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Monday, April 30, 2012

Analysis of Third Circuit Case Law on Recusal Standards


Can Judge Noel L. Hillman claim that the case law I shared with you in "Acting v. Reacting III" only applies to the Texas Rules of Civil Procedures?  By now you know how I do, so here's what the case law within Judge Hillman's Third Circuit says.  You be the judge.
 The key issue stated within  Riga v. Commission for Lawyer Discipline 224 S.W.3d 795 that I pointed out to you within "Acting v. Reacting III" was the settling of the fact that:

Texas Rule of Civil Procedure 18a(c) requires a judge who declines to recuse to forward the recusal motion to the presiding judge of the administrative judicial region. Judge Fowler did this. However, Rule 186a(c) further requires that the trial judge may make no further orders and take no further action prior to a hearing on the forwarded motion. The only exception provided by the Rule is if the further order states good cause for ruling notwithstanding the pending recusal motion.

Guess what folks, I'm going to be waiting again, because the above case law say that: (1) Judge Noel L. Hillman should have sent my motion for recusal to the Chief Judge of his Court, (2) he was required to make no further orders and take no further action in 08-cv-02407 and 11-cv-06304 prior to a hearing on the forwarded motion, and (3) the only exception to the above Texas Rule of Civil Procedure is if the further order states good cause for rulings notwithstanding the pending recusal motion.
 But, before you go running of to see if the above was done by Judge Hillman we have to make sure that we are comparing apples to apples as the old saying goes.  Let's not forget that the above is Texas Rules.  So, what is the standard followed within the jurisdiction of the Third Circuit Court of Appeals?  Well…

On September 22, 1989, the United States Court of Appeals, Third Circuit, said within United States v. Furst that it was remanding the case back to the district court for reassignment to a different district judge.  See last sentence of "Opinion of the Court" U.S. v. Furst 886 F.2d 558, 561 (1989).
 Please don't yawn yet, or just say "yeah-yeah-yeah, they remanded it so what was the remand based on and how is it applicable here?"  Well here's how.  One reading further into U.S. v. Furst, at page 583 will find that the court said:

As a result of the extent to which the district court confirmed the underlying facts upon which the recusal motion relied, we need not resolve the issue of whether a judge need accept as true the allegations presented in a motion for disqualification under section 455 which asserts a basis as to which section 144 is applicable and which includes an affidavit sufficient under section 144. It is sufficient that we state that where the basic underlying facts as set forth in the affidavit supporting a recusal application are not in dispute, the district court should not minutely examine the movant's characterization of them, and weigh the court's memory of what happened against that of the affiant. We think it simply inappropriate in the circumstances here for the court to have made a credibility assessment of itself. Consequently, we hold that the district judge improperly considered the truth of the asserted grounds for his recusal.

Thus, our remaining inquiry is whether the allegations were "legally sufficient" for recusal. Here we are satisfied that the allegations of the motion and affidavit for disqualification were sufficient to have required recusal, as taking the allegations as true, the judge's impartiality, though only in sentencing, might reasonably be questioned. 28 U.S.C. § 455(a). According to the attorney's affidavit, the judge made it clear that he was anxious for a guilty plea and would award a longer sentence to be served in unpleasant circumstances, following a conviction trial. Thus, it was reasonable to conclude, taking the attorney's affidavit as true, that the judge's attitude as to sentence was based at least to some degree on the fact that the case had to be tried, an exercise which the judge seemed anxious to avoid.

There you have it folks, the Third Circuit Court of Appeals said in 1989 that, (1)  it is inappropriate for the court  make a credibility assessment of itself, (2) within this Circuit a motion to recuse is guided by the procedures of 28 U.S.C. § 144 and 28 U.S.C. § 455, (3) these two statutes say that a recusal motion and it's supporting affidavit that contain legally sufficient allegations are to be taken as true, especially when they are not disputed.
 69 day's after February 21, 2012, Judge Noel L. Hillman has not disputed the allegations of the motion for his recusal.  Yet on March 28, 2012, with a motion seeking his recusal from civil actions 08-cv-02407 and 11-cv-06304, and further proceedings forthcoming within the two civil actions, Judge Hillman did exhibit "willful ignorance" towards the above case law, which is from his own United States Court of Appeals for the Third Circuit.
 Okay, now you may refer back to "All-In-All Its Just More JSHIT OnThe Wall" where I shared a link to Judge Hillman's March 28, 2012, invalid opinion.  Now you should have a firm grasp as to why that post was entitled more JSHIT on the wall.  But, if you listened to the included song, which says "we don't need no education," you should agree with me that Judge Noel L. Hillman does need an education.  Why? Because we don't need no dark JSHIT in our courtrooms.

But wait, there's more.  Okay-Okay, I know this is a bit much so I'll continue with more case law that Judge Hillman thumbs his nose to in my next post.  May I ask that, if you agree with the facts that I'm setting forth, will you invite a friend or two to join us? We need all the help and support we can get, because Judge Noel L. Hillman has clearly bumped his head!
 Thank you so much for viewing,
Gaming Oracle!

4 comments:

  1. See case 10-1323 or 11-3320 on appeal when I ask Judge Nora Barry Fischer to recuse and she did not...See what 3rd Cir said about that. Also see case 07-1506 where I filed a mandamus against the same judge and she ended up taking another case after the mandamus.
    See
    http://independent.academia.edu/legalities

    for evidence

    ReplyDelete
  2. Final note: This judge was both Trial judge and mediation judge

    ReplyDelete
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