By Ryan C. Wood
Yeah, good luck with that argument. So do not even make the argument if you lose a decision. If you want to be a martyr for every person that ever thought their judge in their case had it in for them be my guest. For the rest of you out there do not make this argument unless the judge’s conduct is so egregious it cannot be ignored and you can prove it beyond a reasonable doubt. Is something like a judge having their staff, or some third-party on behalf of a judge, call your attorney about a particular issue or subject they are going to rule on shortly to pick your brain as to why you are doing what you are doing? Things that make you go hmmmmmmm. Or possibly a judge, or judges, on their own volition, sua sponte, make a legal argument never brought up by a single party in the case or cases to the detriment of a party in the case? The decision and argument by the judges is appealed and the judges are found to be wrong. Things that make you go hmmmmmm. Even if you are right the system will grind you up and turn you out. It is like cops testifying against cops or doctors testifying about doctors. If you are the nail that sticks out society will try and hammer you down. Just ask Jesus Christ how that went. Why would some other judge say you are right about their co-worker judge? Yes, that is how the real world works in case you had some notion or delusion based upon the fake news everyone keeps pumping about fairness and equality. I am just merely reporting the weather here. I did not create the fact that it is 98 degrees or fairness and equality are just nice catch phrases. I am just reporting it as it is.
According to Oxford Languages a presumption is a noun meaning: an idea that is taken to be true, and often used as the basis for other ideas, although it is not known for certain whether it is true. Again, you are starting with something that is not known to be true to find a truth. So we can start with a lie to find the truth of something. Okie-dokie. As a bankruptcy attorney I find presumptions to be extremely dangerous and more often than not the presumptions that are supposed to be in favor of my clients are ignored. So I would like to see them all thrown out and we just start with the truth rather than just assuming something is true and going from there to find truth.
Judicial Impartiality is Presumed
It just gets worse and worse. How about I presume you are human and therefore it is impossible for you to turn your brain off and not take int account your own personal beliefs and just hand down judgments based upon the written law as it is written and interpreted. Remember there is precedent lower courts must follow. Why are appointees to the Supreme Court of the United States confirmed and thoroughly scrutinized if they were already presumptively impartial? They are an existing judge being promoted to the highest court of the United States of America. Again, their impartiality is presumed, right? So why are there confirmation hearings?
Just in case you are not keeping score I have written about presumptions before and they are a very dangerous way to go about finding the truth. I think starting with a presumption of truth only leads to a truth that is true based upon the presumption to begin with. Not necessarily the actual truth. It is how we get racially discriminated against. Some sort of truth is presumed based upon the color of our skin and with that presumption somehow other truths follow. You should actually be forced to throw out the presumption to actually get to the truth about a person. Not assume the presumption to be true and go from there.
Presumptions require us to be forced to accept something as true whether we know it to be true of not. I do not like it. So we must assume without any proof that a judge is impartial to reach the conclusion they are in fact acting impartially? So this is all theoretical then and does not affect real humans with real problems? Oh no. This is not just theoretical for arguments sake. This is in application determining results. Not good.
A recent Ninth Circuit Bankruptcy Appellate Panel case highlighted issues with claiming a judge was not impartial in their ruling. See In re Hsin-Shawn Cyndi Sheng, BAP No. EC-19-1317-TLS; Bk No. 17-25114 (Nov. 5, 2020). I am not sure if Ms. Sheng had a bankruptcy attorney or not in her appeal. Generally claims of impartiality are made by people representing themselves. See, us attorneys have to appear before that judge again and the fact is they are just humans. That judge will absolutely remember you argued they were not impartial and they will not be impartial about it. Right? So the presumption of impartiality is at best a theory. Let us just be honest about it. Judges in any given jurisdiction have a monopoly and there is no competition or realistic alternative in most circumstances.
“Judicial impartiality is presumed.” See First Interstate Bank of Ariz., N.A. v. Murphy, Weir & Butler, 210 F.3d 983, 987 (9th Cir. 2000). Must be nice because it may not say it but the presumption is you will be wrong for making this argument to begin with and any evidence you present will be presumed to be false. Again, I am just reporting the weather here and it is a gloomy 59 degrees and partly cloudy. I do not personally create the weather. I certainly can have an opinion about the weather though; right?
An individual claiming judicial bias must “overcome a presumption of honesty and integrity in those serving as adjudicators.” Withrow v. Larkin, 421 U.S. 35, 47 (1975). Overcoming the presumption means overcoming something that may or may not be true. So how to prove something is not true when there is no evidence of its truth because it is just made to be true by operation of law? Hello, the initial not true or true presumption. Kind of sounds like a tough task. You must presume the sky is green yet there is no evidence of the sky being green but for this presumption that forces this truth upon us that the sky is in fact green? I might be getting carried away here.
And where the allegation does not stem from an extrajudicial source, the party claiming bias must submit evidence that the judge exhibited “such a high degree of favoritism or antagonism as to make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 554-55 7 (1994). The test is as follows: “whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” Seidel v. Durkin (In re Goodwin), 194 B.R. 214, 222 (9th Cir. BAP 1996) (citations and internal quotation marks omitted).
Yeah, good luck with that. All the facts will never be known. That is not even possible. So again, if you want to try and be a martyr a make the argument your judge was not impartial.
