Does 28 USC 455(b)(4), prohibit judges from judging judges?

By: The Reluctant Activist

Disqualification of justice, judge, or magistrate judge

28 U.S. Code § 455

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate judge, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate judge, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification.
(June 25, 1948, ch. 646, 62 Stat. 908; Pub. L. 93–512, § 1, Dec. 5, 1974, 88 Stat. 1609; Pub. L. 95–598, title II, § 214(a), (b), Nov. 6, 1978, 92 Stat. 2661; Pub. L. 100–702, title X, § 1007, Nov. 19, 1988, 102 Stat. 4667; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117.)

The question that arises is when a “judge”, under his claimed “court rule powers”, dismisses a lawsuit before the case is presented to a jury. If that case is appealed because of the dismissal, doesn’t the consequence of the proceedings create a condition in which judges are judging judges and the powers judges claim under their court rules? And isn’t such a situation prohibited by 28 USC 455(b)(4)?

On the other hand, if a case is ‘tried by a jury’ and the jury’s verdict is appealed, the appellate judges would be reviewing the “jury’s” verdict and not solely the decision of a judge utilizing their own court rule powers?

This is the argument Bill Scheidler is presenting to the US 9th Circuit. Scheidler wanted to intervene in Anne Block’s lawsuit as a matter of right guaranteed by Washington’s Constitution Article 1, Sec 4. Anne Block is suing the Washington State Bar [WSBA] for racketeering. Because the Washington State Bar is an agency of the state and is suppose to regulate every lawyer in Washington State they owe Washington’s citizens a fiduciary duty — a matter of substantial public importance. This triggers Article 1, Sec 4 that provides every citizen the right to petition on matter of public importance. Anne’s case against the WSBA for racketeering is a matter of public importance.

However US Judge for the Western District of Washington at Seattle, Ricardo Martinez, who is a WSBA associate himself, denied Scheidler’s right to intervene. That decision is now on appeal. In Scheidler’s opening brief filed in that appeal he raises this “disqualification” under 28 USC 455 and the problem in “judges-judging-judges”.

I.Judge Martinez’s orders, which violate 28 USC 455 and 28 USC 1652, are per se violations of 28 USC 2072(b) and creates an “institutional conflict of interest” in its resolution” in violation of 28 USC 455(a and b).

Judge Martinez, under his claimed court rule authority, in dismissing Block’s case — an act prohibited by Article 2, Sec 28(17), has “abridged and modified” the substantive laws and rights of Anne Block and intervenor Scheidler and has “enlarged” the substantive powers of the defendants who are governmental entities and employees. This rearranging Washington State’s constitutional relationships between the “governed and the governing” under the guise of “court rule authority” is prohibited by 28 USC 2072(b), and dooms this case to “judges judging judges” – a fiduciary conflict specifically prohibited by RCW 28 USC 455(b)(4); and which Article 1, Sec 21 – the ‘inviolate right to a jury in civil actions’ would prevent.

The only authority these public-servant-defendants may exercise in dealing with Anne Block must be derived by the people and executed in a just manner– imposed by Article 1, Section 1. Any conduct not specifically authorized by Washington’s constitutional and law is “unauthorized”. Otherwise, the word “unauthorized” used in Article 2, Sec 28(12) would be meaningless.

Anne Block’s civil action, in which Scheidler, Taamu, and Diemond seek to intervene, concerns the conduct by these public-servant-defendants. Block’s “civil action” is not to be limited as Article 2, Sec 28(17) states. Nor shall Anne Block’s jury demand, as well as the intervenors’ jury rights, be denied because a jury trial is an inviolate right as Article 1, Sec 21 provides.

Furthermore a JURY is the means by which the “conditions of our society and role of our institutions” are established as Article 1, Sec 30 provides and RCW 4.04.010 states. Otherwise neither Article 1, Sections 1, 21, or 30, nor Article 2, Section 28(12 and 17) mean what they say.
Additionally, RCW 4.44.090 states, “All questions of fact other than those mentioned in RCW 4.44.080, shall be decided by the jury, and all evidence thereon addressed to them.”

All these constitutional provisions and statues are in harmony and clearly demand that a “jury” decides defendants’ claims and defenses, not judge Martinez.

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