Memorandum Of Law In Support Of Plaintiffs’ Motion

Summary

A memorandum of law filed September 3, 2021 as Document 17-1 in Children's Health Defense, Inc., et al. v. Rutgers, The State University of New Jersey, et al., Case No. 3:21-cv-15333 (ZNQ-TJB), in the U.S. District Court for the District of New Jersey. Filed by plaintiffs' counsel Julio C. Gomez of Gomez LLC, it supports a motion asking Judge Zahid N. Quraishi to recuse himself under 28 U.S.C. § 455(a). The memorandum states that the motion does not claim actual bias, but argues that the judge's recent service as an adjunct professor at Rutgers Law School, while Rutgers COVID-19 policies were in effect, creates an appearance of partiality. It relies on Liteky v. U.S., 510 US 540 (1994), Potashnick v. Port City Const. Co. and Webbe v. McGhie Land Title Co. The memorandum is 10 pages.

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Case 3:21-cv-15333-ZNQ-TJB Document 17-1 Filed 09/03/21 Page 1 of 10 PageID: 161




 Julio C. Gomez, Esq.
 GOMEZ LLC ATTORNEY AT LAW
 1451 Cooper Road
 Scotch Plains, NJ 07076
 Tel 908.789.1080
 Fax 908.789.1081
 Attorney for Plaintiffs


                      UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY


  CHILDREN’S HEALTH DEFENSE, INC.,
  PETER CORDI, RAELYNNE MILLER,
  KAYLA MATEO, ADRIANA PINTO,
  JAKE BOTHE, AND DOES 1-13,

                    Plaintiffs,                    Case No. 3:21-cv-15333
                                                        (ZNQ-TJB)
        -against-

  RUTGERS, THE STATE UNIVERSITY
  OF NEW JERSEY, BOARD OF
  GOVERNORS, RUTGERS SCHOOL OF
  BIOMEDICAL AND HEALTH
  SCIENCES, CHANCELLOR BRIAN L.
  STROM, PRESIDENT JONATHAN
  HOLLOWAY, in their official capacities.

                    Defendants




    MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION
         FOR RECUSAL PURSUANT TO 28 U.S.C. § 544(a).
Case 3:21-cv-15333-ZNQ-TJB Document 17-1 Filed 09/03/21 Page 2 of 10 PageID: 162




                            TABLE OF CONTENTS


 TABLE OF AUTHORITIES…..…………………………………………………..ii

 STATEMENT OF FACTS AND LAW……………………..…….…………….…1

 ARGUMENT ………………………………………………………………………4

 CONCLUSION ……………………………………………………………………7




                                       i
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                            TABLE OF AUTHORITIES

                                       Cases

 Liteky v. U.S.,
 510 US 540 (1994) …………………………………..…………………………………………………2, 3

 Potashnick v. Port City Const. Co.,
 609 F.2d 1101 (5th Cir. 1980),
 rehearing denied 613 F.2d 314,
 certiorari denied 449 U.S. 820 ……………………………………………………………………..2, 3

 Webbe v. McGhie Land Title Co.,
 549 F.2d 1358 (10th Cir. 1977) …………………………………………………………………….3, 5




                                        ii
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       Plaintiff Children’s Health Defense, Inc. (“CHD”), Peter Cordi, Raelynne

 Miller, Kayla Mateo, Adriana Pinto, and Jake Bothe (collectively, “Plaintiffs”),

 through their undersigned attorney, respectfully request the Honorable Zahid N.

 Quraishi, U.S.D.J. enter an Order recusing himself pursuant to 28 U.S.C. § 455(a).

                   STATEMENT OF FACTS AND THE LAW

      This application is not undertaken lightly.

      First, to be perfectly clear, this application is not based on any claim or

 suspicion that Judge Quraishi actually has a personal bias or prejudice against

 Plaintiffs or in favor of any adverse party. See 28 U.S.C. § 144. There is no

 reason to hold such suspicion and no such claim is made here.

      Second, there is no reason to question Judge Quraishi’s integrity, honesty,

 temperament or character. He is a distinguished member of the Bar and of this

 Court with the distinct honor and achievement of being the nation’s first Article III

 Muslim federal judge.      See Declaration of Counsel, Julio C. Gomez, filed

 contemporaneously (“Counsel Decl.”), Ex. A, C, and D. Judge Quraishi is also a

 decent human being. As a federal judge, during a pandemic, he made time to teach

 trial presentation skills to students in person at Rutgers Law School. Counsel

 Decl., Ex. C.

      As admirable as Judge Quraishi’s achievements and service are, however,

 until a few months ago he served as an adjunct professor of a university that is the
Case 3:21-cv-15333-ZNQ-TJB Document 17-1 Filed 09/03/21 Page 5 of 10 PageID: 165




 principal defendant in this case and taught under Rutgers’ guidelines and

 restrictions concerning COVID-19, which are the subject matter of this case.

 Counsel Decl., Ex. A, C, E. In fact, Your Honor taught at Rutgers Law School in

 the Spring of 2021: you were there in January when Rutgers announced it would

 not mandate COVID-19 vaccines, and you were there in March when President

 Holloway announced Rutgers would mandate COVID-19 vaccines for students,

 but not professors, in the Fall. Counsel Decl., Ex. E. Indeed, Rutgers’ webpage

 indicating that Your Honor was an adjunct member of the faculty was not removed

 from Rutgers’ website until only this week. Counsel Decl., Ex. B.

      According to 28 U.S.C. § 544(a), “[a]ny justice, judge, or magistrate of the

 United States shall disqualify himself in any proceeding in which his impartiality

 might reasonably be questioned.” Writing for the majority, Justice Scalia described

 this as a “catchall” recusal provision, “covering both ‘interest or relationship,’ and

 ‘bias or prejudice’ grounds… but requiring them all to be evaluated on an objective

 basis, so that what matters is not the reality of bias or prejudice but its appearance.”

 Liteky v. U.S., 510 US 540, 548 (1994) (emphasis his). Under Section 544(a),

 Justice Scalia concluded, “[q]uite simply and quite universally, recusal was

 required whenever ‘impartiality might reasonably be questioned.’” Liteky v. U.S.,

 510 US 540, 548 (1994) (emphasis his); see also Potashnick v. Port City Const.

 Co., 609 F.2d 1101, 1120 (5th Cir. 1980) (reluctantly reversing judgment for



                                            2
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 judge’s failure to recuse), rehearing denied 613 F.2d 314, certiorari denied 449

 U.S. 820; Webbe v. McGhie Land Title Co., 549 F.2d 1358, 1361 (10th Cir. 1977)

 (reversing judgment and remanding to different judge).

       The 1974 amendments to Section 544(a) transformed this into an objective

 standard for recusal. Liteky at 548; Potashnick, at 1110-111 (noting the removal of

 the words, “in his opinion” from the prior version of the statute). 1 “[T]he goal of

 the judicial disqualification statute is to foster the Appearance of impartiality.”

 Potashnick at 1111. As the Fifth Circuit eloquently explained:

       This overriding concern with appearances, which also pervades the
       Code of Judicial Conduct and the ABA Code of Professional
       Responsibility, stems from the recognized need for an unimpeachable
       judicial system in which the public has unwavering confidence. As
       this court has noted, “the protection of the integrity and dignity of the
       judicial process from any hint or appearance of bias is the palladium
       of our judicial system.” Any question of a judge’s impartiality
       threatens the purity of the judicial process and its institutions.

 Id. (emphasis added). As a result,

       [b]ecause 28 U.S.C. § 455 focuses on the appearance of impartiality,
       as opposed to the existence in fact of any bias or prejudice, a judge
       faced with a potential ground for disqualification ought to consider
       how his participation in a given case looks to the average person on
       the street. Use of the word “might” in the statute was intended to
       indicate that disqualification should follow if the reasonable man,

 1
   “According to the report of the House Judiciary Committee, the general standard
 of section 455(a) was designed to promote the public’s confidence in the
 impartiality and integrity of the judicial process by saying, in effect, that if any
 reasonable factual basis for doubting the judge’s impartiality exists, the judge
 “shall” disqualify himself and let another judge preside.” Potashnick at 1111
 (citing 1974 U.S.Code Cong. & Admin.News, pp. 6351, 6354-55).

                                           3
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          were he to know all the circumstances, would harbor doubts about the
          judge's impartiality. Note, Disqualification of Judges and Justices in
          the Federal Courts, 86 Harv. L. Rev. 736, 745 (1973).

 Id. at 1111. The question for the Court is whether a person on the street might

 reasonably question Judge Quraishi’s impartiality in this case if he knew Judge

 Quraishi was a professor at Rutgers only a few months ago, wearing a mask and

 presumably complying with Rutgers’ COVID-19 regulations and restrictions.

                                       ARGUMENT

          The public significance of this case is monumental.

          The issues raised in the case go to the heart of the rule of law – can a

 university disregard state and federal law?

          Adjudication of this case may define the police power of the state in this

 country for decades to come – can a university coerce its students (and not

 professors) to undergo vaccination with experimental vaccines? What is the scope

 of a person’s right to informed consent and to refuse such medical treatment?

          This case also raises serious allegations about the relationship between Big

 Pharma and our cherished alma mater 2: Rutgers was one of the first universities to

 announce that it would not require COVID-19 vaccines for students returning to

 campus, and just two months later, in an extraordinary about-face, became the first

 university in the nation to mandate them. This case raises all of these issues at one


 2
     Undersigned counsel also graduated from Rutgers Law School in 1998.

                                              4
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 of the most profound moments in world history on behalf of students who have

 chosen not to vaccinate while the 24/7 media and elected officials blame the

 unvaccinated, are terminating them from employment and education, and casting

 them out of society.

       Federal law and federal precedent tells us that the “appearance of

 impartiality is virtually as important as actual impartiality.” See Webbe v. McGhie

 Land Title Co., 549 F.2d 1358, 1361 (10th Cir. 1977) (reversing judgment and

 remanding to different judge). Plaintiffs do not question Your Honor’s

 impartiality. Judge Quraishi is a model new judge, and Plaintiffs applaud that

 Your Honor taught law students while serving as a Magistrate.

       But, teaching at Rutgers -- deriving collegiality, prestige, income, favorable

 publicity, and the pleasure of being an alum ‘who made it,’-- creates an appearance

 of potential bias, especially to Plaintiff students at Rutgers, and to millions of

 similarly situated students across the country. Few would question the need for

 recusal if a newly appointed judge were asked to resolve a dispute with the law

 firm he recently left. While the income differential is substantial between leaving a

 law partnership and an adjunct professorship, the problem remains: a member of

 the public could reasonably perceive that a judge might be biased in favor of his

 former and perhaps future professional home.




                                            5
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         The fact that Judge Quraishi taught at Rutgers during the pandemic,

 necessarily upholding Rutgers’ pandemic restrictions, furthers a reasonable

 perception that he might be likely to uphold Rutgers’ vaccine restrictions as he

 adhered to masking (and presumably testing requirements, if Rutgers imposed

 them at the time he taught). Indeed, had Your Honor fundamentally disagreed with

 Rutgers’ precautionary measures, presumably You could have discontinued

 teaching as an adjunct since it obviously was not Your Honor’s primary source of

 income. Plaintiffs cannot so easily exercise the “choice” that Rutgers has put to

 them.

         Plaintiffs may well be disappointed by another judge’s views about this case.

 Plaintiffs may be making a mistake. Nevertheless, we are all in a fishbowl. This

 case will be scrutinized by people around the country and likely the world.

 Plaintiffs do not want anyone to be able to reasonably question the impartiality of

 the judge who will decide this case, no matter the outcome or whom it favors.

 Plaintiffs and defendants deserve a case where that cannot happen.

         Regretfully, because a reasonable person could question the impartiality of a

 judge who taught at the defendant university only a few months ago, we ask for

 recusal.




                                           6
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                                   CONCLUSION

        For all of the foregoing reasons, Plaintiffs respectfully request the Honorable

  Zahid N. Quraishi, U.S.D.J. enter an Order recusing himself pursuant to 28 U.S.C.

  § 455(a).

                                            Respectfully submitted.

  September 3, 2021                            GOMEZ LLC
                                               ATTORNEY AT LAW
                                               By:    s/ Julio C. Gomez
                                                        Julio C. Gomez, Esq.

                                               1451 Cooper Road
                                               Scotch Plains, NJ 07076
                                               Tel 908.789.1080
                                               Fax 908.789.1081
                                               jgomez@gomezllc.com
                                               Attorney for Plaintiffs




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