farraj v. cunningham
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No. 14-55091
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________
Ayman Farraj,
Plaintiffs – Appellants,
v.
David Cunningham et al.,
Defendants - Appellees.
________________________
On Appeal from the United States District Court
for the Central District of California
No. 2:13-CV-06107-CAS-MRW (Honorable Christina A. Snyder)
AMICUS BRIEF OF THE
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE
IN SUPPORT OF APPELLANT AYMAN FARRAJ, AND
IN SUPPORT OF REVERSAL OF THE DISTRICT COURT’S DECISION
YOLANDA C. RONDON
STAFF ATTORNEY
AMERICAN-ARAB
ANTI-DISCRIMINATION COMMITTEE
1990 M Street NW, Suite 610
Washington, DC 20036
Telephone: (202) 644-9165
Facsimile: (202) 333-3980
Email: yrondon@adc.org
Attorney for Amici Curiae
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INTRODUCTION AND INTEREST OF AMICI CURIAE1
The American-Arab Anti-Discrimination Committee (“ADC”) is a nonprofit
grassroots civil rights organization that seeks to preserve and defend the rights of
those who Constitutional and federal rights are violated in the United States
(“U.S.”). Founded in 1980 by U.S. Senator James Abourezk, ADC is non-
secretarian and non-partisan, with members from all 50 states and chapters
nationwide. ADC has protected the Arab-American community for over thirty
years against discrimination, racism, and stereotyping, and vigorously advocates
on behalf of civil rights for all.
ADC’s interest in this Case arises from the infringement on Appellant
Ayman Farraj’s fundamental right to Due Process and Equal Protection under the
Fourteenth Amendment, and independent parental rights, by anti-Arab and/or anti-
Muslim discriminatory motivated therapist reports, evaluations, and/or
recommendations which aided, and were used, permitted, endorsed and/or relied
upon in a court proceeding. Farraj v. Cunningham et al., CV13-6107 (C.D. Cal.
2013).
1 No counsel for a party authored this brief in whole or in part, and no such counsel
or party made a monetary contribution intended to fund the preparation or
submission of this brief. No person other than the amici curiae or their counsel
made a monetary contribution to its preparation or submission of this brief. This
amici curiae is filed with the Motion for Leave to File pursuant to FRAP § 29(b).
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The rights of the ADC’s constituents will be fundamentally affected by the
Court’s determination of whether federal jurisdiction can be exercised to review
claims of violations of Equal Protection and Due Process under the Fourteenth
Amendment from a family court proceeding. ADC has received increasing number
of complaints in recent years, of anti-Arab and anti-Muslim discrimination and/or
bias in family court proceedings and decisions by judges, therapists, and court
officers.
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STATEMENT
Bias and discriminatory motivated actions taken by family court judges and
therapists against Arab and Muslim American parents is a reoccurring issue across
the U.S. Arab and Muslim American parents are victims, with no efficient recourse
within the family and state courts, and state judicial commissions to protect,
defend, and/or restore their parental rights.
The amici purpose is to provide support for this Court to exercise
jurisdiction to address racial, ethnic, national origin, and religious bias in the
Appellants’ case and issue declaratory judgment in favor of Appellant based on
denial of Equal Protection and Due Process under the Fourteenth Amendment.
First, the amici argues that Rooker Feldman Doctrine does not bar federal
court jurisdiction over the Appellants’ claim because the Appellant claims
violations of fundamental rights independent of the family court proceeding; and
the Defendants’ actions and/or failure to act is the source of the injury. Second, the
amici argues that this Court must exercise jurisdiction to address racial, ethnic,
national origin, and religious discrimination and/or bias in family court
proceedings that infringe on protected rights.
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ARGUMENT
I. THE ROOKER FELDMAN DOCTRINE DOES NOT BAR
FEDERAL COURT JURISDICTION OVER THE APPELLANT’S
CLAIM BECAUSE THE APPELLANT CLAIMS VIOLATION OF
INDEPENDENT FUNDAMENTAL RIGHTS AND THE
DEFENDANTS’ ACTIONS AND/OR FAILURE TO ACT IS THE
SOURCE OF THE INJURY.
The Rooker Feldman Doctrine (“Rooker Feldman”)2 is narrowly construed
and “applies only in limited circumstances.”3 Rooker Feldman does not bar federal
court jurisdiction over claims of Constitutional violations that arise independent of
the state court proceeding. 4
2 Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); District of Columbia
Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983). Rooker-Feldman bars
federal jurisdiction by district courts over final judgments of a state court, “cases
brought by state-court losers complaints of injuries caused by state-court
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005). Courts must be cautious in relying on the pre-Exxon Mobil formulation’s
focus on state and federal suits “inextricably intertwined” to expand application.
Id.; McCormick v. Braverman, 451 F.3d 382, 393–95 (6th Cir. 2006); Gary v.
Braddock Cemetery, 517 F. 3d 195, 200 n. 5 (3d Cir. 2008); Noel v. Hall, 341 F.
3d 1148, 1164 (9th Cir. 2003). 3 Lance v. Dennis, 546 U.S. 459, 464–66, (2006); Coles v. Granville, 448 F. 3d 853
(6th Cir. 2006). 4 Holloway v. Brush, 220 F. 3d 767 (6th Cir. 2000); Ernst v. Child & Youth Servs.,
108 F. 3d 486 (3d Cir. 1997); Brokaw v. Weaver, 305 F. 3d 660, 665–68 (7th Cir.
2002); see e.g., Todd v. Weltman, Weinberg, & Reis Co., L.P.A., 434 F. 3d 432,
436–37 (6th Cir. 2006) (Rooker Feldman did not bar because independent federal
claim that injured by the defendant’s filing of a false affidavit); see e.g., Boyko v.
Parkview Hosp., Inc., 2012 U.S. Dist. LEXIS 114384, *1–2, 12–16 (N. Dist. Ind.
2012) (Rooker Feldman did not bar because independent claim that the improper
actions, fabricated evidence in court report to have child removed, by State denied
Appellant’s Constitutional rights); Pittman v. Cuyahoga Cnty. Dep’t of Children
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The Appellant is claiming that his Fourteenth Amendment rights were
violated, his independent right to Due Process and Equal Protection, by the
submission, use, endorsement, and/or permissibility of racial, ethnic, national
origin, and/or religious discriminatory and/or bias therapist reports and
recommendations.5
This conduct was committed by the Defendants before any
family court order and/or decision was made. Furthermore, federal courts have
exercised jurisdiction and/or intervened into state proceedings where independent
fundamental rights were at stake.6
In Holloway v. Brush, the Sixth Circuit recognized that the appellants claim
that certain actions in the course of a custody proceeding violated her
Constitutional rights was a distinct question not barred by Rooker Feldman.7 The
Third Circuit held in Ernst v. Child & Youth Servs., that Rooker Feldman did not
bar federal jurisdiction where the Appellant claimed the defendants violated
Appellant’s substantive due process rights by making biased recommendations to
and Fam. Servs., 241 F. App’x 285 (6th Cir. 2007); Kovacic v. Cuyahoga Cnty.
Dep’t of Children & Family Servs., 606 F. 3d 301, 309–11 (6th Cir. 2010). 5 Id. at 161, 167; Exxon Mobil, supra note 2, at 284.
6 See e.g., Wind River Res., LLC v. Guenther, 2010 U.S. Dist. LEXIS 19104 (Dist.
C. AZ. 2010) (claiming denial of due process and equal protection under 42 U.S.C.
§ 1983). 7 Holloway, supra note 4, at 778–79.
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the state court, resulting in an improper ruling.8 Ernst, involved a child custody
proceeding where the Appellant sued the child welfare department and case
workers under 42 U.S.C. § 1983.9 The Third Circuit reasoned that a ruling in favor
of the Appellant would not mandate a finding that the state court erred in making a
judgment based on those recommendations.10
Rooker Feldman also does not apply where the “federal suit is independent,
even if it asks the federal court to deny a legal conclusion reached by the state
court,” as long as the defendant’s actions are the source of the injury, not the state
court judgment.11
Simply, because the Appellant’s federal claims could show the
state court judgment was erroneous, does not make Rooker Feldman automatically
applicable.12
In Lahey v. Contra Costa County Dep't of Children & Family Servs.,
the district court denied summary judgment under Rooker Feldman where claim
alleged defendants conspired to deprive plaintiff of him due process, stemming
8 Ernst, supra note 4, at 491–92. No bar of federal jurisdiction but the appellees
had absolute immunity. Id. at 493-504. 9 Id. at 488–89.
10 Id. at 491–92.
11 Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F. 3d 159,
167 (3rd Cir. 2010); Hoblock v. Albany Cnty. Bd. of Elections, 422 F. 3d 77, 87–88
(2d Cir. 2005); GASH Assoc. v. Village of Rosemont, 995 F. 2d 727, 728 (7th Cir.
1993). 12
Long v. Shorebank Development Corp., 182 F. 3d 548, 555–56 (7th Cir. 1999);
Brokaw, supra note 4, at 666.
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from a child custody dispute. 13
The district court made sure to note that the
plaintiffs sought to “attack the circumstances that led to the state court's
unfavorable [custody] decision rather than to appeal the state court decision
itself.”14
Even if Appellant’s claims are not independent of the state court
proceedings, Rooker Feldman can only apply where the plaintiff had a reasonable
opportunity to raise his federal claim in a state proceeding.15
Here, the Appellant is
asserting an independent Constitutional right16
not litigated nor decided by the state
court.17
The Appellant did not have a reasonable opportunity to present his
Constitutional claims in the child custody proceeding.18
Additionally, child
custody proceedings only allow the court to make custody decisions based on the
best interests of the child, not on any determination of Appellant’s claims of racial,
national origin, and/or religious bias.19
Thus, Rooker Feldman does not bar the
13
Lahey v. Contra Costa County Dep't of Children & Family Servs., 2004 U.S.
Dist. LEXIS 18292, at *54 (N.D. Cal. 2004) (summary judgment granted on other
grounds). 14
Id. at *28. 15
Long, supra note 12, at 558–59; Brokaw, supra note 4, at 668; Ernst, supra note
10, at 492. 16
Great Western Mining, supra note 11, at 167. 17
Ernst, supra note 4, at 492. 18
Mentioning concerns about bias by the defendants is likely insufficient to
constitute articulation in constitutional due process terms. See id. 19
Id. Furthermore, the family and juvenile courts "are of limited jurisdiction and
are not equipped to rule on claims arising from constitutional due process
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Appellant’s claims because it falls into the no ‘reasonable opportunity to raise
federal claims in state court’ exception. Additionally, Rooker Feldman does not
necessarily apply where district court reaches a conclusion that would make
compliance with a state court judgment impossible.20
Rooker Feldman only precludes federal subject matter jurisdiction where the
state court judgment is the source of the injury.21
The Appellant is not asserting
that the state court decision was wrong or caused the injuries.22
Rather, the
Appellant claims that source of the injuries are the defendants’ actions.23
The
Defendants’ actions of making recommendations, reports and findings to the state
court based on racial, national origin, and religious bias. Defendant Cunningham
using, endorsing, and/or permitting the bias therapist reports, recommendations,
and/or custody evaluations into the proceeding. It was these separate Constitutional
violations which caused the adverse state decision.24
In Brokaw v. Weaver, the Seventh Circuit held the appellant’s claim of
considerations." Lahey, supra note 13, at *11. 20
Bolden v. City of Topeka, Ks., 441 F. 3d 1129, 1143 (10th Cir. 2006). 21
Exxon Mobile, supra note 2, at 284. 22
Nesses v. Shepard, 68 F. 3d 1003, 1005 (7th Cir. 1995). 23
Kougasian v. TMSL, Inc., 359 F. 3d 1136, 1139 (9th Cir. 2004) (Rooker
Feldman did not bar where damages based on wrongful behavior of defendants
during the underlying state court action); Great Western Mining, supra note 11, at
167; Granville, supra note 3, at 859; Davani v. Va. Dep’t of Transp., 434 F. 3d
712, 719 (4th Cir. 2006). 24
Brokaw v. Weaver, supra note 4, at 667; Nesses, supra note 22, at 1005.
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conspiracy by relatives and state actors to remove appellant from her parents’
home by making false accusations of child neglect violated her procedural due
process rights and constituted an independent claim not barred by Rooker
Feldman.25
Rooker Feldman did not extend in Brokaw, even though the state court
ordered the appellant removed from parents home and to remain in foster care.26
The Seventh Circuit reasoned that the source of the appellant’s injury was her
relatives’ conspiracy and the appellant did not have a reasonable opportunity to
raise her constitutional claims in state court.27
Similarly, this Case hand Rooker
Feldman does not bar or preclude federal jurisdiction because the appellant’s
claims violation of an independent right separate from state judgment.
Application of Rooker Feldman to this Case would be an expansive
application; such broad interpretations have been rejected as discussed above. The
Appellant has a federal claim based on violations of his independent right to Due
Process and Equal Protection
by the submission, use, endorsement, and/or
permissibility of racial, ethnic, national origin, and/or religious discriminatory
and/or bias therapist reports and recommendations. For this Court to extend
25
Brokaw, supra note 4, at 662. The Appellant alleged conspiracy motivated by
relatives’ disapproval of her parents’ religious beliefs and practices. Id. at 662.
Damages sought for the conspiracy not the state court’s decision in the child
neglect proceeding. Id. at 664. 26
Id. at 667. 27
Id. at 665, 667–68.
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Rooker Feldman to this Case, would mean that “there would be no federal remedy
for a violation of federal rights whenever the violator so far succeeded in
corrupting the state judicial process as to obtain a favorable judgment.”28
II. FEDERAL COURT MUST EXERCISE JURISDICTION TO
ADDRESS RACIAL, ETHNIC, NATIONAL ORIGIN, AND
RELIGIOUS BIAS IN FAMILY COURT PROCEEDINGS THAT
INFRINGE ON INDEPENDENT PROTECTED RIGHTS.
Judges are enforced with the duty to make fair and objective decisions based
on the law and case facts. Judges have the obligation as officers of the court to
ensure parties rights to an impartial hearing, Due Process. Judges must perform
their judicial duties without bias or prejudice based upon race, religion, or national
origin.29
Judges are prohibited from engaging in conduct that a reasonable person
would believe bias against race, religion, or national origin.30
Judges are also
obligated to prohibit court staff, court officials, or others subject to the judge’s
28
Nesses, supra note 22, at 1005. 29
Model Code of Judicial Conduct, American Bar Association, Rule 2.3(B); see
e.g., California Code of Judicial Ethics, Supreme Court of California, Canon
3B(5); see e.g., Code of Judicial Conduct, Florida Supreme Court, Canon 3B(5);
see e.g., Code of Judicial Conduct Canons, State of New York Commission on
Judicial Conduct, Section 100.3B(4); see e.g., Code of Judicial Conduct, The State
of Texas Commission on Judicial Conduct, Canon 3B(6); see e.g., Ohio Code of
Judicial Conduct, Canon 3B(5). 30
Model Code of Judicial Conduct, American Bar Association, Rule 2.3(B); see
e.g., Hawaii Code of Judicial Conduct, Canon 3B(5); see e.g., Idaho Code of
Judicial Conduct, Canon 3B(5); see e.g., Montana Code of Judicial Conduct, Rule
2.3(B); see e.g., Nevada Code of Judicial Conduct, Canon 2 Rule 2.3(B) .
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direction and control in the performance of their duties, from engaging in conduct
that is bias or prejudice based upon race, religion, or national origin.31
In Palmore v. Sidoti, the U.S. Supreme Court recognized that “[p]rivate
biases may be outside the reach of the law, but the law cannot, directly or
indirectly, give them effect.”32
In this Case, Defendant Cunningham as a judge,
officer of the court, did exactly what the U.S. Supreme Court prohibited in Sidoti,
ratifying the personal biases of the Defendants and justifying court orders and
decisions on the basis of that bias, Defendant Harshman’s reports.
31
Model Code of Judicial Conduct, American Bar Association, Rule 2.3(B); see
e.g., Washington State Code of Judicial Conduct, Canon 3 Rule 2.3(B); see e.g.,
Code of Judicial Conduct, Arizona Commission on Judicial Conduct, Canon
3B(5); see e.g., Alaska Code of Judicial Conduct, Canon 3B(5); see e.g., Idaho
Code of Judicial Conduct, Canon 3B(5); see e.g., Montana Code of Judicial
Conduct, Canon 2 Rule 2.3(B); Nevada Code of Judicial Conduct, Canon 2 Rule
2.3(B); see e.g., Hawaii Code of Judicial Conduct, Canon 3B(5); see e.g., Code of
Judicial Conduct, Massachusetts Supreme Court Judicial Court Rule 3:09, Canon
3B(5); see e.g., Georgia Code of Judicial Conduct, Canon 3B(5); see e.g., Ohio
Code of Judicial Conduct, Canon 3B(5); see e.g., Code of Judicial Conduct,
Florida Supreme Court, Canon 3B(5). 32
466 U.S. 429, 433 (1984); Doe v. Gonzales, 500 F. Supp. 2d 379, 415 (S.D.N.Y.
2007) (“Constitution was designed so that the dangers of any given moment would
never suffice as justification for discarding fundamental individual liberties or
circumscribing the judiciary’s unique role under our governmental system in
protecting those liberties and upholding the rule of law”).
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Parents have a cognizable protected right to custody and to the direct the
upbringing of their children.33
Parents also have a substantial interest in retaining
custody in their children which cannot arbitrarily be taken away or hindered by
courts.34
“A parent's desire for and right to the companionship, care, custody, and
management of his or her children is an important interest that undeniably warrants
deference and, absent a powerful countervailing interest, protection.” 35
Permitting
racial, ethnic, national origin and religious bias to form the basis of family court
custody and visitation decisions is prejudicial and amounts to arbitrary denial of
protected rights.
Judicial Conduct Commissions
Judicial conduct commissions are insufficient to address the detrimental
short and long-term effects of bias and/or discrimination in proceedings on
litigants.36
Judicial Conduct Commissions merely issue warnings where municipal
33
Troxel v. Granville, 530 U.S. 57, 66 (2000); Pierce v. Soc’y of Sisters, 268 U.S.
510, 534 (1925); Phillips v. Cnty. Of Orange, 894 F. Supp. 2d 345 (SDNY 2012);
Evans v. Pitt County Dep’t of Soc. Servs., 972 F. Supp. 2d 778 (E.D. N.C. 2013). 34
Stanley v. Illinois, 405 U.S. 645, 651–52 (1971). 35
Id. at 651; Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Prince v. Mass., 321
U.S. 158, 166 (1994) (recognizing a parental liberty interest in the custody of the
child); Lassiter v. Dep't of Social Services, 452 U.S. 18, 27 (1981). 36
Kentucky Judicial Conduct Commission Annual Report, July 1, 2011- June 30,
2012 (Between July 1, 2011 and June 30, 2012, the Kentucky Judicial Conduct
Commission considered 303 complaints, 15percent involved bias, discrimination,
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judges make specific statements directed at a litigant’s race37
and engage in
inappropriate racial comments.38
In Matter of J. Kent Adams, the Texas State
prejudgment, prejudice, and/or partiality. Between July 1, 2012 and June 30, 2013,
Kentucky considered 262 complaints, claims of bias, discrimination, prejudgment,
prejudice, and/or partiality remained at 15 percent).There are 51 family court
judges in Kentucky, 11 percent of Kentucky judicial positions. Id. Over 100
hundred complaints, 1/3 of 303 complaints in total, were filed against family court
judges. Id. 37
See e.g., Public Admonition of Oscar Tullos, Justice of the Peace, Violation of
Article 5, Section 1-a(6)A of the Texas Constitution, and Canons 2A and 3B(6) of
the Texas Code of Judicial Conduct, May 31, 2001 (“if the mother did not like the
laws in Texas, she could choose one of three bridges back to Mexico”); see e.g.,
Matter of Mary H. Smith, State of New York Commission on Judicial Conduct, ¶ 9
(June 29, 1998) (censure ordered where judge committed over five acts of
misconduct - making ethnic bias statements in court, stating that the victims in a
case were likely in the U.S. illegally, and would not testify or testimony not
credible because of illegal status); see e.g., Private Reprimand and Order of
Additional Education of a Municipal Judge, Violation of Canon 3B(6) of Texas
Code of Judicial Conduct, July 13, 2007 (“judge made a statement to a jailer
regarding an arrestee that was overheard by a number of witnesses, which
suggested to some members of the public that he was exhibiting a bias or prejudice
against the arrestee on the basis of race”). 38
See e.g., In re Schiff, 83 NY2d 689, 692–93 (Ct. App. NY 1994) (stating to
Hispanic attorney in pending case, “there was a time when it was safe for young
women to walk the streets ‘before the blacks and Puerto Ricans moved here”); see
e.g., CJC no. 07-0668-CC, Public Warning and Order of Additional Education of a
County Court at Law Judge, Violations of Canons 3B(5), 3B(6), and 3B(8) of the
Texas Code of Judicial Conduct and Article V, section1-a(6)A of the Texas
Constitution May 14, 2008 (judge discussion with African American attorney
during court proceedings about the enslavement of Africans, Middle Passage, and
survival of the stronger Africans resulting in the athletic superiority of African
Americans). The judge statements had a “chilling effect” and perceived hostile
court situation effectively forced litigants to settle claim. Id. ¶¶ 28, 43. Matter of
Patrick J. Cunningham, State of New York Commission on Judicial Conduct
(March 18, 1994) (ordering censure where judge had two prior sanctions for
unethical conduct and told the jury upon rendering a guilty verdict for criminal
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Commission (“Texas”) determined that Judge Adams violated Canon 3B(6) while
presiding over truancy cases by knowingly questioning only Hispanic parents
about their place of birth and child’s birth for the purposes of contacting
immigration. 39
Texas ordered public admonition for Judge Adams40
but warnings
and censure do not address the problem.
State judges have allowed, tolerated, permitted, and/or endorsed the race,
ethnicity, and/or national origin bias to influence their court proceedings and
judicial decisions.41
In Matter of Stuart L. Ain, upon the defendant’s attorney, Paul
Saqqal, identifying himself by name, Judge Ain stated “You’re not an Arab, are
you?” and “What the f[***] do you people want, anyway?” 42
Judge Ain further
stated “you’re our sworn enemies”, used profanity, and extended his middle finger
possession of drugs “I’m very happy that you reached that disposition because the
Dominican people are just killing us in the courts. They got to try their cases. We
got to provide them interpreters, provide them attorneys . . . and they are just
killing us, so I am delighted. They are almost insulated as far as prosecution . . .
and I appreciate very much the verdict in this case”). 39
Matter of J. Kent Adams, CJC No. 09-1028-JP, ¶¶ 7–9, 13, State of Texas
Commission on Judicial Conduct, Oct. 20, 2011. 40
Id. ¶ 14. 41
see e.g., Matter of Thomas S. Agresta, State of New York, Commission on
Judicial Conduct (July 5, 1984) (ordering censure where judge who made racial
epithets to African American defendant in court during a sentencing proceeding);
see e.g., Matter of George B. Jensen, State of New York, Commission on Judicial
Conduct (May 29, 1997) (issuing censure where judge expressed in a court room
“[o]h, it’s been a rough day – all those blacks in here” and promised litigant to
recuse himself from case if litigant withdrew complaint with commission). 42
Matter of Stuart L. Ain, State of New York Commission on Judicial Conduct, ¶¶
2–3, 6 (Sept. 21, 1992).
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to Mr. Saqqal.43
Judge Ain questioned whether the opposing attorney was Jewish
and knowledge of Ariel Sharon.44
Following Judge Ain’s racial and religious
motivated discriminatory actions, Judge Ain expressed admiration for the Israeli
government’s stance toward Arabs.45
The New York State Commission (“New York”) found that Judge Ain’s
actions were inexcusable and gave the appearance of ethnic bias. 46
Nevertheless
Judge Ain’s series of biased statements and actions while warranting severe
sanction, only amounted to censure because occurred one time in an “informal off
the record conversation.”47
Censure was solely ordered even though prior case law
established that ‘language by a judge that reflects ethnic bias will not be
tolerated.’48
Matter of Raymond E. Aldrich Jr.
In a juvenile proceeding, a judge told the defendants “[y]ou are in with the
blacks from New York City, and you don’t dare go to sleep because if you do you
will probably be raped . . . when they get you behind those cell bars they will rape
43
Id. ¶¶ 4–7. 44
Id. ¶ 8. 45
Id. 46
Id. ¶¶ 11, 16. 47
Id. ¶¶ 16–17. 48
Matter of Esworthy v. State Commission on Judicial Conduct, 77 NY2d 280, 282
(Ct. App. 1991); Matter of Bloodgood, 1982 Annual Report 69, NY Commission
on Judicial Conduct; Matter of Cook, 2006 Annual Report 119, NY Commission
on Judicial Conduct.
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the s*** out of you.”49
Judge Aldrich racial statements were not addressed. New
York only found him unfit to be a judge based on the judge’s numerous incidents
of misconduct during and outside of the court caused by his alcohol addiction.50
New York opinioned “[i]t is simply intolerable for a judge to act in his official
capacity while under the influence of alcohol. The very presence on the bench of
an intoxicated judge . . . undermines a system of law.”51
Judge Aldrich’s
alcoholism was the determinative factor in the judicial commission’s decision to
remove Judge Aldrich. Judge Aldrich’s racial bias seems insignificant to the
judicial commission, with only a single mention.52
Matter of Edwin R. Sweetland
In Matter of Edwin R. Sweetland, the judge demonstrated clear racial and
ethnic bias against an international student from Honduras.53
The student’s
criminal defense attorney informed the court that the district attorney
recommended release on his own recognizance with the condition of submission of
49
Matter of Raymond E. Aldrich, Jr., State of New York, Commission on Judicial
Conduct, ¶ 5 (Sept. 17, 1982). 50
Id.¶ 13. 51
Id. 52
Id. 53
Matter of Edwin R. Sweetland, State of New York, Commission on Judicial
Conduct, ¶¶ 3, 18 (Nov. 21, 1988).
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his passport to the court.54
Judge Sweetland refused to consider the
recommendation and responded that the defendant was going to jail.55
Following this, Judge Sweetland told the district attorney, “You better
deport these people . . . you better get them out.”56
Subsequently, Judge Sweetland
expressed to a reporter that he was against the district attorney’s decision in the
current case and “[t]hese birds come up here and commit rape . . .and the district
attorney wants to turn them loose.”57
Judge Sweetland’s attempted to influence the
district attorney to place the defendant in custody.58
Judge Sweetland’s actions
warranted removal from office,59
but he was merely censured.60
Judicial Conduct Commissions – Family Court Cases
Racial, ethnic, national origin and religious bias in family court proceedings
and decisions has one of the greatest impacts on minorities. Family court judges
have the power to remove children from their home, prevent children from having
a relationship with and seeing their parents. These critical decisions on the status of
54
Id. ¶ 4. 55
Id.¶ 5. 56
Id. ¶ 8 (referring to all students part of the Central American Scholarship
Program like the defendant). 57
Id.¶ 15. 58
Id. ¶¶ 7–8. 59
Matter of Edwin R. Sweetland, supra note 64, (Dissenting Opinion, Kovner, Del
Bello, Sheehy). 60
Id.¶ 18.
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children and their parents are long-term, and often permanent. The power of family
court judges and the permanency of their judicial decisions cannot permit nor
tolerate racial, ethnic, national origin, and/or national origin bias applied in any
facet of the family court proceeding.
Racial, ethnic, national origin and religious bias in family court proceedings
and decisions is not a new phenomenon. A 1997 Report by the California Judicial
Council Advisory Committee (“Committee Report”) reveals a common consensus
of bias in the administration of justice in family courts from the public hearings
conducted.61
The Committee Report also identifies cultural stereotyping and
disparate treatment of people of color as an ongoing problem.62
Testimony taken
by the Committee reveals issues with “double standards in the application of the
law and judicial appraisals of credibility, and bias against litigants of color”63
extending to race as a determinative factor in custody cases.64
61
Final Report of the California Judicial Council Advisory Committee on Racial
and Ethnic Bias in the Courts, 1, 158, Jan. 1997, [hereinafter Committee Report]. 62
Id. 63
Id. at 159; see generally Judicial Council of California Advisory Committee on
Racial and Ethnic Bias in the Courts & E. Drewes, 1991–1992 Public Hearings on
Racial and Ethnic Bias in the State Courts (1993). 64
Committee Report, supra note 76, at 163–64.
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Matter of Norman Feiden
In 1992, New York addressed religious bias in a family court proceeding and
decision in Matter of Norman Feiden.65
During the proceedings, the children’s
father requested visitation with his children on Christmas Eve and Christmas day.66
Judge Feiden responded to the father’s request by stating “I don’t hear anybody say
Hanukkah.”67
The mother contested the visitation request because she wanted to be
with her children on Christmas to put up the Christmas tree and give her children
gifts.68
Judge Feiden responded by stating, “[s]ounds wonderful. Don’t – you’re
talking to the wrong guy. I get offended, and I don’t want to start . . . Oh, come on.
It’s very Christian. It’s idol worship.”69
Subsequently, Judge Feiden granted the
father his visitation request.70
Following this, Judge Feiden decided to educate the mother on Christmas.
Judge Feiden stated in court that “[c]hristmas trees originated in Germany as a
pagan ritual . . . it is irreverent for members of the Jewish faith to use Christmas
tree and lights and to exchange Christmas gifts . . . any celebration without the
65
Matter of the Proceeding Pursuant to Section 44, of the Judiciary Law in
Relation to Norman Feiden, N.Y. Commission on Judicial Conduct, ¶ 2, July 29,
1992. 66
Id. ¶ 3. 67
Id. 68
Id. ¶ 4. 69
Id. ¶¶ 4–5. 70
Id. ¶6.
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religious content for Christmas is idol worship.”71
The motion to recuse Judge
Feiden was denied.72
Clearly, Judge Feiden’s personal religious views influenced
the court proceedings and decision to grant visitation to the father and not the
mother. There was no discussion of the fairness to the children, what the children
wanted, nor what were the best interests of the children. New York sanctioned
Judge Feiden with admonition, a verbal warning; even though Judge Feiden
admitted that his statements were motivated by his personal religious views.73
Noteworthy, Judge Feiden was sanctioned because he tried to justify his
conduct.74
If Judge Feiden would have simply acknowledged his misconduct and
swore to not engage in this conduct again, the judge likely would not have been
disciplined at all. There is no accountability even where there is blatant bias in
their proceeding and decisions, effectively making judges invincible and litigants’
victims with no remedy.
In re Honorable A. Eugene Hammermaster the judicial commission ordered
censure, commission monitoring and corrective action of enrollment in judicial
education course of ethics and diversity,75
where judge violated several codes of
71
Id. ¶ 11. 72
Id. ¶ 12. 73
Id. ¶¶ 7, 12. 74
Id. ¶ 12. 75
In re Honorable A. Eugene Hammermaster, No. JD #15, at 41–42 (S. Ct. Wash.
1999) (en banc).
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judicial conduct including threatening defendants with life imprisonment or
indefinite jail sentences, issuing orders denigrating unmarried couple’s
cohabitating, and due process violations. 76
However, the state judicial commission
did not find Judge Hammermaster’s practice of ordering Spanish speaking
defendants to “become citizens or leave the country,”77
threats of immediate
deportation,78
routinely asking only Hispanic defendants about their legal status
and ordering Spanish-speaking defendants to sign up for English language
courses79
violated any code of judicial conduct.80
The state judicial commission did
not even consider how Judge Hammermaster’s actions violated the code of judicial
conduct.81
Only upon appeal to a court was Judge Hammermaster’s racial and
ethnic discriminatory acts scrutinized and disciplined.82
Racial and ethnic bias in family courts is a constant issue that has not be
adequately addressed and goes undetected.83
The lack of specific statistics and data
76
Id. at 3. 77
Id. at 2–3, 21. 78
Id. 21, 39. 79
Id. at 3, 21. 80
Id. at 39. 81
Id. 82
Id. at 2, 41–44. 83
American Bar Association (ABA) Coalition for Justice, Racial and Ethnic Bias
in the Justice System, 1, 8 (July 2008, updated annually) (“issues such as divorce,
child custody, child support, domestic violence, and the termination of parental
rights . . . particularly critical that . . . eliminating bias remain in the forefront in
each of these areas”).
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is an obstacle. State judicial commissions do not break down the number of
allegations in family court.84
Allegations made against family court judges are
usually grouped in with allegations against superior court judges.85
Even upon
request, state judicial commissions are unable to or unwilling to provide the
number of racial and/or ethnic bias allegations against family court judges, citing
confidentiality.86
Each state judicial commission’s public cases must be reviewed
individually, and what is publically available is limited. There is also no extensive
record because these cases usually are not appealed to state court due to the dim
chances of success.
In re the Adoption of L.M.-H. Case
In re the Adoption of L.M.-H., while presiding over a hearing where the
biological father was contesting the adoption of his child by the adoptive parents
and seeking custody, 87
upon learning the names of the parties in the court and that
the biological father spoke Spanish, Judge Poyfair without hesitation questioned
84
See e.g., Letter from Arizona Commission on Judicial Conduct, dated Feb. 3,
2014; see e.g., New Jersey Advisory Committee on Judicial Conduct; see e.g.,
Florida Judicial Qualifications Commission; Email Communication, American
Judicature Society, dated Feb. 18, 2014. 85
See e.g., Georgia Judicial Qualifications Commission. 86
See e.g., Alabama Judicial Inquiry Commission; see e.g., Delaware Court on the
Judiciary; see e.g. Michigan Judicial Tenure Commission. Confidentiality is an
excuse, because requests focus on the numbers of cases and disposition of cases,
not any identifying information. 87
Commission on Judicial Conduct Opinions, CJC No. 6691-F-153, ¶ 2
Washington Commission on Judicial Conduct, May 4, 2012.
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the biological father regarding his legal status in the U.S. based on his Hispanic
ethnicity.88
Judge Poyfair several times threatened to call immigration on the
biological father and made references to his immigration status.89
The biological
mother opposed the voluntary adoption of her daughter by the adoptive parents due
to learning that the adoptive father had a history of sexual misconduct with young
girls, but Judge Poyfair allowed the child to remain with the adoptive parents while
the case continued.90
Judge Poyfair never made any inquiry into the allegations of
sexual misconduct against the prospective adoptive father and threatened the
biological mother with contempt.91
Later, the biological mother revoked her consent to the adoption in a
submitted declaration to the court.92
However, Judge Poyfair refused to accept the
revocation as not in the proper form even though not required.93
The biological
father out of fear of deportation was not at the hearing to contest adoption.94
Judge
Poyfair informed the biological parents the court would finalize the adoption
88
Id. 89
“Well then maybe we should call Immigration before you leave and find out if
they wish you detained”. Id. “[G]oing to note for the authorities that he is illegal
and that if in fact he should not be here then he should be picked up and he should
be sent back”. Id. 90
Id. 91
Id. ¶¶ 2, 5 92
Id. ¶ 4. 93
Id. 94
Id.
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against their wishes and stated that he “would not grant custody of a child to an
illegal.”95
The Washington Commission on Judicial Conduct found that Judge
Poyfair’s actions violated the Code of Judicial Conduct Canon Rule 2.3(B), that
“judges shall not manifest bias or prejudice or engage in harassment . . . that
denigrates or shows hostility or aversion toward a person on bases such as race,
sex, gender, religion, national origin, ethnicity.”96
The commission acknowledged
the judge’s acts were significantly injurious to the parents including depriving the
parents of their child, leaving the child in potential danger, and denying the child
the comfort of her parents.97
However, the Commission merely issued an order of censure in spite of
blatant racial bias affecting the court proceeding and decision.98
First, the
biological’s father immigration status was a determinative factor in Judge Poyfair
not accepting the biological father declaration contesting the adoption and not
awarding custody.99
Second, the judge created procedures that were not required
95
Id. 96
Id. ¶ 10. 97
Id. ¶¶ 18–19. 98
Id. 99
Id.
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by law and created an environment that infringed on the biological parents’ ability
to assert and protect their legal rights.100
Judicial conduct commissions are insufficient to address the detrimental
short and long-term effects of judicial decisions on litigants. Racial and/or ethnic
bias by judges in court proceedings and decisions continues to impair both the
judicial system and litigants rights. The current state mechanisms are not
addressing the problem and further action is necessary.
Complaints Filed with the American-Arab Anti-Discrimination Committee
In majority of cases unlike above, the bias is not blatant. However, the
judge’s differential treatment of one party over the opposing party in terms of
harshness of punishment, degree of questioning and scrutiny, verbal treatment in
court, among others, demonstrates the influence of racial and/or ethnic bias in
judicial decisions. ADC has increasingly received several complaints where the
bias is not blatant but the judge’s actions support at the minimum an inference of
racial, ethnic, national origin, and/or religious discrimination. 101
100
Id. ¶¶ 2, 4. Judge motivated by racial bias did not inform biological mother of
her right to revoke consent to adoption at any point prior to termination of parental
rights and right to counsel. Id. ¶ 5. 101
Case 00122- Y.H., Kentucky, Feb. 9, 2012 (child custody case where child and
protective services (CPS) investigated alleged child abuse by Y.H. husband. CPS
asked husband ‘what country are you from, and what religion are you?’ Upon the
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In Case 00458-S.S., a custody dispute between biological parents and
maternal grandparents, where the father slapped his daughter for video chatting
and exposing her body to different boys on the internet.102
The biological parents
and paternal grandparents agreed it was in the best interests of the child to grant
temporary custody to the paternal grandmother because the child suffered from
mental illness.
However, the state department of children’s services petition and court order
contained and used ethnic bias to support the grant of temporary custody as in the
best interests of the child, exhibited in the language that “the father is from
Morocco which has different customs and expectations.” This language suggests
husband telling CPS he is Arab Muslim, CPS became immediately hostile and
failed to conduct impartial investigation. Children taken from home and placed in
foster care); Case 00576- J.R., Maryland, June 10, 2013 (child custody and divorce
proceedings where family court judge asked J.R., ‘your religion is Arabic, right?’
The family court judge ended up granting sole legal and physical custody of child
to mother and ordering J.R. only four (4) hours of visitation per week with child.
No finding that J.R. an unfit parent); see e.g., Case 00645- I.M., California, Sept.
19, 2013 (child custody dispute for daughter with I.M. ex-wife. I.M. ex-wife
threatens I.M. by saying ‘all I got to do is tell the judge that you are Arab Muslim
and that’s it, you’re done.’ Following threat, court returned child passport and
allowed child to leave with ex-wife out of state while family court proceedings
pending, although contrary to DA Office recommendations and the court evaluator
report concerns of ex-wife as flight risk, ex-wife prior harassment and domestic
violence charges, and threats of abduction of child with new husband to Egypt);
Case 00375- M.N., Oregon, July 18, 2012 (involving child custody); Case 00505-
B.S., New York, Dec. 21, 2012 (same); Case 00583- R.B., Virginia, June 19, 2013
(involving divorce proceedings); Case 00675- I.H., Michigan, Oct. 16, 2013
(involving visitation and parenting time). 102
Case 00458- S.S., Massachusetts, Oct. 17, 2012.
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that the court supports the contention that: 1) the daughter is subject to abuse by
father because he is Moroccan; and/or 2) the biological father is violent because he
is Moroccan. However, the incident was not due to the culture of the father, nor the
fact that the father is Arab and Muslim. There were neither findings of abuse nor
prior incidents of the father disciplining his daughter or violent behavior.
Furthermore, the child protective service worker voiced concern of the biological
parents seeing an Arab psychiatrist for the court required mental health and anger
assessment, stating “that might not be a good idea since an Arab doctor might be
thinking the hitting was okay.”
In Case 00528-A.A., the biological mother told the judge that ‘Egyptian
fathers have the tendency to leave the states with their children when they are
given custody and deprive the mother of their rights.’103
The biological mother’s
expert’s generalized international parental kidnapping by Egyptian citizens, but
failed to engage in a case fact analysis. First, the biological mother merely stated
she feared that her child would be taken abroad but there was no proof that
substantiated that fear. There was no inquiry into whether the biological father was
a flight risk or the likelihood the biological father may kidnap the child based on
the biological father’s past actions or characteristics. It was determined that A.A.
103
Case 00528- A.A., Missouri, March 26, 2013.
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would commit such an act because he is Egyptian and the fact his child holds
Egyptian nationality. Consequently, the judge granted the mother full custody.
Complaints of therapist’s manipulating children motivated by racial and/or
religious biases have been reported to ADC. In Case 00730-J.N., the court
appointed therapist told a child raised in the Muslim faith “your dad wont hate you,
he will still love you if you don’t want to be Muslim.” 104
. This statement was made
even though both parents agreed and the therapist was aware that the child would
continue to be raised in the Muslim faith. Following this interaction, the therapist
recommended full custody in favor of the mother whom indicated to therapist that
she reverted back to Christianity following the divorce.105
The Council on Islamic Relations (“CAIR”) has received over 300
complaints involving child custody since 2007.106
Over 35 percent complaints
allege discrimination, a majority based on religious bias, followed by national
origin, and sometimes cultural practices associated with the Middle East and North
Africa. 107
CAIR reports that an increasing number of complaints allege bias by
state and local child protective services and/or judges. For example, a woman was
stripped of custody of her children when her ex-husband claimed that she was
104
Case 00730- J.N., Maryland, February 26, 2014. 105
Id. The mother converted to Islam when she married her child’s father. 106
Council on American-Islamic Relations, Internal Civil Rights Database, May
2007 – December 2013. 107
Id.
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attempting to travel to Sudan or Egypt to have her daughter circumcised.108
The
court ignored all evidence to the contrary.109
CAIR reports that a majority of the complainants were involved in divorces
where one party Muslim and other party non-Muslim, or where ex-spouses whom
converted to Islam during marriage, left the faith after the marriage dissolved.
Complainants alleged that their ex-spouses would make xenophobic and anti-
Muslim statements that no matter how outrageous or stereotypical, were given
weight by the court. Consequently, complainants felt marginalized by the court
and unable to seek alternative means of redress.
CONCLUSION
Amici curiae encourage the Court to find in favor of the Appellant and
reverse the district court decision.
Respectfully submitted,
/s/ Yolanda C. Rondon
YOLANDA C. RONDON
STAFF ATTORNEY
AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE
ATTORNEY FOR AMICI CURIAE
JULY 23, 2014
108
Id. 109
Id.
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CERTIFICATE OF COMPLIANCE
I, Yolanda C. Rondon, counsel for amici herein, certify pursuant to Federal
Rule of Appellate Procedure 29(d) and Ninth Circuit Rule 32(a) that the attached
amicus brief is no more than one-half the maximum length authorized by the
Federal Rules of Appellate Procedure, uses a proportionally spaced Times New
Roman typeface of 14 points or more and the text of the brief comprises 7,000
words or less.
Date: July 23, 2014 /s/ Yolanda C. Rondon
Yolanda C. Rondon
American-Arab Anti-Discrimination
Committee
Counsel for Amici Curiae
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