So one of the complex legal concepts that I’ve learned while blogging about these Obama eligibility lawsuits is that when someone moves for the court to do something, the other side gets to respond and then the first folks get to reply. It’s an A→B→A thing.
Here we have the Defense motion in Melendres v. Arpaio demanding Judge Snow disqualify himself, to which the Plaintiffs objected, and now the Defense (Arpaio) replies. You can read it from the most excellent Jack Ryan collection at Scribd.
When I wrote about Arpaio’s initial motion appealing to 28 USC § 144, I said they had made a mistake. Apparently I was right, since it is thrown under the bus in the reply:
Even presuming that a motion brought pursuant to 28 U.S.C. § 144 may be precluded, the Court must still consider the motion under 28 U.S.C. § 455. Adesanya v. W. Am. Bank, 19 F.3d 25 (9th Cir. 1994). Regardless of § 144, then, Defendants’ Motion must be considered under § 455.
What is troubling about the response is an apparent lie:
First, even Plaintiffs acknowledge that both Arpaio and Sheridan testified that the Montgomery investigation stopped long before the April 2015 OSC hearing after they deemed Montgomery to not be credible.
Arpaio himself testified that they were “finishing up” the investigation at the OSC hearing in April.
Finally, the Defense never explains how Judge Snow’s wife would ever be a witness in the contempt of court process. She might be a witness in some sort of a recusal hearing, but that would be by another judge, and hence no bias.
Not sure why anyone would be surprised by a lie from Arpaio at this point.
Oh, wait. You said “troubling,” not “surprising.”
Finally, the Defense never explains how Judge Snow’s wife would ever be a witness in the contempt of court process
To be charitable, if the judge cites as a basis for the criminal contempt referral disrespect/distain of the court, then the judge or his wife might be a witness.
But if that is a basis for the referral, then the criminal contempt proceedings would be heard by another judge. So no problem or conflict.
So, yes, the defendants failed to explain how the judge might be required to hear his wife’s testimony or testify himself.
And the much more likely basis for the referral will be the willful refusal to comply with the court’s injunction.
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Bob, would you explain this? I’m not sure I understand what you are saying.
Anyhow, I don’t think it was improper for Arpaio’s legal team to interview someone who claimed to have evidence of judicial bias, so I don’t expect it to be factor in the Judge’s decision/referral.
I’m sure that little skidmark john will have some magical excuse for this. He’ll “Feel” that something should be a certain way, but isn’t, and therefore Arpaio is in the right, or some such nonsense like that.
Thanks, because I didn’t think it was improper either, and wondered if I just didn’t understand some kind of ethical rule that seemed counter intuitive.
This article is one of the reasons I don’t read The Fogbow much. In this case, I did read The Fogbow, and the article above is colored by (maybe even derivative of) what I read there. I’d rather this blog be independent. I would recommend, however, that other people read The Fogbow.
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Fogbow has some insightful commenters, and I especially appreciate that Tes quickly provides the links to new filings.
I think any attorney values input from others when analyzing a case, so I don’t see why you should be concerned about drawing upon whatever analyses are offered in other forums that help you with your own analysis.
BTW, Doc, I have an edit for you: when someone moves for the court to do something, the other side gets to “respond” and then the first folks get to “reply” back. (these are actually technical terms that are not interchangeable).
There are different bases for a criminal contempt referral. One basis is a party’s disrespectful/disdainful behavior toward the court. And if that’s a basis, then the criminal contempt referral automatically goes to a different judge.
There’s an argument to be made that’s the defendants were dispectful. But I don’t think that’ll be a basis for the criminal contempt referral.
So Doc C. is correct the defendants have not articulated a scenario in which the judge would be presiding *and* he (or his wife) would be a witness.
Bob, thanks for clarifying.
Thanks for the correction.
A long, long time ago, I can still remember when the Birthers use to make me smile.
And I knew if I had the chance, to laugh at Birthers when they rant, that may be I’d be happy for a while.
2008, had made them shiver when election results they were delivered. It was bad news on their doorsteps and in protest they shouted “what the heck?”
I can’t remember if I cried, when their delusions of victory began to subside, but something touched me deep inside the day the Birther movement died.
So bye, bye Birther pie in the sky. Hawaii sure was great till the donations went dry. Now them good ole boys are all caught up in their lies and say we hope they still believe that we tried,
Yes, we hope they still believe that we tried.
Well for six years they’d been on their own……………
**Want the rest of the verses? Let me know.**
Yep, Doc’s going to have to rename this place ArpaioConspiracyFacts, birthers are now just a footnote in history…and Arpaio’s court cases will still be going on long after the next election.
Yes, I hardly ever look through the birther things at TFB. SovCits are the “new thing”.
Not for me. I can stomach most looney theories but not legal ones. Which is why I don’t engage Vattelists anymore. One can always argue about facts (where Obama was born, whether there is “enough proof to convince even the greatest skeptic” etc.), but arguing about the law against an “it is so because I want it to be so” perspective is physically painful to me.
The birthplace argument had some appeal because at least there was a very remote chance it could be true (because its initial version only requires a handful of conspirators), but arguing that 200 years of legal history are all part of some grand conspiracy of millions of people is just not my cup of tea.
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Does Klayman ever make an argument that doesn’t include some version of, “In all my many years as an attorney, I have never seen anything so egregious….”?
And if Montgomery is serious about intervening in this case, why doesn’t he get an Arizona lawyer who is without an ethical conflict in the case?
Delongleggedmackdaddy
June 24, 2015
**Want the rest of the verses? Let me know.**
Yes, let’s see all of the verses.