UNITED STATES COURT OF APPEALS FOR THE NINTH FEDERAL CIRCUIT. IN RE WILLIAM SCHEIDLER, Petitioner

Transcription

1 Case 3:12-cv RBL Document Filed 10/07/15 Page 1 of 26 UNITED STATES COURT OF APPEALS FOR THE NINTH FEDERAL CIRCUIT IN RE WILLIAM SCHEIDLER, Petitioner ON PETITION OF A WRIT OF MANDAMUS TO DISTRICT COURT OF WASHINGTON CASE 3:12-cv RBL Real Parties in interest William Scheidler, Plaintiff/Petitioner V James Avery, individually and in his official capacity as Kitsap County s Assessor; Alan Miles, individually and in his official capacity as Kitsap County s deputy prosecutor; M. Karlynn Haberly, Individually and in her official capacity; Kay S. Slonim, Individually and in her official capacity; Felice Congalton, Susan Carlson, David Ponzoha, Zachary Mosner, Ione George individually and in her official capacity, the Washington State Board of Tax Appeals (BoTA), the Washington State Bar Association, and Jane and John Does, Defendants/Respondent, and U.S. District Court of Western Washington, Respondent. WILLIAM SCHEIDLER Petitioner/Plaintiff Pro Per 1515 Lidstrom Place E Port Orchard, WA billscheidler@wavecable.com 1

2 Case 3:12-cv RBL Document Filed 10/07/15 Page 2 of 26 I. The relief sought. Oral Argument Requested. Scheidler seeks an extraordinary remedy - a WRIT of mandamus from the 9th Circuit directing all District Judges of Washington, who are Washington State Bar Associates, most particularly Judge Ronald B. Leighton, to disqualify as judge in Scheidler s case as 28 USC 455 (a) (particular to Judge Leighton) and (b) (germane to all WSBA associates who are judges) mandates for the reasons set forth below. Or an alternative WRIT directing the District Court set the matter of disqualification per 28 USC 455, for TRIAL before a jury to determine the facts, as set forth below, which will either qualify or disqualify Washington State Bar Associates from sitting as judge in this case. Scheidler requested these remedies in Dkt 110, V, filed with the District Court on August 20, Scheidler petitioned the District Court in Dkt 110, V for the following relief: 1) JURY DEMANDED: Issues of fact are for a jury as RCW provides. The FACTS that show Judge Leighton is biased by claiming Scheidler is VITRIOLIC and NOT LOGICAL ; SCHEIDLER S lawsuit addressing the fraud upon retired/disabled citizens is FRIVILOUS ON ITS FACE ; THIS COURT DOES NOT SIT IN JUDGEMENT OF STATE COURT DECISIONS ; SCHEIDLER CANNOT AMEND HIS COMPLAINT, which were all REVERSED on APPEAL are issues of FACT for a jury to decide whether Judge Leighton is BIASED by being either CORRUPT or INCOMPOTENT (sic). 2) JURY DEMANDED: Issues of fact are for a jury as RCW , supra, provides. The FACTS and AUTHORITIES Scheidler cites in the Exhibits attached in support of Scheidler s motion to disqualify Judge Ronald B. Leighton are FACTS that prove Judge Pechman committed a FRAUD UPON the COURT in her claim Scheidler has not cited any FACTS nor AUTHORITY in support of his motion to disqualify Judge Leighton. 2

3 Case 3:12-cv RBL Document Filed 10/07/15 Page 3 of 26 3) DECLARE General Rule 8 is in violation of 28 USC 2072(b) as it seeks to enlarge 28 USC 455 and RCW , by adding words to these laws as to what FACTS are or are not considered as an element of bias, and by modifying the disqualifying statute that requires justices, judges or magistrate judges from sitting in judgment of their own conduct. This "motion, dkt 110" was denied by Judge Leighton, dkt 113. Scheidler has been threatened with sanctions, by Judge Leighton, because Scheidler is seeking a fair trial which was improperly denied once by Judge Leighton due to his abuses of discretion in dismissing Scheidler s case in 2012, which was reversed on appeal by the 9 th Circuit. A judge reversed for an abuse of discretion has disqualified sua sponte in Parham v Johnson (1998, WD Pa) 7 F Supp 2d 595. See Dkt 99, Appendix A, Offer of Proof. A WRIT is the only just and speedy remedy. II. The Issues Presented: Generally The laws particular to this WRIT include 28 USC 455 mandatory disqualification of a justice, judge or magistrate judge for cause; 28 USC 2072 the prohibition in judges using court rules to abridge, modify or enlarge any substantive right. (Meaning, judges may not abridge, modify or enlarge 28 USC 455 by using a court rule scheme); and RCW to 230 which require that Washington State s Rules of Professional Conduct and Code of Judicial Conduct (CJC) be followed by Washington State Bar Associates, including Bar associates who serve as judges, and that means Federal District Court Judges who are Bar Associates. CJC 1, 2 and 3 require A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. A judge should respect and comply with the law and A 3

4 Case 3:12-cv RBL Document Filed 10/07/15 Page 4 of 26 judge shall disqualify himself or herself in a proceeding in which the judge s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has a personal bias or prejudice concerning a party... Or, for an alternative writ that sets the facts before a jury. RCW is State Law that provides the people as the ultimate arbiters of government conduct as Washington s Constitution Article 1, Sec 1 and Sec 30 provide. These laws and the ethical codes these laws refer to, i.e., Rules of Professional Conduct and Canons of Judicial Conduct, are either ignored or are violated by Washington State Bar Lawyers and the judges the Bar spawns. Such violations of a provision of law regulating official conduct is a gross misdemeanor under Washington law, RCW The motives in violating these laws with apparent impunity, by many Washington State Bar Lawyers and the judges therefrom, are to engage in case fixing in order to obtain an intended outcome by abridging the peoples powers and enlarging the Bar s powers over citizens. Said another way, Bar Associates create the controversy and then judge for themselves the facts particular to the controversy they created as a means to manipulate the process and gain increased power. It is a FRAUD upon the PEOPLE a RICO 1 enterprise masquerading as justice. This RICO enterprise has taken root in Washington s legal establishment and is managed by Washington State Bar lawyers. The known defendants named in this 1 18 U.S. Code Chapter 96 - RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS 4

5 Case 3:12-cv RBL Document Filed 10/07/15 Page 5 of 26 case operate within the Washington State Bar and in public and private office by using the courts, with the help of Bar Associates who are judges, such as Judge Leighton, to further their criminal purposes and financial gain as briefly described below. Appendix A contains Scheidler s motions with supporting documentation to disqualify WSBA associates, particularly Judge Leighton from his case. Also included in App A are defendants papers that apparently defend Judge Leighton from his own conduct under 28 USC 455; and Judge s Leighton and Pechman s self-serving rulings with respect to Scheidler s arguments and offers of proof. Dkt 56 w Ex 1, 2, 3. Scheidler s motion for disqualification of Judge Leighton based in 9th Circuit s ruling reversing and remanding Scheidler s case that was dismissed by Judge Leighton s abuse of discretion and caused a 2-year delay in Scheidler s case. Dkt 57. Judge Leighton s refusal to disqualify under claims unrelated to Scheidler s argument. Dkt 86. Motion for disqualification of ALL WASHINGTON STATE BAR Associates for conflict as Washington State Bar was added as defendant in Scheidler s amended complaint. Dkts 87 and 88. Defendants pleadings in defense of Judge Leighton s refusal to disqualify. Dkt 91 and Scheidler objection and affidavit to Defendant s pleading in defense of Judge Leighton. Dkt 99. Scheidler s offer of proof Dkt 107 w/ attachment 2. Judge Leighton s refusal to recuse and copy of transcript of disqualification motion. Dkt 109. Judge Marsha Pechman s order rubber stamping Judge Leighton s refusal to recuse as opposed to disqualify under 28 USC 455(b), claiming, untruthfully, Scheidler presented no facts nor authority. Dkt 110 w/attachments dkt Scheidler s object and motion to Strike Judge Pechman s order (dkt 109) for Fraud upon the Court claiming Scheidler didn t cite fact nor authority supporting the disqualification of Judge Leighton. Dkt 111. Scheidler s supplement to Dkt 110 citing Chief Judge of the 9 th Circuit Kozinski disqualifying Judge Pechman when the WSBA is a defendant, as in this case. Dkt 113. Judge Leighton s order DENYING Scheidler s OBJECTION and motion to Strike and Threatens SANCTIONS if Scheidler seeks, in District Court, his due process right to a fair trial. Judge Leighton s order is premised 5

6 Case 3:12-cv RBL Document Filed 10/07/15 Page 6 of 26 upon the notion citizens have no authority over the governments that serve them. In other words, Judge Leighton has rendered Article 1, Section 1 of Washington s Constitution irrelevant by Denying Scheidler s objection and demand the people have their say about the FACTS of this matter. Specifically at Issue: A. Are Justices, Judges and Magistrate Judges, particularly Judge Leighton and Judge Pechman, engaged in a FRAUD upon the COURT and a FRAUD upon SOCIETY in making factual determinations about their own powers, lying about the facts at issue, ignoring precedent cases that disqualify Bar associates as judge when the Bar is defendant, and lying about the 9 th Circuits rulings in relation to their own conduct and thereby modify 28 USC 455 to obtain a desired outcome? Dockets 110 and dkt and docket 111, Appendix A, speaks to these facts underlying these allegations and incorporates them as if set forth in full. B. Have Federal Courts failed to establish uniform procedures to resolve the legal conflict and utter hypocrisy in the present court-rule scheme in which justices, judges and magistrate judges (a.k.a., judges ) grant themselves the sole authority to resolve controversies they create and center on the very laws these judges must obey, 28 USC 455 and 28 USC 2072, RCW and RCW and ethical codes of conduct? C. When justices, judges, and magistrate judges commandeer 28 USC 455, 28 USC 2072, RCW and RCW , by deciding their own compliance with these laws, lie about the facts and authorities raised by their conduct, and deny citizens their inherent powers over the governments that serve them as amply expressed in Article 1, Sec 1, and as RCW provides, doesn t that 6

7 Case 3:12-cv RBL Document Filed 10/07/15 Page 7 of 26 indicate Judges are using, corruptly, their court rule powers to abridge, modify and enlarge their own substantive rights, obligations, and limitations set by these laws and deny the people their inherent and retained powers as guaranteed by the Washington Constitution and laws? See again dkts 110, and 111. D. In Washington State, issues of FACT are for a JURY. See RCW And a JURY is an immutable right in civil and criminal actions in Washington State per Article 1, Section 21. A JURY is the arbiter of facts under the Seventh amendment to the US Constitution. The laws, 28 USC 455, 28 USC 2072, RCW , RCW and RCW are FACT dependent and regulate judicial officials and government servants. Therefore, it should be true, if court rules are not to abridge, modify or enlarge any substantive right, a Washington State JURY should decide the FACTS to determine the disqualification and misuse of court rules by justices, judges, and magistrate judges as the Constitution and laws of the United States and Washington require? NOTE: Peer pressure, and not the moral and ethical duty demanded by "officers of the court," influenced the 9 th Circuit in Ashelman v Pope. 3 In Washington State 2 RCW Questions of fact for jury. All questions of fact other than those mentioned in RCW , shall be decided by the jury, and all evidence thereon addressed to them. [Code ; 1877 p ; 1869 p ; RRS 343.] 3 Peer pressure to rule in the self-interests of judges (lawyers) is clearly expressed in Ashelman v. Pope, 793 F.2d 1072 (9th Cir. Ariz. 1986), The 9 th Circuit, which had been taking a harsh view of the immunity doctrine, and rightly so, noted that its decisions in Rankin, 633 F.2d at 847, we held that a judge's private, prior agreement to decide in favor of one party was not a judicial act giving rise to judicial immunity.in Beard, 648 F.2d at 1270, we held that a judge could be liable for participating in a conspiracy if the judge's acts were nonjudicial. However the 9 th Circuit changed its positions due to peer criticism NOT by SUPREME COURT REVERSAL! The 9 th Circuit states 7

8 Case 3:12-cv RBL Document Filed 10/07/15 Page 8 of 26 citizens, under RCW , have "protection" from such peer pressure bias running through the legal enterprise. RCW provides citizens, as in a jury, to overrule common law that is inconsistent with the people s plenary political powers; or judge made law that breaches Washington State s institutions or runs counter to the "moral and ethical" conditions of society. E. Was it improper for Ione George, WSBA#18236, Christine Palmer, WSBA#42560, and Nathan Kortokrax, WSBA#38555, who are defending the defendants, also represent Judge Leighton, their Bar colleague, against Scheidler s motion to disqualify Judge Leighton? [See Appendix A: Dkts 87 and 88, defendants answer in defense of Judge Leighton s refusal to disqualify. Dkt 91 and 91-1, Scheidler s objections] In effect, defendants counsels became Judge Leighton s counsels defending Judge Leighton from his own conduct. Scheidler s motion Our decisions have been criticized. In Dykes, the Eleventh Circuit, sitting en banc, held that a judge who conspires to deny a party federal constitutional rights is [*1077] immune from a damage action under section Dykes, 776 F.2d at 946; In Holloway, the Fifth Circuit concluded that "Rankin is inconsistent with the fundamental policies underlying judicial immunity." Holloway, 765 F.2d at 522; Our holding in Beard on prosecutorial immunity also has been criticized. In Lerwill v. Joslin, 712 F.2d 435, 436 (10th Cir. 1983), a prosecutor initiated a prosecution unauthorized by law. In light of the criticism directed to Rankin and Beard, we elect to reexamine the scope of judicial and prosecutorial immunity. This peer pressure to rule beyond the merits of a case is polluting our society with schemes concocted by lawyers for the benefit of lawyers and it must end. A JURY must decide issues of law to fact as the conditions of our society depend upon. See RCW common law is ONLY valid if it is consistent with the conditions of society. 4 RCW Extent to which common law prevails. The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state. [1891 c 17 1; Code ; 1877 p 3 1; 1862 p 83 1; RRS 143. Formerly RCW ] 8

9 Case 3:12-cv RBL Document Filed 10/07/15 Page 9 of 26 concerned conduct germane to 28 USC 455 and applies to judges. Defendants have no business being the de facto lawyer for Judge Leighton by entering pleadings defending the judge s conduct. The First Circuit has condemned such a tactic in O Donnell v Petit (In re Petit) (1997, BC DC Me) 204 BR 271. [Ref Dkt 99 at E; Dkt 107-7, pg 10, ln 4-22.] These issues present an obstacle without a resolution when judges act beyond their powers to commandeer the court and the judicial process and "expel citizens" from participation under court rule schemes so intended (biased) outcomes can be orchestrated. Furthermore, when counsels for defendants become the de facto counsels for the Judge in defending against violations of 28 USC 455, it is clearly shown that "WA State Bar Associates" have united in commandeering the judicial process to insure citizens remain their play-toys. The Washington State Bar Association reeks of corruption, bias (peer pressure) and ethical violations! A WRIT mandating disqualification or a jury trial is absolutely necessary to preserve the peace by enforcing the rule of law and to remove the peer pressure in forcing judges to rule in self-interested ways that is so evident in Ashelman v Pope, supra, and in Chief Judge Pechman s rubber stamping Judge Leighton s self-dealing ruling, never addressing facts nor law presented by Scheidler! (See Dkts 110, and 111) An appeal, whether interlocutory or final is unsuited as it doesn t allow for the facts to be decided by an impartial decision maker as 28 USC 455 requires, nor does it remedy the conflict in the present self-dealing schemes. Rather an appeal perpetuates the hypocrisy in having justices, judges or magistrate judges decide the 9

10 Case 3:12-cv RBL Document Filed 10/07/15 Page 10 of 26 scope of the laws that apply to justices, judges or magistrate judges. Since a jury is not available at the appellate level to decide factual controversies and apply law to fact or to determine guilt or innocence in the violation of the laws that apply to justices, judges or magistrate judges, an appeal is not the proper avenue to address factual issues. III. The facts necessary to understand the issues presented by the petition, which is based in the following preposition, which is alleged in present action. Many Washington State Bar Associates are corrupt and engaged in a protection racket using their official positions and by commandeering the courts to commit crimes. Washington State Bar Associates cannot be trusted in anything they claim until the racketeers are identified and removed from government office and effective regulation of this legal establishment is instituted. Summary of Scheidler s Case 1) Scheidler, the plaintiff and petitioner, is the only citizen litigant in this case. All defendants, and all other participants, are public officials who have a constitutional duty to protect and maintain Scheidler s rights under Washington Constitution Article 1, Section 1, and statutory duties to rescue Scheidler from government oppression and to insure confidence in our justice system as RCW demands of these defendants. This Court should take judicial notice of these authorities. See also Transcript, Appendix A, dkt 107-2, pg 6, et. seq. 2) This case has at its vortex a fraud that is perpetrated upon retired/disabled citizens, including Scheidler, from at least 1998 and is continuing by defendants, who are government servants, including lawyers of the Washington State Bar. 5 The FRAUD 5 All defendants, except James Avery, a county assessor, and David Ponzoha, clerk of the court of appeals, are Washington State Bar Associates: Alan Miles, WSBA # 26961, Kitsap County s deputy prosecutor; M. Karlynn Haberly, WSBA #8674; Kay 10

11 Case 3:12-cv RBL Document Filed 10/07/15 Page 11 of 26 is to intentionally deny retired/disabled citizens, including Scheidler, their constitutional benefits granted under Washington s Constitution, Article 7, Sec 10. See Transcript (dkt 107-2, pg 8, ln 24 to pg 9, ln 4. 3) The evidence is irrefutable and consists in part documents found in Appendix B: Dkts 58-3 [Kitsap County s application -- compare its version of RCW (5) to the controlling law RCW (5)]; dkt 58-4 [DOR s handout to assessors establishing the narrative to be used by counties in the defrauding of its citizens in using their application]; dkt 58-5 [a citizens only recourse is to sign these fraudulent documents under duress a class C felony and a predicate act of extortion]. These documents, on their face, show government servants have intentionally altered statutory language ; they have developed a narrative to address citizens questions concerning the altered statute; and then force a person to sign as TRUE this fraudulent document under penalty of perjury or forfeit their constitutional benefit by not signing a fraudulent document a conundrum (extortion) without a solution. Or sign the application under duress and engage in years of litigation fighting the RICO enterprise that engages in gamesmanship, court shopping, judge shopping, perjury, lies, retaliation, obstruction, wire fraud as in Scheidler s case so as to save the fraud and those who defend it. 4) This FRAUD and EXTORTION scheme is designed by government lawyers; is known directly by lawyers in both public and private office; or has come to the attention of lawyers in the Attorney General s office, the Prosecutor s office, lawyers S. Slonim, WSBA #12414; Felice Congalton, WSBA #6412; Susan Carlson, WSBA #12165; Zachary Mosner, WSBA #9566; Ione George, WSBA #

12 Case 3:12-cv RBL Document Filed 10/07/15 Page 12 of 26 in the State s Appellate and Supreme Court, and by Federal District Court Judge, Ronald B. Leighton and Marsha Pechman -- by exposure to this evidence by their association to this case. 5) In is a FACT, every lawyer in Washington that has seen the evidence of this fraud, these members of the Washington State Bar Association, [hereafter, guardians of the law 6 ] with their statutory obligations imposed by RCW ], have betrayed their promise to the people, as a condition of their license to be a lawyer, to prosecute this fraud and rescue those from government oppression including Scheidler. 6) It is a FACT that all these guardians of the law, in whatever capacity they function public or private, judge, attorney, advocate, administrative officer, are bound by the laws that regulate Washington State Bar Associates, RCW and the rules of professional conduct and canons of judicial conduct. They are fiduciaries! This common fiduciary duty implicates 28 USC 455 (b) 7) It is a FACT that this fraud, rather than being prosecuted by these guardians of the law, is protected by and covered-up by these guardians of the law. Judge Leighton s rulings to dismiss this case, reversed on appeal, is compelling evidence he is involved as he has deliberately betrayed his oath as a lawyer and duty as a judge. 8) To date, not one guardian of the law neither lawyer nor judge has answered nor addressed the facts at the center of this case. That is to say not one 6 Washington State Court Rules General Rules. Rules of Professional Conduct: FUNDAMENTAL PRINCIPLES OF PROFESSIONAL CONDUCT, Lawyers, as guardians of the law, play a vital role in the preservation of society. 12

13 Case 3:12-cv RBL Document Filed 10/07/15 Page 13 of 26 guardian of the law has addressed the evidence noted by dkts 58-3 to 58-5, supra, at any time since ) Clearly a criminal element has established itself within the Washington State Bar Association (WSBA). It is a RICO enterprise operating within the courts under color of law and under color of authority so criminal conduct exemplified by this case is covered-up rather than prosecuted. FACTS Particular to 28 USC 455 Disqualification of WSBA Associates from presiding in Scheidler s case. 10) It is a FACT that the members of an Association, e.g., the Washington State Bar Association, are responsible for the Association s policies and practices and share in the obligations and liabilities in those policies and practices. 7 One such obligation is to rescue the oppressed as mandated by RCW Clearly, a fraud upon retired/disabled citizens at the vortex of this case, is government OPPRESSION and none of these guardians of the law have come to rescue the oppressed! This is a deliberate violation of RCW , by these guardians of the law so as to aid and abet in the FRAUD! 7 Under Washington law, liability of the members is defined by Riss v Angel 131 Wn.2d , 934 P.2d 669 The liability question here involves both the actions of the Board and the issue of ratification of that decision by the homeowners. Under agency law, "[r]atification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him." National Bank of Commerce v. Thomson, 80 Wn.2d 406, 413, 495 P.2d 332 (1972) (citing RESTATEMENT (SECOND) OF AGENCY 82 (1958)). To be charged by ratification with the unauthorized act of an agent, the principal must act with full knowledge of the facts, accept the benefits of the acts, or without inquiry assume an obligation imposed. Stroud v. Beck, 49 Wn. App. 279, 286, 742 P.2d 735 (1987). 13

14 Case 3:12-cv RBL Document Filed 10/07/15 Page 14 of 26 11) It is a FACT that all US District Court Judges in Washington State are associates of the Washington State Bar and have liability for the debts of the Association as found in Riss v Angel, supra. These judges have a fiduciary interest as well as a financial interest in the laws and liabilities that apply to Bar Associates. See dkt 107-2, pg 6, ln 9 et seq. 12) It is a FACT, within the Washington State Bar there is this RICO enterprise that serves as a protection racket instituted to save their WSBA associates from their liabilities by using the Courts to fix cases. NO Washington State Bar Associate can be trusted. This case is ample proof that Bar Associates violate, with impunity, via their protection racket, the laws they are to uphold. 8 This financial obligation as a fiduciary triggers disqualification under 28 USC 455(b). 13) It is a FACT in this Federal District of Western Washington, when the WSBA is a party, an outside judge not a Bar Associate, has been assigned. See Scannell v 8 These guardians of the law are self-regulated and in the privilege of this selfregulation provides the pathway for criminals to commandeer the courts for their selfserving desires. We recognized in Whitt that the self-regulating nature of the bar IN RE DISCIPLINARY PROCEEDING AGAINST RODRIGUEZ 177 Wn.2d 872; a serious threat to lawyer self-regulation IN RE DISCIPLINARY PROCEEDING AGAINST SCANNELL 169 Wn.2d 723. Justice Richard A. Posner, of the Seventh Circuit Court of Appeals, has written on The Problematics of Moral and Legal Theory saying, moral inbreeding is as dangerous as biological inbreeding, pg 68. Clearly self-regulation, notwithstanding it is the ideal pathway for criminals to commandeer our justice system, is moral inbreeding in the absolute and presents the same dangers to society that biological inbreeding presents to the offspring. 14

15 Case 3:12-cv RBL Document Filed 10/07/15 Page 15 of 26 WSBA case; the Pope v WSBA case; and the Marshall v WSBA case. [See Appendix A, Dkt 86, 13(b); Dkt 91, pg 2; dkt 107-2, pg 6 ] 14) It is a FACT, in 2012, defendants removed Scheidler s case from State court to Judge Leighton s Federal District Court to benefit from pleading standard differences. Judge Leighton immediately sided with his Washington State Bar colleagues in their fraud by dismissing Scheidler s case under various excuses including the Twombly-Iqbal pleading standards. (3:12-cv RBL). 15) It is a FACT Judge Leighton s dismissal was reversed on appeal, 2-years later, in 2014, for abuses of discretion 9 for not addressing the fraud for not allowing Scheidler to amend his State pleading so it would conform to the Federal standards of pleading that Defendants sought by forum shopping for tactical advantage. 10 [Judicial Notice: Ref No , dkt 25-1.] 16) It is a FACT that the definition of abuse, as in Judge Leighton s abuse of discretion as found by the 9 th Circuit, is inconsistent with the constitutional, statutory 9 Court recuses itself upon remand of inmate's 1983 action due to court's abuse of discretion in denying inmate appointment of counsel, where findings of Third Circuit are based on inaccurate factual premises formed because highly relevant portions of case record were not included in appellate record, because court's "impartiality might rea-sonably be questioned" in future by counsel or party. Parham v Johnson (1998, WD Pa) 7 F Supp 2d 595. See Dkt 99, Appendix A, Offer of Proof. 10 The 9th Circuit found that Judge Leighton abused his discretion in refusing to allow Scheidler amend his state pleading to comply with Federal requirements of Iqbal v Twombly, after his case was removed by Leighton s colleagues of the WSBA. Defendants removal was an act of forum shopping for technical advantage. In other words after Scheidler submitted his pleadings in State court, defendants removed the pleading to Federal Court to then seek dismissal arguing pleading defects under federal court standards established by Iqbah/Twombly. The State Supreme Court rejected the pleading standards of Iqbah/Twombly. 15

16 Case 3:12-cv RBL Document Filed 10/07/15 Page 16 of 26 and ethical obligations demanded of Washington State Bar Associates and government servants. In other words, abuse is contrary to the constitutional mandate to protect Scheidler s rights, contrary to the law to conduct themselves with truth and honor, and contrary to ethical standards to candor by providing fact and law even if adverse to their clients position. All these guardians of the law, including Judge Ronald B. Leighton, abused Scheidler s rights that forced Scheidler into a 2-year long appeal to reverse. 17) It is a FACT, Judge Leighton, in response, dkt 50 (See Appendix A exhibit to Dkt 56), to the clerk for the 9 th Circuit, dkt 49, (See also Appendix A exhibit to dkt 56) labeled Scheidler s instant case against defendants, who are Judge Leighton s 178 Wn.2d 732, WASHBURN V. CITY OF FEDERAL WAY in McCurry v. Chevy Chase Bank, FSB, 169 Wn.2d 96, 100, 233 P.3d 861 (2010), Chevy Chase Bank asked us to affirm a trial court's dismissal of contract and consumer protection claims against it under CR 12(b)(6). As part of its argument, the bank asked us to adopt the new federal standard for dismissal into our CR 12(b)(6) jurisprudence. Id. at 101 (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). We rejected the bank's invitation for two reasons. First, neither party demonstrated that the concerns leading to the change in federal interpretation held true in Washington, nor did the parties address the benefits or problems associated with adopting the federal standard. Id. at This left us with "no similar basis to fundamentally alter our interpretation" of the state dismissal standard that we had adhered to "for nearly 50 years." Id. at 103. Second, we expressed reluctance to alter an interpretation of the rules without using the rule making process, which allowed consideration of all the relevant concerns and the opinions of "the legal community and the community at large." Id. Defendants would not have this technical argument available in State Court, which is why they removed the case to Federal court. 16

17 Case 3:12-cv RBL Document Filed 10/07/15 Page 17 of 26 colleagues of the Washington State Bar, and the FRAUD they are perpetrating upon retired/disabled citizens, as frivolous on its face. 18) It is a FACT that Judge Ronald B. Leighton, also in dkt 50, labeled Scheidler s claims and appeal made to the 9th Circuit by stating, Vitriol is not a substitute for logic. Clearly anything that Scheidler will argue has already been judged by Leighton as vitriolic and not logical. In other words, Judge Leighton has stripped Scheidler of any logical thought and cannot, therefore, be right in anything he argues. To admit Scheidler is logical is to say that Judge Leighton is either biased, incompetent or corrupt for saying Scheidler substitutes vitriol for logic. 19) Upon remand Scheidler filed a motion [Appendix A, dkt 56] to disqualify Judge Leighton for prejudging this fraud upon Retired/disabled as frivolous on its face and that Judge Leighton s characterization that Scheidler is vitriolic and not logical as proof of bias. 20) Judge Leighton refused to disqualify under 28 USC 455(a). [Appendix A, dkt 57] 21) Upon REMAND by the 9 th Circuit Court of Appeals, Scheidler, whose constitutional rights have been thwarted by Washington State Bar lawyers in every government position in which they serve, filed an amended complaint against these WSBA lawyers and the Washington State Bar itself for its RICO enterprise in violations of law obstruction of justice, perjury, mail and wire, extortion, fraud, etc., gamesmanship, forum shopping, judge shopping and violations of their ethical duty for the sole purpose to deny justice. The very reality of Scheidler s circumstances prove 17

18 Case 3:12-cv RBL Document Filed 10/07/15 Page 18 of 26 these lawyers have ignored their constitutional, statutory duty, and ethical duties to uphold the constitution (Article 7, Sec 10 retired/disabled rights) and have obstructed Scheidler s right of due process over a period in excess of 16 years. The instant case has been unnecessarily delayed since 2008 by these WSBA lawyers these guardians of the law. 22) Scheidler, after submitting his amended complaint alleging Washington State lawyers have established a protection racket to thwart justice and engage in case fixing, filed a motion [dkt 86] to disqualify Judge Leighton, a Washington State Bar lawyer, under 28 USC 455(a) and (b) for bias and conflict due to his financial and fiduciary interests in the outcome that is in common with all Washington State Bar Associates. Scheidler cited three cases in which an outside judge was assigned when the Washington State Bar was defendant Scannell v WSBA; Pope v WSBA and Marshall v WSBA. Id., dkts 86 and Tr pg 6. 23) It is a FACT, in support of Scheidler s motion to disqualify, App A, dkt 99 Offer of proof, Scheidler cited case law and provided 100 signatures on a petition to remove Judge Leighton from the bench for his breaches of law, judicial canons and violation of Scheidler s substantive due process rights. Source: 24) WSBA lawyers, including Judge Leighton, are regulated by Washington law, RCW 2.48, and the outcome of Scheidler s case will have an impact upon the conduct of Bar lawyers, including Leighton and his colleagues in private and in government positions. Leighton will determine if citizens continue to be the play-toys for these 18

19 Case 3:12-cv RBL Document Filed 10/07/15 Page 19 of 26 guardians of the law a position he clearly favors by his dismissal of Scheidler s complaint that was reversed by the 9 th Circuit as an abuse of discretion. 25) Judge Leighton improperly presided over this motion hearing [Appendix A: dkt transcript] about his own biased conduct stemming from the reversal and remand by the 9th Circuit Court of appeals, for various abuses of discretion. 26) In other words, Scheidler s case was unnecessarily delayed (2-years at appeal) due to Judge Leighton siding with his Bar colleagues -- who are a RICO association-in-fact who are defrauding Retired/disabled citizens in Washington State. Judge Leighton refused to abide by the law to disqualify from this proceeding in which he is directly interested as a fiduciary in the common obligations imposed upon Bar Associates by RCW to protect Scheidler and NOT defraud him. 27) Judge Leighton in presiding over and ruling on his own conduct [Appendix A: dkt 107] has, in every sense, added words to the law, 28 USC 455 and RCW , which MODIFIES these laws. For example, Judge Leighton, in his ruling, has modified 28 USC 455 in the following way, Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned, EXCEPT when reversed on appeal for an abuse of discretion in dismissing a lawsuit as frivolous despite a government fraud; EXCEPT when being reversed on appeal for an abuse of discretion in not allowing a plaintiff amend his complaint; EXCEPT when being reversed on appeal for an abuse of discretion claiming lack of jurisdiction, but not remanding back to state court as the law requires, 28 USC 1442, leaving no forum in which to seek redress; EXCEPT when calling Scheidler vitriolic and not logical to smear Scheidler s arguments as that of a madman made to the 9 th Circuit in his appeal; EXCEPT 19

20 Case 3:12-cv RBL Document Filed 10/07/15 Page 20 of 26 And Judge Leighton has modified RCW by deciding Washington State Bar Lawyers have no obligation to uphold the constitutions of Washington nor the United States. 28) It is a FACT that defendant counsels acted improperly to plead on behalf of Judge Leighton in the Motion to disqualify Judge Leighton. Dkt 87 and ) It is a FACT Judge Leighton's wife, a Bar Associate, has, as some point between 1998 and the present, a financial interest in Kitsap County's risk management insurance the County s financial stake is in the outcome of Scheidler s lawsuit against county officials for their fraud upon retired/disabled citizens. 30) Judge Leighton, after finding for himself that he will not voluntarily recuse submitted his ruling to the chief judge, Martha Pechman, a Bar Associate too, for her stamp of approval on his ruling on his own conduct. 31) It is a FACT Judge Pechman, claiming authority under local court rule 8(c), upheld Judge Leighton s refusal to recuse. Appendix A, Dkt ) It is a FACT Judge Pechman engaged in a Fraud upon the Court in her claims, dkt 109, Scheidler didn t cite fact nor authority to justify Judge Leighton s disqualification. See Dkt 110, Dkt and dkt 111, Scheidler s obj to Judge Pechman s order, declaration and supplement and speak for itself. 33) It is a FACT Judge Pechman is equally disqualified both by law and the common law of the District. See dkt 111, Supplement to Object and motion to Strike Pechman s order In case C MJP, Judge Pechman states While it is true that there is some precedent for assigning out of state judges to matters before the court involving the 20

21 Case 3:12-cv RBL Document Filed 10/07/15 Page 21 of 26 34) It is a FACT Judge Pechman engaged in a Fraud upon the Court in using a local court rule, LCR 8(c), to enlarge the powers of Judge Leighton in violation of 28 USC 2072(b), supra. 35) It is a FACT that Judge Pechman has engaged in subterfuge in other cases to undermine the integrity of the institution. This Court should take judicial notice that Judge Pechman, re C MJP, took motions out of order in the deliberate act of dismissing a case against the WSBA, in which she is an Associate, before she ruled on plaintiff s motion to disqualify under the same holding as in the Scannell case. 12 WSBA as a party[1], that precedent is completely inapplicable in this case, primarily because the WSBA is not a party to this lawsuit. In the instant case the WSBA is clearly a defendant and she clearly knows of her own claims that a Bar associate cannot preside over a case where the Bar is defendant. Ref: WWA.htm/qx 12 Nothwithstanding the merits of the case but only Judge Pechman s conduct in this case, C MJP, on July 21, 2014, plaintiffs brought a motion to transfer the case to an out of state judge. In their motion they sought to disqualify all Washington judges by virtue of the fact they were essentially defendants and/or liable for the actions of the WSBA, one of defendants. Plaintiffs noted the motion, dkt 63, for , which noting date was in consideration to one of counsel for the majority of defendants Notice of Unavailability, dkt 59. Three days later the state defendants put in their motions to dismiss noting On that same day the WSBA filed their motion to dismiss but noted the motion for disregarding the Notice of Unavailability and thus gaming the system. On , Judge Pechman took the WSBA motion first, before ruling on her disqualification as now moot and dismissed the case against the WSBA and imposed sanctions on plaintiffs, dkt 113, pp This is clearly gaming the system. By legitimizing these unfair tactics and ruling upon their own powers under local court rules, Bar Associates, in whatever capacity they serve, can create local court rules to achieve any desired outcome. There can be NO TRUST in Washington s Courts when Bar Associates are at the helm. Ref: WWA.htm/qx 21

22 Case 3:12-cv RBL Document Filed 10/07/15 Page 22 of 26 IV. The Reasons Why a Writ should issue; FACTS are the domain of a JURY and not for an Appellate Court to adjudicate. A. A Writ is the Proper Solution A mandamus petition is the proper way to challenge the denial of a recusal motion. See In re Sherwin-Williams Co., 607 F.3d 474, 477 (7th Cir. 2010) (per curiam); United States v. Diekemper, 604 F.3d 345, 352 (7th Cir. 2010). We independently assess questions raised about a judge's impartiality from "the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances." Sherwin-Williams, 607 F.3d at 477, quoting Cheney v. U.S. Dist. Court for [*720] Dist. of Columbia, 541 U.S. 913, 924, 124 S. Ct. 1391, 158 L. Ed. 2d 225 (2004) (Scalia, J., in chambers) (citations and emphasis omitted); see also In re United States, 572 F.3d 301, 310 (7th Cir. 2009) ("[W]e decide... whether a reasonable, well-informed observer could question the Judge's impartiality.") In re City of Milwaukee, 788 F.3d 717; A mandamus petition is a proper means of challenging a district judge's refusal to recuse pursuant to 28 U.S.C See In re Sch. Asbestos Litig., 977 F.2d 764, 778 (3d Cir. 1992). Kabbaj also sought recusal under 28 U.S.C Since, as a general rule, mandamus will not lie to review the denial of a motion filed under 144, see In re Sch. Asbestos Litig., 977 F.2d at , we will consider only whether refusal to recuse under 455 was proper here. IN RE: YOUNES KABBAJ, 608 Fed. Appx. 52The immediate problem is Judge Leighton, WSBA #6800, together with Chief Judge Marsha Pechman, WSBA #7000, have commandeered the justice system for themselves under a local general rule 8(c). See Chief Judge Pechman s order Dkt 109, pg 1, ln 19. Using court rules to decide their 22

23 Case 3:12-cv RBL Document Filed 10/07/15 Page 23 of 26 own fate based on the facts of their own conduct is a clear violation of 28 USC 2072, because it is a way to abridge, modify or enlarge judicial powers. Furthermore it is a despicable way to remain as judge in a case in which their colleagues of the Bar" and the Bar itself are defendants and share the same fiduciary duties to society in general, and Scheidler in particular, and as associates, Judge Leighton and Judge Pechman are responsible for the liabilities of the Association an outcome of litigation. B. Purpose in 28 USC 455 and 28 USC 2072 will be unmolested by a WRIT. The Congress of the United States, to insure our Federal Judiciary is a trusted and respected U.S. institution, enacted 28 U.S.Code 455, a law that requires justices, judges and magistrate judges, disqualify themselves from any proceeding when there are facts that could indicate a justice, judge or magistrate judge could be biased against a party or issue, or when the subject matter before the justice, judge or magistrate judge is a matter in which the justice, judge, or magistrate judge has any interest affected by the proceedings outcome. Therefore a proceeding under 28 USC 455, a law in which every justice, judge and magistrate judge is directly interested, must mean these judges are disqualified in presiding over such proceeding because it is a fact that 28 USC 455 pertains exclusively to the substantive powers of justices, judges and magistrate judges. Similarly in intent to 28 USC 455, Congress of the United States, to insure our Federal Judiciary is not a legislative entity and remains a trusted and respected U.S. institution, enacted 28 U.S.Code 2072, a law that prohibits the U.S. Supreme Court 23

24 Case 3:12-cv RBL Document Filed 10/07/15 Page 24 of 26 from establishing rules that will be used by the Courts to abridge, modify or enlarge any substantive right. Reading 28 USC 455 in light of 28 USC 2072, there should be NO procedural method, as the District Court s local rule 8(c) invoked by Leighton and Pechman, by which any justice, judge or magistrate judge will rule upon the very law that applies to justices, judges or magistrate judges; it would be allowing these judges to abridge, modify or enlarge the substantive powers of justices, judges or magistrate judges by deciding their own compliance with 28 USC 455. C. FACTS are for a JURY The Law, 28 USC 455 prohibits a justice, judge or magistrate judge from presiding over a matter in which these judges impartiality may be reasonably questioned or when the circumstance of the case mandate disqualification due to their interest in the outcome. Clearly the LAW, 28 USC 455, which every justice, judge or magistrate judge must comply with, DISQULIFIES every justice, judge or magistrate judge from deciding what FACTS require their DISQUALIFICATION. The FACTS that may or may not constitute a violation of this law is for a jury. For a justice, judge or magistrate judge to decide the facts can be questioned as selfserving opinions to circumvent the law and enlarge the power of judges to defeat disqualification. This is the very scenario that both 28 USC 455 (disqualification) and 28 USC 2072 (using court rules to modify substantive law) were enacted to prevent. 24

25 Case 3:12-cv RBL Document Filed 10/07/15 Page 25 of 26 A JURY is proper and necessary in this case because the FACTS with respect to the laws that apply to Judges, and specifically, judges who are Washington State Bar lawyers, should not be decided by these interested individuals. The very hypocrisy in the present scheme in allowing judges to define their own compliance with the laws that govern their conduct offers the same pathway by which criminals have infiltrate Washington State government and commandeered our judicial institution for their criminal purposes. D. There are FACTS showing Bias, Bar members are Fiduciaries as guardians of the law, Judge Leighton has already been found in this case to have abused his discretion and continues in the blatant violations of RCW and CJC. Bar Associates are Disqualified under 28 USC 455(a) and (b). All Washington State Bar Associates are legally required to protect and maintain Scheidler s rights and to rescue Scheidler from government oppression. Id, In this case defendants and Washington District Court Judges are Washington State Bar Associates and these WSBA defendants and judges have FAILED to abide by the laws noted above. The reality of Scheidler s circumstances, on the face of the docket, is proof of the fact that Washington State Bar Associates violate the law. If it were otherwise, Scheidler s case his Constitutional petition for a redress of grievance -- would have been resolved in 1998, or at worse never needed to appeal for Judge Leighton s abuses of discretion! Yet, to this date, the fraud that government lawyers have orchestrated against the retired/disabled citizen, by and through these guardians of the law, has yet to be addressed by either a judge or jury! The reason is the Washington State Bar Association is a criminal enterprise 25

26 Case 3:12-cv RBL Document Filed 10/07/15 Page 26 of 26 that serves as a protection racket so frauds like the fraud Scheidler is victim, will be protected and allowed to continue. V. Conclusion: A substantive deficiency exist in the present scheme when the facts and the laws at issue concern Federal Judges who then decide for themselves these facts with respect to their interpretation of these laws to achieve a desired outcome it is a FRAUD UPON SOCIETY! And it is PROHIBITED by 28 USC 455 and 28 USC For the reasons outlined above a WRIT mandating all WSBA associates are disqualified, under 28 USC 455(a) and (b), from serving as judge in Scheidler s case against the WSBA and Associates of the WSBA. Or the matter of disqualification shall be left to a jury s determination at the first opportunity for a jury trial. Affidavit of Petitioner I, the undersigned, attest that the foregoing information is true to the best of my knowledge and offered in the public interest and for the public good. Signed this October 6, 2015, William Scheidler Plaintiff pro per Lidstrom Place E Port Orchard, WA billscheidler@wavecable.com 26