Motion to vacate denial of disqualification application of Presiding Justice Ramirez, Richli and McKinster

TO THE HONORABLE ADMINISTRATIVE PRESIDING JUSTICE, PRESIDING JUSTICE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA, FOURTH DISTRICT DIVISION TWO.

Appellant is requesting the court to vacate the orders of 7/31/2014 as the Court applied the incorrect legal standard in all three orders. Appellant is also lodging her objections to the Court for the failure of Justice Richli, Presiding Justice Ramirez and Justice McKinster to disqualify themselves. As the Court of Appeal remarked in one published opinion, “[t]hough among the least celebrated functions of appellate courts, the processing of a wide range of motions, applications and other requests for relief during the pendency of an appeal is an important aspect of the appellate process.” (Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 193-194.) The same relief applies to the statutory right to file an application to disqualify a justice pursuant to 28 U.S.C. § 455 (a).

This motion is based on this application, the application to disqualify Presiding Justice Ramirez, Justice Richli and Justice McKinster (Application filed 07/23/2014, xxxxx) and the attached memorandum of points and authorities.

Respectfully submitted

xxxxxs 8/4/2014

MEMORANDUM OF POINTS AND AUTHORITIES

I. INCORRECT LEGAL STANDARD APPLIED BY ALL THREE JUSTICES

A. 28 U.S.C. § 455 (a) Applies.

Presiding Justice Ramirez, Justice Richli and Justice McKinster, in their orders denying the application to disqualify all three justices, (Orders filed 7/31/2014  xxxxxx), cited that 28 U.S.C. § 455 (a) does not apply to appellate state court justices. This is once again an egregious error that has characterized all of appellant’s cases in this Court of Appeal as this district has issued orders or rulings not based on any title eight rules nor the applicable statutory construction of the relevant statute, creating abstract propositions of law not based on any law; effectively legislating from the bench and implementing an extra-judicial mechanism by all three justices. 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.)

In United Farm Workers of America v. Superior Court, 170 Cal. App. 3d 97 [216 Cal. Rptr. 4] the third appellate district analyzed the relevant disqualification standard based on 28 United 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.)

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, 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.) 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, 265Union 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.).

In addition the California 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.

B. EXTRAJUDICIAL CRITERIA AND HOSTILE ADVERSE RULINGS MANDATES DISQUALIFICATION

Black’s Law dictionary defines extra-judicial in the following manner: “That which Is done, given, or effected outside the course of regular judicial proceedings; not founded upon, or unconnected with, the action of a court of law; as extrajudicial evidence, an extrajudicial oath. That which, though done In the course of regular judicial proceedings, is unnecessary to such proceedings, or interpolated, or beyond their scope; as an extrajudicial opinion, (dictum.)That which does not belong to the Judge or his jurisdictionnotwithstanding  which he takes cognizance of it,” Black’s Law Dictionary 126 (9th ed. 2009).

There is no question that all the actions which Appellant listed as the grounds for disqualification for all three justices falls within this category, (application filed 7/23/2014, xxxxxx7). The United States Supreme Court has also defined the disqualification of 28 U.S.C. § 455 (a) to not only include extrajudicial sources but has recognized that an UNFAVORABLE predisposition can also be characterized as bias or prejudice as it rises form the state of mind of the relevant judge, LITEKY et al. v.UNITED STATES 510 U.S. 540 (1994). In this case with the derogatory and insulting statements aimed at appellant, (application filed 7/23/0214 xxxxx), there is no question that this court has displayed an openly hostile attitude towards appellant, confirmed by inventing capricious rules and procedures directed ONLY at appellant not defined in any title eight rule or law, and in the adverse and hostile rulings by all three justice against appellant (Application filed 7/23/2014, xxxxxxx7).

All three justices cite that adverse rulings are not grounds for disqualification.  A favorable or unfavorable predisposition can also deserve to be characterized as “bias” or “prejudice” because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment. (That explains what some courts have called the “pervasive bias” exception to the “extrajudicial source” doctrine. See, e. g., Davis v. Board of School Comm’rs of Mobile County, 517 F. 2d 1044, 1051 (CA5 1975), cert. denied,425 U. S. 944 (1976).)

Recusal is required whenever there exists a genuine question concerning a judge’s impartiality, and not merely when the question arises from an extrajudicial source, LITEKY et al. v.UNITED STATES 510 U.S. 540 (1994) . 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.

 

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