Newspaper column: Judicial bias depends on the party involved

Bias, like beauty, is in the eye of the beholder.

Earlier this year a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals overturned a decision by Reno federal Judge Robert Clive Jones involving water rights in the Walker River Basin and ordered him removed from the case, saying he was biased against the federal government’s attorneys.

“We reluctantly conclude that reassignment is appropriate here because we believe (1) that Judge Jones would have substantial difficulty putting out of his mind previously expressed views about the federal government and its attorneys, and (2) that reassignment will preserve the appearance of justice,” wrote Judge A. Wallace Tashima, noting that in two previous cases the 9th Circuit had said Jones “harbored animus toward the federal agencies” and that “the judge’s bias and prejudgment are a matter of public record …”

In the Walker River case the previous evidence of bias was based on the fact Jones had stated, “[E]ven though the government in many cases didn’t have the right to insist upon a permit … nevertheless, the government in many cases has insisted upon it. … I don’t like and never have liked the BLM’s or Forest Service’s arrogant presumption that they could assess to people for … trespass, their own travel costs, office costs, sitting in their big chair already paid for by the American taxpayer.”

Sounds like a factual assessment rather than bias.

The other case in which bias was alleged involved the Hage family ranch near Tonopah in which Jones accused government officials of entering into “a literal, intentional conspiracy to deprive the Hages not only of their permits but also of their vested water rights. This behavior shocks the conscience …”

He ruled the government had interfered in the case by urging others to apply for the Hages’ grazing permits, by applying themselves for the Hages’ water rights and by issuing trespass notices against witnesses soon after they had testified.

Now, if one wants to consider bias, perhaps one should review the federal judge’s behavior in the trial of some of the defendants in the 2014 Bundy ranch standoff, in which federal agents attempted to confiscate Bunkerville rancher Cliven Bundy’s cattle for trespassing on federal land without a permit. The agents backed down when confronted by armed protesters.

Federal Judge Gloria Navarro granted the prosecution’s sweeping call for limits on defense evidence — including arguments that the defendants felt justified to show up and protest the confiscation of Bundy’s cattle because of abusive use of force by law enforcement and that they were simply exercising their First and Second Amendment rights.

Navarro noted in her ruling, “The Court also rejected Defendants’ proposed instructions on the First and Second Amendment because they are not legally cognizable defenses, or in other words, the law does not recognize these Amendments as legal defenses to the crimes charged.”

Navarro later declared a mistrial because prosecutors failed to disclose evidence of that “abusive force,” which was barred from being presented as evidence.

Then there is the federal judge who heard the trial of Cliven Bundy’s sons Ammon and Ryan and others for the 41-day armed takeover of the Malheur National Wildlife Refuge in Oregon to protest the lengthy sentences assessed two ranchers for letting backfires burn a few acres of federal land.

After they were acquitted, Utah lawyer and rancher Todd Macfarlane reported in the spring issue of Range magazine that the judge in the case, Anna Brown, once was quoted as saying, “The federal government has so many resources at its disposal, and is so meticulous in its work, that I would never expect to see a criminal defendant acquitted in my court.”

Macfarlane described the judge’s treatment of the prosecution and defense in the trial as grossly disparate.

“What I have learned since then is that this is not unique to the Bundy cases. According to a growing body of evidence, federal judges have become so accustomed to favoring the prosecution that they no longer seem to recognize what they’re doing,” he wrote.

No one raised so much as an eyebrow over the behavior of Navarro and Brown in their cases, but Judge Jones gets slapped down — not so much for showing bias, but for which party he allegedly showed bias.

One person’s bias is another’s hard-earned experience.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Malheur standoff (AP pix)

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Bunkerville standoff case likely to be determined by the 9th Circuit

Cliven Bundy released from jail. (Photo by R-J’s K.M. Cannon via AP)

As Yogi Berra said, “It ain’t over till the fat lady sings.”

In the matter of the Bunkerville standoff case, the fat lady may be the 9th U.S. Circuit Court of Appeals. Though the judge on Monday dismissed the case against Cliven Bundy, two of his sons and a Montana militia man “with prejudice,” meaning the charges can’t simply be refiled and another trial scheduled, according to the Reuters account, The Associated Press notes that the U.S. attorney, Dayle Elieson, released a one-sentence statement saying she will make a determination about whether to challenge the ruling before the appellate court.

Four years after the standoff, in which armed protesters faced off with heavily armed BLM agents attempting to impound Bundy’s cattle for failure to pay $1 million in grazing fees and fines for two decades, and millions of tax dollars spent by the prosecution, what are the chances the feds will not appeal to the reliably liberal and prosecution-sympathetic 9th Circuit?

Witness the court’s pro-government rulings in both the Walker River Irrigation District and the Wayne Hage ranch cases. On both cases the court found that a federal judge’s hard-earned, keen-eyed determination that the federal land agencies were running rough shod over the defendants amounted to bias on the judge’s part rather than accurate judgment.

In the Walker River case the court found evidence of bias in the fact that the judge had stated, “I believe in constitutional rights. I believe in protecting the rights of the Native Americans and in property rights that have been recognized over time, I believe in that and that’s my agenda.”

Another factor may be that nearly all the disclosure evidence that the prosecution failed to turn over to the defense, which resulted in a mistrial and the dismissal of charges, were deemed not admissible in earlier trials. Could that be grounds for appeals in the handful of convictions in those trials, since the discovery was not available then? One man was sentenced to 68 years in prison.

For example, the judge noted that the prosecution failed to give to the defense log entries that said “snipers were inserted” outside the Bundy home, though prosecutors previously denied any snipers were posted and now say they were unaware of the FBI log showing otherwise. Ignorance is no excuse, the judge chided.

In an earlier trial, the same judge kicked defendant Erik Parker off the witness stand for trying to mention where a BLM sniper was positioned. He was not allowed to continue his defense. The judge had ruled that evidence of provocation was not admissible.

Also, according to AP, the judge has set a Feb. 26 trial date for four defendants still awaiting trial, including two more Bundy sons, Mel and David. What will they be allowed to argue in their defense, if the trial goes forward?

 

 

Editorial: One person’s bias is another’s fact-based judgment

Walker Lake (BLM photo)

Walker Lake (BLM photo)

Fair treatment looks like bias to those who are accustomed to being shown obsequious deference.

Once again federal lawyers who have been handed a rejection of their legal arguments by a federal judge are claiming that their case was not weak but that the judge is biased.

After having their case summarily thrown out in the 92-year-old lawsuit, U.S. v. Walker River Irrigation District, federal lawyers are asking that the judge in the case be recused, alleging he is biased against the federal government, according to an account in the Mineral County Independent-News. (motion-to-recuse)

The case involves a question of which party has the rights to certain waters in the Walker River basin. U.S. District Judge Robert Jones sided with the irrigation district.

In January, federal lawyers managed to get the 9th U.S. Circuit Court of Appeals to toss Judge Jones off the 25-year-old land and water rights case involving the Hage ranching family of Nevada by using a bias claim.

A longtime Nevada practitioner before the 9th Circuit said, “The Circuit’s action in Hage was highly unusual. The 9th Circuit often reverses district courts, and occasionally reassigns cases, but it is rare for them to make a finding of actual bias.”

Rare but perhaps not rare enough.

Apparently a judge’s hard-earned, keen-eyed experience constitutes bias to the appellate court. All Judge Jones did was accuse government officials of entering into “a literal, intentional conspiracy to deprive the Hages not only of their permits but also of their vested water rights. This behavior shocks the conscience …”

He ruled that the government had interfered in the case by urging others to apply for Hage’s grazing permits, by applying themselves for Hage’s water rights and by issuing trespass notices against witnesses soon after they had testified. All in a day’s work for a federal bureaucrat in the eyes of the appellate court?

In the Walker River case the feds found evidence of bias in the fact that Judge Jones had stated, “I believe in constitutional rights. I believe in protecting the rights of the Native Americans and in property rights that have been recognized over time, I believe in that and that’s my agenda.”

Then, according to federal lawyers, there is this damning comment from the judge, “[E]ven though the government in many cases didn’t have the right to insist upon a permit … nevertheless, the government in many cases has insisted upon it. … I don’t like and never have liked the BLM’s or Forest Service’s arrogant presumption that they could assess to people for … trespass, their own travel costs, office costs, sitting in their big chair already paid for by the American taxpayer.”

How dare he show prejudice against bureaucrats hell bent on running rough shod over the rights of the serfs! Who does he think he is, a federal judge?

The prosecutors also took issue with how the judge ruled against them, saying, “In ruling on the motions to dismiss, Judge Jones determined, sua sponte, that all of the water right claims of the United States were barred by res judicata or, in the alternative, laches. Yet, no motion to dismiss was based on either res judicata or laches and the United States never had the opportunity to substantively address the legal and factual merits of any such claims.”

Sua sponte is legalese for acting on his own accord, while res judicata means the matter has already been settled by the courts and laches means time has run out — after only 92 years?

In fact, the U.S. Supreme Court has said that it is a “long-recognized inherent power of Federal District Courts, acting on their own initiative, to dismiss cases that have remained dormant because of the inaction or dilatoriness of the parties …”

Knowing the track record of the uber-liberal 9th Circuit, we suspect Judge Jones will get the boot again and this case will drag on for another century or so, but, if justice is ever to be served, things need to change.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.