OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




         CHURCH OF SCIENTOLOGY OF CALIFORNIA, a corporation, Plaintiff,
                                       v.
                           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.
  Motion granted.

 [1] JUDGES
 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).

 [2] JUDGES
 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
 plaintiff.
  Morgan, Wentzel & McNicholas by Darryl Dmytriw, Los Angeles, Cal., for
 defendant.
   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
 Recusal.

      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
     questioned.

      FN3. C. Disqualification
     (1) A judge shall disqualify himself in a proceeding in which his . . .
     impartiality might reasonably be questioned, . . . .

      FN4. STATE OF CALIFORNIA

  ss
     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.
     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
     the identification.
     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
  Muriel Yassky
     Subscribed and sworn to before me, this 14th day of May, 1980.

  /s/ Ben Mustard
  Notary Public
     [seal]

      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
                                       ss
                              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-
     entitled action.
     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
     HAUK.
     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
  NOTARY PUBLIC
     [seal]

      FN6.  UNITED STATES DISTRICT COURT
     CENTRAL DISTRICT OF CALIFORNIA

 CHURCH OF SCIENTOLOGY OF    )
 CALIFORNIA, a corporation,  )  NO. CV 78 2053 F (PX)
                 Plaintiff,  )
 vs.                         )  CERTIFICATE OF GOOD FAITH
 PAULETTE COOPER,            )
                 Defendant.  )
                             )
 --------------------------  )

     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.
     Dated:

  LAW OFFICES OF MARK VINCENT KAPLAN
  By: /s/ Mark Vincent Kaplan
  MARK VINCENT KAPLAN
                            FINDINGS AND CONCLUSIONS
  [1] 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
 thereof.
  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
     District Court
     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
     hereinafter indicated.
     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
     Scientology.
     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.
     Sincerely,
     LAW OFFICES OF KAPLAN
     AND RANDOLPH
     MARK V. KAPLAN
     MVK/ia

      FN8.

                            UNITED STATES DISTRICT COURT
                           CENTRAL DISTRICT OF CALIFORNIA
                              UNITED STATES COURTHOUSE
                            LOS ANGELES, CALIFORNIA 90012
     CHAMBERS OF
     A. ANDREW HAUK
     UNITED STATES DISTRICT JUDGE

  February 11, 1980
     Mark V. Kaplan, Esq.
     Law Offices of Kaplan and Randolph
     11620 Wilshire Boulevard
     Sixth Floor
     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
     contact me.

  Sincerely,
  /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
 private hallway.
  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]

      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
 coffee."
  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.
  [2] 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.
                                      ORDER
  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
 I; and
  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
 proceeding.

End of file...