CJP Complaint lodged against Presiding Justice Ramirez and Richli for failure to disqualify themselves.

For anyone subjected to the same insanity 28 U.S.C. § 455 was amended to include all judges in the United States. http://www.law.cornell.edu/uscode/text/28/455

The third appellate district has also analyzed the relevant statute in United Farm Workers of America v. Superior Court, 170 Cal. App. 3d 97 216 Cal. Rptr. 4 as contrary to the Fourth District Court of Appeal, some justices recognize that Federal Law applies to the matter discussed.

“We are unaware of any cases attempting to interpret and apply the new section 170.1. As noted, however, it was based on concepts contained in the Traynor Code which includes a provision analogous to subdivision 103*103 (a)(6)(C), requiring disqualification of a judge where “his impartiality might reasonably be questioned.” (ABA Code of Jud. Conduct, canon 3C.) This objective approach to the question of judicial partiality also served as the genesis for a corresponding federal statute, 28United States Code section 455(a) adopted by Congress in 1974, which provides that “[a]ny … judge … shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned….” (See generally State of Idaho v. Freeman(D.Idaho 1981) 507 F. Supp. 706, 717-719.)

Section 170, which introduces the disqualification statutes, is a new section expressing the proposition we noted earlier that “[a] judge has a duty to decide any proceeding in which he or she is not disqualified.” The legislative history shows this section was prompted by statements suggesting that certain judges did not believe they had such a duty. (See Olson v. Cory (1980) 27 Cal.3d 532, 576-578 [178 Cal. Rptr. 568, 636 P.2d 532].) Thus, the section serves to remind judges of their duty to hear cases which are controversial and might subject them to public disapproval as well as to protect them from public criticism by a clear statement of their responsibility.

For our purposes, the key change in the new statutes is found in subdivision (a)(6)(C) of section 170.1 which provides for disqualification whenever a judge’s impartiality might reasonably be questioned. (Ante, fn. 1.) This subdivision changes the law in that the previous corresponding statute, section 170, subdivision (a)(5) (repealed by Stats. 1984, ch. 1555, § 1), which could be read as applying to the appearance of bias, had been construed to require bias in fact. (Andrews v.Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 792-793 [171 Cal. Rptr. 590, 623 P.2d 151].) The reason given for the change is the difficulty in showing that a judge is biased unless the judge so admits. In addition, public perceptions of justice are not furthered when a judge who is reasonably thought to be biased in a matter hears the case.

While the language in the federal statute and the Traynor Code is virtually identical, subdivision (a)(6)(C) is couched in the somewhat different terms of “a person aware of the facts … reasonably entertain[ing] … doubt[s]” regarding the judge’s impartiality. This slightly different gloss on the Traynor Code concept appears to be derived from — or at least closely tracks — interpretive language in a number of federal cases. Illustrative is the Fifth Circuit Court of Appeals’ decision in Potashnick v. Port City Const. Co. (5th Cir.1980) 609 F.2d 1101, 1111 [54 A.L.R.Fed. 825]: “Use of the word `might’ in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, 104*104 would harbor doubts about the judge’s impartiality.” (See also, e.g., United States v. Ferguson(S.D.N.Y. 1982) 550 F. Supp. 1256, 1260 (“whether a reasonable member of the public at large, aware of all the facts, might fairly question the Court’s impartiality”).) The language apparently had its genesis in the Reporter’s Notes to the Traynor Code. (See Note, Disqualification of Judges and Justices in the Federal Courts(1973) 86 Harv.L.Rev. 736, 745.) Thus, absent California precedent on point, we may profitably look to federal cases interpreting section 455(a) for guidance in distilling some basic principles.

(1) The standard for disqualification provided for in subdivision (a)(6)(C) of section 170.1 is fundamentally an objective one. It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable man would entertain doubts concerning the judge’s impartiality, disqualification is mandated. “To ensure that the proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person.” (In re United States, supra, 666 F.2d at p. 694; see also Matter of Searches Conducted on March 5, 1980 (E.D.Wisc. 1980) 497 F. Supp. 1283, 1290.) While this objective standard clearly indicates that the decision on disqualification not be based on the judge’s personal view of his own impartiality,[3] it also suggests that the litigants’ necessarily partisan views not provide the applicable frame of reference. (See United States v. Cowden (1st Cir.1976) 545 F.2d 257, 265; Union Independientev. Puerto Rico Legal Services (D.P.R. 1982) 550 F. Supp. 1109, 1111.) Rather, “a judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street.” (Potashnickv. Port City Const. Co., supra, 609 F.2d at p. 1111; accord United States v.Ferguson, supra, 550 F. Supp. at p. 1260.)

Various factors may impact on how the “average person on the street” views a judge’s participation in a case. One court has perceptively recognized that all other things being equal, the need for disqualification decreases by the extent to which the judge’s rulings in the case are limited to purely legal matters. (State of Idaho v.Freeman, supra, 507 F. Supp. at p. 728.) This is because a trial judge’s factual findings are generally accorded considerable deference whereas legal rulings are subject to plenary appellate 105*105 review. (Ibid.; see generally Hurtado v. Statewide Home Loan Co. (1985) 167 Cal. App.3d 1019, 1023-1025 [213 Cal. Rptr. 712].) Equally significant, the circumstances giving rise to suspicions of partiality rarely involve the legal posture of the case.

(2) It is also important to note, especially in the context of the present case, that the facts and circumstances bearing on the judge’s possible partiality must be considered as of the time the motion is brought. “The standard … is whether a reasonable person knowing all of the facts and looking at the circumstances at the present time would question the impartiality of the Court.” (Matter of Searches, supra, 497 F. Supp. at p. 1291, italics added.)”

Re: Complaint 4th district division 2 court of appeal, Presiding Justice Richli’s’ failure to disqualify herself.

Dear Sir/Madam,

I am lodging a complaint with the CJP against Presiding Justice Richli and her failure to disqualify herself. I am requesting that the Commission disqualify Presiding Justice Richli and admonish her for failure to abide by the Judicial Canon of ethics.

Presiding Justice Richli specified that 28 U.S.C. § 455 (a) does not apply to Justices of this Court of Appeal. The plain language of the statue specifies the following: (a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The term ANY refers to any judge, justice or magistrate judge in the United States. Her “opinion” interprets the statue incorrectly as the statute was previously revised to include all judges in the United States. It is a “well-settled rule that courts should ‘avoid advisory opinions on abstract propositions of law. [Citations.]’ [Citation.]” (People v. Ybarra (1988) 206 Cal.App.3d 546, 549; People v. Gonzales (1994) 29 Cal.App.4th 1684, 1700.)

The first rule is that the courts will adopt the plain meaning of the statute unless it would be repugnant to the obvious purpose of the statute. (Lungren v. Deukmejian (1988) 45 Cal.3d 727,735 [“Words used in a statute or constitutional provision should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters).”].)

In this case it is clear that the plain language of the Statute specifies that 28. U.S.C.§ 455 (a) applies to ANY justice, judge or magistrate justice of the United States.

In addition the CA Supreme Court has amended the Judicial Canon of ethics to include appellate justices, where the same statutory language is listed as in 28 U.S.C. § 455 (a)

Canon 3 (E) specifies the circumstances in which disqualification is required. As amended by the Supreme Court, it applies to the Justices of the Supreme Court, as it does to judges and justices of the lower courts (Code of Judicial Ethics, Canon 3 (E) (4); Press Release No 68, California Supreme Court, Supreme Court amends Cannons on Recusal; disqualification of appellate justices, (Dec., 13, 2000). Canon 3 (E) requires a Justice to disqualify himself or herself in the following situations, among others:

1. The circumstances are such that a reasonable person aware of the facts would doubt the justice’s ability to be impartial.

2. The appellate justice …… is a director, advisor, or other active participant in the affairs of a party.

The request for disqualification addressed the insulting and demeaning statements that are hurled at appellant in orders denying her the statutory right to proceed with an appeal as defined by the California Supreme Court in In re Sade C. (1996), 13 Cal. 4Th 952; (see enclosed), the deliberate sabotaging of appellant’s appeals which exceeds Presiding Justice Richli’s judicial and administrative function (see enclosed) and the implementation of exclusive policies and procedures directed at appellant only; violating all title rules, applicable defined procedures and prevailing law where ANY reasonable objective observe aware of the facts would doubt this justice’s ability to be impartial.

Justice Richli in her denial of the disqualification request refers to applications under CCP § 397.1 which does not apply to a Court of Appeal and her outrageous malicious actions that have been implemented against this appellant. Her “opinion” once again interprets the statue incorrectly. It is a “well-settled rule that courts should ‘avoid advisory opinions on abstract propositions of law. [Citations.]’ [Citation.]” (People v. Ybarra (1988) 206 Cal.App.3d 546, 549; People v. Gonzales (1994) 29 Cal.App.4th 1684, 1700.) The statutory construction of the CCP § 391.7 statute does not specify that an application demonstrating the merit of an appeal or filing has to be filed, nor that there is any specific format to an “application”. It merely specifies that an allegedly vexatious litigant has to obtain “leave” from the presiding judge but does not specify whether that leave is oral or written. The word application is missing from the statute and is not incorporated by reference in any capacity as an application that an allegedly “vexatious” litigant has to submit to the court. The only filing that is referenced in the vexatious litigant statute (VLS) is whether the action to be filed has merit and the resulting order from

the presiding justice pursuant to CCP § 391.7. Similarly, there is no terminology contained in the vexatious statute that allows a court to decide the merit of an application, (which is not referenced in any capacity in the VLS statute), as the basis for allowing an appeal or a writ proceeding as the notice of appeal or writ proceeding is not referenced as new litigation in the VLS statute.

When construing a statute courts view as the paramount consideration the intent of those who enacted the provision at issue. (Davis v. City of Berkeley (1990) 51 Cal.3d 227, 234, 272 Cal.Rptr. 139, 794 P.2d 897.) To determine that intent, courts look first to the language of the constitutional text, giving the words their ordinary meaning. (Ibid.; see also Bowens v. Superior Court (1991) 1 Cal.4th 36, 48, 2 Cal.Rptr.2d 376, 820 P.2d 600; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299.)

The ordinary meaning of the statute defined in CCP § 391.7 (a) specifies that a litigant does not have to file a written application demonstrating the merit of a notice of appeal, consisting of a one page document on an app-002 form in unlimited civil cases pursuant to California rules of court, Rule 8.100 subsection (a) (1).

If the Legislature had intended to include notice of appeal in its definition of “litigation” in the vexatious litigant statute, it would not have limited that statute on its face to any “civil action or proceeding.” (§ 391, subd. (a)) and would have referenced a stay proceeding for a notice of appeal.

Current title eight rules specify that a notice of appeal is filed pursuant to California rules of court 8.100 (a) and that the notice designating the record on the appeal has to be filed within 10 days pursuant to California Rules of Court 8.121, contravening the intent of the creative stay and dismissal actions invented by the Presiding Justice of this Court.

In addition Justice Richli takes it upon herself to deny appeals and writs not based on the actual content of the appeal or writ proceeding or upon the appealability of the notice of appeal. The appellant has the statutory duty to make a challenge on appeal, (In re Sade C., (1996) 13 Cal. 4Th 952. An appealed-from judgment or order is presumed correct. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal. Rptr. 65, 468 P.2d 193].) Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect (see ibid.), and “present argument and authority on each point made” (County of Sacramento v.Lackner (1979) 97 Cal. App.3d 576, 591 [159 Cal. Rptr. 1]; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal. App.3d 272, 278 [268 Cal. Rptr. 83]). The appellant cannot make a challenge without the record on appeal to reference in the statutory manner accepted by the appellate court through an opening brief or petition.

The Court in each an every instance fails to apply the objective merit standard required by In re Marriage of Flaherty , 31 Cal.3d 637 which discussed the different merit standard defining frivolous and merit and decides whether appeals and writs can proceed on matters that are not part of the prejudicial error of the trial court, that is the basis of the notice of appeal. It has long been the general rule and understanding that “an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.” (In re James V. (1979) 90 Cal.App.3d 300, 304, 153 Cal. Rptr. 334.)

As first articulated in United States v. Cowden 545 F.2d 257, 265 (1st Cir. 1976) the impartiality test is “whether the charge of lack of impartiality is grounded in facts that would create a reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of a reasonable man.” The benefit of doubt is now placed in favor of recusal, United States v. Alabama, 828 F.2d at 1540.

Justice Richli’s conduct consist of malicious prejudicial conduct against appellant, which any REASONABLE observer would confirm. Prejudicial conduct is ‘either “conduct which a judge undertakes in good faith but which nevertheless would appear to an objective observer to be not only unjudicial conduct but conduct prejudicial to public esteem for the judicial office” [citation] or “willful misconduct out of office, i.e., unjudicial conduct committed in bad faith by a judge not then acting in a judicial capacity.” [citation].’ [Citation.]” {Broadman v. Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1090 {Broadman)..) “The provision that the conduct must be that which ‘brings the judicial office into disrepute’ does not require actual notoriety, but only that the conduct, if known to an objective observer, would appear to be prejudicial to public esteem for the judicial office. [Citation.]” (Adams v. Commission on Judicial Performance (1995) 10 CaUth 866, 878 (Adams).) “The subjective intent or motivation of the judge is not a significant factor in assessing whether prejudicial conduct has occurred under this standard. [Citation.]” (Ibid.)

Justice Richli’s actions involve the following violations; Canon 3 which stipulates that a judge shall perform the duties of judicial office impartially and diligently and Canon 3B (2) states that a judge shall be faithful to the law * regardless of partisan interests, public clamor, or fear of criticism, and shall maintain professional competence in the law and Canon 3B(7) states that a judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, full right to be heard according to law and canon 2A (judges to respect and comply with the law so as to promote public confidence) of the California Code of Judicial Ethics.

I declare under the penalty of perjury in the State of California that the foregoing is true and correct and the enclosed documents are true and accurate copies of the original documents.

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