McCafferty Recusal Memo.april

8/6/2019 McCafferty Recusal Memo.april

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IN THE UNITED STATES DISTRICT COURTNEW HAMPSHIRE

CHRISTOPHER KING, J.D. )a/k/a KINGCAST.NET, ) CASE NO. 2010-CV-501

Plaintiff-Petitioner,v. ) JUDGE PAUL BARBADORO

FRIENDS OF KELLY AYOTTE, et al., ) MAGISTRATE LANDYA McCAFFERTYDefendants.

PLAINTIFFS MEMORANDUM IN SUPPORT OF RECUSAL AND NULLIFICATIONOF MAGISTRATE JUDGE MCCAFFERTYS REPORT AND RECOMMENDATIONS

PER 28 U.S.C. 455.

I. Magistrate McCafferty took Stephen Moniers word as gospel truth eventhough he was a paid operative of Defendant Ayotte, who now has a seniorcabinet position and even though he lied about Ralph Holder being a fugitivefrom Justice and lied about Plaintiff being on private property and lied about

Plaintiff being threatening at the Ayotte/McCain VFW rally.

These issues have been noted throughout Plaintiffs Complaint and are reflected

at the Ralph Holder Cease and Desist Letter seen at Appendix A. This is important

because it is a systemic beat down of strident black males who question the policies of

Defendant Ayotte and New Hampshire Law Enforcement. In an atmosphere clean and

clear of unlawful influence no Jurist would make such findings. Discovery will likely

reveal that not only was Monier working for Defendant Ayotte at the Facebook and

John McCain rallies, he was likely a paid operative and he certainly is a highly-paid

cabinet member today so his credibility is vitiated. No unbiased Jurist would see the

obvious lies discussed below and find in favor of Mr. Moniers testimony.1

II. Totality of the Circumstances Defendants misrepresent Plaintiffs concern.

1. It is the totality of the circumstances, rather than merely Magistrate Judge

McCaffertys employment under lead counsel Jack Middleton that leads Plaintiff to

now seek her recusal and voiding of her 2 November, 2010 Report and

Recommendations.

1In point of fact about the only factual determination made in Plaintiffs favor was the obviousfinding that Plaintiff is an African-American Journalist in line with NENPA requesting hispresence as a guest speaker in 2011. Sadly, as we see in Defendants Motions to Dismiss theyeven try to take that away Plaintiff calls himself a journalist, etc. etc. to attempt to justifythe disparate treatment afforded to Plaintiff from the other white journalists who RSVPdexactly as did Plaintiff and who were allowed to attend rallies, under a 42 U.S.C. 1981analysis. They think they are slick; the United States Supreme Court will see right through it.


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This will be explained in detail throughout this Reply Memorandum but it is

summarized in this organizational reference chart, Exhibit 1:

Defendant(s) -- perhaps intentionally -- misled him to believe that Mary Tenn, not

McLane, Graf would be handling this case for Friends of Kelly Ayotte, as noted in the

open letter email to Nashua PD Counsel Brian Cullen warning Attorney Tenn about

winning and losing, which was part of the email chain in which Plaintiff went the

extra mile to help Defendants in their purported quandary over assent to Removal, in

which he provided relevant case law ofJordan v. Murphy, ND Ohio WD CV-7212 (2000)

to Attorney Cullen in an email communication. Exhibit 2.


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Be that as it may the totality of contacts is indeed, striking and substantial and it is

ALL extrajudicial. Ex parte City of Dothan Pers. Bd., 831 So. 2d 1 (2002). Given the

following six (6) issues alone, recusal is mandated in the First Circuit:United States v. Mavroules, 798 F. Supp. 61 (1992).(Old association 20+ years ago)

OVERVIEW: The court granted the government's motion for recusal despite thefact that the judge's contacts with both sides of the case raised no issues of biasor prejudice; the court wished to avoid even a shadow of a doubt as to thefairness of the process. Much more on this in Section III C, infra.

1. The lawyers under whom Judge McCafferty once worked donated at least

$9,700.00 to Friends of Kelly Ayotte, with both counsel in this case providing 50%

of that total.2

2. Outgoing Magistrate Judge James Muirhead mentored Judge McCafferty fromthe moment she came to the Bench. His Honor is also a former employee of McLane,

2 That total is assembled through public records, but does not disclose the amounts given byprivate individuals who may have worked for McLane, Graf on prior occasion.


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Graf, lending further credibility to Plaintiffs assertion that the appearance of

partiality is manifest and should have been disclosed.

Note that the a recent NH Bar Association publication Landya McCafferty

Joins Federal Bench as Magistrate is wholly inaccurate, and either negligently or

intentionally omits the fact that not all of Her Honors employment occurred in the

public sector, when it is incorrectly asserted that [her] entire career has been in

government service. As a professional journalist Plaintiff takes understandable

objection to this dereliction of duty; may the Court take Judicial Notice that McLane,

Graf is a well-heeled private law firm and not a government entity. Exhibit 3.

3. Jack Middleton introduces his former employee Muirhead at public events,

including one from this year, Exhibit 4.


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4. Jack Middleton and/or other McLane, Graf current or former staff foreseeably

provided some sort of support for Magistrate McCaffertys ascension to the Federal

Bench, either tacitly via her application and written statement or via public comment

or letters of support and recommendation.

If that is true, that fact alone would mandate recusal in this case, and again at a

minimum would require disclosure. Plaintiff specifically asked Defendants about this

matter in an email chain in which certain counsel for Defendants omitted Jack

Middleton from the email distribution chain after Plaintiff had included him.

Defendants individually and collectively refused to answer that question. A salient

portion of that email reads as follows:

HN3

Federal judges have an obligation to recuse themselves whenever their

impartiality could reasonably be questioned, but they also have an obligation

not to recuse themselves when circumstances do not require it. More Like

This Headnote

Since 2000, I have maintained frequent contact with only a handful of Day,

Berry lawyers. The firm represented my wife and me in a minor matter thatconcluded nearly three years ago. In short, I have no present relationship

with Day, Berry or with the vast majority of its attorneys.

That is not true in this case because I know Her Honor has frequent contact

with many McLane, Graf Attorneys. And her Honor has been on the Bench forseveral months, not years. And while there was a break between her tenure

with the firm, I am entitled to know the extent of her ongoing contacts with

that firm and I am entitled to know whether Jack Middleton or anyone else at

that firm supported her ascension to the Bench because that certainly would

present a question on impartiality the[n], wouldn't it.

Yes. It. Would. But wait, there's more.

This is what SHOULD have happened, I should have been told.

George N. Pegula Agency, Inc. v. Monumental Life I..., 1999 U.S. Dist. LEXIS 23196

2 James Rogers, counsel for Monumental, has submitted an affidavit, which

provides:

I have a distinct recollection that, in a telephone conference with the Court, in which

Lawrence Ludwig, Esq. was participating on behalf of the plaintiff, Judge Vanaskie

noted the fact of his prior membership in the Dilworth firm. He alluded to the

procedure that had been followed in the Catholic Golden Age case.


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To the best of my recollection, the Court expressed the view that it was not

necessary to follow that procedure again, and that Mr. Ludwig made an affirmativeexpression of assent to the Court's participation in this case.

(Rogers Aff. (Dkt. Entry 276) P 4.) My recollection of the conference call is generallyconsistent with Attorney Rogers' affidavit. In particular, I recall advising Pegula's

counsel of my prior relationship with the Dilworth firm, asking Pegula'scounsel if there was any objection to my continued handling of the case, and

Pegula's counsel indicating that he had no objection.Emphasis added.

Did Jack or anyone else at McLane help Her Honor to the bench or not.

Answer the question. Truthfully and fully to me right now, and I will consider

withdrawing my Motion.(Green emphasis added).

Christopher King, J.D.

III. Kelly Ayotte is a Party to this Action.

Defendant Ayotte obviously holds ultimate decisional authority over her

campaign arm, Friends of Kelly Ayotte, and as such, Plaintiff served her at her home

residence. See also Fn3 with respect to this matter, as all monies given by Defense

Counsel to Friends of Kelly Ayotte was calculated to benefit Kelly Ayotte herself, in

her run for U.S. Senate.

IV. The appropriate U.S. Statue is 28 U.S.C. 455, not 28 U.S.C. 144.

In an incredible twist of logic, Defendants previously attempted to blame Plaintiff for

not raising this issue prior to the 2 November, 2010 TRO Hearing when he first learned

who his opposing counsel would be, and when he first saw any written case law that

purported to support Defendants position which to that point had included the false

assertion that Plaintiff was not a journalist. As such, 28 U.S.C. 144 is inapplicable.


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V. Law and Argument.

A: Legal Standard

Disqualification of a judge is required when a reasonable person, knowing all the

facts, would question the judge's impartiality. In this case Defendants have ignored

the case law set forth in extrajudicial correspondence noting that judges who have

worked with Defense Counsel at any time need to mention it, but particularly when

said Defense Counsel is the Supervising Attorney who is also heavily vested with

Defendant and her associates.3

B: Manifestations of the bias.

Once again Defendants have truncated Plaintiffs arguments in this regard as he

has raised several issues not included in Defendants rather perfunctory response. To

the extent that Defendants did not quite understand the gravity of the situation

Plaintiff will now elucidate for this Court and the next:

1. Magistrate Judge McCaffferty took every inference in favor of Stephen Monier,

who is biased as he worked for the campaign and now undoubtedly makes north of

$100K/yr. as Kelly Ayottes Veterans and First Responder Commissioner.

To wit: Report and Recommendation p.7 reads, in Pertinent Part:

At the Facebook rally, the McCain rally, and outside the diner in Portsmouth,Monier thwarted Kings efforts to approach Kelly Ayotte. Monier testified thathe believed Kings jostling and pushing to get close to Ayotte were a threat to

Ayotte. The court finds, on this limited record, that Monier reasonably believedKing to be of some danger to Ayotte. His conduct, therefore, cannot be said tobe motivated by the content of Kings speech.

Nowhere in the Record does Her Honor address the fact that Monier had no lawful

reason to call the police on Plaintiff as the two of them stood on the public

sidewalk, even though a substantial amount of time was spent on this matter when

Plaintiff caught Monier making a misrepresentation on the matter at hearing, and as

noted in this picture, Exhibit 6.

3Obviously the $9,700.00 from McLane, Graf is going to directly benefit Kelly Ayotte, who maywell be a named Defendant after discovery, along with Senator John McCain, who has ademonstrated history of expelling the sole black male reporter from rallies, despite his self-proclaimed Straight Talk Express moniker.


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Moreover, the notion that Plaintiff is allegedly some sort of threat was belied by two

different sets of people, with pictures, as noted in hard copy Exhibits presented by

Defendants themselves.

2. Plaintiffs handling of the situation at which he was called a bigot was entirely

professional and is documented on the hard copy DVDs provided to the Court.

3. Plaintiffs conversation with Bermuda Ambassador Greg Slayton, on the sidewalk

in the same spot where Monier threatened to call the police on Plaintiff, was quite

orderly and again, PROFESSIONAL. It resulted in both men appreciating the art of

tennis, and this fact was again, wholly ignored by Magistrate McCafferty for some

reason defying any and all unbiased logic.

4. Veteran Dave Rumney, out of Leonard, groaned in shock Oh, reallyno when

informed of the ban, and stated as long as youre not standing up to protests (during

the speeches) to which Plaintiff stated Exactly. See also Exhibit 7, below, this

page, people smiling and freely conversing with Plaintiff, no threats whatsoever.

5. Two Caucasian Females smiled and opened discussion with Plaintiff during the

time that Monier falsely claimed that Plaintiff constituted some sort of threat to

Defendant Ayotte, yet another lie he cooked up to attempt to portray Plaintiff as a

threatening black man. At some point this line of racist rhetoric must cease & desist.


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Given those facts alone a reasonable, unbiased Court would not have made those

conclusions and omissions, but Magistrate McCafferty ignored each and every one of

them, yet there is more:

6. Magistrate McCafferty gave no credence to the fact that a logical person could

infer racial antipathy from Kelly Ayottes refusal to denounce the documented online

support from Niggermania, which wrote that Plaintiffs case smells like a nigger,

and that Ayotte was proper to throw his nigger ass out. But many logical people

do in fact infer racial antipathy from such avoidance.

7. The acrimonious past reference was an oblique notation of the indisputable

fact that Plaintiff prevailed over Defendant Ayotte and her Law Enforcement co-

worker Martin J. Dunn in a series of cases that arose in a racial, First Amendment

context when Plaintiff was Southern New Hampshire NAACP Legal Chair. Plaintiff used

valid NAACP Law to win that case just as he will use valid NAACP First Amendment Law

to prevail in this case.

But by issuing such a cryptic reference, Her Honor effectively bleached the

record as to avoid reaching the inescapable conclusion that Ayottes actions in

threatening to arrest Plaintiff are grounded in racial and First Amendment antipathy.

Subsequent Courts need to be aware of this fact, and there will be subsequent Courts

as the Parties all feel strongly in their respective positions.4

8. Magistrate Judge McCafferty also omitted the fact that Senator John McCain,

who co-hosted the VFW event with Kelly Ayotte, has a history of expelling the sole

black male reporter at campaign events, i.e. one Stephen Price. Discovery is required.

4The Concord Monitor has noted that Ayotte does not like those she considers to beliberal and she has publicly stated that U.S. Supreme Court Justice Elena Kagan isUnqualified in part because she was upholding current policies at Harvard LawSchool because of gays in the military issue, when Kelly Ayotte imprudently votedagainst gay marriage recognition contrary to laws that had been duly promulgated bythe New Hampshire Legislature, and thats a fact.


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C: Analysis of case law.

Plaintiff noted in Exhibit 5 that there should have been notification, as noted above in

the 20 Dec. email chain, but this is how it works in the First Circuit and this is what

should have occurred in the Case at bar:

Immediately following Congressman Mavroules' arraignment on August 28, 1992, Iconvened an open-court conference with counsel for the government and the[*62] defendant. My purpose was to acquaint them with associations I have hadover the years with persons connected with both sides of the case. (Seetranscript attached as Appendix A.) These included: 1) three contacts with thedefendant, whose congressional district includes my home town of Marblehead;2) my friendship with defense counsel Francis Bellotti since 1964 when he ran forGovernor against former Governor Volpe, for whom I served as Chief LegalCounsel; 3) my friendship with the chief prosecutor, Assistant United StatesAttorney Jonathan Chiel, since he served as one of my law clerks [**3]approximately ten years ago; and 4) my participation with two men named in theindictment, Messieurs Brest and Gouchberg, who were among a group of

investors, along with me, in a New Hampshire hotel approximately twenty yearsago. I have seen them infrequently since then, but our relationship remainscordial.

Judge Tauro ruled:Mr. Pappalardo's request does not fit neatly into [**6] any of the traditionaltheories [*63] requiring or warranting recusal. Indeed, no one of thecircumstances cited by me at the August 28 conference requires recusal. Mycontacts with the defendant were minimal, but cordial. Judges often havefriendly relationships with lawyers who appear before them. Here, thatattitude extends to both defense counsel and the prosecutor. There is no bar toformer law clerks appearing before their judge with respect to a matter that

was not in chambers during the clerkship. The fact that a judge may know awitness is not, in and of itself, grounds for recusal.

But, given the extraordinary coincidences that produced the unique totality ofcircumstances involved here, I feel that Mr. Pappalardo's pragmatic analysismakes sense and should be adopted by me. I am, therefore, instructing the Clerkto have the case redrawn.

Defendants ignore these common sense principles and cite to Litekyv. United

States, 127 L. Ed. 2d 474, 114 S. Ct. 1147, 1157 (1994), which was cited in Higgins v.

Brown, 7 Vet. App. 389 (1995). It does them no favors:

Recently, the Supreme Court in Litekyv. United States, 127 L. Ed. 2d 474, 114

S. Ct. 1147, 1157 (1994), held that under section 455(a) the cause of apparent

partiality must almost always be from an "extrajudicial source". Such a source is "a

source outside the judicial proceedings at hand". Higgins, at 9.


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That is Plaintiffs entire point, yet Defendants are now attempting yet another

sophistry in claiming that the Courts ruling is the basis of the partiality. No.

The courts ruling is the effect of the partiality, Defendants have it all twisted

up so Plaintiff will straighten it out for them with another passage from Higgins, again

citing Liteky:

D. Application of Law to Facts

1. Section 455(a); appearance of partiality: In applying the above principlesto the facts in Liteky, the Supreme Court held that none of the grounds assertedby the petitioner required disqualification under section 455(a) because theyconsisted of "judicial rulings, routine trial administration efforts, and ordinaryadmonishments . . . to counsel and to witnesses", all of which had "occurred inthe course of judicial proceedings, andneither (1) relied upon knowledgeacquired outside such proceedings nor (2) displayed deep-seated andunequivocal antagonism that would render fair judgment impossible." Liteky,

114 S. Ct. at 1158. (green emphasis added).

In this case the grounds that Plaintiff asserts have been brewing for the past 16

years, and culminating in the documented assistance from former McLane, Graf

Attorney Muirhead and likely assistance offered by McLane, Graf to Magistrate

McCafferty in her ascension to the bench.

Again, Litekyand its progeny stand for the reasonable proposition that a litigant

cannot cry sour grapes about a ruling, and then claim that the ruling proves the bias.

That sort of claim is properly subject to an appeal, but as Plaintiff is claiming that the

bias was manifest because of the Substantial extrajudicial Contacts between Judge

McCafferty and the McLane, Graf et al. -- that he did not know about and could not

know about because of Defendants misrepresentations prior to hearing --Litekydoes

not apply.


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VI. Public Policy

New Hampshire is a State long-besieged with political favoritism and backdoor

Judicial Politics. District Court Judge John C. Fairbanks was pointedly corrupt, fled the

Jurisdiction and committed suicide as a Fugitive from Justice -- the same description

that Defendant witness Stephen Monier falsely ascribed to another diligent black male

Civil Rights activist. See generally Ralph Holders pending lawsuit at 2010-CV-482

(dismissed and subject to appeal). The Court ordered the Fairbanks file sealed as well,

In re Burling, 139 N.H. 266 (1994). After that debacle, High Court Justice David Brock

was impeached, Justice Stephen Thayer resigned under an agreement not to seek

criminal charges by the States then-AG, and Patricia Coffey resigned after shielding

her disbarred husband Johns financial resources after he exploited an elderly woman

with dementia, according a WMUR in this 21 April, 2008 feature:

As Seen On WMUR

Homepage > NEW HAMPSHIRE NEWS

Embattled Judge Coffey ResignsJudge Had Been Suspended For 3 Years

..The Supreme Court suspended Coffey after concluding she was complicit in a

fraudulent property transfer involving her husband and evasive and misleading to

investigators. Legislators had been considering a bill that would oust her for havingtarnished the integrity of the judiciary.

"I want to acknowledge and thank Judge Coffey for her many of years of service to thejudicial branch and the people of New Hampshire," Chief Justice John Broderick said.

"Given recent events, I think she has made the correct decision to step down. " Coffey, a Superior Court judge in Rockingham County, has admitted helping shield herlawyer-husband's assets as he was being disbarred three years ago. She said she realized

then the state probably would demand that he pay thousands of dollars to cover the cost

of investigating him."My regret is that my actions, when I was under extreme emotional duress, may have

reflected poorly on the judicial system as a whole and on those people who strive daily to

make that system work, and to them, I apologize," Coffey wrote in her letter.Coffey's husband, John Coffey, was disbarred in 2005 for exploiting an elderly client withdementia. Property John Coffey owned with his wife was transferred into a family trust

four days before he was notified he had been found guilty of misconduct and would face

discipline.

This sort of stain on credibility must not be allowed to permeate the Federal

Judiciary. See LA Times 2 May 2000 feature 'Old-Boy' System Causes Chaos on N.H.

High Court, Appendix B.


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Observers say it was that same buddy-buddy tradition that caused thecourthouse chaos. In the small, collegial atmosphere of this Supreme Court,justices have for years sat in on cases from which they were officially recused,Brock and others reported. It also was not uncommon for drafts of opinions tocirculate among all justices--again, whether they had recused themselves ornot.

Four ex-wives of lower court judges say the practice of judicial interferencewas so widespread that their settlements were compromised as well. The ex-wives said recently that they would seek restitution on the grounds that theircivil rights had been violated.**************

As [Theodore] Kamasinski pointed out in an interview, "Once you've got thecourt in meltdown mode, no way it's going back to business as usual."

As president of the state bar, [George] Moore agreed that even the appearanceof impropriety can tarnish the court. "Any justice system, whether it's ours or

yours out there in California, can only operate when the public has confidencein it." Still, he predicted that his state's court would recover.

Often it takes an outsider to effectuate any meaningful efforts at reform as noted by

the New Hampshire High Court resignation of Stephen Thayer (pictured):

.which was occasioned only because

outsider Kamasinski pushed the envelope, and even helped to change laws to open the

courthouse, after Justice Thayer had his wife and young daughters thrown out in the

driving October rain. Even though his efforts were hated by many Judges and Jack

Middleton,5 he went on to successfully fight to eliminate the cost of unsealing court

files. See Douglas v. DouglasNo. 99-487 March 29, 2001.

5 Im really troubled by the fact that people like Mr Kamasinsky try to go into thecourts and represent people, NHPR 7 Feb. 2003.The animosity between the twocarried on an involved a misstatement made by Attorney Middleton at some point.Subsequent to that, Kelly Ayotte attempted to prosecute Plaintiff for UnauthorizedPractice of Law using ex post facto application of new rules, see Plaintiffs First andSecond Amended Complaints.


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VII. Conclusion

Plaintiff is correct about the State of the Law on disclosure just as he was

relative to whether there was current support for the Pruneyardline of cases that

provides the legal underpinnings for NAACP v. Thompson,648 F.Supp. 195 D.Md.,(1986)

the lead case that is going to be analysed by the United States Supreme Court.

Further, Plaintiff has approached nearly a dozen licensed attorneys about this

matter and every single one of them sees this as a substantial issue, because it is.

Plaintiff is confident in his position and looks forward to an immediate hearing on the

Merits, owing to the unique set of circumstances before the Court.

Respectfully submitted,

/s/ Christopher King, J.D._____________________________

Christopher King, J.D.http://KingCast.net -- Reel News for Real People

CERTIFICATE OF SERVICE

I the undersigned, solemnly swear that a true copy of this Memorandum wasElectronically delivered on 11 April 2011 to:

Jennifer Parent and Jack Middleton, Esq.

City Hall Plaza900 Elm StreetManchester, NH 03101

Gordon MacDonald, Esq.Nixon Peabody LLP

900 Elm StreetManchester, NH 03101

Brian Cullen, Esq.10 East Pearl StreetNashua, NH 03060

/s/Christopher King, J.D.__________________________________

KingCast.netBy and through Christopher King, J.D.

617.543.8085m

Documents

McCafferty Recusal Memo.april