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Kirsha Brown-Younger v. Lulu.Com


July 6, 2012


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


This Court's comprehensive July 3 memorandum opinion and order ("Opinion") sought to reserve the label of "lie" to the most egregious of the multiple misstatements and mischaracterizations that have marked the filings by plaintiff Kirsha Brown-Younger ("Brown-Younger") in this case -- to statements so patently and blatantly false that the possibility of innocent mistake rather than deliberate falsehood appears nonexistent. Now, however, Brown-Younger has seemingly outdone herself with her most recent (July 5) filing.

Focusing again on what appears to have become her favorite target -- this Court -- despite the quick rejections of her recusal motion by the Chief Judges of this District Court and the Court of Appeals, Brown-Younger has submitted a document bearing this caption:

2nd Motion To Recuse Motion for Abatement of All Interim Proceedings Motion for Stay of Proceedings To Enforce a Judgment Motion Requesting Hearing.

Employing the term "facts" in a dictionary-defying fashion, the document begins with this "Introduction/Statement of Facts":

PURSUANT to the Supreme Court Advisory Committee Disqualifications and Recusal Rule (1)(b), (1)(2), and Pursuant to Title 28, Sec. 455, and sec. 144, a Federal Judge shall recuse himself if his impartiality has been reasonably questioned. In accordance with the Supreme Court Recusal and Disqualification rule (3), a Judge should immediately disqualify or recuse himself without any further proceedings, if a Judge refuses to disqualify himself, then the Motion must be submitted to the Presiding Judge, to hear this motion, or the Presiding Judge must allow another Judge to hear this motion. See, People v. Botham, 629 P.2d 589, 595 (Colo. 1981); C.J.C. Canon 3(C)(1).

"Once facts have been set forth that create a reasonable inference of a "bent of mind" that will prevent the judge from dealing fairly with the party seeking recusal, it is incumbent upon the trial judge to recuse himself. A trial judge must accept the affidavits filed with the motion as true, even though the judge believes that the statements contained in the affidavits are false or that the meaning attributed to them by the party seeking recusal is erroneous".

Johnson v. District Court, 674 P.2d 952 (Colo. 1982).

In candor, that filing has astonished this Court. This Court has always been sensitive to considerations of professional ethics on the part of both lawyers and judges -- even before taking the bench, while in the private practice of law, it had served as Chairman of the Chicago Bar Association's Committee on Professional Ethics and as a member of the American Bar Association's committee on the same subject. And as to judicial ethics alone, this Court served for a number of years as the first retained general counsel to the Illinois Judicial Inquiry Board (the body charged with initiating and handling claims of misconduct on the part of Illinois state court judges at all levels -- even its Supreme Court). Since coming to the bench, this Court has taken pains to keep au courant in the field of judicial ethics.

So it was troubling indeed to encounter a reference to a "Supreme Court Advisory Committee" that has assertedly adopted rules that would replace the long-standing self-policing of recusal matters by the federal judiciary with a system under which any disgruntled litigant could bring a false charge and force a judge off of a case. And that was all the more astonishing when that purported set of new rules had not been the subject of wide publicity or of any communication at all on the part of the Administrative Office or the Federal Judicial Center, let alone other sources of information to the federal judiciary.

Hence this Court immediately asked one of its excellent law clerks to try to validate and track down Brown-Younger's source. It took less than a minute for the law clerk, with the aid of Google as a search engine, to turn up a document captioned: "Supreme Court Advisory Committee Subcommittee Working Draft of Disqualification and Recusal Rule Proposal," a copy of which has been attached as Ex. 1 to this Opinion.*fn1

Ex. 1's self-identification as a "Subcommittee Working Draft" rather than, as Brown-Younger would have it, an existing set of rules is disturbing enough. But what entirely destroys the integrity of her current submission -- and the integrity of Brown-Younger herself --is that the "Supreme Court" referred to in that working draft is not the United States Supreme Court, which has no such Advisory Committee, but the Supreme Court of the State of Texas. Just take a look at the last two pages of Ex. 1, which first describe the proposed rule as one that would replace current Rules 18(a) and 18(b) of the Texas Rules of Civil Procedure, and then continue with a set of notes whose numbers match up precisely with the parenthetical note references in the text of the working draft. All of those provisions obviously speak of Texas procedures and potential rules, not of those in the federal system.*fn2

So the bottom line is that Brown-Younger appears to have exhibited gross dishonesty in her latest salvo. What has been said here obviously has nothing at all to do with her race -- after all, lying and truth telling know no racial boundaries. Nor does it have anything to do with Brown-Younger's so-far-unnamed (and to this Court unknown) disability -- unless, that is, "disability" is the inability on her part to be truthful. And finally, as for any claimed bias because of Brown-Younger's status as a pro se litigant, any lawyer who had engaged in the deception disclosed here or heretofore would long since have been sanctioned for misconduct.

There is no need to repeat the citations and quotations in Opinion at 7-8, which are exemplary of the standards for granting or denying recusals in the federal courts (though perhaps not in Texas). Hence for the reasons set out here, Brown-Younger's second motion for this Court's recusal is denied. And when Brown-Younger responds on or before July 24 to the issues focused on in the Opinion, she must add an explanation as to her current filing as well.

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