Motion for Recusal of Judge Edward Chen - American

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Case3:07-cv-04005-EMC Document211
Filed08/06/10 Page1 of 67
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CHRISTINE CHANG and
ERIC SUN, PRO SE and DISABLED
341 Tideway Drive #214
Alameda, CA 94501
Tel: (510) 523-4730
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CHRISTINE CHANG and )
ERIC SUN, PRO SE and )
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12 DISABLED
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Plaintiffs,
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) Case No. C07-4005 EMC
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v.
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) MOTION FOR RECUSAL
) OF JUDGE CllEN
15 ROCKRIDGEMANOR
) FOR BIAS AND
CONDOMINIUM et al.
) PREJUDICE AND
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) EXTRAPREJUDICIAL
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Defendants.
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) Date:
) Time:
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) Courtroom: C
19 _ _ _~_ _ _ _---') Judge: Magistrate Judge Edward M. Chen
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MOTION FOR RECUSAL OF JUOOE CHEN FOR BIAS AND PREJUDICE AND EXTRAPREJUDICIAL
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Plaintiffs Christine Chang and Eric Sun filed this complaint at the
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U.S. District Court sterned from two state court actions "Chang v.
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Rockridge", which owed fiduciary duties to Plaintiffs, and "assault and
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battery", against University of California Berkeley Police Department
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(U.C. Berkeley) assailant Constance Celaya. This complaint was filed on
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August 3, 2007 within three years statute of limitation for cause of
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actions of "Constitional Rights Violation" and "Fraud and
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Misrepresentation". The defendants in both state actions perjured in their
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depositions.
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Magistrate Judge Edward M. Chen took the case without disc10se
11 his financial and non-financial ties with the Defendant U.C. Berkeley, he
12 also did not recuse himself. The issue of extraprejudicial surfaced after
13 Plaintiffs appealed at the 9th Circuit Appeals Court, and the issue was not
14 raised in the appeal. The subsequent request for a "Certiorari" at the U.S.
15 Supreme Court was denied for rehearing or an argument in front of the
16 panel judges.
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Recently Plaintiffs filed: (1) motion 60(b) & (d) to set aside
18 judgment for fraud upon the court; and, (2) reply to opposition of
19 defendants in support to set aside judgment for fraud upon the court.
20 Judge Chen has had enormous latitude injudging Plaintiffs motion
21 to set aside judgment after his failures of disc10sure and recusal.
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This current motion requests Judge Chen's recusal, a hearing to
23 disc10se his financial and non-financial ties with Defendant U.C. Berkeley,
24 and appointment of a judge who would uphold laws and U.S. Constitution
25 in judging Plaintiffs' case.
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MOTION FOR RECUSAL OF JUDGE CHEN FOR BIAS AND PREJUDICE AND EXTRAPREJUDICIAL
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FACTUALBACKGROUND
In the initial case management conference on November 14, 2007,
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Judge Chen ordered, "No formal discovery and no initial disc10sures until
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further order by this Court." Without notice Judge Chen granted all
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defendants dismissai or more definite statement and summary judgment on
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February 13,2008. Judge Chen knowingly and purposefully deprived
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Plaintiffs' Constitutional Rights of receiving disclosures and conducting
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discovery pursuant to Federal Rule of Civil Procedure 26(a)(1). A jury trial
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has been demanded starting with Plaintiffs original complaint, but Judge
10 Chen rendered his decision that Plaintiffs complaint have been tried or
11 heard and decision by Court. Judge Chen knowingly and purposefully
12 deprived Plaintiffs' Constitutional Rights ofhaving a jury trial pursuant to
13 FRCV 38 of the Seventh Amendment preserved to Plaintiffs. Plaintiffs
14 received Judge Chen's decision by mail. See Exhibits:
15 EXHIBIT A-No formal discovery and no initial disclosures until order.
16 EXHIBIT B-Order granting dismissai and summary judgment to all
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defendants.
18 EXHlBIT C-Plaintiffs' original complaint demanded a jury trial.
19 EXHIBIT D-Decision by Court. The issue have been tried or heard and a
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decision has been rendered.
21 Plaintiffs filed motions, oppositions, and appealed, but received no
22 response from Judge Chen except for denial. There were only initial case
23 management conference and one hearing on January 16,2008. No ADR
24 or meeting scheduled because they were cancelled by Judge Chen who
25 granted all defendants motions to dismiss and summary judgment.
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MOTION FOR RECUSAL OF JUDGE CHEN FOR BIAS AND PREJUDICE AND EXTRAPREJUDICIAL
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DISCUSSION
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Title 28 U.S.C.S. Section 144 provides in pertinent part that
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whenever a party to any proceeding in a district court makes and files a
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time ly and sufficient affidavit that the judge before whom the matter is
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pending has a personal bias or prejudice either against him or in favor of any
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adverse party, suchjudge shall proceed no further therein, but another judge
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shall be assigned to hear such proceeding. Plaintiffs filed recusal request
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back on March 24, 2008 attached affidavit in support of recusal motion.
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Judge Chen's financial and non-financial ties with U.C. Berkeley defendant
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10 were unknown to Plaintiffs at the time of the filing, therefore, there was
11 no extrajudicial issues included in the recusal. Judge Chen knowingly
12 concealed his long-term associations with U.C. Berkeley but decided not to
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13 disclose or recuse, in order to exonerate the defendant school. See
14 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847865 (U.S.
15 1988); where in the judge was a board member of a university who gave
16 testimony under oath after the case was reassigned to another judge.
17 Plaintiffs Chang and Sun respectfully request Judge Chen to disclose his
18 financial and non-financial ties with U.C. Berkeley defendant school, and
19 reassign our case to another judge pursuant to Title 28 Section 144 and cited
20 case.
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Title 28 U.S.C.S. Section 455 is to promote public confidence in the
22 judicial system by avoiding even the appearance ofpartiality. Section 455
23 requires the judge to disquali(y himself for personal bias even in the absence
24 of a party complaint. See Trotter v. International Longshoremen, 704 F.2d
25 1141, 1144 (9th Cir. 1983), and Accord In Re City of Detroit, 828 F .2d 1167.
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MOTION FOR RECUSAL OF JUOOE CHEN FOR BIAS AND PREJUDICE AND EXTRAJUDICIAL
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Statute pertaining to disqualification of a biased or prejudiced judge
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requires that the bias or prejudice be twofold: (1) personal directed
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against the party; and, (2) extrajudicial. See United States v. Carignan,
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600 F.2d 762, (9th Cir. 1979); wherein the alleged prejudice was not
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extrajudicial therefore did not require disqualification. Comparing with
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Judge Chen who has been a faculty member of the defendant school
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teaching classes, giving speech and seminar, writing the law journal
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review, providing and supervising externalship to the law school
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students while serving as a staff attorney at the ACLU and Magistrate
10 Judge in the U.S. District Court, attending annual alumnus and fund
11 raising activities, being a consistent significant donor since 1970 to
12 present. See Exhibits:
13 EXInBIT E-A simple search at the internet site of
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www.law.berkeley.edu by Edward M. Chen, reveals
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Judge Chen's associations in the defendant school's
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law journal review, faculty profiles, fund raising
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activities, significant donor, annual reunions, on
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honor roll of donors who has consistently donated
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including 2007 and 2008 while judging on this case,
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also has been a faculty member teaching and speaking
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presumably receiving compensations from U.C. Berkeley
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defendant school.
23 These are evidence of Judge Chen's extrajudicial conducts. Although
24 Judge Chen should have disqualified himselfbefore he took our case
25 in July 2007, as of now, he is still judging our case without recusal.
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MOTION FOR RECUSAL OF JUOOE CHEN FOR BIAS AND PREJUDlCE AND EXTRAJUDICIAL
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See Brody v. President & Fellows of Harvard College, 664 F.2d 10,27
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(1 st Cir. 1981). The applicant employeed at university library brought
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age discrimination suit against university. The District Court Judge
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rendered judgment for the university and applicant appealed. The Court
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of Appeals hel d that the judge's having attended or graduated from the
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defendant university, without more, was not a reasonable basis for
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questioning his impartiality and did not require his recusal. Comparing
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with Judge Chen who is deeply involved with U.C. Berkeley defendant
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school including financial and non-financial ties, but never disclose
10 nor recuse himself, and is currently judging Plaintiffs motions to set
11 aside judgment and recusal. Judge Chen's associations with U.C.
12 Berkeley is a lot more than earning his undergraduate and law school
13 degrees.
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Plaintiffs Chang and Sun bring this recusal motion because
15 Judge Chen failed to recuse himself under Title 28 U.S.C. Section 14416 Whenever a party to any proceeding in a district court makes and files a
17 timely and sufficient affidavit that the judge before whom the matter is
18 pending has a personal bias or prejudice either against him or in favor of
19 any adverse party, suchjudge shall proceed no further therein, but
20 another judge shall be assigned to hear such proceeding. See US v.
21 Hernandez, 109 F.3d 1450 (9th Cir. 1997) and US v. Manning, 56 F.3d
22 1188, 1196 (9th Cir. 1995). Title 28 U.S.C. Section 455 - He shall also
23 disqualify himself in the following circumstances: where he has a
24 personal bias or prejudice concerning a party or personal knowledge of
25 disputed evidentiary facts concerning the proceeding.
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MOTION FOR RECUSAL OF JUOOE CHEN FOR BIAS AND PREJUDICE AND EXTRAJUDICIAL
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Whether a reasonable person with knowledge of all the facts would
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conc1ude that the judge's impartiality might reasonably be questioned.
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See US v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). Judge Chen's
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associations with U.C. Berkeley defendant school since 1970s to present
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certainly would cause a reasonable person to have doubt of Judge Chen's
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impartiality. Plaintiffs Chang and Sun have tremendously prejudiced
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by Judge Chen's extrajudicial conducts whose disclosure and recusal
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should have occurred berore any case proceedings. See US v. Gordon,
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974 F.2d 1110, 1114 (9 th Cir. 1992) and US v. StudIey, 783 F.2d 934 (9th
10 Cir. 1986).
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In the Senator Judiciary Committee Hearing on the
12 Nomination of Edward M. Chen, Senator Sessions quoted Judge Chen
13 wrote in the California Law Review: These determinations require a
14 judge to draw upon something that is not found in the case, reports that
15 line the walls of our chambers. Rather, judges draw upon the breadth
16 and depth of their own life experiences upon the knowledge and
17 understanding ofpeople and ofhuman nature and inevitably one's ethnic
18 and racial background contribute to those life experiences.
19 Senator Sessions: Did that statement accurately reflect your
20 judicial philosophy? Judge Chen: And I try to give some illustrations in
21 that piece about how the collegiality amongstjudges whether its formal
22 exchange amongst the members of the Supreme Court or the Court of
23 Appeal, or the informal exchange that often happens in the District
24 Court, in the hallways, in the dining rooms that we leam from each other
25 about varlous perspective, different perspectives in life experiences.
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MOTION FOR RECUSAL OF JUOOE CHEN FOR SIAS AND PRFJUDICE AND EXTRAJUDICIAL
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Senator Sessions: WeIl, you know~ the average litigant would be nervous
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if he thought decisions are being made on what you judges talked about
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in the dining hall or in the hallways. I mean the case should be decided,
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should it not, on the evidence introduced and the law properly applied to
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that evidence. Senator Sessions: I was a little concerned that you say
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you might understand the human impact of legal rules upon which a
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judge must decide. You know the oath says that a judge should do equal
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justice to the poor and the rich. See Exhibit:
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EXHIBIT F-Transcript of Senator Judiciary Committee Hearing
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In the Senator Judiciary Committee Hearing Senator Kyl:
11 There was one case in Arizona that I was a little bit familiar with. We
12 had a provision in our constitution it was referred to the people of the
13 State of Arizona who overwhelming said that at least state business in
14 Arizona had to be conducted in English. And Judge Chen challenged
15 that on behalf of ACLU who lost. As the top ACLU lawyer he has a
16 pretty strong record of a lot of very out of the mainstream positions
17 which - many of which have even been rejected by the ninth circuit and
18 even the California Supreme Court. Senator Kyl: So one of the things
19 that he find most rewarding, contributing to the development of law by a
20 published opinion especially if it comports with my own view of justice.
21 And throughout his writings and advocacy, you do see a sense of - that
22 he has his own view of what justice is. That's not what ajudge should
23 bring to the court. We can't deny our life experiences and our own
24 attitudes, but one of the filters that the Judiciary Committee provides for
25 our coIleagues, we have to vote on these nominees is to determine
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MOTION FOR RECUSAL OF JUOOE CHEN FOR BIAS AND PREruDICE AND EXTRAJUDICIAL
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Whether a judge has been willing to leave his own peculiar, private
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views aside when judging cases. Senator Kyl: Unconvinced that he
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is necessarily been willing to do that. And it just seems to me that
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this is the kind of nominee that I have very bard time supporting
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as a fair and balanced and objective judge. Senator Sessions: As
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magistrate, during that time, in remarks before a law school he said
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he found it "most rewarding contributing to the development of the
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law via published opinion especially if it comports with my view of
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justice." Senator Sessions: I think that justice is done when judges
10 equally and fairly apply the law to the facts without consulting their
11 own backgrounds, prejudices and biases and without respect to the
12 persons or backgrounds of the parties before them. CaU the ball and
13 strike. Which I think again suggest that he believes that a judge is
14 justified in allowing his life experiences, which I think akin to
15 biases to influence his decision. And I don't think that's a healthy
16 philosophy. Senator Sessions: With regarding the English only
17 laws that Senator Kyl mentioned. He not only said that but he wrote
18 a letter to the New York Times saying that English only laws are,
19 "based on false, xenophobic assurnptions," which I assume my
20 constituency will not be pleased with that. On balance based on his
21 background and record and statements, I have conc1uded that I do
22 not have the requisite degree of confidence to provide hirn with a
23 lifetime appointment where he might decide that he could use
24 decisions to promote beliefs that he feels strongly about. See
25 EXHIBIT G-Transcript of Senator Judiciary Cornmittee Hearing
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MOTION FOR RECUSAL OF JUDGE CHEN FOR BIAS AND PREJUDICE AND EXTRAJUDICIAL
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Senator Sessions states that case should be decided on the
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evidence introduced and the law properly applied to that evidence. He
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also concerns that Judge Chen would not do equaljustice to the poor
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and the rich. See Exhibit F.
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Senator Kyl states that Judge Chen as the top ACLU lawyer who
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has a pretty strong record of a lot of very out of the mainstream
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positions, and that Judge Chen finds most rewarding is contributing to
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the development of law by a published opinion especially if it comports
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with his own view of justice. Senator Kyl commented on Judge Chen
10 who has his own view of what justice is, which is not what a judge
Il should bring to the court. Senator Kyl is unconvinced that Judge Chen is
12 willing to leave his own peculiar, private views aside whenjudging
13 cases. Senator Kyl has had hard time supporting Judge Chen as a fair
14 and balanced and objective judge. See Exhibit G.
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Senator Sessions suggests that Judge chen believes that a judge
16 is justified in allowing his life experiences, akin to biases, to influence
17 his decision. Senator Sessions thinks that is not a healthy philosophy.
18 See Exhibit G.
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Supplemental evidence in support of Judge Chen's financial
20 and non-financial ties with U.C. Berkeley defendant school in this case:
21 EXffiBIT H-U.C. Berkeley Boalt Hall, Class of 1979
22 EXffiBIT I-Judicial Externships of the District Court
23 EXffiBIT J-Berkeley Boalt Hall donor list between 1970-1979
24 EXffiBIT K-Students are advised to read pp. 1102-09 ofCounsel Chen
25 EXffiBIT L-Speech in 2003 "The Judiciary, Diversity and Justice
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MOTION FOR RECUSAL OF JUDGE CHEN FOR DIAS AND PREJUDICE AND EXTRAJUDICIAL
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EXlllBIT M-U.C. Berkeley Boalt Hall 2004 reunion and donor list
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EXIDBIT N-Dean and Professor ofLaw "Fall 2006 Letter" featuring
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presentations from Edward Chen, U.S. Magistrate for the
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Northern District of California
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EXIDBIT O-Jennifer Lynch, graduate of Boalt Hall, externed for ACLU
and the Honorable Edward M. Chen in the District Court
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EXIDBIT P-Boalt Hall reunion and donor photographs in 2007
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EXIDBIT Q-Sponsorship in the Henderson Center in 2008
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EXIDBIT R-2009 individual contributors list to the Boalt Hall
10 EXIDBIT S-U.C. Berkeley Boalt Hall 2009 Archive of Judge Chen's
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nomination to the District Court on August 26, 2009
Plaintiff Chang filed "Complaint of Judicial Misconduct"
13 against Judge Chen who failed to recuse himself, and concealed his
14 financial and non..financial ties with the U.C. Berkeley defendant school
15 in the Judicial Nominee Questionnaire. It is fraud. See Easley v.
16 University of Michigan Board of Regents, 853 F.2d 1351 (6th Cir. 1988),
17 which the Court of Appealordered evidentiary hearings to ascertain the
18 judge's associations and affiliations with the law school. See also,
19 Liljeberg v. Health Svcs. Acquisition Corp., 486 U.S. 847 (1988), which
20 vacating judgment where trial judge had ties to defendant school.
21 Plaintiffs Chang and Sun respectfully request Judge Chen to recuse and
22 disc10se his associations and affiliations with the U .C. Berkeley
23 defendant school. See Exhibit:
24 EXIDBIT T-Complaint of Judicial Misconduct Against Judge Chen
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MOTION FOR RECUSAL OF JUDGE CHEN FOR BIAS AND PREJUDICE AND EXTRAJUDIClAL
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The evidence gathered of Judge Chen' s associations with the
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U.C. Berkeley defendant school are in the mid-2000's and recent years.
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Plaintiff Chang has merely scratched the surface by typing the U.C.
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Berkeley Boalt Hall internet address ofwww.law.berkeley.edu and
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searching for Edward Chen. There are California Law Review and
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Journals Judge Chen wrote and other information which are not posted
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because Privacy Act, or, excluded to save database space.
CONCLUSION
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Based upon above cited precedents and evidence submitted
10 Plaintiffs Chang and Sun respectfully request Judge Chen to
11 recuse and disclose his associations and affiliations with the U.C.
12 Berkeley defendant school, and to set aside judgment of this case for
13 "fraud upon the court".
14 Dated: August 6, 2010
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Christine Chang and for Eric Sun
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MOTION FOR RECUSAL OF ruOOE CHEN FOR BIAS AND PREJUDICE AND EXTRAlUDICIAL
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EXHIBIT A
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Case 3:07
Filed
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-CV-040~-EMC
Document 81
11/1~07
Page 1 of 2
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UNITED STATE S DISTRICT COURT
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CHRISTINE CHANG, et al.,
Plaintiffs,
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v.
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CASE MANAGEMENT AND
PRETRIAL CONFERENCE ORDER
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Case No. C07-4005 EMC
ROCKRIDGE MANOR CONDOMINIUM,
ET AL.,
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Defendants.
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Following the Case Management Conference held on 11/14/07, and pursuant to Fed.R.Civ.P.
16, IT IS ORDERED THAT the following case management and pretriaI order is entered:
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l. A trial date has not been set. A date will be set at the next status conference.
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2. There shall be no fonnal discovery and no initial disclosures until further order by this
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Court.
3. No defaults will be taken at this juncture as all named defendants have appeared either
generally or specially.
4. Plaintiff's motion to be appointed Guardian Ad Litern will be deferred since she current is
appearing pro se and is not represented by counsel as required by law. Plaintiff shall be given leave
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to file an Application to Appoint Counsel for Guardian Ad Litem by 11/26/07. That application
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shall address why Plaintiff is not able to afford representation by counsel, all efforts made to obtain
counsel in this case, and why Plaintiff deserves appointed counsel. Plaintiff is advised that she
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EXHIBITB
Case 3:07-CV-0400WMC
Document 110
Filed
02/13~08
Page 1 of 26 ,
CIRIGINAL
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FILED
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FEB 1 3 ZOOB
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RICHARD W. WIEKING
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CLERK. U.S. DISTRICT COURT
NORTHERN DISTRICT OF CALiFORNIA
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UNITED STA TES DISTRICT COURT
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No. C-07-4005 EMC
Plaintiffs,
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ORDER GRANTING DEFENDANTS'
MOTIONS TO DISMISS OR, IN THE
ALTERNATIVE, FOR A MORE
DEFINITE STATEMENT; AND
GRANTING DEFENDANT'S MOTION
FORSUMMARYJUDGMENT
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Defendants.
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(Doeket Nos. 17, 28, 59, 63, 67, 88)
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ROCKRIDGE MANOR CONDOMINIUM, et
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Plaintiffs are Christine Chang and her son Eric Sun. They have sued various entities and
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individuals affiliated with the Rockridge Manor Condorninium and the University of California,
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Berkeley ("University"). Currently pending are multiple motions to dismiss or, in the alternative,
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for a more definite statement and one motion for summary judgment. Having considered the parties'
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briefs and accompanying submissions, as weIl as the oral argument of counsel and Ms. Chang, the
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Court hereby GRANTS Defendants' motions.
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FACTUAL & PROCEDURAL BACKGROUND
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In their complaint, Plaintiffs allege as follows.
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From 1991 to 2003, Plaintiffs lived in the Rockridge Manor Condominium. See Compl. ~
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24. At the time that Plaintiffs moved into the Condominium, Mr. Sun was only eleven years old.
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See Compl. ~ 24.
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During the relevant period, Eva Ammann was the manager ofthe Rockridge Manor
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Homeowners Association and Charles Blakeney was the president of the Board of Directors of the
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Homeowners Association. See Compl. ~~
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In 1997, Ms. Ammann and several Board members
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EXHIBITC
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Christine Chang Pro Per. individually
and as Guardian ad Litern for
2 Eric Sun, disabled
341 Tideway Drive #214
3 AJameda. CA 94501
Tel: (510) 769-8232
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CHRISTINE CHANG, individually and as
Guardian ad Litem for ERIC SUN, disabled
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Plaintiffs,
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vs.
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ROCKRIDGE MANOR CONOOMlNIUM;
10 ROCKRIDGE MANOR HOMBOWNERS ASSO;
ROCKRIDGE MANOR BOARD OF DIRECTORS;
11 ROCKRIDGE MANOR PRESIDENT OF BOARD
OF DIRECTORS CHARLES BLAKENBY;
12 ROCKRJOOE MANOR MANAGER
EVAAMMANN;
13 TRUCK INSURANCE EXCHANGE; and
OOES 1-30, inclusive,
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JOINDER
UNIVERSnY OF CALIFORNIA BERKELEY;
IS UC BERKELEY CHANCELLOR
ROBERT BIRGENEAU;
16 UC BERKELEY PUBLIC RECORDS
COORDINATOR ALAN KOLLING;
17 UC BERKELEY GENERAL COUNSEL
SUSAN VON SEEBURG;
18 UC BERKELEY POLICE DEPARTMENT
CHIEF VICTORIA HARRJSON;
LIEUTENANT ADAN TEJADA;
MANAGER TOM KLATT;
DISPATCHER CONSTANCE PEPPERS
22 CELAYA; and OOES 31-60, inclusive,
JOINDER
23 PAMELA 21MBA, ATTORNEY AT LAW;
ALBERT COOMBES, ATTORNEY AT LAW;
24 and OOES 61-90, inclusive,
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defendants.
JURY TRIAL DEMANDED
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EXHIBITD
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Case 3:07-CV-040WEMC
Document 117
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Filed 02/21/2008
Page 1 of 2
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AMENDED
JUDGMENT IN A CIVIL CASE
v.
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Plaintiffs,
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Case No. CO? -4005 EMC
ROCKRIDGE MANOR CONDOMINIUM,
ET AL.,
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(As to Defendants Rockridge Manor
Homeowners' Association, et al.)
Defendants.
____________________________1
() Jury Verdiet. This action came before the Court for a trial by jury. The issues
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18 have been tried and the jury has rendered its verdict.
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(X) Decision by Court. This action came to trial or hearing before the Court. The
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issued have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED pursuant to the Order Granting
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Defendants' Motions to Dismiss or, in the alternative, for a more definite Statement;
and Granting Defendant's Motion for Summary Judgment dated February 13,2008,
26 Judgment is hereby entered only in favor of only Defendants Rockridge Manor
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Case 3:07
-CV-040~EMC
Document 117
Filed
02/2~008
Page 2 of 2
1 Homeowners' Association, Rockridge Manor Condominium, Rockridge Manor Board of
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Directors, Rockridge Manor President of Board of Directors Charles Blakeney, and Charles
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Blakeney.
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Dated: February 21, 2008
Richard W. Wieking, Clerk
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By: Betty FongDeputy Clerk
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EXHIBITE
Filed08/06/10 Page23 of 67P• • , . , .
FOR STUDENTS
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Berkeley Law - 1970=79
EdwiIHI M. ce. ~ Cl'Iiii'l EIIil6W J. HfIi·IiIk:ktOn. MIdIiiI S. Hii'Imi1 Jo AtrtII..ach
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EXHIBITF
.
of
Senator Judiciary CommitteeDocument211
Hearing on the Nomination
of Edward
M. Chen
. Transcript
Case3:07-cv-04005-EMC
Filed08/06/10
Page27
of 67 Page 2 of 5
. .
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Transcrlpt of Senator ludiclary Committee Hearing on the
Nomination of Edward M. Chen
SENATOR SESSIONS: You, In the CalIfomia Law Review wrote this, quote "DIversity enhances the quallty of decislon
making. In addition to analyzlng and applylng the law, Judges have to make determination
that draw not so much upon legal acumen but on understanding of people and human
experlences. Such experlences then form assumptlons that affect legal dedslons. At trial and
evldentlary hearings, Judges have access to have to assess credlblllty of wltnesses and
wltnesses' testlmony may seem mora credlble If It Is conslstent with the Judge's knowledge or
experlence and conversely less credlble If he remalns outslde the Judge's experlence. Slmply
put, a Judge's I1fetIme experlences affect the wlllJnoness to credlt testlmony or understand the
human Impatt of legal rules upon whlch the Judge must dedde. These determinations requlre
a Judge to draw upon somethlng that Is not found In the case, reports that line the walJs of our
chambers. Rather, Judges draw upon the breadth and depth of thelr own llfe expertences
upon the knowledge and understanding of people and of human nature and lnevltably one's
ettlnlc and raclal background conb1bute to those lite experlences." Old that statement
accuratety renect your Judldal phIloSOphy?
eDWARD M. CHEN:
Weil, let me put that In context If I can, Senator. The point I was trylng to make In that Law
Review plece was that there was a beneflt to havlng a diverse Judldary Ölat the Judgments we
make, some of those are based on deductlve reasonlng and analysls of law and sometlmes
they're based on more Intuitive .nalysls, Judgtng the wttness aedlblllty, making a dedsIon
with respect to ball or sentendng. That requlres an understanding of human 'attors and
dlfferent...and varlous contexts. And the point I was tryIng to make Is that the broader the
breadth the experlence both for an Indlvldual JUdge and colJectlvely as a court, I thlnk the
bettet' the ablllty of jUdges to make those assessments. Md I trY to JIID.~ In
that plece about how the coI!eglallty amonast Judges whether It's formal exchange amongst
the members of the Suprame eaurt or the Court of AJjpiif, or theJnfgrmal Q~nge tbat .
,9ften happens In the District Court, In the hallwQS, Jo the dIAlAg rooms that we leam from
each other about prlous j)efSpedJves, dIfferent perspectlves In ilie experlences. _
SENATOR. SESSIONS: Weil, you know, the everage IItJgant would be nervous If he thought ~stons are belng made QIL
what V!HLJydges talkad about In the dlnlng hallor In the ballwavs .. I mean the case should be
declded, should It not, on the ~!!~nce Introd~ and the law pr~y applled ..to that
evldence.
http://www.american-justice.orglindex.cgiIPagelI30rrranscript-of-Senator-Judiciary-Co...
10123/2009
Transcript ofCase3:07-cv-04005-EMC
Senator Judiciary CommitteeDocument211
Hearing on the Nomination
of Edward
M. Chen
Filed08/06/10
Page28
of 67 Page 3 of S
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EDWARD M. CHEN:
No, and I agree with that fully and I dldn't mean to sug gest that cases are dedded on the
hallways but--
SENATOR SESSIONS:
No, I'm Just ralslng this point because It's somethJng weve talkad about before. I suppose your
experlence mlght help you have Inslght Into a wltness's credlblllty. Everybody has different
experlences and It mlght but I was a.llttkt~rned..that you sav you.mJgbt.undersl:80d the
häman ~mp~ct of J!HUIl.!:J,de$ upon whlch a Judge must dedde. You know the oeth saVs thaI a
ju ge s oul do equal J!L~ to the paor and the D,-h. Soon, you would take that oath and
Intend to foll~
EDWARD M. CHEN:
Absolutely and I dld take that oath when I swom In as a maglstrate judge.
SENATOR SESSIONS:
And If you would be Impartlal--
EDWARD M. CHEN:
Absolutely.
SENATOR SESSIONS:
I know you served, what, 18 years as counset for the American Civil Uberty Union.
EDWARD M. CHEN:
Slxteen years, actually.
SENATOR SESSIONS:
Slxteen, and...now you were on thelr payroll as a...
EDWARD M. CHEN:
As a staff attomey.
SENATOR SESSIONS:
Staff attomey. Weil, you know, the ACLU has filed some excellent cases. They filad some I'm
not comfortable with. My time uP? I'm sorry.
SENATOR FRANKEN: You're right but I was glvlng you as-
SENATOR SESSIONS:
A wamlng.
SENATOR FRANKEN: I was glvlng you, In my role as chalrman, I was glvlng you leeway because you're the
http://www.american-justice.orgfmdex.cgi/Page/130ITranscript-of-Senator-Judiciary-Co...
10123/2009
•
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EXHIBITG
,
"
~enate leahy felstelnkyl\l..ions on chen
Senator Kyl: Thank you. Mr. Chairman, I take very l1)uch to heed Senator Feinstein's supporters
as weil as the support of those through letters that she has supplied to me. Nonetheiess, there
are a lot of statements that this nominee has made that are very, very troubling. And they ran a
rather large gamut and spanned a large part of his career.
I think we are familiar with some of them. And maybe there are explanations to these. in which
case, it would be useful to hear them, but to comment for example that the singing of America
the Beautlful at a tunerai was inappropriate. And the comment attributed to him was because of
his and I am quoting , feelings of ambivalence and cynicism when confronted by appeals to
patriotism. For a judge, that's little odd to say the least.
His first comment after September 11, 2001, at least quoting to an editorial in the Washington
Times was to worry that Americans would succumb to the seemingly irresistible forces of
racism, natMsm. and scapegoatlng.
He has been as an advocate at the ACLU unable to succeed in challenges even in the ninth
circuit, which is not exactly a conservative court. There was one case in Arizona that I was a
little bit famlliar with, but I did not recognlze that he had been the lawyer in the case. We had a
provision in our constitution it was referred to the people of the State of ArIzona who
overwhelming said that at least state business in Arizona had to be conducted in English. And
he challenged that on behalf of ACLU. He lost. and lunderstand that everybody is entitled to a
lawyer, but as the top ACLU lawyer he has a pretty strong record of a lot of very out of the
mainstream positions which - many of which have even been rejected by the ninth circuit and
even the California Supreme Court.
There are a lot of staternents about the way that background should inform decisions, we went
through some of them with Judge Sotomayor and I would want to know a little bit more in
explanation. And I regret that I wasn't available for his hearing to ask him why he made some of
the statements that he did, but there are just a variety of statements, sorne of which just be a
lack of care. 8ut when you are a judge, you neec! to be careful.
He was federal magistrate judge when he made this speech or made this statement. So one of
the things that he find most rewarding, contributing to the development of law by apublished
opinion especially if it comports with my own view of justice.
And throughout his writings and advocacy, you do see a sense of - that he has his own view of
what justice is. That's not what a judge should bring to the court. We can't denyour life
experiences and our own attitudes, but one of the filters that the judiciary committee provides for
our colleagues, we have to vote on these nominees is to determine whether a judge has been
willing to leave his own peculiar, private views aside when judging cases.
,
11
••
Senate leahy felat8lnkyl "alona on chen
I am not withstanding what some fine people have sa id about him, unconvinced that he is
necessarily been willing to do that. And it just seems to me that this is the kind of nominee that I
have very hard time supporting as a fair and balanced and objective judge.
Senator Sessions: I think I would sav that Senator Feinstein does really care about getting
quality judges and she has always worked hard on this. And the fact that she feels strongly in
favor of this nominee has caused me to think carefully about it. And I have not come to the
conclusion that she has reached, but I respad her work on it. As magistrate, during that time, in
remarks before a law school he sald he found it "most rewarding contributing to the
development of the law via pUblished opinion especially if it comports with my view of justice."
Weil, we asked him about that in written questions and he claimed that this reference was
directed primarily at matters which improved the administration of justice." But I think that's not
clear to me that that's what this statement means if fairly read. But I am pleased to see that he
said that.
I think that justice is done when judges equally and fairly apply the law to the facts with out
consultlng their own their backgrounds, prejudices and biases and without respad to the
persons or backgrounds of the parties before them. Call the ball and strike. SimUar to judge
Sotomayor, Judge Chen made the following remarks on more than one occasions, "Diversity
enhances the quaiity of decision making, judges have to make determination that draw not so
much upon the legal acumen but on an understanding of people and human experiences, such
experiences, inform assumptiona that affect legal deciaiona", which I think again sug gest that he
believes that a judge is juatified in allowing his life experiences, which are I think akin to biasea
to influence hia deciaion. And I don 't think that'a a healthy phllosophy. There are aome other
examples of that. He indicated in a follow-up question, I give hlm credit for thia, that "he dld not
believe that race or gender should affect a judge'a interpretation of the law." And he doas not
"believe that the quaiity of the declalon making ia affected by one'a gender or race. n So I would
juat sav it'a odd if he believes that that he would make the original atatement.
And he waa 16 years as a statt attomey with the ACLU and took quite a number of controversial
poaitiona that are out of the mainatream. And certainly, the ACLU is an aggreasive institution
entitled to fully advocate aa they choose in America. But they ataunchly oppoaed the death
penaIty and assert problematically for me and that imposition of the death penaIty violatea
United Statea conatitution when there are a hatf a dozen references to capital crimes and taking
life with due proceas in the conatitution.
So loppose. They sav the constitution for him is Congress from passing a bill that would ban
partial birth abortion, which to me bolla down to opposing a lawful impoaition of a death penaIty
on criminala but saying the conatitutlon prohibits state protecting a lite of an innocent partially
bomchild.
. ..
~
.
~enate leahy felsteinkyl "sians on chen
With regarding the English on ly laws that Senator Kyl mentioned, it affected my state of
Alabama. He not on ly said that but he wrote a letter to the New York Times saying that English
only laws are, "based on false, xenophobie assumptions," which I assume my constituency
supported that will not be pleased with that.
In 1997, he co-authored an article stating English only is "anti-immigrant and xenophobic in
charaeter. I don't believe that's true. I think that's an unfair statement.
So Mr. Chairman, I won't go on I lat further this morning. I would just SlY that I do think that this
nominee has had as a day-to..<Jay work apparently been effective as United States Magistrate
Judge which has fewar opportunities to be involved in the more senous constitutional questions,
but he apparently has dona a good job with that. And I think he should be given eredit for that.
eut on balance based on his background and record and statements, I have concluded that I do
not have the requisite degree of confidence to provide him with a lifetime appointment where he
might decide that he could use decisions to promote beliefs that he feels strongly about. Thank
you.
Chairman: Okay. Anybodyelse? If not, then the clerk will caU the roll?
Clerk: Mr. Paul-* [0:17:38]?
Clerk: Ms. Feinstein?
Feinstein: Aye.
Clerk: Mr. Feingoid?
Feingoid: Aye.
Clerk: Mr. Schumer?
Schumer: Aye, by proxy.
Clerk: Mr.
*-
[O: 17:49]? Mr. Cardin?
Cardin: Aye, by proxy.
Clerk: Mr. Whitehouse?
Whitehouse: Aye.
Clerk: Mr. K1obuchar?
,
•
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I
EXHIBITH
, • *.
Boalt Hall, Class of 1979
Paula L. Abrams
Eugenia L. Aidukas
David W. Anderson
David W. Anderson
Michele C. Anderson
Donald C. Arbitblit
Howard W. Ashcraft
Bennett H. Ashley
Marianne Austin
Susan P. Avitzour
Della Bahan
Lynne Bantle
Agnes T. Barling
Lawrence D. Bames
David W. Barron
Ronald B. Bass
John G. Bauer
Gary B. Beeler
Renee C. Benjamin
Gary O. Bennett
Michael Bergeisen
Michael S. Bernick
Richard S. Birken
Michiel C. Brandjes
Janice M. Brickley
Frank M. Brown
Mark K. Brown
William A. Browner
Desiree A. Bruce-Lyle
Daniel P. Brz.ovic
Michael A. Buxbaum
Genevieve Franchesca C. Callejo-Brighton
Paul W. Cane
Michael M. Carlson
Mark A. Cassanego
Paul M. Caulfield
James C. Chalfant
Susan K. Chandler
. Edward M. Chen
Maurice P. Choquard
James Chrisinger
Madeline Chun
Kenneth E. Chyten
Robert D. Ciandella
Michael J. Coffino
Moms V. Coleman
Richard J. Collier
Constance L. Couts
Portland, OR
Oakland, CA
Orinda, CA
Lake Oswego, OR
San Francisco, CA
Berkeley, CA
San Francisco, CA
New York, NY
Atherton, CA
Jerusalem, Israel
Berkeley, CA
Berkeley, CA
Santa Ana, CA
Incline Village, NV
Oakland, CA
Walnut Creek, CA
Seattle, WA
San Ramon, CA
Chicago, IL
Tenafly, NJ
Oakland, CA
San Francisco, CA
Arlington, VA
The Hague, The Netherlands
Piedmont, CA
Richmond, CA
Los Angeles, CA
Tucson, AZ
San Diego, CA
Walnut Creek, CA
New York, NY
Berkeley, CA
Orinda, CA
San Francisco, CA
San Carlos, CA
Deptford, NJ
Los Angeles, CA
Pacific Palisades, CA
San Francisco, CA
Zurich, Switzerland
Cottage Grove, MN
San Francisco, CA
Oxnard, CA
New Castle, NR
San Francisco, CA
San Francisco, CA
Moraga, CA
,
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I
EXHIBIT I
·.
Judicial Externships
U.S. District Court for the Northern District of California
www.cand.uscourts.gov
U.S. Courthouse
450 Golden Gate Avenue
P.O. Box 36060
San Francisco, CA 94102-3483
Gen mfo: 415-522-2000
Judges:
Vaughn R. Walker
Chief Judge
415-522-3620
William Alsup
415-522-3684
Saundra Brown Annstrong
510-637-3562
Wayne Brazil
Magistrate
510-637-3324
Federal Building
280 South First Street, #2112
San Jose, CA 95113-3008
Gen info: 408-535-5364
Edward A. Infante
Magistrate
408-535-5340
Joseph C. Spero
Magistrate
415-522-3692
Maria-Elena James
Magistrate
415-522-4698
Patricia V. Trwnbull
Magistrate
408-535-5434
Martin Jenkins
415-522-4141
James Ware
408-408-535·5454
D. Lowell Jensen
Senior Judge
510-637·3540
Jeffrey White
415-522-4160
Charles Breyer
415-522-2062
Elizabeth Laporte
Magistrate
415-522-3694
EdwardChen
Magistraie ...
415-522-4050
James Larson
Magistrate
415-522-2112
Maxine Chesney
415-522-2041
Howard R. Lloyd
Magistrate
-Kate Nance (law clerk)
415-535-5411
Samuel Conti
No Externs
Jeremy Fogel
Senior Judge
408-535-5426
408-535-5163 fax
Phyllis J. Hamilton
415-522-4100
Thelton Henderson
Senior Judge
415-522-3630
Susan Dlston
415-522-4070
Federal Building
130 l Clay Street, #400
Oakland, CA 94612-5212
Gen mfo: 510-637-3530
Marilyn Hall Patel
415-522-3140
William W. Schwarzer
Senior Judge
No Externs
Richard Seeborg
Magistrate
-Bemie Kunkel (law clerk)
408-535-5357
Fern Smith
No Externs
Ronald M. Whyte
408-535-5331
Claudia Wilken
510-637-3588
Bernard Zimmennan
Magistrate
415-522-4093
U.S. Court of Appeals for the
9tf1 Circult
John Noonan
Senior Judge
U.S. Court of Appeals for the
Nmth Circuit
P.O. Box 193939
415-556-9636
Extern Recruitment Coordinator
Office of Staff Attorneys
Vicky Crivello
P.O. Box 193939
415-556-9842
'..
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EXHIBIT J
«
Berkeley Law - ,1970-79
~.
Filed08/06/10 Page38 of 67 Page lof8
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Berkeley Law
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Document211
' .
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I
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Peter E. Pollaczek
Ronald E. Quldachav ...
William K. Rentz
Donald M. Roberts
Michael E. Shaplro
Tower C. Snow, Jr....
Clare H. Springs ...
Philip S. Welsmehl
Filed08/06/10 Page39 of 67 Page6of8
Society of 1912
$500-$999
William A. Browner ...
Mark A. Cassanego ...
. Egwarsl M. CheD-Madeline Chun
Stacey j. Hendrickson ...
Michael S. Himmel
Jo Ann Lach
Randv P. Orllk ...
David L OSias ...
1974
19\16 Particlpation
Total Giving : 598.363.00
Dean's Society Partner
125,000-149,999
Rick & Heidi Sherman ...
$ l 0,000-$24,999
Robert E. WIllett
Shlrlev Woo & David Rosenfeld ...
Boalt Advocates
UP TO $499
David W. & Sandra S. Anderson
Michele C. Anderson
Rebecca S. Elsenberg ...
Karen A. Fischer ...
Randolph B. Godshall
Hugh Lawrence
Michael A. Lee ...
The Honorable PatrIcia M. Lucas ...
Sanford H. MargolIn
James W. Morando ...
WIlliam T. Payne ...
Larry Pizarro & Cheryl Lutz
Unda Martin Purkiss ...
James G. Roberts
Bari S. Robinson
Roderick A. Rodewald ...
Jeffrev L. Schaffer
Peter A. Sklarew ...
Christopher J. Walt
D. Kellv Welsberg ...
Christine Windbichler & Paul Baftes
Erlka Wodlnskv ...
Gregory R. Zaragoza ...
t'" Deceased
... = 3+ Consecutive year indlvldual donor
Elizabeth Josselyn Boalt
Associates
$5,000-$9,999
Peter j. Benvenutti. jr. & Use A. Pearlman ...
Robert S. Stein & jesslca S. Pers ...
$2,500-$4.999
William T. Barker ...
Eliot S. & Phillppa L JubelIrer ...
Lynne Drohlich Kaufman & Ron Kaufman
Michael R. Levlne ...
Richard G. McCracken
Lawrence & Beverlv Peitzman ...
Thomas S. WIllIamson. Jr....
$ 1,000-$2,499
Robert L. Lawrence ...
Peter G. Lomhoff
Martin A. Mattes & Catherine E. Garzlo ...
Christopher H. Schroeder ...
John H. Seesel & Joanne B. Grossman ...
Anne Trebllcock ...
Ulrich Wagner Society of 1912
ISOO-I999
Hal Kruth
Garrlck S. Lew
8/5/2010
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EXHIBITK
Page 1
14 CaI. 4th 1090, .; 929 P.2d 596, u;
60 CaI. Rptr. 2d 277, .U; 1997 CaI. LEXIS 33
Note to Affirmative Litigation students:
The entire opinion is contained below. However, for class you only need to read the case summary,
headnotes 1-3, and pp. 1102-09 .
•
Questioned
As of: Jan 24, 2007
THE PEOPLE ex rel. JOAN R. GALW, as City Attomey, etc., Plaintift' and Respondent, v. CARLOS ACUNA et al., Defendants and AppeUants.
No. S046980.
SUPREME COURT OF CALIFORNIA
14 CaJ. 4th 1090; 929 P.2d 596; 60 CaJ. Rptr. 2d 277; 1997 CaJ. LEX/S 33; 97 CaJ.
Daily Op. Service 724; 97 Daily Journal DAR 1023
January 30,1997, Decided
SUBSEQUENT HISTORY:
Certiorari Denied June 27, 1997, Reported at: 1997
U.S. LEXlS 4093.
PRIOR HISTORY: Superior Court Santa Clara County,
No. 729322, Robert Michael Foley, Judge.
DISPOSITION: Thejudgment ofthe Court of Appeal is
reversed insofar as it invalidated paragraphs (a) and (k)
of the preliminary injunction and concluded that defendant Blanca Gonzalez was not subject to its tenns. Because our grant of review encompassed only those two of
the fifteen provisions invalidated by the Court of Appeal,
we do not address any other aspect of the preliminary
injunction entered by the superior court.
SUMMARY: CALIFORNIA OFFICIAL REPORTS
SUMMARY
The trial court, on petition by a city attorney, issued
a preliminary injunction directed against designated
street gang members and specified activities in a foursquare-block neighborhood. It enjoined defendants from,
among other things, "standing, sitting, walking, driving,
gathering or appearing anywhere in public view with any
other defendant . . . or with any other known [gang]
member," and from confronting, intimidating or similarly
challenging--including assaulting and batteringresidents, "or any other persons" known to gang members to have complained about their conduct within the
neighborhood. (Superior Court of Santa Clara County,
No. 729322, Robert Michael Foley, Judge.) The Court of
Appeal, Sixth Dist., No. HOI 1802, modified the preliminary injunction, upholding only those provisions enjoining acts or conduct defined as crimes under specific provisions of the Penal Code, and, as modified, affirmed.
The Supreme Court reversed the judgment of the
Court of Appeal insofar as it invalidated two paragraphs
of the preliminary injunction and concluded that one
defendant was not subject to its tenns. The court held
that the acts complained of constituted a public nuisance.
The evidence showed, among other things, that gang
members, all of whom lived elsewhere, congregated on
lawns, on sidewalks, and in front of apartment complexes at all hours of the day and night, openly drinking,
smoking marijuana, snifling toluene, and even snorting
cocaine. Residents were subjected to loud talking, loud
music, vulgarity, profanity , brutality , fistfights, and the
sound of gunfire echoing in the streets. Gang members
took over sidewalks, driveways, carports, and apartment
parking areas, and impeded trafiic on the public thoroughfares to conduct their drive-up drug bazaar. Murder,
attempted murder, drive-by shootings, assault and battery, vandalism, arson, and theft were commonplace, and
residents had their garages used as urinais, their homes
commandeered as escape routes, and their walls, fences,
garage doors, sidewalks, and even their vehicles turned
into a sullen canvas of gang graffiti. It is the community
aspect of a public nuisance, reflected in the civil and
criminal counterparts of the California code, the court
held, that distinguishes it from a private nuisance, and
makes possible its use, by means of the equitable injunc-
Page 5
14 Cal. 4th 1090, *; 929 P.2d 596, **;
60 Cal. Rptr. 2d 271, ***; 1997 Cal. LEXIS 33
liminary injunction directed against designated street
gang members and specified activities in a four-squareblock neighborhood met the statutory defmition of a puhlic nuisance. To constitute a public nuisance, conduct
must be "injurious to health, ... indecent or offensive to
the senses, ... an obstruction to the free use ofproperty,
so as to interfere with the comfortable enjoyment of life
or property, or unlawfully obstructD free passage or use,
in the customary manner, of any ... public park, square,
street or highway" (Civ. Code, § 3479). The evidence
showed, arnong other things, that gang members, all of
whom lived elsewhere, congregated on lawns, on sidewalks, and in front of apartment complexes at all hours
of the day and night, openly drinking, smoking marijuana, snitling toluene, and even snorting cocaine. Residents were subjected to loud talking, loud music, vulgarity, profanity, brutality, fistflghts, and the sound of gunfire echoing in the streets. Gang members took over
sidewalks, driveways, carports, and apartment parking
areas, and impeded trafik on the public thoroughfares to
conduct their drive-up drug bazaar. Murder, attempted
murder, drive-by shootings, assault and battery, vandalism, arson, and theft were commonplace, and residents
bad their garages used as urinals, their homes commandeered as escape routes, and their walls, fences, garage
doors, sidewalks, and even their vehicles tumed into a
sullen canvas of gang graffiti.
(16) Constitutional Law § 66-First Amendment
Rigbts-Association and Speecb--Balanclng of Interests--Injunction Against Street Gang Activity. --A
preliminary injunction directed against designated street
gang members and specified activities in a four-squareblock neighborhood did not burden speech more than
necessary to serve an important govemmentaI interest by
effectively forbidding gang members from engaging in
any form of social intercourse with anyone known to
them to be a gang member, even a single member, "anywhere in public view" within the four-block area. The
provision sought to ensure that. within the circumscribed
area, gang members had no opportun ity to combine. It
was the threat of collective conduct by gang members
loitering in a specific and narrowly described neighborhood that the provision was sensibly intended to forestall. Given that overriding purpose, the prohibitions
enumerated were not easily divisible. Given the factuaI
showing made by the city in support of preliminary relief, the camival-like atmosphere of collective mayhem,
it could not be said that the ban on any association between gang members within the neighborhood went beyond what was required to abate the nuisance, and the
effect on defendants' protected speech was minimal.
(17) Constitutional Law § 66-First Amendment
Rigbts-Assoclation and Speecb-Balancing of Interests-Injuaction Apinst Street Gang ActivJty. --A
preliminary injunction directed against designated street
gang members and specified activities in a four-squareblock neighborhood did not burden speech more than
necessary to serve an important govemmental interest by
effectively forbidding gang members from confronting,
intimidating, or similarly challenging--including assauIting and battering--residents, "or any other persons"
known to gang members to have complained about their
conduct within the neighborhood. Because the conduct
proscribed consisted of threats of violenee and violent
acts themselves, it fell outside the protection of U.S.
Const., 1st Amend.--such acts coerce by unlawful conduct, rather than persuade by expression, and thus play
no part in the "marketplace of ideas." As such, they were
punishable because of the state's interest in protecting
individuals from the fear of violence, the disruption fear
engenders, and the possibility the threatened violence
will occur. A physical assault is not by anY stretch of the
imagination expressive conduct protected by the First
Amendment.
(18) Nuisances § 16-Remedies-PubHc Nuisances--Equltable Relief-By Public OmcialsInjunction Against Street Gaag Activity--Individual
Intent. -A preliminary injunction directed against designated street gang members and specified activities in a
four-square-block neighborhood was binding on each
defendant without the necessity of proof that each possessed a specific intent to further an unlawfuI aim embraced by tbe gang. There was sufficient evidence before
the trial court to support the conclusions that the gang
and its members present in the neighborhood were responsible for the public nuisance, that each of the individual defendants either admitted gang membership or
was identified as a gang member, and that each was ohserved by police officials in the neighborhood. Although
all but three of the eleven defendants who chose to contest entry of the preliminary injunction were shown to
have committed acts, primarily drug-related, comprising
specific elements of the public nuisance, such individualized proof was not a condition to the entry of preliminary
relief based on a showing that it was the gang, acting
tbrough its individual members, that was responsible for
the conditions prevailing in the area. Additional proceedings would be required to enforce the specific terms of
the preliminary injunction. Should contempt proceedings
ensure, each individual defendant would have an opportunity to contest any claim by the city that he or she had
violated specific terms of the preliminary injunction.
---COUNSEL:
Amitai Schwartz, Antonio Ponvert III, Sara T. Carnpos, Edward M Chen... Alan L. Schlosser, Daniel M.
Mayfield, Patricia Price, Amanda Wilson. Siner, Stein-
EXHIBITL
.
July, 200,3, Vol., 91 No. 4
Filed08/06/10 Page44 of 67 Page l of 1
Previous Issue I Library I Next Issue
Vol. 91
July, 2003
No. 4
ARTICLES
The Norm of Prior Judicial Experience and Its Consequences
for Career Diversity on the U.S. Supreme Court, 91 CALIF. L.
REv. 903 (2003).
Lee Epstein
Jack Knight
Andrew D. Martin
Law, Culturai Conflict, and the Socialization of Children, 91
CALIF. L. REv. 967 (2003).
Kenneth L. Karst
Love's Lahor's Lost? Judicial Tenure Among Federal Court
Judges, 91 CALIF. L. REv. 1029 (2003).
COMMENT
Pawns of the State or Priests of Democracy? Analyzing
Professors' Academic Freedom Rights Within the State's
Managerial Realm, 91 CALIF. L. REv. 1061 (2003).
SPEECH
The Judiciary, Diversity, and Justice For All, 91 CALIF. L.
REv. 1109....;...._
(2003).
.....
~
Albert Yoon
Rebecca Gose Lynch
Edward M Chen
REVIEW ESSAYS
Affirmative Action in Perspective, 91 CALIF. L. REv. 1125
(2003).
Bob Berring
Traditional Affirmative Action, 91 CALIF. L. REv. 1139
(2003).
Ian F. Haney Lopez
What Exactly Is Racial Diversity?, 91 CALIF. L. REv. 1149
Devon W Carbado
Mitu Gulati
(2003).
Silence, Segregation, and Student Activism at Boalt Hall, 91
CALIF. L. REv. 1167 (2003).
William C. Kidder
Silence at the California Law Review, 91CALIF. L. REv. 1183
(2003).
Amy DeVaudreuil
Copyright o 2003 by California Law Review, Inc,
Califurnia Law Review, Inc, (CLR) is a California non profit corporation.
CLR and the authors are sole1y responsible for tbe COIllent of their pubJications.
http://www.law.berkeley.edu/journals/clr/library/9104.html
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Each year, alumni return to Berkeley to celebrate with classmates and to renew thelr ties to the 80alt
communlty. As part of the reunion, each class presents 21 gift to the school.
Find out more about how your donation makes 21 dlfference at Boalt.
Make your gift or pledge today!
The followlng lnellvlduals generously donllted to the campalgn In honor of thelr cI.ss reunion.
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William Hill
Dina Hoffman
Yujl Iwanaga
Mlcah Jacobs
Jamle Jacobs-May
Charles Jaeger
Michael Jaurigue
Jeffrey Jensen
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Jane Saltsman
Kan Schmidt
David Schurlcht
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Fall 2006 Letter
FALL 2006 LETTER
Dear Alumnl and Friends:
A new semester has begun, bringing a fresh 1 L dass whose enthuslasrn and smarts brlng so much energv
to the hallwavs around here that summer seems a dlstant memory at best. Same faculty members invariablv
flnd the arrival each fall of new students (bor n in the middle of Reagan's flrst term?) makes them feelolder,
whlle others flnd the open and eager minds reJuvenatlng. This Is one of the deflnlng forces In academlc life.
along with the joy of teaching versus the agonv of gradlng. For me, with the arrival of the students. I mostlv
kick mvselffor failing to take a vacatlon.
For this academic vear. mV personal plan has three Important dimensions. The flrst is to redouble mv
efforts at worklng with alumni and moving our capital campalgn ahead. We have almost completed fullV
staffing our Alumni Center operation under the remarkable veteran leadership of louise Epsteln, and this
past vear set records for both alumni gatherlngs and for contrlbutions, with still more success to come. If
we can build critical mass with care campalgn funding over the next 18 months. we can stav on schedule
with our plans to construct a new building and expand the faeulty bv 40 percent.
MV second priority is to continue nurturlng the evolution of our multldisclpllnary research centers. Take a
look at the news in the followlng pages to see but a sample of the remarkable growth and output to date of
these excitlng ventures.
FInalIv, mv third priority Is to have more interactlon with students. Because of mv deanship and fundraising
dutles. I have not vet had a ehanee to teach. This vear. however, 1'11 plav a supporting role In a new course
on the law and policy of K-12 educatlon reform. Along with other participating Boalt faculty, we have
enlisted California's secretary of edueatlon, Alan Bersin, as a lecturer. We expect to tackle some of the
toughest Issues faclng educators, polIcymakers and advocates In this era of standards-based accountablllty
and increaslng bi partisan commitment to hlgher achievement and broader equity.
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As we head into this new academlc vear, there Is a sense of exhilaratlon throughout the law school. White
that Is usuallv the case with beginnings, It seems particulariv true this fall. Our faculty is fuUv engaged on
the front lines of Issues that matter, our students are pierclnglv bright and more focused than ever, and
your sustained support for our critlcal public mission means we can contlnue to bulld on the excellence
that deflnes Boalt.
There are more detalls In the update below-take a moment to read about our latest news. I look forward to
keeplng you posted on the exclting developments at Boalt throughout the vear.
SJncerelv vours,
Christopher Edley, Jr.
Dean and Professor of law
Fall 2006 tJpdate
Incomlng aass of 2009
If you take a close look at the new Class of 2009 (2009!), here's what vou'lI flnd: physicians, journalists,
entrepreneurs, artists and athletes, an ostrlch and emu earetaker, an artlsan baker, a competltive break
dancer, a foreign service officer speclallzlng In Chlnese and Mongolian affal rs. the volce of Wlnnie the Pooh
at Disnevland, and the youngest woman to backpack the Paclfie Crest Trall from Mexico to Canada. And
that's just the flrst mod.
The newest Ils reported for orientation on August 17. and thevare all dazzling. Of the 7,1 59 applicants
for this vear's dass, Boalt admitted 11 percent for a 1L dass of 266. Thev brlng dlstjngulshed academlc
credentials Including a median GPA of 3.78 and lSAT score of 166. Thev come from 38 states and 108
undergraduate schoois. with Berkelev, UCLA. Stanford. Harvard. Yale and Brown leading the pack. Thev
range In age from 20 to 42. Same 55 percent are women and 34 percent are people of color. (20 percent
Aslan, flve percent African American, elght percent Hlspanlc/latino and one percent Native American). We
also have 73 new LLM. students from elght countrles. 17 percent of whom already have graduate degrees.
Fawlty Developments: Achlevements and Honors
http://www.law.berkeley.edul614.htm
8/612010
Berkeley,Law
- fall 2006 Letter
Document211
W
Boalt faculty members contlnue to stretch the boundarles of scholarship and achievement as they engage
the most challenglng Issues of this young century.
Dan Farber, Sho Sato Professor of law and director of Boalt's environmentallaw program, Is leading the
charge In the field of disaster planning and prevention. Farber pioneered an Innovative course last spring,
Disasters and the Law: The Legallmplicatlons of Hurrlcane Katrina, in which students had an opportunity to
think through the Issues that emerged from the legal system's response to large-scale catastrophes. In
addition, Farber's new book Dlsasters and the Law: Katrlna and Beyond with University of Minnesota Law
Professor Jim Ch en, was published on September Il, 2006,In what the authors describe as an effort to
convert a once 'shared sense of helplessness in the wake of Katrlna Into a modest contributlon toward
Improving the law's approach to hurrlcanes, earthquakes, and other disasters." The book Incorporates
knowledge and experlence from the flelds of urban planning, bankruptcy law, and wetlands law, and
examines the role of the legal process In disaster response and reconstructlon.
Frank Zimrlng , William G. Simon Professor of Law and Wolfen Dlstinguished Scholar, and renowned crlmlnal
justlee and family law expert, is the author of The Great American Crlme DeclIne ( Studies in Crlme and
Public Policy) due out In November, whlch examlnes the crlme decline of the 1990 and crlme rate
expectations for the future. Kristln Luker, Elizabeth Josselyn Boalt Professor of Law and Professor of
5OCiology, is celebrating the publIcatlon ofWhen Sex Goes to School: Warring Vlews on Sex-and Sex
Educatlon-Slnce the Slxties, a probing look at the competlng ideas and values underlylng the debate over
sex education through the lives of parents. Leti Volpp, Professor of Law, Is co-editor of Legal Borderlands:
Law and the Constructlon of American lorders. a collection ofwritlngs exploring the role of law In settlng
American legal and territorial boundaries. David Caron 'S3. C. William Maxelner Distingulshed Professor of
Law, is co-author of The UNCITRAL Arbitration Rules: A Commentary, focuslng on the U.N. Commission on
International Trade Law and Its role In International arbltratlons, Includlng the Iran-U.S. Clalms Tribunal and
NAFTA dlsputes. Also marking publicatlon of new and updated casebooks and treatises are Alan Auerbach,
Jesse Choper, Philip Frlckey, James Gordley, Herma Hill Kay, Peter Menell. Robert Merges. Pam Samuelson,
Paul Schwartz and Eleanor Swlft.
Meanwhile. Boalt is celebrating three of its most distlnguished scholars at conferences honoring their IIfe's
work. In September, the Center for the Study of Law &. Society recognized the contributlons of Harry
Scheiber, the Stefan A. Riesenfeld Professor of Law and History. who dlrects the Institute for Legal Research
and the Sho Sato Program In Japanese and U.S. Law. Scheiber is one of Boalt's most esteemed professors.
An international group of his students and collaborators spent the day at sessions on law, economics and
natural resources, civil rights and constltutional law, legal history and law, and Society studies and
comparative legal history-all dlsclplines that have beneflted from Schelber's inslght and achlevements.
On October 21, legal information scholars willgather for a symposium honoring Bob Berring '74, the Walter
Perry Johnson Professor of Law and former interim dean. The event will focus on Berrlng's work on the
historical role of legal information and the impact of digital technology on the legal Information
envlronment. The conference-Legallnformatlon and the Development of American Law: Further Thinklng
about the Thoughts of Bob Berring-Is sponsored by Boalt. the Robbins Collection and Thomson West legal
publishers.
The followlng week, the Boalt communlty will pay trlbute to constitutional and federal courts scholar Paul
Mishkln, the Emanuel S. Heller Professor of Law, emeritus, at a conference on federal courts Jurlsdiction.
Mishkin Jolned the Boalt faculty in l 973 and Is the co-author of On Law in Courts and The Federal Courts
and the Federal System.
Research Centers: Engaged on Multiple Fronts
The drive to make a difference in meeting today's most urgent challenges is stronger than ever this year
throughout Boalt's multidlsciplinary research centers. From land use and cllmate change to conversations
with attorneys for the world's most successful corporation s to voting rlghts, K-S education and affirmative
action, Boalt's research centers contlnue to lead the way. Here is a sampling of the latest activity.
The Berkeley Center for law, Business and the Economy (BCLlE) has begun Its second year under the
guldance of executive DIrector Dana Welch 'S7 and Faculty Dlrectors Jesse Fried and Eric Talley. High on its
fall agenda is a speaker series that will run through November. Toplcs Indude white collar crime In the
current regulatory environment, how to tap capltal markets, and dlalogues with the general counsels of
Volkswagen of America and Safeway corporations. A roundtable on executive compensatlon Is scheduled
for October 3. with Alan Murray, asslstant managing edltor of The Wall Street Journal. moderatlng.
The Berkeley Center for law and Technology (BCln has recelved a S700,000 grant over two years from the
Ewlng Marlon Kauffman Foundatlon. The center, under the leadershlp of Executive Director Robert Barr. will
use the funds to support a comprehenslve program of research, policy analysis and dlssemlnation
explorlng the relatlonshlp between patent policy and entrepreneurship. In addition, a fall speaker series Is
underway featurlng attorneys from more than 30 of the leading national and globallntellectual property
and technology flrms speaking on toplcs ranging from open source licenslng to patent exhaustlon. The
center Is also plannlng a major symposium on copyright, digital rlghts management technology and
consumer protection for next March.
At the California Center for Envtronmentallaw" Policy (CCELP), Rick Frank has assumed the hel m as the
center's flrst executive dl rector, followlng a 29-year career as attorney and chief deputy with the california
Attorney General's office. Frank joln5 Assoclate Dlrector Cymle Payne '97 and Faculty Dlrector Dan Farber as
asecond year of programming gets underway. On October 26 and 27, CCELP will co-host LItigatIng Taklngs
and Other legal Challenges to Land Use and Envlronmental Regulatlon, a major conference featuring the
country's leading experts in the field of environmental and land-use law. The program will devote special
attention to the controverslal 200S U.S. Supreme Court eminent domain decislon In Kelo v, New London.
8/6/2010
BerkeleY,Law
- fall 2006 Letter
Document211
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On February 22 and 23, CCElP's Global Commons Project will host Cap and Trade as a Tool for Climate
Change Policy: Design and Implementation, an international conference for law, business and policy
practitioners. Panelists will explore the legal and economlc Issues assoclated with the development of
pollcies for controlling greenhouse gas emissions and slowlng climate change. Cymie Payne Is leading the
effort In partnershlp with the American Society for International Law, the Goldman School of Public Policy,
the Energyand Resources Group, the Berkeley Institute of the Environment, and the California Cllmate
Change Center.
The ChlefJustlce Earl Warren Institute on Rate, Ethnlclty and Dlvers/ty contlnues to brlng Its considerable
energy to bear on some of today's most pressing socletal challenges. The institute will host a research
conference on October 27 and 28, marking the 10th anniversary of the California proposition that
eliminated affirmative action from the state's public education system. Equal Opportunity In Higher
Education: Proposition 209, Past and Future will feature a presidents' roundtable discusslon among Robert
Oynes, president of the University of California, and the chancellors of three UC campuses: France Cordova
from UC RIverside, Michael Drake from UC Irvine and Robert BIrgeneau from UC Berkeley. These leaders will
examine how Proposition 209 has affected student and faculty diverslty In Callfornla's higher education
system.
The Warren Instltute's fall schedule also calls for issulng a repart on votlng rights and hosting a November
conference examlning reform measures propased for the No ChUd left Behind law.
The Theiton E. Henderson Center for Social Justk:e
As Boalt works to build bridges to the future, it is also grateful to those who have paved the road behind it.
With appreciatlon In mind, a capacity crowd of more than 600 friends and supporters, Including San
Francisco Mayor Gavin Newsom.fiUed the Siln Francisco City Hall Rotunda on September 15 to celebrare the
oaming of the Center.1or Social justIce at 80alt Hall in nonor of Judge Theiton E. Henders~and to
salute one of 8oalt's most esteemed graduates.Guests attendlng the gala din ner pald tribute to Henderson's
legendary career as a distlngulshed Jurist, humanitarian and ploneer in the advancement of civil rights.
Henderson, appointed to the federal bench In 1980, serves as chief judge emeritus of the U.S. District Court
for the Northern District of california.
Eva Paterson '75, president of the Equal justice Society, hosted the evening, whlch featured presentations
from Dean Christopher Edley; Mary louise Frampton, dl rector of the Henderson Center; and Ed Chen '75,
U.S. Maglstrate for the Northern District of California. Stephen Reinhardt, Justice of the U.S. Court of
, Appeals for the 9tt! CiftUlf, Intröduced Judge Henderson who spake movingly about many of the people
and moments that have shaped his career. 'We must never forget: he observed, "that while battles are still
being won, the struggle is not over."
To mark the Inauguration of the Theiton E. Henderson Center for Social Justice, the center awarded the flrst
annual judge Theiton E. Henderson Social Justice Prize to TIrlen Stelnbach '99, dlrector of the
Decrlmlnalizatlon of Poverty PractJce at the East Ray Communlty Law Center, the community-based
component of 8oalt's clinlcal program and one of the foremost poverty law clinlcs In the country.
Connectlng on Illues of the Day
80alt has created a new online forum, 80alt Speaks About...designed to bring together the many voices of
the 80alt communlty around crltlcal topics. The effort, led by David Caron, began with a look at terrorism
and its Impact on lawand governance. Alumnl and faculty are Invlted to share knowledge and opinions on a
range oftimely toplcs. The webslte Is located at www.law.berkeley.edutnews/boalt soeaks. Take a look.
A specialln-house discussion on terrorism took center stage on september 8 and 9 when Boalt presented
Governlng and living In a Time of Terror: Law Beyond 9111, a conference for faculty, alumnl, staff and
students, together with UC Berkeley faculty. The event, organlzed by Caron and David Kaye '95, launched a
long-term research initlatlve examinlng the legal and public policy effects of the September 11 attacks. The
program featured provocatlve dlscusslons on the landscape of law and terrorism and the role of the
academy in developlng terrorism policy. Partlcipants Included leading policy makers-Includlng former
congressmen Mellevlne and Haas Business School Dean Tom Campbell-and som e 20 80alt faculty
members. A comprehensive conference report settlng forth research priorities Is expected In December.
Plannlng the New, Relrwigorating the Old
Ambitlous plans are proceeding for the new building 80alt will share with the Haas School of Business. The
architecturai flrm Moore Ruble Yudell has finished the schematic design phase for the project and a model
of the building Is due later this fall.
Meanwhile, contractors created four new seminar room s this summer by transforming the former Moot
Court room and the old mail room. The new spaces feature enhanced audlo and video capability, and newly
Installed cameras to tape moot court and evidence advocacy sessions. Remodeling also transformed the
former faculty library on the thlrd floor of the North Addition Into new visltor and staff offlces. Next up:
Instatllng electrical outlets for laptops In Booth Auditorium.
Alumnl Partlcipatlon: Robust and Record-Breaking
80alt begins this new academlc year Insplred by alumnl and friends who are responslble for the best
fundralslng year on record. More than 4,300 donors-includlng 670 contrlbutlng for the first time-pledged
an unprecedented $12.1 million to the Campaign for 80alt Hall to Inltlate the most ambitlous fundralslng
effort in the law school's history. Boalt's Partners In leadershlp program reglstered Its most successful year
ever, ralslng almost $1.6 million from 58 participating law flrms, home to 933 alumnl.
8/6/2010
EXHIBITO
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mR FACULTY & STAFF
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Home " Clinies " Samuelson Law, Technology & Public Policy Clinic " About the Clinie " Faculty &
Staff " jennifer Lyneh
CLlNICS
Apply to the Clinies
JENNIFER LYNCH
Death Penaity Clinie
Clinic Fellow
jlynch [at]law.berkeley.edu
j.D., University of California, Berkeley
B.A., Art Practice and Legal Studies, University of California, Berkeley
East Bay Community Law
Center
International Human Rights
Law Clinie
Jennifer Lyneh Is the Clinle Fellow at the Samuelson Law. Technology, & Public Policy Clinle at U.c. Berkeley.
Boa!t Hall School of Law. jennifer comes to the Oinle from the law f1rm of B!ngham MeCutchen in San
Francisco where she represented clients In dlsputes Involving antitrust, telecomm, trade secret. workers
eompensatlon and contracts Issues. WhUe at the f1rm. jennlfer also did slgnlflcant pro bona federal civil
rlghts litigation work on behalf of women subjected to improper medical care whlle Incarcerated In the
California prison system. Prior to working at Blngham McCutchen, jennlfer clerked for the Honorable A.
Howard Matz in the United States District Court for the Central District of California In Los Angeles.
Jennlfer received her undergraduate degree in Art Practice and Legal Studies with high honors from the
University of California. Berkeley and received her law degree from Boalt. where she graduated Order of the
Coif. While at Boa!t, Jennlfer was an edltor on the Berkeley Technology Law Journal. and externed for the
j\merlcan CMI Ubertles Union of Northern California In San Francisco and the .Honorable Edward M. CIw!.!!!.
the Northern District of CahTornla. Jennlfer's research Interests fall Into two areas. Flrst, she Is writlng on
ffie eonstraints state soverelgn Immunity places on discovery practlces In federal cMI rights litigation. She
Is also expJorlng how to map tradltlonal legal norms onto new teehnology and the Internet and has wrltten
on defamatlon on the Internet and on crime controi methods and their effectiveness In combatlng Identlty
theft In cyberspace (see 20 Berkeley Tech. LJ. 2Sg~) (cited In State v. Leyda, 138 P.3d 610,621
(Wash. 2006». Jennlfer Is admitted to practice law In all state courts In California and in federal eourt In the
Central. Eastern and Northern Dlstrlcts of California.
Samuelson Law, Technology &
Public Policy Chnie
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PageS
jI 9dessaae ojl"f1ianRäfromjl{{of Vs
Dear Friends,
As the year draws to a close and the holiday season is upon us I want you to know
how profoundJy gratefuJ I am for your support in ).00..7... In this year our society has allowed the chasm between the rich and poor to further erode our democracy and has too
often been unwilling to confront, much less correct, the racial disparities that threaten the
heaJth of our nation. Faced with these challenges, it is easy to view the law as too blunt
and cumbersome an instrument to be useful in the battle for equal opportunity and to become discouraged about our capacity to create a more just society. At such times it is crucial that our law school s provide the fertile ground for new theories and approaches,
imaginative collaborative efforts that work across disciplines and engage commllnities,
and cutting-edge research that helps to provide solutions to problems of inequity. Training
that prov ides the next generation of lawyers with the skilIs, the knowledge, the optimism,
and the desire to tackle these challenges is equally important. At the Henderson Center for Social Justice we know
that you are Jooking to us for these critical pieces of the larger social justice effort to which we are all dedicated. We
realize that your commitment to us carries with it a responsibility that we take seriousJy.
Your support this year has enabled Diane Chin to enrich our public interest program and Monique Morris to
expand and diversity our research portfolio. Their expertise and vision have been critical in building a social justice
center that is worthy of Judge Henderson. Jessica Borja, Sarah Cuellar, Mary ElIiott, Kathleen Natividad, Jennifer
Navarro, and Michael Sumner have all made significant contriblltions to our success this year as weIL
May you all find joy in this season and remain confident that together we can continue to make a difference
to our students, our clients, and our communities .
Judge Kathryn Werdegar and Judge Henderson
Judge Ed Chen
JetT Selbin and Bemida Reagan
EXHIBITQ
i
t
11
The Henderson Center is grateful to our generous sponsors
for making].OOa a successful year for social justice.
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Abby Ginzberg
Gunnar Wolf
Akonadi Foundation
Guy & Jeanine Saperstein
Alexander, Berkey, Williams & H. Lee Halterman
Weathers LLP
HadiRazzaq
Altshuler Berzon LLP
Harold Evans
Anna Wang
Heller Ehrman LLP
Henry Hecht
Arcelia Hurtado
Hillary Ronen
Armen Zohrabian
Barbara Bryant
Hon. Edward Chen
. Hon. JOM M. True III
Barry Krisberg
Bay Area Legal Aid
Hon. Leo Dorado
Bernida Reagan
Hon. Maria Rivera
Betty Medsger
Hon. Steven Brick
Bingham McCutchen LLP
Hon. Stuart & Rhoda Hing
Brad Seligman
Hon. Yvonne Gonzalez Rogers
Brian Moskal
ImpactFund
California Rural Legal AssisIrma Herrera
J. Gary GwiIliam
tance, Inc.
JeffSelbin
Carlos Munoz
JennieKim
Carolyn Yee
Carroll, Burdick & McDonough JeromeFalk
Jewish Community Endowment
LLP
Centro Legal de la Raza
Fund
Christopher Daley
Joel & Judy Garcia
Cotchett, Pitre & McCarthy
John & Cheryl Burris
John Doar
Craig Gertsch
Curtis Berkey
John Kelly
Dale Minami
John Londen
DanielOlmos & Erika Strand
Jon Streeter
DaraSchur
Jon Sylvester
David Coleman
Josh & Maggie Floum
David Oppenheimer
Joshua Daniels
David Rosenfeld
Joyce Hicks
Davis Wright Trernaine LLP
Judith Kleinberg
Deanna Kwong
Katherine Gordon
Eleanor Swift & Robert H. Cole Katherine Stein
Kazan, McClain, Abrams,
Eleazar Aramburo
Femandez, Lyons, Farrise &
Elisabeth Semel
Greenwood Foundation
Elizabeth Cabraser
Elizabeth Eng
Laura Zuckerman
Elizabeth Hendrickson
Laurel Fletcher
Lee Awbrey
Ellen Widess
Levi Strauss Foundation
Equal Justice Society
Farella Braun & Martel LLP
Liam Garland
Franchesca Herrera
Luke Cole
Luz Henriquez
Fred Altshuler
M. Quinn Delaney
Gary Garfinkle
Marc-Tizoc GonzaIez
George Acero
GeraldStern
Marcy Kates
GreggAdarn
Margalynne Armstrong
Greta Hansen
Margaret A. Frampton
Marstel-Day LLC
Marvin Dunson III
MeganDixon
Melonie McCall
Michael Bien
Minami Tamaki LLP
Mohammad Walizadeh
Nicole Ozer
Orrlck, Herrlngton &
Sutcliffe LLP
Penny Edgert
Peter Carson
Pillsbury Winthrop Shaw &
Pittman LLP
QuyenTa
Ramon Romero
Remcho, Johansen & Purcell
Rockefeller Philanthropy Advisors
Roderic Duncan
Rodrigo & Reina Mayorga
Rosen Bien & Galvan LLP
RoyCombs
Saneta deVuono-Powell
Scott Williams
Sheldon Greene
Simona Farrlse
Stephen Berzon
Steven Rosenbaum
Steven Zieff
Stoller Design Group
Taylor & Co. Law Offices
Terence Hawley
Theresalee
Thomas & Susan Nolan
ThomasKua
Thomas Worth
ThuyLe
Tiburcio Vasquez Health
Center, Inc.
Vicki DeGoff & Dick Sherman
Vida Holguin
William Banks
William Lowe
William McNeill III
William Tamayo
Williams & Anderson PLC
And thank you to our
countless volunteers.
EXHIBITR
2009 Individual Contributors
2009 Individual Contributors (cont' d)
Under $250
Adeolo Adeseun-WiUlams '09
Aslan Paclflc American Legal Center
lee Awbrey '07 and Jeb Oblak
Starr Babcock and Margot Leahy
Dela Bahan Bamelt '79
Jeff Bomsteln '81 & Veronlca Sanchez '84
Hon, Steven Blick '72 & Ann Brlck '75
Barbara Bryont
RIchard Buxbaum '.53
Cenlrallegal de la ROla
26
Professor Angelo Harris
Honorable Theiton E. Henderson '62
Professor Herma Hill Kay
Professor Rachel Moran
Congresswoman Eleanor Holmes Norton
Stoller Design Group
Professor Eleanor Swift
Professor Stephanie Wildman
Donna Brorby '77
Melssa Brown
MIgueiCeja
Shaana Rahman
Judith Rosenberg '79
Qutnton Cullp
Paltl Dacey '83
Duane Dejole 'SO
Adrianne De Castro '05
Cynthia Dortman '79
Russ Elis
Jacquellne Elvln
Marrllt D. Farren 'SS
Rebecca famngton '97
Daniel Felnberg '88
Elen Garber '87
Stephen Gimber '75
Marc-Tizoc Gonzalez '05
Thomas Grey
Tlmathy Griffiths '04
VemonGrjgg
Amy Hague
A ngala HanIs
Robert Harris '72
Henry Hechl
Council
Frederick Hertz '81
Joan Holnger
Donald R. Hopklns '65
Sarah Hosldnson '07
Carol Kennerley
A.J. I(ltchlns
Albert Kulchlns '81
Joel Perlsleln 'SO
Publc Advocales
David Rosenfeld '73
MorIln Sabel!
Thomas Saeoz
GaH Sallerman '78
Dara Sch ur '79
c
Jeff Salbln
Anne Shaver '07
Jule Shearar
Cassle Sprlnger-Sullvan
frien Stelnbach '99
Karen Stevenson 'SO
James C. Sturdevant
Stephen Sugarman
Michael Traynor
Walker, Hamilton 8. Koenlg
C.,Iord Weingus 'SO
Dana Welch '87
$25Q - $5()()
Randy Milden
Heather Minner '07
Phllp C. Monrad '90 8. Molly Sullvan
Eva Paterson '75
Al and Kathieen Colton
Ertca Craven '98
SPECIAL THANKS
Steve Mayer' 74
Mark Alexander
Amy BOBky
Karen Beausev '91
Andrea Biren '75
Janlce Brlckley '79
E. Teague Brlscoe
David Coleman In
francas Davis '.53
Hon. Nancy Davis '72 8. Hon. Donna Hltchens '77
Richard Drury
Alison Ehlert '03 & Chrls Alberding
$5.000 - $!Q,OOQ
Farela, Braun & Mortel
Blngham McCutchen llP
Bruce Golden and MIchele Mercer
Cotchelt. Pilre 8. McCarthy
Rebecca Grey & Chris luomanen
Marcus Cordova '04
H. Lee Halterman '79
DavIdMIlls
Hon. Everelt A. Hewlelt Jr. 8. Clothllde Hewtelt '79
Joyce M. Hlcks '77
Eleanor Swtft & Robert Cola
VISA USA
Carolne Kahn &. Jim Willclns
NaomiKelt)!
$1.000 - $5000
Jennle Klm '05
GreggAdam
Anthony label
Peter Carson '85
Fran Layton '79
Clapper, PaItI. SchwelZer & Mason
Barbara Lawless '72
EquaI Just1ce Society
Elzabeth letcher '89 8. Steve Dobersteln
Mark levlne 8. Irma Herrera
Fanlse Law Arm
Daniel Felnberg '88
Christopher Mandlnl &. MorIln Skea
MellssaMurray
Hon, Brenda F, Harbln-Forte '79
KOlan, McClaln. Abrams, Femandel. Lyons, Green- DanlelOlmos '04
wood. Harley, Oberman Foundat1on Inc.
Monique Olvier
law Students lor Reproduct1ve Justice (National
Becky & MichaelO'Malley
David Oppenheimer 8. Marcy Kates
Officel
le'<NIs, Feinberg, Lee, Renaker 8. Jackson P.C.
Yungsuhn Park '05
Margaret Frampton
Perl Perlmulter '94 & Meghan Starkey
Hon, Henry Ramsey Jr. (re!.1 '63
Verdlca Puli 8. Kevln Kaul
Rosen, Bien 8. Galllan
Bernlda Reagan & James Head
Hon. Cruz '58 ond Ms. Elaine Reynoso
Therese Steworl '81
Paul' 68 & Brenda Reln
Jon Streeter '81
Wllda L. White '83
Sandro Sanlos '01
Steven G. Zleff '78 & flalne Lellner
Elsabeth Semel 8. James Thomson
Elen Wldess '748. Richard Warren
S5OO-$1 QQQ
Barry Wlnograd '7l
Bahan 8. Assoclofas
Gunnar Wolt '01
Katharlne A, Bostick '84
Hon. Edward Chen '79
consumer AffOmeys Publc interas! Foundat1on
DoJan Law finn
Elzabeth Eng 'OS
Gregory M. Fox
Hon. Thellon E. Henderson' 62
Henderson Center for Social Justice AdVisory
Kalhryn Hoover - Alexander '88
Professor
Barbara BabcocK
James Keenley '07
John Burris '73
Deanna Kwong '04
Sonlord & Cathy Rosen
Dean Christopher Edley, Jr.
$10.000 - $25,000
DeGoff '72 8. Sherman Foundatton
Bob & Coleen Hoas
Guy '69 & Jeanine Sapenteln
linda WlIIams
ShIrIey Woo '74
Laura Zuckerman '92
"
Byoung-Rae lee '09
Theresa lee
Stephen Lee 'OS
Nancy leman 'SO
Ronnie Un '07
Frank Martin '04
Aracel Marfinez-Qlguln '04
27
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FOR STUDENTS
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Home » Newsroom » News Archive " 2009 Archive
NEWSROOM
2009 ARCHIVE
News Archive
Two Second-Year Students Tout Human Rights In Copenhagen (12/22/2009)
Berkeley law Foundation Auction Funds Two Minority Fellowships (12/16/2009)
Samuelson Clinie Sues Agencies to Reveal Social Networklng Policies (121l4/2009)
2009 Archlve
2008 Archive
2007 Archive
2006 Archive
Ethan Elkind Outlines California's Options to Tap Renewable Energy (12/9/2009)
2005 Archive
Obama Taps jared Blumenfeld '92 for High-Profile EPA Position (11/24/2009)
News Brrefs
An Additional Comment on Campus Protests and Academic Freedom (11/20/2009)
Samuelson Clinlc Outlines Smart Grid Concerns In FCC Comment (11/17/2009)
Press Releases and Media
Advlsories
Chris Bebenek 'Il Wins Berkeley law Research and Wrltlng Award (11/1 0/2009)
Berkeley law Multimedia
Professor Franklin Zimring Takes Aim at Florida's Attorney General (11/6/2009)
Health Care Study: Public Option Would Generate Savlngs, Benefits (11/4/2009)
ABA Halls MarJorle Shultz '76 As One of America's 50 'legal Rebels' (10/22/2009)
Publications
In The News Ii'
Berkeley law Center Plays Key Role In Produclng Shrlver Report (l 0/19/2009)
Op-Eds
Professor Emeritus and Renowned Scholar Stephen Barnett Dies at 73 (10/16/2009)
Blogs
UC Berkeley's Oliver Williamson Shares Nobel Prize in Economics (l 0/12/2009)
Communications
Aarti KohU Warns That Immigration Enforcement Efforts Are Misgulded (l 0/9/2009)
Boalt Bulletin Board (BBB) I§l
Professors Erie Talley, jonathan Simon '87 Awarded Faculty Chairs (10/7/2009)
New Report Shows Most Americans Dislike Tailored Online Ads (9/30/2009)
Berkeley Empiricai legal Studies to launch New Graduate Fellowship (9/29/2009)
Student Journals
Faculty Experts
jesse Ferrantella 'Il Wins National Writlng Competitlon (9/23/2009)
Samuelson's jason Schultz Helps launch Cyberlaw Cases Blog (9/21/2009)
Warren Institute Report Exposes Racial Proflling in Texas (9/16/2009)
Obama Taps jeff Bleich '89 to Be Top Envoy to Australia (9/15/2009)
The Koret Interactive leamlng Center Brings the World to Boalt Hall and Boalt Hall to the World (9/10/2009)
jennifer Urban and jason Schultz to Co-Direct Samuelson Clinie (9/1 0/2009)
Career Development Office Hlres New Attorney Counselors (9/10/2009)
Another Positive Step for Berkeley law's loan Forgiveness Plan (9/4/2009)
Professionai Skills Program to Become larger Part of Curriculum (9/2/2009)
New Report Halls Berkeley's Public School Dlversity Plan (9/2/2009)
CLEE Targets Increase in Cllmate-Friendly Development (8/28/2009)
Edward Chen '79 Nominated to U.S. District Court in San Francisco (8/26/2009)
The Torture Memos, Professor Yoo, and Aeademic Freedom (8/20/2009)
'legal Planet' Successfully Orblting the Blogosphere (8/19/2009)
Edley Interview Addresses Demands for Yoo's Ouster (8/19/2009)
Cheryl Hicks '83. lowell Carruth '62 Elected to california State Bar Board of Governors (8/1 2/2009)
David Kappos '90 Confirmed as New Director of U.S. Patent and Trademark Office (81l 0/2009)
Flrst Summer lLM. Session Draws Rave ReViews (8/6/2009)
San Francisco Bestows High Honor on Author Doug Oorst '95 (8/6/2009)
Stephen Sugarman Unvells New Tactie to Improve Industry Accountabillty (7/29/2009)
Dean Christopher Edley Tapped to Serve on a University-wide Effort to Secure UC's Future (7/21/2009)
Cynthia Glles '78 Taekles Busy Agenda In High-Ranking EPA Post (7/15/2009)
Paul Mishkin, Longtime Berkeley law Professor and Courts Expert, Dies at 82 (7/ 13/2009)
Mlshkln was an expert on the role of the federal courts and contlnued to teach a federal courts course at
Berkeley law long after his retlrement
Ann O'leary '05 to Play Key Role in Maria Shriver's Women's Project (7/7/2009)
http://www.1aw.berkeley.edu/7327.htm
8/6/2010
,
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EXHIBITT
OFFICE OF THE CIRCUIT EXECUTIVE
UNITED STATES COURTS FOR THE NINTH CIRCUIT
JAMI:S
R.
BROWNING UNITED STArES COURTHOUSE
CATHY A. CATrERSON,
CIRClIlT & COURT OF ApPEAI.S EXECUTIVE
95 SEVENTIl STREET
POST OrFICT: Box 193939
PHONE:
(415) 355-8000
SAN FRANCISCO, CA 94119-3939
October 5, 2009
Christine Chang
341 Tideway Dr. #214
Alameda, CA 9450 l
Re: Complaint of Judicial Misconduct No. 09-90222
Dear Ms. Chang:
We have received the complaint of judiciaI misconduct flled pursuant to 28
U.S.C. § 351(a) against Magistrate Judge Chen. Docket Number 09-90222 has been
assigned to this matter.
Pursuant to the Rules for Judicial-Conduct and Judicial-Disability Proceedings,
a copy of the complaint has been forwarded to Chief Judge Kozinski, Chief Judge
Walker, Chief Magistrate Judge Larson and Magistrate Judge Chen.
Very truly yours,
~{A~
Cathy A. Catterson
CAC/gb
...
..,
Com~int of Judicial Misconduct Agaiost
Magistrate Judge Edward M. Chen
STATEMENT OF FACTS
I, Christine Chang ("Complainant"), file this complaint of judicial misconduct
against Edward M. Chen ("Chen") under the Judicial Conduct and Disability Act, 28
U.S.C. §§ 351-364 (the Act) and the RULES FOR JUDICIAL-CONDUCT AND
JUDICIAL DISABILITY PROCEEDINGS Adopted by the Judicial Conference on
March 11,2008 (the Rules). The complaint is supported by the following facts.
A. Judge Cken's Committed Unethieal Conduct in FaDing to Reeuse
Himself from a Case Where Be had FiaaDeialand Non-fmaneial Ties to tke
Defendants
In August 2007, Complainant and her son filed a civil rights lawsuit against U.C.
Berkeley, several U.C. Berkeley officials and other defendants. The case was assigned
to Chen, with case number C07-4005 BMC (N.D. Cal). See tqe Docket Sheet on
PACER to confirm the list of defendants.
Unknown to Complainant, Chen taught classes in U.C. Berkeley in 2007-2008
for which he received monetary and/or non-monetary compensation, Chen donated
money to U. C. Berkeley School ofLaw in 2007..2008, and bad other associations with
defendants.
Chen should have recused himself from the case. Instead, Chen concealed his
associations with defendants and insisted on presiding over the case, despite Plaintiffs'
request for recusal.
B. Judge Cken Dismissed CODlplainant's Case by a Cateh-ll Sekeme
and Demonstrated Blatant Bias against ComplaiDant and UDabashed
Favoritism towards DefendaDts
Concealing his ties with U.C. Berkeley Defendants, Chen played the Catch..22
trick with Plaintiff-Complainant, depriving Complainant's fair access to the judicial
process and the due process oflaw.
After denying Complainant's motion for default judgment, on November 14,
2007, in the Initial Case Management Scheduling Conference, Chen ordered: "A trial
date has not been set. No forIDal diseovery and DO laitial disclosuns uatil further
order by this eourt." See Docket Entry No. 80 for Chen's order.
Federal Rules of Civil Procedure require that Initial disclosures to be made
befon the Initial Case Management Conference. See FRCP 26(a) (1) (C) and 26(f).
Page l of3
Complaint of Judicial Misconduct Against
Chen not only exonerated Defendants' failure to produce initial disclosure, but also
ordered Defendants not to produce it. Chen al80 prohibited Plaintiff-Complainant to
conduct discovery for the prosecution of her claims.
Three months later, on February 13,2008, Judge Chen granted defendant's
motion for summary judgment, without pennitting plaintitfto conduct discovery.
Chen'sjudgment Order ridiculed plaintiff's claims as "patently faneiful and
insubstantial", as well as ''fantastie or delusional", based on his allegation of lack of
evidence. See Docket No. 110 for Chen's order dismissing Complainant's claims.
Forbidding Complainant to conduct discovery, then dismissing CompJainant's
case for lack ofevidence, sueh was Chen's naked Catch-22 scheme. But Chen went
further in
defending defendant U.C. Berkeley-with which he had financial ties, he added insult
to injury by ridiculing the Complainant - who was disabled due to the physical assault
by Defendants.
c. Edward M. CheD Committed Fraud before the U.S. CODgress
On page 41 of Judge Edward Milton Chen's Answer to the Questionnaire For
Judicial Nominees regarding his recusal practice, he submitted to the U.S. Senate about
the Chang case:
3/31/08; C07-4005 EMC; Chang v. Rockridge Manor Condo. The
pro se plaintiff filed a motion for recusal after I issued a substantive
ruling against her. I denied the request because the plaintiff was
claiming bias based solely on an adverse ruling I had issued. She did
not substantiate any elaim of extrajudieial bias.
As shown on the Chang ease Docket Sheet (Please see it on PACER), University
ofCalifomia at Berkeley, U. C. Berkeley Chancellor Robert Birgeneau, U. C. Berkeley
General Counsel Susan Von Seeburg were named defendants in the Chang v. Rockridge
case, represented by U. C. Berkeley graduate Gaylynn Kim Conant.
Judge Chen is alumnus ofU. C. Berkeley and U. C. Berkeley School ofLaw. He
lectured at defendant school in 2007-2008, donated money to the defendant in 20072008 and had other ties to the defendant.
In a similar case, when a Judge was alumnus of defendant school, the Court of
Appeal ordered evidentiary hearings to ascertain the judge's "associations and
affiliations with the Law School". Easley v. University ofMichigan Board ofRegents,
853 F.2d 1351 (6th Cir. 1988); see al8O, Liljebergv. Health Svea. Aequisition Corp.,
486 US. 847 (1988) (vacatingjudgment where trialjudge had ties to defendant school).
Page2of3
,..
"
'"
.~
.
com:t.mt of Judicial MiscOnd:!t Against
Chen concealed from the U.S. Congress the fact that the case ineluded the U. C.
Berkeley Defendants with which he bad elose associations. Chen knew the relevant
facts, yet he concealed the relevant facts. This concealment is intended to induce the
U.S. Congress to believe that he is an impartial judge worthy of lifetime appointment.
This is fraud by definition.
CONCLUSION
Based on the undisputable facts above, Edward M. Chen was biased, dishonest,
scheming and lack the sense of justice required for a judge, his conduct damages the
reputation of the courts and is prejudiciai to the effective and expeditious administration
of the business of the courts.
Complainant requests that the Judicial Council investigate Chen's misconduct
and discipline him in accordance of the Act and the Rules.
Dated:
September 25,2009
Respectfully Submitted,
Christine Chang
Page 3 of3

Motion for Recusal of Judge Edward Chen - American

Transcription

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