No. 05-20348
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Cause No. 05-20213
WOLFGANG HIRCZY, Ph. D., Plaintiff-Appellant,
V.
DONA G. HAMILTON, Defendant-Appellee.
______________________
Cause No. 05-20348
FACULTY RIGHTS COALITION; WOLFGANG P. H. DE MINO,
Plaintiffs-Appellants,
V.
GEORGE C. HANKS; JANE NENNINGER BLAND;
UNNAMED ADJUNCT PROFESSORS OF LAW,
Defendants-Appellees.
_______________________
On Appeal from the U.S District Court for the Southern District of Texas
USDC Nos. H-04-CV-04494 and H-05-CV-00184
_______________________
BRIEF OF APPELLANTS, FACULTY RIGHTS COALITION
AND WOLFGANG P. H. DE MINO
IN CAUSE NO. 05-20348
_______________________
Wolfgang Hirczy de Miño
Texas Bar Card No. 32143
2038 ½ Lexington
Houston, Texas 77098
Tel.: (713) 806-8517
Fax: (713) 527-0391
July 25, 2005
Pursuant to the applicable rules, Appellants identify the following persons and/or entities as having an interest in the outcome of this appeal.
Plaintiffs-Appellants suggest that this appeal affords the Court an opportunity to clarify the conditions under which judges must disqualify themselves, and that oral argument may assist the Court in fashioning a new recusal rule. Accordingly, Appellants request oral argument should the Court deem it helpful.
CERTIFICATE OF INTERESTED PERSONS. ............................................ ii
STATEMENT REGARDING ORAL ARGUMENT .................................... iii
TABLE OF CONTENTS .............................................................................. iv
TABLE OF AUTHORITIES ......................................................................... vi
BRIEF OF APPELLANTS ............................................................................ 1
STATEMENT OF JURISDICTION .............................................................. 2
STATEMENT OF THE ISSUES ................................................................... 3
STATEMENT OF THE CASE ..................................................................... 4
STATEMENT OF FACTS............................................................................. 4
SUMMARY OF THE ARGUMENT ............................................................ 10
ARGUMENT AND AUTHORITIES ............................................................ 11
II. DISMISSAL OF COMPLAINT FOR FAILURE TO STATE
CLAIM WAS ERROR ........................................................................ 12
III. FAILURE TO RECUSE WAS ERROR .............................................. 17
A. Legal basis for recusal ............................................................... 17
B. Procedural and factual posture ................................................... 18
C. Factual basis for recusal ........................... ................................ 21
IV. INJUNCTION WAS IMPROPER ...................................................... 23
A. Injunction had no proper predicate ............................................ 23
B. Injunction rests on false factual premises ................................... 24
V. THIS COURT SHOULD SET CLEAR RECUSAL RULE FOR
THE BENEFIT OF BENCH AND BAR, AND TO PROMOTE
CONFIDENCE IN THE JUDICIARY ............................................... 30
CONCLUSION ............................................................................................. 34
CERTIFICATE OF SERVICE ...................................................................... 35
CERTIFICATE OF COMPLIANCE ............................................................. 36
CASES
Andrade v. Chojnacki, 338 F.3d 448 (5th Cir. 2003)....................................... 34
Board of Regents v. Roth,
408 U.S. 564 (1972) ............................................................................ 15
Bounds v. Smith, 430 U.S. 817 (1977)............................................................ 33
Campbell v. Wells Fargo Bank, 781 F.2d 440 (5th Cir. 1986)........................ 12
Christopher v. Harbury, 536 U.S. 403 (2002) .............................................. 15
Cinel v. Connick, 15 F.3d 1338 (5th Cir. 1994).............................................. 17
Conley v. Gibson, 355 U.S. 41 (1957)........................................................... 12
Corpus v. Estelle, 551 F.2d 68 (5th Cir. 1977)................................................ 15
Delaporte v. Preston Square, Inc.,
680 S.W.2d 561, 563 (Tex.App.-Dallas 1984, writ ref'd n.r.e.)........... 30
De Mino v. Achenbaum, 81 Fed.Appx. 819 (5th Cir. 2003) ............................ 25
De Mino v. Sheridan, 2004 WL 1794558 (Tex.App.-Hous. (1 Dist.))........... 5, 6
__ S.W.23 __ (2003, no writ) ............................................................. 14
De Mino v. Univ. of Houston, 2004 Tex.App. LEXIS 9045
(Tex.App.-Austin, Oct 14, 2004, pet filed) .......................................... 28
Elk Grove Unified School Dist. v. Newdow 542 U.S. 1 (2004) ....................... 26
Ex Parte Young, 209 U.S. 123 (1908)............................................................ 13
Ex Parte Finn, 614 S.W.2d 293 (Tex.Civ.App.-Dallas 1981, no writ)........... 30
Fazekas v. University of Houston,
565 S.W.2d 299 (Tex.Civ.App.-Houston [1st Dist.] 1978,
writ ref'd n.r.e.), 440 U.S. 952 ( 1979 )................................................ 5
Freedman v. Univ. of Houston,
110 S.W.2d 504 (Tex.App.-Houston [1st Dist.] 2003, no pet) ............. 5, 15
Guidry v. Bank of LaPlace, 954 F.2d 278 (5th Cir. 1992)............................... 12
Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)....................................... 32
Indest v. Freeman Decorating Co., 164 F.3d 258 (5th Cir. 1999) ................... 17
In re Murchison, 349 U.S. 133 (1955)........................................................... 15
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).... 14
Johnson v. Mississippi, 403 U.S. 212 (1971).................................................. 15
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988)............. 12, 27
Lovelace v. Software Spectrum, 78 F.3d 1015 (5th Cir. 1996)......................... 31
Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242 (5th Cir. 1997).................... 11
Mercury Air Group, Inc. v. Mansour, 237 F.3d 542 (5th Cir. 2001) ............... 11
Missouri Pac. R.R. Co. v. Brownsville Navigation Dist.,
453 S.W.2d 812 (Tex. 1970) ............................................................... 29
Sao Paulo State v. American Tobacco, 535 U.S. 229 (2002).......................... 18
Shipp v. McMahon, 199 F.3d 256 (5th Cir. 2000)............................................ 12
West v. Atkins, 487 U.S. 42 (1988)................................................................. 15
STATUTES AND RULES
28 U.S.C.§ 455.............................................................................................. 9, 12
28 U.S.C.§ 455(a).......................................................................................... 17
28 U.S.C. § 455(b)(1)(5)................................................................................ 18, 19
28 U.S.C. § 1291 .......................................................................................... 2
42 U.S.C. § 1983 .......................................................................................... 2, 15
Fed. R. Civ. P. 7 ............................................................................................ 17
Fed. R. Civ. P. 11........................................................................................... 14, 23
24, 27
Fed. R. Civ. P. 12(b)(1)................................................................................. 32
Fed. R. Civ. P. 12(b)(6)................................................................................. 17, 32
Tex. Civ. Prac. & Rem. Code §51.014(8) ...................................................... 7
Tex. R. Civ. P. 13 ......................................................................................... 27
Tex. R. Civ. P. 18 .......................................................................................... 22
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Cause No. 05-20213
WOLFGANG HIRCZY, Ph. D., Plaintiff-Appellant,
V.
DONA G. HAMILTON, Defendant-Appellee.
______________________
Cause No. 05-20348
FACULTY RIGHTS COALITION; WOLFGANG P. H. DE MINO,
Plaintiffs-Appellants,
V.
GEORGE C. HANKS; JANE NENNINGER BLAND;
UNNAMED ADJUNCT PROFESSORS OF LAW,
Defendants-Appellees.
_______________________
On Appeal from the U.S District Court for the Southern District of Texas
USDC Nos. H-04-CV-04494 and H-05-CV-00184
_______________________
BRIEF OF APPELLANTS, FACULTY RIGHTS COALITION
AND WOLFGANG P. H. DE MINO, IN CAUSE NO. 05-20348
_______________________
Wolfgang Hirczy de Miño
Texas Bar Card No. 32143
2038 ½ Lexington
Houston, Texas 77098
Tel.: (713) 806-8517
Fax: (713) 527-0391
Counsel for Appellants
This is an appeal from an order dismissing a civil rights action with prejudice, from two permanent injunctions, and from orders denying post-dismissal motions. The dismissal order and first injunction (RoA 203 at Tab 3) were entered February 9, 2005, the (second) Permanent Injunction (RoA 318 at Tab 6) on March 16, 2005. Although Plaintiffs-Appellants moved for entry of judgment on March 3, 2005 (RoA 316), and on April 15, 2005 (RoA 399 at Tab 10), no judgment was ever entered. Accordingly, it is unclear whether the appellate timetable has started.
Appellants filed their joint notice of appeal on April 15, 2005 (RoA 396 at Tab 12), and amended it on May 18, 2005 (RoA 542 at Tab 12).
The District Court had federal question jurisdiction based on the assertion of claims under 42 U.S.C. §1983 and the U.S. Constitution.
This Court has jurisdiction over this appeal pursuant to 28 U.S.C.1291.
1. Did the District Court commit error by dismissing Plaintiffs' civil rights claims seeking an injunction to remedy judicial conflicts of interests involving the University of Houston in Harris County courts?
2. Did Judge Lynn N. Hughes err by failing to recuse himself from this case?
3. Did Judge Hughes abuse his discretion when he signed orders abridging Wolfgang Hirczy's access to federal court, and preventing him from refiling his claims?
4. Should the Fifth Circuit use this case to establish a new Rule requiring federal judges who teach at law schools to recuse themselves from cases involving the law school or the institution it is a part of?
Plaintiffs allege that the University of Houston pays state court judges who hear cases against the University, thus compromising the fair adjudication of claims, and brought this public interest litigation to (1) expose the practice, and (2) to end it. Plaintiffs asserted standing as members of the public and as parties adversely affected by the challenged practices, and sought relief premised on the violation of their right to a fair tribunal under the Due Process clause and their statutory rights under the Public Information Act. The District Court dismissed both actions with prejudice.
The instant appeal is from the District Court's Final Order of Dismissal and Permanent Injunction (RoA 203 at Tab 3), Order denying Motion to Transfer (RoA 311 at Tab 5); [Second] Permanent Injunction (RoA 318 at Tab 6); Order denying Motion to Vacate (RoA 365 at Tab 8); Order denying Motion for Recusal and for Reconsideration (RoA 531 at Tab 11); and (contingently) the Court's failure to enter final judgment pursuant to a motion for entry (RoA 316, 399 at Tab 10).
Plaintiffs FACULTY RIGHTS COALITION and WOLFGANG P.HIRCZY DE MINO (individually "Hirczy;" collectively "the Faculty Rights Plaintiffs") filed suit in the Southern District of Texas on November 26, 2004, asserting that Defendant GEORGE C. HANKS ("Defendant Hanks") was employed by the University of Houston while at the same time serving in a judicial capacity. As a state district judge Defendant Hanks had presided over a suit against the University of Houston that resulted in the loss of faculty members' right to sue the University of Houston for breach of contract in Harris County. See Freedman v. Univ. of Houston, 110 S.W.2d 504 (Tex.App.-Houston [1st Dist.] 2003, no pet)(overruling Fazekas v. University of Houston, 565 S.W.2d 299 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref'd n.r.e.).
The Faculty Rights Plaintiffs further alleged that Justice Hanks had failed to recuse himself from the pending en banc reconsideration of an interlocutory appeal in which the key issue was whether the University of Houston also enjoyed immunity from suit on causes of action other than breach of contract. See De Mino v. Sheridan, ___ S.W.2d ___ (Tex.App-Houston [1st Dist.] 1993, no pet).
In addition to seeking injunctive relief against Defendant Hanks, the Faculty Rights Plaintiffs alleged that other Harris County judges, too, were on the University's payroll (or paid through a third party to circumvent state law which restricts moonlighting by full-time state officials), and had failed to recuse themselves from cases in which the University or its officials were parties. The complaint refers to these individuals as "Unnamed Adjunct Professors of Law." Faculty Rights Coalition filed an open records request seeking their enumeration by name as well as documents on the payments they had received (RoA 418).
As relief, the Faculty Rights Plaintiffs sought "an injunction to prevent Defendants from sitting as judges in cases involving the University and/or its officials either as named defendants or as real parties in interest." (RoA 6-7). Plaintiff pleaded in the alternative that the Defendants should be enjoined (in their non-judicial capacities) from accepting anything of value from the University to the extent they sat as judges in cases involving the University or its officials. (RoA 13).
The action was originally assigned to the Honorable Lynn N. Hughes, but later reassigned to the Honorable Keith P. Ellison. (RoA 76).
On December 2, 2004, the Texas Court of Appeals for the First District gave notice that it had voted against en banc reconsideration in De Mino v. Sheridan and that Justice Hanks had not participated in the decision. The memorandum order denying en banc review was designated "Do not publish," but is included in the record here. (RoA 69-70).The court's opinion set new precedent and was designated for publication. Although the final version has yet to be released to the Southwestern Reporter, it can be found on Westlaw and Lexis. De Mino v. Sheridan stands for a number of novel propositions of law, including the Provost's immunity to suit in addition to the University's, and the entitlement of state university officials to interlocutory appeal under Tex. Civ. Prac. & Rem. Code §51.014(8)(authorizing appeal by governmental units). See 2004 WL 1794558 (Tex.App.-Hous. (1 Dist.)).
On January 19, 2005 Hirczy filed a second civil action, naming Dona G. Hamilton ("Hamilton"), the VP for Legal Affairs at the University of Houston, as a defendant, seeking to enjoin her from interfering with the fair adjudication of suits involving the University by putting judges on the University's payroll, or arranging payment through others. The suit also complained of the University's refusal to release information on all judges/justices who taught at the University while at the same time sitting in cases involving the University or its officials, in response to a request under the Open Records Act. (RoA 4-7 in No. 05-20213).
Hirczy v. Hamilton was assigned to the Honorable Lynn N. Hughes.
On February 1, 2005 Judge Hughes transferred Faculty Rights v. Hanks back onto his docket and issued an order for a pretrial conference for both cases (RoA 91). In an in camera proceeding held the next day, Judge Hughes took Hirczy's deposition (without prior notice) and announced his intent to dismiss both suits on the ground that the Plaintiff(s) did not have standing. (RoA 92; RoA Volume 2 (Transcript)). Judge Hughes also expressed his intent to prohibit Hirczy from filing any further actions in federal court without his consent, but said he would "think about" it. (RoA 308). On February 8, 2005 Judge Hughes signed an order dismissing both cases with prejudice for failure to state a claim and barred Hirczy from refiling. (RoA 203).
On February 24, 2005 the Open Records Division of the Attorney General's Office ruled, inter alia, that the University may not withhold the identity of the judges who taught at the University of Houston. (RoA 410). UH had invoked the litigation exception and refused to release the information on the grounds that the Requester had expressly stated that he wanted the names so that he could add them as Defendants to the pending federal law suit. (RoA 420-21). In a second ruling, the Open Records Division ordered the University to release additional personnel records. It also denied the University's request for reconsideration as unauthorized.
On March 9, 2005 Hirczy filed his notice of appeal in Hirczy v. Hamilton (RoA 166 in 05-20213) and timely filed his brief with the clerk of the Fifth Circuit.
In Faculty Rights v. Hanks, the Plaintiffs requested that Judge Hughes reconsider his ruling in light of the Attorney General's open records ruling and recuse himself in light of newly discovered evidence. (RoA 399 at Tab 10; 366 at Tab 9). Documents the University released pursuant to the open records opinion reveal that Judge Hughes had received $1,000 from the same source as the Defendant Hanks and the Unnamed Adjunct Professors of Law. (RoA 385).
The Faculty Rights Plaintiffs' post-dismissal motions include a motion to transfer (RoA 204 at Tab 4), a motion for findings of fact and conclusions of law (RoA 316), a motion to vacate (RoA 320), a motion under 28 U.S.C. § 455 (RoA 366 at Tab 9), a motion for reconsideration (RoA 399 at Tab 10), and a motion for entry of judgment as a separate document (RoA 399 at Tab 10). Judge Hughes denied all motions, expect for the motion for entry of judgment, which was never resolved. Judge Hughes signed a second preclusion order that includes findings in support of the permanent injunction directed against Hirczy on March 15, 2005 (RoA 318 at Tab 6).
The Faculty Rights Plaintiffs filed their joint notice of appeal on April 15, 2005, and amended it on May 18, 2005. (RoA 396, 542 at Tab 12).
After Hirczy had filed Appellant's brief in Hirczy v. Hamilton, the Court [or Clerk on behalf of the Court] granted Appellees' motion to consolidate Cause Nos. 05-20213 Hirczy v. Hamilton and 05-20348 Faculty Rights v. Hanks, and suspended the Appellee's briefing time "until Appellant files his brief in 05-20348." Accordingly, there are two separate Appellants' briefs (in 05-20213 and 05-20348, respectively), while there will only be one (joint) Appellees' brief. All record references in the instant brief are to the Record on Appeal (RoA) in Faculty Rights v. Hanks unless otherwise noted. All record references in Appellant's Brief in Hirczy v. Hamilton are to the record in that case.
The Faculty Rights Plaintiffs sought to enjoin Justice Hanks from participating in en banc review of the issues raised in De Mino v. Sheridan in the Texas Court of Appeals for the First Judicial District. Because Justice Hanks' recusal from that case accomplished the object sought, the claim for injunctive relief became moot. Accordingly, its merits are before the Fifth Circuit only to the extent the court below deemed it a frivolous claim warranting sanctions.
The District Court erred by dismissing Plaintiffs' access-to-court / denial-of-fair-tribunal claim with prejudice under Fed. R. Civ. P. 12(b)(6)(failure to state claim).
Judge Hughes should have refrained from sitting in this case because he was himself a person affected by the controversy sought to be litigated, and was a person in a position similar to those against whom Plaintiffs sought injunctive relief.
The District court erred by entering an injunction against Wolfgang Hirczy instead of entering one against the Defendants.
This Court should judicially establish a bright-line rule that federal judges must recuse, or are automatically disqualified, under the type of circumstances present in this case, and that failure to recuse under this Rule may be alleged for the first time on appeal.
The New Rule will serve Bench and Bar well by taking acrimony and recrimination out of sensitive situations where the impartiality of the judge may be subject to question, but attorneys are reluctant to challenge the judge's integrity by formally moving for recusal. It will at the same time promote the public's confidence in the integrity of the judicial system.
A. DISMISSAL FOR FAILURE TO STATE CLAIM: DE NOVO
A dismissal for failure to state a claim is reviewed de novo. Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 246 (5th Cir. 1997).
B. IMPOSITION OF SANCTIONS: ABUSE OF DISCRETION
Imposition of sanctions under Rule 12 is review for abuse of discretion. Mercury Air Group, Inc. v. Mansour, 237 F.3d 542, 548 (5th Cir. 2001).
C. FAILURE TO RECUSE: REASONABLE PERSON STANDARD
The Supreme Court requires that mandatory recusal under 28 U.S.C. § 455 be based on the judgment of "a reasonable person, knowing all the circumstances." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988).
II. DISMISSAL OF COMPLAINT FOR FAILURE TO STATE CLAIM WAS ERROR
A. Dismissal is disfavored
A dismissal for failure to state a claim upon which relief can be granted is a disfavored means of disposing of a case. Shipp v. McMahon, 199 F.3d 256, 260 (5th Cir. 2000). Under applicable Supreme Court precedent, district courts should avoid such dismissals "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In determining whether a complaint states a claim, it is construed liberally in the plaintiff's favor and all factual allegations are taken as true. See Shipp, 199 F.3d at 260 (citing Campbell v. Wells Fargo Bank, 781 F.2d 440, 442 (5th Cir. 1986).
B. Adequate factual basis existed
It is undisputed that a federal complaint must have an adequate factual basis and that litigants cannot simply walk into federal court and seek relief on mere speculation about the genesis of wrongs allegedly suffered. A plaintiff must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
Because the Faculty Rights Plaintiffs intended to move for interim injunctive relief, they did more than merely plead the factual basis of their claims with particularity. (RoA 6, 20 at Tab 2). They referenced the documents supporting their assertions in their original complaint, attached an exhibit list, and filed the exhibits. See Plaintiff's List of PI [Preliminary Injunction] Exhibits (RoA 33 at Tab 2). They thus exceeded the requirements of the pleading rules.
C. Legal claims were adequately researched
Meritless legal claims, such as assertions of nonexisting causes of action, may provide a basis for sanctions. Here, however, the pleadings reflect careful research of the applicable case law.
Although the Faculty Rights Plaintiffs averred that the University, as a state actor, was bound by the Fourteenth Amendment, they did not name it as a defendant, but instead named individuals to avoid Eleventh Immunity issues. Plaintiffs did not sue judges in their individual capacity for wrongful judicial decisions (barred by absolute judicial immunity), nor did they sue them to "appeal" such decisions (barred by the Rooker-Feldman doctrine). Plaintiff expressly disclaimed suing the Defendants for money damages (RoA 8, 22:¶ 4.4). They only sued them in their official capacities, and sought prospective injunctive relief available under Ex Parte Young, 209 U.S. 123 (1908)(RoA 8, 22:¶ 4.3). Plaintiffs pleaded in the alternative for injunctive relief against the defendants in their non-judicial capacities (i.e. as adjunct faculty members). In an abundance of caution Plaintiffs expressly stated that they wished to re-plead and assert claims against the University official(s) responsible for hiring judges, in the event the Court disagreed on the viability of the claims asserted against the original defendants. (RoA 29-30).
When the claims against Justices Hanks and Bland became moot because they had recused themselves from De Mino v. Sheridan, Plaintiffs amended their complaint to delete those claims, and nonsuited Justice Bland. (RoA 20).
Even if the claims set forth in the live pleadings are deemed novel, they would not be sanctionable. Rule 11 does not prohibit litigants from advocating that case law be modified, or that existing legal theories or doctrines be applied to new factual circumstances. If Rule 11 were construed in such a fashion, it would forestall the development of the law and would impede the improvement of the Fifth Circuit's - or any circuit's - jurisprudence. Indeed novelty of claims is a factor favoring a higher attorneys fee award because they require greater attorney effort. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).
D. Plaintiffs adequately pleaded the elements of a civil right claim
In order to state an actionable claim of a constitutional violation under 42 U.S.C. § 1983 a plaintiff must identify a federal constitutional right of which he or she has been deprived and a defendant who violated said right while acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Plaintiffs met the first requirement by pleading that they had been denied the right to a fair resolution of their claims against the University of Houston in local state courts. Plaintiff further alleged that the challenged conduct had resulted in the loss of their ability to enforce employment-related rights against the University.
Access to the courts is guaranteed by the U.S. Constitution. Christopher v. Harbury, 536 U.S. 403 (2002). Even prisoners are entitled to access the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977); Corpus v. Estelle, 551 F.2d 68, 70 (5th Cir. 1977). It is well-settled that an unbiased judge is essential to due process. Johnson v. Mississippi, 403 U.S. 212 (1971); In re Murchison, 349 U.S. 133, 139 (1955). The Due Process Clause also protects property interests, including those created by contracts. Board of Regents v. Roth, 408 U.S. 564 (1972). It is undisputed that faculty members at the University of Houston cannot now enforce their contracts in Harris County. See Freedman v. Univ. of Houston, 110 S.W.2d 504 (Tex.App. -Houston [1st Dist.] 2003, no pet).
The Faculty Rights Plaintiff allege, inter alia, that faculty members at the University of Houston lost these constitutionally protected rights as a result of the Defendants' wrongful conduct. (RoA 28). Because for Rule 12 dismissal purposes the allegations in a complaint are taken as true, Plaintiffs do not have to prove them to survive a motion to dismiss.
Plaintiffs met the second requirement by pleading that the Defendants engaged in conduct (whether by act or omission) that resulted in (or was about to cause) the injuries they assert, and that the Defendants did so under color of state law. (RoA 22-23:¶4.5).
Because the Plaintiffs adequately pleaded the elements of a civil rights claim, the District Court's order of dismissal under Fed. R. Civ. P. 12(b)(6) was improper and should be reversed.
In the alternative, the dismissal was improper because the Court failed to give notice of its intent to dismiss prior to the in camera conference on February 2, 2005. Failure to give such notice is contrary to the letter and spirit of the Federal Rules of Civil Procedure, and violates Plaintiffs' procedural due process rights. Defendants never filed a motion to dismiss. At best, Defendants accepted having an oral motion to dismiss imputed on them by the District Court. The dismissal was judge-initiated and should thus be reversed on the alternative basis of having violated Plaintiffs' constitutional right to notice and an opportunity to obtain the testimony of Dona Hamilton, and to conduct at least some initial discovery.
To the extent the Faculty Rights Plaintiffs' pleadings were deficient, they should have been ordered to re-plead under Fed. R. Civ. P. 7, or afforded an opportunity to do so of their own, as requested in their complaint at p.11. (RoA 30). A dismissal should not be granted if the allegations support relief on any possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994); Indest v. Freeman Decorating Co., 164 F.3d 258, 261 (5th Cir. 1999).
Because the District Court did not abide by the requirements that govern motions to dismiss under Rule 12(b)(6), the dismissal should be reversed.
III. FAILURE TO RECUSE WAS ERROR
A. Legal basis for recusal
Section 455(a) of 28 U.S.C. provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Sao Paulo State v. American Tobacco, 535 U.S. 229 (2002). He is also required to disqualify himself "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;" and "where he or his spouse or a person within the third degree of relationship to either of them ... is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding. 28 U.S.C. §455(b)(1)(5).
While there are other grounds for recusal, the foregoing provisions apply here because Judge Hughes was asked to adjudicate a controversy in which he was interested (the propriety of payments by Defendants to judges). He also had personal knowledge of relevant facts (amount, source, and manner of payment by the University to him), and was thus a material witness. Indeed, he made statements on the records that are the equivalent of testimony. (RoA 267:24).
B. Procedural and factual posture
The Faculty Rights Plaintiffs argue herein that Judge Hughes, and other judges under the same circumstances, should have recused themselves on account of having received payment from the Defendant. The complaint about his failure to do so comes before this Court in four different procedural postures. The Faculty Rights Plaintiffs aver that:
While the standards of review for these related points of error on appeal may differ, the arguments with regard to recusal in each case are similar. Accordingly, the four points of error should be considered together. Moreover, there are valid public policy reasons for the proposition that litigants should be able to move for recusal for the first time on appeal (particularly where the relevant recusal facts only came to light after final judgment), in which case the court of appeals would have to apply the same criteria as those that apply to the resolution of the issue at the trial court level, rather than the applicable appellate standard for failure to recuse, denial of relief under Rule 59, Rule 60, and so on.
Because recusal jurisprudence is unsettled, and because the Faculty Rights Plaintiffs urge the Fifth Circuit to establish a new Rule, the Honorable members of the panel are asked to focus on the substance of the issue (whether a judge who teaches at a university, or has received compensation from it, should recuse when the university appears in his court), rather than on issues of procedural posture, or the manner in which the recusal issue reaches the court.
There are nevertheless some factual and procedural particularities, which distinguish this case from others in which the recusal issue arose, and have a bearing on the policy decision this court is asked to make. They are as follows:
C. Factual basis for recusal
On the merits, the argument applicable to all four recusal errors presented here is simple: USDC judges should not sit in cases with parties from whom they have accepted money. Nor should they decide cases whose resolution amounts to a judgment on the propriety of their own prior extrajudicial engagements.
In the case at bar, Judge Hughes was asked to enjoin state and county court judges from sitting in cases involving defendants from whom they had received money. Judge Hughes had himself accepted payment from the University of Houston. (RoA 385). $1,000 may not be much for a successful attorney or judge (counsel below argued it was de minimis), but the average person will beg to differ. That sum would easily support criminal charges if a private litigant were to offer it to a federal judge, whether as a gesture of appreciation or for services yet to be rendered.
That is not to say that judges should not teach, and get paid for their service. If they do so, however, they should refrain from adjudicating cases involving the source of the remuneration. Much less should they dismiss them without reaching the merits, and --as here--protect the source of funds from discovery (and open records requests), while deterring others from exposing judicial conflicts of interest by "shooting the messenger." It is ironic in this context that Judge Hughes would suggest that government officials who refuse to comply with open records laws should forfeit their pensions to give teeth to such laws (RoA 224:24), and that he would describe himself as a "First Amendment nut." (RoA 296:5). This only confirms the proposition that even a federal judge is not an impartial judge of his own matters, much less his own biases, and that an impartial tribunal or other judge should review his actions when they are alleged to be improper or erroneous. That rationale underlies Rule 18 of the Texas Rules of Civil Procedure, which requires that a challenged judge either recuse or refer the recusal motion to another judge. It is, of course, also the core rationale for having a multi-tiered judicial system with appellate courts, and for the rule that appellate justices should not participate in the review of decisions they made as trial court judges in a court below.
Accordingly, this Court should review the propriety of Judge Hughes' affirmative decision to hear this case despite his conflict of interest and reverse all of his orders on the ground that he was disqualified (or should have recused himself) and should have taken no action in this case.
IV. INJUNCTION WAS IMPROPER
Judge Hughes' injunction orders restricting Hirczy's access to federal court are not warranted under Rule 11, which gives federal judges the authority to sanction improper conduct by attorneys or parties.
A. Injunction had no proper predicate
Judge Hughes' sanctions initiative was entirely sua sponte. Hirczy could not avail himself of the safe-harbor provision because Defendants had not complained that he had violated Rule 11, much less filed a motion to that effect. Judge Hughes gave no notice prior to the February 2, 2005 conference that he would charge Hirczy with misconduct. Nor did he articulate any reason in his February 9, 2005 written order as required by Fed. R. Civ. P. 11. (RoA 203 at Tab 2).
The case law governing injunctions in federal court does not furnish a legal basis for the preclusion order either. Defendants did not assert a counter-claim. Much less did they plead for injunctive relief on a recognized cause of action. Indeed, Defendants did not even file an answer, or a written motion to dismiss in lieu of an answer. Accordingly, there is no basis in the pleadings for any injunctive relief against Hirczy or the Faculty Rights Coalition.
In its second preclusion order (RoA 318 at Tab 6), Judge Hughes made findings, but they do not satisfy the requisites of Rule 11. The injunction should be reversed because key findings (about baseless suits and the prospect of more) are controverted by the record, while others (attributions of anger and frustration) do not constitute evidence of wrongdoing, whether true or not, and thus do not support the imposition of sanctions. The denial of Plaintiffs' Motion to Vacate (RoA 320) should alternatively be reversed because it only states in a conclusory fashion that "an extensive record supports the permanent injunction." (RoA 365 at Tab 8). Because no sanctionable conduct has been shown, it was an abuse of discretion for the District Court to impose sanctions in the form of permanent injunctions abridging Hirczy's constitutionally guaranteed access to federal courts.
The requirement that Hirczy obtain the prior approval of Judge Hughes before filing in federal court would be unreasonable and unconstitutional even if it were justified on the merits, because it denies Hirczy the ability to satisfy the requirement in the event that Judge Hughes should become unavailable to review such an application due to resignation, retirement, incapacity, or death.
B. The injunction rests on false factual premises
In its March 15, 2005 order the District Court justified the Permanent Injunction directed against Hirczy on the grounds that Hirczy had brought numerous baseless lawsuits and had to be stopped from bringing more. (RoA 319-320).
In fact, Plaintiff had only filed three civil actions in federal court, including the two before the Court now. The third civil action, filed to determine the First Amendment and labor union rights of adjunct faculty, was pending in Judge Rosenthal's court at the time. (RoA 261:13). The only federal action involving the Plaintiff that had proceeded to final judgment was De Mino v. Achenbaum. That case was filed in state court and removed by the Defendants. It resulted in a decision by the Fifth Circuit that Hirczy was the prevailing party. See De Mino v. Achenbaum, 81 Fed.Appx. 819 (5th Cir. 2003). Accordingly, it could not have been without merit. Even if Hirczy had lost that case, however, it would not mean it was frivolous. Competent lawyers lose cases all the time. Judge Hughes concedes: "It's hard to win even when you have a lawyer."(RoA 273:7).
Hirczy's prior tussles with wives and ex-girlfriends in family courts are simply irrelevant to the federal forum. The domestic relations abstention doctrine is well established. More importantly, for purposes of reviewing the anti-suit injunction, Hirczy was the prevailing party in several state lawsuits, at least nominally. He filed for divorce and it was granted. He filed for a restraining orders, and he obtained one once. He wanted to Hispanicize his name by adding his partner's and a state court approved it. These are routine matters, but they are part of Judge Hughes' count of allegedly baseless cases. Hirczy also sued an ex girlfriend to stop her from getting him fired from a second job after she had managed to get him fired from the first, a topic on which Judge Hughes had Hirczy testify at length in chambers. (RoA 228:13). That suit was dismissed, but the dismissal was reversed on appeal, as Judge Hughes discovered from the results of the research he commissioned. See Letter from Deborah Selden to Judge Hughes re: De Mino's cases (RoA 94); and opinion and judgment reversing family court's dismissal of suit against Veronica Alvarez (RoA 132-135). In a few instances where Hirczy lost on appeal, the courts wrote opinions that are now cited for various proposition of law. Nor has Hirczy always acted as his own attorney.
Hirczy likely has more litigation experience than some new hires at the Attorney General's Office. In the eyes of Judge Hughes and in the eyes of many (but not all) of his peers, that makes him a vexatious litigant, regardless of outcome. Hirczy views himself as an advocate who tries to achieve policy change through litigation ("I want to change the case law...-- I think it's just not right.")(RoA 260:14).
Others have done that before him, including such luminaries as Thurgood Marshall and Ruth Bader Ginsburg, but also folks of lesser stature, such as Mike Newdow and even a homeless former lawyer in Austin. They weren't assured of success, but they all got their day in court. Given the importance of the issue they raised, they deserved no less. Although Newdow ultimately lost on standing grounds, he got to make his point, not to mention that he has since obtained a law license and continues to pursue his agenda with litigants who satisfy the standing requirement that proved fatal in his case. Elk Grove Unified School Dist. v. Newdow 542 U.S. 1 (2004). Given that the Supreme Court dismissed for want of jurisdiction, Newdow - unlike Hirczy -- is not precluded. Nor does he have to get Judge Scalia's permission prior to refiling. (1)
Rule 11 (and Rule 13 at the state level) allows for creative lawyering and efforts to reshape the current law, be it by public interest litigation groups or by individuals who are committed to a principle (or have an "agenda" as Judge Hughes would phrase it)(RoA 288:23).
The argument that judges should not sit when they have a conflict of interest is not even particularly creative. It's plain common sense. And common sense ("reasonable person") is the applicable standard on the issue of recusal. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988). Hirczy and Hughes disagree fundamentally on the issue. By Judge Hughes' alternative standard of reasonableness only "an idiot" would raise an issue of impropriety when a judge (Scalia) hears a lawsuit involving a friend (Cheney). (RoA 269:23). Judge Hughes nevertheless speculates that the "dinky little state judge" who declared the Texas school funding system unconstitutional probably had gone to public school himself, thus conceding that a judge's personal experiences might affect their decisions. (RoA 273-14). As a political scientist, Hirczy very much agrees. That's why judges should err on the side of recusal when they have an existing relationship with one party before them, but not with the other.
Equally sensible is the proposition that both parties to a contract should be bound by its terms. Alas, the courts of Texas do not share this view when the State does the contracting. Judge Hughes faults Hirczy for litigating and relitigating the University of Houston's alleged sovereign immunity. Judge Hughes opines that Hirczy should have given up riding "that horse in three or four directions" and should have gone to the Legislature after the Third Court of Appeals told him to do so. (RoA 260-261); See De Mino v. Univ. of Houston, 2004 Tex.App. LEXIS 9045 (Tex. App.-Austin, Oct 14, 2004, pet filed). To Judge Hughes' consternation, Hirczy persists.
He has since filed a petition for review in the Texas Supreme Court asking that court to overrule the Third Court of Appeals. This adds to the number of lawsuits Judge Hughes required Hirczy to disclose (RoA 212:10), and presumably makes Hirczy even more "litigious" by adding yet another "strike" (RoA 318 at Tab 6). At the same time, however, the fact that the Texas Supreme Court has since requested briefing on the merits would seem to indicate that the appeal, and the underlying breach-of-contract suit, is not baseless. (2) Indeed, the issue of whether "sue and be sued" language constitutes a waiver of immunity, and whether Missouri Pac. R.R. Co. v. Brownsville Navigation Dist., 453 S.W.2d 812 (Tex. 1970) should be overruled, is before the Texas Supreme Court in several currently pending cases.
The suggestion that Hirczy is a deranged advocate of worthless causes - not to mention an "extremist "(RoA 319) - is further belied by the fact that Judge Hughes is himself a critic of sovereign immunity ("The idea that some regional public school is sovereign is bizarre.")(RoA 259:18). He also shares Hirczy's assessment that writing law review articles is not the most effective way to bring about jurisprudential change. (RoA 307-8). Both Dr. Hirczy and The Honorable Lynn N. Hughes have done that. Both have found it at least moderately frustrating that their aggregations of "brilliant thought" have been ignored. (RoA 308).
The truth of the matter is that the power to effect legal change is vested in courts, at least with respect to common-law doctrines such as sovereign immunity and rules governing the administration of justice. Unlike law review articles, their orders have the force of law.
Having been afforded the opportunity to take one of the latter issues to those with the power to bring about change -- thanks to Judge Hughes -- Appellants now respectfully ask the Fifth Circuit to use it.
IV. THIS COURT SHOULD SET A CLEAR RECUSAL RULE FOR
THE BENEFIT OF BENCH AND BAR, AND TO PROMOTE
CONFIDENCE IN THE JUDICIARY
Judges Hughes' handling of the cases at bar highlights the problem of judicial conflicts of interest and provides ample evidence in support to the modest proposal that judges should not be sitting when they have a stake in the matter.
Judge Hughes had a conflict and did not disclose it until Hirczy asked him whether he would recuse himself if he were to find himself in the same position as the Defendant state judges (RoA 267:24). Judge Hughes responded: "I don't know. ... So that you know, I have been compensated by the University of Houston on several occasions for CLE performances." (RoA 267:24). He then proceeded to suggest that Hirczy suffered from "paranoia." (RoA 269:19).
Judge Hughes undertook to practice law on behalf of the Defendants by performing oral advocacy for them and by imputing a motion to dismiss on them. He left the young new attorney from the AG's office with little more to do than to accept a foregone conclusion. A judge should not act as an advocate for any party. Delaporte v. Preston Square, Inc., 680 S.W.2d 561, 563 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). Nor should a judge be any party's adversary. Ex Parte Finn, 614 S.W.2d 293, 296 (Tex.Civ.App.-Dallas 1981, no writ).
In deciding the unwritten motion to dismiss, Judge Hughes took testimony and considered evidence in contravention of applicable rules. See Lovelace v. Software Spectrum, 78 F.3d 1015, 1017-18 (5th Cir. 1996)(review limited to facts stated in complaint and matters of which court may take judicial notice). He also relied on documentary evidence that he had collected and that was not offered into evidence at the February 2, 2005 hearing. Indeed, Hirczy was unaware of it and only found it later on the Court's electronic docket. (RoA 403, 521).
Judge Hughes investigated Hirczy's background (RoA 94, 227:10, 275:20), summoned him to his chambers to interrogate him about his unhappy love life (RoA 228:13), along with his litigation record in state court, and repeatedly contradicted Hirczy's sworn testimony as though he himself were an adverse witness or an opposing counsel. (RoA 242:15, 250:23, 258:17, 278:18).
By allowing himself to become enmeshed in the case, Judge Hughes became himself vibrant and colorful proof of the need for recusal. His inquisitorial demeanor, reminiscent of European judges who act in the role of both prosecutor and judge, culminated in orders restricting Hirczy's right to conduct public interest litigation in federal court, without any evidence of wrongdoing on Hirczy's part.
Although Judge Hughes repeatedly asserted at the hearing that Hirczy did not have standing (RoA 271:4, 274:5, 277:23, 281:22), he nevertheless dismissed on the alternative ground of failure to state a claim, so that Hirczy could not do what Newdow is doing after having suffered defeat in the Supreme Court: Come back and seek a decision on the merits. (RoA 303). Jurisdictional dismissal pursuant to Rule 12(b)(1) is no determination of the merits, and thus does not entail res judicata effect. Dismissal under Rule 12(b)(6), by contrast, is preclusive. Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
In his zeal to protect the Defendants from requests for information (whether under the open records law or via discovery) and from further litigation, Judge Hughes dismissed Faculty Rights v. Hanks with prejudice and signed not one, but two preclusion orders barring Hirczy from seeking relief from another judge (RoA 203 at Tab 2; 318 at Tab 6). He entered the preclusion both in Hirczy v. Hamilton and Faculty Rights v. Hanks, thus making it necessary for Hirczy to file two more appeals to clear his name and show that his efforts to improve the administration of justice, and to reshape the law of sovereign immunity, are anything but "extreme, erratic, and bizarre." (RoA 319:¶D).
Judge Hughes' injunction orders, and the accompanying ad-hominem "findings" have an effect comparable to that of retaliation against whistle-blowing: They send a clear message that making an oral or written motion for recusal predicated on judicial conflicts of interests entails the risk of severe sanctions in the case of pro se litigants, and amounts to career suicide for members of the Bar. If this Court were to affirm them, it would discourage disclosure of judicial conflicts of interest by those aware of them and would foment silence. It would confirm what many already fear: that they will be - to borrow a colorful phrase from Judge Hughes -- "squashed like a bug" should they dare to speak up about injudicious conduct on and off the bench. (RoA 269:13).
It is ironic that Judge Hughes efforts on behalf of the Defendants, who were represented by an Assistant Attorney General, collide head-on with Attorney General Greg Abbot's initiative to assure open government. In a August 29, 2003 press release announcing the first criminal conviction of a public servant for violating the Open Records Act, Abbott states: "Openness is indispensable to promoting a responsive and citizen-centered government.... That's why this issue is so important to me, and why I will continue to be a champion of open government in Texas." www.oag.state.tx.us. Also see RoA 439, 441.
The Open Records Rulings that forced the University to hand over the bank records of payments to judges to the Faculty Rights Plaintiffs reflects this commitment. Judge Hughes, by contrast, did what he could to assure that nothing be done about the University's dubious practices. He used his stature and power as a federal judge to vilify the Plaintiff by written order, and made him a persona-non-grata, not just in federal court, but in state court as well.
In order to promote the public's confidence in the judicial system, this Court should establish a bright-line rule leaving judges with no discretion but to remove themselves from cases with parties from whom they have received money, regardless of whether the payment was in consideration of teaching services, speaking engagements, or for any other reason.
This Rule should apply irrespective of whether the payment was made by the institution or one of its components directly, or at its behest through a third party such as a foundation or other private-sector entity.
In order to avoid recriminations and to mitigate the risk of retribution inherent in contested motions to recuse, and the chilling effect of this risk, litigants should be permitted to raise complaints of noncompliance with the new Recusal Rule for the first time on appeal. To the extent there is contrary case law, it should be overruled. See Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003).
For these reasons the Court should vacate the orders signed by Judge Hughes and remand for further proceedings not inconsistent with the Court's opinion and judgment, and with instructions that this case be transferred back to Judge Ellison for further proceedings.
Respectfully submitted,
_________________________________
WOLFGANG HIRCZY DE MIÑO
Texas Nonattorney Bar Card No. 32143
2038 ½ Lexington
Houston, Texas 77098
Tel.: (713) 806-8517
Fax: (713) 527-0391
Counsel for Appellants, in propria causa
I certify that on July 25, 2005 I served an accurate paper copy of the foregoing Appellants' Brief, and one electronic copy saved unto a 3 ½ inch diskette, on opposing counsel at the address shown below by first class mail.
Ruth Ruggero
Assistant Attorney General
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, TX 78711-2548
Attorney for Appellees
George C. Hanks
Dona G. Hamilton
____________________________________
Wolfgang Hirczy de Miño
Pursuant to 5th Cir. R. 32.2.7(c) I certify that this brief complies with the type-volume limitations of 5th Cir. R. 32.2(b).
Inclusive of the exempted portions in 5th Cir. R. 32.27(b)(3), the brief contains 9,106 words.
The brief was prepared in proportionally spaced typeface using WordPerfect 9; Times New Roman 14 point.
An electronic copy of the brief, converted to pdf format and saved onto a 3.5 inch diskette, is being submitted upon filing of the paper copies of this brief.
I understand that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits set forth in 5th Cir. R. 32.2.7, may result in the Court striking the brief and imposing sanctions against the person signing the brief.
____________________________________
Wolfgang Hirczy de Miño
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 05-20213
WOLFGANG HIRCZY, Ph. D., Plaintiff-Appellant,
V.
DONA G. HAMILTON, Defendant-Appellee.
______________________
No. 05-20348
FACULTY RIGHTS COALITION; WOLFGANG P. H. DE MINO,
Plaintiffs-Appellants,
V.
GEORGE C. HANKS; JANE NENNINGER BLAND;
UNNAMED ADJUNCT PROFESSORS OF LAW,
Defendants-Appellees.
_______________________
On Appeal from the U.S District Court for the Southern District of Texas
USDC Nos. H-05-CV-00184 and H-04-CV-04494
_______________________
APPELLANTS' RECORD EXCERPTS
_______________________
Wolfgang Hirczy de Miño
Texas Bar Card No. 32143
2038 ½ Lexington
Houston, Texas 77098
Tel.: (713) 806-8517
Fax: (713) 527-0391
Counsel for Appellants
Entry No. Vol. No. Page No.
and List of PI Exhibits 4 1 033
Permanent Injunction
in the alternative, Motion for Entry
of Appealable Final Judgment
and Motion for Reconsideration
Amended Joint Notice of Appeal 26 4 542 12
I certify that on July 25, 2005 I served an accurate copy of the foregoing Appellants' Record Excerpts on opposing counsel at the address shown below by U.S. mail.
Ruth Ruggero
Assistant Attorney General
Office of the Attorney General of Texas
P.O. Box 12548, Capitol Station
Austin, TX 78711-2548
Attorney for Appellees
Dona G. Hamilton
George C. Hanks, Jr.
____________________________________
Wolfgang Hirczy de Miño
1. Newdow asked Justice Scalia to recuse himself because Scalia had commented on the
merits of Newdow's case in a venue other than a courtroom.
2. The status of Cause No.05-0243 can be ascertained by visiting the court's website.
www.courts.state.tx.us.