11, 12, 13, 14, 15). Judge Blackburn has not, however, given the record a fair reading. Like the blind man who asserts an elephant is a snake because

"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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he grabs its trunk, he selects only those few excerpts that arguably reflect badly on the undersigned. He ignores much greater evidence of thorough professionalism. Defendant received a trial that was much more than fair; indeed, it received a trial that was, if anything, slanted in its favor. Judge Blackburn 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.9 Similarly, Judge Blackburn barred Plaintiff from subpoenaing and crossexamining the City's highest "policy-making officials" or decision-makers: (1) the Civil Service Commission ("CSC") Hearing Officer who overturned Plaintiff's discharge, but brazenly refused to reinstate him or grant him lost wages in lieu of reinstatement because he is over 50; (2) CSC staff and Commissioners who fraudulently affirmed the Hearing Officer in knowing reliance upon an obvious falsehood (that Plaintiff retired "prior to dismissal", but was nevertheless somehow actually dismissed thereafter). Moreover, 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). Plaintiff would have had excellent grounds for a new trial, had he lost. If the jury perceived a "them-against-us" atmosphere in the courtroom, Judge Blackburn and the City, not Plaintiff's counsel, created it.

Judge Blackburn knew Plaintiff was about to enter into an area of questioning Howard that Judge Blackburn had, despite its extreme relevance, inexplicably declared "off-limits". Judge Blackburn used the undersigned's compliment as a pretext for terminating Howard's testimony to avoid having to deny Plaintiff further cross-examination of Howard on indefensible evidentiary grounds.

9

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The undersigned has met the highest standards of professionalism in courageously, zealously and successfully representing Plaintiff for years against a massive, powerful bureaucracy. But for his intelligence, tenacity, and sacrifice, the truth would remain concealed under the tapestry of lies so industriously woven by Defendant.10 The undersigned merits not condemnation, but commendation. However, if counsel's personality offends this Court, counsel, not Plaintiff, should suffer the consequences. That this Court instead imposes the most severe consequences possible on Plaintiff proves that this Court is motivated by bias and prejudice against Plaintiff's counsel, and Plaintiff, that 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). Even if (which it does not) 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). 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 3rd day of November, 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
10

This is why he must be destroyed, so that Defendant will have an easier time with Plaintiff.

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CERTIFICATE OF COMPLIANCE WITH D.C. COLO.LCivR. 7.1(A) and SERVICE In compliance with, the undersigned certifies that he conferred in good faith with Defendant's counsel concerning this motion, and he expressed Defendant's opposition. The undersigned hereby further certifies that on the 3rd day of November, 2007, a true and correct copy of the foregoing 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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