In re: Bankruptcy No. 93-07643
Eugene Walter Alpern Chapter 11
Judge Thomas James
MOTION DEMANDING THAT JUDGE THOMAS JAMES DISQUALIFY HIMSELF
PURSUANT TO 18 U.S.C. §455 AND BANKRUPTCY RULE 5004
FOR THE APPEARANCE OF PARTIALITY
AND VIOLATION OF CODE OF CONDUCT FOR UNITED STATES JUDGES
NOW COMES THE DEBTOR, EUGENE W. ALPERN ("EUGENE"), in pro per, sui juris (NOT PRO SE), and demands that Judge Thomas James disqualify himself for the appearance of partiality and for violation of the Code of Conduct for United States Judges. In support of this motion, EUGENE submits the following and the enclosed affidavit.
SECRET EX-PARTE CLOSED MEETINGS BETWEEN
OPPOSING COUNSEL AND JUDGE JAMES
1. Lawrence Fisher ("FISHER") has filed his "Response to Debtor's Motion to Vacate Contempt Order" [Exhibit A] in this court on January 11, 1996, in which he has stated that he had meetings with Judge James on February 2, 1995, April 4, 1995, and November 15, 1995, plus other unlisted dates. All of these meetings were held without any actual or personal notice to EUGENE.
There is no record in the court file of any notice of hearing, certificate of service, or any order issued by the court, on the dates stated in this specific document, in violation of, inter alia, Bankruptcy Rule 9013 and FRCP Rules 5 and 7. There is no record of any lawful hearing having taken place.
2. FISHER has filed his "Response to Certain Allegations made in Debtor's Motion to Vacate Void Order of November 2, 1995 and Request for Sanctions" [Exhibit B] before Judge Grady on January 24, 1996, in which he has affirmed that he had meetings with Judge James on December 13, 1994, February 2, 1995, April 4, 1995, and November 15, 1995, plus other unlisted dates. All of these meetings were held without any actual or personal notice to EUGENE.
There is no record in the court file of any notice of hearing, certificate of service, or any order issued by the court, on the dates stated in this specific document, in violation of, inter alia, Bankruptcy Rule 9013 and FRCP Rules 5 and 7. There is no record of any lawful hearing having taken place.
VIOLATION OF EUGENE'S DUE PROCESS RIGHTS
3. Secret ex-parte closed meetings violate EUGENE's due process rights to his Constitutionally protected Right to an adequate, complete, effective, fair, full, meaningful, and timely access to the courts under the First Amendment to the Constitution for the United States of America.
4. The secret ex-parte closed meetings between Judge James and FISHER gives the appearance of partiality to EUGENE and to all other disinterested persons.
Judge Thomas James impartiality is being questioned by EUGENE and by non-party court watchers who have attended hearings and/or who have reviewed the documents in this court's file.
"It is important that the litigant not only actually receive justice, but that he believes that he has received justice. A judge, like Caeser's wife, should be above suspicion." Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972).
5. The failure of Judge James to disqualify himself due to his appearance of partiality is a due process violation. "The United States is forbidden by the fundamental law to take either life, liberty, or property without due process of law, and its courts are included in this prohibition." Bass v. Hoagland, 172 F.2d 205, 209 (1949); DelVecchio v. Illinois Dept. of Corrections, 8 F.3d 509, 514 (7th Cir. 1993). The Debtor presumes that Judge James does not intend to violate the Constitution for the United States of America.
It has been held that a judge's self-appraisal that he or she is able to preside impartially over the case is irrelevant. Clay v. Doherty, 608 F.Supp 295 (N.D. Ill. 1985). The Sciuto court, among others, has stated that the right to a tribunal free from bias, prejudice, or appearance of partiality is based on the Due Process Clause, and not on any statute. United States v. Sciuto, 521 F.2d 842 (7th Cir. 1996). Recusal is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process, Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985); it is directed against the appearance of partiality. United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985).
Judge James has acted in violation of Articles III and VI of the Constitution for the United States of America and EUGENE's Due Process, First and Fifth Amendment Constitutional Rights. EUGENE does not believe, nor has he, received justice from Judge James.
VIOLATION OF CODE OF CONDUCT
FOR UNITED STATES JUDGES
6. Ex-parte meetings between Judge James and FISHER without any notice to EUGENE are a violation of Canon 63(A)(4) of the Code of Conduct for United States Judges.
Canon 63(A)(4) prohibits Judge Thomas James from having any ex-parte meetings with counsel, unless in emergency.
7. Rule 8.4 of the Rules of Professional Conduct for the Northern District of Illinois mandates that an attorney not "assist a judge or judicial officer in conduct that the lawyer knows is a violation of the Code of Judicial Conduct", nor to "engage in conduct that is prejudicial to the administration of justice".
Canon 63(B)(3) of the Code of Conduct for United States Judges requires that Judge James initiate appropriate action when an attorney is involved in any action indicating the likelihood of unprofessional conduct by a lawyer.
Canon 63(C)(1) of the Code of Conduct for United States Judges shall disqualify himself in a proceeding in which the judge's impartiality might reasonably be questioned. Judge James' meetings with FISHER on December 13, 1994, February 2, 1995, April 4, 1995, and November 15, 1995, plus other unlisted dates, as admitted by FISHER in his court filings, without any notice to EUGENE is certainly a situation wherein Judge James's impartiality might reasonably be question.
Further, affidavits have been filed in this court that question Judge James's impartiality. It has been held that affidavits are not required; a judge must sua sponte recuse himself if he gives the hint of even an appearance of partiality; the judge's duty is self-executing. Balistrieri, supra; Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989).
VIOLATION OF RULES OF PROFESSIONAL CONDUCT
FOR THE NORTHERN DISTRICT OF ILLINOIS
8. FISHER has engaged in actions in violation of Rule 8.3(b) of the Rules of Professional Conduct for the Northern District of Illinois in not reporting Judge James for engaging in ex-parte communications without any notice to EUGENE.
9. FISHER has engaged in actions in violation of Rule 8.3(a) of the Rules of Professional Conduct for the Northern District of Illinois in not reporting attorney Linda A. Green for her engaging in actions in violation of Rule 8.4.
10. Attorney Linda A. Green has engaged in actions in violation of Rule 8.3(a) of the Rules of Professional Conduct for the Northern District of Illinois in not reporting attorney FISHER for his violation of Rule 8.4.
11. The law firm of Gardner, Carton & Douglas, and each and every attorney therein, has a duty to monitor, and to report, the unethical conduct of all attorneys in said firm. The failure of the law firm of Gardner, Carton & Douglas to report the unethical conduct of FISHER and of Linda A. Green is a violation of the Rules of Professional Conduct.
The law firm of Gardner, Carton & Douglas, and each and every attorney therein, has engaged in actions in violation of Rule 8.3(b) by their not reporting Judge James for committing a violation of the Code of Conduct for United States Judges.
THEREFORE, EUGENE prays that this Court
A. will comply fully and completely with Rule 63(B)(3) of the Code of Conduct for United States Judges, by reporting attorneys Lawrence Fisher, Linda A. Green, Regina Scannichio, Allen S. Gabe, and Robert K. Blain for their actions engaging in unethical conduct upon this Court,
B. sanction the above attorneys for interfering with the proper administration of justice in this court, and
C. will comply fully and completely with Rule 63(C)(1) of the Canons of Conduct for United States Judges and disqualify himself for his appearance of partiality, inter alia, in holding ex-parte meetings without any notice to EUGENE, in violation of Bankruptcy Rule 9003.
Respectfully submitted,
____________________
Eugene W. Alpern, in pro per,
sui juris (NOT PRO SE)
Eugene W. Alpern
5636 W. Lyons St.
Morton Grove, IL 60053
708-966-9449
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