CHURCH OF SCIENTOLOGY OF CALIFORNIA, a corporation, Plaintiff,
Paulette COOPER, Defendant.
No. CV 78-2053-AAH(PX).
United States District Court, D. C. California.
June 18, 1980.
On a motion for recusal, the District Court, Hauk, J., held that recusal was
appropriate where the district judge's impartiality might be questionable, even
though the plaintiffs' motion for recusal was erroneous in its allegations.
Factual allegations contained in affidavit in support of motion for recusal
must be taken as true and court has no power or authority to contest in any way
whatsoever the necessary acceptance of truthfulness of facts alleged, even
though court may be aware of facts which would indicate clearly the falsity of
any such allegations. 28 U.S.C.A. ss 144, 455(a).
Recusal was appropriate where trial judge's impartiality might be questionable,
even though plaintiffs' motion for recusal was erroneous in its allegations.
28 U.S.C.A. ss 144, 455(a).
*455 Kaplan & Randolph by Mark Vincent Kaplan, Los Angeles, Cal., for
Morgan, Wentzel & McNicholas by Darryl Dmytriw, Los Angeles, Cal., for
DECISION AND ORDER GRANTING PLAINTIFF'S AFFIDAVIT FOR DISQUALIFICATION AND
REASSIGNMENT OF CASE AND NOTICE TO COUNSEL
HAUK, District Judge.
This matter has now come on for hearing in the above-entitled Court on Monday,
June 16, 1980, at 1:00 p. m. upon plaintiff's Motion for Recusal, pursuant to
28 U.S.C. *456 s 144 [FN1]; 28 U.S.C. s 455(a) [FN2] and Canon 3 C
of the Code of Judicial Conduct [FN3]; the Affidavits of Muriel Yassky,[FN4]
and Rebecca Chambers,[FN5] and the Certificate of Good *457 Faith of Mark
Vincent Kaplan, Esq., [FN6] filed May 16, 1980, together with points and
authorities; and arguments of counsel; and the Court having considered all the
aforesaid *458 now makes its Order and Decision granting said Motion for
FN1. s 144. Bias or prejudice of judge
Whenever a party to any proceeding in a district court makes and files a
timely and sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him or in favor of
any adverse party, such judge shall proceed no further therein, but another
judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that
bias or prejudice exists, and shall be filed not less than ten days before
the beginning of the term at which the proceeding is to be heard, or good
cause shall be shown for failure to file it within such time. A party may
file only one such affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is made in good faith.
FN2. s 455. Disqualification of justice, judge, or magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
FN3. C. Disqualification
(1) A judge shall disqualify himself in a proceeding in which his . . .
impartiality might reasonably be questioned, . . . .
FN4. STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
I, Muriel Yassky, do hereby depose and say:
On July 19, 1979, I was present on the premises of the United States
District Court, Central District of California, located in Los Angeles.
I was working in a voluntary capacity for the Church of Scientology. My
function as a volunteer was to perform various duties necessary to the
smooth running of the Church related litigation which was ongoing at the
time. I was serving in a logistic liaison capacity.
At about 10:15 a. m. I was entering the elevator at the Spring Street side
of the court house building. I was accosted by a man who yelled "Who are
you?" and then he yelled, "Do you work here?"
He then grabbed me by the arm and forcefully pulled me out of the elevator.
I asked him to identify himself and he did so. He identified himself as
Judge Hauk ordered me over to the Guard's table and escorted me there.
I did not have any identification with me, so Judge Hauk ordered the Guard
to accompany me to the witness room where my purse was located to obtain
During the whole period of time that I observed Judge Hauk's behavior, he
was very irate. He angrily recounted something about posters and stickers
being put up. Apparently the posters had something about Marshals
assassinating government witnesses. Judge Hauk referred to this and said
he was sick of it. He asked me while at the Guard Table if I was with
Scientology. I answered affirmatively. He asked me how long I'd been with
Scientology. I answered fifteen years. He asked if I were a member of
"this Guardian Office." I answered negatively.
While his anger was directed at me personally, he repeatedly questioned me
on my connection to Scientology and intermittently made reference to the
posters. Judge Hauk informed the Guard that if, while taking me to check
my identification, I gave the guard any trouble to, "slap her in irons and
bring her to me."
As soon as the Judge left, the Marshal walked me back to check my
identification and we amicably settled the situation.
/s/ Muriel Yassky
Subscribed and sworn to before me, this 14th day of May, 1980.
/s/ Ben Mustard
FN5. MARK VINCENT KAPLAN
Attorney for Plaintiff
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
NO. CV 78-2053
AFFIDAVIT OF DISQUALIFICATION OF
HONORABLE A. ANDREW HAUK
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
I. Rebecca Chambers, being duly sworn, deposes and says:
1. She is the duly authorized officer of the Plaintiff in the above-
2. The Plaintiff herein believes and avers that the judge before whom this
action has been transferred and is now pending, Honorable A. ANDREW HAUK,
has a personal bias and prejudice against the said Plaintiff, CHURCH OF
SCIENTOLOGY OF CALIFORNIA.
3. The facts and reasons for the belief that such personal bias and
prejudice does in fact exist are as hereinafter set forth in the Affidavit
on file of MS. MURIEL YASSKY and the foregoing Memorandum of Points and
Authorities, and I hereby affirm that all the information contained therein
is true and correct to the best of my knowledge and forms the basis of my
belief in the existence and extent of the bias of the Honorable A. ANDREW
Dated: May 15, 1980
/s/ Rebecca Chambers
REBECCA CHAMBERS, CHURCH OF
SCIENTOLOGY OF CALIFORNIA
Subscribed and sworn to before me this 15th day of May, 1980.
/s/ Ben Mustard
FN6. UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CHURCH OF SCIENTOLOGY OF )
CALIFORNIA, a corporation, ) NO. CV 78 2053 F (PX)
vs. ) CERTIFICATE OF GOOD FAITH
PAULETTE COOPER, )
MARK VINCENT KAPLAN certifies:
1. That I am counsel of record for the Defendant CHURCH OF SCIENTOLOGY OF
CALIFORNIA in this cause;
2. That as such I am familiar with the Affidavit of MURIEL YASSKY, made and
filed to attain the recusal of the Honorable ANDREW A. HAUK under 28
U.S.C. s 144.
3. That I am familiar with the contents of said Affidavit and the reasons
it is made and filed in this cause and states that said Affidavit is and
was made in good faith and I have sought to examine all the participants
with regard to these allegations set forth in Affidavit of Muriel Yassky
and that I have found that examination and investigation fully support the
veracity of said allegations and find them to be true to the best of my
information and belief based on these interviews and examinations.
4. That this Certificate is made in support of the Affidavit for Recusal
and is made to fulfill the express requirements of 28 U.S.C. s 144.
LAW OFFICES OF MARK VINCENT KAPLAN
By: /s/ Mark Vincent Kaplan
MARK VINCENT KAPLAN
FINDINGS AND CONCLUSIONS
 Since they are based upon 28 U.S.C. ss 144 and 455 and Code of
Judicial Conduct, Canon 3 C, we are required to examine plaintiff's Affidavits
and Certificate to determine if they meet the tests required by the United
States Code and said Canon, namely, those of (1) timeliness and (2) legal
sufficiency. If they do, then the factual allegations contained in the
Affidavit must be taken as true and the Court has no power or authority to
contest in any way whatsoever the necessary acceptance of truthfulness of the
facts alleged, even though the Court may be aware of facts which would indicate
clearly the falsity of any such allegations. Berger v. United States, 255
U.S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Botts v. United States, 413
F.2d 41 (9th Cir. 1969); United States v. Tropiano, 418 F.2d 1069 (2d Cir.
1969); Lyons v. United States, 325 F.2d 370 (9th Cir. 1963), cert. den.
377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964). See also: United
States v. Zarowitz, 326 F.Supp. 90, 91 (C.D.Cal.1971), United States v.
Zerilli, 328 F.Supp. 706, 707 (C.D.Cal.1971), Spires et al. v. Hearst, 420
F.Supp. 304, 306-307 (C.D.Cal.1976), State of California et al. v. Kleppe,
431 F.Supp. 1344 (C.D.Cal.1977), and Hayes v. National Football League et
al., 463 F.Supp. 1174 (C.D.Cal.1979). Cf.: Mavis v. Commercial Carriers,
Inc., 408 F.Supp. 55, 58 (C.D.Cal.1975).
While perhaps not essential, it does seem to us appropriate, that we should
now affirm that the Judge herein does not have, nor did he ever have, any
personal bias or prejudice in the slightest degree for or against any of the
parties to the case, cause and proceeding herein, and more particularly, does
not now have and never did have any such personal bias or prejudice in the
slightest degree against the Church of Scientology, plaintiff herein. Nor has
the Judge ever knowingly or unknowingly given any cause for allegations of any
such alleged personal bias or prejudice, or belief therein or suspicion
At the outset it might be argued with some possible justification that the
plaintiff's Affidavits and Certificate are not "timely" within the meaning of
28 U.S.C. s 144, since they were not filed until May 16, 1980, whereas the
action herein was transferred to this Court from the Hon. Warren J. Ferguson on
December 27, 1979. However, it should be noted that this Court's Clerk received
from plaintiff's counsel, Mark Vincent Kaplan, Esq., a letter addressed to the
Court dated February 4, 1980,[FN7] requesting the Court to recuse itself
*459 from the matter herein. The Clerk's response to this request was made
in a letter from Law Clerk Brian A. Sun to Mr. Kaplan, dated February 11, 1980,
[FN8] indicating to *460 Mr. Kaplan that this Court would not act upon his
letter because his ex-parte communication with the Court was inconsistent with
and in violation of Local Rule 1.8 of the Rules of the United States District
Court, Central District of California.
FN7. February 4, 1980
The Honorable A. Andrew Hauk
Judge of the United States
312 N. Spring Street
Los Angeles, California 90012
Re: Church of Scientology of California v.
Re: Paulette Cooper
Re: Case No. CV 78-2053-F (Px)
Dear Judge Hauk:
Please be advised that I am the attorney of record for the Church of
Scientology of California in the above-referenced matter. As the file in
this matter will clearly reflect, I was substituted as counsel of record on
or about the date of October 15, 1979. Within the last two weeks, it has
come to the attention of my client and myself, that a bias exists on behalf
of the Court in this matter. As will hereinafter be more fully set forth,
the result of this bias compels me to request that this Honorable Court
disqualify itself on the basis of the alleged bias regarding the Church of
Scientology of California.
I am writing this letter on an informal basis and should the Court so
desire, I will proceed, if necessary, with a formal affidavit and
certificate of good faith pursuant to 28 U.S.C. s 144 and s 455, as
Finally, I wish to state that although my attention was first addressed to
the factual criteria which give rise to this letter within the last few
weeks, I have awaited sufficient documentation from my client for the
purposes of documenting the events which are alleged to have occurred.
As we are all aware, the transfer of this case before this Honorable Court
from the Court of Judge Ferguson was a result of the elevation of Judge
Ferguson to the Ninth Circuit Court of Appeals. I pursue this matter with
the Court at this time inasmuch as there have been no substantive
proceedings regarding the subject case addressed to this Court to date.
The factual incidents which have given rise to the opinion of my client, in
which counsel joins, are as follows:
1. On or about July 19, 1979, one Muriel Yassky, a member of the Church of
Scientology, was present at the United States District Court building for
the Central District of California. Ms. Yassky was standing outside the
elevators on the fourth floor when, it is alleged, that Your Honor ordered
Ms. Yassky out of the elevator and proceeded to direct Ms. Yassky to the
guard's table for the purpose of identifying herself and her purposes for
being in the Courthouse building. It is further alleged that Your Honor
requested Ms. Yassky to identify whether she was with Scientology and/or
with "this guardian office", referring to the office of the Church of
2. Evidently, at the time of the incident, posters had been placed upon
Courthouse property indicating, in substance, that marshals were
responsible for the killing of government witnesses. Ms. Yassky indicated
that from the manner in which Your Honor focused upon her presence and her
affiliation with Scientology, that Your Honor seemed to equate the
responsibility for the posting of these anti-government slogans with
members of the Church of Scientology. From the data available to the
undersigned, there is no reason why the presence of anti-government posters
in the Courthouse should any way have been automatically equated with the
presence of Scientologists in the Courthouse. I am prepared, if necessary,
to supply affidavits from the principals involved in this matter to
substantiate the relevant factual allegations.
The undersigned joins in the good faith belief of my client that the facts
of the subject incident indicate that there exists on behalf of the Court,
a bias towards members of Scientology as well as Scientology as an
organization. I would be prepared, if necessary, to file a formal
affidavit and certificate of good faith placing before the Court our
request for disqualification in the above-referenced matter pursuant to
28 U.S.C. s 455, 28 U.S.C. s 144, Canon 3 C of the Code of Judicial
Conduct as amended to date.
Finally, I respectfully request that this Court reassign the above-
referenced matter to a different Court in accordance with local Rule 2 as
well as other applicable rules and orders of this Court.
The exercise of your sound discretion will be greatly appreciated and I
remain ready to proceed should the Court so desire.
LAW OFFICES OF KAPLAN
MARK V. KAPLAN
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES COURTHOUSE
LOS ANGELES, CALIFORNIA 90012
A. ANDREW HAUK
UNITED STATES DISTRICT JUDGE
February 11, 1980
Mark V. Kaplan, Esq.
Law Offices of Kaplan and Randolph
11620 Wilshire Boulevard
Los Angeles, California 90025
Dear Mr. Kaplan:
In response to your letter of February 4, 1980, you should be advised that
Local Rule 1.8 of the United States District Court, Central District of
California, entitled "Correspondence and Communications with the Judge,"
clearly states that attorneys "should refrain from writing letters to the
Judge" of an ex parte nature or "otherwise communicating with the Judge
unless opposing counsel is present." Judge Hauk follows a policy which
adheres to the aforesaid rule and would expect your request to be submitted
the proper written form and notice given to all parties involved. At that
time, your recusal request will be addressed by the Court.
If you have any questions regarding this matter, please do not hesitate to
/s/ Brian A. Sun
Brian A. Sun
Law Clerk to
Judge A. Andrew Hauk
While the Court, therefore, has some doubt about the validity of measuring
"timeliness" by the five week interval which elapsed between the date of
transfer of this case from Judge Ferguson and Mr. Kaplan's February 4, 1980,
letter, rather than by the five month interval between Judge Ferguson's
transfer and the filing of the within Motion, the Court nevertheless finds that
the herein Affidavits and Certificate were timely, and Mr. Kaplan's letter-
writing efforts to bring this Motion to the attention of the Court, while not
made in accordance with the Local Rules and accepted practice, were apparently
made in good faith and sufficiently set forth legal "timeliness."
Now, the next question is whether or not the Affidavit and Certificate are
"legally sufficient" within the meaning of the same statutory sections and
Canon. Certainly they appear to be and the Court so finds. They are in proper
form; they assert alleged facts and not just conclusions of law; and so, in
line with the cases the Court has previously cited, they are legally
sufficient. The only question left is whether facts are alleged which require
the Judge to disqualify or recuse himself under 28 U.S.C. s 455(a) and Code
of Judicial Conduct, Canon 3 C.
As stated earlier, the Court recognizes that the factual allegations contained
in the Affidavit must be taken as true and the Court has no power or authority
to contest in any way whatsoever the necessary acceptance of truthfulness of
the facts alleged, even though the Court may be aware of facts which would
indicate clearly the falsity of any such allegations. In that regard, and for
the record, the Court strongly takes issue with the alleged facts asserted in
the Affidavits of Muriel Yassky and Rebecca Chambers, and the Certificate of
Good Faith of Mark Vincent Kaplan, Esq.
The so-called "elevator incident" referred to in plaintiff's moving papers did
not occur exactly as alleged. On July 19, 1979, upon Judge Hauk's driving into
the Courthouse garage, Federal Protective Service Contract Guard Officer
Jennifer Jackman, guarding the entrance to the Main Street Garage, told Judge
Hauk that a number of stickers had been found pasted to the front door of the
building, the sentry box on the Spring Street Parking level, and elsewhere,
labelling the United States Marshals as assassins. She reported to Judge Hauk
that she had also heard about an episode of a lady found wandering in a Judge's
Acting in his capacity as Vice Chairman of the Security Committee, and Acting
Chairman in Judge Firth's absence, and carrying out the duties delegated to him
by the mandatory and unanimous Order of all *461 of the Judges of this
Federal District Court, Judge Hauk proceeded to inquire further into these
reports. He checked with the United States Marshal's Office who reported that
they had heard of the same incidents and told him that copies of the label were
in the Federal Protective Service Office on the Main Street level. Judge Hauk
proceeded there and saw one of the labels, green background with black
printing, and the legend: [FN9]
"U. S. Marshals Are Assassinating Governments Witness."
Judge Hauk then went out into the Main Street lobby area to discuss with the
Federal Protective Service Contract Guard there, Walter H. Bonner, whether or
not he (Bonner) had seen any unusual or improper activities with respect to the
pasting of the labels, the use, or misuse, of the Main Street garage and Spring
Street parking area by any unauthorized persons, or any other activities
indicating any breach of security in the Courtrooms or Courthouse. At that
time, Judge Hauk noticed, standing between himself and the officer, near the
officer's desk, and in the space immediately adjacent to the elevators, a young
lady, apparently endeavoring to eavesdrop upon Judge Hauk's conversation with
the Officer. When Judge Hauk looked at her, she turned her eyes up and
pretended not to be listening or interested in what he was saying.
Judge Hauk went over and asked her what she was doing in the building and she
replied "Oh, nothing in particular." He asked her again what she was doing,
and she again said "Nothing in particular." The Judge asked her name, and she
refused to give it to him, and said she was going upstairs "for a cup of
Whereupon Judge Hauk asked her to come over to the officer's desk, and
escorted her to said desk to answer a few questions. She came over and Judge
Hauk asked her name, address and telephone number, requesting the Officer to
write them down as she gave them Muriel Yassky, 5959 Franklin Avenue, Apt. 407,
Hollywood, California 90028, phone no. 462-0135. Judge Hauk further asked her
for her I.D., which she said was "upstairs in the waiting room." At that
point, the Chief Deputy Marshal, James L. Propotnick, appeared on the scene and
Judge Hauk asked him to go with the young lady to the waiting room and check
out the I.D. she mentioned. At no time did Judge Hauk ever state that Ms.
Yassky should be "slapped in irons" if she resisted the Marshals.
 Despite the problems the Court has with the factual allegations
contained in plaintiff's motion, and despite the Court's firm recollection and
conviction that the allegations are false, it feels compelled and bound to
follow the more prudent course of granting the plaintiff's Motion for
Recusal. Canon 3 C(1) and 28 U.S.C. s 455(a) mandate that a Judge shall
disqualify himself whenever "his impartiality might reasonably be questioned."
The Court herein finds that plaintiff's Motion for Recusal, while indeed false
and erroneous in its allegations, is based upon what Ms. Yassky and plaintiff's
counsel apparently feel is reasonable. Moreover, it has been said in some cases
and by some authorities that recusal should be granted, pursuant to the
aforementioned Canon 3 C(1) of the Code of Judicial Conduct, and 28
U.S.C. s 455(a), in such a situation, even when the Court is in doubt as to
the "reasonableness" of an affiant's belief. This conclusion is reached on the
basis of the Court's recognition of the sensitive nature of the case itself and
the principles underlying the pertinent sections of the United States Code and
the Code of Judicial Conduct, as well as other relevant *462 factors
governing Judicial disqualifications, having in mind that when in doubt the
Court should resolve the issue in favor of the party seeking recusal. E. g.
Mims v. Shapp, 541 F.2d 415, 417 (3d Cir. 1976); Hodgson v. Liquor
Salesmen's Union, 444 F.2d 1344, 1348 (2d Cir. 1971). Of course, this does not
constitute any finding or conclusion that the plaintiff's allegations are
factually true or have any real substantive merit, nor does it have any bearing
whatsoever upon the merits of the basic cause of action.
NOW, THEREFORE, IT IS HEREBY ORDERED:
1. That the undersigned Judge does hereby disqualify and recuse himself from
any and all further matters in the within case, cause and proceeding, pursuant
to 28 U.S.C. s 455(a) and Canon 3 C(1) of the Code of Judicial Conduct, as
amended to date, and pursuant, of course, also, to the Affidavits and
Certificate filed herein by and on behalf of the plaintiff;
2. That the within case, cause and proceeding be and the same hereby is
returned to the Clerk for random transfer and reassignment by the Clerk to
another Judge of this District Court, Central District of California, in
accordance with the applicable Rules and Orders of this Court, particularly
General Order No. 104, filed January 18, 1971, Part Two, Section One, Paragraph
3. That the Clerk serve copies of this Decision and Order forthwith by United
States mail on counsel for all parties appearing in this case, cause and