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Arpaio’s legal blunder

imageAs you have read in these pages, Joe Arpaio through his attorney, has filed a motion to disqualify federal district judge G. Murray Snow, in the racial profiling case of Melendres v. Arpaio. The motion, “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow,” invokes two federal statutes: 28 USC § 455 and 28 USC § 144. You can read about those in my article, Sheriff Joe cries “uncle”!

Invoking § 144 is a problem. Here is the statute:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

Note the highlighted portion: “A party may file only one such affidavit in any case.” The problem is that this not the first § 144 motion filed by Arpaio in this case. Let’s set the Wayback machine a thousand documents or so back in the Melendres docket to February 23, 2009, when the Melendres case was under a different judge, U.S. District Judge Mary Murguia. Arpaio filed a motion for recusal then:

Defendants Joseph M. Arpaio, Maricopa County, and the Maricopa County Sheriff’s Office, pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455, and also pursuant to Rule 83.5, Local Rules for the United States District Court for the District of Arizona, respectfully submit this Motion for Recusal.

That’s why the current judge is someone without a Latino surname, G. Murray Snow. Filing TWICE under 28 USC § 144 appears to this writer to be a huge legal blunder.

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Joe Arpaio: There are no limits on how much money you can give me

imageArpaio is correct in an email solicitation as he writes:

Unlike a political campaign, THERE ARE NO LIMITS to how much you can give. Further, the contribution can come from any entity: business, trust, corporation, etc.

The solicitation was spammed1 to a broad mailing list of people who, I guess, have ever been associated with Republicans or conservatives—not just prior Arpaio contributors. Just in the past 2 years, Arpaio has spend around $3 million dollars in fundraising for his political campaign, so I guess he has access to some serious mailing lists.

Arpaio would make it seem like he has tremendous legal bills from just doing his job as sheriff. In fact, most of these tens of millions of dollars in legal defense costs are borne by Maricopa County. It is this recent contempt of court flap that the County isn’t paying for.

There’s a sucker born every minute.
–David Hannum

Read more:


1The emails came through Bluehornet, which is considered to be a spammer.

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Stay in Melendres

Here’s the telegraphic version of today’s status conference in Melendres v. Arpaio:

Motion to disqualify judge Snow by criminal attorney for Arpaio. Judge issues stay of proceedings until motion has been reviewed by parties and judge.  Snow reserves right for clarification from defense. Snow may add oral argument. Hearing dates in June to be maintained. Arpaio criminal defense attorney objects to entire inquiry by Judge Snow and the unbridled authority of the court appointed monitors.

 
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Arpaio cries “uncle”!

imageDefendants Joe Arpaio and Jerry Sheridan (not pictured right) have taken the extreme step of filing a “Motion for Recusal or Disqualification of District Court Judge G. Murray Snow.”

Under statute, case law, and judicial canons, the perception of judicial bias  and the appearance of impropriety, punctuated by the material witness status of the presiding judge’s spouse, mandate the recusal and disqualification of the Honorable G. Murray Snow.

Do tell.

I suppose that I have some sympathy for the recusal argument, given that Arpaio’s investigation of the judge and his family has entered the case record. I don’t buy some of the arguments for actual bias—when they follow the Orly Taitz model for proving judicial bias: the judge ruled against me. Federal law requires disqualification when a judge’s impartiality “might reasonably be questioned.” It does not require proof of actual bias. Here are some things to consider:

  1. Significant judicial resources have already been invested in the Melendres case.
  2. The 9th Circuit Court of Appeals has already rejected a motion for the recusal of Judge Snow on similar allegations.
  3. It is unlikely that Judge Snow’s wife will be a material witness in the case.

The Supreme Court said in Liteky v. United States:

The judge who presides at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were properly and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to completion of the judge’s task.

Further, actions by a party that might create animus on the part of a judge (like investigating their wife) do not created grounds for disqualification. The Third Circuit said that the courts should not “encourage tactics designed to force recusal.”1

One matter that is raised late in the motion regarding what the judge’s wife said:

Moreover, regardless of the irrelevance of the Grissom and Montgomery investigations to the issue of whether the admitted contempt of the Preliminary Injunction occurred, Judge Snow infused himself and the materiality of his wife as a witness and her uncontradicted statement into the contempt proceeding. Whether a sitting judge is admittedly biased toward a defendant in his Court and will do anything to ensure he is not re-elected is – without question – a conflict that creates grounds for recusal.

It might have constituted grounds for recusal when Defendants became aware of it in August of 2013, but all of the circuit courts agree that such motions for recusal must be made “at the earliest moment after knowledge of the facts demonstrated the bias for such disqualification.”2 In particular the 9th Circuit requires “reasonable promptness after the ground for such a motion is ascertained.”3 Evidence of bias is not something that a party can keep in reserve until he feels he needs it.

My preceding comments refer to disqualification under 28 U.S. Code § 455, which requires recusal based on the appearance of bias. Arpaio’s attorneys have filed both under § 455 and § 144, the latter dealing with actual bias. A challenge under § 144 is rather a nuclear option. It can be done only once in a case, and it requires an affidavit by the party and a certificate of good faith from counsel that the judge is biased, and results in automatic transfer of the case to another judge. However, filings under § 144 must be timely:

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.

I am not seeing how this motion is timely. Further, the affidavit, must allege facts sufficient to lead a reasonable person to believe that the judge is biased, and the discussion of § 455 applies and the deficiencies of the Arpaio motion already discussed are relevant.

In any case, I’m not qualified to judge the merits of the Arpaio filing, so I’ll wait and see what happens.

Legal citations in this article found in the Federal Judicial Center paper listed below.

Read more:


1United States v. Bertoli, 40 F.3d 1384, 1414 (3d Cir. 1994)

2Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994)

3Preston v. United States, 923 F.2d 731, 733 (9th Cir. 1991)

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RC Radio: Interview with French Attorney Lupin

Vattel made clear

RC Radio continues in its tradition of interesting and distinguished guests, this time a French attorney who is also an editor of works (in English translation) by Emerich de Vattel! What a powerhouse combination for any discussion of both the language and the context into which Vattel wrote on citizenship.

Readers here will know well our distinguished commenter Lupin. Listen to him on RC Radio.

It was a great show. Here are early articles where Lupin has commented here (oldest first):

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Carl Gallups makes clear association between “earth shattering information” and confidential informant Montgomery

imageAn extremely interesting and revealing audio clip from the Freedom Friday with Carl Gallups show today has been posted on YouTube. In the clip, Gallups talks specifically about an ABC 15 news story, titled “Sheriff Joe Arpaio’s investigation was intended to discredit, judge says.”

Gallups says in no uncertain terms that the “earth shattering” information that he and Zullo were talking about is specifically the information provided Arpaio by the confidential informant, Dennis Montgomery, information that Sheriff Arpaio agreed in testimony last month was “junk.”

Here’s the transcript of what Gallups said:

Carl Gallups Freedom Friday May 15, 2015

I’m gonna keep my promise. Listen folks: Write some of this stuff down, listen to this, go back and get the podcast if you can’t write it if you’re driving. I told you I’d give you a quick Sheriff Arpaio/Zullo investigation update, and here’s the deal—here you’re gonna have to listen.

If you’re intelligent, and 99.8% of our folks that listen to this show are very intelligent. The ones that don’t fit that category are usually the Obamabots who are listening to every little word that drops off my mouth so that can twist it, pervert it, and jack it around all over the Internet. They are not so intelligent. … They help to keep me honest as well. But the rest of you are gonna have to kind of listen carefully, kind of read in between the lines [1:00]. But here’s the deal: I haven’t had time to post this yet because all this kind of came to me before we went on the air, but just go to Google and you can put in these words, “sheriff joe arpaio investigation was intended to discredit judge says.” That’s the headline with an article right out ABC 15 Arizona. “Sheriff Arpaio’s investigation was intended to discredit, a judge says.” Continue Reading →

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