UNITED STATES DISTRICT COURT IN THE DISTRICT OF COLORADO CLASS ACTION

Transcription

1 LAW OFFICE OF JASON FLORES-WILLIAMS JASON FLORES-WILLIAMS Attorney for Plaintiffs 1 Bassett St. #0 Denver, CO JFW@JFWLAW.NET RAYMOND LYALL, GARRY ANDERSON, THOMAS PETERSON, JERRY RODERICK BURTON, FREDRICK JACKSON, BRIAN COOKS, WILLIAM PEPPER, CHRISTOPHER FARRELL, KRYSTAL MCEVOY INDIVIDUALLY ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED; vs. Plaintiffs, CITY OF DENVER, A MUNICIPAL CORPORATION, MAYOR MICHAEL B. HANCOCK, POLICE CHIEF ROBERT C. WHITE, DENVER PUBLIC WORKS MANAGER JOSE M. CORNEJO, MAYOR S CHIEF- OF-STAFF EVAN DREYER, COMMANDER ANTONIO LOPEZ: INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES; Defendants UNITED STATES DISTRICT COURT IN THE DISTRICT OF COLORADO Case No.: 1-1 CLASS ACTION MOTION FOR RECUSAL PURSUANT TO U.S.C. DEMAND FOR JURY TRIAL MOTION FOR RECUSAL PURSUANT TO U.S.C Plaintiffs respectfully submit this Motion For Recusal to this Honorable Court for the following grounds: Honorable Judge Craig B. Shaffer is an outstanding judge, but as a private attorney has partnered with law firms and attorneys in Downtown Denver who have strongly advocated for the positions of the Defendants and, more importantly, whose relationships with Defendants are foreseeable and relevant subjects of discovery, so that recusal, at this early date, is warranted. CLASS ACTION- 1

2 Plaintiffs complaint expressly asserts that the Homeless Sweeps and the deprivations caused by them track with Downtown Denver economic development; thus, from the outset, putting Downtown Denver economic development, and its advocates, and the ordinances arising from it, squarely at issue in this litigation. Paragraph, FN 1. Plaintiffs Compl.. [J]udges have an ethical duty to disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification. Porter v. Singletary, F.d, (th Cir. ).. Plaintiffs consider the information described in Paragraphs -, infra, as relevant and material to this cause of action in which fundamental constitutional rights are at issue.. An offer of proof regarding foreseeable conflicts that will imminently arise: Defendants argue that they have no liability as there are no so-called homeless sweeps and that the mass seizure and destruction of Plaintiffs property has never taken place, so that there is no evidence of policy or custom and that any alleged actions have been performed in a respectful manner based on ordinances that were rationally-legislated to promote the safety and security of the Downtown Denver area, so that Defendants thereby claim that their conduct is constitutional. Plaintiffs disagree both factually and legally, arguing that the homeless sweeps and ordinances are institutional policies arising from business and economic interests in Downtown Denver that have engendered numerous constitutional deprivations including the illegal seizure and destruction of property. Discovery in this matter will rightfully extend to and include key players and strategic partners in the development of the policies currently affecting Plaintiffs. One can easily envision disputed protective orders and/or motions to quash being filed by colleagues and CLASS ACTION-

3 associates of Hon. Judge Shaffer, see Para. below, so that textbook conflicts of interest and questions of impartiality dominate the discovery phase of this litigation. 1 Accordingly, it is simply better to avoid these problems now via recusal.. See In re Rogers, F.d 1 (th Cir. ), where the actions of the Judge s former law partner were potentially part of Defendant s defense. (The defendants planned to argue that their conduct was no more culpable than that of the company represented by the judge s former partner.) Holding that disqualification was required under (b)(), the Fourth Circuit held that the actual case before the court consists of more than the charges brought by the government. It also includes the defense asserted by the accused. Here, this defense, in part at least, will consist of matters in which the judge s former partner served as lawyer. Id. at.. Here, Hon. Judge Shaffer s former partner is Mr. John Moye of Moye, Giles, OKeefe, Vermeire & Gorrell, LLP. This respected law firm has been instrumental in Downtown Denver economic development for decades and has been engaged in long-term association with the Downtown Denver Partnership, which has strongly backed the Camping Ban and other ordinances that Plaintiffs have asserted give rise to mass constitutional deprivations. The Downtown Denver Partnership s role in shaping the city Manual for Complex Litigation at Section. directs judges to consider both present and potential conflicts that may arise as a result of the joinder of additional parties, the identification of class members, or the assignment of related cases with the resultant involvement of additional litigants and counsel. Defendants have yet to answer and are not scheduled to answer until Nov., 01. CLASS ACTION-

4 policies complained of will certainly be discoverable as they go directly to the presence and intent of policy.. In order to prove planning, practice, implementation and custom, as well as awareness and indifference, Plaintiffs will properly seek to discover the business-government relationships that have given rise to the city ordinances that have, in turn, given rise to Defendants unconstitutional conduct. It is reasonably foreseeable that Judge Shaffer s former law partner could be called to testify in this cause.. Plaintiffs concerns here are not remote or limited to former law partners. As recently as 01, Hon. Judge Shaffer taught a seminar on electronic discovery with a shareholder at the respected Polsinelli law firm, another Downtown Denver firm with strong relationships with the Downtown Denver Partnership. Judge Shaffer s opinions on electronic discovery are rightly sought after, but for the specific purposes of this litigation, current relationships with significant players in Downtown Denver economic business development are matters of potential discovery, rife with potential conflict and the appearance of partiality.. Plaintiffs adduce these issues to the Court in good faith, because it will prove difficult to not reasonably question impartiality when: (1)Plaintiffs rightfully seek to discover the relationships and communications between Hon. Judge Shaffer s former law partners and 0 1 At this early stage, we already confront potential questions of partiality with regard to the scope of what is discoverable pursuant to Fed. R. Civ. P.. For example, The Downtown Denver Partnership commended Judge Shaffer s former law partner last year, stating that the Downtown Denver Partnership works closely with Mayor Hancock and the City of Denver, both of whom are named Defendants. Plaintiffs will argue that these relationships go to proving policy and practice, Defendants will argue that discovery of these relationships is unnecessarily broad, third parties will file protective orders or potentially intervene haunting the adjudication of these common and foreseeable discovery issues will be the specter of bias. CLASS ACTION-

5 Defendants; ()When Plaintiffs seek to depose former law partners and current colleagues that represent the interests of Defendants as well as their current relationship to Hon. Judge Shaffer; () When Plaintiffs rightfully seek to discover the source of the city ordinances that have given rise to the Defendants unconstitutional actions that may correspond with the legal/legislative practice of former and current colleagues, partners and associate known to Judge Shaffer.. An instructive case on the issue of recusal is from this circuit that actually held against disqualification, Higgonbotham v. Oklahoma, F.d (th Cir. 00). In that case, the denial of Plaintiff s recusal was upheld by the Tenth Circuit Court of Appeals. Plaintiff attempted to argue that Judge Leonard and then Governor Frank Keating knew each other and had similar political affiliations. The th Circuit s analysis centered on the fact that there were no material issues of fact in dispute and that Governor Keating would never be called to testify. 1. Here, there are numerous issues of material fact in dispute and many of Judge Shaffer s associates will be called to testify or to produce evidence. The opinion in Higgonbotham calls upon the well-known quote regarding compelled recusal: "[A]n inescapable part of our system of government [is] that judges are drawn primarily from lawyers who have participated in public and political affairs." United States v. Alabama, F.d 1, 1 (th Cir..) We happily accept that Judges have relationships with private 0 1 In Valerie Ann Schlecht v. Lockheed Martin Corporation d/b/a Lockheed Martin Space Systems Company, Hon. Judge Shaffer recused himself under U.S.C Sec. (a), in order to avoid the appearance of impropriety, when a family member worked for a law firm associated with the case. Here, the appearance of impropriety is a wide range of associates, colleagues and former law partners who have worked with Defendants on the matter in controversy and may be called to produce evidence by Plaintiffs. CLASS ACTION-

6 attorneys and law firms where they once were partners, but what is unacceptable, and herein distinguishable, is when a Judge s professional milieu is comprised of lawyers, law firms, and current colleagues that could be called as witnesses in a particular matter, because then we do reasonably and objectively question impartiality. 1. Many of Judge Shaffer s former partners and current professional associates are significant players in the effort to promote development in Downtown Denver. It is this development, without concern for the rights and dignity of Plaintiffs, that is the core of this cause of this action. These are fundamental rights at stake the Fourth Amendment right against unreasonable searches and seizures, the Eighth Amendment ban against cruel and unusual punishment, the Fourteenth Amendment protections of due process and equal protection if there is any reasonable question here regarding impartiality and there is then it must be resolved in favor of recusal. 1. The Court in Higgonbotham made clear that the standard for recusal is objective. The inquiry is defined by outward manifestations and reasonable inferences drawn therefrom. Plaintiffs would infinitely prefer to end their Motion here with advising the Court of foreseeable conflicts that can easily be avoided by recusal, but are legally required to adduce factual outward manifestations exhibiting potential bias and partiality in this Motion. 1. Plaintiffs filed their complaint on August, 01. Along with their complaint they also hand-delivered Preservation Letters concerning electronic discovery. This letter was filed electronically with the Court via EC/CMF system on August, 01. The Preservation Letter asked Defendants to concur in an order for a standard preservation hold that would apply to both parties. Defendants did not response. CLASS ACTION-

7 On September, 01, Plaintiffs filed their Motion for Class Certification with Memorandum of Points and Authorities that included 1 exhibits attached and a discussion of the applicability of the Federal Rules of Evidence at the Class Certification stage, which again referenced the importance of discovery in this matter with regard to proving planning, practice and conduct for purposes of liability. 1. On Wednesday September 1 th, 01, Plaintiffs again asked if Defendants would stipulate to a litigation hold concerning electronic discovery. Defendants again did not respond.. At : pm on Friday, September 1, Defendants filed a Motion for Extension that they reported as being opposed by Plaintiffs.. Having filed a Preservation Letter and being ignored by Defendants twice in a three-week period regarding a critical evidentiary issue, Plaintiffs were compelled to file, on the morning of //1, a Motion for Order To Preserve Electronic Discovery, Metadata and ESI ( Motion For Preservation ) along with a detailed Proposed Order. The Motion explained to the Court that two attempts had been made to confer with Defendants regarding the Motion for Preservation and that the issue was critical as there were established concerns regarding Defendants ESI retention policies. 0. As of this date, the Court has yet to respond to, or acknowledge, Plaintiffs Motion for Preservation, while in stark contrast, has already issued an order granting Defendants Motion for Extension. The Court did so a mere eight or nine business hours after the filing of Defendants Motion without providing Plaintiffs any meaningful opportunity to respond to a motion that it recorded as opposed. This is in a matter where ongoing deprivations of fundamental constitutional rights are at issue. Well known potential CLASS ACTION-

8 ongoing violations. As stated in Plaintiffs Motion for Class Certification, Paragraph 1, if one were to google Denver Homeless Sweeps, one would find more than,00 public references to them. 1. Already, the semblance of partiality has arisen. Plaintiffs have filed a -page complaint, a Preservation Letter, -page Motion for Class Certification with an Exhibit List referencing 1 Exhibits and a Table of Authorities referencing more than 0 case citations, a Notice of Supplemental Exhibit along with Exhibit, a six-page Motion For Preservation along with a Proposed Order and two Exhibits including an independent Auditor s Report describing deficiencies in Defendants retention and record-keeping policies and practices, but the only pleading acknowledged and addressed by this Court has been the one pleading of the Defendants.. Hon. Judge Shaffer is an outstanding judge who can assuredly see problems arising in this litigation that are now simply best avoided by recusal. These concerns flow directly from the Code of Conduct For United States Judges, Canon, C and its federal statutory counterpart Title U.S.C. Section (a): 0 1 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; () 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. CLASS ACTION-

9 The relevant consideration under Section (a) is the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., U.S., S.Ct., 0 L.Ed.d, (). The very purpose of (a) is to promote confidence in the judiciary by avoiding even the appearance of partiality whenever possible. Liljeberg, S.Ct. at 0. See also, Hinman v. Rogers, 1 F.d, (th Cir. ). The Court exercises discretion in deciding whether to recuse. See Weatherhead v. Globe Int l, Inc., F.d 1, 1 (th Cir. ). Under U.S.C. (a), federal judges must disqualify themselves in any proceeding in which their partiality might reasonably be questioned. Switzer v. Berry, F.d 1, 1 (th Cir. 000); see also Code of Conduct For United States Judges, Canon, C(1) (judge shall disqualify herself in proceeding in which impartiality might reasonably be questioned). The test is whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge s impartiality.. The relevant facts here instill reasonable doubts with regard to impartiality. Again, Judge Shaffer is an outstanding judge, but the former and current relationships herein will plague this litigation with conflicts and have already lent to demonstrated partiality, so that at this early juncture it is simply wiser and more efficient to recuse and assign the matter to another magistrate. 0 1 It is the magistrate judge who sets the terms and scope of discovery, so that the magistrate s role in this matter is directly on point with the aforementioned potential conflicts and concerns of bias. See Hon. Magistrate Judge Craig Shaffer s article from the Sedona Conference, The Burdens of Applying Proportionality, for an engaging discussion re the burdens and difficulties (and solutions) concerning fair adjudication of discovery is in complex litigation. The article, in part, addresses the initial scope of permissible discovery, which is at issue here. CLASS ACTION-

10 . For the aforementioned grounds as well as promoting public trust in the integrity of the judiciary, recusal is warranted pursuant to U.S.C.. D.C.COLO.L.CivR.1 STATEMENT Plaintiffs have conferred with Defendants and this Motion is opposed Dated: September 1, 01 Respectfully submitted, /s/ Jason Flores-Williams Jason Flores-Williams Attorney For Plaintiffs Law Office of Jason Flores-Williams 1 Basset St. Unit 0 Denver, CO JFW@JFWLAW.NET 0 1 CERTIFICATE OF SERVICE I hereby certify that I filed the foregoing Motion For Recusal electronically on /1/1 through EC/CMF which caused opposing parties to be served via electronic means. Dated:/1/1 /s/jason Flores-Williams, Esq. Jason Flores-Williams CLASS ACTION-

11 Attorney For Plaintiffs CLASS ACTION-