STATE OF NEW MEXICO
COUNTY OF BERNALILLO
IN THE SECOND JUDICIAL DISTRICT COURT
No. DM-12-610 rel. DV-12-234
BARRIE
LEE DERRINGER
Petitioner,
v.
DAVID
BRIAN DERRINGER
Respondent,
PLAINTIFF’S MOTION
FOR RECUSAL FOR CAUSE OF JUDGE ALISA HADFIELD WITH LEGAL REQUEST FOR THIS
MOTION TO BE HEARD BY A DISINTERESTED JUDGE FROM A DIFFERENT DIVISION WITH
ATTACHED AFFIDAVIT AND REQUEST FOR AN INVESTIGATION UNDER BOTH LAW ENFORCEMENT
AND CANON (3)(D)(1)
COMES NOW the Respondent, with his motion as stated above, with a request
for this motion to be heard in a different district with an impartial justice. David
Derringer has motioned this court four different times to recuse for provable
cause and each time Judge Hadfield entertains the motion herself and
aggressively and defiantly tenaciously stays on the case, violating all laws
and Constitution at all times disregarding case laws, with the Respondents’
circumstantial evidence in belief that she has accepted bribes and political
influence and pressure and persuasion from Petitioner Barrie Derringer’s
employer; multi million dollar NAI Maestas and Ward Commercial Real Estate
Corporation. Las Luminarias of
the New Mexico Council of the Blind v. Isengard 587 p.2d 444, 92 NM 297
“Existence of civil conspiracy must be pled either by direct allegations or by
allegations of circumstances from which a conclusion may be reasonably
inferred.”The Respondent has also filed
a Petition for Writ or Superintending Contro with the New Mexico Supreme Court
making them well aware of the violations of Oath, Canon and Constitution by
Judge Hadfield and David Derringer has filed four separate complaints with the
Judicial Standard Commission, and Judge Hadfield still takes it upon herself to
hear the motions for her own removal and refused to recuse for cause. State v. Hunt, 527 A.2d 223, 224 (Vt.
1987). Hunt
involved an action to recuse two justices who had disciplinary charges
filed against them concerning the case in question. The court noted that even
though the decision to grant or deny a recusal motion was discretionary, a
judge must recuse himself or herself where disciplinary charges had been filed concerning the case in question.
1d. See also State v. Forte,
553 A.2d 564, 565 (Vt.
1988).
Judge Hadfield must be recused for cause involving (1.) deprivation of statutory
rights, (2.) denial of Constitutional rights and Judge
Hadfield and the Commissioner
Cosgrove/Aguilar were both notified of the
higher court rulings of the New Mexico Court of Appeals and absolutely “refused” to obey New Mexico Court of Appeals
rulings of No. (NO. 24,101), (NO. 27,959), (NO.
30,380), (NO. 30,591), (NO. 31,303), and (NO. 32,271); (3.) failure and “refusal” to comply with former case laws
involving the substantive matter of the complaints which translates to a (4.)
violation of Oath, Canon and the Code of Judicial Conduct, (5.)
working outside of jurisdiction with use of other cases and other judge’s
opinions to make decisions in the instant case, and putting opinions in the
court record in fraud of time frames of which Judge Hadfield was not presiding
oven any case (6.) a shown animosity and hatred towards the
Plaintiff with abusive, derogatory and threatening personal remarks in both open
court and in written Orders, (7.) degradation of the right to
state facts and the truth as known by the Plaintiff, (8.) a bias
and prejudice and conspiracy against the Plaintiff, and for the Defendants
manifested in rulings against New Mexico laws to protect and insulate a
multi-million dollar corporation and the CEO’s of same against the private
pro-se party, (9.) and a shown distaste and subjugation of pro-se
parties in general and an illegal email order to the court clerks not to accept
any court filings of selected and persecuted David Derringer singled out in
particular to deprive proper use and due process and equal protection of the
courts. Morris v. Dodge Country Inc. 513 P.2d 1273, 85 N.M. 491 Cert. Denied 513
P.2d 1265, 85 N.M. 483 “N.M. App. 1973 Conspiracy may be established by
circumstantial evidence; generally, the agreement is a matter of inference from
the facts and circumstances, including acts of persons alleged to be
conspirators.” Judge Hadfield “swore to God” to obey and uphold and the law,
and the cases DV-12-234 shows that all Constitutional rights were taken from
David Derringer without ever legal service of summons and without any evidence
or support, and in DM-12-610 each and every ruling was made against the laws
and Constitution, with underlying conspiracy with the Petitioner and her
employer, and the Respondent was never afforded due process and equal
protection, yet every Respondent pleading was saturated with supporting case
laws and authorities and yet also not once was any presentation or pleading of
the Petitioner or any ruling by the court ever defined, or reasons given with
any support of law, making the entire matter of DM-12-610 jurisdictionally
defective and mandated to be dismissed with prejudice with no divorce granted
for Barrie Derringer.
(1.)
Numerous Legislated NM Statutes provide David
Derringer a right to community income, community property and payment of bills
by the Derringer marriage community assets and yet Judge Hadfield allowed
illegally Barrie Derringer to gain separate residence without cause using
community income, keeping David Derringer from such residence, took all
community bank account monies, stole and kept all prior community property and
refused to disclose and kept all community property pruchased after leaving the
husband, and stole and kept tens of thousands of David Derringer’s sole and
separate inheritance funds; all with the knowledge and facilitation of Judge
Hadfield working in public corruption against all laws and facilitating the
illegal and unconstitutional orders of Commissioner Cosgrove/Aguilar’s actions
in the illegal case of fundamental error DV-12-234 without ever service of
summons and brought in provable fraud and perjury. Now, in “personal opinion”
in the Order of June 17, 2013 Judge Hadfield attempts to make her opinion of an
area of history of the Derringer marriage wherein the Judge was not a party to
the marriage and yet had no jurisdiction or knowledge of facts since no legal
action had been filed on February 4, 2012, the date that Judge Hadfield claims
an opinion meant to support the fraud and criminal actions of Barrie and 12
friends and employers who broke into a storage and did criminal assault and
battery against David Derringer; proving motives and means of a personal nature
well outside of any judicial ability or jurisdiction and in violation of
numerous statutes both state and federal; also showing a pay-off and conspiracy
of Judge Hadfield with third parties. Baker v. Horn, 201 Supp.2d 592 “Fact cannot become of record solely
by virtue of its inclusion in trial court’s opinion.” Thus, the statutory law
“right” was taken illegally from David Derringer by manipulation of the court cases
by Judge
Malott. Martinez v. Carmona, 624 P.2d 54, 95 N.M. 545 writ quashed 624 P.2d 535,
95 N.M. 593 “N.M. Court of Appeals 1980 Judge may be disqualified for
statutory, constitutional, or ethical cause-Code of Judicial Conduct, Canon 3
Subd. A, Constitution Article 6, Section 18.” Taking away statutory rights is a
reason for cause for recusal.
(2.)
David Derringer has a Constitutional right to “due
process and equal protection” under US Code Title 42 Section 1981, and under
the 4th , 5th, and
14th Amendments. Simmons v. Conger, 86 F.3d
1080 ATo be entitled to relief from
allegedly unconstitutional actions of a judge acting pursuant to a state
statute, plaintiff must allege...that a particular judge=s actions pursuant to that statute
violated limits placed upon him by Constitution.@ Judge Alisa Hadfield has violated all law, performed criminal state and
federal felonies against David Derringer and deprived David Derringer’s
Constitutional rights under the 1st, 2nd, 4th,
5th, 6th , 13th and 14th Amendments
included in DM-12-610 and related DV-12-234 as well as illegally making orders
and judgments meant to assist and insulate the Defendants in David
Derringer v. Maestas and Ward et al in CV-12-1307 and CV-12-10816.
These egregious acts were then further pursued by Judge Hadfield emailing the
court clerks to stop and delay any further court filings by David Derringer
singled out for persecution and discrimination for legal use of the courts,
until Judge Hadfield herself perused and agreed or disagreed with any pleadings
of David Derringer to make the illegal decision whether or not David Derringer
could file such pleadings; an act of criminal obstruction of justice without
any possible jurisdiction of any pleading until already filed by the court.
Judge Hadfield also considers, at the illegal goading of the Petitioner and her
attorney Alain Jackson to do whatever necessary to stop, inhibit and control
appeals of David Derringer so as to stop “due process” just as Judge Hadfield
purposefully granted a “bifurcated divorce” meant to stop David Derringer’s due
process and equal protection at the exclusive request of the Petitioner and her
attorney Jackson. Judge Hadfield on April 3, 2013 makes an open court
ruling to steal the 2005 Chevrolet of David Derringer including all sole and
separate inheritance monies included, without mandating that the Petitioner refinance
the vehicle, thus leaving David Derringer as primary on the loan without the
asset and allowing the Petitioner to sell the vehicle at her discretion without
any control or authorization of price of other by the loan primary David
Derringer and then refuses for 2 ½ months to make a written order in which
David Derringer can appeal, thus taking the appellate process and due process
and equal protection from the Respondent. Judge Hadfield has “personal reasons” and a
personal agenda in which she persecutes David Derringer and after having taken an oath not
to do these things and to comply by the law makes it well outside of
jurisdiction and judicial capacity and therefore not judicial decisions. The other cases of a different nature that
David Derringer has or has had in the courts have and have had no possible
connection with the divorce action, but wherein Judge Hadfield works outside of
both jurisdiction and judicial capacity to use that information in the instant
case not of record to make decisions against David Derringer; well outside of
law, and under the meaning of federal “crimes” of “obstruction of justice”,
“conspiracy against rights” and “deprivation of rights under color of law”. Poorman v. Commonwealth, 782 S.W.2d 603, 605, 606 (Ky. 1989), cert. denied, 497 U.S. 1008
(1990). “The Kentucky
Supreme Court adhered to the general premise that a judge should not sit in
review of a case decided by her.” Several times the Petitioner with her attorney Alain Jackson have asked
Judge Hadfield to block and stop any further appeals of Respondent David
Derringer as is easily shown actually done in court record by blocking the
April 3, 2013 hearing stealing the 2005 Chevy Silverado along with the
incorporated $12,000.00 of David Derringer’s sole and separate inheritance
monies for Petitioner Barrie Derringer and then not filing any written order
for appeal of same until far after Rule 1-054, on June 17, 2013; hence blocking
and delaying ability to appeal for 2 ½ months. The Respondent has asked both Commissioner
Cosgrove/Aguilar and Judge Hadfield to recuse
for case four different times. Daitchman v. Daitchman, 483 A.2d 270, 271 (Vt. 1984). “Vt. R. Crim. P.50(d) now requires Vermont judges faced with a motion to recuse
to pass the motion to a disinterested judge.”
Still Judge Hadfield refuses to step down, believed due to political
“contributions” (bribes) and political influence of NAI Maestas and Ward
Commercial Real Estate, a multi-million dollar corporation that has the
Petitioner working in controversial and questionable acts as their accountant
without either a CPS or degree, but son intertwined with the corporation that
Steve Maestas gave Barrie Derringer a $2,000.00 raise in January, 2012 to leave
and divorce the husband David Derringer that was aggrieved that Maestas
verbally abused his wife and did not conform to the standards of employment
mandates of the US Department of Labor. Martinez v. Carmona, 624 P.2d 54, 95 N.M. 545 writ quashed 624 P.2d 535,
95 N.M. 593 “N.M. Court of Appeals 1980 Judge may be disqualified for
statutory, constitutional, or ethical cause-Code of Judicial Conduct, Canon 3
Subd. A, Constitution Article 6, Section 18.” Taking away “due process and
equal protection” is a violation of Oath, Canon and the Code of Judicial
Conduct and valid cause for recusal.
(3.)
Judge Hadfield has a failure and “refusal” to
comply with former case laws involving the substantive matter of the issues. In
all pleadings and in all open court hearings, Respondent David Derringer cites
tremendous case law, statutes, Constitution and statutes supporting the legal
contentions of the Respondent as well as the same mandating certain legal
decisions that are binding upon the judge. Each time the Petitioner has not
once cited any authority for any of their contentions or actions, relying
instead on the corruption and purchased rulings from Judge Hadfield, who also
does not give any reasons or authorities for any of her own decisions, and all
of her decisions since the beginning of these cases have been against Respondent
David Derringer and also against every law in the United States. Judge Hadfield is being thus in perjury under Oath,
and not abiding by the laws. Oath taken by Judge ____: “I, Judge ___, do solemnly swear that I
will support the Constitution of the United States and the Constitution and
laws of the State of New Mexico, and that I will faithfully and
impartially discharge the duties of the office of Judge on which I am about to
enter, to the best of my ability, SO
HELP ME GOD.”; In re Williamson, 43 BR 813 “An oath is an affirmation of truth of a statement,
which renders one willfully asserting an untruth punishable for perjury.”; Canon 3 (B)(2): A judge shall be
faithful to the law and maintain professional competence in it. Canon: “Law” “denotes court rules as well as
statutes, constitutional provisions, and decisional law.” The entire matter of
DV-12-234 has been on appeal as New Mexico Court of Appeals No. 32, 326 since
May 4, 2012 with no further ability or jurisdiction of either Commissioner
Cosgrove/Aguilar or Judge Hadfield, but despite the higher courts’
jurisdictions, both the Commissioner and Judge Hadfield continue with DV-12-234
against David Derringer even thought the entire case is both jurisdictionally
and fundamentally in legal error without any original service of summons. The
legal appeal of DM-12-610 was taken November 21, 2013 to the New Mexico Court of Appeals
No. 32,587. All after that time, regardless that Judge Hadfield had no further jurisdiction as the trial court, Judge Hadfield continued with the trial court in
hearings, changing the final judgment and other matters totally disregarding
that the higher court had total jurisdiction of the entire matter. Hearing was
illegally held on April 3, 2013 stealing the David Derringer 2005
Chevy Silverado and doing “changes” to the Final Judgment of November
15, 2012
illegally without jurisdiction. On June 4, 2013 in DM-12-610 with the entire matter
in the New Mexico Supreme Court under a Petition for Writ of Certiorari with
Appellant David Derringer of NM Ct. App. No. 32,587. Judge Hadfield was
notified by numerous case laws read into record that she had no legal
jurisdiction or ability to change the Final Judgment of that appeal until a
“remand” of jurisdiction. David Derringer read into court record the following
case laws, mandating that Judge Hadfield stop the illegal actions outside of
her jurisdiction while under appeal. Deerman
v. Board of County Commissioners, 116 NM 501, 864 P.2d 317 (Ct. App. 1993). “The judicial errors of law
are noticed to the court before appeal.”
Because the matter was on appeal, Judge Hadfield had no jurisdiction or judicial
capacity for that hearing. The hearing was jurisdictionally defective in
violation of NMRA Rule 1-054.1. The written Judgment and orders have a time
limit under this rule. “The Court shall enter an order within 60 days after
submission.” US v. Anderson,
798 F.2d 919 CA7 (Ind.) 1986 “Word should
(shall) in Canon of Judicial Conduct states that judge “should”, imposes mandatory standard of conduct
upon judges. There had been 62 days since the trial of this particular matter
on April 3, 2013, making the presentment hearing outside of the
jurisdictional limits of this court. The Respondent has this jurisdictional
issue preserved for appeal. Since the court changed some of the Orders of the
Final Judgment of November 15, 2012, this court had no jurisdiction for
this hearing, due to the jurisdiction being in the New Mexico Supreme Court for
a Petition for Writ of Certiorari of New Mexico Court of Appeals No. 32,587. Higginbotham v. Higginbotham, 92
NM 412, 589 P.2d 196 (1979) “Once the time has lapsed within which an appeal
may be taken from a divorce decree, a court cannot change the original division
of the property as an exercise in its continuing jurisdiction.” Chavez v. Village of Cimmaron, 65 NM 141, 333 P,2d 882 (1958). “Timely allowance of appeal is
jurisdictional to place a case on the docket of the Supreme Court for review.” State ex rel Bell v. Hansen Lumber Co., 86
NM 312, 523 P.2d 810 (1974) “During pendency of the appeal the court is without
power to vacate, alter or amend the judgment under Rule, whether the amendment
is made or considered after the appeal is taken except with the permission of
the appellate court. For relief a motion must be filed with the appellate court
and that the case be remanded to the trial court for consideration.” Judge Hadfield disregards all of the law and
presides as though she is the only judge and court in the United States of America. Judge Hadfield also presides over the case
DV-12-234 in which there is proven “fundamental error” of law without any
summons ever served upon David Derringer. Despite that, the action has been
continued for well over a year against David Derringer taking illegally all 1st,
2nd, 4th, 5th, 6th, 13th
and 14th Amendments. In the latest re-opening actions meant to stop
David Derringer from posting legal public record already properly filed
court pleadings on the Internet by way
of Google “blogs”, Judge Hadfield upheld the actions of deprivation of due
process, equal protection and Constitutional deprivations of Commissioner
Cosgrove/Aguilar to Order David Derringer to not post any public records on the
Internet because they exposed the public corruption of Judge Hadfield and Commissioner
Cosgrove/Aguilar and also the lies and fraud of Petitioner Barrie Derringer.
This is in direct violation of the 1st Amendment and in doing so the
Commissioner coupled in agreement with Judge Hadfield changed in only the Order
for David Derringer to have been “convicted” of criminal harassment without any
Miranda rights, without any attorney or jury, and without any criminal
complaint, but yet “sentenced” to 30 days in the Bernalillo County jail
deferred if David Derringer does not further exposure of the public corruption
of Commissioner Cosgrove/Aguilar, Judge Hadfield or Barrie Derringer again on
the Internet. Judge Hadfield and the Commissioner were both
notified of the higher court rulings of the New Mexico Court of Appeals and
absolutely “refused” to obey New Mexico
Court of Appeals rulings of No. (NO. 24,101), (NO.
27,959), (NO. 30,380), (NO. 30,591), (NO. 31,303), and (NO. 32,271); all of which prohibited
the ruling depriving David Derringer’s 1st Amendment right, the
illegal conversion of the civil matter to a criminal matter in the order
without Miranda rights, without attorney, without due process or equal
protection, without any jury and a total violation of the 6th
Amendment against David Derringer and yet still “sentencing” David Derringer to
30 days in jail, suspended if David Derringer removes and does not place other
items on the Internet illegally accusing David Derringer of “criminal
harassment”. Martinez v. Carmona, 624 P.2d 54, 95 N.M. 545 writ quashed 624 P.2d 535,
95 N.M. 593 “N.M. Court of Appeals 1980 “Judge may be disqualified for
statutory, constitutional, or ethical cause-Code of Judicial Conduct, Canon 3
Subd. A, Constitution Article 6, Section 18.” Violations of the “laws” of New Mexico including former case laws decided
by the New Mexico Supreme Court are cause for recusal.
(4.)
Judge Hadfield has violated Oath, Canon and the
Code of Judicial Conduct. Violations of such display misconduct in office.
Under the legal sufficiency doctrine "[when a trial judge is presented
with a motion to recuse, or disqualify, accompanied by an affidavit," the
state statute or rule limits the judge to passing upon the timeliness of the
motion and the legal sufficiency of the affidavit. If the judge finds the
motion timely, the affidavit sufficient, and that the recusal would be
authorized if some or all of the facts set forth in the affidavit are true,
another judge is assigned to hear the motion. Johnson v. District Court, 674 P.2d 952, 956 (Colo. 1984).; Goebel v. Benton, 830
P.2d 995 (Colo. 1992); Wright
v. District Court, 731 P.2d
661, 664 (Colo. 1987); Hammons
v. Birket, 759 P.2d 783, 784
(Colo. Ct. App. 1988), cert. denied (Colo. 1988). Birt v. State, 350 S.E.2d 241, 242(Ga. 1986). Such violations are cause for recusal. Since Judge Hadfield has been
complained of four separate times in Judicial Standards as well as a Petition
for Superintending Control in the New Mexico Supreme Court, this motion must be
decided by someone other than Judge Hadfield, and the
fox cannot be further in charge of the henhouse. State v. Hunt, 527 A.2d 223, 224 (Vt. 1987). Hunt involved
an action to recuse two justices who had disciplinary charges filed against
them concerning the case in question. The court noted that even though the
decision to grant or deny a recusal motion was discretionary, a judge must
recuse himself or herself where disciplinary charges had been filed concerning the case in question.
1d. See also State v. Forte,
553 A.2d 564, 565 (Vt. 1988).
.
(5.)
Judge Hadfield was not part of the Derringer marriage and on February 4,
2012 there was no court actions between David Derringer and Barrie Derringer
wherein Judge Hadfield had no personal or subject matter jurisdiction regarding
anything that happened on February 4, 2012 between husband and wife, and yet
makes an arbitrary and capricious ruling
in the Minute Order of June 17, 2013 that “Respondent
prevented Petitioner from attempting to retrieve these items in February 4,
2012” and therefore owes Barrie Derringer an amount of $2,820.00. At time
thereafter even after court action was filed did Barrie Derringer sustain by
evidence, witnesses or photographs or receipts any proof under any standards of
evidence, any claim to any personal property whatsoever and certainly no proof
that would sustain any award of judgment; without doubt there can be no claim
to a judgment prior to any divorce being filed with all property was community
property until sustained that it had a separate character, which Barrie Derringer
has not ever claimed or proven. Lucas v. Lucas, 621 P.2d 1289, 100 NM 556 Property
in New
Mexico takes its status as community or separate property at the
time and by the manner of its acquisition. Judge Hadfield only acquired personal and subject
matter jurisdiction over any person of Barrie Derringer or David Derringer or any control, opinion, or
jurisdiction over any community property, designation of sole and separate
property or any other matters only as of February 8, 2012 when Barrie Derringer filed a
Petition for Dissolution of Marriage. Until that time, including but limited to
February 4, 2012, it was none of Alisa Hadfield aka Judge Hadfield’s business
what transpired between David and Barrie Derringer, husband and wife as Judge
Hadfield was not any legal part of the Derringer marriage contract. Hence, any
ruling that takes illegal liberty to control, take or designate possession, or designate
individual ownership of any property within the possession of either David
Derringer or Barrie Derringer on February 4, 2012 prior to any court action
between the Derringers is absolutely illegal and outside of any possible
jurisdiction. Since there were no “parties” on February 4,
2012, there
can be no order or judgment from Judge Hadfield to persons outside of the
jurisdiction of her court as both Barrie Derringer and David Derringer were on February 4,
2012. Allen v. McClellan,77
N.M. 801, 427 P.2d 677 (1967) “No court can make a decree which will bind
anyone but a party; it cannot lawfully enjoin the world at large, no matter how
broadly it words its decree. If it assumes to do so, the decree is pro tanto
brutum fulmen.”when there was no
“Respondent nor Petitioner at that time in history but a husband and wife,
showing a bias, prejudice and extreme connection between Barrie Derringer and
Alisa Hadfield in a conspiracy of actions that did happen that day that
involved larceny, conversion, assault and battery, vandalism, destruction of
property and taking the personal exclusive property of David Derringer’s loaded
firearms by Barrie Derringer whom has later testified in DM-12-610 to being
suicidal, having extreme depression, being bipolar with extreme prescribed
medications and other acts that demanded at that time for David Derringer to
lock the storage/shop for prevention of Barrie Derringer’s possible suicide by
use of loaded firarms. The arrogance, illegal acts outside of jurisdiction and
awarding a judgment against a husband for acts at a time in history in which Judge Hadfield did not
even have a case before her for such rulings is outrageous acts of tyranny and
oppression that defeat every means of lw and Constitution. In no way and at not
time could Judge Hadfield ever order a judgment against David Derringer for
acts that took part on a day in history in a marriage in which there was no
Order of Protection or Petition for Dissolution of Marriage before any court of
law and more particularly no legal action with any jurisdiction of Judge
Hadfield.
(6.)
orking outside of jurisdiction with use of
other cases and other judge’s opinions to make decisions in the instant case is
without authority or jurisdiction wherein the instant judge is not the assigned
justice or the finder of facts and other cases are well outside of his
jurisdiction and judicial authority. Matter of Charge of Judicial
Misconduct or Disability, 39 F.3d 374, 309, US App. DC 97 “Judge in
adversarial judicial proceeding...who reaches outside of record to decide case
defiles process.” In short the Plaintiff is persecuted and penalized for prior
use of the courts regardless of the issues of which this instant judge “was
not” the finder of facts. State v. Reynolds, 111 NM 263, 267,
804 P.2d 1082, 1086 (Ct. App. 1990) “Matters outside the record present no
issue for review”. Use of other cases to malign or defeat the Plaintiff and use
of decisions contrary to law take all jurisdiction from the Judge. Mireless v. Waco, 502 U.S. 9, 116 S. Ct. 286, 112 L. Ed.2d 9 (1991) “were
performed in the complete lack of jurisdiction”. In this matter, Judge Malott has
no jurisdiction over any issues of the Order of Protection of DV-12-234
(illegally held without any service of summons) or the “divorce” action between
David and Barrie Derringer DM-12-610 or any decisions from these cases, which
are not intertwined or legally bound to either CV-12-1307 or CV-12-10816. Wascura v. Carver, 169
F.3d 683 “If court lacks subject matter jurisdiction over a claim, that claim
cannot provide a basis for imposing liability.” Judge Malott cannot consider actions of DV-12-234
or DM-12-610 for purposes of conversion, personal property, or loss of
consortium, alienation of affection or interference with a marriage contract,
or any of the actions or decisions by Judge Hadfield; all of which are on legal appeals. Beverly Health and Rehabilitation
Services Inc. v. Feinstein, 103 F.3d 151, 322 US App DC 245 Rehearing
denied 118 S. Ct. 65, 139 L.Ed.2d 27 “Courts decide cases within their
jurisdiction rather than asserting jurisdiction because they believe that
substantive claim ought to be considered.”. Working outside of jurisdiction,
considering actions that have no direct bearing on the instant substantive
litigation, or simply maligning the Plaintiff for having used the courts in
other litigation, and persecuting the Plaintiff for prior use of the courts
multiple times is cause for recusal.
(7.)
Judge Malott exhibits an animosity and hatred
towards the Plaintiff, exemplified with derogatory, slanderous, accusatory and
defaiming remarks in both open court and in the Orders from the court. As example,
when the Plaintiff seeks to enforce his statutory rights under NMSA 38-3-9
Judge Malott declares that David Derringer is without good grounds, not in good
faith, vociferous, and vexatious, when in fact David Derringer was legally correct and Judge Malott was violating state law and Rule to
remain on the case. As the Plaintiff attempts to gain enforcement of discovery
needed before trial and to identify the other Defendants properly under rule
and law, Judge Malott ignores the proven fraud and perjury of the Defendants in
their discovery answers, disregards Plaintiff David Derringer request and
showing need against the Defendants for “sanctions”, all showing preferential
treatment and favoritism. David Derringer is accused that he is of tautness, inappropriate,
vexatious, and improper. Defaming the character of David Derringer when proper legal attempts are made
to show the court the fraud, perjury and non-compliance with both rules and law
by the Defendants hardly are due an unprofessional tirade of accusations and
defamation by the justice. US v.
Gordon, 61 F.3d CA.4 (Md.) 1995 28 USCA 455(a) “Despite
external source requirement, recusal of judge may still be required if judge’s
actions during trial considered objectively, display deep seated favoritism or
antagonism that would make fair judgment impossible. “Partiality” that requires
judicial disqualification is apparent disposition against party that is
wrongful or inappropriate.” Admonishing a particular litigant that is operating
under the Rules and law to protect the opposition or corrupt the record that
there have been no indiscretions by the Defendants, when in fact shown and
proven in record by the Plaintiff is both inappropriate and illegal. Sexson v. Servaas, 830F.
Supp. 175 “Motion for recusal must identify cold, hard facts which create
appearance of partiality.” As the Plaintiff asserts with cause of blatant
preferential treatment of Defendants (violations of laws to stop Plaintiff’s
litigation, and violation of laws enabling the Plaintiff to excuse the judge)
precipitate threats. “Plaintiff’s assertion that Judge Malott has personal reasons that he wants
to continue to preside over this matter”. “Plaintiff
is warned that continued examples of his vitriol and hyperbole will be sternly
addressed including imposition of sanctions”. Clearly, the Plaintiff is
being singled out in such a manner to give later excuse of Judge Malott to “dismiss” the entire action under
the false guise of “sanctions” so as to entirely protect and insulate the
Defendants from any further prosecution. Purpura
v. Purpura, 847 P.2d 314, 115 N.M.80 cert denied 847 P.2d 313,
115 N.M. 79 “N.M. Ct. of Appeals 1993 “If judge becomes so embroiled in
controversy that he or she is unable to make fair and objective decision, judge
must recuse himself or herself. SCRA 1986 1-011, SCRA 1986, Canons 21-300 Subd.
A(3) 21-400”. Both the judge and the Plaintiff know what is happening here. The
Plaintiff seeks to properly litigate and has never done any violations of the
rules in pleadings, but has used “truthful” statements of a “cult control of
Barrie Derringer, abuse, coercion, domination, forced submission, and
exploitation”, such words and phrases not obscene or profanity, but apparently
very distasteful to the judge and the Defendants, regardless of those
allegations being the “truth” under NMRA Rule 1-090. The Plaintiff is then
threatened not to continue. Thus, the Plaintiff David Derringer has the
conundrum of succumbing to the threats and intimidation of Judge Malott and not
further disclosing the truth in pleadings, not continuing to prosecute his
case, not continuing to seek proper discovery, not to seek identity of the
proper other 10 Defendants to come before the court being hidden by Defendants,
and not exposing any perjury and fraud of the Defendants for proper “due
process”, which in fact will not properly place facts and issues in the court
record that will precipitate losing and not prosecuting the case properly, or,
to continue to properly use the courts in due process, wherein Judge Malott
will sanction the Plaintiff by dismissing the entire matter; either way
exhibiting a penchant for the Defendants to win this matter with abuse of
discretion and manipulation of the rules meant to perfect ruination of the
Plaintiff’s cause of action. The US Congress never intended a justice to use
“Rule 11” or his discretion and mis-use of power to deny due process, equal
protection, prejudice the Plaintiff, and manipulate the means of litigation so
as to gain an advantage from one party to another to “defeat justice”. Chavez v. Board of County
Comm’rs,
2001-NMCA-065 130 NM 753, 31 P.3d 1027. “prejudice of a party; A party is not
entitled to relief for a discovery violation unless the party has been
prejudiced by the violation”. In this case, the court has precluded means of
finding the other 10 parties by ignoring the Motion for Order for such,
exempting the Defendants’ Harms despite their “availability or control” by
having at their disposal an “employee” Barrie Derringer that knows this information,
and no action to make Barrie Derringer herself, Defendant, to disclose the
identity of the other 10 persons involved, thus keeping the Plaintiff from
proper parties before the court and obstructing the justice demanded of the
court for proper prosecution of the entire matter; accordingly allowing
knowingly the perpetrators to escape prosecution. United Nuclear Corp. v. General Atomic Co., 96 NM 155, 629
P.2d 231 (1980) appeal dismissed 451 US 901, 101 S. Ct. 1966, 68L.Ed.2d 289
(1981) “Mere possession of information by different party is not determinative
of the question of availability or control”. NMRA Rule 1-026: (B) scope of discovery (1) Parties may
obtain discovery “including the custody and the identity of persons having
knowledge of any discovery matter”. Disparaging and slanderous remarks, threats
and intimidation are a violation of Canon, Oath and the Rules of Judicial
Conduct and are conduct unbecoming a justice to give rise to reasons for
recusal for cause.
(8.)
Judge Malott uses threats and intimidation for
degradation of the right to state facts and the truth as known and believed by
the Plaintiff as mandated under NMRA Rule 1-090, with claims that it is both
distasteful to the court and the Defendants. The Plaintiff is being “set up” by
the judge to stop litigation and needed disclosure in the court record, and if
it continues from the Plaintiff, the idea to then sanction the Plaintiff by an
entire dismissal of the cases so as to protect and obliviate the entire
litigation under pretext that the pro-se Plaintiff did something so offensive
to tell the truth that dismissal was in order. Orders maligning, admonishing, and brandishing
the Plaintiff for his attempts to “tell the truth” under NMRA Rule 1-090, and
state facts in which obviously those facts are distasteful to the judge, and
implicate the Defendants being protected, extends well beyond the availability
under the laws that have already been presented by the Plaintiff numerous
times. Judge Malott states: “Plaintiff is warned that continued examples
of his vitriol and hyperbole will be sternly addressed including imposition of
sanctions”. Frates v. Weinshienk, 882 F.2d 1502 cert. denied 110 S. Ct. 1297, 494 US
1004, 108 L.Ed.2d 474 “Recusal motion should be permitted at any time it
becomes apparent that judge is biased or suffers from appearance of bias.” David Derringer is
entitled to “opportunity to be heard”. US v. Anderson, 798 F.2d 919 CA7 (Ind.) 1986 “Word should in Canon of
Judicial Conduct which states that judge “should” accord to every interested
person a full right to be heard, imposes mandatory
standard of conduct upon judges and requires presence of both prosecuting
attorneys and defendant at any proceeding which bears on outcome of pending case.”
Code of Judicial Conduct Canon 3, Subd. A(4) and C(1)(a). To any person, the claims of “alienation of
affection”, “loss of consortium” and “interference with a legal marriage”
involve emotions, suppositions, facts supported by actions and reactions in
reality, and matters of personality known mostly by the two spouses and their
interaction, wherein this court denies the Plaintiffs “assertions” when
behavior regarding such torts is hardly presentable in a tangible piece or
stone or document to the court, but in “testimony” and intangible evidence from
parties; information of intangible “facts” that this court refuses to allow the
Plaintiff to put in his legal pleadings. In re Doe, 519 P.2d 133,
86 N.M. 37 “N.M. App. 1974 Failure to hear one party’s evidence, when offered,
establishes a presumption of prejudice.”
Admonishing a Plaintiff for his presentation of issues is hardly a way for
any equitable justice to handle tort claims that involve comfort, fellowship,
affection, companionship, conjugal love, fellowship, and assistance; hardly something
the Plaintiff can set on the table in front of the judge. US v. Occhipinti, 851 F. Supp.
523 S.D.N.Y. 1993 “Recusal is appropriate when judge has personal interest at
stake, or some personal bias in favor for or against party to the action.” Clearly, the claims of “loss of consortium”,
“alienation of affection” and “interference with a legal marriage contract”
involve obviously containing “opinions”. The justice intends to stop the
Plaintiff from exposing Defendants and stating facts that are “distasteful” to
the Defendants such as a STD venereal disease involved in tort, even though
such facts presented have extreme bearing on the emotional torts claimed in the
Complaint. Deprivation of “due process”, “equal protection”, “opportunity to be
heard” and a set up to mis-use NMRA Rule 1-011 to “dismiss” the entire action
under guise of sanctions for the protection of the preferred multi-million
dollar Defendants to defeat the litigation of the individual pro-se party is
outrageous acts meant to defeat “justice”; acts that are a cause for recusal.
(9.)
The bias and prejudice against the Plaintiff is exhibited both in rude
and admonishing behavior against the Plaintiff both in Orders and open court
and the penchant of not ever discipline or admonishing either the Defendants or
their attorneys when blatant violation of rules occur, such as simply denying
and ignoring the Pro-Se Plaintiffs request for sanctions when the Defendant’s
attorney was proven to have violated Rule 1-088.1, and the constant violations
of discovery with Plaintiff’s requested sanctions; each request for sanctions
being very valid, yet the Plaintiff admonished for such a request and no
request properly granted. The bias and prejudice for the Defendants is more
than obvious in rulings, wherein the law is not followed to allow the
Defendants to escape the claims of the Plaintiff, even when the Plaintiff’s
claims are fully supported by law in which relief can be granted. The
Plaintiff, however is precluded from any trial on the matters as summarily
dismissed in legal error. Instead of an American court being outraged that the
institution of marriage has been destroyed and defiled by a “corporation”
exploiting one spouse; the court here is outraged that an individual would sue
a corporation and CEO’s that did extensive damages to his person, his marriage
and his property. Bias and prejudice that is seen in this matter manifested in rulings against New
Mexico laws to protect and insulate a
multi-million dollar corporation and the CEO’s of same against the private
pro-se party is a cause
of recusal.
(10.)
Plaintiff David Derringer is continually threatened with “sanctions” by
Judge Malott, but when the opposition attorneys are proven to have committed
sanctionable acts under “Rule 11” of
blatant violations of discovery including not even identification of themselves
in the first round, necessitating the Plaintiff to have to file for an Order of
compliance, and their fraudulent attempt to peremptory excuse Judge Brickhouse,
and wherein Plaintiff David Derringer requests sanctions in both pleadings and
open court that are both supported by law and necessary for “discipline” of
attorneys, Judge Malott protects and insulates both the Defendants and their
attorneys since it is merely a Pro-Se party seeking sanctions, wherein they
would have been granted as proper litigant had an attorney been representing
the Plaintiff. NMRA 21-400 disqualification: A Recusal: A judge is disqualified
and shall recuse himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned, including, but not limited to
instances where: (1) The judge has a personal bias or prejudice concerning a
party. Threatening and intimidating a pro-se party seems to be a viable
exercise to end the litigation and keep damaging information from the court
record, if only Judge Malott could achieve David Derringer into forced
submission, or the alternative is to create sanctions against the Plaintiff and
simply dismiss the case; all in judicial mis-use of power and a manifest
injustice as the judicial system was originally conceived by the US Congress
and Constitution for “justice for all” and entire parameters set forth in the
ideas of “due process and equal protection”. Daitchman v. Daitchman, 483 A.2d 270, 271 (Vt. 1984). Vt.
R. Crim. P. 50(d) “requires Vermont judges
faced with a motion to recuse to pass the motion to a disinterested judge.” and
to. "It is the right of every citizen to be tried by judges as impartial
as the lot of humanity will admit." N.H. CONST. pt. I, art. 35. State v. Linsky, 379 A.2d
813, 823-24 (N.H. 1977).
WHEREFORE for the above reasons, the Plaintiff request Judge Malott to recuse
for cause and for this motion to be heard by a disinterested justice in another
district.
Respectfully submitted by: ______________________________________
David
Derringer Pro-Se, Box 7431, Albuquerque,
New Mexico 87194
CERTIFICATE OF SERVICE
June 17, 2013
I hereby certify
that I hand delivered a copy of this pleading for filing to:
Second Judicial District Court
400 Lomas NW
Albuquerque,
New Mexico 87102
I hereby certify
that I mailed a copy of this pleading to Defendant Jackson at:
423 6th
St. NW. Albuquerque,
New Mexico 87102
And to the attorney Floyd
Wilson for Defendant Barrie Crowe:
Floyd Wilson
12480 Hwy. 14 North. Ste.
105
Cedar Crest, NM
87008
And to the attorney for Geraldine
and Warren Crowe:
Alicia
Santos of O’Brien & Padilla P.C.
6000
Indian School Road NE Suite 200
Albuquerque,
New Mexico 87110
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