# Opposition Brief — Kettenbach v. Demoulas

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0652%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2005
- **Citation:** 545 U.S. 1128

## Text

No. 04-1257

IN THE

Supreme Court of the United States

FRANCES D. KETTENBACH,
Petitioner,
v.

RAFAELE LORAINE DEMOULAS, ADMINISTRATRIX
OF THE ESTATE OF EVAN G DEMOULAS AND NEXT
FRIEND OF VANESSA EVAN DEMOULAS, DIANA D.
MERRIAM, FOTENE J. DEMOULAS, ARTHUR S.
DEMOULAS AND EVANTHEA DEMOULAS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
APPEALS COURT FOR THE COMMONWEALTH OF MASSACHUSETTS

BRIEF IN OPPOSITION FOR RESPONDENTS DIANA D.
MERRIAM, FOTENE J. DEMOULAS, ARTHUR S. DEMOULAS,
AND EVANTHEA DEMOULAS

CAROL RUFFEE COHEN
Counsel of Record
JOSHUA S. GROSSMAN
Davis, MALM & D’ AGOSTINE
One Boston Place
Boston, Massachusetts 02108
(617) 367-2500

Counsel for Respondents Diana D. Merriam,
Fotene J. Demoulas, Arthur S. Demoulas,
and Evanthea Demoulas

194483 ce

COUNSEL PRESS
(800) 274-3321 + (800) 359-6859

i

TABLE OF CONTENTS

Page
TABLE OF CITED AUTHORITIES ............ iV
STATEMENT OF THE CASE ................. l
I. The Misstatements In The Petition For A Writ
I are sea beable a ea viace bs l
Il. The Motions For Recusal. ............... 2
NE her i cr ae We OW i ok Chee hk wkak 4
I. The Petition Should Be Denied Because It
Articulates No Compelling Reason For The
Court To Exercise Its Discretion To Review
This Matter Under Supreme Court Rule 10. .. 4
Il. The Judgment Was Based On An Independent
And Adequate State Law Ground Separate And
Apart From Petitioner’s Federal Claims. .. . 6
A. Procedural Rules May Form Independent
And Adequate State Law Grounds. .... 6
B. Mass. R. Civ. P. 60(b) Is Firmly
Established And Regularly Followed. .. . 7
C. Mass. R. Civ. P. 60(b) Promotes The
Legitimate State Interest Of Finality Of
er ere 1]

D. The Doctrine Of Law of Case Is Firmly
Established And Regularly Followed. .. . 12

li

Contents

E. The Doctrine Of Law Of The Case Serves

A Legitimate State Interest. ........-.

Ill. Petitioner Has Waived Review Of Its Claims
By This Court. ........-. esse ee ee eee

A. Petitioner Waived Review Of Question

One, Whether The Massachusetts Judicial
Recusal Test Itself Offends Petitioner’s
Fourteenth Amendment Right To A Fair
Trial By A Fair Tribunal Under The
United States Constitution, By Failing To
Raise This Issue In Either The Superior
Court Or Appeals Courts In The First
Instemes. ... 22s ccccacsveesnsmenenes

Petitioner Waived Question Two,
Whether The Trial Judge’s Bias Violated
Petitioner’s Fourteenth Amendment Right
To A Fair Trial By A Fair Tribunal Under
The United States Constitution, By
Failing To Adequately Articulate This
Issue Below. ... 1. ccscccccsceecesss

IV. Judge Lopez’ Decisions Not To Recuse Herself
Did Not Violate The Petitioner’s Fourteenth
Amendment Rights. ........-.--++++++5

A. The Massachusetts Recusal Test Has The
Same Components As The Federal
Recusal Statute. .......ccccsccccces

Page

14

16

16

18

20

20

lil

Contents
Page

B. Not All Grounds For Recusal Involve
Constitutional Principles. ........... 22

C. This Court Can Determine Independently
That Judge Lopez Harbored No Actual
Bias Toward The Petitioner In Violation
Of The Petitioner’s Constitutional Rights.

Pe €@ O28L2 64286 620 CE CSCO Bee eeaeeceenase sie oe 8 6

iv

TABLE OF CITED AUTHORITIES

Page
FEDERAL CASES
Ackermann v. United States, 340 U.S. 193 (1950) .... 12
Adams v. Robertson, 520 U.S. 83 (1997) ...... 17, 18, 19
Aetna Life Insurance Co. v. Lavore, 475 U.S. 813
(ener 23
Bankers Mortgage Co. v. United States, 423 F.2d 73
(SACI) occ cccctaccnrcenscccsesnenseess 12
Barr v. City of Columbia, 378 U.S. 146 (1964) .... 7
Board of Directors of Rotary International v. Rotary
Club of Duarte, 481 U.S. 537 (1987) .....-----. 19
Bracy v. Gramley, 520 U.S. 899 (1997) .....+++-- 23, 24
Braxton v. United States, 500 U.S. 344 (1991) .... | 4

Buntz v. Glover Livestock Commission Co., 411 U.S.
UBD CADTS) ooccc cv cvccaenuntsacscnesenonas 4

Cheney v. U.S. District Ct. for the District of
Columbia, 541 U.S. 913, 124 S. Ct. 1391 (2004)
PR pore yee eT ee LE ee ee. 21

Clay v. Brown Hopkins & Stambaugh, 892 F. Supp.
11 (D.D.C. 1995) ....... eee cece eee ee eeee 21

Coleman v. Thompson, 501 U.S. 722 ty) Pee 7

————————

v
Cited Authorities
Page

Durham v. United States, 401 U.S. 481 (1971) .... 4
Dyas v. Lockhart, 705 F.2d (8th Cir. 2d 1983) ..... 24, 25
Ellis v. Dixon, 349 U.S. 458 (1955) ............. 6
Estelle v. Gamble, 429 U.S. 97 (1976) ........... 4
FTC v. Cement Institute, 333 U.S. 683 (1948) ..... 22
Fox Film Corp. v. Muller, 296 U.S. 207 (1935) .... 7
Hathorn v. Lovorn, 457 U.S. 255 (1982) ......... 7,14
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322

tk Me Ci Pree eT eee Pree eer oe oe 10
Herdon v. Georgia, 295 U.S. 441 (1935) ......... 7
Liberty Lobby, Inc. v. Dow Jones & Co., Inc., 838

Fae SASF Cir GO, CE sind bees cas bakes 21
Liljberg v. Health Services Acquisition Corp., 486

UM OUT ENED sihecicescessalaenrece es. 21
Liteky v. United States, 510 U.S. 540 (1994) ...... 21
Michigan v. Tyler, 436 U.S. 499 (1978) .......... Pe Y
Microsoft Corp v. United States, 530 U.S. 1301, 121

ee PORT Poe ie Ce er rE ree Pe 21

New Hampshire v. Maine, 532 U.S. 742 (2001) .... 10

vi

Cited Authorities
Page
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ;
Street v. New York, 394 U.S. 576 (1969) .....---- 19
Tumey v. Ohio, 273 U.S. 510 (1927) ....-eeeeeee 22, 23
United States v. Mitchell, 377 F. Supp. 1312 (D.D.C.
Ty, ) is 21
United States v. State of Alabama, 828 F.2d 1532 (11th
Cie, 19BT) cc cncccccccccednnageasscssensese® 21
In re WHET, Inc., 33 B.R. 424 (D. N.ass. 1983) .-. 13
Webb v. Webb, 451 U.S. 493 (1981) ..--- +--+ +5: 19, 20
White v. Murtha, 377 F.2d 428 (Sth Cir. 1967) .... 13, 16
Wilks v. Israel, 627 F.2d 32 (7th Cir. 1980) ......-.- 27
Withrow v. Larkin, 421 U.S. 35 (1975) ..---+++++: 24
STATE CASES
Anderson v. Anderson, 407 Mass. 251 (1990) ..... 8
Bird v. Ross, 393 Mass. 789 (1985) ...----+++++° 9

Bromfield v. Commonwealth, 400 Mass. 254 (1987)
ee pcuuceoess0eeebeneneseeeeeeeeeere 9,12

vii

Cited Authorities
Page
Chavoor v. Lewis, 383 Mass. 801 (1981) ......... Y
Chiu-Kun Woo v. Moy, 17 Mass. App. Ct. 949 (1983)
seb OGs aes ehaseed paeeileeneuieecueks 12
Commonwealth v. Donohue, 59 Mass. App. Ct. 476
oo PTET er Ters Terre eee TE rT Peer 17
Commonwealth v. Hall, 55 Mass. App. Ct. 1105, 2002
PPT Ter eee 13
Demoulas v. Demoulas, 432 Mass. 43 (2000)
gE gg, REINS e TTT ET er Pe TTT oe passim
Demoulas v. Demoulas Super Markets, Inc., 424 Mass.
501 (1997) (“Demoulas I’) ...........22.004.. 2, 14
Demoulas v. Demoulas Super Markets, Inc., 428 Mass.
543 (1998) (“Demoulas IT’) ............. 2,3, 14, 15
Fortin v. Ox-Box Marina, Inc., 408 Mass. 310 (1990)
‘coeds veeudwebbsdaceep aes kedenwesusel 10
Freitas v. Freitas, 26 Mass. App. Ct. 196 (1988) ... 12
Haddad v. Gonzales, 410 Mass. 855 (1991) ....... 20
Honer v. Wisniewski, 48 Mass. App. Ct. 291 (1999)
PT PE ee ee ee EP e ee eee eT Terr 8,9

Horvitz v. Commissioner of Revenue, 60 Mass. App.
Ct. 1103, 2003 WL 22764593 (2003) .......... 13

viii

Cited Authorities

Page
Howe v. Prokop, 21 Mass. App. Ct. 919 (1985) .... 17
King v. Driscoll, 424 Mass. 1 (1996) ....----+ee 13, 14
Lena v. Commonwealth, 369 Mass. 571 (1976) ....- 20

Murphy v. Administrator of the Division of Personnel
Admin., 377 Mass. 217 (1979) .------++++007" 9
Paro v. Longwood Hospital, 373 Mass. 645 (1977) .
Parrell v. Keenan, 389 Mass. 809 (1983) ....----- 9
In re Paternity of Cheryl, 434 Mass. 23 (2001) ...- 9, 10

Penney v. First National Bank of Boston, 385 Mass.
Pe Dea a acta ciated 17
Peterson v. Hopson, 306 Mass. 597 (1940) ....--- 13

Rockdale Management Co., Inc., v. Shawmut Bank,
418 Mass. 596 (1994) ...-----eee rr ctre 10
Royal Indemnity Co. v. Blakely, 372 Mass. 86 (1977) | "
Sahin v. Sahin, 435 Mass. 396 (2001) ....---+:: 8,9, 10

Tibbitts v. Wisniewski, 27 Mass. App. Ct. 729 (1989)

ix
Cited Authorities
Page

Trustees of the Stigmatine Fathers v. Secretary of
Administration & Finance, 369 Mass. 562 (1976)

Pe eee he ee 7 rey te y Pee he eee 17
Vittands v. Sudduth, 49 Mass. App. Ct. 401 (2000)

PE ee eer Ee CPT CEO ET eee eT eee 13
Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct. 180

ee ee ae Be ena e tee ee eee eee 1]

UNITED STATES CONSTITUTION
Fourteenth Amendment ............0ccecc00 passim
FEDERAL STATUTES
ks ar ee rere 18
i Rn eae rr 20
A oe GOED 6065 0 6 0044 ba Kee ad eas Ose 21
RULES OF COURT
United States Supreme Court Rule 10 ........... 4,5, 6
United States Supreme Court Rule 15.2.......... l

ee er ee passim

x

Cited Authorities
Page
TREATISES AND PERIODICALS
J.W. SMITH & H.B. ZOBEL, RULES PRACTICE,
12

§ 60.15 (1983 Supp.) ...--200ee eee sere

Jonathan Saltzman and Ralph Ranalli, Disbarment
Urged For Three In Scheme, Boston Globe,

May 12,2005 .......0ccccncecresereneenes

1

STATEMENT OF THE CASE

I. The Misstatements In The Petition For A Writ Of
Certiorari.

Pursuant to Supreme Court Rule 15.2, certain of the
respondents, Arthur S. Demoulas, Diana D. Merriam, Fotene
J. Demoulas and Evanthea G. Demoulas (hereafter
“Respondents”) wish to correct the misstatements in the
Statement of the Case filed by the Petitioner. She states that
there were acrimonious and widely publicized pretrial
litigation from 1990 through 1994. Petition, p. 4. This was
not the case. The litigation proceeded without any significant
publicity until the trial of the Stock Transfer Case in 1994.
Discovery was in the hands of a Discovery Master, and
although it did consume much of the plaintiffs’ and
defendants’ counsels’ time during these four years, it was
virtually without incident. It was only when the defendants
faced defeat that acrimony and underhanded conduct began.

The Petitioner alleges, as have the defendants over the
past ten years, that the trial court, sua sponte, reversed its
dismissal of the defendant children of Telemachus Demoulas
in the Stock Transfer Case after its decision in the Shareholder
Derivative Case. Petition, p. 4. This is not the case. Prior to
the commencement of the Shareholder Derivative Case,
Judge Lopez received briefs arguing for and against the
reversal of her decision to dismiss the claims against the
defendant children of Telemachus and there was oral
argument on the issue. R. App. 37, docket nos. 260, 266.

In the Petition, it is stated that Judge Lopez “bizarrely”
testified that “the defendants and their counsel instigated or
filed false affidavits against her, had her followed, searched
her trash, placed electronic listening devices in her home
and her judicial chambers and illegally reviewed her financial

2

records.” Petition, p. 9. In fact, Judge Lopez only testified
that the defendants and their counsel filed false affidavits
against her, and further that she knew the content of the
affidavits to be false. R. App. 904. The rest of the allegations
had been reported to her by outside sources, including
governmental authorities. Jd.

Il. The Motions For Recusal.

The Petition describes in a cursory manner the three prior
motions for recusal with which the Supreme Judicial Court
dealt-In light of the case law, infra, these Respondents believe
that the reasoning of the Supreme Judicial Court requires
more explication.

In Demoulas v. Demoulas Super Markets, Inc., 424 Mass.
501 (1997) (“Demoulas I’’), counsel for the Petitioner moved,
before the trial began, that Judge Lopez recuse herself
because of the impressions formed of the defendants during
the trial of the Stock Transfer Case. See id. at 524. The
Supreme Judicial Court held that “(njone of the specific
rulings cited by the defendants discloses a lack of impartiality
on the judge’s part.” /d. at 526. All of the “sharp remarks” of
the trial judge could be attributed to the “long, arduous, and
at times, very bitter” conduct of the trial. Jd. The Supreme
Judicial Court was compelled to give credence to the judge’s
credibility findings because they were supported by numerous
findings of fact. See id.

Demoulas v. Demoulas Super Markets, Inc. 428 Mass.
543 (1998) (“Demoulas II”) concerned the allegations of the
interaction between the trial judge and plaintiffs’ lead counsel
at the Charles Restaurant, a small neighborhood bistro which
was eventually acquired by the judge’s husband after the
alleged communications between the judge and plaintiffs’
counsel were said to have taken place. The Supreme Judicial

3

Court affirmed the denial of the defendants’ motion based
on its untimeliness and on the insufficiency of the allegations.
See id. at 547-552. The court noted that the motion to recuse
was filed on the eve of the execution of the judgment in the
Shareholder Derivative Case, almost two years after the
Supreme Judicial Court had affirmed judgment in favor of
the plaintiff. See id. at 544. “Nor are we required to turn a
blind eye to the fact that the motion was filed at the eleventh
hour after years of maneuvering by the defendants on the
losing side of a judgment in excess of one hundred million
dollars.” Jd. at 550. In assessing the sufficiency of the
affidavits, the court found that, taken at face value, they were
“insufficient to establish a reasonable basis for questioning
the judge’s impartiality.” Jd. at 552. In other words, the
defendants’ motion was “too little, too late.” Jd.

Demoulas v. Demoulas, 432 Mass. 43 (2000) (“Demoulas
IV”) provided the crowning effort for the defendants’ recusal
motions. This strategy began after the decision of Judge
Lopez in the Shareholder Derivative Action in 1995. Certain
agents of the losing Telemachus Demoulas faction decided
to implement an extremely complex and diabolical scheme
to entice Judge Lopez’ law clerk during the Shareholder
Derivative trial to reveal, in the context of a fictitious job
interview, the supposed predisposition of Judge Lopez against
the defendants. See, id. at 47-48. Counsel for the defendants
lured the clerk, Paul Walsh, to Nova Scotia and then to New
York in an effort to tape, they hoped, his disclosures of Judge
Lopez’ bias against the defendants.' See id. Presumably
because they did not get the disclosures they sought, the
defendants’ counsel eventually confronted Mr. Walsh and
threatened him with disclosure of a falsified bar application

1. Three of the defendants’ attorneys have been the subject of
hearings by the Massachusetts Board of Bar Overseers and have been
recommended for disbarment. See Jonathan Saltzman and Ralph
Ranalli, Disbarment Urged For Three In Scheme, Boston Globe, May
12, 2005, p.1.

which would ruin his career. See id. at 48. Once again, the
Supreme Judicial Court found that the defendants’ motion
was untimely (at least two years after the events which gave
rise to the motions to recuse) id. at 50, and that the allegations
were insufficient due to the fact that they were based on
impermissible hearsay. See id. at 53-54.

DISCUSSION

I. The Petition Should Be Denied Because It Articulates
No Compelling Reason For The Court To Exercise
Its Discretion To Review This Matter Under Supreme
Court Rule 10.

The Court should deny the Petition on grounds that
Petitioner has failed to articulate any compelling reason
justifying review as prescribed by Supreme Court Rule 10
(a-c). “Review on a writ of certiorari is not a matter of right,
but of judicial discretion.” Jd. See also Durham v. United
States, 401 U.S. 481, 483 n.1 (1971). The “principal purpose”
for which the United States Supreme Court exercises its
discretion to grant certiorari jurisdiction “is to resolve
conflicts among the United States courts of appeals and state
courts concerning the meaning of provisions of federal law.”
Braxton v. United States, 500 U.S. 344, 347 (1991) (citing
Supreme Court Rule 10). “(T]he Court seldom takes a case
merely to affirm settled law[.]” Estelle v. Gamble, 429 U.S.
97, 115 (1976) (Stevens, J., dissenting) (disagreeing with
Court’s grant of certiorari review of issue where all the courts
of appeal to consider the issue reached substantially the same
conclusion); Buntz v. Glover Livestock Comm’n Co., 411 U.S.
182, 189 (1973) (Stewart, J. dissenting) (declaring the Court’s
grant of certiorari a “mystery” where “the case involves no
more than the application of well settled principles to a
familiar situation, and has little significance except for the
respondent.”).

5

Petitioner principally complains about a discrete decision
by the Massachusetts Superior Court denying her motion for
relief from two final judgments, entered more than four years
and two-and-a-half years prior respectively, under Massachusetts
Rules of Civil Procedure 60(b) on grounds that Petitioner
discovered new evidence of judicial bias on the part of the trial
court judge, the Honorable Maria Lopez. As Petitioner
acknowledges, this motion marked the fourth time the
defendants had raised the issue of judicial bias in the course of
these proceedings at the Superior Court level. In each of the
prior instances the matter was considered and rejected by the
trial court, and affirmed on appeal by the Supreme Judicial Court.
This fourth motion is little more than a rehashing of the
defendants’ prior accusations, thrice rejected by the highest court
of Massachusetts. The Superior Court’s denial of Petitioner’s
Mass. R. Civ. P. 60(b) motion, and the Massachusetts Appeals
Court’s affirmance of that decision, were premised upon
longstanding rules of state law, and were in lockstep with the
three prior appellate decisions on this issue.

Petitioner identifies no manner in which the most recent
rejection of her claims by the Supreme Judicial Court conflicts
with a decision of any other United States Circuit Court of
Appeals or any state court of last resort on an important issue of
federal law. The grounds for certiorari review under Rule 10(a)
are inapplicable as Petitioner does not appeal from a decision
of a United States Circuit Court of Appeal. Nor are the provisions
of Rule 10(b-c) implicated, as the Supreme Judicial Court has
not decided any important federal question that either conflicts
with a decision of another state supreme court, this Court, or
which has not been decided by this Court but should be. To the
contrary, Petitioner acknowledges that none of the three
Massachusetts courts below even reached the federal questions
she now raises, let alone decided these questions in a manner
contradictory to that of another jurisdiction. Petition pp. 10, 20.

6

Although Petitioner stresses that Massachusetts’ judicial
recusal procedure differs from that adopted by a minority of
other jurisdictions, Petition § II, the mere existence of a
disparity among the laws of sister states is not a valid ground
for certiorari review. Compare Rule 10(b) (certiorari
appropriate where “a state court of last resort has decided an
important federal question in a way that conflicts with the
decision of another state court of last resort[.]”) (emphasis
added). Petitioner cites no decision of another state court of
last resort which conflicts with the decision of the Supreme
Judicial Court in the instant case on an important issue of
federal law. Moreover, while Petitioner complains that the
Massachusetts approach to judicial recusal is unconstitutional
in that it permits the judge whose sensibilities are in question
to assess his or her own impartiality, in the present case it
was a second judge who determined the defendants had failed
to establish that Judge Lopez was biased. Judge Lopez had
resigned from the bench by the time Petitioner had moved
for relief from judgment, and it was the Honorable Patrick J.
Brady who adjudicated Petitioner’s claim of bias to be
insubstantial. Appendix B to Petition (“App.”) pp. 3-4.
Petitioner has therefore failed to allege sufficient grounds
under Rule 10 to justify this Court’s exercise of its discretion
to grant certiorari.

Il. The Judgment Was Based On An Independent And
Adequate State Law Ground Separate And Apart
From Petitioner’s Federal Claims.

A. Procedural Rules May Form Independent And
Adequate State Law Grounds.

Where a state court judgment rests on a nonfederal
ground, this Court must decline to accept jurisdiction and
deny the Petition. See Ellis v. Dixon, 349 U.S. 458, 459
(1955). “This Court will not review a question of federal

7

law decided by a state court if the decision of that court rests
on a state law ground that is independent of the federal
question and adequate to support the judgment.” Coleman v.
Thompson, 501 U.S. 722, 729 (1991) (citing Fox Film Corp.
v. Muller, 296 U.S. 207, 210 (1935)) (further citations
omitted). “This rule applies whether the state law ground is
substantive or procedural.” /d. at 729 (citing Fox Film Corp.,
supra; Herdon v. Georgia, 295 U.S. 441 (1935)); Hathorn v.
Lovorn, 457 U.S. 255, 262-65 (1982).

A state procedural ground is deemed “adequate” where
it is “regularly followed[,]” Hathorn, 457 U.S. at 262-63
(citing Barr v. City of Columbia, 378 U.S. 146, 149 (1964)),
so long as it is applied “evenhandedly to all similar claims.”
Id. In addition, the state must have “a legitimate interest in
enforcing its procedural rule.” Michigan v. Tyler, 436 U.S.
499, 512 n.7 (1978); see also New York Times Co. v. Sullivan,
376 U.S. 254, 264 n.4 (1964)).

Here, the Massachusetts Appeals Court based its decision
to affirm the decision of the Superior Court strictly on state
law grounds. Petition, pp. 10, 20. First, the Appeals Court
held that Petitioner’s motion for relief from judgment
pursuant to Mass. R. Civ. P. 60(b) was untimely. Second,
that Petitioner’s allegation of bias on the part of the trial
judge had thrice been considered and rejected by the Supreme
Judicial Court, and was now the law of the case. The Supreme
Judicial Court, without comment, declined to grant
Petitioner’s request for further review of this matter.

B. Mass. R. Civ. P. 60(b) Is Firmly Established And
Regularly Followed.

There can be no serious question that the courts of the
Commonwealth of Massachusetts regularly follow the
timeliness requirements of Mass. R. Civ. P. 60(b) and that

8

this rule is firmly established. Rule 60(b) permits relief from
a final judgment in the event of:

(1) mistake, inadvertence, surprise, or excusable
neglect;

(2) newly discovered evidence which by due
diligence could not have been discovered in time
to move for a new trial under Rule 59(b);

(3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party;

(6) any other reason justifying relief from the
operation of the judgment.

A litigant must move for such relief “within a reasonable
time, and for reasons (1), (2), and (3) not more than one year
after the judgment, order or proceeding was entered or taken.”
Id. (emphasis added).

Massachusetts courts have routinely applied this
language as restricting the circumstances in which a litigant
may seek relief under the catchall provision of Rule 60(b)(6),
which is not subject to the definitive one-year time limit
applicable to subsections 1 through 3, when the basis for
relief articulated could fall within subsections | through 3.
“Relief under rule 60(b)(6) is only appropriate when justified
by some reason other than those set forth in rule 60(b)(1)-
(5).” Sahin v. Sahin, 435 Mass. 396, 407 (2001) (citing
Anderson v. Anderson, 407 Mass. 251, 257 (1990); Bromfield
vy. Commonwealth, 400 Mass. 254, 256 (1987); see also Honer
v. Wisniewski, 48 Mass. App. Ct. 291, 295 (1999). “In other

9

words, to prevail under rule 60(b)(6), a party must show that
there is a reason to justify the relief, and also that the reason
is not within the grounds set forth in rule 60(b)(1)-(5).” Jd.
(citing Parrell v. Keenan, 389 Mass. 809, 814-15 (1983));
accord In re Paternity of Cheryl, 434 Mass. 23, 35 (2001);
Bromfield v. Commonwealth, 400 Mass. 254, 256 (1987);
Bird v. Ross, 393 Mass. 789, 791 (1985); Chavoor v. Lewis,
383 Mass. 801, 805-806 (1981); Honer, 48 Mass. App. Ct.
at 295; Murphy v. Administrator of the Div. of Personnel
Admin., 377 Mass. 217, 228 (1979); Tibbitts v. Wisniewski,
27 Mass. App. Ct. 729, 731 (1989).

Though she feigns surprise that the Appeals Court treated
her motion for relief from judgment as one arising under
Rule 60(b)(1), (2), or (3), and thus subject to the one-year
time limitation, Petitioner herself argued explicitly in support
of this position to the Appeals Court. At pages 26 and 27 of
Petitioner’s Massachusetts Appeals Court Brief, under the
heading entitled “Rule 60(b)”, Petitioner argued:

Several grounds specified in Rule 60(b) apply to
the facts in this case - 60(b)(1), surprise; 60(b)(2),
newly discovered evidence which by due diligence
could not have been discovered; 60(b)(3), fraud;
and 60(b)(6), any other reason justifying relief
from the operation of the judgment.

This plain and candid acknowledgment by Petitioner that
the basis for her motion for relief from judgment fell squarely
within subsections | through 3 of Rule 60(b) left no doubt
that they were foreclosed from seeking relief under Rule
60(b)(6). Accordingly, the decision of the Appeals Court to
hold the Petitioner’s motion subject to the one-year time limit
was consistent with the holdings of the long line of cases
cited above. E.g., Sahin, 435 Mass. at 407.

10

Petitioner’s attempt to reverse course at this late hour is
impermissible, as she is estopped from shedding the position
she argued forcefully below to assert a contrary one to this
Court in the first instance. E.g. New Hampshire v. Maine,
532 U.S. 742, 749 (2001) (under the doctrine of judicial
estoppel, where a party assumes a certain position in a legal
proceeding, and persists in maintaining that position, he may
not thereafter assume a contrary position simply because his
interests have changed) (collecting authority). Moreover, had
the Supreme Judicial Court granted Petitioner’s request for
further review of this issue, she would have been “estopped
from reversing [her] earlier positions” before that court as
well. Fortin v. Ox-Box Marina, Inc., 408 Mass. 310, 323
(1990); accord Brown v. Quinn, 406 Mass. 641, 646 (1990)
(collecting authority).

Moreover, Petitioner’s contention that her motion could
only have been construed as arising under the catchall
provision of subsection 6 because her belated discovery of
further evidence of Judge Lopez’ supposed bias against them
can only be characterized as “fraud on the court”, as opposed
to “newly discovered evidence”, is erroneous as a matter of
Massachusetts law. Petition, pp. 22-24. The Supreme Judicial
Court has held that fraud on the court occurs ““where it can
be demonstrated, clearly and convincingly, that a party has
sentiently set in motion some unconscionable scheme
calculated to interfere with the judicial system’s ability
impartially to adjudicate a matter by improperly influencing
the trier or unfairly hampering the presentation of the
opposing party’s claim or defense.’” Sahin, 435 Mass. at 405-
406 (quoting Jn re Paternity of Cheryl, 434 Mass. at 35)
(emphasis added); accord Rockdale Management Co., Inc.,
v. Shawmut Bank, 418 Mass. 596, 598 (1994) (quoting Hazel-
Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246
(1944)). Petitioner points to no Massachusetts case holding
that opinions formed by judges of the litigants before them

11

can constitute a such fraud against the judicial system as a
whole. Their effort to cast the trial judge’s statements,
ostensibly expressing a negative view of the defendants
nearly ten years following the commencement of the first
trial, as evidence of the Judge 's deliberate scheme to defraud
or manipulate herself, lacks any support in Massachusetts
case law and is simply illogical.

Moreover, Petitioner’s claim was best characterized as
one involving newly discovered evidence, albeit cumulative
and insufficient. The defendants had already raised the issue
of judicial bias repeatedly throughout these proceedings.
The testimony on which Petitioner premised her motion is
merely more of the same, cumulative to the evidence upon
which the defendants founded their accusation the first three
times they asserted it.

Plainly, Petitioner’s most recent re-tooling of her basis
for relief from judgment as “fraud on the court” is an attempt
at an end-run around the one-year limitation of Rule 60(b)(1-
3). The Appeals Court’s decision that Petitioner’s claim was
cognizable under any of subsections | through 3, and that
the one-year limitation applied to bar her claim of newfound
evidence of judicial bias, was in keeping with well established
and consistently enforced principles of Massachusetts law.

C. Mass. R. Civ. P. 60(b) Promotes The Legitimate
State Interest Of Finality Of Judicial Decisions.

Massachusetts Rule of Civil Procedure 60(b) is based
upon the legitimate state interest of promoting the finality
of judgments. “It is the function of rule 60(b)(6) to preserve
the delicate balance between the sanctity of final judgments
. .. and the incessant command of the court’s conscience
that justice be done in light of all the facts.” Winthrop Corp.
v. Lowenthal, 29 Mass. App. Ct. 180, 188 (1990) (quoting

12

Freitas v. Freitas, 26 Mass. App. Ct. 196, 198 (1988) (citing
Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (Sth
Cir.), cert. denied, 399 U.S. 927 (1970)) (further citations
omitted); see also J.W. SMITH & H.B. ZOBEL, RULES
PRACTICE, § 60.15 (1983 Supp.). “That tension between
finality and fair play (finality itself, of course, being a form
of fair play) finds voice in warnings that the rule should not
be used as an instrument for relief from deliberate choices
which did not work out.” Jd. (citing Ackermann v. United
States, 340 U.S. 193, 198-199 (1950)) (further citations
omitted). “In the interest of finality of judgments, relief under
rule 60(b)(6) is only to be granted in extraordinary
circumstances.” Sahin, 435 Mass. at 406 (citing Bromfield v.
Commonwealth, 400 Mass. 254, 257 (1987)) (further citations
omitted); see also Chiu-Kun Woo v. Moy, 17 Mass. App. Ct.
949, 950 (1983) (concern about firality of litigation is an
appropriate consideration when acting on motion for relief
from judgment). It is axiomatic that the promotion of finality
of judgments, while preserving the possibility for relief from
judgments under extraordinary circumstances, is a legitimate
state interest, essential to a fair and efficient judicial system
in which litigants may safely rely upon the judgments of the
courts. Accordingly, the one-year time limitation of Mass.
R. Civ. P. 60(b) constitutes an adequate basis in state law
precluding review of the issues upon which Petitioner seeks
certiorari.

D. The Doctrine Of Law of Case Is Firmly
Established And Regularly Followed.

The second ground upon which the Appeals Court
affirmed the Superior Court’s denial of Petitioner’s Rule
60(b) motion was that Judge Lopez’ prior denials of the
defendants’ repeated motions for recusal had been reviewed
by the Supreme Judicial Court on three separate occasions
and had, in each instance, been affirmed. (App. pp. 1-2, 22-

13

26). The Appeals Court accordingly held that the question
of Judge Lopez impartiality, which she maintained despite
the defendants’ outrageous and deceitful conduct aimed at
her and her staff, had been finally decided and was the law
of the case. Jd. The law of the case is an adequate state law
ground as it is firmly established and routinely followed by
the courts of Massachusetts.

“The ‘law of the case’ doctrine reflects this court’s
reluctance ‘to reconsider questions decided upon an earlier
appeal in the same case.’” King v. Driscoll, 424 Mass. 1, 7-
8 (1996) (quoting Peterson v. Hopson, 306 Mass. 597, 599
(1940)). “An issue once decided, should not be reopened
unless the evidence on a subsequent trial was substantially
different, controlling authority has since made a contrary
decision of the law applicable to such issues, or the decision
was Clearly erroneous and would work a manifest injustice.”
Id. (quoting White v. Murtha, 377 F.2d 428, 432 (5th Cir.
1967)) (internal quotation marks and further citations
omitted). It is consistently adhered to by the courts of
Massachusetts. E.g. King, 424 Mass. at 7-8; Horvitz v.
Commissioner of Revenue, 60 Mass. App. Ct. 1103, 2003
WL 22764593 *2 (2003) (Table); Commonwealth v. Hall,
55 Mass. App. Ct. 1105, 2002 WL 1358480 *1 (2002) (Table);
Vittands v. Sudduth, 49 Mass. App. Ct. 401, 413 (2000).

“Issues of bias and self-interest, to be disqualifying,
cannot be unilaterally created by the moving party.” Jn re
WHET, Inc., 33 B.R. 424, 433 (D. Mass. 1983). Any feelings
Judge Lopez had or has for the Petitioner has been entirely
created by her, and not solely in connection with the
Commission on Judicial Conduct (“CJC”) hearings, but
throughout this long litigation. The Supreme Judicial Court,
the Appeals Court and the Superior Court are satisfied that
she could put those feelings aside and judge the case fairly
“in accordance with our laws.” R. App. at 905. That is the
“law of the case” and it should be permitted to stand.

14

That this doctrine has certain recognized exceptions does
not, as Petitioner contends, mean that it is “permissive”, or
anything other than a well established rule with clearly
delineated contours. Petition, p. 24. The fact that the rule
calls upon state court judges to determine whether, in a
specific instance, a prior ruling of an appellate court “was
clearly erroneous and would work a manifest injustice”, does
not mean that the rule is not applied “evenhandedly to all
similar claims.” Hathorn, 457 U.S. at 263. Petitioner’s
reliance on King to support her flawed contention is
misplaced. Rather than disregard this rule, the Supreme
Judicial Court in King expressly concluded that none of the
recognized exceptions were applicable on the facts before
it, and declined to revisit issues already addressed on prior
appeals. See King, 424 Mass. at 8. In the instant case, asked
to reopen an issue which was the subject of three prior
appellate decisions and with scant evidence that the prior
decisions were ill founded, the Appeals Court reached the
same conclusion as the court in King.

E. The Doctrine Of Law Of The Case Serves A
Legitimate State Interest.

The doctrine of law of the case, like Mass. R. Civ. P.
60(b) discussed above, fosters the important state interest of
promoting consistency among judicial rulings, finality, and
judicial efficiency, avoiding needless relitigation, of issues
previously adjudicated by both a lower and an appellate court.
Finality and judicial efficiency have not, until now, been the
hallmark of this litigation. The issue of Judge Lopez’ recusal
was before the Supreme Judicial Court three times and each
time the court carefully considered the defendants’
contentions. See Demoulas I at 524-527; Demoulas II at 544-
553; Demoulas IV at 45-55. Demoulas II concerned the
allegations of the defendants regarding Judge Lopez’ alleged
conduct at the Charles Restaurant. Judge Lopez denied

15

defendants’ motion to recuse, holding that the allegations
were premised upon false affidavits. R.App. 185. The
Supreme Judicial Court had this record before it when it
decided Demoulas II, and it affirmed the decision of Judge
Lopez. Demoulas IV principally concerned what the “fruits”
of the defendants’ scheme to trick Judge Lopez’ law clerk
into making damaging admissions about the judge during
phony job interviews staged by counsel for the defendants.
The Supreme Judicial Court had before it the evidence of
this hoax when it decided Demoulas IV. Accordingly, when
the Supreme Judicial Court again affirmed Judge Lopez
refusal to recuse herself, the court was aware that Judge Lopez
considered the defendants and their counsel, at a minimum,
to be deceptive and allied against her. When Judge Lopez
voiced these facts and impressions at the CJC hearings, it
was not new information. Rather, it had already been
considered when the Supreme Judicial Court decided
Demoulas II and Demoulas IV. It was, indeed, the “law of
the case”.

Finality and judicial efficiency are legitimate state
interests, particularly in this case which has been pending
for fifteen years. As the Fifth Circuit Court of Appeals stated:

The law of the case rule is based on the salutary
and sound public policy that litigation should
come to an end. It is predicated on the premise
that there would be no end to a suit if every
obstinate litigant could, by repeated appeals,
compel a court to listen to criticisms on their
opinions or speculate of chances from changes in
its members, and that it would be impossible for
an appellate court to perform its duties
satisfactorily and efficiently and expeditiously if
a question, once considered and decided by it were

16

to be litigated anew in the same case upon any
and every subsequent appeal thereof.

White, 377 F.2d at 431 (citations and internal quotation marks
omitted).

In this case, this Court should promote that sound public
policy and refuse to reopen what has already been decided.
The Petitioner has had three chances to go back to square
one and start over. She has gone to incredible lengths to
unseat Judge Lopez, and is analogous to the woman who
kills her parents, and then throws herself on the mercy of the
court because she is an orphan. Accordingly, because the law
of the case doctrine rests on sound policy and promotes a
legitimate state interest, it constitutes an adequate basis in
state law precluding review of the issues on which Petitioner
seeks certiorari.

Ill. Petitioner Has Waived Review Of Its Claims By This
Court. 3

A. Petitioner Waived Review Of Question One,
Whether The Massachusetts Judicial Recusal
Test Itself Offends Petitioner’s Fourteenth
Amendment Right To A Fair Trial By A Fair
Tribunal Under The United States Constitution,
By Failing To Raise This Issue In Either The
Superior Court Or Appeals Courts In The First
Instance.

Petitioner’s failure to raise Question One at any point
before the Superior Court or Appeals Court barred its review
by the Supreme Judicial Court and, accordingly, bars
certiorari review of this issue as it was never decided below.
A failure to comply with the applicable state rules for properly
presenting a federal claim to the state’s highest court will

iy
"
e.
:

17

bar certiorari review of such issue by this Court under
28 U.S.C. § 1257. See Adams v. Robertson, 520 U.S. 83, 86-
88 (1997) (per curium); see also Tyler, 436 U.S. at 512 n.7.
It is a well established rule of procedure in Massachusetts
that a matter cannot properly be presented to the Supreme
Judicial Court where it has not been pleaded or tried in the
lower court in the first instance. E.g. Penney v. First Nat'l
Bank of Boston, 385 Mass. 715, 718 n.2 (1982) (citing Paro
v. Longwood Hosp., 373 Mass. 645, 652 n.9 (1977) (failure
to raise below a procedural due process claim arising under
Massachusetts Declaration of Rights bars review by Supreme
Judicial Court); Royal Indein. Co. v. Blakely, 372 Mass. 86,
87-88 (1977) (collecting authority); Trustees of the Stigmatine
Fathers v. Secretary of Administration & Fin., 369 Mass.
562, 565 (1976)).

Petitioner’s contention that she could not raise this issue
before any court other than the Supreme Judicial Court in
the first instance is meritless. While it is true that an
intermediate appellate court lacks authority to “overrule or
decline to follow the holding of cases that the Supreme
Judicial Court has decided[,]” Commonwealth v. Donohue,
59 Mass. App. Ct. 476, 485 (2003), the Supreme Judicial
Court has never passed on the issue at hand. To the contrary,
the Appeals Court squarely addressed the very question
Petitioner raises, concluding that the Massachusetts judicial
bias standard does not violate the Fourteenth Amendment of
the Constitution of the United States. See Howe v. Prokop,
21 Mass. App. Ct. 919, 919-20 (1985). Had Petitioner raised
this issue before the Appeals Court, that court would not have
been constrained by a prior binding decision of the Supreme
Judicial Court, and would have been free to reexamine the
issue. Donohue, 59 Mass. App. Ct. at 485. Indeed, this was
Petitioner’s obligation prior to raising the issue before the
Supreme Judicial Court. F.g. Penney, 385 Mass. at 713 n.2.

18

Petitioner acknowledges that she failed to raise her
federal due process challenge to the Massachusetts standard
for judicial recusal at any point before the Massachusetts
trial and intermediate appellate court. Petition p. 18. Review
of Question One is therefor barred from review by this Court.
See Adams, 520 U.S. at 90 (“Petitioners having thus failed
to carry their burden of showing that the claim they raise
here was properly presented to the Alabama Supreme Court,
we will not reach the question presented.”).

B. Petitioner Waived Question Two, Whether The Trial
Judge’s Bias Violated Petitioner’s Fourteenth
Amendment Right To A Fair Trial By A Fair
Tribunal Under The United States Constitution, By
Failing To Adequately Articulate This Issue Below.

Petitioner failed to adequately develop the second issue
on which she seeks this Court’s review before the
Massachusetts Appeals Court, and this Court should decline
to review it. Question Two, in which Petitioner contends that
the bias and prejudice ostensibly exhibited by the trial judge
was so pronounced as to violate her right to a fair trial secured
under the Fourteenth Amendment of the United States
Constitution, was raised in no more than a perfunctory,
superficial, and conclusory manner below. Petitioner has
failed to meet her burden of rebutting this Court’s
presumption that the Supreme Judicial Court’s silence on
her federal claim was not attributable to Petitioner’s failure
to properly preserve this claim for that court’s review.

This Court, when “reviewing state court judgments under
28 U.S.C. § 1257. . . will not consider a petitioner’s federal
claim unless it was either addressed by, or properly presented

19

to, the state court that rendered the decision. . . .” Adams,
520 U.S. at 86 (holding certiorari was improvidently granted
as issue never properly presented to state supreme court).

When the highest state court is silent on a federal
question before us, we assume that the issue was
not properly presented, and the aggrieved party
bears the burden of defeating this assumption, by
demonstrating that the state court had ‘a fair
opportunity to address the federal question that is
sought to be presented here.’

Id. (quoting Board of Directors of Rotary Int’l v. Rotary Club
of Duarte, 481 U.S. 537, 550 (1987); further citing Webb v.
Webb, 451 U.S. 493, 501 (1981); Street v. New York, 394
U.S. 576, 583-85 (1969)). A petitioner must demonstrate that
“the claim [asserted] and the ground therefor be brought to
the attention of the state court with fair precision and in due
time.” Street, 394 U.S. at 582.

At no point in her brief filed with the Appeals Court
does the Petitioner clearly articulate her claim that the
Superior Court’s denial of her Rule 60(b) motion violated
her rights under the Fourteenth Amendment of the United
States Constitution. Petitioner mentions due process in a mere
four sentences in the course of defendants’ 49 page brief,
and discusses this concept in general terms. Defendants’
Massachusetts Appeals Court Brief, pp. 29-32. Nowhere does
the Petitioner explain her position in a manner which
specifically delineates her theory, beyond the superficial and
conclusory claims that the trial judge was biased against her
and, ipso facto, she was denied a fair trial. Similarly, before
the Superior Court, Petitioner scatters five sentences which
generically mention the Due Process Clause of the Fourteenth
Amendment across a 32 page brief principally devoted to
Petitioner’s Rule 60(b) arguments. Defendants’ Emergency

20

Motion For Relief From Judgment, pp. 23-27. In each
instance the Petitioner leaves the specifics of her claim to
the imagination.

Because Petitioner paid mere lip service to her federal
claim articulated in Question Two below, she cannot carry
her burden of establishing that this claim was properly
presented to the Supreme Judicial Court or the Massachusetts
Appeals Court, and this Court should decline to hear this
claim. Webb v. Webb, 451 U.S. 493, 495-96 (1981) (sporadic
mention of “full faith and credit” without further development
and more particularized description of federal claim).

IV. Judge Lopez’ Decisions Not To Recuse Herself Did
Not Violate The Petitioner’s Fourteenth Amendment
Rights. |

A. The Massachusetts Recusal Test Has The Same
Components As The Federal Recusal Statute.

Massachusetts Supreme Judicial Court Rule 3:09, Canon
3 E sets forth the standards under which a judge must
disqualify himself or herself. Those which are relevant to
this case are an objective one: where the judge’s impartiality
might reasonably be questioned; and a subjective one:
whether the judge has a personal bias or prejudice concerning
a party or a party’s lawyer. Massachusetts courts have adopted
this subjective/objective application as a two-part self-
examination. See Lena v. Commonwealth, 369 Mass. 571,
575 (1976); Haddad v. Gonzales, 410 Mass. 855, 862 (1991).

In 1974, Congress revised the federal disqualification
statute. 28 U.S.C. § 455(a) starts out with the objective test:
a judge must “disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.”
Then, the subjective test is set forth: “He shall also disqualify

21

himself ... where he has a personal bias or prejudice
concerning a party.” 28 U.S.C. § 455(b)(1). This Court
recognized the subjective/objective nature of the revised
statute in Liteky v. United States, 510 U.S. 540, 548 (1994).
The federal recusal statute has been reviewed, analyzed and
discussed by this Court, and not once has it ever been hinted
that it does not pass constitutional muster. See, e.g., Cheney
v. U.S. Dist. Ct. for the Dist. of Columbia, 541 U.S. 913, 124
S. Ct. 1391, 1394 (2004); Microsoft Corp v. United States,
530 U.S. 1301, 121 S. Ct. 25, 26-27 (2000); Liljberg v. Health
Services Acquisition Corp., 486 U.S. 847, 858-66 (1988).

The Petitioner argues that the Massachusetts recusal rule
is unconstitutional because Judge Lopez sat as her own judge
on the recusal issue. Petition at pp. 11-14. However, the
federal statute also leaves the question of recusal in the hands
of the judge to whom the motion is directed. It is a “self-
enforcing obligation.” United States v. State of Alabama, 828
F.2d 1532, 1540 (11" Cir. 1987). As one federal court noted,
“[rJecusal is a highly personal decision. The judge must assess
the truth of the facts alleged and determine if they would
impeach his impartiality or appearance of impartiality.” Clay
v. Brown Hopkins & Stambaugh, 892 F. Supp. 11, 13 (D.D.C.
1995) (citing Liberty Lobby, Inc. v. Dow Jones & Co., Inc.,
838 F.2d 1287, 1301 (D.C. Cir. 1988)). Indeed, as Judge John
Sirica, Jr. pointed out in the infamous Watergate litigation,
“fo]nly the individual judge knows fully his own thoughts
and feelings and the complete context of facts alleged. It
follows that only he can be certain of the most equitable
resolution.” United States v. Mitchell, 377 F. Supp. 1312,
1315 (D.D.C. 1974). If it is constitutionally acceptable for a
federal judge to decide whether recusal is appropriate for
himself or herself, it follows that a Massachusetts judge,
using substantially the same recusal test, must be able to make
the recusal decision without violating the Fourteenth
Amendment rights of any litigant.

22

B. Not All Grounds For Recusal Involve
Constitutional Principles.

Judicial disqualifications as it relates to the federal
constitution has been considered by this Court on a number
of occasions and the application of this issue has evolved
over the last seventy-eight years. In Tumey v. Ohio, 273 U.S.
510 (1927), this Court considered the constitutionality of a
Prohibition statute and ordinance under which a public
official who presided at certain criminal trials was monetarily
rewarded for each conviction, albeit only slightly. Jd. at 520.
This Court held that, even though the consideration was
minor ($12 per case), it violated the due process rights of
the defendants because it constituted “... a possible
temptation to the average man as a judge to forget the burden

- of proof required to convict the defendant .. .” Jd. at 532.
Before reaching that conclusion, the Court held that “[a]ll
questions of judicial qualification may not involve
constitutional validity. Thus matters of kinship, personal bias,
state policy, remoteness of interest would seem generally to
be matters merely of legislative discretion.” Jd. at 523. Thus,
a judge’s personal bias against a litigant may be statutorily
prohibited but there was no constitutional impediment.

Twenty-one years later, the issue of bias as a
constitutional frailty was raised in FTC v. Cement Institute,
333 U.S. 683 (1948). In that case, one of the parties asked
this Court to review the validity of a cease and desist order
issued by the Commission in light of the fact that the pricing
system at issue in the order had been condemned as illegal
by the Commission in reports made to Congress and to
the President. See id. at 700. The Court held that most
matters concerning judicial disqualification do not involve
constitutional issues and that it was not a violation of
procedural due process for a judge to preside in a case where
the issue at hand was one about which he had previously
expressed a negative opinion. See id. at 702-03.

i
=
7
¢
md
=
*
re

23

In 1986, this Court again dealt with the issue of judicial
disqualification and constitutional violation. Aetna Life Ins.
Co. v. Lavore, 475 U.S. 813 (1986) dealt with the pecuniary
interest of an appeals court judge who cast the deciding vote
in favor of the appellees. See id. at 816-17. The Court held
that such interest violated the appellants due process rights
under the Fourteenth Amendment. /d. at 824-25. In reaching
this decision, the Court considered whether the judge’s bias
in favor of the position held by the appellee would be
sufficient to disqualify the judge on constitutional grounds.
See id. at 820-21. The decision quoted the Tumey case
concerning the fact that personal bias did not, generally,
involve a question of constitutional validity. See id. at 820.
It then stated “We need not decide whether allegations of
bias or prejudice by a judge of the type we have here would
ever be sufficient under the Due Process Clause to force
recusal. Certainly only in the most extreme of cases would
disqualification on this basis be constitutionally required . . .”
Id. at 821. Thus, for the first time, the Court was considering
the possibility that personal bias could be a constitutional
violation.

Finally, in Bracy v. Gramley, 520 U.S. 899 (1997), this
Court dealt with a case in which the petitioner had been tried,
convicted and sentenced to death by a judge who was later
convicted himself for taking bribes from certain criminal
defendants. The Court discussed the issue of constitutional
judicial disqualification:

Of course, most questions concerning a judge’s
qualifications to hear a case are not constitutional
ones, because the Due Process Clause of the
Fourteenth Amendment establishes a constitutional
floor, not a uniform standard. ... Instead, these
questions are, in most cases, answered by common
law, statute or the professional standards of the bench

24

and bar. . . . But the floor established by the Due
Process Clause clearly requires a “fair trial in a fair
tribunal” ... before a judge with no actual bias
against the defendant or interest in the outcome of
his particular case.

Id. at 904-05 (citations omitted).

in Bracy, the Court moved closer to finding that actual
bias, not presumed bias, not the appearance of impropriety,
could amount to a constitutional violation. At issue in the
Bracy case was whether the petitioner could take post-
appellate discovery to discover whether actual bias toward
the petitioner existed. See id. at 901. The Court did not decide
that actual bias was constitutionally disabling because the
petitioner had not yet obtained any evidence of actual bias.
See id. at 905. Indeed, prior to the Bracy decision, the Court
warned that those making a claim of unconstitutional judicial
bias must overcome a presumption of honesty and integrity
on the part of judges. See Withrow v. Larkin, 421 U.S. 35, 47
(1975).

A decision of the Eighth Circuit Court of Appeals
comes closest to the issue in this case, while following the
dictates of this Court concerning constitutional judicial
disqualification. In Dyas v. Lockhart, 705 F.2d 993 (8 Cir.
1983), the court was faced with the fact that the judge
presiding during the criminal trial of the appellant was related
to both the Prosecuting Attorney and two of the Deputy
Prosecuting Attorneys. See id. at 995. The judge had offered
to recuse himself but appellant’s counsel refused the offer.
The appeal was based on the claim that the judge was
necessarily biased and prejudiced against the party charged
with the crime which violated the appellant’s constitutional
rights. See id. The court stated that the constitutional rights
of the appellant included tb right to a “fair trial in a fair

Page

tA AA tin hime

25

tribunal” /d. It then held that a demonstration of actual bias
was necessary to invoke the Due Process Clause. See id. at
996. However, it acknowledged that the probability of actual
bias was too high where the judge has been the target of
personal abuse by the appellant. /d. In that case, the test is
whether the judge, possessing ordinary human tendencies,
would be unable to hold the proper balance between the
contesting parties, keeping in mind the presumption of
honesty and integrity of those serving as judges. See id. at
996-997. This is exactly the test which Judge Brady, in
denying the Petitioner’s motion for relief from judgment in
the trial court, applied. He found that there was “no evidence
that Judge Lopez did not do exactly as she said in her
Memorandum of Decision dated July 22, 1997, namely, to
separate her feelings about having her integrity unfairly
challenged from her responsibilities to make fair and
impartial rulings” Petition at App. 3. Thus, the proof of actual
bias, as required by this Court, or the high probability of
actual bias, acknowledged by the Dyas court, was not present
in this case and, thus, no constitutional violation occurred.

C. This Court Can Determine Independently That
Judge Lopez Harbored No Actual Bias Toward
The Petitioner In Violation Of The Petitioner’s
Constitutional Rights.

There was no evidence of actual bias or prejudice on the
part of Judge Lopez against the defendants revealed in the
record of the CJC hearings. A review of the CJC transcripts
demonstrates that Judge Lopez, while acknowledging that
the defendants and their counsel had, indeed, set out on a
protracted and intense effort to disqualify her, did her best
to maintain the necessary judicial impartiality to decide the
remaining issues in the litigation. She learned about both
the Charles Restaurant accusations and the Paul Walsh
imbroglio in the Summer of 1997. R. App. 174, 521. She

26

knew to an absolute certainty that these attacks on her conduct
had no basis in reality. R. App. 904. However, this knowledge
did not create actual bias in her head or in her heart and nothing
she said in the CJC hearing proved otherwise.

CJC hearings established that Judge Lopez thought that the
Demoulas defendants and their counsel harbored animus against
her and her rulings. However, nothing in her testimony provides
any information about her possible bias against the defendants.
Not surprisingly, the most important portion of the testimony
of Judge Lopez at the CJC hearings is absent from the Petition.
On direct examination, her counsel asked Judge Lopez how
she felt about the measures the defendants and their counsel
had taken to find evidence of her supposed bias. She stated:

Well, I mean, I was very upset that my professional
reputation was being impugned that way. I mean, I
knew that what was being alleged in those [Charles
Restaurant] affidavits — I knew that to be false.

I was very upset, and I was angry that there would
be such an effort, not only to attack me personally,
but to use those kinds of means to undermine a
decision that had been rendered in accordance with
our laws, fairly decided. And | thought it as an
attempt on their part to disqualify me in some way —
and in fact the SJC saw it that way too — to get me
disqualified so that they could get a new trial on the
cases, because they were unhappy with the results
in that case.

So they marshaled every force they could come up
with to get me — to get a new judge to retry the case.
And so I felt attacked. I felt besieged.

R. App. 905 (emphasis added).

27

Nowhere in her statement concerning her feelings about
the actions of the lawyers for the defendants does Judge
Lopez display any animosity toward the defendants or even
toward those responsible for the attacks on her. Her language
is couched in the past tense; she was upset and angry. There
is not hint that these feelings carried over into the courtroom.
In fact, after her discovery of these matters in the Summer
of 1997, Judge Lopez made at least two significant decisions
in favor of the defendants, one involving an over $20 million
reimbursement to them. See Demoulas IV, 432 Mass. at 65-
68.

In Wilks v. Israel, 627 F. 2d 32 (7 Cir. 1980), a prisoner
filed a habeas corpus petition based on his allegation that he
had assaulted the judge and, therefore, the judge was biased
against him, infringing his constitutional right to a fair trial.
See id. at 36. The court held that the petitioner’s deliberate
attacks on the judge could not force judicial disqualification
because, if this were the case, it would encourage other such
attacks and “would greatly disrupt judicial administration.”
Id. at 37. On the other hand, the court found that a judge
could become so personally embroiled in the controversy that
due process concerns would necessitate his removal. See id.
To resolve the issue, the court advised that it should examine
the record of the trial to determine whether the petitioner
received a fair trial and, in the case at issue, the appellate
court determined that the trial court’s rulings were
appropriate. Jd. In this case, the trial court’s rulings have
survived the scrutiny of the highest court in the
Commonwealth of Massachusetts which, in virtually every
instance, found Judge Lopez’ decisions to be appropriate and
correct. This Court can take notice of this fact and conclude
that there has been a determination that no actual bias by
Judge Lopez against the defendants could be proven and that,
accordingly, no violation of the Petitioner’s Fourteenth
Amendment right has occurred.

28

CONCLUSION

For the reasons set forth above, the Petition for Certiorari
should be denied.

Respectfully submitted,

CAROL RUFFEE COHEN
Counsel of Record

JOSHUA S. GROSSMAN

Davis, Mam & D’ AGOSTINE
One Boston Place

Boston, Massachusetts 02108
(617) 367-2500

Counsel for Respondents
Diana D. Merriam,
Fotene J. Demoulas,
Arthur S. Demoulas,

and Evanthea Demoulas

, - muse MERI : ssedieinstabahtitastaiadidamannmaiosinsect
TESS TR SA AM ERR RNR Talo aA ainsi

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_0652%3A3. Public record. Not legal advice.