JUDGES; MOTION TO DISQUALIFY JUDGE

8/8/2019 JUDGES; MOTION TO DISQUALIFY JUDGE

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DEBTOR'S FOURTH MOTION DEMANDING THAT

JUDGE THOMAS JAMES DISQUALIFY HIMSELF

PURSUANT TO 18 U.S.C. 455 AND BANKRUPTCY RULE 5004

FOR PREDETERMINATION OF THE ACTION,

THE APPEARANCE OF PARTIALITY AND FOR HIS

DEEP-SEATED ANTAGONISM TOWARDS THE DEBTOR

NOW COMES the Debtor, EUGENE W. ALPERN ("EUGENE"), in pro per,sui juris, and demands that Judge Thomas James disqualify himself for his appearance of

predetermination of the case, his appearance of partiality, and his deep-seated antagonism

towards EUGENE which prevents EUGENE from obtaining a fair hearing from JudgeJames. In support of this motion, EUGENE submits the following:

JUDGE JAMES WAS DISQUALIFIED BY LAW

1. In Liteky v. U.S., 114 S.Ct. 1147 (1994), the Court clarified what issues can

be brought before the Federal Judge to disqualify the Judge, pursuant to 28 U.S.C.455(a). The Court held that valid causes for disqualification of a judge by a party to the

proceeding included (1) the judge had given the appearance that he had made a

predetermination (predisposition) of the case, or (2) the judge displayed such deep-seated

antagonism to the party that would render fair judgment impossible, or (3) both.

In addition, events occurring during the trial can be cause for disqualification, if

the events display an inability of the judge to render fair judgment, an exception to the

extrajudicial source factor (Liteky, at 1155, 1160), or that there is "an intent to ensure

that one side or the other shall prevail, there can be little doubt that he or she mustrecuse." Liteky, at 1159. Judge James has not been able to render a fair judgment. Judge

James has no discretion to recuse himself.

The Supreme Court, in Liteky, affirmed the statutory requirements of 28U.S.C. 455(a) for the disqualification of a judge.

In EUGENE's first Motion to Disqualify Judge James, filed December 16, 1993

and heard on December 20, 1993, EUGENE had charged, inter alia, that Judge James had

given the appearance of having predetermined the outcome of that hearing and of thecase. Although Judge James denied EUGENE's Motion to Disqualify Judge James, all

contact with Judge James, since December 16, 1993, has only confirmed EUGENE's

position as being truthful and factual. EUGENE had met the requirement on December

16, 1993 to disqualify Judge James. The charges of appearance of predetermination andappearance of partiality as well as others, were repeated in subsequent Motions To

Disqualify Judge James. EUGENE continued to meet the requirements ofLiteky, and

Judge James continued to give the appearance of having predetermined the outcome ofeach hearing and of the case, and to give the appearance of partiality against EUGENE in

court, and to act without lawful authority.


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The Liteky court further clarified the conditions for disqualification of a judge

by a non-party to the proceeding. The Liteky court stated that under statute 28 U.S.C.

455(a), "Disqualification is required if an objective observer would entertainreasonable questions about the judges impartiality. If a judge's attitude or state of mind

leads a detached observer to conclude that a fair and impartial hearing is unlikely, the

judge must be disqualified." [Emphasis added]. Id. at 1162.

On January 7, 1994, an objective, detached observer of Judge James' December20, 1993 court hearing, filed an affidavit (1) stating, inter alia, that Judge James had given

the appearance of having predetermined the outcome of that hearing, and that he gave the

appearance of partiality against EUGENE and an appearance of partiality in favor of thecreditors. According to Liteky, the court had no discretion (2); Judge James had to

disqualify himself. The Seventh Circuit had previously ruled that disqualification is self-

executing, Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989); the judge has a duty todisqualify himself. Whenever a judge has a duty, he has no discretion, Littleton v.

Berbling, 468 F.2d 389, 412 (7th Cir. 1972), citing Osborn v. Bank of the United

States, 9 Wheat (22 U.S.) 738, 866, 6 L.Ed 204 (1824); U.S. v. Simpson, 927 F.2d 1088,1090 (9th Cir. 1991). He must disqualify himself. Whether or not a judge has disqualifiedhimself, the law has disqualified him. Under prevailing law, all orders issued on or since

December 20, 1993 are void, as they were issued by a disqualified judge. The failure of

Judge James to recuse himself gives no validity to any Order issued on or after December20, 1993.

Additional declarations by other court observers, who were non-parties to the

proceedings, have been filed (3) attesting to Judge James appearance of partiality against

EUGENE. These declarations evidence not only Judge James appearance ofpredetermination and appearance of partiality against EUGENE, but his continuing

predetermination (predisposition) of the outcome of the case and his continuingappearance of partiality against EUGENE.

Judge Thomas James impartiality is being, and has been, questioned by bothEUGENE and by non-party court observers who have attended hearings.

"It is important that the litigant not only actually receive justice, but that he

believes that he has received justice. A judge, like Caesar's wife, should be abovesuspicion." Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972). EUGENE does not believe

that he has received justice, as he was before a judge who was not impartial.

It has been held that a judge's self-appraisal that he or she is able to preside

impartially over the case is irrelevant. Clay v. Doherty, 608 F.Supp 295 (N.D. Ill. 1985).The Sciuto court, among others, has stated that the right to a tribunal free from bias,

prejudice, or the appearance of partiality is based on the Due Process Clause, and not on

any statute. United States v. Sciuto, 521 F.2d 842 (7th Cir. 1996). Recusal is not

intended to protect litigants from actual bias in their judge but rather to promote publicconfidence in the impartiality of the judicial process, Liljeberg v. Health ServicesAcquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988); United States v. Balistrieri,
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779 F.2d 1191 (7th Cir. 1985); it is directed against the appearance of partiality. UnitedStates v. Murphy, 768 F.2d 1518 (7th Cir. 1985).

The critical question before this Court is not the assessment of Judge James asto his predisposition, his remarks, his biases, his prejudices, his claim of impartiality, but

what is the perception of objective, non-party persons to his predisposition, his remarks,his biases, his prejudices, his claim of impartiality. In this respect, Judge James has

displayed an extreme appearance of partiality, and his predisposition, against EUGENE.

Judge James had entered into a long-term and continuing policy of preventing

EUGENE from obtaining a fair hearing before the Court

EUGENE AS A NON-REPRESENTED LITIGANT (4)

2. As a non-represented litigant, this Court had a responsibility to guarantee

EUGENE that he would be instructed/advised on what to do/expect and that he would

have proper access to the court (proper access has been defined to be an "adequate,complete, effective, fair, full, meaningful, and timely access to the court"). EUGENE has

repeatedly reminded this Court of court rulings on this subject, but this Court has ignoredthe court rulings and proceeded to deny, deprive, and overlook EUGENE's Rights. As

recently as January 5, 1996, the Seventh Circuit issued an opinion is which it stated that it

had reviewed the transcripts in a case involving another non-represented litigant, to becertain that the judge had given instruction/advice to the litigant. In the Matter of

CLDC Management Corporation; Appeal of: Irene M. Geschke and Clarence O.

Geschke, sl. op., No. 94-3586, __ F.3d ___ (7th Cir., 1996).

Neither the Seventh Circuit, nor any other court, would not find even one

instance of where Judge James complied with the court's rulings on non-representedlitigants, should it decide to review the transcripts of each and every hearing before this

Court. It would instead find multiple instances where Judge James violated EUGENE'slegal and Constitutional Rights.

The failure of Judge James to comply fully with his responsibility towards

EUGENE, a non-represented party, is a violation of EUGENE's due process Rights.

United States v. Sciuto, 521 F.2d 842 (7th Cir. 1996). Not only would the failure ofJudge James to comply fully with his responsibility towards EUGENE, pursuant to case

law, be a violation of the First Amendment to the Constitution for the United States of

America, it would also give to a non-party of the proceeding an appearance of bias, an

appearance of prejudice, and an appearance of partiality by Judge James. The failure ofJudge James to comply fully with his responsibility towards EUGENE would disqualify

him from taking any action in this proceeding.

It has been held that where a judge violates a party's legal and/or constitutionalrights, the judge loses jurisdiction. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019

(1938); Article VI of the Constitution for the United States of America
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Judge James has violated, and continues to violate, EUGENE's legal, due

process, and Constitutional Rights; such violations have ousted Judge James from any

lawful authority in this matter.

VOID ORDERS/JUDGMENTS

3. The U.S. Supreme Court has held that void orders and/or void judgments are

void even before reversal.Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41

S.Ct. 116 (1920). Should a Court in 1998 hold that an Order issued in 1996 was void, itwas also void in 1996, when it was originally issued.

Void orders/judgments are legal nullities, and there-fore can be challenged at

any time; there is no statute of limitations which restricts a person from challenging the

lawful authority of any judge who issued the void order, an Order that by law does notexist.

Since the void order/judgment is a nullity, they can be challenged andexpunged in any court in the nation, even in New York City or in El Paso, Illinois, in any

State or Federal Court. There is no requirement to challenge the void order within thevenue in which it was issued, since by law the void order does not exist. The natural

extension of an old Common Law principle that "a demurrer searches the record",

requires a review of the entire record.

Further, void orders/judgments can be repeatedly challenged, as re judicatadoes not apply to them.

And interesting, to EUGENE's understanding, it is the only type of order that

can be vacated by a Court lower than the Court that issued the void order/judgment. Sincethe void order/judgment has no legal existence, even the lowest Court has authority tovacate it.

Since a void order/judgment has no legal existence, no person(s) have any

lawful authority to enforce them. In the current situation, should any person(s) enter upon

EUGENE's property without EUGENE's prior voluntary-given lawful writtenauthorization, the person(s) have engaged in criminal trespass. If the person(s) enter the

property in 1996 based on an order that is declared to be void in 1998, that person(s) has

engaged in criminal trespass of the property in 1996. Furthermore, immunity does notapply to any person(s) involved in criminal conduct.

The purported Orders of Judge James, disqualified inter alia by his appearance

of partiality, are void. No judge has any authority to attempt to enforce them, and no

person(s) is engaging in any lawful purpose by attempting to enforce the void Order(s),such as, but not limited to, entering upon EUGENE's property without EUGENE's

voluntary-given written permission, first obtained beforehand. Neither Judge James nor

the purported Chapter 7 Trustee, Lawrence Fisher, is acting within the law.


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A person is not restricted by the eight(8)/ten(10)-day requirement in

Bankruptcy Court, or by the thirty(30) day requirement of the District Court to challenge

any purported order of this court, since the purported Orders are a nullity and have nolegal force or effect. There is no time limit to challenge a void order, for there is no

statute of limitations to vacate a void order. Hazel-Atlas Glass Co. v. Hartford-Empire

Co., 322 U.S. 238, 64 S.Ct. 997 (1943); Rule 60(b)(4), Rules of Civil Procedure; SkellyOil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 87, 86 N.E.2d 875, 879 (1st

Dist. 1949)."Furthermore, a claim of fraud upon the court may be raised by a non-party."

Southerland v. Irons, 628 F.2d 978 (6th Cir. 1980), see Root Refining Co. v. Universal

Oil Products Co., 169 F.2d 514, 522-523 (3rd Cir. 1948), cert. denied, 335 U.S. 912, 69

S.Ct. 481 (1949), and it may be raised at any time.

The Full Faith and Credit clause does not apply to void orders; but the Full

Faith and Credit clause does apply to an Order vacating a void order.

EUGENE has not given any person involved in any proceeding against

EUGENE any voluntary-given written permission to enter his property. Should anyperson enter EUGENE's property without EUGENE's voluntary-given written

permission, that person would be in criminal trespass of EUGENE's property. (5)

CONCLUSION

Under prevailing law, when an affidavit has been filed by a non-party to a

proceeding charging Judge James with the appearance of partiality, Judge James has no

discretion on disqualifying himself from this action. Under law, he is disqualified. The

affidavit of January 7, 1994 charged Judge James with predetermination and theappearance of partiality at the December 20, 1993 hearing. As Judge James was

disqualified by law as of December 20, 1993 or before, all of his Orders issued on orsince December 20, 1993 are void.

THEREFORE, EUGENE prays that Judge James

A. vacates all orders issued by Judge James on or since December 20, 1993.

B. vacates all orders issued by Judge James issued since Judge James gave the

first appearance of partiality.

C. recuses himself for his appearance of predetermination (predisposition) of

this case, for his appearance of partiality, for his appearance of bias, for his appearance ofprejudice, and/or for his deep-seated antagonism to EUGENE that has rendered fair

judgment impossible, as evidenced by EUGENE and the various observers who have

filed affidavits and declarations to sustain EUGENE's charges, pursuant to the abovecited case law.

Respectfully submitted,
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________________________

Eugene W. Alpern, in pro per,

sui juris

Documents

JUDGES; MOTION TO DISQUALIFY JUDGE