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Ben Zimmerman, in pro per

501 W. Glendale Blvd, #604


Glendale, CA 91202
(650) 861-7124

UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA

Ben Zimmerman, Case No. 5:18-cv-03915-NC

Plaintiff,
vs.
SURRELPY TO DEFENDANTS’
Judge James Towery, MOTION TO DISMISS

And

The Superior Court of California,


County of Santa Clara

Defendants

1. Plaintiff strongly believes in hindsight that at least part of the money that he paid to Ms.

Houghton was intended for Judge Towery. Furthermore, Plaintiff believes that after he fired Ms.

Houghton that the Petitioner (of his dissolution case) subsequently retained Ms. Houghton.

Plaintiff will demonstrate this with discovery and live testimony, as the State Bar of California is

investigating Ms. Houghton’s extortion of the Plaintiff and her attorney-client relationship with

the Petitioner.

2. Judge Towery’s conflict of interest, financial stake in Plaintiff’s dissolution proceedings,

and reckless behavior violated Plaintiff’s 14th Amendment right to Due Process.

PLAINTIFF’S SURREPLY TO DEFEDANTS’ MOTION TO DISMISS


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3. Tumey v. Ohio was a case considered by the United States Supreme Court in 1927. In

Tumey, a village mayor with authority to try those accused of violating a law prohibiting the

possession of alcoholic beverages faced two potential conflicts: Because he received a salary

supplement for performing judicial duties that was funded from the fines assessed, he received a

supplement only upon a conviction; and sums from the fines were deposited to the village’s

general treasury fund for village improvements and repairs. Disqualification was required under

the principle that “[e]very procedure which would offer a possible temptation to the average man

as a judge to forget the burden of proof required to convict the defendant, or which might lead

him not to hold the balance nice, clear and true between the State and the accused, denies the

latter due process of law.” 273 U. S., at 532.

4. In Ward v. Monroeville, 409 U. S. 57, a conviction in another mayor’s court was

invalidated

even though the fines assessed went only to the town’s general fisc, because the mayor faced a “ ‘

possible temptation’ ” created by his “executive responsibilities for village finances.” Id., at 60.

5. Recusal was also required where an Alabama Supreme Court justice cast the deciding vote

upholding a punitive damages award while he was the lead plaintiff in a nearly identical suit

pending in Alabama’s lower courts. Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813.

6. In re Murchison, 349 U. S. 133. Finding that “no man can be a judge in his own case,” and

“no man is permitted to try cases where he has an interest in the outcome,” id., at 136, the Court

noted that the circumstances of the case and the prior relationship required recusal.

PLAINTIFF’S SURREPLY TO DEFEDANTS’ MOTION TO DISMISS


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7. In Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009) the Supreme Court ruled that a

judge cannot hear a case that centers on the financial interests of someone who supported him

substantially in his campaign for election. In this case the Supreme Court disqualified the State

Court judge.

8. As evidenced above, there is ample precedent that the District Court can intervene in State

Court proceedings when the State Court judge has a financial interest in those proceedings or a

conflict of interest either by compelling recusal or by disqualifying the State Court judge .

9. Plaintiff prays that the Court restore his right to Due Process under the 14th Amendment

by either disqualifying Judge Towery or by compelling Judge Towery to recuse himself.

Dated this 17th day of September, 2018

​ /s/ Ben Zimmerman______

Ben Zimmerman, in pro per


501 W. Glendale Blvd #604
Glendale, CA 91202
650 861-7124

PLAINTIFF’S SURREPLY TO DEFEDANTS’ MOTION TO DISMISS


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