Motion to Disqualify Judge Janis L. Sammartino for Prejudice
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
| Laura Lynn Hammett, Plaintiff, v. MARY E. SHERMAN, et.al. Defendants | Case No.: 19-CV-0605-JLS-AHG PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR DISQUALIFICATION OF THE HONORABLE JANIS L. SAMMARTINO MEMORANDUM OF POINTS AND AUTHORITIES WITHIN AFFIDAVIT IN SUPPORT FILED CONCURRANTLY Date of Hearing: October 1, 2020 Time: 1:30 p.m. Place: Courtroom D Hon. Janis L. Sammartino presiding Hon. Magistrate Allison H. Goddard |
NOTICE OF MOTION
TO EACH DEFENDANT AND ITS ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT on October 1, 2020, at 1:30 p.m. or as soon thereafter as the matter may be heard, in Courtroom D of the above entitled court, located at 221 West Broadway, San Diego, CA 92101, Plaintiff Laura Lynn Hammett will, and hereby does, move for the disqualification of the Honorable Janis L. Sammartino, pursuant to 28 U.S.C. §§ 144 and 455, on the grounds that there is evidence of bias in favor of the defendants and prejudice against the plaintiff. This motion will be based upon the memorandum of points and authorities within, the affidavit of Laura Lynn Hammett, the exhibit attached, the Certificate of the Plaintiff in pro se, and all pleadings and records on file in this action.
Plaintiff requests determination by a judge other than Judge Samartino pursuant to 28 U.S.C. §144.
MOTION
Plaintiff Laura Lynn Hammett (“Plaintiff” or “Hammett”) hereby moves to disqualify the Honorable Janis L. Sammartino as the sitting judge in the present case on the grounds of 28 USC Sections 144 and 455. As set forth in more detail in the memo, this motion is based on evidence contained in the supporting Affidavit of Hammett. This includes Judge Sammartino’s refusal to allow the Plaintiff representation on a limited scope by special appearance for a derivative cause of action that Plaintiff could not legally argue pro se, which makes access to justice impossible for the modest means litigant; failure to require the derivative action to be advocated for by a person authorized to practice law, rendering it and the judgments based on it null and void, increasing the time and expense of litigation needlessly for all parties and the court; admonishment to the Plaintiff that chilled her First Amendment right to petition for presenting a grievance about a court staff member, after the Plaintiff presented written testimony and documentary evidence of backdating of a docket entry by the clerk; and decisions on this case that are contrary to reasons given for decisions she has made on other cases.
The backdating clerk also told Plaintiff that Judge Sammartino told him what her decision on a motion was going to be before an opposition was filed, as discussed in the affidavit and memo.
The combination of clerk backdating at the request of opposing counsel and the Court’s admonishment not to make accusations, on what the court called “gratuitous speculation”, is a violation of Plaintiff’s civil rights under color of law for which Plaintiff intends to file a separate suit.[1]
Finally, the Court made a convoluted order, unlike any she ever made before, that “closed” and “terminated” the case before leave to amend had expired. Plaintiff was forced to file a notice of appeal to protect against a claim that the orders became final when “closed” and “terminated”, and the 30-day time to file a notice of appeal had passed, rendering the orders unappealable. This caused the plaintiff to pay filing costs for the appeal and hire an appellate attorney to write the brief if the appellate court found the odd closing procedure rendered the case “final”. The appellate court did not find the case to be final, and so defendants have filed motions for attorney fees for the appeal. In other words, Judge Sammartino’s bizarre closing with leave to amend caused Plaintiff more time, more stress and more money in violation of FRCP Rule 1. (Aff. ⁋⁋49-60)
The only reasonable appearance left by the foregoing is that the Honorable Janis L. Sammartino has a bias that makes her unsuitable to preside on this case and an informed, rational, objective observer would doubt her impartiality.
MEMORANDUM OF POINTS AND AUTHORITIES
TABLE OF CONTENTS
Table of Authorities Page 4
Affidavit Annotated Page 6
Argument Page 10
- The Affidavit of Laura Lynn Hammett is Timely Filed Under 28 U.S.C. § 144
Page 10
- Hammett Set Forth Facts in Her Affidavit Requiring Recusal Page 12
- Disqualification is Also Required Under 28 U.S.C. § 455(a) in Order to Avoid an Appearance of Bias or Partiality Page 14
- Conclusion Page 17
TABLE OF AUTHORITIES
American Textile Mfrs. Institute, Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir. 1999)…………………………………….10
Bernard v. Coyne (In re Bernard), 31 F.3d 842, 847 (9th Cir. 1994)……….11
City of Downey v. Johnson, 263 Cal.App.2d 775, h.n. 3………………..7
Davis Test Only Smog Testing v. Department of Consumer Affairs, 15 Cal.App.5th 1009, (2017) h.n.2)………………………..7
Kennedy v. Kennedy, 235 Cal. App. 4th 1474, 186 Cal. Rptr. 3d 198 (2015), as modified (Apr. 22, 2015)h.n.2……………….8
In re Larson, 43 F.3d 410, h.n. 6 (8th Cir. 1994)………………11
Liljeberg v. Health Services Acquisition Corp. 486 U.S. 847, 860-61 (1988)….14
Liteky v. U.S., 510 U.S. 540, h.n. 3 (SCOTUS 1994)………..12, 16
In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997)…….12, 16
McDermott, Will & Emery v. Superior Court, 83 Cal. App. 4th 378, 379, 99 Cal. Rptr. 2d 622 (2000) ……………….7
Melendres, 2009 WL 2132693, at *15, 2009 U.S. Dist. LEXIS 65069, at *52-53…17
Morris v. U.S., 26 F.2d 444, 449 (8th Cir. 1928………………11
People By & Through Dep’t of Pub. Works v. Malone, 232 Cal. App. 2d 531, 537, 42 Cal. Rptr. 888, 892 (Ct. App. 1965)……………………………………..8
Phillips v. Tobin, 548 F.2d 408, 415 (2nd Cir. 1975)………….7
Reiffen v. Microsoft Corp., 158 F.Supp.2d 1016, 1022 (N.D. Cal. 2001)…………12
Tenants & Owners in Opposition to Redevelopment (TOOR) v. HUD, 338 F.Supp.29, 32 (N.D. Cal. 1972)………………………………………………..10
U.S. v. Holland, 519 F.3d 909, 911 (9th Cir. 2008)…………….16
United States v. Kelley, 712 F.2d 884, 889 (1st Cir. 1983)…….12
United States v. Partin, 312 F.Supp. 1355, 1359 (D. La. 1970)….12
U.S. v. Sibla, 624 F.2d 864, 867-68 (9th Cir. 1980)………………14
United States v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996)……..15
28 USC 144………………..10, 12, 13
28 USC 455………………..12, 13, 14
18 USC 1001……………….10, 15
AFFIDAVIT ANNOTATED
The Honorable Janis L. Sammartino was assigned to this matter when the complaint was filed on April 2, 2019. (Docket)
Plaintiff did not serve summons on the defendants until after filing a First Amended Complaint (“FAC”) on May 29, 2019. (Docket)
Herein the abbreviations will be used for each defendant named in the caption of the FAC, ECF No. 3:
Mary E. Sherman, an individual, “Sherman”;
Mary E. Sherman, as manager of Silver Strand Plaza LLC, “the Manager”;
Mary E. Sherman as trustee of the various irrevocable trusts, collectively “the Grandchildren’s Trusts”;
Mary E. Sherman and Jeffrey M. Sherman as co-trustees of the J&M Sherman Family Trust, collectively “the J&M Trust”;
Diane Dennis, an individual, “Dennis”;
Linda R. Kramer, an individual, “Kramer”;
Linda R. Kramer and Erik Von Presintin Hunsaker as co-trustees of the Lynn and Erik’s Trust, “the L&E Trust”;
Silver Strand Plaza, LLC, “SSP”;
Ellis Roy Stern, Esq., “Stern”, Alan N. Goldberg, Esq., “Goldberg”, Stern & Goldberg, Patrick C. McGarrigle, Esq., “McGarrigle” and McGarrigle, Kenney & Zampiello, APC, collectively “Attorney Defendants”.
The Grandchildren’s Trusts, J&M Trust, Dennis and Kramer are collectively “the Member Defendants”.
The clerk who customarily makes docket entries for cases presided over by Judge Sammartino is known to Plaintiff as “JPP” or “Jude”.
In the FAC, Plaintiff included a “derivative” cause of action of legal malpractice against the Attorney Defendants who represented SSP and simultaneously, all the other defendants. (Affidavit (“Aff.”) ⁋⁋ 2)
Plaintiff filed a Motion for Leave to Retain Representation on Limited Scope on July 22, 2019. In it she stated she could not afford an attorney for all causes. One need was “for explanation of particularly complex issues like Derivative causes of action.” (Aff. ⁋⁋ 5, 6)
Judge Sammartino denied the motion. (ECF No. 22)
Plaintiff who is not authorized to practice law learned that a derivative action is “on behalf of an LLC. (Aff. ⁋⁋ 8, 9) “A derivative action, in contrast, does not transfer the cause of action from the corporation to the shareholders. Rather, the cause of action in a shareholder derivative suit belongs to, and remains with, the corporation.” (McDermott, Will & Emery v. Superior Court, 83 Cal. App. 4th 378, 379, 99 Cal. Rptr. 2d 622 (2000); also, Phillips v. Tobin, 548 F.2d 408, 415 (2nd Cir. 1975))
Judge Sammartino never admonished Plaintiff that a derivative suit is on behalf of an entity that must be represented by a person authorized to practice law. She did not, and still has not mentioned that derivative suits presented by persons who are unauthorized to practice law are null and void. (Aff. ⁋10; City of Downey v. Johnson, 263 Cal.App.2d 775, h.n. 3; Davis Test Only Smog Testing v. Department of Consumer Affairs, 15 Cal.App.5th 1009, (2017) h.n.2)
Judge Sammartino did not acknowledge or comment on the reason why Plaintiff made the voluntary dismissal in the “Order Denying as Moot Motions to Strike or, Alternatively, to Dismiss Filed by [the Attorney Defendants]” which she made “[i]n light of Plaintiff’s voluntary dismissal of her fifth and sixth causes of action against the Moving Defendants”. (Aff. ⁋11, ECF No. 39, 2:3-4)
Judge Sammartino erred by ignoring that dismissal required Court approval. (See ECF No. 39 in general; “Dismissal of a shareholder derivative claim requires court approval.” (Kennedy v. Kennedy, 235 Cal. App. 4th 1474, 186 Cal. Rptr. 3d 198 (2015), as modified (Apr. 22, 2015)h.n.2))
Judge Sammartino did make several other sua sponte arguments against Plaintiff when denying motions Plaintiff filed, such as denying a motion for an extension of time to amend the complaint due to the Coronavirus Pandemic, because Plaintiff neglected to provide notice to opposing council first. (Aff. ⁋12, ECF Nos. 118 and 119) All sua sponte arguments were adverse to the Plaintiff, or where they should have supported the Plaintiff’s position, were misapplied.
Judge Sammartino knew or should have known the derivative cause was “on behalf of SSP” and Plaintiff was not authorized to proceed to advocate for the interests of SSP. “What [party unauthorized to practice law] purported to do for [other party] in place of an attorney was a nullity, and that fact should have been known to the court and to opposing counsel.” (People By & Through Dep’t of Pub. Works v. Malone, 232 Cal. App. 2d 531, 537, 42 Cal. Rptr. 888, 892 (Ct. App. 1965))
By allowing Plaintiff to advocate for a limited liability company and denying the right to delegate that duty to a person authorized to practice law, Judge Sammartino was causing prejudice to the interests of SSP that Plaintiff wanted to protect, and was ordering the continued violation of law. She was increasing the costs of the administion of justice in violation of FRCP Rule 11, as the orders based on the derivative cause of action, such as attorney fees for the anti-SLAPP, are nullities. They were wasteful exercise.
Jude made an error in entering the FAC defendants into the docket.
He entered Linda R. Kramer without the tag, an individual or as co-trustee of the Lynn and Erik’s Trust”. He did reference Mary E. Sherman in all her capacities correctly, the number of times she was named. (Aff. ⁋14)
On July 30, 2019, attorney Keith Cochran filed a Motion to Dismiss (“ L&E Trust MTD”). On the face above the caption it said “Attorneys for Defendants Linda R. Kramer and Erik Von Pressentin (sic) Hunsaker as Co-Trustees of the Lynn and Erik’s Trust”. No mention of “Linda R. Kramer, an individual”, was made on the face of the L&E Trust MTD, except in the caption. (ECF No. 19)
Plaintiff filed a request for entry of clerk’s default on August 1, 2019. (Aff. ⁋20, ECF Nos. 23 and 25)
Instead of entering clerk’s default, Mr. Cochran and Jude conspired together to alter the docket to reflect that Kramer had joined with the L&E Trust Defendants to file the L&E Trust MTD on July 29, 2019. They were going to deny Plaintiff equal protection under the law by altering the docket. (Aff. ⁋⁋21-28)
When Mr. Cochran and Jude learned that there was a copy of the unaltered docket, the alterations were changed back, but clerk’s default was still not entered.
This was a serious violation of Plaintiff’s First Amendment right to due process.
Shockingly, Judge Sammartino did not compel the Clerk to enter default.
Instead she wrote an admonishment that chills the Plaintiff’s right to petition for redress of grievances. (Aff. ⁋⁋30-34; ECF No. 111, f.n. 13)
Further, Jude expressed belief that he knew that the Judge was going to deny the motion to compel before the motion was fully briefed. (Aff. ⁋⁋35-38)
39. I noticed that all Judge Sammartino’s orders appear like she is representing the defendants, which is not usually a reason for disqualification. But as the defendants’ attorney, Judge Sammartino is making arguments that violate Rule 11.
Judge Sammartino made sua sponte arguments against Plaintiff’s interests, which is allowed, but the arguments and application of law, if made by an attorney, would violate FRCP Rule 11. There is a huge difference between an honest difference of opinion and purposefully throwing a lawsuit. (Aff. ⁋⁋39-48)
Judge Sammartino created confusion and misunderstanding when she wrote the Order of March 23, 2020. She used a rarely used procedure that seems to be exclusively used on pro se litigants who are usually incarcerated, often asking for appointed counsel, and often incoherent. The procedure screams “Go away! You lose!” (Aff. ⁋⁋49-60)
Plaintiff does not know the reason for Judge Sammartino’s bias and prejudice. It may be that Plaintiff reported unflattering information about a colleague. It might be a bias against all pro se litigants. But the bias and prejudice is distinct and absolutely apparent. (Aff. ⁋⁋61-67)
ARGUMENT
I. THE AFFIDAVIT OF LAURA LYNN HAMMETT IS TIMELY FILED UNDER 28 U.S.C. § 144
Since the United States District Court for the Southern District of California does not sit in specific sessions or terms, but is deemed to be in continuous session, there is no specific “timely” period for filing an Affidavit pursuant to 28 U.S.C. § 144. By extension from the fact that there is no “term,” there is no ten-day period. Accordingly, even where there can be no good cause shown for delay, an affidavit will be considered timely filed, and timeliness will be dealt with as a matter of weight rather than admissibility. (Tenants & Owners in Opposition to Redevelopment (TOOR) v. HUD, 338 F.Supp.29, 32 (N.D. Cal. 1972))
“[A] litigant’s duty to investigate the facts of his case does not include a mandate for investigations into a judge’s impartiality.” (American Textile Mfrs. Institute, Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir. 1999)). In this case, Plaintiff did undertake a preliminary investigation of Judge Sammartino’s impartiality. However, in Plaintiff’s past experience, she has had four judicial officers voluntarily recuse themselves from cases involving the Plaintiff and two of those were unknown to Plaintiff before their recusal. (Aff. ⁋⁋61-64) Even with her hypervigilance due to past experience, Plaintiff did not find any reason to justify filing an affidavit under 28 U.S.C. § 144. It was not until the Court made its absurd order of March 23, 2020 with the admonishment not to report alleged violations of 18 U.S.C. 1001 and Plaintiff came upon the caselaw that shows it is the duty of the trial judge to advise the representative on behalf of an LLC that she may not advocate on behalf of the Company that the Plaintiff knew there is an actual bias. (Morris v. U.S., 26 F.2d 444, 449 (8th Cir. 1928) (affidavit was timely filed immediately before trial where “on several occasions defendant requested his attorneys to prepare and file application to disqualify the trial judge,” but attorneys disagreed with him until he obtained new information which was imparted to his attorneys)).
Only in light of these more recent discoveries did a motion to disqualify appear fully justified and appropriate. “A lawyer who reasonably believes that the judge before whom he is appearing should not sit must raise the issue so it may be confronted and put to rest. Any other course would risk undermining public confidence in our judicial system.” (Bernard v. Coyne (In re Bernard), 31 F.3d 842, 847 (9th Cir. 1994)).
This must be weighed against the burden on the movant to show objective prejudice. “Judge is presumed to be impartial, and parties seeking recusal bears substantial burden of proving otherwise.” (In re Larson, 43 F.3d 410, h.n. 6 (8th Cir. 1994)) The Plaintiff waited until the evidence against the Judge was overwhelming to file this motion.
The timing of the order granting all dismissals with leave to amend was also suspect. The Court waited five (5) months after the motions were fully briefed to issue her order on March 23, 2020. Then, in the beginning of the Coronavirus Pandemic lockdowns, Judge Sammartino issued her strange order. Plaintiff was overwhelmed with the rest of the country with physical illness and acute anxiety and asked for a stay of proceedings which was granted until August 7, 2020. (ECF Nos. 126 and132)
While seventeen (17) months have passed since Plaintiff filed this case, twelve (12) of those were in a holding pattern. A hypersensitive person might suspect Judge Sammartino’s bias from the first denial of counsel to explain the derivative action. The Plaintiff did not know though that the denial was encouraging an illegal act. She thought the Court’s attitude did not promote adjudication on the merits or economics of resources, but she did not realize it was outright wrong.
This motion and affidavit are filed two weeks after Plaintiff filed her SAC, which is the first amended complaint that was served on the defendants. This while Plaintiff is in treatment for acute situational anxiety.
In view of the foregoing, this affidavit and motion are timely.
II. HAMMETT SET FORTH FACTS IN HER AFFADAVIT REQUIRING RECUSAL.
A legally sufficient declaration under 28 U.S.C. § 144 must meet the following requirements: (1) the facts are material and stated with particularity; (2) the facts are such that, if true they would convince a reasonable person that a bias exists; and (3) the facts show that the bias is personal, as opposed to judicial, in nature. (Reiffen v. Microsoft Corp., 158 F.Supp.2d 1016, 1022 (N.D. Cal. 2001))
Section 144 requires a district judge to accept the moving party’s affidavit as true. (In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997)) While a trial judge may not pass upon the truth of the matters asserted in the moving party’s affidavit, a trial judge is not required to recuse himself immediately, because the “judge must pass upon the legal sufficiency of the affidavit.” (United States v. Kelley, 712 F.2d 884, 889 (1st Cir. 1983)) Furthermore, “[s]ince sections 144 and 455 of 28 U.S.C. use similar language, and are intended to govern the same area of conduct, they have been construed in pari materia, and the test of the legal sufficiency of a motion for disqualification is the same under both statutes.” Id.
If an affidavit of bias or prejudice complies with the statutory standards set forth in this section concerning timeliness and legal sufficiency, then the judge against whom it is directed is obligated to recuse herself. A judge is required to recuse herself even if the judge believes (or knows with certainty) that the allegations of bias and prejudice made against her are false. (United States v. Partin, 312 F.Supp. 1355, 1359 (D. La. 1970))
“Recusal is required whenever impartiality might reasonably be questioned. (28 U.S.C.A. § 455(a).” Citing Liteky v. U.S., 510 U.S. 540, h.n. 3 (SCOTUS 1994))
“Favorable or unfavorable predisposition can serve to be characterized as “bias” or “prejudice” requiring recusal because, even though it springs from the facts adduced or the events occurring at trial, it is so extreme as to display clear inability to render fair judgment; that is the “pervasive bias exception” to the extrajudicial source doctrine. (28 U.S.C.A. §§ 144, 455.”id. h.n. 9)
“Fact that opinion held by judge derives from source outside judicial proceedings is not necessary condition for bias or prejudice recusal, as predisposition developed during the course of a trial will sometimes suffice; fact that opinion held by judge derives from a source outside judicial proceedings is also not a sufficient condition for bias or prejudice recusal, as some opinions acquired outside the context of judicial proceedings will not suffice; it is thus more proper to speak of an extrajudicial source factor than of an extrajudicial source doctrine in recusal jurisprudence. 28 U.S.C.A. § 455(a).” (id. h.n. 14)
“Judicial remarks during course of trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases ordinarily do not support a bias or partiality challenge; they may do so if they reveal an opinion that derives from an extrajudicial source and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” (Id. h.n.17)
The Judge’s actions complained of evidence such deep-seated favoritism or antagonism as would make fair judgment impossible. (Id. at 541)
The facts stated in Hammett’s affidavit are material and are stated with particularity. As to their sufficiency to show bias for or against a party, Judge Sammartino’s refusal to allow Plaintiff to turn the derivative cause of action over to a licensed attorney, denial of counsel for the specific purpose of explaining a derivative action, from which the unlawful practice of law arose, and comments meant to keep an alleged violation of 18 U.S.C. 1001 by her clerk covered up are extraordinary measures that may be criminal, may be unethical, and are definitely signs of bias.
In 1974, Congress rewrote 28 U.S.C. § 455 to correct perceived problems in the disqualification statutes. Prior to 1974, both the technical and legal sufficiency requirements of section 144 had been construed strictly in favor of judges. Courts also operated under the so-called “duty to sit” doctrine which required a judge to hear a case unless a clear demonstration of extra-judicial bias or prejudice was made. Consequently, disqualification of a judge was difficult under section 144. In passing the amended 28 U.S.C. § 455, Congress broadened the grounds and loosened the procedure for disqualification in the federal courts.
Section 455 “is directed to the judge, rather than the parties, and is self-enforcing on the part of the judge.” (U.S. v. Sibla, 624 F.2d 864, 867-68 (9th Cir. 1980)) It “modifies section 144 in requiring the judge to go beyond the section 144 affidavit and consider the merits of the motion pursuant to section 455(a) & (b)(1).” (Id. at 868)
In Liljeberg v. Health Services Acquisition Corp. 486 U.S. 847, 860-61 (1988), the Supreme Court, quoting the lower court’s decision, stated:
The goal of section 455(a) is to avoid even the appearance of partiality. If it would appear to a reasonable person that a judge has knowledge of facts that would give him an interest in the litigation then an appearance of partiality is created even though no actual partiality exists because the judge does not recall the facts, because the judge actually has no interest in the case or because the judge is pure in heart and incorruptible. Under section 455(a), therefore, recusal is required even when a judge lacks actual knowledge of the facts indicating his interest or bias in the case if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge.
In sum, under section 455, “it is the appearance of bias or partiality that matters here, not actual bias.” (United States v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996)) In Tucker, prosecutors, relying “primarily on news articles,” sought the recusal of District Court Judge Woods from the trial of Governor Tucker, because of Woods’s close association with Hillary Clinton, wife of then-President Bill Clinton. Governor Tucker was indicted for financial crimes related to an investigation of President and Mrs. Clinton. (Id. at 1315, 1316) The news articles indicated that not only did the Clintons have a close relationship with Judge Woods, but also they had expressed their support of Governor Tucker, including after he was indicted.
The Tucker court held:
The Independent Counsel argues that, because of the “unmistakable appearance” of bias or partiality here, “reassignment is necessary to preserve the appearance and reality of justice.” [] We agree. Based on the information before us in this case, we conclude that the risk of a perception of judicial bias or partiality is sufficiently great so that our proper course is to order reassignment on remand. As we have discussed, Judge Woods’s link with the Clintons and the Clintons’ connection to Tucker have been widely reported in the press. Moreover, as the Independent Counsel has noted, “this case will, as a matter of law, involve matters related to the investigation of the President and Hillary Rodham Clinton.” [] Given the high profile of the Independent Counsel’s work and of this case in particular, and the reported connections among Judge Woods, the Clintons, and Tucker, assignment to a different judge on remand is required to insure the perception of impartiality.
(Id. at 1324-1325 (citations omitted))
In the instant case, Judge Sammartino has a longstanding and close working relationship with clerk Jude who Plaintiff alleges violated a criminal code 18 U.S.C. 1001 and who, in the least, should be disciplined and removed from this case for backdating a docket entry. Hammett further argues that the clerk conspired with counsel who represented the L&E Trust Defendants at the time, and subsequently, Kramer. A reasonable person would well question the ability of Judge Sammartino to be impartial in deciding the case in general, especially since a gravamen of the case is whom exactly the Attorney Defendants were representing.
Moreover, a separate Bivens action may arise from the clerk’s conduct and Judge Sammartino’s threatening admonishment in this case. Judge Sammartino may be called as a hostile witness in that case. Again, a reasonable person would easily question whether Judge Sammartino is able to impartially assess the evidence that Hammett asserts against Kramer that she did not file a timely response to the FAC and is therefore subject to default.
Moreover, judicial remarks during the course of litigation may also support a bias or partiality challenge “if they reveal an opinion that derives from an extrajudicial source.” (Liteky v. U.S., 510 U.S. 540, 555 (1994))
Footnote 13 of the March 23, 2020 order, has an implication that Hammett gave no evidence supporting her claims in the documents filed pertaining to the backdating of the docket, Judge Sammartino revealed her prejudice against Hammett and a belief that she files baseless claims.
Courts have also noted, in the context of recusal motions, that “the whole is sometimes greater than the sum of the parts. The cumulative effect of a judge’s individual actions, comments and past associations could raise some question about impartiality, even though none (taken alone) would require recusal. (In re Martinez-Catala, supra, 129 F.3d at 221)
“[A] judge may not sit in cases in which his impartiality might reasonably be questioned.” (U.S. v. Holland, 519 F.3d 909, 911 (9th Cir. 2008) (original emphasis) (internal quotation marks omitted)) “If it is a close case, the balance tips in favor of recusal.” Id. For that reason, the court in Melendres decided that recusal was appropriate: “No Court should tolerate even the slightest chance that its continued participation in a high profile lawsuit could taint the public’s perception of the fairness of the outcome. Certainly, this Court is unwilling to take such a risk.” (Melendres, 2009 WL 2132693, at *15, 2009 U.S. Dist. LEXIS 65069, at *52-53)
While the underlying case is not high profile and of little concern to the public, the Bivens action arising from the case may become high profile. The Plaintiff has been on Fox News and contributed to a series regarding corruption in the family law courts and is likely to bring this case to media attention in order to advocate for the rights of low and moderate income citizens to have access to civil courts. Clerk JPP and Judge Sammartino have elevated a mundane business and libel matter to a matter of deep public concern…the integrity of our courts.
IV. CONCLUSION.
The instant case involves an issue that is relevant in today’s political and societal climate. The common man, or woman, feels a lack of empowerment in our legal system. Unless misconduct committed by a police, lawyer or judicial officer is caught on video, it will too often go unpunished. In civil court, as Judge Sammartino pointed out, litigants don’t even have the Constitutional right to counsel. So, those without obscene wealth cannot afford justice. They are outlawyered. Unfortunately, as in this case, the court staff, including judges, may do favors for friends, such as backdating a docket entry. And no judge really cares to be called out on the bad behavior.
Against that backdrop, there is considerably more than the “slightest chance” that Judge Sammartino’s variance from her usual course of conduct “could taint the public’s perception of the fairness of the outcome.”
The Judge’s Bias and Prejudice is personal and Extrajudicial.
Because the acts that demonstrate bias came early, when the Court failed in its duty to protect the LLC derivative interests by informing Plaintiff that the derivative action was on behalf of the LLC, there was really no reason within the four walls of the courtroom that Judge Sammartino could develop her bias.
In fact, to date, Judge Sammartino has not spoken to the Plaintiff. The Court has no more experience with the Plaintiff’s demeanor than any other person reading the Plaintiff’s papers.
The Plaintiff’s words are polite and respectful. Even when describing behavior that is reprehensible, like a clerk of the court backdating a docket entry, Plaintiff does not cuss. She does not throw bricks through storefront windows or spray-paint expletives on the courthouse. She merely speaks what she thinks is the truth.
Plaintiff is not certain why Judge Sammartino was prejudiced.
If Judge Sammartino dislikes that Plaintiff reports injustice, then she should disqualify herself, rather than shooting the messenger. The Plaintiff has standing to ask her to do so, but the more important beneficiary is the People of the United States of America who long for justice for all.
Respectfully submitted,
Date ____8/22/2020_________ Signature__s/Laura Lynn Hammett___________
Plaintiff in Pro Se Laura Lynn Hammett
[1] The Plaintiff will not name Judge Sammartino as a defendant in the suit due to absolute judicial immunity, but Judge Sammartino will be called as a witness. The fair administration of justice is a competing policy with absolute judicial immunity even in the case where misconduct on the bench is clear, and can only be preserved by disqualification of the judge, disciplinary action or criminal prosecution under 18 U.S.C. 1001.
A Higher Law 