In re Chapter 11
V&M MANAGEMENT, INC., Case No. 96-10123-CJK
MOVANT ALPHONSE MOURAD, as a party-in-interest in cause number 96-10123, moves the Honorable Carol Kenner pursuant to 28 U.S.C. Section 455 (a) and (b) for an order recusing herself from further proceedings in this matter on the grounds that the impartiality of the Honorable Judge Kenner with regard to movant Mourad might reasonably be questioned in this matter, and that the movant believes that the Honorable Judge Kenner is biased and prejudiced toward him; that on November 16, 1998, Judge Kenner entered an ex parte injunction against movant barring him from entering the Eleventh Floor of the court building; that on May 12, 1999, when he went to the court building to inquire about the status of this bankruptcy proceeding, Judge Kenner caused him to be arrested; that movant was subsequently convicted of a federal criminal offense arising out of this arrest; that Judge Kenner knew or should have known that the issuance of the ex parte permanent injunction against the movant violated his constitutional rights and was contrary to the Rules of Civil Procedure, yet Judge Kenner proceeded regardless, thereby exhibiting her bias and prejudice toward him; and on the further ground that when sentenced, movant fully intends to seek an appeal of this matter in which he intends to call Judge Kenner as the main witness in any subsequent criminal proceedings relating to his arrest, all of which is fully set forth in the attached memorandum of points and authorities and exhibits thereto.
A. Factual Background
On November 16, 1998, Judge Kenner Ordered that Mourad be barred from entering the Eleventh Floor of the O'Neil Building based upon Mourad's alleged "attempts to disrupt Court business by vowing not to leave the premises of the Bankruptcy Court and courtrooms." See Order attached as Exhibit "A."
On March 31, 1999, more than four months after Judge Kenner barred Mourad from the 11th floor of the Tip O'neil Building, Mourad had filed a malpractice and conspiracy lawsuit against the law firm Hanify & King and Stephen S. Gray in the Suffolk Superior Court, C.A. No. 99-1470C, in which Judge Diane M. Kottymyer had been chosen to preside over the case.
Hanify & King and attorney's Harold Murphy and Donald Farrell unjustly refused to accept service of the State Court Complaint served to them by the Suffolk County Deputy Sheriff, at their One Federal Street, Boston office.
Judge Kottymyer allowed Mourad's Motion, and Ordered the Defendants to appear on May 11, 1999, at 2:30 PM, at the Suffolk Courthouse, Room 227, to hear argument on said Motion.
During this hearing, D. Ethan Jeffery, attorney for Hanify & King, Murphy and Farrell, told Judge Kottymyer that the case had been transferred to the Bankruptcy Court, and that she no longer had jurisdiction to hear the case. This was to Judge Kottymyer's surprise. Judge Kottymyer Ordered the Defendants to accept service.
Judge Kottymyer advised Mourad to go to the Bankruptcy Court (11th floor of the Tip O'Neil Building) to inquire about the transfer of the case.
Mourad was then arrested for simply following the advice of Judge Kottymyer, to go to the Bankruptcy Court's Clerk's Office to inquire about the transferred State Court action, and to see whether it was docketed.
Mourad initially tried to call the Clerk's Office but got no response. So Mourad would not appear at the Clerk's Office unannounced, the night before, he (Mourad) notified the FBI that he had no choice but to go the Clerk's Office to inquire about the status of his case that was transferred to the Bankruptcy Court, and that he (Mourad) meant no harm to Judge Kenner.
The FBI then notified U.S. Marshall Stephen M. Donaher to meet Mourad at the Bankruptcy Court and assist him in seeking access to the Clerk's Office. When Mourad arrived, and walked through the metal detectors, U.S. Marshall Donaher was awaiting him. Donaher escorted Mourad to a private room, so Mourad could wait while Donaher spoke with Judge Kenner privately about the matter. Donaher spoke with Judge Kenner for over a half hour, trying to convince her to allow Mourad to inquire about his case. Mourad came nowhere near Judge Kenner or her Courtroom.
Marshall Donaher was forced, by Judge Kenner, to arrest Mourad for contempt of court for violating an invalid Court Order that has no legal or constitutional basis, especially after the bankruptcy case was dismissed, and is a deprivation of Mourad's civil right of access to the Courts.
As a result of Judge Kenner's Order barring Mourad from the 11th floor of the Tip O'Neil building, Mourad has been arrested, tried, and convicted, and is currently awaiting sentencing in which Mourad could possibly face up to six months in prison. A copy of Defendant's Motion For Judgment of Acquittal, drafted by Mourad's previous attorney, Martin Richey, is attached as Exhibit "B." Defendant Alphonse Mourad's Motion Requesting An Order Directing Issuance of Subpoenas and Service without cost to the Defendant....and that Subpoenas Be Served to Chief Bankruptcy Judge Carol J. Kenner, Her Clerk Mary E. Murphy, and Deputy U.S. Marshal, Stephen M. Donaher is attached as Exhibit "C."
Furthermore, Attorney Paul Kelley, of the law firm Kelley, Libbyland & Hoopes, has recently been appointed by the Criminal Court to represent the movant.
B. The Motion for Recusal is Timely
The movant took timely appeals of this court's orders concerning the denial of his Motion to Allow Administrative Claim Late. On April 12, 2000, the Bankruptcy Appellate Panel issued a judgment reversing portions of this court's rulings, and issued its mandate on May 15, 2000. This court issued a Procedural Order on June 14, 2000 establishing certain threshold responsibilities which were to be completed by the Trustee by July 19, 2000. Until this court re-assumed jurisdiction of these matters, any motion for recusal would have been moot.
In addition, the movant has not yet been sentenced in his criminal proceeding. The movant has filed a motion for a new trial as a pro se litigant, See Exhibit "D." That motion had been denied. After the Movant is sentenced, he will appeal the entire case, and intends to call Judge Kenner as the main witness. Even though movant has been convicted, the criminal proceeding has not yet reached finality, and the matter of Judge Kenner appearing as a witness is not moot.
C. The Ex Parte Permanent Injunction Issued in this Case Requires that Judge Kenner Recuse Herself.
1. General Principles of Recusal
A bankruptcy court judge may be recused under the provisions of 28 U.S.C. Section 455. In Liteky v. United States, 510 U.S. 539, 114 S.Ct. 1147 (1994), the Supreme Court examined the meaning of Section 455, and attempted to draw some general principles concerning the sources and degree of bias and prejudice necessary to require recusal. The Court rejected the "extrajudicial source"doctrine as a hard and fast rule, instead noting that the fact that an opinion of a judge concerning a party derives from a source outside the proceeding is neither a necessary nor a sufficient condition for a finding a bias and prejudice (id, 114 S.Ct., at 1157). The Court attempted to show what the parameters of Section 455 were by illustrating what they were not. First, judicial rulings alone almost never constitute a valid basis for recusal (id., 114 S.Ct., at 1157).
Second, opinions formed by the judge on the basis of facts or events in the proceeding itself do not form a basis for recusal "unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." (Id., 114 S.Ct., at 1157) "A judge's ordinary efforts at courtroom administration--even a stern and short-tempered judge's ordinary efforts at courtroom administration--remain immune. (Id., 114 S.Ct., at 1157). In order to support a claim of bias and prejudice sufficient to warrant recusal, the judge's opinion must have (1) relied upon knowledge acquired outside the proceeding, or (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible (id., 114 S.Ct., at 1158).
The standard to which the judge's opinions are to be compared is:
whether the charge of lack of impartiality is grounded on facts that would
create a reasonable doubt concerning the judge's impartiality, not in the mind
the judge himself or even necessarily in the mind of the litigant filing under
U.S.C. Sec. 455, but rather in the mind of the reasonable man [person].
Re Sylver, 214 B.R. 422, 427 (1 Cir, BAP, 1997), quoting United States v.
Cowden, 545 F.2d 257, 265 (1 Cir., 1976).
In Sylver, although the exchange between the court and the attorney was "adversarial," and the court made comments concerning sanctions, none of the court's actions arose from sources outside the judicial proceeding, nor did they show sufficient bias or prejudice to warrant appellate intervention (id., at 427-428).
In essence, section 445(a) allows a judge to disqualify himself if a reasonable person would have factual grounds to doubt the impartiality of the court. Blizard v. Frechette, 601 F.2d 1217, 1220 (1 Cir.., 1979), cited in In Re Sylver, supra, at 427. The question of impartiality is to be decided by the judge in the first instance, but the parties may raise the issue by motion or affidavit. In Re Diaz, 182 BR 654 (D. Puerto Rico, 1995).
2. Judge Kenner's Ex Parte Permanent Injunction Barring Movant From the Eleventh Floor of the Courthouse Violated the Constitution of the United States.
The movant recognizes that the bankruptcy court, like the district court, has inherent powers to make sua sponte orders to regulate its affairs and prevent an abuse of process. 11 U.S.C. Section 105(a). That being said, the power of the court to exclude the public, particularly a non-Article Three court, is strictly limited by the Constitution of the United States, and in this case, the broad and sweeping ex parte permanent injunction violated constitutional provisions. In fact, the situation of a litigant being physically barred from a court building is so unusual that virtually no recent cases exist on the subject, so that the constitutional basis of the movant's claim must be drawn primarily from injunctions entered against frivolous and repetitive litigants and prisoners.
In Simmons v. Dickhaut, 804 F.2d 182, 183 (1 Cir, 1986), the constitutional basis for access to the courts was fully explored in the context of a prisoner action under Section 1983:
We address first the nature of the right of the right of access and whether
its violation can be redressed under Section 1983. The right of access is
a discrete, constitutional right, derived from various constitutional sources. It
springs in part from Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986,
412 L.Ed. 2d 935 (1974); the privileges and immunities clause, Chambers v.
Baltimore and Ohio Railroad, 207 U.S. 142, 148, 28 S.Ct. 34, 35, 52 L.Ed. 2d
143 (1907); and the First Amendment, California Motor Transport Company
v. Trucking Unlimited, 404 U.S. 508, 513, 982 S.Ct. 609, 613, 30 L.Ed. 2d
642 (1972). See generally, Ryland v. Shapiro, 708 F.2d 967, 971-72 (5 Cir, 1983).
The right of access is fundamental. Bounds v. Smith, 430 U.S. 817, 823, 97 S.
Ct. 1491, 1498, 52 L.Ed.2d 72 (1977).
It follows logically that the allegation of intentional violation of the right of access to the courts states a cause of action under Section 1983. [citations omitted].
This ruling, made some thirteen years prior to the permanent injunction at issue here, clearly states the constitutional principles underlying the right to access, and further, leads to the conclusion that but for the fact that order which led the Mr. Mourad's arrest was entered by a federal judge cloaked in judicial immunity, the order would have stated a colorable claim under Section 1983.
In a series of cases, the Court of Appeals began to shape the constitutional limits on the court's authority to enter orders restricting access to the courts. In Pavilonis v. King, 626 F.2d 1075 (1 Cir., 1980), Pavalonis had begun six separate lawsuits against various government officials which failed to state any recognizable action or claim for relief (id., at 1077). The magistrate entered a recommendation that she be restricted from filing new actions without permission of a district judge (id., at 1077). The district judge adopted the recommendations, and directed the clerk not to accept any new filings that were submitted without such permission (id., at 1077). In upholding the district court's order, the Court of Appeals held that where the litigant files "multiple, impenetrable complaints" (id., at 1079), the district court may enter an order requiring that the district court judge be satisfied that a pleading is sufficiently plain and definite to satisfy Rule 8 and that the pleading requires a response (id, at 1079). In other words, a district court cannot enter a sweeping order simply refusing to accept any and all future pleadings, which would be analogous to the order in the present case. In the present case, Mr. Mourad was permanently barred from the Eleventh Floor of the O'Neill Building except for one specific hearing on one specific. The order in Pavilonis was not nearly so restrictive, for, as the Court of Appeals noted, the district court's order did not entirely bar access to the court, but made such access subject to some minimal standard of review (id., at 1078). The court concluded by cautioning future courts, at 1079:
Although upholding the district court in this instance, we emphasize that
litigiousness alone will not support an injunction against a plaintiff, and that the
use of such measures against a pro se plaintiff should be approached with particular
caution. Generally, this kind of order should not be considered absent a
request by the harassed defendants. We expect that injunctions against litigants
will remain very much the exception to the general rule of free access to the courts.
[citations omitted].
In other words, simply being a nuisance is not enough to bar access to the courts. Pro se plaintiffs should be given more leeway than a lawyer might be given. If the defendants aren't complaining, then the court should not enter restriction orders sua sponte. Injunctions of this nature are frowned upon.
In Sires v. Gabriel, 748 F.2d 49, 52 (1 Cir., 1984), the Court of Appeals further refined the limitations placed on the district court before it could restrict access. A district court injunction cannot stand without findings that the excluded litigation efforts in some way abused the judicial process or harassed the defendants. In other words, there must be some specific finding on the record, and not just a recitation of some events (such as a list of multiple cases, id., at 51), that the subject of the injunction actually impaired the functioning of the court system.
In the instant case, the face of the order doesn't show that movant Alphonse Mourad actually disrupted any court proceedings, the order merely says that he "vow[ed] he would not leave" on November 5 and November 13, 1998. Apparently, despite his avowals, Mr. Mourad did leave, since the order was not entered until November 16, 1998, and there is no indication in the order that he was arrested on either of the prior two days for refusing to leave. Second, the face of the motions listed in the court's order of November 18, 1998, stripped of the excess verbiage, simply request that the court rule on six motions filed by Mr. Mourad which had been pending since January, 1998. This request that the court rule on motions that had been on its calendar for ten months does not appear to be unreasonable. Responding to this request for some kind of closure by barring the movant for the Eleventh Floor rather than simply ruling on the motions is not an approach taken "with particular caution." Third, there was no indication on the face of the order that any of the defendants/ creditors/ parties to the action complained to the court or felt harassed.
In Cok v. Family Court of Rhode Island, 985 F.2d 32 (1 Cir, 1993), the Court of Appeals was faced with a district court order which enjoined the plaintiff from removing any matters from the Rhode Island Family Court pro se, and which enjoined the plaintiff from commencing any actions in the district court pro se without prior approval of a judge (id., at 35). This "injunction of unlimited breadth" (id., at 36), could not be sustained, and was vacated by the Court (id., at 36).
In the instant case, the injunction was one of unlimited breadth. This court may take judicial notice that the Eleventh Floor contains not only bankruptcy courtrooms, but the Office of the Trustee, the Office of the Bankruptcy Clerk, and other administrative offices associated with bankruptcy actions. The movant was at the time in the midst of a contested bankruptcy matter which was depriving him of fifteen years of investment worth in excess of a million dollars. An order barring even the most litigious claimants from physical access to the courthouse for the purpose of depositing papers with the clerk is "impermissively restrictive of the right of access" and violates the Constitution. Copeland v. Green, 949 F.2d 390, 391 (11 Cir., 1991). This court knew or should have known at least the parameters of the controlling law in the First Circuit concerning the scope of injunctions that infringed on the constitutional right of access to the courts. In depriving the movant of access to all the ancillary supportive facilities available to any other member of the public, this court displayed an animosity and bias toward the movant that now requires that the court recuse itself from further consideration of this matter.
3. Judge Kenner Ignored Clearly Established Procedures Intended to
Protect Movant's Rights Before a Permanent Injunction Could Issue.
a. The Issuance of the Ex parte Permanent Injunction Violated the
Provisions of Rule 65, Rules of Civil Procedure.
Rule 65, Rules of Civil Procedure, establishes the procedure for the issuance of temporary restraining orders, preliminary injunctions, and permanent injunctions. Assuming, arguendo, the trial court judge was faced with a situation of "immediate and irreparable injury, loss, or damage," then the issuance of an ex parte order would have been appropriate. However, such order could only last for ten days, had to be endorsed with the hour and date of issuance, had to define the injury and state why it was irreparable, and state why the order was granted without notice. Further, Rule 65(b) requires that if a temporary restraining order is issued without notice, "the motion for a preliminary injunction shall be set down for hearing at the earliest possible time." In the instant case, the trial court failed to comply with any of the requirements of Rule 65(b), requirements she was presumably fully aware of.
However, if the order were construed as one for a preliminary injunction, then there was no compliance with the requirements of Rule 65(a)(1), which mandates that no preliminary injunction shall be issued without notice to the adverse party, in this case, Mr. Mourad. The issuance of an ex parte order in the nature of a preliminary or permanent injunction simply violates the Rule, and is a legal nullity.
b. The Issuance of the Ex Parte Permanent Injunction Violated
Principles Well-established in the First Circuit.
Even if one were to take the position that when a court is in the exercise of its general supervisory authority, the Rules of Civil Procedure do not apply, the case law of the First Circuit clearly establishes the procedure which must be followed. Cok v. Family Court of Rhode Island, supra, at 35-36.
First, the party against whom an order is going to be issued must be given some kind of notice, formal or informal, that an order may be forthcoming. The notice may be in the form of a proposed order that is sent to the adverse party; or show cause orders why an order limiting access should not issue; or cautionary orders entered on the record that restrictive orders may be forthcoming if the behavior continues (id., at 35). The party affected should be given an opportunity to oppose the order before it becomes effective (id., at 35).
Second, the record demonstrating that such a sweeping order is appropriate and necessary must be fully developed. The issuing court needs to identify specific actions or events that led to the ban, and in particular, specifications of the abuses of the judicial process which caused the imposition of the injunction (id., at 35). The record must show that the abuse is so continuous and widespread as to suggest no reasonable alternative (id., at 36).
Third, the order must be narrowly drawn to counter the specific offending conduct (id., at 36). A broad, general declaration of denial of access must be based upon a record "showing such widespread abuse of the judicial system as to warrant such broadcast prohibition." (id, at 36).
These concepts were not, in November, 1998, new law, nor were they particularly different from general principles governing issuance of injunctions. Nonetheless, every principle was violated by the trial court's order. It was ex parte, and became a permanent injunction with no opportunity for a hearing until the movant was actually arrested for allegedly violating the order. Second, as has been discussed, there was no record showing that Mr. Mourad had done anything other than tell the court what he might do in the future if she did not rule on his motions which had been pending for ten months. Third, it swept Mr. Mourad clear of the entire Eleventh Floor, with all its ancillary administrative offices, despite the fact that his "avowal" only related to the trial court's particular courtroom.
The ultimate question, as expressed in In Re Sylver, supra, is whether a reasonable person, viewing the judge's actions in this case, could find that the consistent violation of common-law, statutory, and constitutional requirements was anything other than the expression of a bias and prejudice against Mr. Mourad that was so strong as to warrant recusal. Unfortunately, the answer must be "No," and recusal in this matter on these grounds is not only warranted, it is required.
D. Judge Kenner Must Recuse Herself as a Potential Witness in the Movant's Criminal Proceeding.
It is a well-established principle of the law that all persons are considered to be competent to give testimony unless there is some particular rule excluding such person. Rule 601, 602, Rules of Evidence. In the case of a judge, the general rule applies except that a judge is prohibited from appearing as a witness in a case over which he or she presides. Rule 605, Rules of Evidence. The cases ruling upon the duty of a judge to appear as a witness have made a distinction between a judge being called to testify concerning the mental processes that led to a particular decision, and a judge being called to testify concerning observable facts, events and occurrences. United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed 1429 (1940); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L.Ed.2d 136 (1971). In Morgan, the Supreme Court held that a judge stood in a adjudicatory position parallel to that of a decision-making administrative officer, and that a testimonial examination of the mental processes of a judge in making an adjudicative decision would be destructive of judicial responsibility, and would not be permitted. Morgan, supra, 313 U.S at 422, 61 S.Ct., at 999; Gary v. Louisiana, 861 F.2d 1366, 1368-1369 (5 Cir., 1988). See the analysis of these cases presented in United States v. Dowdy, 440 F.Supp. 894, 896-897 (W.D. Va., 1977).
In the instant situation however, this line of cases is irrelevant, because the movant, should he have the opportunity, seeks to call Judge Kenner as a material witness as to matters that led to his arrest, not as to her mental process in making the order of exclusion. In particular, he will call her to testify concerning the conversations that took place among her, the courthouse security personnel, and her office staff prior to his being arrested. Several of these people have already testified, and Judge Kenner would be called both as a direct and an impeachment witness. When Judge Kenner ordered that Mr. Mourad be arrested, she was not acting as a judicial officer, but rather as a law enforcement officer, and her testimony about those events stands on the same footing as any FBI, DEA or other federal law enforcement agent. Doubtless, if called, Judge Kenner will be declared an adverse party to the movant, and a request will be made that his counsel be permitted to cross-examine her, and perhaps compel her to testify against the Deputy Marshal or other courthouse security personnel, or even her own clerk.
Once again, a return to general principles of recusal shows that given the likelihood that Judge Kenner will be called as a witness, she should recuse herself in anticipation of this event occurring, before the new phase of the cases now pending before her are so advanced that she will find it difficult to withdraw without prejudicing the interests of the parties. In this case, the request for recusal is anticipatory, but well-founded. It is not a pleasant experience to be called as a witness, and it is especially unpleasant when one may be compelled to testify against associates. Could a reasonable person, seeing a judge being placed in this position, say that the judge could return to preside over a matter involving Mr. Mourad with equanimity and impartiality? The reasonable person would be hard pressed to answer that question in the affirmative. Although being called as a witness would not per se require a finding of bias and prejudice, the statues and principles governing recusal are as concerned with the appearance of impartiality as much as they are with the fact of impartiality, and in this case, given the potential
that Judge Kenner might be called as a witness, an early resolution of potential bias is the fairest resolution to all the parties.
E. Conclusion
For these reasons, Judge Kenner should recuse herself from further consideration of these two matters, and assign this case to another judge in the bankruptcy court.
Alphonse Mourad
125 West Street
Hyde Park, MA 02136
June 30, 2000 (617) 361-2793

I, Alphonse Mourad, hereby certify that I have served, by first class mail, the following parties my Motion For Recusal on this 30th day of June, 2000:
Paul D. Moore, Esq.,
Daniel Troyka,
Andrew Griesinger
Attorneys for Defendant Stephen S. Gray
Duane, Morris & Heckscher, LLP
One International Place, 14th Floor
Boston, MA 02110-2600
(617) 598-3100
Ethan Jeffrey, Esq.
Attorney for Defendants,
Harold Murphy,Esq., and
Donald Farrel, Esq.
Hanify & King
One Federal Street
Boston, MA 02110
(617) 423-0400

Cc: Attorney Paul Kelley (Mourad's Public Defender)
Eric Bradford, U.S. Trustee's Office Alphonse Mourad