Here the cult moves to recuse Judge Weissbrodt from the Henson
He's a religious bigot: He thinks Keith Henson has rights.
Read it and weep at the pervasive, perverse and pernicious mendacity
of this sick, twisted cult and its repulsive criminal counsel.
To Debtor H. Keith Henson and his attorney of record:
PLEASE TAKE NOTICE that on May 3, 2001 at 3:00 p.m., before the
Honorable Arthur S. Weissbrodt, United States Bankruptcy Judge, in his
courtroom located at the United States Courthouse and Federal
Building, 280 S. First Street, San Jose, California, creditor
Religious Technology Center ("RTC") will move and it does hereby move,
pursuant to 28 U.S.C. §455(a), for the disqualification of Bankruptcy
Judge Arthur S. Weissbrodt on the grounds that the court has: (1)
engaged in numerous acts creating an appearance that the court is not
impartial, but rather is biased against RTC and has prejudged this
cause against RTC and in favor of Henson; and (2) improperly intruded
into the. area of settlement. The grounds for this motion are as more
specifically set forth below.
It is a fundamental precept of our legal system that "any tribunal
permitted by law to try cases and controversies not only must be
unbiased but also must avoid even the appearance of bias."
Commonwealth Coatings Corp. v. Casualty Co., 393 U.S. 145, 150, 189
S.Ct. 337, 339, 21 L.Ed. 2d 301 (1968). See also, 28 U.S.C. §455(a).
The assigned judge here has not only failed to provide these
assurances but, to the contrary, has demonstrated his evident
partiality. Indeed, to say that there is a § 455(a) appearance of
partiality here does not begin to do justice to the improper conduct
committed by this court which, even standing alone, mandates
disqualification. Accordingly, RTC is left with no choice but to move
for disqualification of the assigned judge pursuant to 28 U.S.C.
§455(a) particularly in view of the court's recent conduct which is
not only inappropriate for any judicial officer, but which also
violates several provisions of the ABA Code of Judicial Conduct. Taken
in totality, the assigned judge's conduct and his demonstrable animus
against RTC create, when viewed objectively, more than sufficient
basis to reasonably question his impartiality.
Numerous indications that the court lacks impartiality have recently
culminated in the court's injecting itself, uninvited, into the
settlement process, sua sponte prejudging the case, and gratuitously
suggesting, as supposedly fair, a $10,000 settlement on the creditor's
claim ofhundreds of thousands of dollars! ,In the course of doing so,
the court has collaterally attacked a valid jury verdict awarding RTC
damages for Henson's willful copyright infringement, thereby
denigrating the process of law and the judgment obtained under it, and
demeaning the fundamental right not to publish one's copyrighted
works. The court, apparently prejudiced by extra-judicial notions of
what a religion is and how it should behave, has also demeaned the
Scientology religion and questioned the "economic" value of its
religious scripture. In taking these actions, the court has belittled
the significant reasons why RTC has pursued this case namely the
importance to RTC of deterring not only Henson, but also other
like-minded individuals - from unauthorized reproduction and
distribution of RTC's copyrighted, unpublished religious scriptures,
which was a major reason the jury awarded RTC $75,000.
Each of these reasons separately requires disqualification. Taken
together, they mandate that result even more. This conclusion is
further augmented by the fact that this court has also:
1. demanded to know the amount RTC is paying its attorneys and
chastised RTC because it appears to be spending more in legal fees
than the amount of its claim;
2. criticized RTC's choice regarding the number of its attorneys;
3. treated the parties unequally based upon improper factors,
such as the number of attorneys representing RTC;
4. based rulings on the legally insufficient - and unfounded -
argument that RTC is "bad" and has prejudged that issue; and
5. openly favored Henson based on what the court mischaracterizes
as his "advanced age."
In the presence of all these factors, there can be little question
that immediate disqualification is mandated.
RTC's claim against Henson in these proceedings has. sometimes been erroneously described as $75,000, only the amount of the jury award in the copyright infringement case. RTC's claim, however, also includes the costs taxed in the District Court, its costs on Henson's unsuccessful appeals, and the attorney fees awarded and to be awarded by Judge Whyte for the proceedings in the District Court under the Copyright Act. In all, RTC's claim in bankruptcy is several hundred thousand dollars. [end FN] The Parties The court has characterized Henson as "a relatively elderly person who may or may not have a little bit of equity in his house" (Ex. 1, at 28) and has referred to RTC as "an organization that represents itself as a church." (Ex. 2, at 39.) To fully understand the impropriety of the court's remarks and prejudices, it is important to set the record straight as to who the parties actually are. RTC is a tax-exempt, not-for-profit religious corporation affiliated with the Scientology religion. It owns, through exclusive license, the copyrights on the unpublished works of L. Ron Hubbard, founder of the Scientology religion, who has mandated that they remain unpublished and explicitly entrusted RTC with their protection. These works are Scientology religious scripture and as ecclesiastically important to that religion and its parishioners as the Torah is to Jews or the Koran to Muslims or the New Testament to Christians. Henson has been a successful, self-employed, Silicon Valley computer consultant,2 who lives in a six hundred thousand dollar house in Palo Alto, which he purchased for $322,500. Although neither he nor anyone, he knows has ever been a Scientologist (Ex. 3, at 16-17), Henson, who is far from infirm, admittedly revels in attacking Scientology because it is fun, it is entertaining, and it garners him recognition and stature among the cadre of virulent antiScientologists who frequent the Internet news group Alternate Religion Scientology ("ARS"). (1d., at 63-64.) Thus, as Henson has boasted, he and his fellow anti-Scientologists have a rating system under which the more trouble and expense one causes the Scientology religion, the greater the individual's rating and stature in his peer group. (Id., at 94-97, 132).3 All of this [FNs] 2 Henson's tax returns reflect that he earned $132,540 in 1996 and $88,755 in 1997. (Exs. 4, 5.) 3 When not amusing himself with attacks on Scientology, _Henson finds his entertainment: in making bombs and teaching children how to do so, (Exs. 6 and 7), reveling in the 15 minutes of fame his skill with explosives has brought him via an account of his exploits in a book entitled "The Great Mambo Chicken" (see excerpts; Ex. 7); in suing the FBI (Ex. 8); in suing the IRS to compel it to revoke the §501(c)(3) tax exempt status of Scientology churches (Ex. 9); (continued...) .. . continued) in making threats (or perhaps bad "jokes") about placing bombs on commercial airliners (Ex. 10); participating in writing poetry about his exploits in decapitating corpses for purposes of cryogenic preservation and in proudly reciting his poetry to the copyright infringement jury (Ex. 11, at 173-175, 440); and, with his cohorts, in using a GPS device to map the coordinates of Scientology buildings and posting them to the Internet along with his suggestions for a vector one could use to destroy them with a missile (Ex. 12), conduct for which he is scheduled to stand trial in the Criminal Court of Riverside County on April 16, 2001 on three counts under the California Anti-Terrorism Act. Penal Code §422. In short, Henson is a sociopath, but a very smart one, who has learned how to exploit and misuse the legal system for his personal amusement. His intolerance for the First Amendment religious freedom rights of others is matched only by the utter contempt he has for the rule of law, as plainly evident from his offensive conduct before the Honorable Ronald M. Whyte which, inter alia, caused that Judge to adjudicate Henson in contempt. (Ex. 13.) [end FN] information was before the copyright jury and resulted in the $75,000 verdict that Henson seeks to avoid paying, as addressed below. Argument A. Standards for Recusal 28 U.S.C. § 455(a) provides that "any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The standard for disqualification under Section 455(a) is an objective one, determined by what a reasonable person knowing all the relevant facts would think about the impartiality of the judge, rather than what the judge estimates to be his or her own ability to impartially hear a case. Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 1153-1154, 127 L.Ed.2d 474 (1994); United States v. Conforte, 624 F.2d 869, 881 (9th Cir.), cent. denied, 449 U.S.- 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). A judge must recuse himself when, viewed objectively, the judge appears to have such a pervasive favoritism towards one party, or bias or prejudice against another party, as to make fair judgment in the case impossible. Liteky, 510 U.S. at 549-55, 114 S.Ct. at 1154-57. The ABA Code of Judicial Conduct (the "Code") contains an identical provision, requiring that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." The Code also sets forth the following Canons of
proper judicial conduct applicable to this case: • Canon 1: An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective. • Canon 2(A): A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. • Canon 3(B)(2): A judge shall be faithful to the law and maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor or fear of criticism. • Canon 3(B)(5): A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status . . . This court has not only itself provided the evidence of its lack of impartiality, warranting disqualification under §455(a), displayed through its pervasive favoritism towards Henson and naked prejudice against RTC, but has also committed trespasses on these Canons in the process. B. Grounds for Recusal Following are some examples of the evidence of this court's patent bias against and animus towards RTC, which provide more than adequate grounds to reasonably question this court's impartiality and ability to render judgment fairly in this case. 1. Intrudint! into Settlement and Prejudging the Case This judicial district is assiduous in avoiding any possible appearance of bias when it comes to settlement. Judges assigned to a case in this district will not even get involved in settlement issues. That is exactly what happened here - Judge Whyte sent Henson and RTC to a separate settlement judge to explore settlement. This court, however, openly dishonored the district's strict practice of not getting involved in settlement when it gratuitously raised settlement, and worse, went so far as to put a dollar amount of $10,000 on the table, loudly broadcasting it as the amount it believes RTC's claims are worth. It is inconceivable that the court could impartially try this case now, when it has already prejudged RTC's claims as worth only $10,000. If the court believes a fair settlement would be a $10,000 payment on an uncontested claim of hundreds of thousands of dollars, it is a near certainty that the court's ultimate finding after trial in this case will somehow reflect at most this $10,000 value. Canon 2 requires that "[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." As the commentary to Canon 2 states, "[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired." At the very least, the court has raised serious questions as to its ability to try this case fairly, in violation of Canon 2. In the 100+ years of collective experience of RTC's attorneys, no sitting judge of this Judicial District would do what this court has done and assuming arguendo that one had, no judge of this District or of any judicial district in the country would continue to preside over this case. Rather, they would step aside on their own. The fact that this court has refused to do so and has obliged RTC to file this motion itself speaks volumes to the issue at bar. As the Eighth Circuit Court of Appeals has held, "the judge should avoid recommending an actual settlement figure before or during trial," because grave questions will be raised regarding the judge's ability to try the case fairly, and litigants may justifiably feel that their right to a fair trial has been eroded. These concerns are particularly acute in the case of a bench trial, where, as here, the judge acts as the factfinder as well. United States v. Pfizer, Inc. 560 F.2d 319, 322-23 (8th Cir.1977) (finding that the district court abused its discretion in granting a motion for a bench trial where the court had already "participated in settlement negotiations to an extraordinary degree ... [and had] express [ed] strong opinions on the merits of the case ...," because `(i)t is important that a litigant not only actually receive justice, but that he believe he has received justice"') (citation omitted). The Honorable Stephen Stripp, U.S. Bankruptcy Judge for the District of New Jersey, in his article An Analysis of the Role of the Bankruptcy Judge and the Use of Judicial Time, 23 Seton Hall L. Rev. 1329, 1393 n.147 (1993) has also stated that concerns regarding a bankruptcy judge's impartiality resulting from his involvement in settlement discussions are "especially justified in cases in which the judge is the trier of fact." RTC's concerns regarding this court's impartiality are more than justified in this case, where this court, who will be acting as factfinder at the bench trial, has. not only repeatedly demonstrated blatant bias against RTC, but has first insinuated itself into the settlement process uninvited and then itself unilaterally put forth a settlement amount far lower than the amount of RTC's claim. If this court proceeds any further in this case, RTC is convinced, based on the court's conduct, that it will not receive justice here. For this reason, this court must recuse itself. Furthermore, the court's settlement remarks are the culmination of numerous other improper actions by the court that contribute to the conclusion that it has improperly prejudged this case and is not impartial. 2. Collaterally Attacking the Jury Verdict This court has taken it upon itself to re-try the copyright infringement case, acting as judge and jury, and determining that RTC's interest in its unpublished works cannot really be so important, so that although Henson has made some "mistakes," he should not be punished as severely as the jury decided. For example, at the March 13, 2001 final pre-trial conference, the court, in opining that Henson should pay RTC only $10,000, stated:
I don't think the payment should be huge, but I think it should be significant, maybe $10,000. Some number which is clearly a bite for somebody who is in Mr. Henson's position . . . Mr. Henson clearly has made mistakes, including mistakes of judgment . . . Ostensibly [RTC]... would potentially force the sale of his house and crush him financially for having had the audacit to publish their religious doctrine in unaltered form 4 . . . So the question is: to . And I suppose the answer will come to be, although I don't know this, is that this secret doctrine that Mr. Henson, this secret religious doctrine that Mr. Henson published is so economically valuable to the RTC that it's worth this amount of money to make an example of Mr. Henson. RTC already has its injunction from the district court, as I understand it, so this case isn't about that. The case is about money, but Mr. Henson doesn't have a lot of money.
4 Respectfully, this court's comments on Henson's infringing conduct bespeaks its utter lack of understanding of copyright law. It is not that Henson published RTC's work "in unaltered form." It is that he infringed by publishing it or part of it at all. This court's lack of understanding of one of the basic tenets of copyright law - the right of an owner to decide when and whether to publish his works - is itself not consonant with this court's obligations under Canon 3(B)(2) "be faithful to the law and maintain professional competence in it." [end FN] (Ex: 2, at 38-40).5 (Emphasis added.) What happened in the copyright case is important to an understanding of why this court's intrusion into the settlement process is so wrong. On March 29, 1996, Henson sat in Judge Whyte's courtroom as Grady Ward, one of his ARS compadres, was enjoined from further infringing postings to the Internet of several of RTC's copyrighted, unpublished scriptures including one referred to as NOTs 34.E Not to be overshadowed in stature by Ward, that night Henson himself posted a copy of NOTs 34 on the Internet. When RTC's counsel wrote to Henson, threatening suit for copyright infringement, Henson could have avoided suit altogether simply by agreeing not to infringe further. Instead, he replied that she should take her notice, "fold it till it is all corners, and stick it where `the Sun don't shine'." (Ex. 14.) Then, for more amusement and stature, Henson posted NOTs 34 a second time the next day. (Ex. 15.) When RTC then sued Henson for copyright infringement, he was delighted because, as he explained, causing RTC to spend money to sue him elevated his rating and increased his stature among his ARS cohorts. (Ex. 3, at 94-97, 132.) Initially, Henson defended the suit pro se out of his entertainment budget, boasting that for the cost of a ream of paper, he could make Scientology spend a substantial amount of money in legal fees to deal with him. (Ex. 16.) Indeed, Henson openly encouraged others to do the same thing with the stated object that by forcing RTC to bring multiple copyright infringement actions, RTC would be obliged to expend its precious financial resources on legal fees rather than the pursuit of its religious mission. (Ex. 17.) Henson repeatedly displayed complete disdain for Judge Whyte and the legal system which was the source of his amusement. For example, when faced with RTC's substantial
[FN] 5 It is yet a further indicia of this court's lack of impartiality that it would suggest that RTC should settle on what amounts to perhaps, 2% of its claim in bankruptcy and for far less than Henson's post-petition debt to RTC which would, in all events, survive any disposition this court might make of Henson's Chapter 13 petition. 6 Copies of these unpublished scriptures had, years ago, been stolen from a Church of Scientology. [end FN] motion for summary judgment of liability, Henson filed a brief advising Judge Whyte that he did not have the time or budget to "respond in depth to each and every claim," but he would respond "within the limitations of [his] `entertainment budget' . . . to as many points as feasible." (Ex. 18, at 1.) See also, Henson's contumacious disobedience of an Order issued by Judge Whyte which resulted in a contempt citation and a post-petition award to RTC of $7,500 (Ex. 13.) Apparently, Henson was not amused when Judge Whyte granted RTC's motion and set for trial before a jury the remaining issues of whether Henson's infringement of RTC's copyright in NOTs 34 was willful and the amount of statutory damages to be awarded to RTC for the infringement. With trial set for December 1, 1997, Henson prepared and was poised to file a Chapter 13 bankruptcy petition solely to stop the trial pursuant to the automatic stay provisions of the statute, 11 U.S.C. §362. Before he could file it, however, Judge Whyte sua sponte rescheduled the trial to commence on February 24, 1998. The day before, on February 23, Henson did, in fact, file the very Chapter 13 petition he had prepared in December and proudly advised Judge Whyte of it and that the copyright trial was stayed under law. (Exs. 19, 20.)' Henson's scheme to misuse the Bankruptcy Code to derail his copyright trial was, however, short lived. By order dated March 13, 1998, the automatic stay was lifted so as to allow trial to proceed before Judge Whyte who then rescheduled Henson's trial to begin May 5, 1998. His February Chapter 13 filing having served its albeit limited utility of only a brief trial delay, on March 24, 1998, Henson filed a notice withdrawing his bankruptcy petition. (Ex. 21.) In May 1998, the copyright case proceeded to trial before Judge Whyte and the jury. In near record time, the jury returned a verdict finding willful infringement by Henson. Heeding
[FN] 7 Critically, there is no dispute that Henson's sole purpose in filing his Chapter 13 petition was to derail the trial of the copyright case. It is undisputed that Henson was not "bankrupt"; he had zero outstanding debts (save for his then-current obligations on his home mortgage, taxes and credit cards), had money in the bank, was making a good living, and his only "creditor" was RTC in its then-contested and unliquidated claim of copyright infringement. [end FN] Judge Whyte's charge respecting the need to deter Henson and others from such misconduct, and mindful of the extensive evidence of Henson's offensive and mocking attitude, the jury awarded RTC $75,000, close to the maximum, in statutory damages. (Ex. 22, Special Verdict Form.) Henson could have paid RTC's $75,000 judgment when it was rendered - his equity in his house was far more than that and in fact, was probably also enough to pay RTC's costs and attorneys' fees under the Copyright Act - but instead, Henson chose to continue his amusement, to file endless appeals, primarily pro se and occasionally through pro bono counsel, and to thereby fulfill his stated intention to compel RTC to continue to spend large amounts of legal fees and expenses to deal with him.' Consistent with his attitude of not paying RTC anything because to do so would cause a loss of stature among his ARS cohorts, on June 30, 1998, Henson filed a motion to resuscitate his petition in the Bankruptcy Court. Critically, and despite this court's expressed sympathy for "poor old" Henson, the May 1998 verdict was not a wake-up call for him. To the contrary, rather than changing his ways, Henson's subsequent activities and his lust for recognition on ARS, continued after that date and right up to today. Thus, it was after the reality of the jury verdict that Henson: (1) filed baseless appeals, including a petition for certiorari to the Supreme Court; (2) picketed various Scientology churches, often on a daily basis, instead of working, and posted daily reports to ARS of his picketing activities; (3) with his cohorts, used a GPS device to plot satellite missile coordinates of a Church facility in Riverside County and posted the information to ARS, [FN] 8 Section 504(c) of the Copyright Act, 17 U.S.C. § 101 et seq., then provided for statutory damages of $500 to $10,000 per infringed work, but if the infringement was wilful, the award could be increased to up to $100,000. 9 Henson filed no less than six (6) separate appeals to the Ninth Circuit and a petition for certiorari to the United States Supreme Court. All of the appeals, save the latest appeal from Judge Whyte's denial of his Rule 60(b) motion, which is currently pending, as well as the certiorari petition, have been denied. However, these victories have come, to Henson's delight, at an enormous expense to RTC. At least one of Henson's appeals was deemed so bereft of merit that the Ninth Circuit awarded RTC $10,000 in post-petition attorneys' fees for deterrence. (Ex. 24.) [end FN] resulting in his current criminal prosecution; and (4) engaged in extensive fraud in filing these bankruptcy proceedings and obstruction of their fair and expeditious resolution (see RTC's Motion to Dismiss). By collaterally attacking and second-guessing the jury's verdict and by inviting Henson to continue to abuse the bankruptcy system to avoid paying RTC merely because the court personally disagrees with that verdict, the court is clearly breaching the requirement in Canon 2 that "[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." In contrast to the dictates of that canon, for this court to propose a settlement figure of $10,000, particularly when evidence has been presented to the court that Henson has sufficient assets to pay the judgment, is comparable to issuing a judgment notwithstanding the verdict rendered by the jury, even though Judge Whyte, who tried the case, stated in awarding attorney fees that "the evidence presented and attitude exhibited by Henson and his counsel during trial left the jury with little choice but to find that Henson's infringement was willful." (Ex. 23.) 3. Demeaning RTC's Fundamental Right Not to Publish its Copyrighted Works At the March 13 conference, this court stated that RTC should seriously consider accepting a $10,000 payment in lieu of its claim of hundreds of thousands of dollars in damages and attorneys fees because it is in the "unusual posture" of attempting to collect on a judgment for unlawful copying and publication of its unpublished works. Rather than respecting the fact that one of the most important rights held by any copyright owner is its right not to publish, the court scoffed at RTC's right not to publish: Here we have a situation in which an organization that represents itself as a church is going after an older man in bankruptcy. And ostensibly what would happen is that would potentially force the sale of his house and crush him financially for having had-the audacity to publish their religious doctrine in unaltered form. It's very unusual in terms of how many people understand religion or appropriate actions for a church. (emphasis added) (Ex. 2, at 39.)10 It is well-established that one of the most important rights held by a copyright owner is the right not to publish. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 554, 564, 105 S.Ct. 2218, 2227, 2232, 85 L.Ed. 2d 588 (1985) (unauthorized publication of excerpts from Gerald Ford's unpublished memoirs not entitled to fair use defense; "right of first publication encompasses . -. . the choice whether to publish at all," and great weight must be given to a copyright owner's decision not to publish the work; "the unpublished nature of a work is `[a] key, though not necessarily determinative, factor' tending to negate a defense of fair use."); Salinger v. Random House, Inc., 811 F.2d 90, 97, 99 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987) (enjoining biographer's unauthorized use of J.D. Salinger's unpublished letters, and placing special emphasis on the fact that the letters were unpublished in finding infringement); Cordon Art B. V. v. Walker, No. Civ. 95-0863, 1996 WL 672969, *4, 9 (S.D. Cal.) (summary judgment granted to plaintiff where defendant infringed copyright in artist M.C. Escher's unpublished artwork); In re Clark Entertainment Group, Inc., 183 B.R. 73, 78-80 (Bankr. D.N.J. 1995) (granting permanent injunction prohibiting the holder of tapes containing unpublished rehearsal performances of well-known musical groups, including The Byrds and Johnny Cash, from copying and exploiting performances on tapes, where such exploitation would violate the common-law copyright of plaintiff-copyright owners). Here, the jury, understanding that RTC had a strong interest in preserving this right, properly awarded RTC a large damage award for infringement of a single work. The Ninth Circuit affirmed and the United States Supreme Court denied certiorari. It is shockingly improper for this court, in the context of a bankruptcy proceeding (filed solely to avoid the [FN] 10 This court's sympathetic characterization of Henson's conduct is itself audacious. The Founding Fathers wrote the Copyright Clause (Art. I, §8, Cl. 8) into the Constitution, Congress passed a law called the Copyright Act, and Henson violated it for amusement, for entertainment and to enhance his stature. A judge of this District found him liable for infringement, and a jury of his peers held against Henson. By what possible distortion of logic, or outright disrespect for the law in violation of Canon 3, could this court even initiate sympathy for "poor old" Henson? [end FN] judgment), to question and belittle the value of RTC's copyrighted works and the propriety of RTC choosing to collect on its judgment. The court's lack of care for or understanding of RTC's important copyright interests flies in the face of the Canons' requirements that "[a] judge shall respect and comply with the law" (Canon 2) and that he "shall be faithful to the law and maintain professional competence in it." (Canon 3). 4. Demeaning the Scientology Religion(sic) Even more offensive than the court's questioning RTC's rights as a copyright owner is its questioning of RTC's religious status. Neither the Bankruptcy Code nor those who appointed this court gave it license to determine what is "usual" in terms of how people understand religion and certainly did not give it the power to determine what are and are not "appropriate actions for a church." Indeed, as this court should surely know (Canon 3(B)(2)), it is an outrageous offense of the First Amendment's freedom of religion guarantee for this court to even raise these questions. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct.1313, 59 L.Ed.2d 533 (1979); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). The evident fact that this court thinks it has the right to raise these questions is the single most offensive part of this court's conduct at bar. 1 Neither the First Amendment nor RTC can tolerate this court as the one to determine the issues in suit. The court's sarcastic characterization of RTC as "an organization that represents itself as a church," its questioning of the "economic" value of its unpublished religious scriptures, its suggestion that RTC, in choosing to pursue its legal rights and not to simply allow Henson to take advantage of it, and its openly challenging whether RTC's actions are appropriate for a "religion or appropriate actions for a church," are all shockingly improper. The court has also referred to RTC as "the Church of Scientology" (Ex. 25, at 42), when it is doubtful that if St. Joseph's Roman Catholic Church were involved in a lawsuit, the court would refer to it as "the Catholic Church," as if the entire religion, rather than a particular religious corporation, were a party. The court's imposition of its own views regarding the Scientology religion is a blatant breach of Canon 3's admonitions that a judge "shall not be swayed by partisan interests, public clamor or fear of criticism," (Canon 3(B)(2)) and that he "shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice . . . based upon . . . religion." (Canon 3(B)(5)). Furthermore, the court's remarks strongly suggest that they are reflective of opinions concerning what constitutes a religion derived from extra judicial sources. For example, the court has also challenged RTC's attorney to identify any lawsuits brought by the Jewish religion, as if disbelieving that a "true" religious organization would be involved in litigation. (Ex. 2, at 44-45.) Such a breach of these Canons mandates disqualification. Indeed, RTC asks this court to search its own conscience, to ask itself how it would feel about being judged by a tribunal which refers to this court's own spiritual affiliation as an "alleged religion," to ask itself what economic value it would place on its own religion's sacred scriptures? Were this court to make that introspective inquiry it would perhaps understand why its continuation as the judge in this matter is unacceptable. Surely if a juror made similar statements in responding to voir dire, the juror would be excused for cause. In contrast to this court, Judge Whyte was so sensitive to this issue that he worked with the parties to fashion a juror questionnaire that would ensure the jury was not infected by any such bias. (Ex. 26.) 5. Chastising RTC for Spending Money to Pursue Its Claim This court has repeatedly interrogated RTC's counsel regarding how much money RTC is spending on legal fees to pursue its claim. For example, the following cross-examination of an RTC attorney took place at the November 20, 2000 hearing, in the context of the court brazenly criticizing RTC for vigorously pursuing its claim against "poor old" Henson: THE COURT: "You're talking about a situation with a relatively elderly person who may or may not have a little bit of equity in his house and you're spending - how much have you spent so far, Ms. Kobrin, approximately?" MS. KOBRIN: I have no - Your Honor, I don't deal with RTC's legal bills. I have no idea. [FN] 11 To the best of RTC's knowledge, the proceedings before this court do not disclose Henson's age, but suffice to say that many of his contemporaries, such as Mr. Rosen, President Bush, and per its judicial profile, this court, would take umbrage at being called "elderly". [end FN] THE COURT: Well, you know what your legal bills are. MS. KOBRIN: Well, - THE COURT: And you haven't reviewed any of the other legal bills? MS. KOBRIN: I have occasionally seen them, but I don't know what the bills for this case have been. THE COURT: Okay. Well, I don't think that this case is solely about whether Mr. - obtaining money from Mr. Henson. (Ex. 1, at 28.) This inquisition on November 20, 2000 was not a spontaneous, isolated incident. Rather, the amount of money RTC has spent in attorneys' fees in this case has long been of curious and irrelevant interest to this court. For example, on September 13, 2000, in connection with improperly questioning RTC's motivation for pursuing its claim, the court stated:
And when I say you're afraid of him you obviously are exercising, if you will, your right to sue. We have one, two, three, maybe four firms here represented at a motion in a Chapter 13 case. So whether it's fear that's motivating you or something else that's motivating the Church of Scientology, something is motivating them to bring all of these resources in the context of a Chapter 13 plan. You already have an injunction, as I understand it, vis-a-vis infringement. So that you have. (Ex. 25, at 42.) This court's comments and inquiries regarding the amount of money spent by RTC are grossly improper and completely irrelevant. Even if the amount of money spent by RTC on its legal fees was 100 times the amount of its claim, and even if this disparity were somehow proof of an intention on RTC's part to "harass" Henson (as this court has overtly suggested), the fact remains that RTC's claim against Henson is valid and undisputed. A creditor's motivation in pursuing a valid claim is irrelevant. 12 See In re Christian Porter [FN] 12 Even though RTC has no obligation to explain to the court its motivation in seeking to collect on a valid judgment, RTC has, in fact, explained to the court numerous times that it has a great interest in pursuing and collecting on its judgment that goes far beyond the monetary value of the judgment itself. It.is crucial to RTC that Henson not be allowed to abuse the bankruptcy ' system to avoid RTC's judgment, because RTC must be able to deter potential future infringers by showing them that they will not be able to similarly exploit the legal system and infringe ' (continued) 12(...continued) RTC's copyrights with impunity. (E.g.; Ex. 25, at 33-34, and Ex. 2, at 46.) The need for deterrence was a specific jury instruction by Judge Whyte. (Ex. 31.) [end FN] Aluminum Co., 316 F. Supp. 1340, 1343 (N.D.Cal. 1970) ("motivation of petitioning creditors in involuntary bankruptcy petition irrelevant so long as their bankruptcy petition is sufficient on its face); Matter of Schake, 154 B.R. 270, 275 (Bankr. D. Neb. 1993) (motivations of the creditor who files the request for criminal prosecution are irrelevant to the issue whether a county attorney violates the stay by proceeding on the criminal complaint"; "[w]e cannot require a prosecutor to conduct a searching inquiry into the public spirit of the victim of a crime before proceeding with what appears to be an otherwise valid criminal prosecution"). Similarly, it is none of this court's business whether, as this court has said, RTC's position in this proceeding is or is not "about obtaining money from Mr. Henson." For this court to even articulate these legal irrelevancies, let alone to make decisions based on them, as this court has indeed done, is egregious misconduct. Further, this court's September 13 comments regarding RTC's "motivation" and resources, and its November 20 inquisition of Ms. Kobrin respecting RTC's legal fees are just two examples of conduct which would lead any reasonable creditor to conclude that Debtor is represented by a team of two attorneys, Mr. Zlotoff and this court. Thus, although Mr. Zlotoff had not, in the three years this case had been proceeding, ever asked RTC how much it was paying its attorneys here (because he knew it was an irrelevant and a blatantly improper inquiry), within days of this court's November 20 inquisition, Mr. Zlotoff served a formal discovery demand (Exs. 27, 28) seeking this very information. Mr. Zlotoff ought to feel quite confident that if and when this court addresses RTC's refusal to make that irrelevant discovery, this court will find it to be proper and relevant discovery. After all, this court sought that same information from RTC on November 20.
. 6. Criticizing the Number of Attorneys or Law Firms Representing RTC in this Court This court has repeatedly criticized RTC for the number of attorneys it has on this case, and has repeatedly complained that there are four law firms even at status conferences, when it is not the court's role to determine the value of the case to the parties or what legal staffing they should assign. For example, at what this court itself had billed as a trial-setting conference held on March 13, 2001, the court stated:
I have before me here four teams of lawyers, four different law firms represented here at this status conference calendar representing the RTC in what is essentially a scheduling hearing .... Clearly the amount of money involved in this case couldn't possibly warrant four law firms objecting to a Chapter 13 plan for a man with limited income who is advanced in age and he and his wife own a house . . . . [F]our law firms at a status conference, and it's been that way ever since the case began .... (Ex. 2, at 39-40 (emphasis added); see also Ex. 1, at 15-16, 26-27.) Beyond the fact that the court's remarks exceeded its role, this court's bias and unprovoked criticism of RTC has caused it to falsely: (1) describe the March 13 court hearing as a mere status conference, when it was a trial-setting conference that lead trial counsel Mr. Rosen - the only attorney from Paul, Hastings, Janofsky & Walker who has ever appeared here - was obliged to attend; (2) assert that RTC was represented by four different law firms at each proceeding over the three years of this case when in fact, the first and only time this occurred was at the March 13, 2001 trial-setting conference"; and (3) assert that "teams" of lawyers have appeared in this case when, in fact, there has never been more than one lawyer per firm in attendance." These demonstrably false statements are surely not the product of a [FN] 13 There have been only two, or sometimes three, law firms present at most of the conferences and court hearings held in the last three years in this case. The first of only two times that Mr. Rosen appeared was on September 13, 2000 (as one of three lawyers) in order to argue RTC's Motion to Dismiss or Convert. l4 Each of the four attorneys who has been involved in the case has a distinct role in representing RTC. Mr. Rosen was RTC's lead trial attorney for the copyright case, works with RTC in other matters, and was asked to become actively involved as trial counsel here when the (continued...) la(...continued) case was approaching trial. Ms. Kobrin has worked closely with RTC in copyright and related matters for 10 years and was involved in the copyright case even before it was filed when she sent Henson the cease and desist letter to which he so rudely responded. Mr. Hogan is San Jose local counsel for RTC, and began representation in the bankruptcy case with Ms. Kobrin when Henson first filed his petition. He has participated sporadically since that time. And Ms. Seid is, of course, local bankruptcy counsel. [end FN] judicial officer of advanced age who has a flawed but genuinely-held recollection of the proceedings before him. Rather, they are the naked evidence of this court's predispositions. More importantly, it is completely irrelevant how many attorneys RTC chooses to employ. RTC has a fundamental right to counsel of its choosing, and that the court should even deign to criticize how RTC has chosen to exercise that right itself violates the public purpose underlying the Canons of Ethics by interfering with the client's right to counsel of his choice. See United Sewerage Agency v. Jelco Inc., 646 F.2d 1339, 1349 (9th Cir. 1981) (affirming denial of motion to disqualify attorney in suit against another client, and stressing the importance of a client's right to choose his own counsel in rejecting a per se ban against dual representation); Woods v. Covington County Bank, 537 F.2d 804, 812 (5th Cir. 1976) (Canon 9's restrictions on former government attorneys' later private employment must not be applied so strictly as to "defeat important social interests including the client's right to counsel of his choice"); Denburg v. Parker, Chapin, Flattau & Kimpl, 82 N.Y.2d 375, 381, 624 N.E.2d 995, 999 (1993) (imposition of financial penalty on lawyer departing from law firm to practice at competing firm may impermissibly force lawyers to give up their clients, thereby interfering with clients' free choice of counsel); Jacob v. Norris, McLaughlin & Marcus, 128 N.J. 10, 607 A.2d 142 (1992) (same). In short, this court's criticism of RTC's exercise of this right is so improper, so "nonethical," that this conduct alone mandates disqualification. But regrettably, this court went even further in weighing improper factors, such as the number of attorneys, rather than the evidence.
7. Une ual Treatment of the Parties Based Upon Improper Factors, Such as the Number of Attorneys Representing RTC This court's apparent bias has resulted in orders blatantly decided on improper factors, such as the number of attorneys representing RTC and the Debtor. Although judicial rulings are rarely grounds for disqualification in and of themselves, the "surrounding comments, or accompanying opinion" may present evidence of the court's pervasive bias against a party, and can present grounds for disqualification "if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky, 510 U.S. at 555, 114 S.Ct. at 1157. This court's rulings reflect precisely that high degree of favoritism towards Henson and antagonism towards RTC, as reflected in the following examples: a) At the November 20, 2000 conference, the court extended the final discovery deadline at Henson's counsel's request, after the case had been pending for two and one half years, solely because of the court's sua sponte observation that RTC has several attorneys on its side and Henson's attorney is a sole practitioner entitled to more leeway: [W]e have an enormous team of lawyers who are potentially available to represent the interests of the RTC, and a huge disparity in the economic power of the RTC versus Mr. Henson, who's represented by a solo practitioner who's practicing bankruptcy law in San Jose". So I think good cause exists to extend the discovery cutoff. (Ex. 1, at 16.)16 The notion that a party is entitled to court relief (e.g., an extension of time to do [FN] 15 The court's remarks suggest that the court. is also more sympathetic to parties whose attorneys practice only "in San Jose." Such a viewpoint is as improper as a bias based upon the number of attorneys. 16 Significantly, Henson's attorney was late in making discovery requests, not in responding to them. The number of RTC's lawyers is thus factually as well as legally irrelevant - this was not a situation in which a single practitioner has been bombarded by thousands of requests from multiple lawyers. Henson's attorney did not even attempt to claim that his unilateral failure to make timely discovery requests of his own was in any way related to being "outnumbered'-' by RTC's attorneys. Rather, he attempted to argue that he was bringing discovery requests late because recent events had raised new factual issues, although the discovery he requested was not related to any recent events. Regardless, the court based its ruling only on the fact that RTC has more attorneys, and expressly refused to limit Henson's attorney to discovery regarding (continued...) 16(...continued) newly discovered facts. (Ex. 1, at 13-16.) [end FN] something) based upon how many attorneys it has compared to the number its adversary has, is not merely unknown in our jurisprudence, it is bizarre. By this standard, debtors, who are frequently represented by individual practitioners or small firms, have a greater right to "justice" than many creditors (e.g., banks, credit card issuers, mortgagees) who are frequently represented by larger law firms. That the court decided issues based on the number of RTC's lawyers is completely improper, has no basis in law, and is a textbook example of a judge improperly dispensing justice based solely on his bias against one party or, at a minimum, based on legally irrelevant and improper considerations. Under such circumstances, he must be disqualified pursuant to the requirement of §455(a) and Canon 3(E) that a judge disqualify himself if his impartiality in a proceeding might reasonably be questioned." (b) Since its November 20 ruling granting Debtor more time to take discovery based on the number of lawyers on each side, this court's partiality and reliance on that factor has progressed to the point that Debtor's counsel need not even ask for relief in order to get it. By order dated November 29, 2000, this court directed that by March 6, the parties submit a joint pre-trial order which was required to include, inter alia:
1. "A list of all documents and other items to be offered as exhibits at the trial ... with a brief statement following each describing its substance or purpose and the identity of the sponsoring witness." 2. "A description of deposition testimony, answers to interrogatories or answers to requests for admission which a party intends to use at trial . . ." (Ex. 29.) RTC and its lawyers complied. Debtor did not. Indeed, Debtor's limited contribution to the pre-trial order failed to identify his trial exhibits, to describe each of them, to identify the [FN] 17 This court's deciding motions based on the number of RTC's lawyers not only manifests its bias against RTC as a general matter, but also specifically violates Canon 3(B)(5), which mandates that a judge "shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon . . . socioeconomic status." [end FN] sponsoring witness, and to give a description or designation of specific discovery to be used. Nevertheless, at the March 13 court hearing, this court, without a request from Debtor's counsel, gave Debtor more time to identify his exhibits. (Ex. 2, at 3-9.) (c) Another example of a biased ruling this court has made occurred at the September 13, 2000 hearing, when Mr. Rosen sought merely to advise this court of the antiterrorist criminal proceedings in Riverside County against Henson. The court refused to hear of it and did not consider that event to be before this court solely because Mr. Rosen had only an uncertified copy of the criminal court documents. (Ex. 25, at 40-41.) Yet this court had no problem whatsoever in accepting statements offered without certified copies when made by Debtor's counsel about that very criminal proceeding (as appearing in the March 6 pre-trial order) or in itself citing to and relying upon that proceeding at the March 13 hearing respecting a trial date here. (Ex. 2, at 9; Ex. 30.)
8. Basing Rulings on the Legally Insufficient "RTC Is The Bad Guy" Argument and Prejudging That Issue As set forth above, it is legally improper and utterly indefensible that this court has inquired into RTC's expenditures and motivation. Making matters worse, however, is that this court's bias in this regard is guiding the performance of its duties in this matter. In both his opposition to RTC's August 30 Motion to Dismiss or Convert and in the pretrial Order filed on March 6, Henson attacks RTC, arguing that it is the bad guy, that it has done terrible things to him and his family (e.g., picketing his home), and that this is relevant to the issues in this case because this constitutes "unclean hands." And worse, this court has accepted that, ruling on March 13 that it will likely admit at trial Henson's evidence as going to "unclean hands." Not surprisingly, neither Henson nor this court had been able to come forward with a single case, or a single legal authority for this remarkable application of the "unclean hands" doctrine. l$ [FN] 18 The "unclean hands" doctrine is not a general "you're bad" principle. Rather, it is only applicable if a party has acted unconscionably or in bad faith with respect to the subject matter (continued...;18(...continued) . of the litigation. "[E]quity does not demand that its suitors shall have led blameless lives . . . it does require that they shall have acted fairly and without fraud or deceit as to the controversy in issue." Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U.S. 806, 814, 65 S.Ct. 993, 997, 89 L.Ed. 1381 (1945) (internal quotes omitted; emphasis added). Nowhere has anyone claimed that RTC had unclean hands in connection with Henson's filing of this bankruptcy proceeding or in the underlying copyright infringement action. Nevertheless, this court is going to give Henson a stage to vent his invective against Scientology. [end FN] The principal issue being tried on RTC's Motion to Dismiss is Henson's fraud and misconduct in his filing of his bankruptcy petition and his misconduct in the proceedings on it. RTC's "hands" are not even involved here; RTC did not direct or participate in Henson's misconduct. Yet, so biased is this court against RTC that even before RTC has had a chance to file its in limine motions, even before RTC was even given a chance to argue the inapplicability of the "unclean hands" doctrine, this court, on March 13, gratuitously offered that it would likely allow this evidence at trial. (Ex. 2, at 25-26.)19 Moreover, Henson's "facts" respecting his "defense" and this court's embracing of them are astounding and transcend mere errors of law. Henson is the one who started picketing, not RTC or any Scientologists. He has picketed facilities where Scientology staff members, whose entire life is devoted to their religion, live, work, practice their religion, and train to administer religious rites. It is not hyperbole to say that Henson's conduct is tantamount to picketing a Catholic monastery. Henson has also picketed in front of the offices of one of RTC's counsel, Thomas Hogan, in San Jose, with a sign advising of Mr. Hogan's name, address and telephone number and referring to him as: "A cock-sucking legal whore." In short, Henson has elected to eschew employment and income, insisting instead that it is more important to picket in the most offensive manner possible. Yet it is Henson who complains that Scientologists have picketed in front of his house. When he pickets, it is First Amendment activity. When Scientologists, who notably are not creditor RTC or any of its [FN] 19 Neither does "unclean hands" apply to the issue of whether Henson's proposed plan is feasible given his income reduction. It is not RTC who made Henson forego employment in favor of devoting scores of workdays to picketing Scientology facilities. [end FN] representatives, do so, it is "unclean hands" per Henson and this court." Henson revels in his public attacks upon Scientology, telling the world that the religion is evil and accusing it of actually hurting people. That is First Amendment, that is okay, but when offended Scientologists refer to Henson as a sociopath and a religious bigot, that is unclean hands in this court's view! That this court would even consider for an instant allowing Henson to try this "defense," that it would be complicit in giving Henson a public forum from which to spew his religious bigotry, is unconscionable. When Henson tried this same tactic in the copyright case before Judge Whyte, when Henson sought there to put Scientology on trial, Judge Whyte stopped it in a nanosecond. This court would not do otherwise but for its evident lack of impartiality. 9. Blatantly Favoring~Henson Based on His Age This court has also made repeated comments throughout this proceeding that Henson is "elderly" and "of advanced age;" continuously insinuating that RTC is evil and not entitled to collect its debt because it is "an organization that represents itself as a church . . . going after an older man in bankruptcy." (Ex. 24, at 39) (emphasis supplied).zl Apart from the fact that Henson is not much older than this court, is energetic enough to travel the country picketing, for hours on end, Scientology facilities, is far from a frail senior citizen, only entered bankruptcy to avoid paying RTC's judgment, and is hardly a sympathetic "grandfatherly" type, but rather is a man who teaches children to make bombs and is currently standing trial in criminal court as an accused terrorist, Henson's age (and character). are completely irrelevant to whether RTC is entitled to collect its valid judgment. It is shocking to RTC that the rules of bankruptcy can be twisted, at least in this court, if the debtor is over fifty and the creditor is an organization
[FN] 20 Apparently, the other "unclean hands" conduct of RTC that this court believes relevant is the number of attorneys RTC employs and how much it pays them. 21 This demeaning comment is, in and of itself, grounds for disqualification not for a mere appearance of bias, but for demonstrating outright hostility. We can only wonder what reaction this court would have were we to refer to it as "the alleged judge"or as a person who "represents himself to be a judge." [end FN] affiliated with a religion with which the court has personal disagreements. This court's clear sympathy for Henson and disgust at RTC for attempting to assert its rights when Henson is of "advanced age" is a blatant breach of the Canons' requirements that the court act impartially, and is specifically violative of Canon 3(B)(5)'s prohibition against performing judicial duties with bias based upon age or religion. The Bankruptcy Code does not have two sets of rules, one for debtors of middle age and one for debtors of advanced age, one for real churches and one for those that represent themselves as churches. Accordingly, this court must be disqualified. Conclusion Immediately following this court's inappropriate remarks at the March 13 hearing, RTC's counsel expressed his concerns and suggested that this court consider the propriety of its presiding over the trial. The court chose not to recuse itself, thus obliging RTC to file this motion and also obliging Debtor to expend its resources to address it if he so chooses. At this point, it is up to this court, in the first instance, to decide whether it should step aside. RTC can only hope that this court does the just and fair thing. Dated: April 5, 2001 Respectfully submitted, PAUL, HASTINGS, JANOFSKY & WALKER, LLP Samuel D. Rosen Attorneys for Creditor RELIGIOUS TECHNOLOGY CENTER
From: ptsc <ptsc AT nym DOT alias DOT net>
Subject: Abelson.da.ru Freehenson.da.ru
Date: Fri, 25 May 2001 08:27:27 -0400
Message-ID: <[email protected]>
These two URLs now only point to fresh data. http://abelson.da.ru is a site on the pervasive, perverse and pernicious mendacity of Scientology and its counsel, one Mr. Elliott Abelson. http://freehenson.da.ru is about the ongoing story of Keith Henson and his battle against the crazy Scientology crime syndicate. Both these sites have already gathered freakishly bizarre threats from a clearly unbalanced individual posting by the name of [email protected] He appears to display an unhealthy obsession with me, even using an anagram of my name as his name. He might begin to terrify me, in which case I have no doubt that he will serve a year in the Riverside County jail. He appears to be stalking me, and he is believed to be entirely psychotic. I recommend he seeks mental therapy before he commits the violent acts he seems to me entirely capable of committing in his agitated and paranoid state. ptsc