A “judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned.” See Tex. R. Civ. P. 18b(2).
The facts demonstrate that Judge Skipper Koetter’s impartiality was reasonably questionable.
1. Before the July 15, 2010 hearing, without any probable cause, without a warrant for arrest, and against LIS PENDENS law for two alleged crimes Chen didn’t commit, ADA Shannon Salyer and Sheriff B.B. Browning had Chen handcuffed, falsely arrested, and wrongfully imprisoned for 34 days prohibiting him from accessing any legal files to prepare for the hearing.
3. Because of Chen’s affirmative defense with 87+ controlling Texas precedents on the ABSOLUTE PRIVILEGE enjoyed by the filers of NOTICES OF LIS PENDENS, the two criminal charges were eventually dismissed without any hearing after a two-year delay and at a cost of $15,000 attorney’s fees and substantial tangible and intangible losses. Thus, Chen, in response to the DA’s settlement proposal, demanded $75 million of damages, payable in 75 years to a charity of Chen’s choice. The demand is pending in the Section 1983 action. See “Absolute Privilege of Filing Notices of Lis Pendens v. Texas Penal Code – Section 32.49. Refusal To Execute Release Of Fraudulent Lien Or Claim” October 5, 2012.
4. Allowing Chen 4 business days to subpoena the potential witnesses, who evaded process services, and little time to prepare for his affirmative defenses, Judge Koetter violated Chen’s due process right under the 14th Amendment and Open Courts Doctrine under the Texas Constitution.
5. On July 15, 2010, the hearing began at 9 a.m., and ended at 10:00 a.m. in the Notices of Lis Pendens case.
6. After the hearing, Judge Koetter called Roberts and the Plaintiffs’ attorneys to the bench excluding Chen from the post-hearing ex parte exchanges, and signed a type-written document, the purported Findings of Fact and Conclusions of Law, prepared by the Plaintiffs’ attorneys before the hearing without changing a word despite Chen’s argument that the court was without subject matter jurisdiction, which should have necessitated him to require that Plaintiffs carry the burden of proving the court’s jurisdiction, power and authority to hear and determine the case. Otherwise, the only alternative was to stop the hearing and dismiss the case. See Judge Skipper Koetter: You are constitutionally disqualified! July 19, 2014.
7. The proposed order/judgment was entered at 10:07 a.m. without allowing Chen to participate in the post-hearing conference, to review the proposed order/judgment, and to respond to it.
8. Within ten days, Chen filed a Motion for Reconsideration, which was flatly denied by Judge Koetter without giving any reason.
9. If there had been a rehearing, Chen would have presented the 87+ controlling precedents on Notices of Lis Pendens (See 3. above) to defeat the purported Findings of Fact and Conclusions of Law, which was not only in contravention of the guiding rules and principles but also arbitrary, capricious, and unreasonable.
A Judgment Violating a Citizen’s Right to Due Process is Void.
The proceedings depicted above evidently violated Chen’s due process right. Therefore, it is VOID ab initio because “A judgment issued from a proceeding that violates a citizen’s right to due process is void.” State v. Rehbein, 235 Neb. 536, 455 N.W.2d 821 (1990); State v. Von Dorn, 234 Neb. 93, 449 N.W.2d 530 (1989); State v. Ewert, 194 Neb. 203, 230 N.W.2d 609 (1975); In re Application of Maher, North v. Dorrance, 144 Neb. 484, 13 N.W.2d 653 (1944); In re Betts, 36 Neb. 282, 54 N.W. 524 (1893).
The requirements of due process not only include notice, but also include an opportunity to be heard in a meaningful way, and judicial review. Grannis v. Ordean, 234 U.S. 385, 394 (1914).
I have been fighting for justice and for fairness and freedom of speech for the past ten years. Fairness and justice should be the base of your rulings, your honor.
Scale of justice and fairness in the court of law.
These men ask for just the same thing, fairness, and fairness only. This, so far as in my power, they, and all others, shall have. — Abraham Lincoln
Fairness is what justice really is. — Potter Stewart
I’m a lawyer. I go for due process; I go for fairness and equity – these values mean a lot to me. — Mohamed ElBaradei — I believe there are many good judges and attorneys like you out there, Mohamed. I am just focusing on the bad apples only!
Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994, 158 F.R.D. 278.
A void judgment may be set aside at any time and in any proceeding. VonSeggern v. Willman, 244 Neb. 565, 508 N.W.2d 261 (1993); Marshall v. Marshall, 240 Neb. 322, 482 N.W.2d 1 (1992); State v. Ewert; Ehlers v. Grove, 147 Neb. 704, 24 N.W.2d 866 (1946); Hayes County v. Wileman, 82 Neb. 669, 118 N.W. 478 (1908).
Judge Koetter has an “affirmative obligation” to assure Chen “meaningful access to the courts.” — Any reasonable person can see that the 7/15/2010 court appearance cannot qualify for “meaningful access to the court.”
In Johnson v. Avery the Supreme Court held that prisoners’ access to the courts “may not be denied or obstructed.” 7 393U.S.483, 485 (1969). Neither may this indigent pro se Plaintiff’s access to the courts be denied or obstructed.
In Bounds v. Smith the Court held that prison authorities have an “affirmative obligation[ ]” to assure prisoners “meaningful access to the courts.” 430U.S. at 824. Here, Judge Koetter has an “affirmative obligation” to assure this indigent pro se litigant “meaningful access to the courts.”
Even the most dedicated trial judges are bound to overlook meritorious cases without the benefit of an adversary presentation. Bounds v. Smith 430 U.S.at 825–26.
In this case, unless proof of liability and damages are determined in an adversary proceeding with full opportunity to Plaintiff to participate, an action on a judgment obtained against Plaintiff is to be precluded. “No judge can conceive of Plaintiff being held liable on a judgment rendered in a case in which he did not participate fully and as an adversary.” See Grundy County v. Dyer, 546 S.W.2d 577.
Prohibited ex parte communications undermine the public’s confidence in our judicial system and thwart due process rights.
The ex parte communications between Judge Koetter, Roberts and Plaintiffs’ attorneys excluding Chen from all such communications demonstrate a violation of Canon 3B(8), and manifest impartiality against Chen in this case.
“Our adversarial system of justice, grounded in the principle of an impartial judiciary, becomes compromised when one-sided, closed-door, in-chambers discussions with trial judges are encouraged.” In re S.A.G., 403 S.W.3d 907, 914 (Tex. App.—Texarkana 2013, pet. filed). For this reason, all attorneys are prohibited from engaging in ex parte communications, and judges “shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party [or] an attorney . . . concerning the merits of a pending or impending judicial proceeding.” Tex. Code Jud. Conduct, Canon 3(B)(8), reprinted in TEX. GOV’T CODE, tit. 2, subtit. G, app. B; see Tex. Disciplinary Rules Prof’l Conduct R. 3.05, reprinted in TEX. GOV’T CODE, tit. 2, subtit. G, app. A (West 2013). Our justice system’s prohibition of ex parte communications is purposeful. In re S.A.G., 403 S.W.3d at 914.
Private adjudications fly in the face of our judicial system’s abiding commitment to providing public access to civil and criminal proceedings and records. Our form of government is rooted in a recognition of the importance of open and public proceedings. Subjecting judicial proceedings to public scrutiny accomplishes two important goals. First, it provides the public with an opportunity to exercise its right to monitor and evaluate its judicial system. Second, and equally important, a judge’s knowledge that his or her actions are not shrouded in secrecy fosters a stronger commitment to strict conscientiousness in the performance of judicial duties. Our courts have recognized that secret tribunals exhibit abuses that are absent when the public has access to judicial proceedings and records. The judiciary has no special privilege to suppress or conduct in private proceedings involving the adjudication of causes before it. In fact, such secrecy frustrates the judiciary’s responsibility to promote and provide fair and equal treatment to all parties. Individual judges are charged with the task of adjudicating claims in a manner that protects the rights of both parties. A judge’s private communications with either party undermine the public’s right to evaluate whether justice is being done and removes an important incentive to the efficient resolution of cases. In re Thomas, 873 S.W.2d 477, 496-97 (Tex. Rev. Trib. 1994) (citations omitted).
For these reasons, the Texas Supreme Court strives for judicial transparency in our legal system. In re Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009). “Ex parte communications do not promote that transparency,” In re S.A.G., 403 S.W.3d at 914, and in a case such as this, where Chen suffered financial loss of $34,999,640.91 evidenced from the Creditors Matrix in Case Number: 96-24925 as of 11/25/1996, as a result of the wrongful foreclosure by the crooked couple, Anita L. Koop and Terry J. Cox. To ensure a fair trial for Chen’s $75 million damages claim, private communications cannot be tolerated. To suggest otherwise would undermine the integrity of courts, breed skepticism and distrust, and thwart principles on which our judicial system is based. See Matter of J.B.K., 931 S.W.2d 581, 584 (Tex. App.—El Paso, 1996) (citing In re Thomas, 873 S.W.2d at 496).
Ex parte communications call into question a court’s impartiality.
When a judge engages in ex parte communications, his impartiality is subject to question. The preamble to the Texas Code of Judicial Conduct Provides:
Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code of Judicial Conduct are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.
Tex. Code Jud. Conduct, Preamble. Canons 1 and 2 establish a high standard of conduct for judges in order to promote the integrity of the judiciary and require judges to comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Tex. Code Jud. Conduct, Cannon 1, 2(A).
Texas Rule of Civil Procedure 18b(b)(1) protects the integrity and impartiality of the judiciary by requiring a judge to recuse in any proceeding where “the judge’s impartiality might reasonably be questioned.” “The standard is ‘whether an objective, fully informed lay observer would entertain significant doubt about the judge’s impartiality.’” In re Walker, 532 F.3d 1304, (11th Cir. 2008) (citing 28 U.S.C. § 144, 455(a) (judge’s “impartiality might be reasonably questioned) and Christo v. Padgett, 233 F.3d 1324, 1333 (11th Cir. 2000)). The judge’s intentions or motivations for engaging in the ex parte communications are irrelevant to the inquiry; rather, the inquiry is an objective one which asks whether the judge’s exchange of ex parte communications with Plaintiffs’ counsel would raise in the mind of a fully informed lay observer questions regarding his impartiality. The answer to that question here can only be “yes.” The Judge’s conduct in this case demonstrates that “the judge’s impartiality might reasonably be questioned.”
The judge’s appearance of impartiality is undoubtedly questionable in view of the trial by ambush, the $5,900.10 bribe, reward, or gift under the guise of campaign contributions, the obvious spoken/body language of partiality and favoritism, and the private meeting after the hearing without Chen’s participation constituted improper ex parte communications and willful or persistent violations of Canon 3(B)(8).
The ex parte communications between Judge Koetter, Roberts and Plaintiffs’ attorneys affected Judge Koetter’s direct pecuniary, personal interest in the case’s outcome in that he was named one of the Defendants in Chen’s Section 1983 civil rights action together with Judge Williams. The public admonition against Judge Koetter tells us all about his willful or persistent violations of Canon 3B(8). See e.g. COMM. ON JUD. CONDUCT, CJC No. 12-0846-DI (the matter of the Honorable Juergen (Skipper) Koetter (issuing a public admonition against the judge based on violation of Canon 3B(8) prohibiting ex parte communications on contested matters pending before the court.
Not only did this exchange create the potential for abuse, it was patently unfair to Chen, who was excluded from the ongoing colloquy between Roberts/Plaintiffs’ attorneys and the judge and had no “ample opportunity” to argue for or against the findings. See In re Colony Square Co., 819 F.2d 272, 275 (11th Cir. 1987); see also In re Walker, 532 F.3d at 1311 (“When an interested party is permitted to draft a judicial order without response by or notice to the opposing side, the temptation to overreach and exaggerate is overwhelming.”).
The exchanges, on their face, would cause any fully-informed lay person to at least question the judge’s impartiality.
Hey, counselor! Your cash should be concealed!
Don’t let your opponents see the greenbacks, OK?
Harm is presumed here, and given the nature of the ex parte communications, that presumption cannot be rebutted.
No showing of harm from the judge’s lack of impartiality is required; it is presumed. TEX. R. CIV. P. 18 (no express requirement of harm); Tex. R. Civ. P. 327 (expressly requires showing of harm arising from jury misconduct); see Remmer v. United States, 347 U.S. 227, 230 (1954) (in criminal matter, private communication, direct or indirect, with juror after the beginning of trial is deemed presumptively prejudicial, if not made with full knowledge of all parties and pursuant to court order or rule). As one state court has noted:
[A] prejudice standard is not always appropriate. There are certain attorney-juror contacts which happen during trial, “which if permitted to stand would shake the confidence of laymen in the fairness of judicial proceedings.” In such circumstances we must find reversible error regardless of a showing of actual prejudice. In cases of such gross impropriety, our concern is not with the contact’s potential influence on a discrete verdict; rather we seek to protect against the “confidence-shaking effect upon future cases, which would result from appellate disregard of such events.” Colosimo v. Pennsylvania Elec. Co., 486 A.2d 1378, 1381, 337 Pa.Super 363, 369 (1984)(citations omitted).
Here, the recusal rule does not require a showing of harm. Certainly, the Texas Supreme Court could have included such a requirement in the rule, but it chose not to, presumably because the appearance of impartiality is so important to the public’s confidence in the legal system. Moreover, communications such as those at issue here shake the confidence of any layman in the fairness of the process. The appearance of impropriety alone is sufficient to warrant recusal.
Because the judge is the fact finder, serving in the capacity as a jury otherwise would, the presumption of prejudice when jurors and either counsel or the judge confer ex parte should apply to the communications here. See State v. Washington, 626 So.2d 841 (La.App. 2d Cir.1993); State v. Bates, 508 So.2d 1346 (La.1987) (per curiam).
The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Comm.App.1939, opinion adopted). Another way of stating the test is whether the act was arbitrary or unreasonable. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1982); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970).
To determine the trial judge’s guiding rules and principles in rendering an ORDER OF DIMISSAL, the Court must look to Texas Rules of Civil Procedure as promulgated and amended by the Texas Supreme Court as well as the decisions of appellate courts of this State and of the United States.
Under these particular facts, and with the inherent risk to the propriety of judgments when a court and one side to the litigation work toward a certain result, a court considering a recusal motion must assume prejudice.
Even in those cases where courts have reviewed whether questions regarding a judge’s impartiality affected the litigation’s outcome, they have only required the complaining party to show “probable prejudice.” Silcott v. Oglesby, 721 S.W.3d 290, 293 (Tex. 1987); Pitt v. Bradford Farms, 843 S.W.2d 705, 708 (Tex. App—Corpus Christi 1992, no pet.)(citing Andrews v. Dewberry, 242 S.W.2d 685, 690 (Tex. Civ. App.—Fort Worth 1951, writ ref’d n.r.e.).
The communications here clearly involved the merits of the litigation before the judge. Tex. Code Jud. Conduct, Cannon 3(B)(8). Moreover, they involve fewer than all the parties legally entitled to be present, and merits decision was dependent on ex parte communications. See In the Interest of T.D.M.C., No. 12-03-00300-CV, 2005 WL 1000578, *4 (Tex. App.—Tyler, April 29, 2005, no pet.)
Litigants are not only entitled to a fair-minded judge but also to a judge with the unquestioned appearance of fairness. Rule 18(b) provides that recusal is mandatory in any proceeding in which the judge’s impartiality might reasonably be questioned. In Aguilar v. Anderson, 855 SW2d 799 (Tex. App. – El Paso, 1993, denied), Chief Justice Max Osborn supported the adoption of the Kansas Supreme Court rule affecting questionable impartiality of a judge, that is, whether a reasonable person on the street, with adequate knowledge of the facts would question the judge’s impartiality. The Texas Supreme Court cited that concurrence in Rogers v. Bradley, 909 SW2d 872 (Tex. 1995), stating that courts should evaluate a motion to recuse from a disinterested observer’s point of view.
Recusal is appropriate if a reasonable person, knowing all the circumstances, would harbor doubts as to the judge’s impartiality, Rosas v. State, 76 SW3d 771 (Tex. App. – Houston [1st Dist.] 2002, no writ).
The U.S. Supreme Court opinion held that the common law rule of recusal due to pecuniary interest implicates due process when the circumstances present a temptation to the judge to decide the case on a basis other than a fair and impartial evaluation. Actual bias is not the test and need not be established.
Due process requires recusal if there is a serious risk of actual bias when the one with a personal stake in the outcome of the case had “a significant and disproportionate” influence in placing the judge on the case.
Texas law has long been that a judge is neither disqualified nor subject to recusal because of campaign contributions, Rocha v. Ahmad, 662 SW2d 77 (Tex. Ap. – San Antonio 1983, no writ) and Degarmo v. State, 922 SW2d 256 (Tex. App. – Houston [14th District] 1996, Ref.) and the Massey case does hold that not every campaign contribution by a litigant or an attorney would necessitate recusal unless the circumstances rise to an unconstitutional probability of bias. Judge Koetter’s repeated violations of Canon 3B(8), prohibiting ex parte communications on contested matters pending before the court, rose to an unconstitutional probability of bias necessitating recusal .
In determining whether to recuse a judge, the inquiry should be whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge’s conduct, would have a reasonable doubt that the judge is actually impartial. See Sears v. Olivarez, 28 S.W. 3d 611, 613-614 (Tex. App. Corpus Christi 2000). See, e.g., Williams, 65 S.W. 3d at 687; Ludlow v. DeBerry, 959 S.W. 2d 265, 281 (Tex. App. Houston 1997), Aguilar v. Anderson, 855 S.W.2d 799, 804-805 (Tex. App. El Paso 1993) (Osborn, C.J., concurring), Woodruff v. Wright, 51 S.W. 3d 727, 736 (Tex. App. Texarkana 2001).
The statutory language mandates recusal whenever impartiality “might reasonably be questioned.” Tex. R. C. P. 18(b)(2)(a). There is no requirement that partiality be demonstrated. Rather, the “appearance” of impropriety is sufficient to trigger recusal. See Woodruff, 51 S.W. 3d at 738. The “trial court’s duty [is] to determine whether the movant [has] provided facts sufficient to establish that a reasonable member of the public at large, knowing all the facts involved in the public domain concerning the judge’s conduct, would have a reasonable doubt that the judge is actually impartial.” Richardson v. State, 83 S.W. 3d 332, 358 (Tex. App. Corpus Christi 2002). See also, Degarmo v. State, 922 S.W. 2d 256, 267 (Tex. App. Houston Dist. 1996) (determining that the issue is whether the movant has provided facts sufficient to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts about the impartiality of the trial judge). 2 The appearance of impartiality standard is by no means unique to the Texas courts. See, e.g., Ham v. State, 540 So. 2d 805, 807-808 (Ala. Crim. App. 1988) (no reasonable basis to question judge’s impartiality); Giralt v. Vail Village Inn Assoc., 759 P.2d 801, 804 (Colo. App. 1988) (court must eliminate every semblance of reasonable doubt as to its impartiality); LaBow v. LaBow, 13 Conn. App. 330, 334 537 A. 2d 157, 161 (Conn. App. 1988) (controlling standard is whether reasonable person who is aware of all circumstances would question impartiality); Scott v. United States, 559 A. 2d 745, 754 (D.C. App. 1989) (appearance of partiality is sufficient); Weber v. State, 547 A. 2d 948, 952 (Del. Super 1988) (disqualification required when impartiality might reasonably be questioned); Love v. State, 569 So. 2d 807, 810 (Fla. App. 1990) (ex parte communications violates appearance of impartiality); Isaacs v. State, 257 Ga. 126, 355 S.E. 2d 644 (Ga. 1987) (fact that judge’s impartiality may reasonably be questioned is sufficient for disqualification); People v. DelVecchio, 129 Ill. 2d 265, 275, 544 N.E. 2d 312, 317, 135 Ill. Dec. 816, 821 (Ill. App. 1989) (guiding principle is whether the average person, acting as judge, could not hold nice, clear, and true balance between the State and the accused); State v. Strayer, 242 Kan. 618, 625-626, 750 P. 2d 390, 396 (Kan. 1988) (question whether facts create a reasonable doubt not in judge’s or litigant’s mind but in mind of a reasonable person with knowledge of all the facts); Pierce v. Charity Hosp. of Louisiana at New Orleans, 550 So. 2d 211, 215 (La. App. 1989) (facts must show that observer could reasonably perceive that court was biased); Boyd v. State, 321 Md. 69, 86, 581 A. 2d 1, 9, (Md. 1990) (test is whether reasonable person knowing and understanding all the facts would recuse judge); Olson v. Olson, 392 N.W. 2d 338, 341 (Minn. App. 1986) (where circumstances give bona fide appearance of bias judge should recuse); Rutland v. Pridgen, 493 So. 2d 952, 954 (Miss. 1986) (recusal warranted if reasonable person would harbor doubts about impartiality); Commonwealth v. Lemanski, 365 Pa. Super. 332, 339, 529 A. 2d 1085, 1088 (Pa. Super. 1987) (recusal is required whenever there is substantial doubt as to a jurist’s ability to preside impartially); State v. Neeley, 748 P. 2d 1091, 1094 (Utah 1988) (a judge should recuse himself when his “impartiality” might reasonably be questioned) ; State v. Brown, 177 W. Va. 633, 641, 355 S.E. 2d 614, 622 (W. Va. 1987) (where a challenge to a judge’s impartiality is made for substantial reasons which indicate that the circumstances offer a possible temptation as to the average man as a judge not to hold the balance nice, clear and true between the State and the accused, a judge should recuse himself).
TO BE CONTINUED.
Paul Chen
MANDAMUS: VOID Orders/Judgments 