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 Judge James. 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 must recuse." 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 28 U.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 the case. 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 and appearance of partiality as well as others, were repeated in subsequent Motions To Disqualify Judge James. EUGENE continued to meet the requirements of Liteky, and Judge James continued to give the appearance of having predetermined the outcome of each hearing and of the case, and to give the appearance of partiality against EUGENE in court, and to act without lawful authority.
1996). Doherty. 521 F. Taylor v. citing Osborn v.S. A judge. These declarations evidence not only Judge James appearance of predetermination and appearance of partiality against EUGENE. Id. According to Liteky. "It is important that the litigant not only actually receive justice. Health Services Acquisition Corp. Judge Thomas James impartiality is being. 927 F. and that he gave the appearance of partiality against EUGENE and an appearance of partiality in favor of the creditors.2d 842 (7th Cir. as he was before a judge who was not impartial. but his continuing predetermination (predisposition) of the outcome of the case and his continuing appearance of partiality against EUGENE. The failure of Judge James to recuse himself gives no validity to any Order issued on or after December 20. 1993 are void.Supp 295 (N. should be above suspicion. Additional declarations by other court observers. and not on any statute. that Judge James had given the appearance of having predetermined the outcome of that hearing. 468 F. Balistrieri. Whether or not a judge has disqualified himself. Liljeberg v. EUGENE does not believe that he has received justice. The Liteky court stated that under statute 28 U. 6 L. prejudice.D. The Sciuto court. an objective." Pfizer Inc. 1972). inter alia. among others.) 738.Ed 204 (1824). Simpson. Judge James had to disqualify himself. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely.The Liteky court further clarified the conditions for disqualification of a judge by a non-party to the proceeding. 888 F. 847. all orders issued on or since December 20. Littleton v. 608 F. Recusal is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process. Lord. 2194 (1988). Bank of the United States. he has no discretion. the judge must be disqualified.2d 1088. the law has disqualified him. He must disqualify himself.S. Berbling. v. 456 F. United States v. O'Grady. at 1162.S. It has been held that a judge's self-appraisal that he or she is able to preside impartially over the case is irrelevant. the court had no discretion (2). U. 1994. 1993. §455(a). Sciuto. who were non-parties to the proceedings.. Clay v. 412 (7th Cir.S. the judge has a duty to disqualify himself. questioned by both EUGENE and by non-party court observers who have attended hearings. detached observer of Judge James' December 20.2d 1189 (7th Cir. like Caesar's wife. On January 7.2d 532 (8th Cir. 1972). 1993 court hearing. 1989). 1090 (9th Cir. have been filed (3) attesting to Judge James appearance of partiality against EUGENE. 108 S. v." [Emphasis added]. filed an affidavit (1) stating.Ct. or the appearance of partiality is based on the Due Process Clause. Ill.
. has stated that the right to a tribunal free from bias. as they were issued by a disqualified judge. United States v. 866. 486 U. "Disqualification is required if an objective observer would entertain reasonable questions about the judges impartiality. Under prevailing law. 1991). and has been. 9 Wheat (22 U.2d 389. The Seventh Circuit had previously ruled that disqualification is selfexecuting. but that he believes that he has received justice. 1985).C. Whenever a judge has a duty.
his remarks. meaningful. The failure of Judge James to comply fully with his responsibility towards EUGENE. 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.S. would not find even one instance of where Judge James complied with the court's rulings on non-represented litigants. the Seventh Circuit issued an opinion is which it stated that it had reviewed the transcripts in a case involving another non-represented litigant. It has been held that where a judge violates a party's legal and/or constitutional rights. 521 F. In the Matter of CLDC Management Corporation.2d 842 (7th Cir. and overlook EUGENE's Rights. As recently as January 5. Sciuto.. Judge James has displayed an extreme appearance of partiality. Neither the Seventh Circuit. a non-represented party. against EUGENE. but this Court has ignored the court rulings and proceeded to deny. EUGENE has repeatedly reminded this Court of court rulings on this subject. The failure of Judge James to comply fully with his responsibility towards EUGENE would disqualify him from taking any action in this proceeding. his remarks. Appeal of: Irene M. it is directed against the appearance of partiality.779 F. sl. It would instead find multiple instances where Judge James violated EUGENE's legal and Constitutional Rights.3d ___ (7th Cir. Geschke and Clarence O. 1996. Zerbst.2d 1518 (7th Cir.. his claim of impartiality. 94-3586. and his predisposition.Ct. and timely access to the court"). Geschke. his prejudices. No. Article VI of the Constitution for the United States of America
. his claim of impartiality. 1985). 304 U. effective. In this respect. to be certain that the judge had given instruction/advice to the litigant. complete. nor any other court. 1985). it would also give to a non-party of the proceeding an appearance of bias. As a non-represented litigant. The critical question before this Court is not the assessment of Judge James as to his predisposition. op. 768 F. deprive. is a violation of EUGENE's due process Rights. full. and an appearance of partiality by Judge James. 1019 (1938). 458. 1996). should it decide to review the transcripts of each and every hearing before this Court. his biases. but what is the perception of objective. fair. United States v. the judge loses jurisdiction. 58 S. his biases. __ F.2d 1191 (7th Cir. 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. be a violation of the First Amendment to the Constitution for the United States of America. his prejudices. 1996). Not only would the failure of Judge James to comply fully with his responsibility towards EUGENE. non-party persons to his predisposition. United States v. Murphy. pursuant to case law. Johnson v. an appearance of prejudice.
they can be challenged and expunged in any court in the nation. 254 U. Northern Fire & Marine Ins. Since a void order/judgment has no legal existence. but not limited to. is acting within the law. The purported Orders of Judge James. If the person(s) enter the property in 1996 based on an order that is declared to be void in 1998. should any person(s) enter upon EUGENE's property without EUGENE's prior voluntary-given lawful written authorization. due process. 41 S.Ct. Supreme Court has held that void orders and/or void judgments are void even before reversal. to EUGENE's understanding.Judge James has violated. Furthermore. such as. The natural extension of an old Common Law principle that "a demurrer searches the record". Neither Judge James nor the purported Chapter 7 Trustee. since by law the void order does not exist. and no person(s) is engaging in any lawful purpose by attempting to enforce the void Order(s). And interesting. first obtained beforehand. Further.Vallely v. immunity does not apply to any person(s) involved in criminal conduct. there is no statute of limitations which restricts a person from challenging the lawful authority of any judge who issued the void order. even in New York City or in El Paso. that person(s) has engaged in criminal trespass of the property in 1996.. There is no requirement to challenge the void order within the venue in which it was issued. and there-fore can be challenged at any time. an Order that by law does not exist.S. such violations have ousted Judge James from any lawful authority in this matter. disqualified inter alia by his appearance of partiality. Should a Court in 1998 hold that an Order issued in 1996 was void. are void. even the lowest Court has authority to vacate it. as re judicata does not apply to them. Co. 116 (1920). no person(s) have any lawful authority to enforce them. when it was originally issued. 348. Since the void order/judgment is a nullity. Illinois. and continues to violate. VOID ORDERS/JUDGMENTS 3. Lawrence Fisher. No judge has any authority to attempt to enforce them. EUGENE's legal. requires a review of the entire record. The U. and Constitutional Rights. it is the only type of order that can be vacated by a Court lower than the Court that issued the void order/judgment. the person(s) have engaged in criminal trespass. it was also void in 1996.
. Void orders/judgments are legal nullities.S. Since the void order/judgment has no legal existence. in any State or Federal Court. entering upon EUGENE's property without EUGENE's voluntary-given written permission. In the current situation. void orders/judgments can be repeatedly challenged.
(5) CONCLUSION Under prevailing law.2d 875. C. 879 (1st Dist." Southerland v. for there is no statute of limitations to vacate a void order. for his appearance of partiality. Respectfully submitted. vacates all orders issued by Judge James issued since Judge James gave the first appearance of partiality. 338 Ill. Should any person enter EUGENE's property without EUGENE's voluntary-given written permission. The Full Faith and Credit clause does not apply to void orders.2d 978 (6th Cir. There is no time limit to challenge a void order. THEREFORE. Universal Oil Products Co.
B.. v. EUGENE prays that Judge James A. 481 (1949). when an affidavit has been filed by a non-party to a proceeding charging Judge James with the appearance of partiality. recuses himself for his appearance of predetermination (predisposition) of this case. 1949). As Judge James was disqualified by law as of December 20. 522-523 (3rd Cir. 169 F.Ct. 87. EUGENE has not given any person involved in any proceeding against EUGENE any voluntary-given written permission to enter his property. v.. 79. as evidenced by EUGENE and the various observers who have filed affidavits and declarations to sustain EUGENE's charges.S.2d 514. 1993. 997 (1943). Universal Oil Products Co.A person is not restricted by the eight(8)/ten(10)-day requirement in Bankruptcy Court..App. pursuant to the above cited case law. all of his Orders issued on or since December 20. or by the thirty(30) day requirement of the District Court to challenge any purported order of this court. 1994 charged Judge James with predetermination and the appearance of partiality at the December 20. since the purported Orders are a nullity and have no legal force or effect. "Furthermore. 1993 hearing. that person would be in criminal trespass of EUGENE's property. Rule 60(b)(4). Rules of Civil Procedure. 628 F. and it may be raised at any time. he is disqualified. 64 S. Under law. 912. Skelly Oil Co. 322 U. Judge James has no discretion on disqualifying himself from this action. but the Full Faith and Credit clause does apply to an Order vacating a void order. 86 N. v. Irons. 69 S.S. and/or for his deep-seated antagonism to EUGENE that has rendered fair judgment impossible. see Root Refining Co.
. 1993 are void.E. denied. a claim of fraud upon the court may be raised by a non-party. Hazel-Atlas Glass Co. vacates all orders issued by Judge James on or since December 20. for his appearance of bias. The affidavit of January 7. 238. 1993 or before.Ct. for his appearance of prejudice. Hartford-Empire Co. 1980). cert. 335 U. 1948).
in pro per.________________________ Eugene W. Alpern. sui juris