Santa Clara County Superior Court Judge Socrates Manoukian of Department 19 faced a judicial disqualification hearing but, instead of challenging the matter, decided to not contest the issue. So the McGibney restraining order case will now be referred to a completely new judge where everything will start over from the very beginning.
Fun Fact: Manoukian is now the FOURTH judge who has been disqualified and/or voluntarily removed himself or herself from this case.
California law states that a judge is disqualified where, for any reason: “Other persons aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial”. See Code of Civil Procedure § 170.1(a)(6)(A)(iii).
The test for impartiality is objective in that “The situation must be viewed through the eyes of the … average person on the street” as of the time the motion is brought. United Farm Workers of America v. Sup.Ct. (Maggio, Inc). (1985) 170 Cal. App. 3d 97, 104(emphasis added).
“The word ‘might’ in the statute was intended to indicate that disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s impartiality.” United Farm Workers of America v. Sup.Ct. (Maggio, Inc.), supra, 170 Cal.App. 3d at p. 104 (emphasis added).
Additionally, a judge has an independent duty to disqualify himself from any proceeding (i.e., action, case, cause, motion, or special proceeding) when disqualification is required by law. Code Jud. Ethics, canon 3E (1); see CCP §§170.3(a)(1), 170.5(f); see, e.g., People v. Freeman (2010) 47 Cal.4th 993, 997 (judge recused himself from hearing bail motion because of accusations that D was stalking judge’s friend). In the case at hand, Judge Manoukian has said that he and his family were stalking victims.
The statues governing disqualification for cause in California are intended to ensure public confidence in the judiciary and to protect the rights of litigants to a fair and impartial adjudicator and the United States Supreme Court has stated that a fair trial in a fair tribunal is a basic requirement of Due Process.
The fact that Judge Manoukian has stated on the record that he, his wife, and children have been victims of exactly the same kind of conduct for which Retzlaff stands accused is clearly cause for concern and the potential for an appearance of bias and prejudice clearly exists. After all, the possibly of Judge Manoukian taking out his anger and frustrations on Retzlaff is just human nature and to be expected.
‘The Due Process Clause entitles a person to an impartial and disinterested tribunal…’Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); see also Brown v. American Bicycle Group, LLC, 224 Cal.App.4th 665, 674 (2004)
Motions and statements to disqualify a judge are used to remove a superior-court judge, court commissioner, or referee from a hearing or trial. The ability to disqualify a judge safeguards each party’s right to a fair and impartial hearing or trial and preserves the public’s confidence in the judicial system.
A party can disqualify a judge by filing either a motion to disqualify (also known as a peremptory challenge) or a statement of disqualification (also known as a challenge for cause). The methods of disqualification are cumulative, not mutually exclusive. <====THIS IS VERY IMPORTANT SO PAY ATTENTION.
There are several important differences between the two methods of disqualification. A motion to disqualify can be filed only once but does not require factual proof of the judge’s prejudice to be successful. A statement of disqualification, on the other hand, can be filed multiple times as long as each new statement alleges facts suggesting new grounds for the disqualification.
PRO TIP: Although no statutory rules require one method to be asserted before another, sometimes there is a practical reason for a party to assert one method before another. If there is cause for disqualification, a party should save its motion to disqualify and file a statement of disqualification.
So what happened here? Well it seems that evidence was discovered which shows that Judge Manoukian is biased or prejudiced against our American Hero & Honorary Admin of the BV Files TR and a Statement of Disqualification was filed.
Fun Fact: The appearance of bias or prejudice toward a party is sufficient to support a judge’s disqualification. A party does not have a duty to investigate a judge’s background or relationships to determine whether there are grounds for disqualification.
So why is it that Judge Manoukian is disqualified to hear this case?
Judge Manoukian stated in court that he, his wife, and children have been the “victim” of stalking / cyber-stalking of a kind identical to that which Via View and its CEO James McGibney claim to be victims of.
THE COURT: I’m interested in knowing these things. You know, I’d be nervous if someone is stalking my wife and kids — well, it’s actually happened. I know what that’s like.
McGIBNEY· For two years?
Thus, the reasoning goes, if the judge has been the victim of a crime for which a defendant stands before him accused of doing, the judge cannot be impartial or fair to the defendant. So the judge has got to go!
As previously mentioned in an earlier article, the challenged judge may respond to a statement of disqualification in one of three ways: (1) by striking the statement, (2) by consenting to the disqualification, or (3) by filing an answer. Under the law, the judge is only given ten days to respond. In our case, since Judge Manoukian was served on October 7th, he had until October 17th to respond.
1. Strike defective statement. The challenged judge can respond to the statement by entering an order striking it. CCP §170.4(b). The statement can only be struck if it was not timely filed (not filed “as soon as practicable”), alleges no legal grounds for disqualification, or, if any earlier statement was filed, does not allege any new grounds for disqualification.
2. Consent to disqualification. The challenged judge can respond to the
statement by consenting to it. CCP §170.3(c)(3). The judge can consent to it by not filing a response within the ten day time limit he has to file a response, or file a consent agreeing to the disqualification.
3. File answer. The challenged judge can respond to the statement by filing an
answer. CCP §170.3(c)(3). The answer must be filed within ten days of service of the Statement of Disqualification, and the answer must be made under oath. If the judge elects to challenge the disqualification, then the matter will be referred to another judge for a full hearing (with testimony and evidence).
If the disqualification is consented to or, after a hearing, granted, then the case will be referred to another judge and the case will then move forward in whatever fashion that new judge decides.
In this case, by not filing an Answer or challenge to Retzlaff’s Statement of Disqualification, Manoukian consented to the disqualification and, as of this very moment, he has been removed from the case.
So, BV Files, what happens next? you ask? Well we would like to tell you. Seriously, we really would. But not even the Admins of the BV Files are able to cogitate long enough and hard enough to tell what will happen in this case that has been filled with nothing but thrills, and chills, and more than a few spills.
But whatever will be happening next, you can bet that you will hear about it here first! (Unless you hear it from someone else)
So instead of waiting to hear back from Some Random Person We’ve Never Heard Of Before, we decided to do the next best thing: We contacted A Close and Personal Friend that we sometimes go to when we are in need of legal advice. And this is what he (or she) said:
The case law dictates that a judgment or order rendered by a disqualified judge is void whenever brought into question by an objection. Because the Workplace Violence injunction here was entered into by a disqualified judge (and, more specifically, by a judge disqualified due to a personal bias and prejudice against Retzlaff), the injunction is voidable upon his objection. That objection will need to be made in the form of a Petition for Writ of Error Coram Vobis. Because the case law in this area is well-settled and over 95 years old, the grant of such a writ petition is basically automatic and Retzlaff gets a complete do-over in this case.
If we had to guess, such a writ petition has already been written up and is likely on its way to the Sixth District Court of Appeal.
Oh, oh, McStupid. Looks like your “Permanent Restraining Order” isn’t so permanent after all. Looks like it is gone.