In re:                                                                                     Bankruptcy No. 93-07643

Eugene Walter Alpern                                                       Chapter 11

                                                                                            Judge Thomas James
 
 

        NOW COMES the Debtor, EUGENE ALPERN, in pro per, sui juris (NOT PRO SE), and moves this court to reconsider all of this court's orders of December 20, 1993 and to vacate all of the orders of that day. In support of this motion, the Debtor states:

        1.        Contrary to allegations made in court on December 20, 1993, only motions filed under Title 18 U.S.C. §144 requires a minimum 10 day notice. As this court itself previously called counsel's attention to Poulakis v. Amtrak, 139 F.R.D. 107 (N.D. Ill. 1991), that no technical procedures shall apply to a non-represented litigant's pleadings, but that a non-represented litigant's pleadings must be decided only on the merits of his cause.

        2.        Judge James has not construed the non-represented litigant's documents liberally as required by Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594 (1972).

        3.        Judge James did not issue written notice to the non-represented litigant to advise the non-represented litigant of what he must do to comply with court procedure. Due process requires that Judge James must give adequate written notice to a non-represented litigant, so that the non-represented litigant does not need to guess at what constitutes a court's complete order. The general term "as stated in court" in an order issued by the court does not have any meaning to non-represented litigant and was intended by Judge James to intentionally not inform the non-represented litigant of what the actual court rulings were. Timms v. Franks, 953 F.2d 281 (7th Cir. 1992); Burris v. State Department of Public Welfare of S.C., 401 F.2d 763 (4th Cir. 1974); Burgs v. Sissel, 745 F.2d 526 (8th Cir. 1984); Canty v. City of Richmond Va. Police Dept., 383 F.Supp. 1396 (1974); Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed 761 (1949).

                Judge James intentionally manipulated the court procedure to deny this Debtor of his constitutional right to a meaningful access to this court at a meaningful time. Judge James actions were to make a sham of these court proceedings.

        4.        The Northern Illinois Federal District Court has ruled, in Clay v. Doherty, 608 F.Supp. 295 (D.C. Ill. 1985):

                "Section 455(a) reads in its entirety:

       Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." [Emphasis added]. ...

    [A] judge's self-appraisal that he or she is able to preside impartially over the case is irrelevant to the Section 455(a) balance."

                As stated in Clay, the prejudice of the judge against a litigant shall NOT be determined by the subjective opinion of the judge relative to his own prejudice. The courts have ruled that it should be determined by what a "a detached and reasonable observer" might, based on all of the facts, determine to be the prejudice of the judge. ⁽¹⁾ In the instant matter, neither the judge nor opposing counsel can be considered to be "a detached and reasonable observer". Therefore, both Judge James and counsel must be removed from the position of determining whether or not Judge James was prejudicial against the Debtor. While the Debtor truthfully considers himself impartial in this matter, Judge James and counsel may not agree. Therefore, who can be considered to be "a detached and reasonable observer" in this matter?

                As there were two detached and reasonable observers present during the proceedings on December 20, 1993, their opinions on whether Judge James was or was not impartial, or whether Judge James gave the appearance of impartiality, must be considered. Affidavits from these two detached and reasonable observers could be furnished to this court, if this court so desires. Or all the facts could be presented to a common-law jury of twelve persons, a jury fully and completely informed on all of a jury's legal and constitutional rights under the Constitution of the United States, and under the Common Law, and under Military/Admiralty Law, if this court is operating under Military/Admiralty jurisdiction. Judge James should not be afraid to have his true motives determined by "a detached and reasonable observer". Failure to have the issue of the prejudice and the partiality of Judge James determined by "a detached and reasonable observer" should be decided in favor of the Debtor, as Judge James' ruling as to his personal prejudice was not impartial.

        5.        Contrary to the erroneous allegations made in court, all of the facts behind a case, and not only the statements made in a motion to disqualify are to be considered in a disqualification of a judge by a detached and reasonable person.

                The Debtor has referenced, throughout the proceedings, of many of the objective facts necessary to evidence the prejudice of Judge James. The decision in Clay,  et seq., allows for the facts from the proceedings, not only from the motion to disqualify. By law, a motion to disqualify is not essential. The judge is required to disqualify himself, even sua sponte, whenever the situation occurs whenever "a detached and reasonable observer" may perceive that the judge may be prejudicial to a litigant before him.

                Certainly, a judge must disqualify himself whenever he violates the Constitutional guaranteed rights of a litigant. Judge James has no legal authority to convert a constitutional right into a privilege.

        6.        The law states that a judge is presumed to know the law. Failure of Judge James to provide the Debtor with the equal protection of the law violates the judicial process, and causes the rulings of the Judge to be void. 7 Moore's Federal Practice. Failure of Judge James to provide the Debtor with the equal protection of the law causes Judge James to lose jurisdiction.

                Judge James presumably should know that the jurisdiction of another court must be determined, if it is challenged and any judgment from the other court is brought up before his court. Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12 L.ed. 1170, 1189 (1850). It was, and is, Judge James duty to comply with the Supreme Law of this Land, unless Judge James has the legal authority to review and overrule the decisions of the U.S. Supreme Court. The Debtor has not been able to find anywhere in the Constitution or in statutes that an Article I judge, such as Judge James, has the power to review and overrule the decisions of the Justices of the U.S. Supreme Court.

                Judge James presumably should know that the jurisdiction of the state court in a statutory proceeding cannot be presumed. The courts have ruled that Judge James must follow established statutes and caselaw, even if Judge James disagrees with the statutes or law. Matter of Chicago, Rock Island and Pacific R. Co., 794 F.2d 1182 (7th Cir. 1986). Judge James does not have discretion not to follow the law.Littleton v. Berbling, 468 F.2d 389, 412 (7th Cir. 1972), citing Osborn v. Bank of the United States, 9 Wheat (22 U.S.) 738, 866, 6 L.Ed 204 (1824); U.S. v. Simpson, 927 F.2d 1088 (9th Cir. 1990). However, Judge James, without providing the Debtor with a meaningful access in a meaningful manner to the question of the want of jurisdiction of the court that issued the null and void judgments, presumed that the state court had jurisdiction. If this is considered to be an error of law, then the law states that this action by Judge James is an "abuse of discretion", Hughes v. Rowe, 77-C-4583 (7th Cir.), and a arbitrary and capricious intentional attempt to deny the Debtor his legal and constitutional rights. This is another example of Judge James prejudice against the Debtor.

        7.        Judge James has a duty to apply the law. Littleton, supra. Judge James failed to rule on Debtor's motions at a meaningful time for the Debtor. The court's definition of meaningful time refers to the Debtor's meaningful time, not that of the judge or any other party. Due to Judge James failure to rule on Debtor's motions at a meaningful time, some of the Debtor's motions still have not been ruled upon, even after the time of their effectiveness. Judge James violated the First Amendment Constitutional Rights of the Debtor to have his petitions for redress effectively and meaningfully heard. Judge James' action prejudiced the Debtor.

                As stated, Judge James still has not heard and ruled on all of Debtor's motions, and/or on all portions of Debtor's motions. Not only has the failure of Judge James to hear and rule on Debtor's motions prejudice the Debtor, but it has also denied and deprived the Debtor of his Constitutional Right to effectively and meaningfully petition the court for redress. Judge James has violated the Debtor's First Amendment Constitutional Rights. Judge James has lost jurisdiction to hear and rule in this matter the instant that he denied, deprived, and overlooked this Debtor's Legal and Constitutional Rights.

        8.        Judge James presumably knew, or should have known, that a judgment is not a final judgment, until the judgment has been ruled upon by a court of last resort. State of Illinois v. Sperry Rand Corporation, 237 F.Supp. 520 (N.D. Ill. 1965); Bates v. Board of Educ., 136 Ill.2d 260, 555 N.E.2d 1 (1990). Judge James purposely, knowingly, and intentionally allowed the purported creditors, over the non-represented litigant's objections, to have improper standing as creditors, when he knew that the law did not allow their purported judgments to be considered as evidence, as the judgments were not final judgments, nor were any of the judgments issued by a court of competent jurisdiction. Judge James' actions again willfully and intentionally acted to prejudice the Debtor.

        9.        Since jurisdiction of the state trial court 91-D-5122 cannot be presumed, then this court must presume that all of the orders/rulings/judgments of the 91-D-5122 court were null and void.

        10.        Failure of this court to follow the law further evidences the continued prejudice of Judge James against this Debtor. The Debtor has a right to have his cause heard by an impartial judge. Judge James was not an impartial judge.

        11.        Judge James' comments in court to this Debtor, such as "Have you no shame?", with reference to comments made by the chairman of the McCarthy hearings, was uncalled for by a judge who claims he is not prejudiced. Judge James, in open court, evidenced his willful and intentional prejudice against this Debtor. Judge James comments were completely out of place for an impartial judge. But Judge James' court was not impartial, but the court was a sham.

        12.        Judge James' arbitrary and capricious actions denied and deprived this Debtor of Due Process, and his arbitrary and capricious comments about the Debtor in court further evidenced Judge James' prejudice towards this Debtor.

        13.        Judge James' arbitrary and capricious rulings were intended to deny and deprive this Debtor of meaningful access to his court, and they exceeded the bounds of discretion. Hughes v. Rowe, 77-C-4583 (7th Cir.). Judge James intentionally and willfully acted to deny and to deprive this Debtor of his Due Process Rights.

        13.        Judge James acted as an advocate of the creditors. In addition, he advised the creditors of what they must do to unlawfully attempt to perfect their null and void claims, but contrary to Timms, supra, Burris, supra, Darr, supra, Judge James did not advise the non-represented litigant.

        14.        Judge James had predetermined that he would deny and deprive the Debtor of his Due Process Rights. The U.S. Supreme Court, in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213 (1967), stated that the "presence of malice and the intention to deprive a person of his civil rights is wholly incompatible with the judicial function. When a judge acts intentionally and knowingly to deprive a person of his constitutional rights, he exercises no discretion or individual judgment; he acts no longer as a judge, but as a `minister' of his own prejudice." Judge James actions were to intentionally and knowingly deprive this Debtor of his Constitutional Rights. Judge James was not acting as a judge, but was acting as a `minister' of his own personal prejudices.

        15.        The U.S. Supreme Court, in Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697 (1974), stated that a judge must do his very best to weigh the scales of justice equally between contending parties, but due process requires no less. Judge James acted with prejudice against this Debtor.

        16.        Counsel made certain assertions and statements in pleadings that are contrary to the canons of ethics and to the law. Although this non-represented litigant has previously called this court's attention to these facts, see for just one example, the Debtor's "Response to the Creditor's Motion to Convert Debtor's Chapter 11 Case to Case under Chapter 7", Judge James did not report this actions, pursuant to the Federal Code of Judicial Conduct. The Seventh Circuit stated that adherence to the Federal Code of Judicial Conduct by a judge is mandatory. U.S. v. Anderson, 798 F.2d 919 (7th Cir. 1986). While a court may impose sanctions, the court has no authority in disciplinary actions. It is the responsibility of the judge to report the alleged misconduct, and the responsibility of the disciplinary commission to investigate the alleged misconduct. As Judge James has no authority to investigate misconduct, he must refer the charges to the Disciplinary Commission. Judge James further prejudiced this Debtor by not complying with the Federal Code of Judicial Conduct.

        17.        Judge James violated the Debtor's Fifth Amendment Constitutional Rights. The Debtor was not given immunity, as required, before the Debtor must testify. Contrary to the Debtor's Fifth Amendment rights, Judge James evidenced his prejudice by denying the Debtor his legal and constitutional rights. Judge James acted without jurisdiction.

                Further, Judge James continued to deny and to deprive this Debtor of his Fifth Amendment rights in violation of 11 U.S.C. §344 and Public Law 95-989. The U.S. Supreme Court has established that a person may call the Fifth Amendment right against self-incrimination in any court, either civil or criminal. The Supreme Court has ruled that no sanction or penalty shall be imposed upon one because of his exercise of constitutional rights. Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625 (1967); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524 (1886); Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964); Sherar v. Cullen, 481 F.2d 945 (1973). Yet, in spite of the many Supreme Court decisions going back over 100 years, Judge James ordered this Debtor to be punished for exercising his constitutional rights. Even the Bankruptcy Code accepts the Supreme Court's decisions, but which only requires a party to testify if the U.S. Attorney grants the party immunity. Only in such a situation, where the party is granted immunity, is the party required to testify. The Supreme Court did not give Judge James the right to deny and deprive this Debtor of his Fifth Amendment rights. Judge James is not the U.S. Attorney. Again, Judge James acted to prejudice the Debtor, to deny and to deprive the Debtor of his Constitutional Rights, and thereby forfeited his jurisdiction in this matter. As Judge James is not presumably an incompetent judge, his rulings in denying and depriving this Debtor of his legal and constitutional rights can only be presumed to be intentional, capricious, and prejudicial.

        18.        The Debtor incorporates his claims of prejudice made in his "MOTION TO DISQUALIFY JUDGE JAMES FOR HIS PERSONAL PREJUDICE AND BIAS AGAINST THIS DEBTOR PURSUANT TO 28 U.S.C. §§144, 455" as a part of this motion.

        19.        The failure of Judge James to seriously take this motion into account would further evidence Judge James prejudice against this Debtor.

        20.        This Debtor questions the operation of Judge James' court under Admiralty/Military jurisdiction in this matter.

        21.        DETACHED AND REASONABLE OBSERVERS WOULD RULE THAT JUDGE JAMES WAS PREJUDICIAL IN THIS MATTER.

        WHEREFORE, the Debtor prays that this court will:

        A.     reconsider its orders of December 20, 1993 and will vacate all of the orders issued that day.

        B.     will disqualify Judge James from this matter, as no detached and reasonable observer could truthfully claim that Judge James was not prejudiced in his actions in this matter.
 

                                                                                    Respectfully submitted,
 

                                                                                    ________________________
                                                                                    Eugene W. Alpern, in pro per,
                                                                                    sui juris (NOT PRO SE)

                                                                                                               Signed with explicit reservation of all Rights,
                                                                                                               and I waive none of my Rights at any time or for any
                                                                                                               reason, as per U.C.C. §1-207 and 810 ILCS §5/1-207.
                                                                                                                            "Without Prejudice" U.C.C. §1-207.
 

Eugene Alpern
5636 W. Lyons St.
Morton Grove, IL 60053
708-966-9449

1. The concept of determining partiality, as expressed in Clay, has been repeated in In re X-CEL, Inc., 61 B.R.W. 691 (N.D. Ill 1986); S.C.A. Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977); Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir. 1985).

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    Editor note added February 1, 2000