Elaine M. Seid. SBN 72588
MCPHARLIN, SPRINKLES & THOMAS LLP
2  Ten Almaden Blvd., Ste. 1460
San Jose, CA 95113
Telephone: (408) 293-1900
Thomas R. Hogan, SEN 042048
Leslie Holmes. SBN 192608
LAW OFFICES OF THOMAS R. HOGAN
Ten Almaden Blvd., Ste. 535
San Jose, CA 95113
Telephone: (408) 292-7600
Samuel D. Rosen, ESQ.
PAUL, HASTINGS. JANOFSKY
& WALKER LLP
399 Park Avenue, 31st Floor
New York. N.Y. 10022-4697
Telephone: (212) 318-6000
Helena K. Kobrin. SBN 152546
MOXON & KOBRIN
3055 Wilshire Blvd.. Ste. 900
Los Angeles, CA 90010
Telephone: (213) 487-4468
Attorneys for Creditor
RELIGIOUS TECHNOLOGY CENTER
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
In re H.KEITHHENSON,            ) U.S.D.C.No._____________
                                                     ) CASE NO.:
98-51326ASW-13
Debtor.                                         )  (Chapter 13)
                                                     )
                                                     )  Date:
                                                     )  Time:
                                                     )  Ctrm:
______________________________________)
CREDITOR, RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL OR, ALTERNATIVELY,
FOR ISSUANCE OF A WRIT OF MANDAMUS TO THE HON.
ARTHUR S. WEISSBRODT, BANKRUPTCY JUDGE
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of page]
                    TABLE OF CONTENTS
MEMORANDUM OF POINT AND AUTHORITIES...1
Preliminary Statement ........................1
RTC's Instant Motion ........................2
1.  RTC's Request for Leave to Appeal...3
2.      RTC's Alternative Request for Issuance of a Writ of
Mandamus...5
The Merits of the Disqualification Issue .......................5
1.       The Applicable Law ...........................5
2.      Judge Weissbrodt's Conduct ....................6
         A. Intruding into Settlement and Prejudging the Case...9
B. Collaterally Attacking the Jury Verdict ........12
C. Demeaning RTC's Right Not to Publish ........12
D. Demeaning the Scientology Religion    .......14
  E.  Chastising RTC for Pursuing its Claim   .......15
F.  The Number of RTC's Attorneys         .......18
G. Unequal Treatment Based on the Number of Attorneys...20
H. RTC is tne "Bad Guy" ............23
I.  Favoring Henson Because of His Age...26
Conclusion...28
[end p. i]
TABLE OF AUTHORITIES
Cases
Page
*Alexander v. Primenica Holdines. Inc..*
10 F.3rd 155 (3rd Cir. 1993)...
3
*Bauman v. U.S. Dist. Ct.,*
  557 F.2d 650 (9th Cir. 1977)...
3
*Commonwealth Coatings Corp. v. Continental Casualty, Co.,*
393 U.S. 145 (1968) ...........................
5
*Denburg v. Parker, Chapm, Flattau & Kimpl,*
82 N.Y.2d 375,624 N.E.2d 995 (1993) ............
20
*Harper & Row, Publishers, Inc. v. Nation Enterprises,*
471 U.S. 539 (1985) ..........
13
*In re Cement Antitrust Litigation,*
673 F.2d 1020 (9th Cir. 1982) . .
3
*In re Cement Antitrust Litigation,*
688 F.2d 1297 (9th Cir. 1982)  ...
4
*In re Christian Porter Aluminum Co.,*
   316 F. Supp. 1340 (N.D.Cal. 1970)...
1
*In re Clark Entertainment Group, Inc.,*
183 B.R. 73,78-80 (Bankr. D.N.J. 1995...
13
*Jacob v. Norris, McLaughlin & Marcus,*
  128 N.J. 10, 607 A.2d 142 (1992) . . ..
20
*Liteky v. United States,*
510 U.S. 540 (1994) ...............
5, 21
*Matter of Schake,*
154 B.R. 270,275 (Bankr. D. Neb. 1993...
17
*NLRB v. Catholic Bishop of Chicago,*
440 U.S. 490, 99 S.Ct.l313,59 L.Ed.2d 533 (1979)...
14
*Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery
Co.,*
324 U.S. 806,65 S.Ct. 993, 89 L.Ed. 1381 (1945) ..................24
*Republic of Panama v. American Tobacco Company, Inc.,*
217 F.3rd 343 (5th Cir. 2000) ...................
3,4
*Salinger v. Random House, Inc.,*
811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987...
13
*Serbian Eastern Orthodox Diocese v. Milivojevich,*
426 U.S. 696 (1976)...
14
[end of p. ii]
*United Sewerage Agency v. Jelco Inc.,*
646 F.2d 1339 (9th Cir. 1981) ......
19
*United States v. Con forte.*
624 F.2d 869 (9th Cir.); *cert denied*, 449 U.S. 1012 (1980)...
5
*United States v. Pfizer, Inc.,*
560 F.2d 319 (8th Cir.l977)...
10, 11
*Woods v. Covington County Bank.,*
  537 F.2d 804 (5th Cir. 1976)  . . .
20
Statutes
11 U.S.C.§523(a)(6)...                                              18
  28 U.S.C. §158...
1,2
  28 U.S.C. §455...
3,5
   28 U.S.C. §455(a)...                                             5,
22
  28 U.S.C. §1651...
1, 2
   Bankr. Rule 8001...
2
Bankr. Rule 8003...
3
Bankr. Rule 8003(b)...
3
Cal. Penal Code § 422.6...
1
  Fed.R.Civ.P., Rule 56 ...
11
  United States Constitution, Art. 1, §8, Cl. 8...              13
  Other Authorities
  ABA Code of Judicial Conduct...                        5, 6, 9. 12
ABA Code of Judicial Conduct, Canon 2...           9, 12, 13
ABA Code of Judicial Conduct, Canon 3...                13, 15
  ABA Code of Judicial Conduct, Canon 3(B)(2)...           13
ABA Code of Judicial Conduct, Canon 3(B)(5)... 14, 22,  26
ABA Code of Judicial Conduct, Canon 3(E)...                 22
  ABA Code of Judicial Conduct, Canon 9...                     20
*An Analysis of the Role of the Bankruptcy Judge and the Use of
Judicial Time,*
23 Seton Hall, L. Rev. 1329 (1993) . . ..                           10
Wright & Miller, 16 *Fed. Prac. and Proc. Juris 2d*,
§ 3935.5 (1996) ...........................
3
[end of p. iii]
23
24
25
      TO DEBTOR H. KEITH HENSON, THE CHAPTER 13 TRUSTEE, THE U.S.
TRUSTEE
AND THE HON. ARTHUR S. WEISSBRODT:
      PLEASE TAKE NOTICE that on ______________, at ______________, in
the Courtroom of__________________, creditor Religious Technology
Center ("RTC") will, and it hereby does, move for leave to appeal,
pursuant to 28 U.S.C. §158, from the June 1, 2001 decision of the
Honorable Arthur S. Weissbrodt, United States Bankruptcy Judge,
denying RTC's motion to disqualify him.[1]
      RTC alternatively moves, pursuant to 28 U.S.C. §1651, for
issuance of a writ of mandamus
Judge Weissbrodt, directing that he take no further actions in the
bankruptcy case pending before
  him, *In re H. Keith Henson, Debtor*, Case No. 98-51326 ASW-13.
     The grounds for this motion are fully set forth below, and in the
Declaration of Helena KKobrin and the exhibits hereto, and the record
of proceedings before Judge Weissbrodt.
                     MEMORANDUM OF POINT AND AUTHORITIES
                                        Preliminary Statement
         On April 5,2001, Creditor, Religious Technology Center
("RTC"), the only real party in interest in Henson's pending
bankruptcy proceeding, filed a motion to disqualify Judge Weissbrodt,
the assigned judge in the bankruptcy case. However, before that Motion
was decided, Henson:
        1.     was convicted in Riverside County Criminal Court on
April 26,2001 of committing hate crimes in violation of Cal. Penal
Code §422.6; and
        2.     fled the United States and did not appear before the
Riverside Court for sentencing, as  he was required to do on May 16,
2001. (Ex. B.) As of that date, Henson was and continues to be a
fugitive, physically in Canada and opposing deportation
proceedings.[2]
     Upon these events, RTC immediately sought to dismiss Henson's
bankruptcy petition under
-----------
[1]All exhibits referenced are attached to the Declaration of Helena
K. Kobrin.
[2] On May 16, the Riverside Court revoked Henson's personal
recognizance bail and issued a  "no bail" arrest warrant. (Ex. B.)
Canadian authorities have since arrested Henson for violating the
Canadian Immigration Act. (Ex. C.) Henson has, however, announced via
the internet that he likely seek “political asylum” in Canada on the
grounds that the State of California has violated his  human rights.
(Ex. D.)
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS                       1
[end of page 1]
the so-called "fugitive disentitlement doctrine" which bars fugitives
from access to, or the protection of, the courts. However, because
RTC's motion to disqualify Judge Weissbrodt was then pending, *sub
judice*, thereby making it most inappropriate for RTC to seek
dismissal of Henson's bankruptcy petition before Judge Weissbrodt,
RTC, on May 25, filed a motion in the District Court to withdraw the
reference (citing to the then-pending motion to disqualify Judge
Weissbrodt) so that it could then file its motion to dismiss based on
Henson's fugitive status with the District Court.[3]
The motion to withdraw the reference has been assigned to Judge Whyte.
However, before it could be heard, Judge Weissbrodt issued his June I
"Memorandum Decision" denying RTC's to disqualify him (the "June 1
Decision" or "Dec.," Ex. A). Because Judge Weissbrodt's June 1
Decision is patently incorrect as a matter of law, because that
Decision raises important questions respecting the proper role of a
trial judge in settlement, and itself, on its face, strongly supports
the need for disqualification, RTC here seeks leave to immediately
appeal that Decision to the District Court or, alternatively, seeks
issuance of a Writ of Mandamus to Judge Weissbrodt, pursuant to 28
U.S.C. § 1651, directing that he refrain from taking any further
actions in the bankruptcy case.  Thus, this motion is related to, and
is in part an alternative to, RTC's May 25 motion before the District
Court to withdraw the reference. Accordingly, RTC respectfully
requests that this motion be assigned to Judge Whyte and that
it be heard together with RTC's May 25 motion to withdraw the
reference.
RTC’s Instant Motion
1.       RTC's Request for Leave to Appeal
28 U.S.C. §158 provides that "(a) [t]he district courts of the United
States shall have jurisdiction to hear appeals . . . with leave of the
court, from interlocutory orders and decrees, of bankruptcy judges
entered in cases and proceedings referred to the bankruptcy judges
under section 157 of this title." Bankr. R. 8001 provides that an
appeal by leave from an interlocutory bankruptcy order is taken by
filing a notice of appeal, "accompanied by a motion for leave to
appeal prepared in
-----------------
[1] RTC had prepared its proposed motion to dismiss Henson's
bankruptcy petition and annexed it to its May 25 motion.  It cannot,
however, file it as a motion in The District Court until the
motion to withdraw the reference is granted.
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 2
accordance with Rule 8003 . . ." Rule 8003(b), in turn provides that a
notice of appeal and motion for leave to appeal are to be transmitted
by the clerk of the bankruptcy court to the clerk of the District
Court (or the BAP).
2.      RTC's Alternative Request for Issuance of a Writ of Mandamus
A Writ of Mandamus is an appropriate vehicle to obtain immediate
appellate review of a lower court's decision granting or denying a
motion to disqualify under 28 U.S.C. §455. See, *In re Cement
Antitrust Litigation*, 673 F.2d 1020, 1025 (9th Cir. 1982); *Alexander
v. Primenica Holdings, Inc.*, 10 F.3rd 155, 162 (3rd Cir. 1993);
*Republic of Panama v. American Tobacco Company, Inc.*, 217 F.3rd 343,
345 (5th Cir. 2000). See also *Wright & Miller*, 16 Fed. Prac. and
Proc. Juris 2d, §3935.5 (1996) ("An order denying disqualification is
a more likely subject for mandamus relief”).
The Ninth Circuit has set forth five guidelines pertinent to whether
an appellate court should consider a request for an extraordinary
writ:
1.        no other adequate means to obtain the relief sought;
2.       damage or prejudice will occur "in a way not correctable on
appeal";
3.       the lower court's "order is clearly erroneous as a matter of
law";
4.       the lower court's "order is an oft-repeated error"; and
5.       the lower court's order raises new and important problems or
questions of law of first impression.
*Bauman v. U.S. Dist. Ct.*, 557 F.2d 650,654-55 (9th Cir. 1977). But
as the *Bauman* court was quick to add, these factors are cumulative;
all five are rarely present in any given case; one seeking the writ
need not satisfy all of them, and resolution turns on a balancing of
these factors. *Id.* at 655.
Here, the balancing is clearly in favor of RTC. Save for the
alternative of an appeal by leave, RTC has no other means to obtain an
immediate appellate determination of whether Judge
Weissbrodt can continue to preside over the bankruptcy case.
Second, RTC, as the only real party in interest[4], will be delayed
and prejudiced were it obliged
------------------
[4]When Henson filed his baitkraptcy petition, his only creditor was
RTC and its claim, in pre-trial stage, for damages for copyright
infringement. Thus, this is a one-creditor case pursued solely to
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 3


to continue before Judge Weissbrodt in a bankruptcy case already
pending for three years and to wait until a final determination of the
case to obtain appellate review.  Indeed, because any decision, any
ruling, any Order issued by Judge Weissbrodt from the date he should
have recused himself through the end of the case would be subject to a
challenge and likely a nullity if he is ultimately disqualified by an
appellate court[5], it would be extraordinarily prejudicial and
damaging to compel RTC to proceed before Judge Weissbrodt with a
series of substantial motions (including one under the fugitive
disentitlement doctrine) and an extensive trial (to be set by Judge
Weissbrodt on RTC’s earlier filed motion to dismiss Henson's petition
for fraud) when, at the end of the day, this could all be for naught.
Third, as shown below, RTC clearly satisfies the guideline that Judge
Weissbrodt’s June 1 Decision is erroneous as a matter of law and, if
anything, his Decision itself supplies compelling evidence in favor of
disqualification.
   The fourth factor does not apply here. As to the fifth, several
aspects of Judge Weissbreodt’s conduct present new and important
problems, not the least of which is the proper role of the assigned
trial judge in settlement. Specifically, where, as here, Judge
Weissbrodt gratuitously interjected himself into the issue of
settlement, *sua sponte*, proposed a specific settlement amount and
gratuitously then explained his reasons why each party should accept
it, the problem of whether he can or should now try this case is a
significant--and a troubling--one.
  The issue of whether an activist judge who is not only deeply
involved in settlement but has chosen to become so on his own
initiative can then try the case is a question of major importance to
the conduct of all judicial officers in this District. Accordingly,
supervisory mandamus authority lies even if Judge Weissbrodt's June 1
Decision is not "clearly erroneous".  *In re Cement Antitrust
Litigation*, 688 F.2d 1297, 1307 (9th Cir. 1982) ("[I]n such cases we
see no legitimate reason for refraining from exercising our
supervisory authority where we can determine that an error has been
made but cannot, for whatever reason, characterize the error as,
'clearly’ erroneous".).
-----------------
avoid Henson's obligations to his one creditor.
[5] *Republic of Panama, supra*, 217 F.3rd at 347.
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 4


The Merits of the Disqualification Issue
1.       The Applicable Law
The law governing disqualification is well-settled. Under 28 U.S.C.
§455(a), a judge must recuse himself if "his impartiality might
reasonably be questioned". The test is an objective one,
determined by what a reasonable, objective person--not the judge
himself or the litigants--having all of the relevant facts would think
about the judge's impartiality. *Liteky v. United States*, 510 U.S.
540, 548 (1994); *United States v. Conforte*, 624 F.2d 869, 881 (9th
Cir.); *cert denied*, 449 U.S. 1012 (1980). The §455 standard is also
reflected in the ABA Code of Judicial Conduct (the "Code" §455(a) and
the Code embody the principle articulated by the Supreme Court long
ago that "any tribunal permitted by law to try cases and controversies
not only must be unbiased but must also avoid even the appearance of
bias." *Commonwealth Coatings Corp. v. Continental Casualty, Co.*, 393
U.S. 145, 150 (1968).
Applying these principles of law, and even imposing a heightened
burden on RTC because the factual bases of its disqualification
request are not all extra-judicial, RTC easily satisfies its §455(a)
burden as a matter of law because no objective person could conclude
that Judge Weissbrodt possessed a scintilla of impartiality. RTC,
however, need not go that far. As §455(a) and the case law make clear,
RTC need not establish that Judge Weissbrodt is, in fact, biased.
Rather, its burden is only to show that an objective person might
reasonably ask the question.
  But this is not merely a §455(a) case; it is more than that. Many of
Judge Weissbrodt's comments go beyond mere bias to violations of the
Code of Judicial Conduct. Accordingly, RTC respectfully submits that
even if there were no evidence of Judge Weissbrodt's lack of
impartiality, even if the objective standard of §455(a) were not met,
RTC ought not be obliged to have its rights determined by a judicial
officer who has not been faithful to the Code. Furthermore, a change
in assigned judges would not be at all disruptive or delaying in this
case.[6]
-------------
[6] To date, according to Judge Weissbrodt (Dec., at 13), he has
presided over primarily discovery disputes. Discovery has now closed
and the parties are up to--but have not yet begun--the final stage of
preparation for trial on RTC motion to dismiss for fraud and on the
viability of Henson's proposed Chapter 13 Plan. At this stage, it
would be simplicity itself to effectuate a
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 5
Judge Weissbrodt's Conduct
   In its April 5 motion to Judge Weissbrodt asking him to recuse
himself, RTC set forth nine (9) categories of improper conduct
evidencing bias, several of which also violated the Code:
A.    intruding into settlement and prejudging the case;
B.     collaterally attacking the jury verdict;
C.     demeaning RTC's fundamental right not to publish its
copyrighted works;
D.    demeaning the Scientology religion;
E.     chastising RTC for spending money to pursue its claim;
F.     criticizing the number of attorneys or law firms representing
RTC in bankrupt court;
G.    unequal treatment of the parties based upon improper factors,
such as the number of
attorneys representing RTC;
H.    basing rulings on the legally insufficient "RTC is the Bad Guy"
argument and prejudging that issue; and
I..         blatantly favoring Henson based on his age. 
Henson's counsel's opposition was skeletal, not even addressing
several of these matters and making only the requisite perfunctory
effort to defend Judge Weissbrodt's conduct. After hearing
oral argument from counsel on May 3,2001 during which Judge
Weissbrodt, quite uncharacteristically, said nothing, asked no
questions, and made no comments. Judge Weissbrodt
issued his 17-page June 1,2001 Decision purporting to answer and
refute RTC's allegations.  That Decision is singular in three
respects:
1.       those of RTC's allegations that were not addressed;
2.      the several misstatements of fact and of the record appearing
in that Decision; and
3.       the baseless but serious accusation of misconduct leveled
against RTC's counsel of filing the disqualification motion for an
ulterior purpose.
  For the District Court's ease of understanding, RTC here sets forth
its allegations respecting
-----------------
seamless substitution of a different judge without delay. Indeed,
since the first matter to be considered is whether Henson, as a
fugitive, can even maintain his bankruptcy case, and since no
Judge has yet addressed that matter, there is absolutely no
possibility of disruption or delay were a new judge assigned now.
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 6
each of the foregoing nine (9) categories of conduct together with its
comments on Judge Weissbrodt's June I explanations. Those
explanations, or in several cases, the conspicuous iabsence of them in
the June 1 Decision, demonstrate the Bankruptcy Judge's revisionist
view of the record, his attempt to put an inoffensive gloss on the
court's own recorded words, and most offensively, the actual bias
inherent in his insidious insinuation that RTC's disqualification
motion was brought for ulterior purposes. By this conduct. Judge
Weissbrodt has not only failed to acquit himself well, but has
demonstrated by his own words why RTC was and is justified in seeking
his disqualification.
By way of introduction to the June 1 Decision, RTC notes:
1.       Judge Weissbrodt characterizes RTC as "a *creditor*"
(emphasis added) (Dec.,
at 1), despite knowing that there are no other real creditors
(excluding the non-creditors Henson claimed), that no other creditor
has ever appeared before him in the three years the bankruptcy case
has been pending and that this is, in all respects, a one-creditor
case and thus, a blatant misuse of the Bankruptcy Act;
2.      Judge Weissbrodt takes a cheap shot at RTC, offering that it
has never amended its claim to show amounts over $75,000 (Dec., at I,
fn. 1). As the record shows, RTC's *original* filed on September 9,
1998, set forth its claim as $1,060,636.86, and, in addition, Judge
Weissbrodt had actual knowledge of precisely what amounts had been
awarded by Judge Whyte and that on remand from the Ninth Circuit,
Judge Whyte was considering them further. (RTC v. Henson Whyte Order
dated June 28, 2000);
3.      in describing RTC's allegations in support of
disqualification. Judge Weissbrodt rephrased them (Dec., at 2),
attempting to recast them in a neutral fashion that belies his actual
conduct. Thus, Judge Weissbrodt did not merely "comment on the
disparity [of] resources available to each party," but repeatedly
criticized RTC for spending too much on its case. (Ex. E, at 27-29;
Ex. F, at 42; Dec., at 5,6.) Judge Weissbrodt did not merely "comment"
on "Debtor's age," but expressed sympathy--and favoritism - for Henson
because he is "an older man." (Ex. G, at 39.)  And Judge Weissbrodt
did not merely "comment" on "the fact that Creditor is a religious
organization," but delivered a soliloquy of his personal views of how
a real church, a true religion,
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 7


should act, a speech in which Judge Weissbrodt referred to RTC as "an
organization that represents itself as a church"[7] (Ex. G, at 39);
and
4.       Judge Weissbrodt persists to this day in mischaracterizing
the March 13 hearing as merely a "status conference" in his June 1
Decision (Dec., at 4, 14) so as to justify his criticism that
RTC had four attorneys attending this mere "status conference" (March
13 transcript, Ex. G, at 40), despite that Judge Weissbrodt, by his
November 29, 2000 Order, directed the Joint Trial-Setting Statement be
filed by March 6, set March 13 as the final trial-setting conference
in the case, and despite that RTC's April 5 motion (Ex. H, at 17)
clearly made this very point that Judge Weissbrodt’s criticism was
unfair because March 13 was *not* a mere status conference.
  Singular, however, in its offensiveness is Judge Weissbrodt's
accusation (Dec., at l6) that the timing of the motion to disqualify
indicates RTC's counsel sought disqualification only because
Judge Weissbrodt stated at the "March 13 *status conference*" that the
trial was going to be a limited, timed one and that the real, ulterior
purpose of the disqualification motion was to "forum-shop” a judge who
would allow a longer trial.[8]  But what Judge Weissbrodt has
forgotten in leveling his offensive accusation is that it was *not*
March 13 when he first announced that the trial would be limited and
timed. Judge Weissbrodt said that at the September 13, 2000 and
November 20, 2000 hearings (Ex. F, at 81-82; Ex. E, at 16-17, 19, 26)
and no motion to disqualify him was made then.  Moreover, Judge
Weissbrodt has apparently also forgotten that it was *immediately*
upon the completion of his comments at the March 13 hearing that RTC's
counsel immediately rose to put on the record, without consulting his
client, without taking time to posture, his grave concerns over the
seriousness of Judge Weissbrodt's improper comments and suggested
right then and there that Judge Weissbrodt consider recusal. (Ex. G,
at 42-43, 51-52.) Thus, rather than "the timing of [RTC’s]
------------------------
[7] None of RTC's counsel would have the poor manners or lack of
respect to refer to Judge
Weissbrodt as "purporting to, or representing himself, as a judge."
And yet. Judge Weissbrodt
apparently perceives nothing wrong in his like comments respecting a
religion not his own.
[8] It is difficult to understand what Judge Weissbrodt meant by a
"longer trial" given that even
at the March 13 hearing, he gave no indication at all asto-what time
limits he would impose on the
trial.  In other words, "longer than what???"
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 8


motion" suggesting that RTC sought recusal for an improper, ulterior
purpose, as Judge Weissbrodt now accuses, any objective reader of the
record would conclude that it is Judge Weissbrodt who is completely
out of line in attacking RTC's counsel's motives, and that it is Judge
Weissbrodt who injudiciously resorted to a vitriolic attack upon RTC's
counsel for his own ulterior purposes of attempting to deflect
attention from his misconduct.[9]
  Another compelling aspect of the June 1 Decision is its thunderous
silence respecting sseveral of RTC's allegations, particularly its
allegations of Judge Weissbrodt's numerous violations of the
Code. Remarkably, nowhere in the 17 pages of the June 1 Decision is
the Code of Judicial even mentioned.  Instead, Judge Weissbrodt
appears to have dismissed these allegations on the basis that
"impropriety (whatever that may be) is not the test for recusal."
(Dec., at 15.) Thus, by Judge Weissbrodt's lights, his breaches of the
Code are of no moment. RTC disagrees.
A.  Intruding into Settlement and Prejudging the Case
This judicial district is assiduous in avoiding any possible
appearance of bias when it comes to settlement. Judges assigned to a
case in this district will not even become involved in settlement
issues. That is exactly what happened in the underlying copyright case
- Judge Whyte sent Henson and RTC to a separate settlement judge to
explore settlement. Judge Weissbrodt, however, openly dishonored the
district's strict practice of not getting involved in settlement when,
in the March 13 final trial-setting conference, he gratuitously raised
settlement, and worse, went so far as to put a dollar amount of
$10,000 on the table, proclaiming it as the amount he believes RTC's
claims are worth. (Ex. G, at 37-41.) This conduct violates Canon 2 of
the Code of Judicial Conduct and creates an appearance of
impropriety.[10] As the Eighth Circuit Court of Appeals has held,
"*the judge should avoid recommending an
-------------
[9] RTC's principal counsel, Mr. Rosen, was so personally offended by
Judge Weissbrodt’s
comments that he separately wrote to him. A copy of that letter is
annexed hereto as Exhibit J.
[10]  Canon 2 requires that "[a] judge shall respect and comply with
the law and shall act at all
times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.”  As the commentary to Canon 2 states,
"[t]he test for appearance of impropriety is whether the conduct would
create in reasonable minds a perception that the judge's ability to
carry out judicial responsibilities with integrity, impartiality and
competence is impaired."
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 9


actual settlement figure before or during trial*," because grave
questions will be raised regarding the judge's ability to try the case
fairly, and litigants may justifiably feel that their right to a fair
trial has been eroded. These concerns are particularly acute in the
case of a bench trial, where, as here, the judge acts as the
factfinder as well. *United States v. Pfizer, Inc.* 560 F.2d 319,
322-23 (8th Cir.1977) (ordering bench trial was abuse of discretion
where court had "participated in settlement negotiations to an
extraordinary degree ... [and had] express[ed] strong opinions on the
merits of the case ...,” because '"(i)t is important that a litigant
not only actually receive justice, but that he believe received
justice'") (citation omitted). The Honorable Stephen Stripp, U.S.
Bankruptcy Jude for the District of New Jersey, in his article *An
Analysis of the Role of the Bankruptcy Judge and the Use of Judicial
Time*, 23 Seton Hall L. Rev. 1329, 1393 n.l47 (1993) has also stated
that concerns regarding a bankruptcy judge's impartiality resulting
from his involvement in settlement discussions are "especially
justified in cases in which the judge is the trier of fact."
It is inconceivable that Judge Weissbrodt could impartially conduct a
bench trial of this case now, when he has already prejudged RTC's
claims as worth only $10,000, in addition to his other actions and
statements that strongly suggest that he has prejudged this case. If
Judge Weissbrodt believes a fair settlement would be a $10,000 payment
on an uncontested claim of a million dollars, it is a near certainty
that his ultimate finding after trial in this case will somehow
reflect those views. In the face of his undeniable comments of record.
Judge Weissbrodt offers *only* that have a duty to promote settlement,
that this is all that he did, and that there is nothing wrong with
what he did. (Dec., at 10.) Had Judge Weissbrodt's comments been made
by a settlement judge, they might not be as offensive, but made by the
trial judge, they are intolerable.
  Further, had it not been for Judge Weissbrodt's July 20, 1998 ruling
favoring Henson by reinstating the bankruptcy[11] and his later ruling
favoring Henson on RTC's August 16, 2000
-------------------
[11]Henson originally filed his bankruptcy petition on February 23,
1998 for the stated intention of derailing the copyright infringement
trial then imminent. When that gambit did not work, and the court
lifted the stay to allow the trial to go forward, Henson, on March 24,
1998 filed a notice withdrawing his bankruptcy petition. Months later,
*after* the jury verdict, Henson moved to reinstate his petition
despite the statutory six months disqualification period and
JudgeWeissbrodt not only granted it, but did so *nunc pro tunc*
because Judge Weissbrodt had never signed the Order
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 10


dispositive Motion to Dismiss Case with Prejudice, or. Alternatively,
to Convert Case to Chapter 7,[12] there would have been no need to
address settlement because there would have been no bankruptcy case
pending on March 13, 2001.[13]   Moreover, the June 1 Decision is
conspicuously silent as to the teachings of the *Pfizer* case
and of the authoritative views of Bankruptcy Judge Stripp. Judge
Weissbrodt apparently elected to ignore them.
Judge Weissbrodt's view of the proper conduct of a trial judge when it
comes to settlement issues is remarkable. Twice in his March 13
soliloquy (quoted at 5-7 of the June 1Decision), Judge Weissbrodt told
the parties that they should not comment on his settlement proposal,
that he did not want to ask the parties about their settlement
positions, even going so far as to "instruct" the parties to make no
such statements to him, all because "I don't want to do anything
that's going to inhibit my ability to try the case" (Dec., at 6-7),
and certainly not "on the record" (Dec., at 5.)[14]  Yet Judge
Weissbrodt believes that it is perfectly proper and does not affect
his ability to try the case for him to:
--------------
dismissing Henson's February petition. Had Judge Weissbrodt timely
signed that Order when Henson sought it on March 24, 1998 Henson would
not have had a basis to reinstate his withdrawn petition. [12]  RTC's
motion to dismiss was fUlly supported with evidence, primarily the
unimpeachable evidence of Henson's own earlier statements and
testimony. Henson submitted virtually nothing by way of evidentiary
opposition. RTC was entitled to have its motion granted as a matter of
law for Henson's utter and complete failure to show any triable issue
of fact. Yet, on September 13, 200 Judge Weissbrodt denied the motion
saying that while RTC's allegations were "serious" (Ex.F, at 64), he
was going to give Henson a trial on them (despite his failure to offer
any evidence in opposition on the motion, as required by Rule 56,
Fed.R.Civ.P.). [13] In view of these two rulings on dispositive
motions and his March 13 ruling that he would allow Henson, at trial,
to put in evidence of RTC's alleged misconduct, all rulings in
Henson's favor, it is remarkable that Judge Weissbrodt now says "The
rulings made so far have primarily concerned discovery. . ." (Dec., at
13). [14]  In another case before Judge Weissbrodt on his May 3
calendar, when RTC's attorneys appeared to argue the recusal motion,
the court commented to the counsel present in that case that he
doesn't "want to ask what your settlement posture is because [he]
do[es]n't want to be in a position where [he} can't try the case. So
I’m a little concemed with your putting money on the table....”  (Ex.
K, at 21.)
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 11


gratuitously initiate settlement; set forth his proposed settlement
terms; and speak at length as to what he believes each party's
interests are and why each should settle. That these comments do not
affect Judge Weissbrodt's "ability to try the case," but a response to
him of, *e.g.*, "no deal" from RTC would do so, is inexplicable.
B. Collaterally Attacking the Jury Verdict
Judge Weissbrodt has taken it upon himself to re-try the copyright
infringement case, acting asjudge and jury, and determining that RTC's
interest in its unpublished works cannot really be so important, so
that although Henson has made some "mistakes," he should not be
punished as severely as the jury thought. (Dec., at 5-6.) The
viewpoint expressed by Judge Weissbrodt flies in the face of what
happened in the copyright case, of which Judge Whyte is well familiar.
  Judge Weissbrodt's second-guessing of the jury's verdict and his
tolerance for Henson to continue to abuse the bankruptcy system to
avoid paying RTC merely because Judge Weissbrodt
personally disagrees with that verdict violates the requirement in
Canon 2 that "[a] judge shall respect and comply with the law and
shall act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary." Judge Weissbrodt's
proposal of a settlement figure of $10,000, particularly when evidence
has been presented to the court that Henson had sufficicient assets to
pay the judgment, is comparable to issuing a judgment notwithstanding
the verdict rendendered by the jury, even though Judge Whyte, who
tried the copyright case, stated in awarding attorney fees that "the
evidence presented and attitude exhibited by Henson and his counsel
during trial left the jury with little choice but to find that
Henson's infringement was willful." (Ex. L, at 2.)
  The June 1 Decision is completely silent on this subject. Judge
Weissbrodt has made no effort to explain or defend his comments which
question, if not undermine, the verdict of the jury and violate the
spirit, if not the letter, of the Code.
C. Demeaning RTC’s Right Not to Publish
At the March 13 conference. Judge Weissbrodt told RTC it should
seriously consider accepting a $10,000 payment in lieu of its claim of
a million dollars in damages and attorneys fees because it is in the
"unusual posture"of attempting to collect on a judgment for unlawful
copying and
I CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OP MANDAMUS
[end of p.] 12
publication of its unpublished works. Rather than respecting the fact
that one of the most important rights held by any copyright owner is
its right *not* to publish, the court scoffed at RTC's right not to
publish. (Dec., at 5.)[15]
It is well-established that one of the most important rights held by a
copyright owner is the right not to publish. *Harper & Row,
Publishers, Inc. v. Nation Enterprises*, 471 U.S. 539, 554, 564, 105
S.Ct. 2218,2227, 2232, 85 L.Ed. 2d 588 (1985) "right of first
publication encompasses . . . the choice whether to publish at all,"
and great weight must be given to a copyright owner's decision not to
publish the work; *Salinger v. Random House, Inc.*, 811 F.2d 90, 97,
99 (2d Cir.), *cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d
177 (1987) (enjoining biographer's unauthorized use of J. D.
Salinger's unpublished letters, and placing special emphasis on the
fact that the letters were unpublished in finding infringement); *In
re Clark Entertainment Group, Inc.*, 183 B.R. 73, 78-80 (Bankr. D.N.J.
1995) (granting permanent injunction prohibiting copying/exploitation
of unpublished rehearsal performances of well-known musical groups).
  Here, the jury, understanding that RTC had a strong interest in
preserving its right to not publish, properly awarded RTC a large
damage award for infringement of a single work. The Ninth Circuit
affirmed and the United States Supreme Court denied *certiorari*. It
is shockingly improper for Judge Weissbrodt, in the context of a
bankruptcy proceeding (filed solely to avoid the judgment), to
question and belittle the value of RTC's copyrighted works and the
propriety of RTC choosing to collect on its judgment. That lack of
care for or understanding of RTC's  important copyright interests
flies in the face of the Canons' requirements that "[a] judge shall
respect and comply with the law" (Canon 2) and that he "shall be
faithful to the law and maintain professional competence in it."
(Canon 3).
---------
[15]  This court's sympathetic characterization ofHenson's conduct is
itself audacious.  The Founding Fathers wrote the Copyright Clause
(Art. 1, §8, Cl. 8) into the Constitution, Congress passed the
Copyright Act, and Henson violated it for amusement, for entertainment
and to enhance his stature. A judge of this District found him liable
for infringement, and a jury of his peers held against Henson. Canon
3(B)(2) requires that "[a] judge shall be faithful to the law and
maintain professional competence in it. A judge shall not be swayed by
partisan interests, public clamor or fear of criticism." By what
possible distortion of logic, or outright disrespect for the law in
violation of Canon 3, could Judge Weissbrodt even initiate sympathy
for "poor old" Henson?
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 13
  In the face of his March 13, on the record, comments questioning why
a religion would maintain the secrecy of its scriptures and
questioning the economic value of RTC's infringed copyright in its
unpublished work, the June 1 Decision offers nothing by way
ofexplanation, defense, or apology. Judge Weissbrodt apparently
continues to adhere to his views that as a bankruptcy judge, he is
empowered to question why a religion should keep its scriptures
unpublished or, worse, questioning the economic value of religious
scriptures.
D. Demeaning the Scientology Religion
Even more offensive than Judge Weissbrodt's questioning of RTC's
rights as a copyright owner is his questioning ofRTC's religious
status. Neither the Bankruptcy Code nor those who appointed Judge
Weissbrodt gave him a license to determine what is "usual" in terms of
how people understand religion or the power to determine what are and
are not "appropriate actions for a church.”  Indeed, as Judge
Weissbrodt should surely know (Canon 3(B)(5))[16], it is an outrageous
offense of the First Amendment's freedom of religion guarantee for a
court to even raise these questions.  See *NLRB v. Catholic Bishop of
Chicago*, 440 U.S. 490, 99 S.Ct.l313, 59 L.Ed.2d 533 (1979); *Serbian
Orthodox Diocese v. Milivojevich, 426 U.S. 696,96 S.Ct. 2372,49
L.Ed.2d 151 (1976). The evident fact that Judge Weissbrodt thought he
had the right to raise these questions is perhaps the single most
offensive part of his conduct at bar. Neither the First Amendment nor
RTC can tolerate a judge expressing such an attitude as the jurist to
determine the issues in suit. Judge Weissbrodt's sarcastic
characterization of RTC as "an organization that represents itself
as a church," his questioning of the "economic" value of its
unpublished religious scriptures, his suggestion that RTC, in choosing
to pursue its legal rights and not to simply allow Henson to take
advantage of it, and his openly challenging whether RTC's actions are
appropriate for a "religion or appropriate actions for a church," are
all shockingly improper. (Ex. G, at 39.) The Court has also referred
to RTC as "the Church of Scientology" (Ex. F, at 42), when it is
doubtful that if St. Joseph’s
-----------
[16] Canon 3(B)(5) requires that: "[a] judge shall perform judicial
duties without bias or prejudice. A judge shall not, in the
performance of judicial duties, by words or conduct manifest bias or
prejudice, including but not limited to bias or prejudice based upon
race, sex, *religion*,national origin, disability, age, sexual
orientation or socioeconomic status. . ." (Emphasis added.)
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 14


Roman Catholic Church were involved in a lawsuit, the court would
refer to it as "the Catholic Church," as if the entire religion,
rather than a particular religious corporation, were a party.
Weissbrodt's imposition of his own views regarding the Scientology
religion is a blatant breach of Canon 3. Furthermore, Judge
Weissbrodt's remarks strongly suggest that they are reflective of
opinions concerning what constitutes a religion derived from
extra-judicial sources. For example Judge Weissbrodt has also
challenged RTC's attorney to identify any lawsuits brought by the
Jewish religion, as if disbelieving that a "true" religious
organization would be involved in litigation.  (Ex. G, at 44-45.)
Such a breach of these Canons mandates disqualification, much as a
court would be disqualified from continuing in a matter involving a
Catholic orProtestant church or a Jewisih synagogue if it made similar
remarks about such an organization that was a party before it. Surely
if a juror made similar statements in responding to voir dire, the
juror would be excused for cause.  In fact, Judge Whyte was so
sensitive to this issue that he worked with the parties to fashion a
juror questionnaire that would ensure the jury was not infected by any
such bias. (Ex. M.)
  The entirety of Judge Weissbrodt's response is that he "did not
demean" the religion (Dec., at 9.) That statement aside, RTC is
convinced to a moral certainty that any judge of the District Court,
any judge of the Ninth Circuit (or the BAP), and any right-minded,
objective person would find Judge Weissbrodt's comments demeaning and
insulting were they directed to the reader’s religion.
E. Chastising RTC for Pursuing its Claim
Judge Weissbrodt has repeatedly interrogated RTC's counsel regarding
how much money RTC is spending on legal fees to pursue its claim. For
example, the following cross-examination of an RTC attorney took place
at the November 20, 2000 hearing, in the context of the court brazenly
criticizing RTC for vigorously pursuing its claim against "poor old"
Henson:
THE COURT:     "You're talking about a situation with a *relatively
elderly person*[17] who may or
----------
[17] To the best of RTC 's knowledge, the proccedings before this
Court do not disclose Henson's age, but suffice to say that many of
his contemporaries, such as Mr. Rosen, President Bush,
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 15


      may not have a little bit of equity in his house and - and
you're spending--how much have you spent so far, Ms. Kobrin,
approximately?
MS. KOBRIN:     I have no - Your Honor, I don't deal with RTC's legal
bills. I have no idea.
THE COURT:     Well, you know what your legal bills are.
MS. KOBRIN:     Well, -
THE COURT:     And you haven't reviewed any of the other legal bills?
MS. KOBRIN:     I have occasionally seen them, but I don't know what
the bills for this case have been.
THE COURT:     Okay. Well, I don't think that this case is solely
about whether Mr. - obtaining money from Mr. Henson."
(Ex. E, at 28 (emphasis supplied).)
This inquisition on November 20,2000 was not a spontaneous, isolated
incident. Rather, theamount of money RTC has spent in attorneys' fees
in this case has long been of curious and irrelevant interest to Judge
Weissbrodt. For example, on September 13, 2000, in connection with
improperly questioning RTC's motivation for pursuing its claim, the
court stated:
  And when I say you're afraid of him you obviously are exercising, if
you will, your right to sue. We have one, two, three, maybe four firms
here represented at a motion in a Chapter 13 case.
  So whether it's fear that's motivating you or something else that's
motivating the Church of Scientology, something is motivating them to
bring all of these resources in the context of a Chapter 13 plan. You
already have an injunction, as I understand it, vis-a-vis
infringement. So that you have.
(Ex. F, at 42.) Judge Weissbrodt's comments and inquiries regarding
the amount of money spent by RTC are grossly improper and completely
irrelevant, as is his disrespect for the jury verdict inherent in his
statement that RTC already has an injunction, so it should be happy
about that and forget about the damages awarded to it. Even if the
amount of money spent by RTC on its legal fees was times the amount of
its claim, and even if this disparity were somehow proof of an
intention on RTC's part to "harass" Henson (as Judge Weissbrodt has
overtly suggested), the fact remains that RTC's claim against Henson
is valid and undisputed. A creditor's motivation in pursuing a valid
-------
and per its judicial profile, this Court, would take umbrage at being
called "elderly”.
CREDITOR RELIGIOUS TECHNOLOGY CENTER’S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 16
  and opined that Creditor's approach seemed disproportionate to what
is at stake." And in Judge Weissbrodt's view, his statements "cannot
fairly be taken as criticism. . . ." (Dec., at 10.)  In truth, they
can be taken as nothing else and making it worse, it is not Judge
Weissbrodt's prerogative to "note" these things, to question them, or
to comment upon them. As a creditor, indeed, the only real creditor,
RTC has an absolute right to pursue its admittedly meritorious claim
and to spend as much time and money as it wants in doing so without
its motives being questioned or commented upon.  The bankruptcy
court's statutory duty is to decide matters before it, not to offer
gratuitous observations or criticisms of a party's lawful conduct.
Indeed, Judge Weissbrodt's comments here are all the more offensive
because his prior rulings on dispositive matters in favor of Henson
were largely responsible for the time and money RTC has and will be
obliged to continue to spend. In fact, long ago, at the September 13,
2000 hearing, it was obvious to Judge Weissbrodt that Henson's Plan
was not feasible and that the case ought be converted to a Chapter 7.
(Ex. F, at 3, 5.) Yet he has allowed this Chapter 13 case continue
and, curiously, took the occasion of the March 13 final trial-setting
conference to try to bring about a settlement which would be
incredibly favorable to Henson.[20]
F. The Number of RTC's Attorneys
Judge Weissbrodt has repeatedly criticized RTC for the number of
attorneys it has on this case, and has repeatedly complained that
there are four law firms even at status conferences, despite
-------
[20] That Judge Weissbrodt was an advocate for Henson's interests, in
trying to bring about a settlement for $10,000 cannot be disputed.
Were Henson's bankruptcy converted to Chapter 7, RTC could not only
reach the substantial appreciation in the value of Henson's house, but
its claim against Henson would be nondischargeable under 11 U.S.C.
§523(a)(6) and would survive post-bankruptcy; while there is a
question ofdischargeability under Chapter 13, there is little question
under Chapter 7 that RTC's claim for ajudgment for willful
infringement survives. Moreover, under Judge Weissbrodt's proposal,
for a payment of $10,000, Henson gets to keep the $400,000 in equity
in his house, gets to keep disputed artwork, gets to keep the cash
value of his life insurance policies, gets to keep all of his other
assets, and gets to keep, beyond RTC's reach, all of his future
earnings which have been as much as $130,000 per year. None of this
would be beyond RTC's reach were his petition converted to Chapter 7
(as Judge Weissbrodt himself suggested last September) or better yet,
dismissed for Henson's fraud (or now, his fugitive status). Thus,
there can be no doubt as to whose interests Judge Weissbrodt was
championing with his $10,000 proposal.
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 18


that it is not the court's role to determine the value of the case to
the parties or what legal staffing they should assign, and his
observations are not accurate besides. For example, at what this court
itself had billed as the March 13 trial-setting conference, the court
criticized RTC for having fourlawyers at a "status conference." (Dec.,
at 5-6; see also Ex. E, at 15-16, 26.)
  Beyond the fact that the court's remarks exceeded its role. Judge
Weissbrodt's bias and unprovoked criticism of RTC has caused him to
falsely: (1) describe the March 13 court hearing as a mere status
conference, when it was a trial-setting conference that lead trial
counsel Mr. Rosen--the only attorney from Paul, Hastings, Janofsky &
Walker who has ever appeared here - was obliged to attend; (2) assert
that RTC was represented by four different law firms at each
proceeding over the three years of this case when in fact, the first
and only time this occurred was at the March 13 trial-setting
conference[21]; and (3) assert that "teams" of lawyers have appeared
in this case when, in fact, there has never been more than one lawyer
per firm in attendance.[22] These demonstrably false statements
reflect Judge Weissbrodt's favoritism towards the Debtor.
  More importantly, it is completely irrelevant how many attorneys RTC
chooses to employ. RTC has a fundamental right to counsel of its
choosing, and that the court should even deign to criticize how RTC
has chosen to exercise that right itself violates the public purpose
underlying Canons of Ethics by interfering with the client's right to
counsel of his choice. See *United & Agency v. Jelco Inc.*, 646 F.2d
1339, 1349 (9th Cir. 1981) (affinning denial of motion to disqualify
attorney in suit against another client, and stressing the importance
of a client's right to choose his
------
[21]  There have been only two, or sometimes three, law firms present
at most of the conferences and court hearings held in the last three
years in this case. The first of only two times that Mr. Rosen
appeared was on September 13, 2000 (as one of three lawyers) in order
to argue RTC's Motion to Dismiss or Convert.
[22] Each of the four attorneys who has been involved in the case has
a distinct role in representing RTC. Mr. Rosen was RTC's lead trial
attorney for the copyright case, works with RTC in other matters, and
was asked to become actively involved as trial counsel here when the
case was approaching trial. Ms. Kobrin has worked closely with RTC in
copyright and related matters for 10 years and was involved in the
copyright case even before it was filed when she sent Henson the cease
and desist letter to which he so rudely responded. Mr. Hogan is San
Jose local counsel for RTC, and began representation in the bankruptcy
case with Ms. Kobrin when Henson first filed his petition.  He has
participated sporadically since that time. And Ms. Seid is, of course,
local bankruptcy counsel.
CREDITOR RBLIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 19


own counsel in rejecting a per se ban against dual representation);
*Woods v. Covington Co. Bank*, 537 F.2d 804, 812 (5th Cir. 1976)
(Canon 9's restrictions on former government attorneys' later private
employment must not be applied so strictly as to "defeat important
social interests including the client's right to counsel of his
choice"); *Denburg v. Parker, Chapin, Flattau & Kimpl*, 82 N.Y.2d 375,
381, 624 N.E.2d 995, 999 (1993) (imposition of financial penalty on
lawyer departing from law firm to practice at competing firm may
impermissibly force lawyers to give up their clients; thereby
interfering with clients' free choice of counsel); *Jacob v. Norris,
McLaughlin & Marcus*, 128 N.J.10, 607 A.2d 142 (1992) (same). In
short. Judge Weissbrodt's criticism ofRTC's exercise of this right
mandates disqualification, particularly where the court is weighing
improper factors, such as the number of attorneys, rather than the
evidence.
         Remarkably, even after RTC's April 5 motion pointed out to
Judge Weissbrodt that his March 13 statements were wrong, that RTC
never had four attorneys at any "status conference," that the March 13
hearing was not a "status conference," the June 1 Decision persists in
these false statements. (Dec., at 4, 14.)
          Notably, Judge Weissbrodt has offered not a word of
explanation — or apology - for his  November 20 cross-examination of
Ms. Kobrin as to the amount RTC has paid its counsel.  Even at this
date. Judge Weissbrodt simply does not or will not accept that how
many lawyers RTC has and how much it pays them is between the client
and the lawyers and is not for the court to inquire into or
criticize.[23] That information is totally irrelevant to the issues
before the bankruptcy court and the court's mere inquiry into them,
let alone its fixation and badgering, would leave any objective reader
with the belief that Judge Weissbrodt thought they were relevant and
important and that he was holding this against RTC. There is simply no
other way to interpret Judge Weissbrodt's incessant questioning and
comments on what is, as a matter of law, irrelevant.
       G. Unequal Treatment Based on the Number of Attorneys
        Judge Weissbrodt's apparent bias has resulted in orders
blatantly decided on improper factors, [23] Were RTC seeking ajudicial
award of its counsel fees, a court might properly inquire into
the number of lawyers it engaged, but that is notthecase here, and
Judge Wetssbrodt had no colorably proper reason to raise and persist
in this inquiry.
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION TOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 20


such as the number of attorneys representing RTC and the Debtor.
Although judicial rulings are rarely grounds for disqualification in
and of themselves, the "surrounding comments or accompanying opinion"
may present evidence of the court's pervasive bias against a party,
and can present grounds for disqualification "if they reveal such a
high degree offavoritism or antagonism as to make fairjudgment
impossible." Liteky, 510 U.S. at 555. Judge Weissbrodt's rulings in
precisely that high degree offavoritism towards Henson and antagonism
towards RTC, as the following examples:
a)  At the November 20, 2000 conference, the court extended the final
discovery deadline at Henson's counsel's request, after the case had
been pending for two and one half years, solely because of the court's
*sua sponte* observation that RTC has several attorneys on its side an
attorney is a sole practitioner entitled to more leeway:
  [W]e have an enormous team of lawyers who are potentially available
to represent the interests of the RTC, and a huge disparity in the
economic power of the RTC versus Mr. Henson, who's represented by a
solo practitioner who's practicing bankruptcy law in San Jose.[24] So
I think good cause exists to extend the discovery cutoff.”
(Ex. E, at 16.)" The notion that a party is entitled to any court
relief (e.g., an extension of time to do something) based upon how
many attorneys it has compared to the number its adversary has, is not
merely unknown in our jurisprudence, it is bizarre. By this standard,
debtors, who are frequently represented by individual practitioners or
small firms, have a greater right to "justice" than creditors (e.g.,
banks, credit card issuers, mortgagees) who are frequently represented
by larger law
-----
[24] The court's remarks suggest that the court is also more
sympathetic to parties whoseattorneys practice only "in San Jose."
Such a viewpoint is as improper as a bias based upon the
number of attorneys.
[25] Significantly, Henson's attorney was late in *making* discovery
requests, not in responding to them. The number of RTC's lawyers is
thus factually as well as legally irrelevant - this was not a
situation in which a single practitioner has been bombarded by
thousands of requests from multiple lawyers. Henson's attorney did not
even attempt to claim that his unilateral failure to make timely
discovery requests of his own was in any way related to being
"outnumbered" by RTC's attorneys.  Rather, he argued that he was
bringing discovery requests late because recent events had raised new
factual issues, although the discovery he requested was not related to
any recent events. Regardless, the court based its ruling only on the
fact that RTC has more attorneys, and expressly refused to limit
Henson's attorney to discovery regarding newly discovered facts. (Ex.
E, at 13-16.)
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 21


firms. That the court decided issues based on the number of RTC's
lawyers is completely improper, has no basis in law, and is a textbook
example of a judge improperly dispensing justice based solely on his
bias against one party or, at a minimum, based on legally irrelevant
and improper considerations. Under such circumstances, he must be
disqualified pursuant to the requirement of (§455(a) and Canon 3(E)
that a judge disqualify himself if his impartiality in a proceeding
might reasonably be questioned.26  (b) Since the November 20 ruling
granting Debtor more time to take discovery based on the number of
lawyers on each side, Judge Weissbrodt's partiality and reliance on
that factor has progressed to the point that Debtor's counsel need not
even ask for relief in order to get it. By order dated November
29,2000, Judge Weissbrodt directed that by March 6, the parties submit
a joint pre-trial order which was required to include, *inter alia*,
(1) "[a] list of all documents and other items to be offered as
exhibits at the trial ... with a brief statement following each
describing its substance or purpose and the identity of the sponsoring
witness"; and (2) "[a] description of deposition testimony, answers to
interrogatories or answers to requests for admission which a party
intends to use at trial. . ." (Ex. Q.) RTC and its lawyers complied.
Debtor did not.  Indeed, Debtor's limited contribution to the
pre-trial order failed to even identify his trial exhibits, to
describe any of them, to identify the sponsoring witnesses, or to give
a description or designation of specific discovery to be used.
Nevertheless, at the March 13 hearing. Judge Weissbrodt, with no
request from Debtor's counsel, gave Debtor yet more time to comply
with his November 29 order.  (Ex. G, at 3-9.)
(c) Another example of a biased ruling occurred at the September 13,
2000 hearing, when Mr. Rosen sought merely to advise Judge Weissbrodt
of the anti-terrorist criminal proceedings in Riverside County then
pending against Henson. The court refused to hear of it and did not
consider that event to be before the court *solely because* Mr. Rosen
had *only* an uncertified copy of the criminal court documents. (Ex.
F, at 40-41.) Yet Judge Weissbrodt had no problem whatsoever in
--------
[26] Deciding motions based on the number of RTC's lawyers not only
manifests its bias against RTC as a general matter, but also
specifically violates Canon 3(B)(5), which mandates that a judge
“shall not, in the performance of judicial duties, by words or conduct
manifest bias or     prejudice, including but not limited to bias or
prejudice based upon. . . socioeconomic status."
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 22


accepting statements offered without certified copies when made by
Debtor's counsel about that very criminal proceeding (as appearing in
the March 6 pre-trial order) or in itself citing to and relying upon
that proceeding at the March 13 hearing respecting a trial date here.
(Ex. G, at 9; Ex. R.) Thus, to 4  Judge Weissbrodt's thinking, RTC's
counsel must play strictly by the rules, but Debtor's counsel need
not.
        Judge Weissbrodt's "defense" to these allegations underscores
not only his lack of judicial 7   sensitivity, but his failure, even
to this day, to grasp the error of his conduct. Here, Judge Weissbrodt
offers that granting someone more time to do something is an everyday
matter well within his discretion, and "cannot in and of itself show
bias . . ." (Dec., at 2.) What Judge Weissbrodt still does not
understand is that it is not the granting of more time to Henson's
counsel which is complained of  *per se*. Rather, it is granting him
more time because RTC has more lawyers. Were Judge Weissbrodt to have
determined Henson's counsel's request on the merits of his plea - or
lack thereof- RTC would have had less of a problem. But to do, as
Judge Weissbrodt did, to cast his decision squarely on the number of
lawyers RTC has is as offensive as if he had granted Henson's counsel
more time because he lives in San Jose and two of RTC's counsel do
not. Suffice to say that it is unfortunate that Judge Weissbrodt sees
nothing wrong with what he has done but his bias is evident. Nor does
he perceive any impropriety in first trying, unsuccessfully, on
November 20 to pry from Ms. Kobrin the amount of RTC's legal fees, and
then granting Henson's counsel more time to seek that very information
in discovery.
H. RTC is the "Bad Guy
         Even worse than Judge Weissbrodt's inquiries into RTC's
expenditures and motivation is that his bias in this regard is guiding
the performance of his duties in this matter. In both his opposition
to RTC's August 30 Motion to Dismiss or Convert and in the
trial-setting memorandum filed on
------
[27] We note that Henson's counsel had 2-1/2 years to pose whatever
discovery he thought he needed and that he offered Judge Weissbiodt
nothing by way of explanation as to why he had not done so timely. We
note further, that it was directly because of Judge Weissbrodt's
cross-   examination of~4sS-Kobriff on November 20 as to how much RTC
had paid its counsel that Henson’s counsel requested and used his
additional time to propound discovery seeking this very information.
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 23


March 6, Henson attacked RTC, arguing that it is the bad guy, that it
has done terrible things to him and his family (*e.g.*, picketing his
home), and that this is relevant to the issues in this case because
this constitutes "unclean hands." Judge Weissbrodt has already
signaled that he accepts this defense, ruling on March 13 that he will
likely admit at trial Henson's evidence as going to "unclean hands.”
(Ex. G, at 25-26.) Not surprisingly, neither Henson nor Judge
Weissbrodt cited a single legal authority for this remarkable
application of the "unclean hands" doctrine.[28]
     The principal issue being tried on RTC's Motion to Dismiss is
Henson's fraud and misconduct in his filing of *his* bankruptcy
petition and *his* misconduct in the proceedings on it.  RTC's "hands"
are not even involved here; RTC did not direct or participate in
Henson's misconduct.  Yet, so biased is Judge Weissbrodt against RTC
that even before RTC has had a chance to file its *in limine* motions,
even before RTC was even given a chance to argue the inapplicability
of the “unclean hands" doctrine, on March 13, Judge Weissbrodt
gratuitously offered that he would likely allow this evidence at
trial. (Ex. G, at 25-26.)[29]
          Moreover, Henson's "facts" respecting his "defense" and this
court's embracing of them are astounding and transcend mere errors of
law. Henson is the one who started picketing, not RTC or any
Scientologists. He has picketed facilities where Scientology staff
members, whose entire life is devoted to their religion, live, work,
practice their religion, and train to administer religious rites.  It
is
-------
[28] The "unclean hands" doctrine is not a general "you're bad"
principle. Rather, it is only applicable if a party has acted
unconscionably or in bad faith *with respect to the subject matter of
the litigation. "[E]quity does not demand that its suitors shall have
led blameless lives. . . it does not require that they shall have
acted fairly and without fraud or deceit *as to the controversy in
issue*."  *Precision Instrument Mfg. Co. v. Automotive Maintenance
Machinery Co.*, 324 U.S. 806, 814 (1945) (internal quotes omitted;
emphasis added). Nowhere has anyone claimed that RTC had unclean hands
in connection with Henson's filing of this bankruptcy proceeding or in
the underlying copyright infringement action. Nevertheless, Judge
Weissbrodt intends to give Henson a stage to vent his invective
against Scientology, something Judge Whyte refused to do, laboring
long and hard to keep out Henson's attempts to inject such
irrelevancies into the copyright trial.
[29] Neither does "unclean hands" apply to the issue of whether
Henson's proposed plan is feasible given his own income reduction
occasioned by his devoting scores of workdays to picketing Scientology
facilities instead of working (which has now turned into a total
cessation of income, based on Henson fleeing to Canada and becoming a
fugitive and being arrested and jailed by Canadian authorities).
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 24


not hyperbole to say that Henson's conduct is tantamount to picketing
a Catholic monastery.  Henson has also picketed in front of the
offices of one of RTC's counsel, Thomas Hogan, in San Jose, sign
advising of Mr. Hogan's name, address and telephone number and
referring to him as:  “A cocksucking legal whore."
          In short, Henson elected to eschew employment and income,
insisting instead that it is more important to picket in the most
offensive manner possible and make threats that are so serious that a
jury has now convicted him of a hate crime against Scientologists. Yet
it is Henson who complains that Scientologists have picketed in front
of his house. When he pickets, it is First Amendment activity. When
Scientologists, who notably are not creditor RTC or any of its
representatives, do so, it is "unclean hands" per Henson and Judge
Weissbrodt. Henson revels in his public attacks upon Scientology,
telling the world that the religion is evil and accusing it of
actually hurting people.  That is First Amendment, that is okay, but
when offended Scientologists refer to Henson as a sociopath and a
religious bigot, that is unclean hands in Judge Weissbrodt's view!
That Judge Weissbrodt would even consider for an instant allowing
Henson to try this "defense," that he would be complicit in giving
Henson a public forum from which to spew his religious bigotry, is
unconscionable.  When Henson sought to put Scientology on trial before
Judge Whyte, Judge Whyte stopped it in a nanosecond. Judge Weissbrodt
would not do otherwise but for his evident lack of impartiality.
          Judge Weissbrodt's response here is remarkable. Embracing
Henson's baseless, indeed ridiculous, accusations as if they were
gospel. Judge Weissbrodt offers that the accusation that RTC has
impaired Henson's earning ability by picketing his prospective
employers, is properly an issue in this case. (Dec., atl 5.) The
record is devoid of even one iota of evidence to support Henson's
scurrilous accusations yet Judge Weissbrodt feels compelled to publish
it.
          Further, despite Judge Weissbrodt's comments on the record
at the March 13 hearing that “the relationship between the parties -
we're talking here to a large extent with respect to bad faith about
subjective intent. And to the extent there is a relationship and a
history, that's likely to come in,” we note with great disappointment
Judge Weissbrodt's present attempt to mischaracterize that comment:
"the Court explained that Creditor's conduct toward Debtor *might*
prove relevant..." (emphasis
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 25
added), and "[respecting Debtor's defense of RTC's unclean hands] no
ruling has yet addressed any of the evidentiary questions." (Dec., at
14, 15.)
  The record speaks for itself. Judge Weissbrodt's attempts at
revisionist history will not prevail, but instead will serve only to
underscore the lengths to which he has gone to defend his
conduct and to mask his bias.
I.  Favoring Henson Because of His Age
Judge Weissbrodt has also made repeated comments throughout this
proceeding that Henson is "elderly" and "of advanced age" and
insinuated that RTC is evil and not entitled to collect its debt
because it is "an organization that represents itself as a church. . .
going after an older man in bankruptcy." (Ex. G, at 39 (emphasis
supplied).) Apart from the fact that Henson is not much older than
Judge Weissbrodt himself, is energetic enough to travel the country
picketing, for hours on end, Scientology facilities, is far from a
frail senior citizen, only entered bankruptcy to    avoid paying RTC's
judgment, and is hardly a sympathetic "grandfatherly" type, but rather
is a man who teaches children to make bombs and was standing trial in
criminal court as an accused    terrorist when Judge Weissbrodt made
his comments (and has now been convicted under the California hate
crime statute), Henson's age (and character) are completely irrelevant
to whether RTC is entitled to collect its valid judgment. It is
shocking to RTC that the rules of bankruptcy can be twisted by the
Bankruptcy Court if the debtor is over fifty and the creditor is an
organization affiliated with a religion with which the court has
personal disagreements. Judge Weissbrodt's clear sympathy for Henson
and disgust at RTC for attempting to assert its rights when Henson is
of "advanced age" is a blatant breach of the Canons' requirements that
the court act impartially, and is specifically violative of Canon
3(B)(5)’s prohibition against performing judicial duties with bias
based upon age or religion. The Bankruptcy Code does not have two sets
of rules, one for debtors of middle age and one for debtors of
advanced age, one for religions acceptable to Judge Weissbrodt and one
for those that he insults as representing themselves as churches.
Remarkably, even after RTC made a point in its April 5
disqualification motion that Henson’s age is totally irrelevant to the
issuer in bankruptcy, even after RTC's motion informed Judge
CREDITOR RELIGIOUS TECHNOLOGY CENTER’s
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 27


Weissbrodt that even addressing Henson's age and thereby implying it
has some relevance violates the Code of Ethics, the entirety of the
explanation Judge Weissbrodt now offers is that he was merely
commenting that Henson was "near the age of retirement." (Dec., at
9_10.)[30]
        Here again. Judge Weissbrodt misses the point because Henson's
age is totally irrelevant, so why mention it at all? If Judge
Weissbrodt was not and will not be influenced by his belief that
Henson is "an older man" (Ex. G, at 39), why even say it? Why project
the appearance to anyobjective observer that the court is considering
Henson's age in making its decisions or informulating its settlement
proposal?
         In summary. Judge Weissbrodt repeatedly commented, on the
record, on matters that are totally, legally irrelevant to any issue
in the bankruptcy case, including the number of lawyers RTC has, the
amount RTC has spent in time and money in its case, and Henson's age,
and yet Judge Weissbrodt would have RTC and the District Court believe
that these were all harmless ruminations, that they do not manifest
criticisms of RTC or favoritism ofHenson and his local, "San Jose"
counsel. And Judge Weissbrodt would have RTC and all objective readers
of the record conclude that he did not gratuitously demean the
Scientology religion, that he did not question the integrity of the
jury verdict, that he did not demean the right of a copyright owner to
not publish, that he acted as any judge of this Court would respecting
his gratuitous intrusion into settlement matters and his comments
relating thereto. And Judge Weissbrodt would have the District Court
believe that it was because he reiterated, on March 13, what he had
said in a hearing *six months earlier* about conducting a limited time
trial, that RTC now seeks his disqualification in the hope of
forum-shopping.
          Whatever might have been said about the disqualification of
Judge Weissbrodt before his June 1 Decision, there can now be no doubt
that his June 1 Decision demonstrates that he lacks impartiality.
Beyond his revisionist attempts respecting the record, beyond his
facile explanations and those explanations which are conspicuously
missing, beyond his refusal to apologize to RTC and its lawyers for
his comments. Judge Weissbrodt has now made a most serious charge of
misconduct
--------
[30] This reformulation to "age of retirement" is nowhere in the
record but it is as offensive as  that which Judge Weissbrodt actually
did say.
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FOR WRIT OF MANDAMUS
[end of p.] 27


against RTC's counsel. He has accused RTC's counsel of concocting a
meritless disqualification motion for the ulterior purpose of
forum-shopping a judge who will give RTC something more by
way of trial time than the undisclosed amount of time Judge Weissbrodt
would. In the face of this serious but transparently baseless
accusation of attorney misconduct. Judge Weissbrodt could not
possibly continue on this case. No attorney ought be expected to try a
case before a judge who has leveled a false accusation of professional
misconduct against him and done so in a misguided attempt to defend
his, the judge's, own misconduct.
Conclusion
RTC respectfully asks the District Court to either grant it leave to
immediately appeal the June 1 Decision or grant the requested Writ of
Mandamus and upon either, to disqualify JudgeWeissbrodt.


Dated: June 11, 2001                      Respectfully submitted,
MOXON&KOBRIN
[signature]
HELENA K.KOBRJN
Attorneys for Creditor
RELIGIOUS TECHNOLOGY CENTER
CREDITOR RELIGIOUS TECHNOLOGY CENTER'S
MOTION FOR LEAVE TO APPEAL
OR FORWRIT OF MANDAMUS
[end of p.] 28


[end of this document but not of filings for this date.  See also
“Notice of Motion and Motion to Withdraw Reference Pursuant to
Bankruptcy Rule 5011; Memorandum of Points and Authorities in Support
Thereof; Declaration Warren McShane,” “Standing Order Regarding Case
Management in Civil Cases,” “Declaration of Warren McShane in Support
of Motion to Withdraw Reference to the Bankruptcy Court,” (with
exhibits).]