See also Affidavit of Shirley Sitrick.

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 issue an order disqualifying Judge James from this matter, pursuant to 28 U.S.C. §§144, 455, and any other applicable statutes and/or rules, due to his personal bias and prejudice against the Debtor.

        1.        The Debtor charges Judge James with personal bias and prejudice against the Debtor for various reasons, including, but not limited to, denying, depriving, and overlooking the Debtor's Due Process Rights; violating the Constitutional Rights of Debtor to have his motions heard and ruled upon, which denies the Debtor of meaningful access to the courts; manipulating the hearings to deprive, and to deny, the Debtor of a meaningful hearing on the merits of his cause; issuing orders, sua sponte, which did not provide the Debtor with any meaningful time to respond to the exhibits of the opposing parties; violating his duty to comply with the Supreme Law of the Land; and violating his duty to apply the Law even if the judge does not agree with the Law.

                This personal prejudice and bias evidenced by Judge James is an extension of the prejudice and bias of the Illinois Federal District Courts and the Seventh Circuit Court of Appeals towards non-represented litigants, as evidenced by caselaw from the time of Haines v. Kerner, 404 U.S. 520, 92 S.Ct. 594 (1972), to the present.

        2.        Judge James violated his Oath to be a Judge, when he did not uphold the U.S. Constitution in this matter. Judge James' actions in denying, depriving, and overlooking the Debtor's legal and constitutional rights were prejudicial against the Debtor. 28 U.S.C. §453. Judge James did not faithfully and impartially discharge and perform all the mandated duties incumbent upon him. Judge James acted without jurisdiction.

        3.        Judge James has intentionally and effectively denied the Debtor of his constitutional right to effectively "petition the Government for a redress of grievances". U.S. Constitution, Amendment I. The Debtor has filed Petitions-Motions with this court, which this court has refused to hear and rule on at a meaningful time. The failure of this judge to promptly hear, in a meaningful manner and at a meaningful time, the Petitions-Motions of the Debtor does not satisfy the constitutional right to a redress of the Debtor's grievances. The failure of this court to hear at a meaningful time and in a meaningful manner the Petitions-Motions of the Debtor, deprives the Debtor of his legal and constitutional rights; it is prejudicial and biased against the Debtor. Some of the Petitions-Motions include, but are not limited to, "Response to the Creditor's Motion to Convert Debtor's Chapter 11 Case to Case Under Chapter 7", "Motion for an Extension of Time within which the Debtor has the Exclusive Right to File his Chapter 11 Plan", and "Motion to Dismiss Creditors' Objections".

        4.        Judge James has effectively denied the Debtor of the Debtor's rights of the equal protection under the law under Article VI of the U.S. Constitution. Judge James has been prejudicial and biased against the Debtor, by Judge James refusal to rule pursuant to the Supreme Law of the Land. Judge James has deprived the Debtor of the equal protection of the law, by not applying the Supreme Law of the Land to the Debtor's position.

        5.            The United States Supreme Court stated:
 

"Chief Justice Marshall had long before observed in Ross v. Himely, 4 Cranch 241, 269, 2 L.ed. 608, 617, that, upon principle, the operation of every judgment must depend on the power of the court to render that judgment. In Williamson v. Berry, 8 How. 495, 540, 12 L.ed. 1170, 1189, it was said to be well settled that the jurisdiction of any court exercising authority over a subject 'may be inquired into in every other court when the proceedings in the former are relied upon and brought before the latter by a party claiming the benefit of such proceedings,' and the rule prevails whether 'the decree or judgment has been given, in a court of admiralty, chancery, ecclesiastical court, or court of common law, or whether the point ruled has arisen under the laws of nations, the practice in chancery, or the municipal laws of states.'" Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907).

By not complying with the law, Judge James has prejudiced this Debtor.

        6.        While this court has limited discretion, it must rule pursuant to law at all times. The Seventh Circuit has stated:
 

`Chief Justice Marshall stated:

"Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law, and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of 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).

        7.        Judge James has manipulated the judicial process to deny, deprive, and to overlook the rights of the Debtor. Judge James has selected only those motions that he wants to hear, mostly those of the creditors. Judge James has intentionally selected only those specific demands of the Debtor's motions that he desires to hear and to grant, while intentionally ignoring, not considering, and not ruling on the other specific demands of the Debtor's motions that he does not desire to grant. Such manipulation of the judicial process is prejudicial and biased against the Debtor. As one example, Judge James issued an order, sua sponte, on November 3, 1993 wherein he ordered both the Debtor and the creditors to file exhibits at the same time (December 15, 1993), knowing full well that the Debtor's only burden was to respond to the creditors' exhibits. Judge James' sua sponte order did not allow the Debtor any time to respond to the creditors' exhibits. Only by the Debtor's own action was the Debtor able to get a partial extension of time to respond to the creditors' exhibits. Still, Judge James did not grant the Debtor sufficient and meaningful time for a non-represented litigant to respond. Judge James again manipulated the judicial process to favor the creditors. Judge James actions are prejudicial and biased against the Debtor.

                Debtor had demanded that he be given sufficient time to properly and meaningfully to respond to the creditors. Such meaningful time was not granted to the Debtor.

        8.        Judge James has the duty to determine the validity of all claims against the Estate, which have been objected to by the Debtor. Judge James has intentionally harmed the Debtor by his refusal to hold any hearings on the jurisdiction of the court which issued the null and void orders/judgments.

                It is the law that the jurisdiction of courts of limited jurisdiction, as is the state divorce court, cannot be presumed. Yet Judge James has prejudicially presumed that the state court had jurisdiction. Judge James has predetermined the question of the jurisdiction of the state court, a court of limited jurisdiction, and has predetermined the validity of the alleged claims against the Estate, without any hearing on the question of the want of jurisdiction of that court, in direct contradiction of the law under Old Wayne, supra.

                The Supreme Law of the Land states that the question of the jurisdiction of a court that issued an order/judgment can be questioned if the order/judgment is brought before this court from another court. Old Wayne, supra. The creditors have brought before this court orders/judgments from a court of limited jurisdiction, but Judge James refuses to hear any question relative to the want of jurisdiction of the first court. Judge James has acted in a prejudicial and biased manner against this Debtor.

        9.        Judge James must not be an advocate for either side; yet he has acted as an advocate for the creditors.

                Judge James must give advice to a non-represented litigant, otherwise he has deprived and denied the non-represented litigant of his legal and constitutional rights. Judge James must inform the non-represented Debtor at every stage of the proceedings of the Debtor's rights, whether Federal, State, or Local, in a timely manner and in a manner that the Debtor can understand. If the court fails to observe this free and natural person's rights in every respect, if the court denies, deprives, or overlooks any legal or Constitutional right of the Debtor, the court invalidates the judicial process. The failure of Judge James to advise the non-represented litigant of all of his rights, as above, further evidences the prejudice and bias of the judge against this Debtor. ⁽¹⁾

        10.        Judge James must comply with the Federal Code of Judicial Conduct. Judge James must comply with, among others, Canon 3; he does not have discretion to pick and choose which Canon or Canons he will, or will not, comply with. Littleton, supra.   By Judge James failure to comply with the mandatory requirement of reporting the misconduct of an attorney, U.S. v. Anderson, 798 F.2d 919 (7th Cir. 1986), Judge James has acted prejudicially and biased against the Debtor.

        11.        The hearing scheduled and manipulated by Judge James for December 20, 1993 will be another "sham" hearing.  If the purported creditors have no valid claims against the Estate, then the purported creditors have no standing to bring a motion to be heard before this court.  The validity of the purported claims against the Estate, including the want of jurisdiction of the court that issued the purported null and void judgments, must be first heard in a meaningful manner.

                If the Debtor cannot get an impartial hearing before Judge James, then the Debtor will be required to have his meaningful hearings before the District Court, the Seventh Circuit Court of Appeals, or even the U.S. Supreme Court. The Debtor does not believe that the U.S. Supreme Court will rule that Judge James authority and rule-making exceeds that of the Supreme Court.

        12.        The Debtor states that it is unquestionable that a reasonable person would consider that Judge James' actions were prejudicial and biased against the Debtor.

        13.        Though this court has set extensions of time and set dates for hearings, this court has not ruled in any substantive matters, and Debtor is entitled to disqualification of judge, pursuant to 28 U.S.C. §144.

        14.        Should this court decide not to grant the requested disqualification as a matter of right under 28 U.S.C. §144, Debtor believes that Judge James has exhibited sufficient prejudice against the Debtor that disqualification of Judge James, pursuant to 28 U.S.C. §455, is appropriate.

        15.        As usual, the court has not granted the Debtor a meaningful amount of time for this non-represented Debtor to fully write and file this motion. Should the court claim that more specific references must be furnished, then the Debtor demands that the court suspend all proceedings while it grants the non-represented Debtor sufficient and meaningful time to comply with the court's specific advice.

                WHEREFORE, this Debtor demands that an order be issued that Judge James be disqualified for, inter alia, his failure to perform his Constitutional duties in this cause, and for his prejudicial and biased actions against this Debtor.

                                                                                    Respectfully submitted,
 
 

I declare, that to the best of my information and belief, that Judge James is prejudiced against me, and that this belief is asserted in good faith.

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