Free Motion for Recusal - District Court of Colorado - Colorado

Case 1:04-cv-01067-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

04-cv-1067-REB-CBS WILLIAM R. CADORNA, Plaintiff, v. CITY AND COUNTY OF DENVER, COLORADO, JAMES A. SESTRICH, KELLEY S. CALDWELL, JOSEPH R. HART and FRANK J. HOFFMAN, Defendants.

PLAINTIFF' MOTION FOR RECUSAL UNDER 28 U.S.C. §§144 AND 455, AND S AFFIDAVIT IN SUPPORT THEREOF

Pursuant to 28 U.S.C. §§144 and 455, Plaintiff William R. Cadorna ("lni" r Pa t o if f " Cadorna"hereby moves for immediate disqualification and recusal of the most Mr. ) Honorable Robert E. Blackburn from this action on the basis of manifest bias, prejudice, a dp ro a h sl tw r Pa t 'c u s l a w u c u eara o a l p ro 1 n es n l o tt o ad lnis o n e t t o l a s iy i if f h d e s n b es n e to doubt his ability to preside over further proceedings in this case in accordance with the requirements of his oath of office. As grounds for this motion, and in compliance with the requirements of an affidavit in support of this Motion, Plaintiff'u d ri e s n es n d g counsel states, under oath: 1. Trial of this matter is scheduled to begin June 19, 2006.

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Or even someon a u ra o a l a J d eBa k une i nlrg rs lnis o n e t b . e s ne s n b s u g l b r v e t e ad Pa t 'c u s l e e c d y if f o

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2.

Plaintiff intends to use a videotaped deposition of an unavailable witness

at trial. In accordance with this Court' Practice Standards, Counsel for Plaintiff s telephoned the person he understood to be responsible for courtroom technology issues on or about June 5 or June 6 (14 days prior to the expected date of use of the videotaped deposition) and left a message for that person informing her of the requirements for a DVD or videotape player, or both, an overhead projector, and easels, and asking her to inform him of the nature of equipment that would be available. To date, the undersigned has received no response whatever, either by telephone, "n i ma, r l t n ma. s a" io e c o i i l l er c l 3. On or about Friday, June 9, 2006, counsel for the parties conferred by

telephone concerning, among many other things, the practicalities of dealing with objections that were raised in the video deposition by Counsel for Defendant(s). In the call, the undersigned s tdta h h dpe i s c na tdteC ut assistant for t e h t e a rv u l o tc h o rs a o y e ' information, but had heard nothing back, presumably because the Court has been so busy with the Stan Ford trial. 4. On Saturday, June 10, 2006, Plaintiff filed his Motion to Disqualify the City

Atre 'ofewt teCek fh C ut I accordance with the requirement that t ny f o s i i h l o te o r n c h r . counsel e-ma teC ut c a es c p o tepertinent proposed order in word ih o rs h mb r a o y fh l ' processing format, the undersigned e-mailed, as he has many times before, the C ut o rs ' chambers the proposed order. 5. Given his sympathy and consideration for administrative personnel, and

the urgency of the matter, the undersigned, meaning to be courteous and helpful, also

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e-mae teC ut c a es P Fc p o f dMoi , ostaff would not have to id h o rs h mb r a D o y fi l ' l e tn s o search for it and retrieve it frm teC ut ss m.The undersigned did not copy o h o rs yt ' e opposing counsel, because it did not occur to him that there would be any possible a c s t no u eh a c n u t h s lc mp i wt tec ut rq i me t cu ai f n ti lo d c i i i y o ln i h o rs e u e n o c n s mp yg h ' r that he email the proposed order (already received by opposing counsel via the electronic filing system) in word processing format. His e-ma t teC ut c a es io h o rs h mb r l ' was courteous, indeed, cheerful. (Copy attached). 6. On Monday, June 12, 2006, the undersigned received an e-mail from Ms.

Su a S h t J d eBa k un Administrative Assistant, informing him of the s n c mi, u g l b r' z c s C ut peee c ta c p s fidMoi s o b s n with proposed orders, and o rs rfrn e h t o i o f ' e l e tn n t e e t o also informing him that motions should be filed with the Clerk of the Court. (Copy attached). 7. I n w y s a e o fr me n gt b tel s b "o d se d g, n o a , h p , rom a i o e h e t i cn ecn i " n a t n

the undersigned responded with what he intended to be a humorous, self-deprecating j a ten tr o h l a e u ai , h hw s u ee c ln, u d n ta hh a a th aue f i e l d c t n w i a q i xee tb t i ' e c i b s g o c t l dt m single ti a o th " n a e a p c o c ut rc d rs ec a doh rh g h g b u te mu d n " s e t f o rpo e ue , t , n te ti s n s . n that are actually 50% of what the practice of law is about.2 The undersigned intended it as a good natured suggestion that, however deficient his education, he is not an idiot, w i iw a Ms S h ts -ma "o d se d g "mpe . h h s h t . c mi'e i c n e c n i l i ld c z l ny i

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Had Stanford done a better job in that department, the undersigned would have fled its seductive cloisters in horror at how little relationship there is between the quality f n 'l a p si a dte o o e e loi n n h s g t o quality of the result obtained in the justice system, and done something much more useful with his life.

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8.

In his response, the undersigned acknowledged the possibility that, for

reasons unknown to him and consistent with the imperfections of our world, he had inadvertently made her life more complicated, thanked Ms. Schmitz for her courtesy, and asked whether she might assist him in addressing concerns about the video deposition, and inform him how he might become oriented in the use of the ELMO system prior to trial. 9. None of this concerned matters about which it was improper to

communicate with Ms. Schmitz " parte" The contact was of an administrative nature, ex . was in follow-u t c u s l l k f u c s i o tin ars o s t h p o ec l p o o n esa o s ce sn ba i ' c n g e p n e o i h n as s l made i a c ra c w t teC ut P a t eStandards, and was in furtherance of n c od n e i h o rs rci h ' c the mutual goals of counsel for both sides. The undersigned thought that, given the v l o ti s i w i teC ut a mis ai a s tns s d a aw i n o me fh g wt h h h o rs d n t te sia t mu t e l rt u n h c ' ir v s , t e inquiry might more successfully achieve the desired result. 10. 11. A written inquiry did achieve a result, but hardly the one desired. At or about noon today, the undersigned was completely stunned to

rc i tiC ut J n 1 , 0 6Minute Order excoriating him in the most e e e h o rs u e 3 2 0 v s ' "o d se d g a d"ln i u i " n e fr ia s r d "o d se d g, c n e c n i " n p iyn l g ma n ro h set l c n e c n i " n al st n s ey n "ln i u i " and "n ti lc mmu i t n wt Ms S h t p iyn l g, al st n u eh a o c" n ai s i c o h . c mi. z 12. The Minute Order so much as stated that, a d i t b i "n ti l i d i n o e g u eh a , n t o n c"

the undersigned is, notwithstanding his IQ of 140 and Stanford Law degree, both stupid a di o ee t e a s h h s v e t n v r oh rdt ra tiC ut Pa te n n mp tn b c u e e a e i nl e e b tee o e d h o rs rcc c d y s ' i Standards, even though it was precisely in furtherance of compliance with this

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C ut P a t eSa d rsthat he followed up on the unanswered telephone call o rs rci tn ad ' c required by those Standards with what he intended to be a friendly e-mail to Ms. Schmitz. 13. The undersigned deeply a mi s h C ut i ei n ea dr o, n d r ti o rsn l e c n i ra d e s ' tl g g

e e moed e la mi s h C ut c i l d v t nt i administrative staff. As v n r e p d r ti o rs h a i e oi o t y e s ' vr c o s one who has spent most of his career fighting for the underdog, but above all the truth and the law, the undersigned admires powerful men who do not, like so many of our profession, abuse their staff regularly as a means of compensating for their lack of real masculinity. 14. Still, given the degree of personal hostility, dismi a o teu d ri e ' s l fh n es n d s g s

i a s n da v c c o h ce t i ee t i tefc o o ew e n o d a d mp si e d o a y f i ln' n rs n h a e f v r h l g d s n o s i s t s mi n ali u ea l o s c s s r "y eb l , and desire to cut the undersigned e r n p rb b t l a mee h p ro " y s e ae e d w t s eb c u eh ga u tdf m a" ptn l sh o rf c di teC ut o n o i e a s e rd ae r z o t e "a c o lel t n h o rs o w ee ' Minute Order, the undersigned is now deeply fearful that this Court will be heavily influenced by its manifest hostility toward Plaintifs o n e t rn e rlg i te f c u s l e d run sn h ' o i upcoming trial or in pending motions that are harshly and unjustifiably adverse to his client. 15. S ge t teu d ri e 'c n enta, tiC ut e i ti o ra i h n es n d o c r h ti h o rd n s h s g s f s e s

Moi , ice t i ee t (l a yg oe wt impunity at every turn by every t n h ln' n rs a e d i rd i o s i s t s r n h allegedly impartial tribunal--other than this Court--before which he has appeared) will be irreparably harmed, that the undersigned will have to request the opportunity to locate counsel willing to substitute for him at trial.

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16.

The undersigned has long relished the opportunity to appear at trial before

this Court, so long as he could do so with the benefit of as many weapons as could p siy es c rdn ti s n i h ce t f a c lmi t n .T eu d ri e o s lb e ue owt t d g i ln' i n i l t i s h n es n d b h a n s i s n a i ao g now has good cause to fear that, as was true in the administrative hearing before Judge C i e,h C ut ma i s h sl a dpe d ea a s teu d ri e a dh r w lti o rs n e t o tt n rj i g i th n es n d n i s l s ' f iy i uc n g s populist political and legal sympathies will contribute to a much less than satisfactory outcome fre s n c mp tlu rl e t temei o Pa t 'c i . o ra o s o l e ne td o h e y a rs f lnis lms t if a f 17. That this Court must recuse itself should be obvious. It has never once

thought to excoriate the City for its highly unethical, unconstitutional and illegal treatment of Pa t i awd v r t o w y d tide h u te i Pa t ' lni n i ai y f a s eae x a sv l n lnis if f e e l i y if f submissions to this Court, and already proved by evidence before the Court. Evidently, h w v rteu d ri e 'u i e t n l " s l g e o e e,h n es n d n tni ay i u i " -mail to Ms. Schmitz is more g s n o l n t n worthy of public condemnation by this Court than subornation of perjury, obstruction of justice, and extortion by the City of Denver in furtherance of its plot to deprive Plaintiff of his constitutional rights. 18. In compliance with D.C. COLO.LCivR. 7.1(A), the undersigned certifies

that he consulted with opposing counsel concerning the subject of this motion, and opposing counsel stated his opposition to it. 19. Time is of the essence, so that Defendant(s) should be required to submit

an immediate response.

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WHEREFORE, good cause having been shown, Plaintiff respectfully requests that this Court disqualify and recuse itself from this action in compliance with 28 U.S.C. §§144 and 455. DATED this 13th day of June, 2006. Respectfully submitted, and sworn to by the undersigned under oath,

/S/

Mark E. Brennan

Mark E. Brennan, P.C. P.O. Box 2556 Centennial, CO. 80161-2556 (303) 552-9394 (office) (303) 797-7687 (cell) [email protected] Attorney for Plaintiff CERTIFICATE OF SERVICE In compliance with D.C.COLO.LCivR. 6.1(D), the undersigned hereby certifies that, on this 13th day of June, 2006, he served, o tiC ut e c o ifn ss m rh o rs l t n i g yt s ' er cl i e served, a copy of the foregoing Motion for Recusal on the following person(s) via electronic mail: William Cadorna 5503 S. Moore St. Littleton, CO. 80127 Jack Wesoky, Esq. Christopher Lujan, Esq. Office of the City Atty. 201 W. Colfax, Dept. 1108 Denver, CO. 80202 /S/

Mark E. Brennan

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