News US Citizens In Harms Way BREAKING: Orly Taitz Esq... Recuse Judge Land Motion - In Text | BREAKING: Orly Taitz Esq... Recuse Judge Land Motion - In Text |
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by Barry Weinstein 455 (a) Any justice, judge, or magistrate judge of the United States shall disqualify...in which his impartiality might reasonably be questioned. [The NWS staff questions Judge Land's Impartiality]UNITED STATES DISTRICT COURT 120 12th Street P.O. Box 124 Columbus, Georgia 31902 The undersigned Orly Taitz, former counsel to Plaintiff Captain Connie Rhodes files this Motion to Recuse pursuant to 28 U.S.C. §§144 and 455(a), in support of both theories of recusal. First, there is some circumstantial evidence that Judge Clay D. Land may have had extrajudicial and ex-parte contacts with the Obama administration, in particular from Attorney General Eric Holder (See Affidavit, Exhibit A). Second, a preliminary review of the results of the Honorable Judge Clay D. Land’s public disclosures concerning his investments, it also appears to the undersigned that Judge Land may be disqualified because he has equity ownership of certain securities (e.g. Microsoft and Comcast) which are aligned both politically and economically with a key Defendant in this case, namely the de facto President of the United States, Barack Hussein Obama, in such a direct and personal way that it could be said that this Judge has a financial stake in the outcome of the former Plaintiff Captain Connie Rhodes’ original case-in-chief. See, for example, Judge Land’s signed disclosures at: The primary reason for the undersigned counsel to file this Motion to Recuse, however, is that Judge CLAY D. LAND has by his own actions created a constitutionally intolerable situation in which he is both complaining party, prosecuting attorney, judge and jury regarding the charges of frivolous filing and sanctionable conduct which he has leveled sua sponte and filed pursuant to Rule 11(c)(3) of the Federal Rules of Civil Procedure. A troublesome aspect of a trial court's power to impose sanctions, either as a result of a finding of contempt, pursuant to the court's inherent power, or under a variety of rules such as Fed. R. Civ. P. 11 and 37, is that the trial court may act as accuser, fact finder and sentencing judge, not subject to restrictions of any procedural code and at times not limited by any rule of law governing the severity of sanctions that may be imposed. See International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 831, 114 S. Ct. 2552, 2559, 129 L. Ed. 2d 642 (1994) ("Unlike most areas of law, where a legislature defines both the sanctionable conduct and the penalty to be imposed, civil contempt proceedings leave the offended judge solely responsible for identifying, prosecuting, adjudicating, and sanctioning the contumacious conduct.") The absence of limitations and procedures can lead to unfairness or abuse. Mackler Productions, Inc., v. Cohen et al., 146 F.3d 126 (2nd Cir., 1998). The Court’s Order to Show Cause, rendered September 18, 2009, expressly identifies the origin or authority of the court’s intention to sanction the undersigned as Rule 11 of the Federal Rules of Civil Procedure, but also states in conclusion: “The Court notifies Plaintiff’s counsel, Orly Taitz, that it is contemplating a monetary penalty of $10,000.00 to be imposed upon her, as a sanction for her misconduct.” Page 7 of 9-18-09 Order (Document 18 in the Clerk’s Docket Report for this case on PACER). The text of the order is generally ambiguous and quite confusing as to exactly Mackler, 146 F.3d at 129. Whether or not a finding of contempt is involved, unfairness and abuse are possible, [**12] especially if courts were to operate without any framework of rules or cap on their power to punish. In either case, the individual bears the risk of substantial punishment by reason of obstructive or disobedient conduct, as well as of vindictive pursuit by an offended judge. We conclude, notwithstanding the differences mentioned above, that the imposition of a sufficiently substantial punitive sanction requires that the person sanctioned receive the procedural protections appropriate to a criminal case. We conclude that the imposition of a $ 10,000 punitive sanction on an individual (as opposed to a corporation or collective entity) requires such protections. . . . [Footnote 3] If the district court undertakes retrial of the punitive sanction, it should consider whether the appellant will have the right to jury trial. Id. at 130. Of course, the imposition of either punitive sanctions or criminal contempt of court based on an order to show cause which focuses most of it’s real energy on criticizing an attorney for vigorous and exuberant political advocacy raises a number of deeply troubling Constitutional questions, some of which relate to the inherent power of a court to use its punitive power of sanction to suppress unpopular views and some of which relate the availability of this judge as a detached and impartial magistrate. This is clearly one of the situations in which the line demarcating “law” and “politics” is extremely unclear. “Politics” is, after all, the process by which “beliefs” become law. The original Plaintiff in this case, Captain Connie Rhodes retained the undersigned counsel for the purpose of advocating her “belief” that the words of the United States Constitution mean something more than dust in the wind, especially in light of her commissioned officer’s oath to uphold the Constitution, regarding which highly meaningful and significant oath this Court has never written a single word. On page 6, the Court returns from a litany of charges that all of the actions of Plaintiff’s counsel in this case were “frivolous” to its charge that a case with political overtones and consequences is not appropriate in a lawsuit brought in court: How exactly does the Court know about the “birther agenda” and why does the Court use such a pejorative term to refer to the contention that the words of Article II, Section 1, Clause 5 of the Constitution are critical qualifications to be enforced by the people in Court when Congress and the electoral college fail to do so? The undersigned counsel submits that this Judge has, among other things, radically PREJUDGED the case which the former Plaintiff Captain Connie Rhodes brought, when he finds that there is “no legal or factual basis” for her contentions, as when he states that “she supports her claims with subjective belief, speculation, and conjecture….” What exactly does the Court find so very speculative or subjective about private investigator’s reports, expert opinions, colored and/or certified copies of Kenyan birth records admissible under the “ancient documents” doctrine of the Federal Rules of Evidence? Is/was this Court not even mildly curious why the President of the United States would have, on the day after his inauguration, issued two Executive Orders [included in the Complaint and Application for TRO] sealing his personal records from public scrutiny? Is the entry of such a pair of executive orders on January 21, 2009, as were reproduced and quoted in Plaintiffs’ Complaint and Application for TRO, not relatively strong circumstantial evidence that this Court could consider both relevant and Could these questions potentially render the results of the 2008 election void on constitutional grounds? Yes. Could such a result have dramatic political consequences? Yes. Is it a frivolous case, merely because it has such potential political consequences? Jones v. Clinton (1996), or United States v. Nixon (1974), which were all based on substantially less obvious constitutional questions or violations, which were also much more difficult both to detect, determine with certainty, and ultimately to prove, than the Constitutional issues brought in this case. Yes, indeed, a litigation regime, a judiciary, without genuine political questions before it would have a much lighter case load. What, for example, was ever more political in 20th century Georgia than the question of school desegregation? Surely this distinguished Southern Judge would have jailed Thurgood Marshall in the 1940s and ‘50s for contempt when the future Supreme Court Justice repeatedly filed cases demanding on constitutional as well as social and psychological grounds the desegregation of primary and secondary public schools against well-established precedents such as Plessy v. Fergusson, 163 U.S. 537 (1896). Apparently in Judge Land’s courtroom, any case with political consequences is an abomination, and this excludes just about every civil case except for disputes over bills of lading under the U.C.C., because even the average ERISA case and every other insurance of pension fund case is fraught with public policy, i.e., political, concerns. Accordingly, let the lawyer beware who dares to sue in Judge Land’s Court for civil rights violations by a politically popular local sheriff, or to redirect a highway around a swamp habitat for endangered species at great cost to local taxpayers, or to file any case involving abortion or contraception, or to invalidate a zoning ordinance or variation designed to increase property values, or even, Heaven Forbid, to suggest that this Court entertain a voting rights act complaint alleging that the POLITICAL outcome of an election might be altered by unconstitutional apportionment or gerrymandering. Law is political and politics are all about law---what it is and what it ought to be. The Constitution was adopted to achieve and maintain certain political goals, such as the procurement of “the blessings of liberty”, as well as economic prosperity and the general welfare. The Constitutional restrictions on the “natural born” citizenship and status of the President likewise had the expressly political purpose of preventing foreigners, insofar as “foreigners” could be defined or excluded in a nation of immigrants, from taking command of our armies, our vast executive departments and administrative bureaucracy, and all the other associated powers of the Presidency. More seriously, in relating to this Motion to Recuse, the undersigned counsel submits that the tenor of this Court’s orders, and the rapidity of their rendition, both support the inference that the Court harbors a deep-seated prejudice and bias against counsel, and that such bias, because of its very nature and substance is extra-judicial in origin and transmission to the Court. For example, on page 6 of the Court’s September 18, 2009 order, Judge Land refers again to the undersigned counsel as “a leader in the so-called “birther movement.”” (Footnote 4). Since the undersigned certainly did not invent or ever adopt the term “birther”, awareness of this label is a pejorative appellation (often coupled with even more colorful epithets such as “batshit crazy”), and since she does not go around introducing herself or her clients as part of a “movement” in any sense, certainly not in court, it can only be concluded that Judge Clay D. Land has derived his information, and prejudice, and bias, against the undersigned by reference to material which is exclusively available from extrajudicial sources. EXCEPT FOR PERVASIVE BIAS, WHY WOULD THE COURT AVOID 90% of the Content of the Plaintiff’s Complaint, which concerned the Constitutionality of Military Procedures rather than actual deployment issues? In regard to the merits of the case, by unilaterally denying Plaintiff’s access to the Courts in violation of the First, Fifth, and Ninth Amendments to the United States Constitution, Judge CLAY D. LAND barred Plaintiff from filing a meritorious complaint, albeit one of first impression, seeking declaratory judgments concerning the organization and constitutional legitimacy of the military and further seeking construction and interpretation of a U.S. Army commissioned officer’s sworn duty to uphold the United States Constitution against all enemies, foreign and domestic. When a Judge shows heavy handed bias without even itemizing the ACTUAL issues raised in a pleading, motion, and application for TRO, he is showing pervasive bias which is plainly extrajudicial, because there is no possible “judicial, litigation experience based” source for the bias and prejudice. This is not a case where Judge LAND’s knowledge and prejudice results solely from his contact with Plaintiff and his Counsel in a case which has lasted for a year and a quarter of litigation, or more. It is obvious from Documents 3 and 6 submitted in this case that the Honorable CLAY D. LAND never read the first line of the Complaint or Application for TRO. As the United States Supreme Court has held (per Justice Scalia) that: THE ACTUAL SUBSTANCE OF THE COMPLAINT Judge LAND was prejudiced against Captain Rhodes as an individual challenging the constitutional legitimacy of the chain of command based on a constitutional challenge to the eligibility of the President, but he is more directly prejudiced against this undersigned counsel because of her perceived role in the “politically controversial” “Birther Movement.” Judge Land focuses on the equitable complaint for restraint of deployment even though Plaintiff’s complaint is (was) simultaneously much broader in its significance than that one single issue, in that it seeks to reform U.S. Army custom, practice, and policies regarding blind obedience to orders. That Judge LAND’s bias stems from an extra-judicial source is apparent from (and in fact, is the ONLY reasonable or possible interpretation of) the substantive text of his orders. It is clear and obvious from Judge Land’s determination of Plaintiff Connie Rhodes’ lack of standing (and the undersigned counsel’s “negligence” or “contemptuous disregard” of the court’s orders in failing to stand down when ordered to do so ) in and from the fact that Judge Land clearly and plainly did not read the Plaintiff’s Complaint or Application for TRO, and from the rapidity of his decision to deny Plaintiff his Seventh Amendment right to a trial-by-jury without first evaluating the sufficiency of 85%-90% of the issues in Plaintiff’s complaint. Plaintiff suspects and submits upon the substantial if circumstantial evidence of the rapidity of the entry of these orders that an invisible external and extra-judicial but governmental hand may have guided and informed Judge LAND’s judicial actions. The challenges which Plaintiff originally sought to have lodged in this case concern (1) the right and power of an unconstitutional commander-in-chief to render lawful orders, and (2) the right and power of a commissioned officer of the United States Army to follow and protect his oath to uphold the constitution, AND (3) the procedures by which an officer must be allowed and empowered to question the lawful nature and status of orders received and to then and there demand an authoritative and independent determination of the constitutional validity of the Army Chain-of-Command and its actions under U.S. and International law if led by an ineligible President. The United States Court of Appeals for the Sixth Circuit has ruled in a similar case (wherein an order of dismissal had already been entered): * * * * * * * * * * Barksdale v. Emerick, 853 F.2d 1359 at 1362 (6th Cir. 1988). In a manner and litigation posture exactly analogous to that of the present case, the Sixth Circuit in Barksdale allowed (and indeed mandated) RETROACTIVE RECUSAL even where the Motion to Recuse was filed 10 days after the entry of an order of dismissal. 853 F.2d at 1361. Retroactive recusal due to bias is required in the present case because, quite simply, Judge LAND has acted, ironically enough, for expressly and explicitly political reasons, clothed in the flimsiest of jurisprudential clothes. And in thus aborting litigation has hardly even allowed the development of an adequate record even to take before a Court of Appeals. The fact that Judge LAND has already now “done his worst” does not render this Motion untimely (it is being filed less than ten business days after denial of Plaintiff’s Emergency Motion for Stay of Deployment), nor will the interests of justice be served by disregarding it, no matter how politically sensitive certain select but separable aspects of Plaintiff’s Complaint may seem to be. THE RIGHT TO AN IMPARTIAL AND DISINTERESTED JUDGE IS Due process demands that the judge be unbiased. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) ("A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases." (emphasis added)). Furthermore, a judge can and should be disqualified for "bias, [] a likelihood of bias[,] or [even] an appearance of bias." See Ungar v. Sarafite, 376 U.S. 575, 588, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); see also Murchison, 349 U.S. at 136 ("[O]ur system of law has always endeavored to prevent even the probability of unfairness."); accord Anderson v. Sheppard, 856 F.2d 741, 746 (6th Cir. 1988) (opining that due process "require[s] not only an absence of actual bias, but an absence of even the appearance of judicial bias"). See also, generally, Railey v. Webb, 540 F.3d 393, 399-400 (6th Cir. 2008). The undersigned counsel hereby submits that Judge LAND’s participation in this case as a complaining witness in what at the very least amounts to a quasicriminal prosecution violates Plaintiff’s due process rights as explicated in several Supreme Court cases namely Tumey v. Ohio, 273 U.S. 510, 523 (1927), In Re Murchison, 349 U.S. 133, 136 (1955), and Ward v. Village of Monroeville 409 U.S. 57, 61 (1972). In particular, it is obvious that under no circumstances will or would Judge LAND ever allow Plaintiff to submit any facts or mixed questions of fact and law to a jury, despite the guarantees of the 7th Amendment, the public policies articulated by 28 U.S.C. §1861, and Rule 38 of the Federal Rules of Civil Procedure. There is circumstantial evidence (Exhibit A) suggesting that, in fact Judge LAND was influenced by prior association or direct ex-parte communications with Attorney General Eric Holder, acting as agent on behalf of de facto President Obama. Even if there were no such evidence, Plaintiff herein need only allege and point to the public record in this case to demand immediate and retroactive recusal and ask whether Judge LAND’s blitzkrieg-like rulings while sitting on Plaintiff Captain Rhodes’s case appears objectively improper and/or gives a reasonable person the belief and/or firm conviction based on inference that either Judge LAND’s personal and extrajudicial background circumstances and interests, prejudices, and biased have “...lead him not to hold the balance nice, clear and true.'" Ward, 409 U.S., at 60 (quoting Tumey v. Ohio, 273 U.S., at 523, 532). The Due Process Clause "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, 'justice must satisfy the appearance of justice.'" Murchison, 349 U.S., at 136 (citation omitted). Judge CLAY D. LAND has not satisfied the appearance of justice. Judge LAND has also completely failed to evaluate or even pretend to have read enough of Plaintiff Rhodes’s Application for TRO and Complaint to determine whether or not Plaintiff Rhodes has standing, for example, to demand a declaratory judgment regarding the procedures by which a commissioned officer may adhere to his oath by questioning the constitutionality or lawful status of military orders received, even in times of domestic peace (and there are severe constitutional questions and doubts under international law concerning the constitutional nature and lawful status of the so-called “Global War on Terrorism” (“Overseas Contingency Operations”) as an instrument of national or international policy. While Plaintiff and undersigned counsel are both quite aware that a Judge’s rulings on legal questions, without more, will ALMOST never constitute grounds for recusal, Plaintiff submits that Judge LAND’s manner of precipitous, hasting, unreflective rulings within mere hours of filing, and his rulings on one particular issue, that of the Plaintiff’s lack of STANDING (without addressing any of the actual text of the Plaintiff’s complaint, and in fact, obviously misunderstanding it) produces a result so bizarre as to flunk the “reasonable jurist” standard, and therefore constitutes grounds for recusal under 28 U.S.C.§455(a) on the grounds of appearance of impropriety, unwillingness to decide a case fairly in regard to this particular issue, litigant, or perhaps even Plaintiff’s attorney. The United States Supreme Court has characterized the inquiry whether a rule stated by the court in a case is new as an inquiry whether reasonable jurists could disagree as to whether a result is dictated by precedent, the standard for determining when a case establishes a new rule is objective; for such purposes, the mere existence of conflicting authority does not necessarily mean a rule is new. Williams v. Taylor, 529 U.S. 362; 120 S.Ct.1495; 146 L.Ed.2d 389 (2000). Judge LAND fails the “reasonable jurist” test in his immediate denial of the Plaintiff’s Application for the TRO just as surely as he failed that same test in connection with the question of standing, and it is plain that BOTH failures resulted from the Judge’s refusal to consider the Plaintiff’s documents filed as a whole, in that the Judge did not even recognize the numerous issues listed and raised in both the TRO aside from the (by evasive governmental action) issue of ephemeral orders, issued one day and revoked the next, but always with the exact same constitutionally infirm “chain of command.” SUMMARY AND CONCLUSIONS Judge LAND dismissed Captain Rhodes’s Application for Temporary Restraining Order and Complaint for Declaratory Judgment and Injunctive relief. Now he finds that the Complaint was frivolous because it had significant political overtones and that the undersigned counsel should be sanctioned in the amount of $10,000.00 as a penalty for her misconduct. Judge Land’s Order to Show cause amounts to a threat of prosecution for criminal contempt on charges of filing suit regarding a matter fraught with political significance and controversy. Unless he is recused, Judge Land will act as Complaining Witness, Prosecutor, Judge, and Jury of his own punitive quest to suppress the undersigned attorney in the exercise of her fundamental First Amendment rights to petition. There is simply NO element of Rule 11 of the Federal Rules of Civil Procedure, which prohibits any party or attorney from bringing politically sensitive cases to Court, even those with potentially radical political consequences. In fact, any case regarding separation of powers or the enforcement of any and all provisions of the Constitution is fraught with political controversies and implications which cannot and should not be avoided. Plaintiff’s Complaint, which is/was not primarily focused on a resolution of the eligibility of President Barack Obama, but on the status of the Army and its officers under constitutional oath “to protect against all enemies, foreign and domestic”, was well-grounded in law or in a good faith effort to modify, extend, or reverse existing law, and to establish new law. The undersigned attorney submits that any impartial and dispassionate magistrate will so judge her work, and she requests the immediate recusal of Judge Land as her sole adequate remedy. WHEREFORE, the undersigned counsel prays that this Court should PROCEED NO Pursuant to 28 U.S.C. §144, no further action in this case may be taken without further decision by the Chief Judge of the Middle District of Georgia with regard to the appointment of an independent judicial review of Judge CLAY D. LAND’s management and the character of his disposition of issues in this case. Such an independent review is required as consistent with due process of law and the reasonable perception of impartiality or bias in Judge LAND’s course of conduct and disposition of all aspects of Captain Connie Rhodes’ complex litigation which had been filed against the United States Department of Defense and others in the executive branch for the purpose of verifying the Constitutional validity of the chain of command and the procedural means by which an officer may uphold his oath of office and statutory duty to uphold the Constitution of the United States and to obey ONLY lawful orders. These are not matters on which a reasonable jurist should wish to abstain or leave to the military courts. In sum, Judge Land has shown pervasive bias of an extrajudicial origin. Judge Land may have conflicts of interest, which disqualified from hearing this case. Judge Land, as a complaining witness, cannot possibly preside over the punitive contempt proceedings, which he himself has initiated against the undersigned because he cannot possibly provide the full panoply of procedural safeguards to which the undersigned is plainly entitled due to the severity and circumstances of the Order to Show Cause and potential sanctions. Respectfully submitted, Exhibit A: ATTORNEY’S CERTIFICATE OF GOOD FAITH I, Orly Taitz, am an attorney licensed to practice law in the State of California, before the Supreme Court of the United States, and other Federal District Courts. I am in the process of seeking admission pro hac vice in the United States District Court for the Middle District of Georgia. I was the attorney for the Plaintiff in this case, Captain Connie Rhodes, and I have reviewed the law and the circumstances underlying Judge Clay D. Land’s conduct in connection with this cause. I agree that a reasonable person would be likely, if not almost certain, to conclude that Judge Clay D. Land’s rapid, in fact “lightening like”, disposition of this case was a result of preconceived, extrajudicial notions and pervasive bias based either on politics or on some other external factor having nothing to do with Captain Rhodes’s Complaint, Application(s) for Temporary Restraining Order, and Motion to Reinstate the same, because nothing in Judge Land’s orders that the Honorable Judge even read the first page of any of these documents, much less the prayer(s) for relief. For these reasons I certify, as counsel appearing on my own behalf in propia persona, that this Motion to Recuse and Affidavit in support thereof are both submitted in good faith. The Plaintiff’s Motions are certainly and surely not submitted for purposes of delay, because nothing could be faster, nor anything more unreasonable and “injudicious” than Judge CLAY D. LAND’s complete suppression of Captain Rhodes’s complaint and the majority of her issues, effectively by slamming the courthouse door in my and my client’s face. Captain Rhodes’s case was and is well-grounded in law and facts, and his allegations are by no means concerned exclusively, merely, or simply with the birth records of de facto President Obama, but in fact stand as a challenge to the United States Army regarding the procedures for verification of the lawful and constitutional status of orders issued, and the relationship between an officer’s obligation to obey “lawful” orders and his duty to preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic. I believe and submit that Judge Clay D. Land’s handling of this case appears to me, as an officer of the court, to be politically motivated rather than legally justifiable, and for that reason I am submitting and advancing my present Motion to Recuse this Judge Pursuant both to 28 U.S.C. §144 and 28 U.S.C.§455(a). I have executed, made, and signed this Certificate of Good Faith as a Declaration under Penalty of Perjury, as allowed by 28 U.S.C. §1746, and I do accordingly certify, verify, and state under penalty of perjury that the foregoing Certificate of Good Faith is true and correct. Done on Friday, October 2, 2009, in Rancho Santa Margarita, Orange County, California. /s/ Orly Taitz, Esq. Orly Taitz, Esq CERTIFICATE OF SERVICE Colonel Thomas D. MacDonald Col. Louis B. Wingate Dr. Robert M. Gates, Secretary of Defense, by and through the Pentagon: MAJOR REBECCA E. AUSPRUNG President Barack Hussein Obama, And also at: A. Brian Albritton           |
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