From elrond1@home.com Thu Jul 05 00:11:54 2001 From: elrond1@home.com (Gregg) Newsgroups: alt.religion.scientology Subject: Motion to take bankrupty to Judge Whyte Date: Thu, 05 Jul 2001 04:11:54 GMT Organization: Temple of At'L'An Message-ID: <3b43e208.295591098@news2.lightlink.com> X-Newsreader: Forte Agent 1.5/32.451 MIME-Version: 1.0 Content-Type: text/plain; charset=ISO-8859-1 Content-Transfer-Encoding: 8bit NNTP-Posting-Host: 24.141.40.229 X-Original-NNTP-Posting-Host: 24.141.40.229 X-Trace: 5 Jul 2001 00:13:58 -0400, 24.141.40.229 X-Original-Trace: 5 Jul 2001 00:13:58 -0400, 24.141.40.229 Lines: 1616 Path: news2.lightlink.com Xref: news2.lightlink.com alt.religion.scientology:1336885 Elaine M. Seid. SBN 72588 MCPHARLIN, SPRINKLES & THOMAS LLP 2 Ten Almaden Blvd., Ste. 1460 San Jose, CA 95113 Telephone: (408) 293-1900 Thomas R. Hogan, SEN 042048 Leslie Holmes. SBN 192608 LAW OFFICES OF THOMAS R. HOGAN Ten Almaden Blvd., Ste. 535 San Jose, CA 95113 Telephone: (408) 292-7600 Samuel D. Rosen, ESQ. PAUL, HASTINGS. JANOFSKY & WALKER LLP 399 Park Avenue, 31st Floor New York. N.Y. 10022-4697 Telephone: (212) 318-6000 Helena K. Kobrin. SBN 152546 MOXON & KOBRIN 3055 Wilshire Blvd.. Ste. 900 Los Angeles, CA 90010 Telephone: (213) 487-4468 Attorneys for Creditor RELIGIOUS TECHNOLOGY CENTER UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION In re H.KEITHHENSON, ) U.S.D.C.No._____________ ) CASE NO.: 98-51326ASW-13 Debtor. ) (Chapter 13) ) ) Date: ) Time: ) Ctrm: ______________________________________) CREDITOR, RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR, ALTERNATIVELY, FOR ISSUANCE OF A WRIT OF MANDAMUS TO THE HON. ARTHUR S. WEISSBRODT, BANKRUPTCY JUDGE CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of page] TABLE OF CONTENTS MEMORANDUM OF POINT AND AUTHORITIES...1 Preliminary Statement ........................1 RTC's Instant Motion ........................2 1. RTC's Request for Leave to Appeal...3 2. RTC's Alternative Request for Issuance of a Writ of Mandamus...5 The Merits of the Disqualification Issue .......................5 1. The Applicable Law ...........................5 2. Judge Weissbrodt's Conduct ....................6 A. Intruding into Settlement and Prejudging the Case...9 B. Collaterally Attacking the Jury Verdict ........12 C. Demeaning RTC's Right Not to Publish ........12 D. Demeaning the Scientology Religion .......14 E. Chastising RTC for Pursuing its Claim .......15 F. The Number of RTC's Attorneys .......18 G. Unequal Treatment Based on the Number of Attorneys...20 H. RTC is tne "Bad Guy" ............23 I. Favoring Henson Because of His Age...26 Conclusion...28 [end p. i] TABLE OF AUTHORITIES Cases Page *Alexander v. Primenica Holdines. Inc..* 10 F.3rd 155 (3rd Cir. 1993)... 3 *Bauman v. U.S. Dist. Ct.,* 557 F.2d 650 (9th Cir. 1977)... 3 *Commonwealth Coatings Corp. v. Continental Casualty, Co.,* 393 U.S. 145 (1968) ........................... 5 *Denburg v. Parker, Chapm, Flattau & Kimpl,* 82 N.Y.2d 375,624 N.E.2d 995 (1993) ............ 20 *Harper & Row, Publishers, Inc. v. Nation Enterprises,* 471 U.S. 539 (1985) .......... 13 *In re Cement Antitrust Litigation,* 673 F.2d 1020 (9th Cir. 1982) . . 3 *In re Cement Antitrust Litigation,* 688 F.2d 1297 (9th Cir. 1982) ... 4 *In re Christian Porter Aluminum Co.,* 316 F. Supp. 1340 (N.D.Cal. 1970)... 1 *In re Clark Entertainment Group, Inc.,* 183 B.R. 73,78-80 (Bankr. D.N.J. 1995... 13 *Jacob v. Norris, McLaughlin & Marcus,* 128 N.J. 10, 607 A.2d 142 (1992) . . .. 20 *Liteky v. United States,* 510 U.S. 540 (1994) ............... 5, 21 *Matter of Schake,* 154 B.R. 270,275 (Bankr. D. Neb. 1993... 17 *NLRB v. Catholic Bishop of Chicago,* 440 U.S. 490, 99 S.Ct.l313,59 L.Ed.2d 533 (1979)... 14 *Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co.,* 324 U.S. 806,65 S.Ct. 993, 89 L.Ed. 1381 (1945) ..................24 *Republic of Panama v. American Tobacco Company, Inc.,* 217 F.3rd 343 (5th Cir. 2000) ................... 3,4 *Salinger v. Random House, Inc.,* 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987... 13 *Serbian Eastern Orthodox Diocese v. Milivojevich,* 426 U.S. 696 (1976)... 14 [end of p. ii] *United Sewerage Agency v. Jelco Inc.,* 646 F.2d 1339 (9th Cir. 1981) ...... 19 *United States v. Con forte.* 624 F.2d 869 (9th Cir.); *cert denied*, 449 U.S. 1012 (1980)... 5 *United States v. Pfizer, Inc.,* 560 F.2d 319 (8th Cir.l977)... 10, 11 *Woods v. Covington County Bank.,* 537 F.2d 804 (5th Cir. 1976) . . . 20 Statutes 11 U.S.C.§523(a)(6)... 18 28 U.S.C. §158... 1,2 28 U.S.C. §455... 3,5 28 U.S.C. §455(a)... 5, 22 28 U.S.C. §1651... 1, 2 Bankr. Rule 8001... 2 Bankr. Rule 8003... 3 Bankr. Rule 8003(b)... 3 Cal. Penal Code § 422.6... 1 Fed.R.Civ.P., Rule 56 ... 11 United States Constitution, Art. 1, §8, Cl. 8... 13 Other Authorities ABA Code of Judicial Conduct... 5, 6, 9. 12 ABA Code of Judicial Conduct, Canon 2... 9, 12, 13 ABA Code of Judicial Conduct, Canon 3... 13, 15 ABA Code of Judicial Conduct, Canon 3(B)(2)... 13 ABA Code of Judicial Conduct, Canon 3(B)(5)... 14, 22, 26 ABA Code of Judicial Conduct, Canon 3(E)... 22 ABA Code of Judicial Conduct, Canon 9... 20 *An Analysis of the Role of the Bankruptcy Judge and the Use of Judicial Time,* 23 Seton Hall, L. Rev. 1329 (1993) . . .. 10 Wright & Miller, 16 *Fed. Prac. and Proc. Juris 2d*, § 3935.5 (1996) ........................... 3 [end of p. iii] 23 24 25 TO DEBTOR H. KEITH HENSON, THE CHAPTER 13 TRUSTEE, THE U.S. TRUSTEE AND THE HON. ARTHUR S. WEISSBRODT: PLEASE TAKE NOTICE that on ______________, at ______________, in the Courtroom of__________________, creditor Religious Technology Center ("RTC") will, and it hereby does, move for leave to appeal, pursuant to 28 U.S.C. §158, from the June 1, 2001 decision of the Honorable Arthur S. Weissbrodt, United States Bankruptcy Judge, denying RTC's motion to disqualify him.[1] RTC alternatively moves, pursuant to 28 U.S.C. §1651, for issuance of a writ of mandamus Judge Weissbrodt, directing that he take no further actions in the bankruptcy case pending before him, *In re H. Keith Henson, Debtor*, Case No. 98-51326 ASW-13. The grounds for this motion are fully set forth below, and in the Declaration of Helena KKobrin and the exhibits hereto, and the record of proceedings before Judge Weissbrodt. MEMORANDUM OF POINT AND AUTHORITIES Preliminary Statement On April 5,2001, Creditor, Religious Technology Center ("RTC"), the only real party in interest in Henson's pending bankruptcy proceeding, filed a motion to disqualify Judge Weissbrodt, the assigned judge in the bankruptcy case. However, before that Motion was decided, Henson: 1. was convicted in Riverside County Criminal Court on April 26,2001 of committing hate crimes in violation of Cal. Penal Code §422.6; and 2. fled the United States and did not appear before the Riverside Court for sentencing, as he was required to do on May 16, 2001. (Ex. B.) As of that date, Henson was and continues to be a fugitive, physically in Canada and opposing deportation proceedings.[2] Upon these events, RTC immediately sought to dismiss Henson's bankruptcy petition under ----------- [1]All exhibits referenced are attached to the Declaration of Helena K. Kobrin. [2] On May 16, the Riverside Court revoked Henson's personal recognizance bail and issued a "no bail" arrest warrant. (Ex. B.) Canadian authorities have since arrested Henson for violating the Canadian Immigration Act. (Ex. C.) Henson has, however, announced via the internet that he likely seek “political asylum” in Canada on the grounds that the State of California has violated his human rights. (Ex. D.) CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS 1 [end of page 1] the so-called "fugitive disentitlement doctrine" which bars fugitives from access to, or the protection of, the courts. However, because RTC's motion to disqualify Judge Weissbrodt was then pending, *sub judice*, thereby making it most inappropriate for RTC to seek dismissal of Henson's bankruptcy petition before Judge Weissbrodt, RTC, on May 25, filed a motion in the District Court to withdraw the reference (citing to the then-pending motion to disqualify Judge Weissbrodt) so that it could then file its motion to dismiss based on Henson's fugitive status with the District Court.[3] The motion to withdraw the reference has been assigned to Judge Whyte. However, before it could be heard, Judge Weissbrodt issued his June I "Memorandum Decision" denying RTC's to disqualify him (the "June 1 Decision" or "Dec.," Ex. A). Because Judge Weissbrodt's June 1 Decision is patently incorrect as a matter of law, because that Decision raises important questions respecting the proper role of a trial judge in settlement, and itself, on its face, strongly supports the need for disqualification, RTC here seeks leave to immediately appeal that Decision to the District Court or, alternatively, seeks issuance of a Writ of Mandamus to Judge Weissbrodt, pursuant to 28 U.S.C. § 1651, directing that he refrain from taking any further actions in the bankruptcy case. Thus, this motion is related to, and is in part an alternative to, RTC's May 25 motion before the District Court to withdraw the reference. Accordingly, RTC respectfully requests that this motion be assigned to Judge Whyte and that it be heard together with RTC's May 25 motion to withdraw the reference. RTC’s Instant Motion 1. RTC's Request for Leave to Appeal 28 U.S.C. §158 provides that "(a) [t]he district courts of the United States shall have jurisdiction to hear appeals . . . with leave of the court, from interlocutory orders and decrees, of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges under section 157 of this title." Bankr. R. 8001 provides that an appeal by leave from an interlocutory bankruptcy order is taken by filing a notice of appeal, "accompanied by a motion for leave to appeal prepared in ----------------- [1] RTC had prepared its proposed motion to dismiss Henson's bankruptcy petition and annexed it to its May 25 motion. It cannot, however, file it as a motion in The District Court until the motion to withdraw the reference is granted. CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 2 accordance with Rule 8003 . . ." Rule 8003(b), in turn provides that a notice of appeal and motion for leave to appeal are to be transmitted by the clerk of the bankruptcy court to the clerk of the District Court (or the BAP). 2. RTC's Alternative Request for Issuance of a Writ of Mandamus A Writ of Mandamus is an appropriate vehicle to obtain immediate appellate review of a lower court's decision granting or denying a motion to disqualify under 28 U.S.C. §455. See, *In re Cement Antitrust Litigation*, 673 F.2d 1020, 1025 (9th Cir. 1982); *Alexander v. Primenica Holdings, Inc.*, 10 F.3rd 155, 162 (3rd Cir. 1993); *Republic of Panama v. American Tobacco Company, Inc.*, 217 F.3rd 343, 345 (5th Cir. 2000). See also *Wright & Miller*, 16 Fed. Prac. and Proc. Juris 2d, §3935.5 (1996) ("An order denying disqualification is a more likely subject for mandamus relief”). The Ninth Circuit has set forth five guidelines pertinent to whether an appellate court should consider a request for an extraordinary writ: 1. no other adequate means to obtain the relief sought; 2. damage or prejudice will occur "in a way not correctable on appeal"; 3. the lower court's "order is clearly erroneous as a matter of law"; 4. the lower court's "order is an oft-repeated error"; and 5. the lower court's order raises new and important problems or questions of law of first impression. *Bauman v. U.S. Dist. Ct.*, 557 F.2d 650,654-55 (9th Cir. 1977). But as the *Bauman* court was quick to add, these factors are cumulative; all five are rarely present in any given case; one seeking the writ need not satisfy all of them, and resolution turns on a balancing of these factors. *Id.* at 655. Here, the balancing is clearly in favor of RTC. Save for the alternative of an appeal by leave, RTC has no other means to obtain an immediate appellate determination of whether Judge Weissbrodt can continue to preside over the bankruptcy case. Second, RTC, as the only real party in interest[4], will be delayed and prejudiced were it obliged ------------------ [4]When Henson filed his baitkraptcy petition, his only creditor was RTC and its claim, in pre-trial stage, for damages for copyright infringement. Thus, this is a one-creditor case pursued solely to CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 3 to continue before Judge Weissbrodt in a bankruptcy case already pending for three years and to wait until a final determination of the case to obtain appellate review. Indeed, because any decision, any ruling, any Order issued by Judge Weissbrodt from the date he should have recused himself through the end of the case would be subject to a challenge and likely a nullity if he is ultimately disqualified by an appellate court[5], it would be extraordinarily prejudicial and damaging to compel RTC to proceed before Judge Weissbrodt with a series of substantial motions (including one under the fugitive disentitlement doctrine) and an extensive trial (to be set by Judge Weissbrodt on RTC’s earlier filed motion to dismiss Henson's petition for fraud) when, at the end of the day, this could all be for naught. Third, as shown below, RTC clearly satisfies the guideline that Judge Weissbrodt’s June 1 Decision is erroneous as a matter of law and, if anything, his Decision itself supplies compelling evidence in favor of disqualification. The fourth factor does not apply here. As to the fifth, several aspects of Judge Weissbreodt’s conduct present new and important problems, not the least of which is the proper role of the assigned trial judge in settlement. Specifically, where, as here, Judge Weissbrodt gratuitously interjected himself into the issue of settlement, *sua sponte*, proposed a specific settlement amount and gratuitously then explained his reasons why each party should accept it, the problem of whether he can or should now try this case is a significant--and a troubling--one. The issue of whether an activist judge who is not only deeply involved in settlement but has chosen to become so on his own initiative can then try the case is a question of major importance to the conduct of all judicial officers in this District. Accordingly, supervisory mandamus authority lies even if Judge Weissbrodt's June 1 Decision is not "clearly erroneous". *In re Cement Antitrust Litigation*, 688 F.2d 1297, 1307 (9th Cir. 1982) ("[I]n such cases we see no legitimate reason for refraining from exercising our supervisory authority where we can determine that an error has been made but cannot, for whatever reason, characterize the error as, 'clearly’ erroneous".). ----------------- avoid Henson's obligations to his one creditor. [5] *Republic of Panama, supra*, 217 F.3rd at 347. CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 4 The Merits of the Disqualification Issue 1. The Applicable Law The law governing disqualification is well-settled. Under 28 U.S.C. §455(a), a judge must recuse himself if "his impartiality might reasonably be questioned". The test is an objective one, determined by what a reasonable, objective person--not the judge himself or the litigants--having all of the relevant facts would think about the judge's impartiality. *Liteky v. United States*, 510 U.S. 540, 548 (1994); *United States v. Conforte*, 624 F.2d 869, 881 (9th Cir.); *cert denied*, 449 U.S. 1012 (1980). The §455 standard is also reflected in the ABA Code of Judicial Conduct (the "Code" §455(a) and the Code embody the principle articulated by the Supreme Court long ago that "any tribunal permitted by law to try cases and controversies not only must be unbiased but must also avoid even the appearance of bias." *Commonwealth Coatings Corp. v. Continental Casualty, Co.*, 393 U.S. 145, 150 (1968). Applying these principles of law, and even imposing a heightened burden on RTC because the factual bases of its disqualification request are not all extra-judicial, RTC easily satisfies its §455(a) burden as a matter of law because no objective person could conclude that Judge Weissbrodt possessed a scintilla of impartiality. RTC, however, need not go that far. As §455(a) and the case law make clear, RTC need not establish that Judge Weissbrodt is, in fact, biased. Rather, its burden is only to show that an objective person might reasonably ask the question. But this is not merely a §455(a) case; it is more than that. Many of Judge Weissbrodt's comments go beyond mere bias to violations of the Code of Judicial Conduct. Accordingly, RTC respectfully submits that even if there were no evidence of Judge Weissbrodt's lack of impartiality, even if the objective standard of §455(a) were not met, RTC ought not be obliged to have its rights determined by a judicial officer who has not been faithful to the Code. Furthermore, a change in assigned judges would not be at all disruptive or delaying in this case.[6] ------------- [6] To date, according to Judge Weissbrodt (Dec., at 13), he has presided over primarily discovery disputes. Discovery has now closed and the parties are up to--but have not yet begun--the final stage of preparation for trial on RTC motion to dismiss for fraud and on the viability of Henson's proposed Chapter 13 Plan. At this stage, it would be simplicity itself to effectuate a CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 5 Judge Weissbrodt's Conduct In its April 5 motion to Judge Weissbrodt asking him to recuse himself, RTC set forth nine (9) categories of improper conduct evidencing bias, several of which also violated the Code: A. intruding into settlement and prejudging the case; B. collaterally attacking the jury verdict; C. demeaning RTC's fundamental right not to publish its copyrighted works; D. demeaning the Scientology religion; E. chastising RTC for spending money to pursue its claim; F. criticizing the number of attorneys or law firms representing RTC in bankrupt court; G. unequal treatment of the parties based upon improper factors, such as the number of attorneys representing RTC; H. basing rulings on the legally insufficient "RTC is the Bad Guy" argument and prejudging that issue; and I.. blatantly favoring Henson based on his age. Henson's counsel's opposition was skeletal, not even addressing several of these matters and making only the requisite perfunctory effort to defend Judge Weissbrodt's conduct. After hearing oral argument from counsel on May 3,2001 during which Judge Weissbrodt, quite uncharacteristically, said nothing, asked no questions, and made no comments. Judge Weissbrodt issued his 17-page June 1,2001 Decision purporting to answer and refute RTC's allegations. That Decision is singular in three respects: 1. those of RTC's allegations that were not addressed; 2. the several misstatements of fact and of the record appearing in that Decision; and 3. the baseless but serious accusation of misconduct leveled against RTC's counsel of filing the disqualification motion for an ulterior purpose. For the District Court's ease of understanding, RTC here sets forth its allegations respecting ----------------- seamless substitution of a different judge without delay. Indeed, since the first matter to be considered is whether Henson, as a fugitive, can even maintain his bankruptcy case, and since no Judge has yet addressed that matter, there is absolutely no possibility of disruption or delay were a new judge assigned now. CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 6 each of the foregoing nine (9) categories of conduct together with its comments on Judge Weissbrodt's June I explanations. Those explanations, or in several cases, the conspicuous iabsence of them in the June 1 Decision, demonstrate the Bankruptcy Judge's revisionist view of the record, his attempt to put an inoffensive gloss on the court's own recorded words, and most offensively, the actual bias inherent in his insidious insinuation that RTC's disqualification motion was brought for ulterior purposes. By this conduct. Judge Weissbrodt has not only failed to acquit himself well, but has demonstrated by his own words why RTC was and is justified in seeking his disqualification. By way of introduction to the June 1 Decision, RTC notes: 1. Judge Weissbrodt characterizes RTC as "a *creditor*" (emphasis added) (Dec., at 1), despite knowing that there are no other real creditors (excluding the non-creditors Henson claimed), that no other creditor has ever appeared before him in the three years the bankruptcy case has been pending and that this is, in all respects, a one-creditor case and thus, a blatant misuse of the Bankruptcy Act; 2. Judge Weissbrodt takes a cheap shot at RTC, offering that it has never amended its claim to show amounts over $75,000 (Dec., at I, fn. 1). As the record shows, RTC's *original* filed on September 9, 1998, set forth its claim as $1,060,636.86, and, in addition, Judge Weissbrodt had actual knowledge of precisely what amounts had been awarded by Judge Whyte and that on remand from the Ninth Circuit, Judge Whyte was considering them further. (RTC v. Henson Whyte Order dated June 28, 2000); 3. in describing RTC's allegations in support of disqualification. Judge Weissbrodt rephrased them (Dec., at 2), attempting to recast them in a neutral fashion that belies his actual conduct. Thus, Judge Weissbrodt did not merely "comment on the disparity [of] resources available to each party," but repeatedly criticized RTC for spending too much on its case. (Ex. E, at 27-29; Ex. F, at 42; Dec., at 5,6.) Judge Weissbrodt did not merely "comment" on "Debtor's age," but expressed sympathy--and favoritism - for Henson because he is "an older man." (Ex. G, at 39.) And Judge Weissbrodt did not merely "comment" on "the fact that Creditor is a religious organization," but delivered a soliloquy of his personal views of how a real church, a true religion, CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 7 should act, a speech in which Judge Weissbrodt referred to RTC as "an organization that represents itself as a church"[7] (Ex. G, at 39); and 4. Judge Weissbrodt persists to this day in mischaracterizing the March 13 hearing as merely a "status conference" in his June 1 Decision (Dec., at 4, 14) so as to justify his criticism that RTC had four attorneys attending this mere "status conference" (March 13 transcript, Ex. G, at 40), despite that Judge Weissbrodt, by his November 29, 2000 Order, directed the Joint Trial-Setting Statement be filed by March 6, set March 13 as the final trial-setting conference in the case, and despite that RTC's April 5 motion (Ex. H, at 17) clearly made this very point that Judge Weissbrodt’s criticism was unfair because March 13 was *not* a mere status conference. Singular, however, in its offensiveness is Judge Weissbrodt's accusation (Dec., at l6) that the timing of the motion to disqualify indicates RTC's counsel sought disqualification only because Judge Weissbrodt stated at the "March 13 *status conference*" that the trial was going to be a limited, timed one and that the real, ulterior purpose of the disqualification motion was to "forum-shop” a judge who would allow a longer trial.[8] But what Judge Weissbrodt has forgotten in leveling his offensive accusation is that it was *not* March 13 when he first announced that the trial would be limited and timed. Judge Weissbrodt said that at the September 13, 2000 and November 20, 2000 hearings (Ex. F, at 81-82; Ex. E, at 16-17, 19, 26) and no motion to disqualify him was made then. Moreover, Judge Weissbrodt has apparently also forgotten that it was *immediately* upon the completion of his comments at the March 13 hearing that RTC's counsel immediately rose to put on the record, without consulting his client, without taking time to posture, his grave concerns over the seriousness of Judge Weissbrodt's improper comments and suggested right then and there that Judge Weissbrodt consider recusal. (Ex. G, at 42-43, 51-52.) Thus, rather than "the timing of [RTC’s] ------------------------ [7] None of RTC's counsel would have the poor manners or lack of respect to refer to Judge Weissbrodt as "purporting to, or representing himself, as a judge." And yet. Judge Weissbrodt apparently perceives nothing wrong in his like comments respecting a religion not his own. [8] It is difficult to understand what Judge Weissbrodt meant by a "longer trial" given that even at the March 13 hearing, he gave no indication at all asto-what time limits he would impose on the trial. In other words, "longer than what???" CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 8 motion" suggesting that RTC sought recusal for an improper, ulterior purpose, as Judge Weissbrodt now accuses, any objective reader of the record would conclude that it is Judge Weissbrodt who is completely out of line in attacking RTC's counsel's motives, and that it is Judge Weissbrodt who injudiciously resorted to a vitriolic attack upon RTC's counsel for his own ulterior purposes of attempting to deflect attention from his misconduct.[9] Another compelling aspect of the June 1 Decision is its thunderous silence respecting sseveral of RTC's allegations, particularly its allegations of Judge Weissbrodt's numerous violations of the Code. Remarkably, nowhere in the 17 pages of the June 1 Decision is the Code of Judicial even mentioned. Instead, Judge Weissbrodt appears to have dismissed these allegations on the basis that "impropriety (whatever that may be) is not the test for recusal." (Dec., at 15.) Thus, by Judge Weissbrodt's lights, his breaches of the Code are of no moment. RTC disagrees. A. Intruding into Settlement and Prejudging the Case This judicial district is assiduous in avoiding any possible appearance of bias when it comes to settlement. Judges assigned to a case in this district will not even become involved in settlement issues. That is exactly what happened in the underlying copyright case - Judge Whyte sent Henson and RTC to a separate settlement judge to explore settlement. Judge Weissbrodt, however, openly dishonored the district's strict practice of not getting involved in settlement when, in the March 13 final trial-setting conference, he gratuitously raised settlement, and worse, went so far as to put a dollar amount of $10,000 on the table, proclaiming it as the amount he believes RTC's claims are worth. (Ex. G, at 37-41.) This conduct violates Canon 2 of the Code of Judicial Conduct and creates an appearance of impropriety.[10] As the Eighth Circuit Court of Appeals has held, "*the judge should avoid recommending an ------------- [9] RTC's principal counsel, Mr. Rosen, was so personally offended by Judge Weissbrodt’s comments that he separately wrote to him. A copy of that letter is annexed hereto as Exhibit J. [10] Canon 2 requires that "[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” As the commentary to Canon 2 states, "[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 9 actual settlement figure before or during trial*," because grave questions will be raised regarding the judge's ability to try the case fairly, and litigants may justifiably feel that their right to a fair trial has been eroded. These concerns are particularly acute in the case of a bench trial, where, as here, the judge acts as the factfinder as well. *United States v. Pfizer, Inc.* 560 F.2d 319, 322-23 (8th Cir.1977) (ordering bench trial was abuse of discretion where court had "participated in settlement negotiations to an extraordinary degree ... [and had] express[ed] strong opinions on the merits of the case ...,” because '"(i)t is important that a litigant not only actually receive justice, but that he believe received justice'") (citation omitted). The Honorable Stephen Stripp, U.S. Bankruptcy Jude for the District of New Jersey, in his article *An Analysis of the Role of the Bankruptcy Judge and the Use of Judicial Time*, 23 Seton Hall L. Rev. 1329, 1393 n.l47 (1993) has also stated that concerns regarding a bankruptcy judge's impartiality resulting from his involvement in settlement discussions are "especially justified in cases in which the judge is the trier of fact." It is inconceivable that Judge Weissbrodt could impartially conduct a bench trial of this case now, when he has already prejudged RTC's claims as worth only $10,000, in addition to his other actions and statements that strongly suggest that he has prejudged this case. If Judge Weissbrodt believes a fair settlement would be a $10,000 payment on an uncontested claim of a million dollars, it is a near certainty that his ultimate finding after trial in this case will somehow reflect those views. In the face of his undeniable comments of record. Judge Weissbrodt offers *only* that have a duty to promote settlement, that this is all that he did, and that there is nothing wrong with what he did. (Dec., at 10.) Had Judge Weissbrodt's comments been made by a settlement judge, they might not be as offensive, but made by the trial judge, they are intolerable. Further, had it not been for Judge Weissbrodt's July 20, 1998 ruling favoring Henson by reinstating the bankruptcy[11] and his later ruling favoring Henson on RTC's August 16, 2000 ------------------- [11]Henson originally filed his bankruptcy petition on February 23, 1998 for the stated intention of derailing the copyright infringement trial then imminent. When that gambit did not work, and the court lifted the stay to allow the trial to go forward, Henson, on March 24, 1998 filed a notice withdrawing his bankruptcy petition. Months later, *after* the jury verdict, Henson moved to reinstate his petition despite the statutory six months disqualification period and JudgeWeissbrodt not only granted it, but did so *nunc pro tunc* because Judge Weissbrodt had never signed the Order CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 10 dispositive Motion to Dismiss Case with Prejudice, or. Alternatively, to Convert Case to Chapter 7,[12] there would have been no need to address settlement because there would have been no bankruptcy case pending on March 13, 2001.[13] Moreover, the June 1 Decision is conspicuously silent as to the teachings of the *Pfizer* case and of the authoritative views of Bankruptcy Judge Stripp. Judge Weissbrodt apparently elected to ignore them. Judge Weissbrodt's view of the proper conduct of a trial judge when it comes to settlement issues is remarkable. Twice in his March 13 soliloquy (quoted at 5-7 of the June 1Decision), Judge Weissbrodt told the parties that they should not comment on his settlement proposal, that he did not want to ask the parties about their settlement positions, even going so far as to "instruct" the parties to make no such statements to him, all because "I don't want to do anything that's going to inhibit my ability to try the case" (Dec., at 6-7), and certainly not "on the record" (Dec., at 5.)[14] Yet Judge Weissbrodt believes that it is perfectly proper and does not affect his ability to try the case for him to: -------------- dismissing Henson's February petition. Had Judge Weissbrodt timely signed that Order when Henson sought it on March 24, 1998 Henson would not have had a basis to reinstate his withdrawn petition. [12] RTC's motion to dismiss was fUlly supported with evidence, primarily the unimpeachable evidence of Henson's own earlier statements and testimony. Henson submitted virtually nothing by way of evidentiary opposition. RTC was entitled to have its motion granted as a matter of law for Henson's utter and complete failure to show any triable issue of fact. Yet, on September 13, 200 Judge Weissbrodt denied the motion saying that while RTC's allegations were "serious" (Ex.F, at 64), he was going to give Henson a trial on them (despite his failure to offer any evidence in opposition on the motion, as required by Rule 56, Fed.R.Civ.P.). [13] In view of these two rulings on dispositive motions and his March 13 ruling that he would allow Henson, at trial, to put in evidence of RTC's alleged misconduct, all rulings in Henson's favor, it is remarkable that Judge Weissbrodt now says "The rulings made so far have primarily concerned discovery. . ." (Dec., at 13). [14] In another case before Judge Weissbrodt on his May 3 calendar, when RTC's attorneys appeared to argue the recusal motion, the court commented to the counsel present in that case that he doesn't "want to ask what your settlement posture is because [he] do[es]n't want to be in a position where [he} can't try the case. So I’m a little concemed with your putting money on the table....” (Ex. K, at 21.) CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 11 gratuitously initiate settlement; set forth his proposed settlement terms; and speak at length as to what he believes each party's interests are and why each should settle. That these comments do not affect Judge Weissbrodt's "ability to try the case," but a response to him of, *e.g.*, "no deal" from RTC would do so, is inexplicable. B. Collaterally Attacking the Jury Verdict Judge Weissbrodt has taken it upon himself to re-try the copyright infringement case, acting asjudge and jury, and determining that RTC's interest in its unpublished works cannot really be so important, so that although Henson has made some "mistakes," he should not be punished as severely as the jury thought. (Dec., at 5-6.) The viewpoint expressed by Judge Weissbrodt flies in the face of what happened in the copyright case, of which Judge Whyte is well familiar. Judge Weissbrodt's second-guessing of the jury's verdict and his tolerance for Henson to continue to abuse the bankruptcy system to avoid paying RTC merely because Judge Weissbrodt personally disagrees with that verdict violates the requirement in Canon 2 that "[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Judge Weissbrodt's proposal of a settlement figure of $10,000, particularly when evidence has been presented to the court that Henson had sufficicient assets to pay the judgment, is comparable to issuing a judgment notwithstanding the verdict rendendered by the jury, even though Judge Whyte, who tried the copyright case, stated in awarding attorney fees that "the evidence presented and attitude exhibited by Henson and his counsel during trial left the jury with little choice but to find that Henson's infringement was willful." (Ex. L, at 2.) The June 1 Decision is completely silent on this subject. Judge Weissbrodt has made no effort to explain or defend his comments which question, if not undermine, the verdict of the jury and violate the spirit, if not the letter, of the Code. C. Demeaning RTC’s Right Not to Publish At the March 13 conference. Judge Weissbrodt told RTC it should seriously consider accepting a $10,000 payment in lieu of its claim of a million dollars in damages and attorneys fees because it is in the "unusual posture"of attempting to collect on a judgment for unlawful copying and I CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OP MANDAMUS [end of p.] 12 publication of its unpublished works. Rather than respecting the fact that one of the most important rights held by any copyright owner is its right *not* to publish, the court scoffed at RTC's right not to publish. (Dec., at 5.)[15] It is well-established that one of the most important rights held by a copyright owner is the right not to publish. *Harper & Row, Publishers, Inc. v. Nation Enterprises*, 471 U.S. 539, 554, 564, 105 S.Ct. 2218,2227, 2232, 85 L.Ed. 2d 588 (1985) "right of first publication encompasses . . . the choice whether to publish at all," and great weight must be given to a copyright owner's decision not to publish the work; *Salinger v. Random House, Inc.*, 811 F.2d 90, 97, 99 (2d Cir.), *cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987) (enjoining biographer's unauthorized use of J. D. Salinger's unpublished letters, and placing special emphasis on the fact that the letters were unpublished in finding infringement); *In re Clark Entertainment Group, Inc.*, 183 B.R. 73, 78-80 (Bankr. D.N.J. 1995) (granting permanent injunction prohibiting copying/exploitation of unpublished rehearsal performances of well-known musical groups). Here, the jury, understanding that RTC had a strong interest in preserving its right to not publish, properly awarded RTC a large damage award for infringement of a single work. The Ninth Circuit affirmed and the United States Supreme Court denied *certiorari*. It is shockingly improper for Judge Weissbrodt, in the context of a bankruptcy proceeding (filed solely to avoid the judgment), to question and belittle the value of RTC's copyrighted works and the propriety of RTC choosing to collect on its judgment. That lack of care for or understanding of RTC's important copyright interests flies in the face of the Canons' requirements that "[a] judge shall respect and comply with the law" (Canon 2) and that he "shall be faithful to the law and maintain professional competence in it." (Canon 3). --------- [15] This court's sympathetic characterization ofHenson's conduct is itself audacious. The Founding Fathers wrote the Copyright Clause (Art. 1, §8, Cl. 8) into the Constitution, Congress passed the Copyright Act, and Henson violated it for amusement, for entertainment and to enhance his stature. A judge of this District found him liable for infringement, and a jury of his peers held against Henson. Canon 3(B)(2) requires that "[a] judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism." By what possible distortion of logic, or outright disrespect for the law in violation of Canon 3, could Judge Weissbrodt even initiate sympathy for "poor old" Henson? CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 13 In the face of his March 13, on the record, comments questioning why a religion would maintain the secrecy of its scriptures and questioning the economic value of RTC's infringed copyright in its unpublished work, the June 1 Decision offers nothing by way ofexplanation, defense, or apology. Judge Weissbrodt apparently continues to adhere to his views that as a bankruptcy judge, he is empowered to question why a religion should keep its scriptures unpublished or, worse, questioning the economic value of religious scriptures. D. Demeaning the Scientology Religion Even more offensive than Judge Weissbrodt's questioning of RTC's rights as a copyright owner is his questioning ofRTC's religious status. Neither the Bankruptcy Code nor those who appointed Judge Weissbrodt gave him a license to determine what is "usual" in terms of how people understand religion or the power to determine what are and are not "appropriate actions for a church.” Indeed, as Judge Weissbrodt should surely know (Canon 3(B)(5))[16], it is an outrageous offense of the First Amendment's freedom of religion guarantee for a court to even raise these questions. See *NLRB v. Catholic Bishop of Chicago*, 440 U.S. 490, 99 S.Ct.l313, 59 L.Ed.2d 533 (1979); *Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696,96 S.Ct. 2372,49 L.Ed.2d 151 (1976). The evident fact that Judge Weissbrodt thought he had the right to raise these questions is perhaps the single most offensive part of his conduct at bar. Neither the First Amendment nor RTC can tolerate a judge expressing such an attitude as the jurist to determine the issues in suit. Judge Weissbrodt's sarcastic characterization of RTC as "an organization that represents itself as a church," his questioning of the "economic" value of its unpublished religious scriptures, his suggestion that RTC, in choosing to pursue its legal rights and not to simply allow Henson to take advantage of it, and his openly challenging whether RTC's actions are appropriate for a "religion or appropriate actions for a church," are all shockingly improper. (Ex. G, at 39.) The Court has also referred to RTC as "the Church of Scientology" (Ex. F, at 42), when it is doubtful that if St. Joseph’s ----------- [16] Canon 3(B)(5) requires that: "[a] judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, *religion*,national origin, disability, age, sexual orientation or socioeconomic status. . ." (Emphasis added.) CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 14 Roman Catholic Church were involved in a lawsuit, the court would refer to it as "the Catholic Church," as if the entire religion, rather than a particular religious corporation, were a party. Weissbrodt's imposition of his own views regarding the Scientology religion is a blatant breach of Canon 3. Furthermore, Judge Weissbrodt's remarks strongly suggest that they are reflective of opinions concerning what constitutes a religion derived from extra-judicial sources. For example Judge Weissbrodt has also challenged RTC's attorney to identify any lawsuits brought by the Jewish religion, as if disbelieving that a "true" religious organization would be involved in litigation. (Ex. G, at 44-45.) Such a breach of these Canons mandates disqualification, much as a court would be disqualified from continuing in a matter involving a Catholic orProtestant church or a Jewisih synagogue if it made similar remarks about such an organization that was a party before it. Surely if a juror made similar statements in responding to voir dire, the juror would be excused for cause. In fact, Judge Whyte was so sensitive to this issue that he worked with the parties to fashion a juror questionnaire that would ensure the jury was not infected by any such bias. (Ex. M.) The entirety of Judge Weissbrodt's response is that he "did not demean" the religion (Dec., at 9.) That statement aside, RTC is convinced to a moral certainty that any judge of the District Court, any judge of the Ninth Circuit (or the BAP), and any right-minded, objective person would find Judge Weissbrodt's comments demeaning and insulting were they directed to the reader’s religion. E. Chastising RTC for Pursuing its Claim Judge Weissbrodt has repeatedly interrogated RTC's counsel regarding how much money RTC is spending on legal fees to pursue its claim. For example, the following cross-examination of an RTC attorney took place at the November 20, 2000 hearing, in the context of the court brazenly criticizing RTC for vigorously pursuing its claim against "poor old" Henson: THE COURT: "You're talking about a situation with a *relatively elderly person*[17] who may or ---------- [17] To the best of RTC 's knowledge, the proccedings before this Court do not disclose Henson's age, but suffice to say that many of his contemporaries, such as Mr. Rosen, President Bush, CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 15 may not have a little bit of equity in his house and - and you're spending--how much have you spent so far, Ms. Kobrin, approximately? MS. KOBRIN: I have no - Your Honor, I don't deal with RTC's legal bills. I have no idea. THE COURT: Well, you know what your legal bills are. MS. KOBRIN: Well, - THE COURT: And you haven't reviewed any of the other legal bills? MS. KOBRIN: I have occasionally seen them, but I don't know what the bills for this case have been. THE COURT: Okay. Well, I don't think that this case is solely about whether Mr. - obtaining money from Mr. Henson." (Ex. E, at 28 (emphasis supplied).) This inquisition on November 20,2000 was not a spontaneous, isolated incident. Rather, theamount of money RTC has spent in attorneys' fees in this case has long been of curious and irrelevant interest to Judge Weissbrodt. For example, on September 13, 2000, in connection with improperly questioning RTC's motivation for pursuing its claim, the court stated: And when I say you're afraid of him you obviously are exercising, if you will, your right to sue. We have one, two, three, maybe four firms here represented at a motion in a Chapter 13 case. So whether it's fear that's motivating you or something else that's motivating the Church of Scientology, something is motivating them to bring all of these resources in the context of a Chapter 13 plan. You already have an injunction, as I understand it, vis-a-vis infringement. So that you have. (Ex. F, at 42.) Judge Weissbrodt's comments and inquiries regarding the amount of money spent by RTC are grossly improper and completely irrelevant, as is his disrespect for the jury verdict inherent in his statement that RTC already has an injunction, so it should be happy about that and forget about the damages awarded to it. Even if the amount of money spent by RTC on its legal fees was times the amount of its claim, and even if this disparity were somehow proof of an intention on RTC's part to "harass" Henson (as Judge Weissbrodt has overtly suggested), the fact remains that RTC's claim against Henson is valid and undisputed. A creditor's motivation in pursuing a valid ------- and per its judicial profile, this Court, would take umbrage at being called "elderly”. CREDITOR RELIGIOUS TECHNOLOGY CENTER’S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 16 and opined that Creditor's approach seemed disproportionate to what is at stake." And in Judge Weissbrodt's view, his statements "cannot fairly be taken as criticism. . . ." (Dec., at 10.) In truth, they can be taken as nothing else and making it worse, it is not Judge Weissbrodt's prerogative to "note" these things, to question them, or to comment upon them. As a creditor, indeed, the only real creditor, RTC has an absolute right to pursue its admittedly meritorious claim and to spend as much time and money as it wants in doing so without its motives being questioned or commented upon. The bankruptcy court's statutory duty is to decide matters before it, not to offer gratuitous observations or criticisms of a party's lawful conduct. Indeed, Judge Weissbrodt's comments here are all the more offensive because his prior rulings on dispositive matters in favor of Henson were largely responsible for the time and money RTC has and will be obliged to continue to spend. In fact, long ago, at the September 13, 2000 hearing, it was obvious to Judge Weissbrodt that Henson's Plan was not feasible and that the case ought be converted to a Chapter 7. (Ex. F, at 3, 5.) Yet he has allowed this Chapter 13 case continue and, curiously, took the occasion of the March 13 final trial-setting conference to try to bring about a settlement which would be incredibly favorable to Henson.[20] F. The Number of RTC's Attorneys Judge Weissbrodt has repeatedly criticized RTC for the number of attorneys it has on this case, and has repeatedly complained that there are four law firms even at status conferences, despite ------- [20] That Judge Weissbrodt was an advocate for Henson's interests, in trying to bring about a settlement for $10,000 cannot be disputed. Were Henson's bankruptcy converted to Chapter 7, RTC could not only reach the substantial appreciation in the value of Henson's house, but its claim against Henson would be nondischargeable under 11 U.S.C. §523(a)(6) and would survive post-bankruptcy; while there is a question ofdischargeability under Chapter 13, there is little question under Chapter 7 that RTC's claim for ajudgment for willful infringement survives. Moreover, under Judge Weissbrodt's proposal, for a payment of $10,000, Henson gets to keep the $400,000 in equity in his house, gets to keep disputed artwork, gets to keep the cash value of his life insurance policies, gets to keep all of his other assets, and gets to keep, beyond RTC's reach, all of his future earnings which have been as much as $130,000 per year. None of this would be beyond RTC's reach were his petition converted to Chapter 7 (as Judge Weissbrodt himself suggested last September) or better yet, dismissed for Henson's fraud (or now, his fugitive status). Thus, there can be no doubt as to whose interests Judge Weissbrodt was championing with his $10,000 proposal. CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 18 that it is not the court's role to determine the value of the case to the parties or what legal staffing they should assign, and his observations are not accurate besides. For example, at what this court itself had billed as the March 13 trial-setting conference, the court criticized RTC for having fourlawyers at a "status conference." (Dec., at 5-6; see also Ex. E, at 15-16, 26.) Beyond the fact that the court's remarks exceeded its role. Judge Weissbrodt's bias and unprovoked criticism of RTC has caused him to falsely: (1) describe the March 13 court hearing as a mere status conference, when it was a trial-setting conference that lead trial counsel Mr. Rosen--the only attorney from Paul, Hastings, Janofsky & Walker who has ever appeared here - was obliged to attend; (2) assert that RTC was represented by four different law firms at each proceeding over the three years of this case when in fact, the first and only time this occurred was at the March 13 trial-setting conference[21]; and (3) assert that "teams" of lawyers have appeared in this case when, in fact, there has never been more than one lawyer per firm in attendance.[22] These demonstrably false statements reflect Judge Weissbrodt's favoritism towards the Debtor. More importantly, it is completely irrelevant how many attorneys RTC chooses to employ. RTC has a fundamental right to counsel of its choosing, and that the court should even deign to criticize how RTC has chosen to exercise that right itself violates the public purpose underlying Canons of Ethics by interfering with the client's right to counsel of his choice. See *United & Agency v. Jelco Inc.*, 646 F.2d 1339, 1349 (9th Cir. 1981) (affinning denial of motion to disqualify attorney in suit against another client, and stressing the importance of a client's right to choose his ------ [21] There have been only two, or sometimes three, law firms present at most of the conferences and court hearings held in the last three years in this case. The first of only two times that Mr. Rosen appeared was on September 13, 2000 (as one of three lawyers) in order to argue RTC's Motion to Dismiss or Convert. [22] Each of the four attorneys who has been involved in the case has a distinct role in representing RTC. Mr. Rosen was RTC's lead trial attorney for the copyright case, works with RTC in other matters, and was asked to become actively involved as trial counsel here when the case was approaching trial. Ms. Kobrin has worked closely with RTC in copyright and related matters for 10 years and was involved in the copyright case even before it was filed when she sent Henson the cease and desist letter to which he so rudely responded. Mr. Hogan is San Jose local counsel for RTC, and began representation in the bankruptcy case with Ms. Kobrin when Henson first filed his petition. He has participated sporadically since that time. And Ms. Seid is, of course, local bankruptcy counsel. CREDITOR RBLIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 19 own counsel in rejecting a per se ban against dual representation); *Woods v. Covington Co. Bank*, 537 F.2d 804, 812 (5th Cir. 1976) (Canon 9's restrictions on former government attorneys' later private employment must not be applied so strictly as to "defeat important social interests including the client's right to counsel of his choice"); *Denburg v. Parker, Chapin, Flattau & Kimpl*, 82 N.Y.2d 375, 381, 624 N.E.2d 995, 999 (1993) (imposition of financial penalty on lawyer departing from law firm to practice at competing firm may impermissibly force lawyers to give up their clients; thereby interfering with clients' free choice of counsel); *Jacob v. Norris, McLaughlin & Marcus*, 128 N.J.10, 607 A.2d 142 (1992) (same). In short. Judge Weissbrodt's criticism ofRTC's exercise of this right mandates disqualification, particularly where the court is weighing improper factors, such as the number of attorneys, rather than the evidence. Remarkably, even after RTC's April 5 motion pointed out to Judge Weissbrodt that his March 13 statements were wrong, that RTC never had four attorneys at any "status conference," that the March 13 hearing was not a "status conference," the June 1 Decision persists in these false statements. (Dec., at 4, 14.) Notably, Judge Weissbrodt has offered not a word of explanation — or apology - for his November 20 cross-examination of Ms. Kobrin as to the amount RTC has paid its counsel. Even at this date. Judge Weissbrodt simply does not or will not accept that how many lawyers RTC has and how much it pays them is between the client and the lawyers and is not for the court to inquire into or criticize.[23] That information is totally irrelevant to the issues before the bankruptcy court and the court's mere inquiry into them, let alone its fixation and badgering, would leave any objective reader with the belief that Judge Weissbrodt thought they were relevant and important and that he was holding this against RTC. There is simply no other way to interpret Judge Weissbrodt's incessant questioning and comments on what is, as a matter of law, irrelevant. G. Unequal Treatment Based on the Number of Attorneys Judge Weissbrodt's apparent bias has resulted in orders blatantly decided on improper factors, [23] Were RTC seeking ajudicial award of its counsel fees, a court might properly inquire into the number of lawyers it engaged, but that is notthecase here, and Judge Wetssbrodt had no colorably proper reason to raise and persist in this inquiry. CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION TOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 20 such as the number of attorneys representing RTC and the Debtor. Although judicial rulings are rarely grounds for disqualification in and of themselves, the "surrounding comments or accompanying opinion" may present evidence of the court's pervasive bias against a party, and can present grounds for disqualification "if they reveal such a high degree offavoritism or antagonism as to make fairjudgment impossible." Liteky, 510 U.S. at 555. Judge Weissbrodt's rulings in precisely that high degree offavoritism towards Henson and antagonism towards RTC, as the following examples: a) At the November 20, 2000 conference, the court extended the final discovery deadline at Henson's counsel's request, after the case had been pending for two and one half years, solely because of the court's *sua sponte* observation that RTC has several attorneys on its side an attorney is a sole practitioner entitled to more leeway: [W]e have an enormous team of lawyers who are potentially available to represent the interests of the RTC, and a huge disparity in the economic power of the RTC versus Mr. Henson, who's represented by a solo practitioner who's practicing bankruptcy law in San Jose.[24] So I think good cause exists to extend the discovery cutoff.” (Ex. E, at 16.)" The notion that a party is entitled to any court relief (e.g., an extension of time to do something) based upon how many attorneys it has compared to the number its adversary has, is not merely unknown in our jurisprudence, it is bizarre. By this standard, debtors, who are frequently represented by individual practitioners or small firms, have a greater right to "justice" than creditors (e.g., banks, credit card issuers, mortgagees) who are frequently represented by larger law ----- [24] The court's remarks suggest that the court is also more sympathetic to parties whoseattorneys practice only "in San Jose." Such a viewpoint is as improper as a bias based upon the number of attorneys. [25] Significantly, Henson's attorney was late in *making* discovery requests, not in responding to them. The number of RTC's lawyers is thus factually as well as legally irrelevant - this was not a situation in which a single practitioner has been bombarded by thousands of requests from multiple lawyers. Henson's attorney did not even attempt to claim that his unilateral failure to make timely discovery requests of his own was in any way related to being "outnumbered" by RTC's attorneys. Rather, he argued that he was bringing discovery requests late because recent events had raised new factual issues, although the discovery he requested was not related to any recent events. Regardless, the court based its ruling only on the fact that RTC has more attorneys, and expressly refused to limit Henson's attorney to discovery regarding newly discovered facts. (Ex. E, at 13-16.) CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 21 firms. That the court decided issues based on the number of RTC's lawyers is completely improper, has no basis in law, and is a textbook example of a judge improperly dispensing justice based solely on his bias against one party or, at a minimum, based on legally irrelevant and improper considerations. Under such circumstances, he must be disqualified pursuant to the requirement of (§455(a) and Canon 3(E) that a judge disqualify himself if his impartiality in a proceeding might reasonably be questioned.26 (b) Since the November 20 ruling granting Debtor more time to take discovery based on the number of lawyers on each side, Judge Weissbrodt's partiality and reliance on that factor has progressed to the point that Debtor's counsel need not even ask for relief in order to get it. By order dated November 29,2000, Judge Weissbrodt directed that by March 6, the parties submit a joint pre-trial order which was required to include, *inter alia*, (1) "[a] list of all documents and other items to be offered as exhibits at the trial ... with a brief statement following each describing its substance or purpose and the identity of the sponsoring witness"; and (2) "[a] description of deposition testimony, answers to interrogatories or answers to requests for admission which a party intends to use at trial. . ." (Ex. Q.) RTC and its lawyers complied. Debtor did not. Indeed, Debtor's limited contribution to the pre-trial order failed to even identify his trial exhibits, to describe any of them, to identify the sponsoring witnesses, or to give a description or designation of specific discovery to be used. Nevertheless, at the March 13 hearing. Judge Weissbrodt, with no request from Debtor's counsel, gave Debtor yet more time to comply with his November 29 order. (Ex. G, at 3-9.) (c) Another example of a biased ruling occurred at the September 13, 2000 hearing, when Mr. Rosen sought merely to advise Judge Weissbrodt of the anti-terrorist criminal proceedings in Riverside County then pending against Henson. The court refused to hear of it and did not consider that event to be before the court *solely because* Mr. Rosen had *only* an uncertified copy of the criminal court documents. (Ex. F, at 40-41.) Yet Judge Weissbrodt had no problem whatsoever in -------- [26] Deciding motions based on the number of RTC's lawyers not only manifests its bias against RTC as a general matter, but also specifically violates Canon 3(B)(5), which mandates that a judge “shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon. . . socioeconomic status." CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 22 accepting statements offered without certified copies when made by Debtor's counsel about that very criminal proceeding (as appearing in the March 6 pre-trial order) or in itself citing to and relying upon that proceeding at the March 13 hearing respecting a trial date here. (Ex. G, at 9; Ex. R.) Thus, to 4 Judge Weissbrodt's thinking, RTC's counsel must play strictly by the rules, but Debtor's counsel need not. Judge Weissbrodt's "defense" to these allegations underscores not only his lack of judicial 7 sensitivity, but his failure, even to this day, to grasp the error of his conduct. Here, Judge Weissbrodt offers that granting someone more time to do something is an everyday matter well within his discretion, and "cannot in and of itself show bias . . ." (Dec., at 2.) What Judge Weissbrodt still does not understand is that it is not the granting of more time to Henson's counsel which is complained of *per se*. Rather, it is granting him more time because RTC has more lawyers. Were Judge Weissbrodt to have determined Henson's counsel's request on the merits of his plea - or lack thereof- RTC would have had less of a problem. But to do, as Judge Weissbrodt did, to cast his decision squarely on the number of lawyers RTC has is as offensive as if he had granted Henson's counsel more time because he lives in San Jose and two of RTC's counsel do not. Suffice to say that it is unfortunate that Judge Weissbrodt sees nothing wrong with what he has done but his bias is evident. Nor does he perceive any impropriety in first trying, unsuccessfully, on November 20 to pry from Ms. Kobrin the amount of RTC's legal fees, and then granting Henson's counsel more time to seek that very information in discovery. H. RTC is the "Bad Guy Even worse than Judge Weissbrodt's inquiries into RTC's expenditures and motivation is that his bias in this regard is guiding the performance of his duties in this matter. In both his opposition to RTC's August 30 Motion to Dismiss or Convert and in the trial-setting memorandum filed on ------ [27] We note that Henson's counsel had 2-1/2 years to pose whatever discovery he thought he needed and that he offered Judge Weissbiodt nothing by way of explanation as to why he had not done so timely. We note further, that it was directly because of Judge Weissbrodt's cross- examination of~4sS-Kobriff on November 20 as to how much RTC had paid its counsel that Henson’s counsel requested and used his additional time to propound discovery seeking this very information. CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 23 March 6, Henson attacked RTC, arguing that it is the bad guy, that it has done terrible things to him and his family (*e.g.*, picketing his home), and that this is relevant to the issues in this case because this constitutes "unclean hands." Judge Weissbrodt has already signaled that he accepts this defense, ruling on March 13 that he will likely admit at trial Henson's evidence as going to "unclean hands.” (Ex. G, at 25-26.) Not surprisingly, neither Henson nor Judge Weissbrodt cited a single legal authority for this remarkable application of the "unclean hands" doctrine.[28] The principal issue being tried on RTC's Motion to Dismiss is Henson's fraud and misconduct in his filing of *his* bankruptcy petition and *his* misconduct in the proceedings on it. RTC's "hands" are not even involved here; RTC did not direct or participate in Henson's misconduct. Yet, so biased is Judge Weissbrodt against RTC that even before RTC has had a chance to file its *in limine* motions, even before RTC was even given a chance to argue the inapplicability of the “unclean hands" doctrine, on March 13, Judge Weissbrodt gratuitously offered that he would likely allow this evidence at trial. (Ex. G, at 25-26.)[29] Moreover, Henson's "facts" respecting his "defense" and this court's embracing of them are astounding and transcend mere errors of law. Henson is the one who started picketing, not RTC or any Scientologists. He has picketed facilities where Scientology staff members, whose entire life is devoted to their religion, live, work, practice their religion, and train to administer religious rites. It is ------- [28] The "unclean hands" doctrine is not a general "you're bad" principle. Rather, it is only applicable if a party has acted unconscionably or in bad faith *with respect to the subject matter of the litigation. "[E]quity does not demand that its suitors shall have led blameless lives. . . it does not require that they shall have acted fairly and without fraud or deceit *as to the controversy in issue*." *Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co.*, 324 U.S. 806, 814 (1945) (internal quotes omitted; emphasis added). Nowhere has anyone claimed that RTC had unclean hands in connection with Henson's filing of this bankruptcy proceeding or in the underlying copyright infringement action. Nevertheless, Judge Weissbrodt intends to give Henson a stage to vent his invective against Scientology, something Judge Whyte refused to do, laboring long and hard to keep out Henson's attempts to inject such irrelevancies into the copyright trial. [29] Neither does "unclean hands" apply to the issue of whether Henson's proposed plan is feasible given his own income reduction occasioned by his devoting scores of workdays to picketing Scientology facilities instead of working (which has now turned into a total cessation of income, based on Henson fleeing to Canada and becoming a fugitive and being arrested and jailed by Canadian authorities). CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 24 not hyperbole to say that Henson's conduct is tantamount to picketing a Catholic monastery. Henson has also picketed in front of the offices of one of RTC's counsel, Thomas Hogan, in San Jose, sign advising of Mr. Hogan's name, address and telephone number and referring to him as: “A cocksucking legal whore." In short, Henson elected to eschew employment and income, insisting instead that it is more important to picket in the most offensive manner possible and make threats that are so serious that a jury has now convicted him of a hate crime against Scientologists. Yet it is Henson who complains that Scientologists have picketed in front of his house. When he pickets, it is First Amendment activity. When Scientologists, who notably are not creditor RTC or any of its representatives, do so, it is "unclean hands" per Henson and Judge Weissbrodt. Henson revels in his public attacks upon Scientology, telling the world that the religion is evil and accusing it of actually hurting people. That is First Amendment, that is okay, but when offended Scientologists refer to Henson as a sociopath and a religious bigot, that is unclean hands in Judge Weissbrodt's view! That Judge Weissbrodt would even consider for an instant allowing Henson to try this "defense," that he would be complicit in giving Henson a public forum from which to spew his religious bigotry, is unconscionable. When Henson sought to put Scientology on trial before Judge Whyte, Judge Whyte stopped it in a nanosecond. Judge Weissbrodt would not do otherwise but for his evident lack of impartiality. Judge Weissbrodt's response here is remarkable. Embracing Henson's baseless, indeed ridiculous, accusations as if they were gospel. Judge Weissbrodt offers that the accusation that RTC has impaired Henson's earning ability by picketing his prospective employers, is properly an issue in this case. (Dec., atl 5.) The record is devoid of even one iota of evidence to support Henson's scurrilous accusations yet Judge Weissbrodt feels compelled to publish it. Further, despite Judge Weissbrodt's comments on the record at the March 13 hearing that “the relationship between the parties - we're talking here to a large extent with respect to bad faith about subjective intent. And to the extent there is a relationship and a history, that's likely to come in,” we note with great disappointment Judge Weissbrodt's present attempt to mischaracterize that comment: "the Court explained that Creditor's conduct toward Debtor *might* prove relevant..." (emphasis CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 25 added), and "[respecting Debtor's defense of RTC's unclean hands] no ruling has yet addressed any of the evidentiary questions." (Dec., at 14, 15.) The record speaks for itself. Judge Weissbrodt's attempts at revisionist history will not prevail, but instead will serve only to underscore the lengths to which he has gone to defend his conduct and to mask his bias. I. Favoring Henson Because of His Age Judge Weissbrodt has also made repeated comments throughout this proceeding that Henson is "elderly" and "of advanced age" and insinuated that RTC is evil and not entitled to collect its debt because it is "an organization that represents itself as a church. . . going after an older man in bankruptcy." (Ex. G, at 39 (emphasis supplied).) Apart from the fact that Henson is not much older than Judge Weissbrodt himself, is energetic enough to travel the country picketing, for hours on end, Scientology facilities, is far from a frail senior citizen, only entered bankruptcy to avoid paying RTC's judgment, and is hardly a sympathetic "grandfatherly" type, but rather is a man who teaches children to make bombs and was standing trial in criminal court as an accused terrorist when Judge Weissbrodt made his comments (and has now been convicted under the California hate crime statute), Henson's age (and character) are completely irrelevant to whether RTC is entitled to collect its valid judgment. It is shocking to RTC that the rules of bankruptcy can be twisted by the Bankruptcy Court if the debtor is over fifty and the creditor is an organization affiliated with a religion with which the court has personal disagreements. Judge Weissbrodt's clear sympathy for Henson and disgust at RTC for attempting to assert its rights when Henson is of "advanced age" is a blatant breach of the Canons' requirements that the court act impartially, and is specifically violative of Canon 3(B)(5)’s prohibition against performing judicial duties with bias based upon age or religion. The Bankruptcy Code does not have two sets of rules, one for debtors of middle age and one for debtors of advanced age, one for religions acceptable to Judge Weissbrodt and one for those that he insults as representing themselves as churches. Remarkably, even after RTC made a point in its April 5 disqualification motion that Henson’s age is totally irrelevant to the issuer in bankruptcy, even after RTC's motion informed Judge CREDITOR RELIGIOUS TECHNOLOGY CENTER’s MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 27 Weissbrodt that even addressing Henson's age and thereby implying it has some relevance violates the Code of Ethics, the entirety of the explanation Judge Weissbrodt now offers is that he was merely commenting that Henson was "near the age of retirement." (Dec., at 9_10.)[30] Here again. Judge Weissbrodt misses the point because Henson's age is totally irrelevant, so why mention it at all? If Judge Weissbrodt was not and will not be influenced by his belief that Henson is "an older man" (Ex. G, at 39), why even say it? Why project the appearance to anyobjective observer that the court is considering Henson's age in making its decisions or informulating its settlement proposal? In summary. Judge Weissbrodt repeatedly commented, on the record, on matters that are totally, legally irrelevant to any issue in the bankruptcy case, including the number of lawyers RTC has, the amount RTC has spent in time and money in its case, and Henson's age, and yet Judge Weissbrodt would have RTC and the District Court believe that these were all harmless ruminations, that they do not manifest criticisms of RTC or favoritism ofHenson and his local, "San Jose" counsel. And Judge Weissbrodt would have RTC and all objective readers of the record conclude that he did not gratuitously demean the Scientology religion, that he did not question the integrity of the jury verdict, that he did not demean the right of a copyright owner to not publish, that he acted as any judge of this Court would respecting his gratuitous intrusion into settlement matters and his comments relating thereto. And Judge Weissbrodt would have the District Court believe that it was because he reiterated, on March 13, what he had said in a hearing *six months earlier* about conducting a limited time trial, that RTC now seeks his disqualification in the hope of forum-shopping. Whatever might have been said about the disqualification of Judge Weissbrodt before his June 1 Decision, there can now be no doubt that his June 1 Decision demonstrates that he lacks impartiality. Beyond his revisionist attempts respecting the record, beyond his facile explanations and those explanations which are conspicuously missing, beyond his refusal to apologize to RTC and its lawyers for his comments. Judge Weissbrodt has now made a most serious charge of misconduct -------- [30] This reformulation to "age of retirement" is nowhere in the record but it is as offensive as that which Judge Weissbrodt actually did say. CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FOR WRIT OF MANDAMUS [end of p.] 27 against RTC's counsel. He has accused RTC's counsel of concocting a meritless disqualification motion for the ulterior purpose of forum-shopping a judge who will give RTC something more by way of trial time than the undisclosed amount of time Judge Weissbrodt would. In the face of this serious but transparently baseless accusation of attorney misconduct. Judge Weissbrodt could not possibly continue on this case. No attorney ought be expected to try a case before a judge who has leveled a false accusation of professional misconduct against him and done so in a misguided attempt to defend his, the judge's, own misconduct. Conclusion RTC respectfully asks the District Court to either grant it leave to immediately appeal the June 1 Decision or grant the requested Writ of Mandamus and upon either, to disqualify JudgeWeissbrodt. Dated: June 11, 2001 Respectfully submitted, MOXON&KOBRIN [signature] HELENA K.KOBRJN Attorneys for Creditor RELIGIOUS TECHNOLOGY CENTER CREDITOR RELIGIOUS TECHNOLOGY CENTER'S MOTION FOR LEAVE TO APPEAL OR FORWRIT OF MANDAMUS [end of p.] 28 [end of this document but not of filings for this date. See also “Notice of Motion and Motion to Withdraw Reference Pursuant to Bankruptcy Rule 5011; Memorandum of Points and Authorities in Support Thereof; Declaration Warren McShane,” “Standing Order Regarding Case Management in Civil Cases,” “Declaration of Warren McShane in Support of Motion to Withdraw Reference to the Bankruptcy Court,” (with exhibits).]