Mandamus Petition Is Whether Judge Starr Abused His Discretion by Failing to Recuse Himself Under 28 U.S.C

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No. ______

In the United States Court of Appeals for the Fifth Circuit ______

In Re: Valerie Jackson, Relator. ______

Original Proceeding from the United States District Court for the Northern District of Texas; C.A. No. 3:18-CV-02935-X ______

PETITION FOR WRIT OF MANDAMUS ______

Sean R. Cox Scott H. Palmer State Bar No. 24031980 State Bar No. 00797196 LAW OFFICES OF SEAN R. COX James P. Roberts P.O. Box 130864 State Bar No. 24105721 Dallas, TX 75313 SCOTT H. PALMER, P.C. Telephone: 214.500.9280 15455 Dallas Parkway, Suite 540 Facsimile: 844.501.8688 Addison, Texas 75001 [email protected] Telephone: 214.987.4100 Facsimile: 214.922.9900 [email protected]

Counsel for Relator Valerie Jackson

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No. ______

In the United States Court of Appeals for the Fifth Circuit ______

In Re: Valerie Jackson, Relator. ______

Original Proceeding from the United States District Court for the Northern District of Texas; C.A. No. 3:18-CV-02935-X ______

CERTIFICATE OF INTERESTED PERSONS ______

The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

Plaintiff-RELATOR:

Valerie Jackson

ATTORNEYS FOR DEFENDANT-RELATOR:

Sean R. Cox State Bar No. 24031980 LAW OFFICES OF SEAN R. COX P.O. Box 130864 Dallas, TX 75313 Telephone: 214.500.9280 Facsimile: 844.501.8688 [email protected]

Scott H. Palmer State Bar No. 00797196 James P. Roberts

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State Bar No. 24105721 SCOTT H. PALMER, P.C. 15455 Dallas Parkway, Suite 540 Addison, Texas 75001 Telephone: 214.987.4100 Facsimile: 214.922.9900 [email protected]

DEFENDANTS-REAL PARTIES IN INTEREST:

Lupe Valdez Marian Brown Samuel Joseph Lizyamma Samuel Unknown Dallas County Employee III Dallas County

ATTORNEYS FOR DEFENDANTS-REAL PARTIES IN INTEREST:

Assistant District Attorney Chong Choe State Bar No. 24012421 [email protected] Assistant District Attorney Hilary Miller State Bar No. 24063868 [email protected] Civil Division Dallas County Administration Building 411 Elm Street, 5th Floor Dallas, TX 75202 Telephone: (214) 653-7358 Facsimile: (214) 653-6134

Assistant District Attorney John Butrus State Bar No. 03537330 [email protected] Assistant District Attorney Jason G. Shuette State Bar No. 17827020 [email protected] Federal Litigation Division Frank Crowley Courts Building

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133 N. Riverfront Blvd., LB 19 Dallas, Texas 75207-4399 Telephone: (214) 653-3691 Facsimile: (214) 653-2899

RESPONDENT:

Hon. Brantley Starr United States District Court Northern District of Texas 1100 Commerce Street, Room 1312 Dallas, TX 75242 Telephone: (214) 753-2160

/s/ Sean R. Cox Sean R. Cox Attorney of Record for Relator Valerie Jackson

iii

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STATEMENT REGARDING ORAL ARGUMENT

This original proceeding involves an important question of federal law: whether a district judge should recuse himself when in his career preceding judicial service he espoused views demonstrating a clear bias/prejudice against the LGBTQ community, to which the party before him seeking recusal belongs. Furthermore, may a district judge make factual determinations as to his demonstrated/perceived bias or prejudice in ruling on a motion to recuse filed under 28 U.S.C. § 144, or must the district judge merely determine if legally sufficient allegations of bias or prejudice have been raised by affidavit of the party seeking recusal, and recuse himself from any further actions in the case.

The decision in this proceeding is being closely watched by the media and the public because of its importance in relation to the civil rights of individuals belonging to the LGBTQ communities and its ramifications for other cases and other vulnerable segments of society. For all these reasons, Relator respectfully submits that oral argument will aid the decisional process.

STATEMENT REGARDING 5TH CIRCUIT I.O.P. 21

Relator does not believe this petition qualifies for emergency treatment, and

Relator does not request emergency relief. Therefore, the petition may be handled in accordance with the standard procedure set forth by 5th Cir. I.O.P. 21 (“Mandamus

Processing”).

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TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ...... i

STATEMENT REGARDING ORAL ARGUMENT ...... iv

STATEMENT REGARDING 5TH CIRCUIT I.O.P. 21 ...... iv

TABLE OF CONTENTS ...... v

TABLE OF AUTHORITIES ...... vii

QUESTION PRESENTED ...... 1

I. Whether a federal district judge may weigh and determine the truth and accuracy of allegations regarding bias/prejudice raised in an affidavit supporting a motion to recuse under 28 U.S.C. § 144?

II. Whether allegations raised by Relator regarding bias/prejudice in an affidavit supporting a motion to recuse under 28 U.S.C. § 144 were legally sufficient to require recusal of federal District Judge Brantley Starr?

III. Whether allegations raised by Relator regarding bias/prejudice in her motion to recuse under 28 U.S.C. § 455 presented circumstances in which federal District Judge Brantley Starr’s impartiality might reasonably be questioned?

INTRODUCTION AND FACTUAL BACKGROUND...... 1

SUMMARY OF ARGUMENT ...... 2

ARGUMENT ...... 4

I. Judge Starr abused his discretion in failing to recuse himself under 28 U.S.C. § 144 and engaging in a factual review and analysis of the allegations and evidence supporting Relator’s claims of bias/prejudice……………………………………………………………..5

II. Judge Starr abused his discretion in failing to recuse himself under 28 U.S.C. § 455 due to clear questions as to his impartiality………………..15

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CONCLUSION ...... 19

CERTIFICATE OF SERVICE ...... 21

CERTIFICATE OF Compliance ...... 22

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TABLE OF AUTHORITIES

Cases Page(s)

Berger v. United States, 255 U.S. 22, 41 S. Ct. 230, 65 L. Ed. 481 (1921)…………………………...5,8

Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (2009)……………………………………………………..16,19

Cheney v. U.S. District Court, 542 U.S. 367 (2004) …………………………………………………………5

Davis v. Bd. of Sch. Com'rs of Mobile County, 517 F.2d 1044 (5th Cir. 1975) …………………………………………….....7

Douglas v. Houston Hous. Auth., 587 Fed. Appx. 94 (5th Cir. 2014) ………………………………………..8,15

Hall v. Small Business Admin., 695 F.2d 175 (5th Cir.1983) …………………………………………...... 17

Harmon v. Dallas County, 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8, 2017) …………….6

In re Cameron Intern. Corp., 393 Fed. Appx. 133 (5th Cir. 2010) ……………………………………….....5

In re City of Houston, 745 F.2d 925 (5th Cir. 1984) ……………………………………………...... 5

In re Faulkner, 856 F.2d 716 (5th Cir.1988) ……………………………………………...... 17

In re Martinez-Catala, 129 F.3d 213 (1st Cir. 1997) ……………………………………………...... 13

In re Volkswagen of America, Inc., 545 F.3d 304 (5th Cir. 2008) ……………………………………………...... 5

vii

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Liljeberg v. Health Svcs. Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) …………………16,18

Litekyv. United States, 510 U.S. 540 (1994) ………………………………………………………..18

Matassarin v. Lynch, 174 F.3d 549 (5th Cir.1999) ……………………………………………...4,16

Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) ………………………..16

Mims v. Shapp, 541 F.2d 415 (3d Cir.1976) ………………………………………………..14

Morse v. Lewis, 54 F.2d 1027 (4th Cir. 1932) ……………………………………………….14

Netsphere, Inc. v. Baron, 703 F.3d 296 (5th Cir. 2012) ………………………………………………...7

Patterson v. Mobil Oil Corp., 335 F.3d 476 (5th Cir. 2003) ………………………………………………6,8

Phillips v. Joint Legislative Comm. on Performance & Expenditure Review of Miss., 637 F.2d 1014 (5th Cir.1981) ……………………………………………..8

Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654 (5th Cir. 1985) ………………………………………………...6

Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999) ……………………………………………….19

Republic of Panama v. Am. Tobacco Co., 217 F.3d 343 (5th Cir.2000) ………………………………………………..15

State of Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho 1981) ……………………………………………7

viii

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Texas Tech Univ. v. Spiegelberg, CIV.A. 5:05-CV-0192, 2006 WL 3591606 (N.D. Tex. Dec. 11, 2006). …………………………………………………..6

Tezak v. United States, 256 F.3d 702 (7th Cir. 2001) ……………………………………………….13

Trust Co. v. N.N.P., 104 F.3d 1478 (5th Cir.1997) ………………………………………………15

Tynan v. United States, 376 F.2d 761 (D.C. Cir. 1967) ……………………………………………..14

Unger v. Taylor, 368 Fed. Appx. 526 (5th Cir. 2010) ………………………………………4,16

United States v. Anderson, 160 F.3d 231 (5th Cir.1998) ………………………………………………..17

United States v. Bremers, 195 F.3d 221 (5th Cir. 1999) ……………………………………………16,17

United States v. Jordan, 49 F.3d 152 (5th Cir.1995) …………………………………………………16

United States v. Rankin, 870 F.2d 109 (3d Cir.1989) ………………………………………………...13

Statutes and Code of Conduct for U.S. Judges

28 U.S.C. § 144……………………………………………………………….passim

28 U.S.C. § 455………………………………………………………...... passim

Canon 3C(1) of the Code of Conduct for U.S. Judges……………………………..15

Secondary Authorities

46 Cong.Rec. 2627 (1911) ……………………………………………………….....7

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Note, Caesar's Wife Revisited Judicial Disqualification After the 1974 Amendments, 34 Wash. & Lee L.Rev. 1201 (1977) ………………………………..7

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QUESTIONS PRESENTED

I. Whether a federal district judge may weigh and determine the truth and accuracy of allegations regarding bias/prejudice raised in an affidavit supporting a motion to recuse under 28 U.S.C. § 144?

INTRODUCTION AND FACTUAL BACKGROUND

On or about November 4, 2016, Ms. Jackson was a pre-trial detainee at the

Dallas County jail. She was booked into custody for Possession of a Weapon in a

Prohibited Place – essentially, she forgot to remove her firearm from her bag before going to the airport. Apx. 1, Complaint at ¶ 13.

Relator Valerie Jackson was assigned the sex of male at birth. Id. at ¶ 10. Ms.

Jackson is a transgender woman, and lives as a woman. Id. at ¶ 11. Ms. Jackson had her gender legally changed to female prior to the events giving rise to her causes of action in this case Id. at ¶ 12.

During the intake process at the jail, although the jail staff verified Ms.

Jackson’s name and gender on her driver’s license, she was compelled to expose her genitalia to jail staff in order to confirm her gender. Id. at ¶¶ 14-119. Ms. Jackson

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has alleged this strip search, as well as other wrongful conduct, clearly violated federal law and her constitutional rights. Id. at ¶ 120-156.

Ms. Jackson’s lawsuit was originally assigned to Judge Karen Gren Scholer.

Apx. 2, Special Order 3-333, p. 4, l.181. However, the case was transferred to Judge

Brantley Starr on August 27, 2019. Id. Soon thereafter, Ms. Jackson became aware of Judge Starr having advocated against the civil rights of members of the LGBTQ community, and his patent bias/prejudice against members of the LGBTQ community. The grounds for Judge Starr’s bias/prejudice were included in an affidavit signed by Ms. Jackson which was attached to a motion to recuse Judge Starr filed on September 19, 2019. Apx. 3, Motion to Recuse and attached Affidavit.

On November 22, 2019, Judge Starr issued a twelve-page opinion denying

Ms. Jackson’s motion to recuse, in which he attacks Ms. Jackson’s allegations of bias/prejudice, weighs the evidence supporting the allegations, and determines they are without merit. Apx. 4, Opinion. Ms. Jackson files this Petition for Writ of

Mandamus based on Judge Starr’s clear bias/prejudice and his improper handling of her motion to recuse.

SUMMARY OF ARGUMENT

Relator, a member of the LGBTQ community, sought recusal of District Judge

Brantley Starr from presiding over her case alleging violations of her civil rights due to his bias/prejudice in relation to members of the LGBTQ community. Such

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bias/prejudice is demonstrated by his past conduct and comments made while serving in the Texas Office of the Attorney General and otherwise in the public realm, as well as comments made during his confirmation process. Relator sought recusal under 28 U.S.C. §§ 144 & 455. In accordance with 28 U.S.C. § 144, Relator supported her motion to recuse with an affidavit laying out the allegations and evidence demonstrating the bias/prejudice Judge Starr holds in relation to members of the LGBTQ community. Judge Starr was merely to review the affidavit to determine its legal sufficiency, but he went much further. Judge Starr provided a twelve-page rebuttal memorandum as the Opinion denying recusal. In that Opinion,

Judge Starr weighs the allegations and evidence, analyzes the allegations for their truth or falsity, argues against Relator’s position, and ultimately denies the motion to recuse. Judge Starr’s failure to limit his review to the legal sufficiency of the affidavit, and instead attacking the allegations, violated the plain language of 28

U.S.C. § 144, as well as precedent from the U.S. Supreme Court, this Court, and other federal appellate courts.

Beyond the patent overreaching in his review of the 28 U.S.C. § 144 affidavit,

Judge Starr also errs in failing to recuse himself under 28 U.S.C. § 144 because the allegations and evidence demonstrates he has a bias/prejudice against members of the LGBTQ community. Under such circumstances, Judge Starr should have been recused.

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Judge Starr also abused his discretion in failing to recuse himself under 28

U.S.C. § 455 because the evidence shows his impartiality might reasonably be questioned. Under such circumstances, Judge Starr was required to recuse himself.

Based on the foregoing, Judge Starr abused his discretion. An Order granting

Mandamus relief should issue, requiring Judge Starr to immediately recuse himself from presiding over this case.

ARGUMENT

On September 3, 2019, this case was transferred from Judge Karen Gren

Scholer to the newly appointed judge of the Northern District of Texas, Judge

Brantley Starr. Shortly thereafter, information came to Relator’s attention that Judge

Starr has a bias/prejudice against her as a member of the LGBTQ community. Thus,

Relator sought recusal under 28 U.S.C. §§ 144 & 455, to which there was no objection or opposition filed by any Defendant/Real Party in Interest. Judge Starr refused to recuse himself.

The question presented by this mandamus petition is whether Judge Starr abused his discretion by failing to recuse himself under 28 U.S.C. §§ 144 & 455, and in evaluating the factual allegations for their truth or accuracy, rather than their legal sufficiency, when evaluating recusal under 28 U.S.C. § 144.1 This Court has

1 Unger v. Taylor, 368 Fed. Appx. 526, 535 (5th Cir. 2010) (citing Matassarin v. Lynch, 174 F.3d 549, 571 (5th Cir.1999) (“We review the denial of a motion to recuse for abuse of discretion”.)

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recognized that the question of recusal is reviewable on a petition for a writ of mandamus. In re Cameron Intern. Corp., 393 Fed. Appx. 133, 134 (5th Cir. 2010);

In re City of Houston, 745 F.2d 925, 927 (5th Cir. 1984). Mandamus is appropriate when (i) there is a clear and indisputable right to relief; (ii) mandamus is the only means of obtaining relief; and (iii) the writ is appropriate in the circumstances.

Cheney v. U.S. District Court, 542 U.S. 367, 380-81 (2004); In re Volkswagen of

America, Inc., 545 F.3d 304, 310-11 (5th Cir. 2008) (en banc); Berger v. United

States, 255 U.S. 22, 35-36, 41 S. Ct. 230, 234, 65 L. Ed. 481 (1921) (recognizing there is no adequate remedy by appeal for failure of judge to recuse). Under that test,

Judge Starr’s failure to recuse himself under 28 U.S.C. §§ 144 & 455 is an appropriate occasion for mandamus relief.

Relator based her motion to recuse Judge Starr, in part, on 28 U.S.C. § 144, which provides as follows:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may

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file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S.C. § 144.2

Here, Judge Starr disregarded the provisions of 28 U.S.C. § 144 and the precedent of this Court and the U.S. Supreme Court in considering Relator’s motion to recuse. Under 28 U.S.C. § 144, “[w]henever a party ... makes and files a timely and sufficient affidavit that the judge ... has a personal bias ... against him ... such judge shall proceed no further therein.” Id.; see also Patterson v. Mobil Oil Corp.,

335 F.3d 476, 483 (5th Cir. 2003).3

2 This Court has held that the requirement that the affidavit be filed no less than ten days before the beginning of the term at which the proceeding is to be heard, is no longer effective since terms of court no longer exist. Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654, 658 (5th Cir. 1985) (“Since formal terms of court were long ago abolished, the literal ten-day requirement no longer applies.”); see also Harmon v. Dallas County, 3:13-CV-2083-L, 2017 WL 3394724, at *6 (N.D. Tex. Aug. 8, 2017); see also Texas Tech Univ. v. Spiegelberg, CIV.A. 5:05-CV-0192-, 2006 WL 3591606, at *1 (N.D. Tex. Dec. 11, 2006). The only requirement as to timing is that a party “exercise reasonable diligence in filing an affidavit after discovering facts that show bias.” Pomeroy, 760 F.2d at 658, As this case was transferred to Judge Starr on September 3, 2019 and the affidavit is being submitted approximately two weeks after the transfer and discovery of the information demonstrating bias/prejudice that supports the affidavit, the filing should be considered to comply with any timing requirement. 3 “The purpose of section 21 is clear from Representative Cullop of Indiana's answer to a question of whether the statute allowed judges discretion to determine the sufficiency of affidavits: Mr. Cullop: ... no, it provides that the judge shall proceed no further with the case. The filing of the affidavit deprives him of jurisdiction in the case. Mr. Cox: ... Suppose the affidavit sets out certain reasons which may exist in the mind of the party making the affidavit; suppose the judge to whom the affidavit is submitted says that it is not a statutory reason? In other words, does it not leave it to the discretion of the judge? Mr. Cullop: No; it expressly provides that the judge shall proceed no further.”

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“When a motion is filed under Section 144, the district court ‘must pass on the legal sufficiency of the affidavit’ without passing on the truth of the matter asserted.” Netsphere, Inc. v. Baron, 703 F.3d 296, 315 (5th Cir. 2012) (emphasis added) (quoting Davis v. Bd. of Sch. Com'rs of Mobile County, 517 F.2d 1044, 1051

(5th Cir. 1975)). Nearly a century ago, the U.S. Supreme Court explained the reasoning behind the requirement that a district judge not weigh the facts in relation to a motion to recuse:

…the tribunals of the country shall not only be impartial in the controversies submitted to them but shall give assurance that they are impartial, free, to use the words of the section, from any ‘bias or prejudice’ that might disturb the normal course of impartial judgment. And to accomplish this end the section withdraws from the presiding judge a decision upon the truth of the matters alleged. Its explicit declaration is that upon the making and filing of the affidavit, the judge against whom it is directed ‘shall proceed no further therein, but another judge shall be designated in the manner prescribed in * * * section twenty-three to hear such matter.’ And the reason is easy to divine. To commit to the judge a decision upon the truth of the facts gives chance for the evil against which the section is directed. The remedy by appeal is inadequate. It comes after the trial and if prejudice exist it has worked its evil and a judgment of it in a reviewing tribunal is precarious. It goes there fortified by presumptions, and nothing can be more elusive of estimate or decision than a disposition of a mind in which there is a personal ingredient.

State of Idaho v. Freeman, 507 F. Supp. 706, 715 (D. Idaho 1981) (citing 46 Cong.Rec. 2627 (1911), quoted in Note, Caesar's Wife Revisited Judicial Disqualification After the 1974 Amendments, 34 Wash. & Lee L.Rev. 1201, 1216 n.102 (1977)).

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Berger v. United States, 255 U.S. 22, 35–36, 41 S. Ct. 230, 234, 65 L. Ed. 481 (1921)

(applying Section 21 of the Judicial Code (Comp. St. § 988) (codified at 28 U.S.C. s 144 (1970)) (emphasis added).

“A legally sufficient affidavit must: (1) state material facts with particularity;

(2) state facts that, if true, would convince a reasonable person that a bias exists; and

(3) state facts that show the bias is personal, as opposed to judicial, in nature.”

Patterson, 335 F.3d at 483. Stated otherwise, “[i]n order for the affidavit to be legally sufficient, ‘[t]he facts must be such that, if true, they would convince a reasonable person that bias exists,’ and ‘[t]he facts must show the bias is personal, as opposed to judicial in nature.’” Douglas v. Houston Hous. Auth., 587 Fed. Appx. 94, 98 (5th

Cir. 2014) (quoting Phillips v. Joint Legislative Comm. on Performance &

Expenditure Review of Miss., 637 F.2d 1014, 1019 (5th Cir.1981)). As the U.S.

Supreme Court has held, a party seeking recusal must merely show “a bent of mind that may prevent or impede impartiality of judgment.” Berger v. United States, 255

U.S. 22, 33-34, 41 S.Ct. 230, 65 L.Ed. 481 (1921).

Here, Relator’s affidavit states the following material facts:

1. I believe any person would reasonably question and harbor legitimate doubts as to the newly assigned judge’s impartiality as to me and my case. Specifically, I am a member of the transgender community and I am suing Dallas County and its employees and agents based on violation of my constitutional rights by conducting a strip search at the Dallas County jail solely to determine my gender, denying me my legally recognized gender of female, and placing me with the male detainee population. Categorizing me

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as male resulted in my being housed with male detainees and being forced to shower with male detainees.

2. Given the positions advocated by the Court prior to becoming a federal judge, a bias/prejudice exists against me as a member of the transgender community asserting my constitutional rights.

3. For instance, while a Deputy Attorney General for the State of Texas, the judge presiding over my case was involved in a lawsuit by the State of Texas to restrict the rights of transgender people in Texas v. United States. Exhibit 1, “Texas Sues Obama Administration Over Transgender Bathroom Directive.” Leah Jessen, Daily Signal (May 25, 2016). The lawsuit against the Obama administration targeted its guidance that directed public school districts to allow transgender students to use restrooms that corresponded with their gender identity. The judge presiding over my case stated that the concerns he had heard (and the implied basis for the lawsuit) was safety. This statement indicates the presiding judge in my case perceives transgender children as a threat to the safety of other children and that such was the reason the lawsuit was brought and why he was arguing in support of the lawsuit. In a June 2016 the presiding judge participated in an Attorney General opinion concluding that the Fort Worth, Texas school district violated state law in adopting a policy to implement the Obama administration’s guidance permitting transgender students to use the bathroom of their gender identity. Exhibit 2, Opinion No. KP-0100. The opinion was viewed as seeking to give states like Texas a license to discriminate against transgender students.4

4 As written in a letter opposing the Judge Starr’s confirmation, the Alliance for Justice expressed the following views: Starr has been at the forefront of Texas’s efforts to undermine LGBTQ equality. He led Texas’s efforts to block federal guidance that protected transgender students under Title IX. Following Obergefell v. Hodges, Starr signed an opinion letter claiming that despite the Supreme Court establishing what he referred to as a “new constitutional right,” civil servants, including clerks, judges, and justices of the peace, could refuse to issue marriage licenses to same-sex couples. Starr also supported a Texas House bill that advocates explained would allow groups “to discriminate,” allowing them to “refuse to place foster children with gay couples or families with different religious backgrounds” Apx. 3, Motion to Recuse at exhibit 6, Letter dated May 8, 2019. The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promoting and protecting the civil and human rights of all persons in the United States, wrote a similar letter opposing the nomination of Judge Starr based on his actions that expressed

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4. In an October 2015 panel discussion entitled “Gay Rights, States’ Rights,” the presiding judge over my case defended the right of county clerks to refuse to issue marriage licenses to same-sex couples following the United States Supreme Court’s opinion in Obergefell v. Hodges. Exhibit 3, Leadership Conference on Civil and Human Rights letter to senators dated April 9, 2019. Judge Starr stated: “If a clerk has a religious objection personally, state law currently allows them to delegate those duties to issue marriage licenses to others in their offices…. There is a new constitutional right after Obergefell, but we can’t, in the rush to recognize that, gloss over the other rights that have always existed under the First Amendment, under the Religious Freedom Restoration Acts at the federal and state level, under employment law at the federal and state level.” Judge Starr participated in a June 2015 Attorney General opinion making similar points written in the wake of the Obergefell decision, referring with apparent skepticism to “[t]his newly minted federal constitutional right to same-sex marriage.” Exhibit 4, Opinion No. KP-0025.

5. The judge presiding over my case has also testified before the Texas legislature supporting legislation to protect adoption agencies refusing to place children with same-sex couples. See Exhibit 5, Newstex, Committee Weighs ‘License to Discriminate’ Adoption Bill, Texas Observer, Apr. 16, 2015 (https://www.texasobserver.org/license-to-discriminate-adoption-bill/).

6. In a written response to questions during the confirmation process for the bench he now holds, Judge Starr refused to answer whether the Fourteenth Amendment requires that states treat transgender people the same as those who are not transgender. Exhibit 7, Questions for the Record April 17, 2019, page 13, Question 2(d). Judge Starr also refused to answer a question as to whether history and tradition should not limit the rights afforded to LGBT individuals, other than to say he would apply binding precedent. Id. at p.15, Question 5(a). Judge Starr also refused to answer whether he believes that the government has a compelling interest in eradicating discrimination against LGBT people, other than to reference an irrelevant answer to another question. Id. at p.28, Question 3(b).

7. In addition to his own public statements expressing views contrary to equal rights for those of the LGBTQ community, Judge Starr supported the judicial bias/prejudice against the anti-LGBTQ community. Apx. 3, Motion to Recuse at exhibit 3, Leadership Conference on Civil and Human Rights letter to senators dated April 9, 2019.

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nomination of Jeffrey Mateer, who was nominated in 2017 to preside over a different Texas federal court, but who was withdrawn in the wake of public outcry for such reasons as a comment that transgender children were part of “Satan’s plan.” Exhibit 8, Massie, Chris (September 20, 2017). “Trump judicial nominee said the issue of transgender children is a deception and part of ‘Satan’s plan’, defended ‘conversion therapy’“, CNN. After Mr. Mateer was nominated, Judge Starr issued a statement of support and declared that “Jeff Mateer leaves a legacy of service to the State of Texas and will now extend that service to all Americans.” Exhibit 9, Press Release. Although claiming not to have known of Mr. Mateer’s statement that transgender children were part of “Satan’s plan”, Judge Starr does not appear to have disavowed such a belief nor did he publicly withdrawn his support for Mr. Mateer.

8. Based on the above, it is clear the judge presiding over my case has a bias/prejudice against me as a transgender individual. I do not believe, nor do I think any reasonable person could believe, that the judge would preside over my case in an impartial manner.

Apx. 3, Motion to Recuse Affidavit at ¶¶ 1-8.

Given that Judge Starr has fervently fought against equal rights for members of the LGBTQ community, and specifically transgender individuals, a clear bias/prejudice exists against Relator. Furthermore, the facts contained in Relator’s affidavit show the bias/prejudice is personal, rather than of a judicial nature. Under

28 U.S.C. § 144, Relator’s affidavit is legally sufficient and Judge Starr should have proceeded no further in this case and another judge should have been assigned.

Rather than merely pass on the legal sufficiency of Relator’s affidavit, Judge

Starr improperly weighed the factual allegations against him regarding bias/prejudice. Indeed, Judge Starr provided a twelve page refutation of the facts alleged in Relator’s affidavit, obviously weighing the accuracy and truthfulness of

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each allegation, starting with statements that Relator “misconstrues the positions that this judge advocated on behalf of his client” and that “The Court responds to each allegation in turn….” Under 28 U.S.C. § 144, Judge Starr is not permitted to respond to each allegation or argue that the affiant has misconstrued the judge’s positions.

Rather, Judge Starr was required to determine the legal sufficiency of the allegations, and if sufficient, recuse himself.

Judge Starr went far beyond that which is permitted by 28 U.S.C. § 144. I his

Opinion, Judge Starr disputes the allegations and evidence supporting Relator’s claims of bias/prejudice, rather than simply determining their legal sufficiency. In fact, Judge Starr admits “the Court has provided a detailed, factual analysis of

Jackson’s allegations….” Apx. 4, Opinion at 12 (emphasis added). Judge Starr expressly questions the accuracy and views of Relator and others in relation to the statements Judge Starr espoused in the past, and refused to give them “any deference.” Apx. 4, Opinion at 10. Indeed, Judge Starr required Relator to present

“authoritative evidence that demonstrates personal bias” and that “would convince a reasonable person of personal bias.” Apx. 4, Opinion at 11 (emphasis added). The demand for a heightened level of evidence and the dismissive and unwarranted indignation of Judge Starr in the face of such obvious bias/prejudice is disquieting.

As to the argument raised by Judge Starr that he should not be viewed as biased based on his advocacy against the rights of LGBTQ individuals because he

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was doing so as an employee of the Texas Attorney General, such argument holds no merit. Judge Starr chose to work for the Texas Attorney General and chose to stay in his position with the Texas Attorney General while ardently advocating against the rights of LGBTQ individuals. He did so in litigation, as an advisor, and as an expert in panel discussions. The fact an attorney voluntarily remained in a position in which he was required to advocate against the civil rights of an entire class of individuals cannot simply be brushed aside by claiming they were just following orders.5

Regardless of whether Judge Starr may disagree with the allegations, or even if he knows them to be untrue,6 he was bound to accept the them as true. In re

Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997) (“Section 144 is unusual because it requires that the district judge accept the affidavit as true even though it may contain averments that are false and may be known to be so to the judge.”); Tezak v.

United States, 256 F.3d 702, 717 (7th Cir. 2001) (“The court must assume the truth of the factual assertions even if it knows them to be false.”) (quotation marks omitted); United States v. Rankin, 870 F.2d 109, 110 (3d Cir.1989) (although

5 If a judge in prior employment solely represented an organization for a significant portion of his career and advocated racist and bigoted positions on its behalf, would a reasonable person believe the judge holds no bias/prejudice against minorities once ascending to the bench? 6 In re Martinez-Catala, 129 F.3d 213, 218 (1st Cir. 1997) (noting that “penalties for perjury and the certificate of counsel tend to discourage outright falsehood” and that “the possibility remains, although not developed in the statute, that the transferee judge might hold a hearing, conclude that the affidavit was false and transfer the action back to the original judge.”).

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denying the unfounded accusation that the challenged judge chased defendant around the courtroom, poked and shoved him, the judge nonetheless recused himself on the ground that he was bound to accept the allegations as true, and reviewing

Chief Judge agreed); Mims v. Shapp, 541 F.2d 415, 417 (3d Cir.1976) (“Despite our sympathy with district judges confronted with what they know to be groundless charges of personal bias we must apply s 144 as it was enacted by Congress. The recusal motion should have been granted.”); Tynan v. United States, 376 F.2d 761,

764 (D.C. Cir. 1967) (“If the statutory standards are met, the judge must recuse himself, even if the allegations are known by the judge to be false.”); Morse v. Lewis,

54 F.2d 1027, 1031 (4th Cir. 1932) (“It must be borne in mind that the judge has no authority to pass upon the truth of the charges, but is required to retire from the trial of a case if the affidavit is sufficient on its face although he has personal knowledge that its contents are untrue.”). Neither ego nor indignation has any place in considering a motion to recuse under 28 U.S.C. § 144. Such is precisely why

Congress proscribed the presiding judge’s role in the process.

Upon receiving the motion to recuse under 28 U.S.C. § 144, with the affidavit containing legally sufficient allegations of bias/prejudice, Judge Starr should have removed himself from the process. Failing to do so, and instead providing what amounts to a brief in opposition to the motion, was an abuse of discretion that must

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be reversed. The prejudice to Relator if Judge Starr is permitted to preside over this case is undeniable.

II. Judge Starr abused his discretion in failing to recuse himself under 28 U.S.C. § 455 due to clear questions as to his impartiality.7

Relator also moved for recusal under 28 U.S.C. § 455(a). Section 455(a) requires that “[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Id.8

“In order to determine whether a court's impartiality is reasonably in question, the objective inquiry is whether a well-informed, thoughtful and objective observer would question the court's impartiality.” Republic of Panama v. Am.

Tobacco Co., 217 F.3d 343, 346 (5th Cir.2000) (emphasis added) (quoting Trust Co. v. N.N.P., 104 F.3d 1478, 1491 (5th Cir.1997)); Douglas v. Houston Hous. Auth.,

587 Fed. Appx. 94, 98 (5th Cir. 2014) (holding that with or without an affidavit filed under 28 U.S.C. § 144, “judges should still recuse themselves where ‘[their]

7 Although Judge Starr criticizes Relator for moving under 28 U.S.C. § 455 because it does not provide any express procedure for doing so, motions to recuse are routinely brought under 28 U.S.C. § 455, and was obviously necessary in this case because Judge Starr failed to recuse sua sponte, as required by 28 U.S.C. § 455. 8 Canon 3C(1) of the Code of Conduct for U.S. Judges similarly provides: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which... (a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

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impartiality might reasonably be questioned[,]’ i.e., where ‘a well-informed, thoughtful and objective observer would question the court’s impartiality.’”).

In deciding whether a probability of bias on the part of the judge exists, courts ask “not whether the judge is actually, subjectively biased, but whether the average judge in [the same] position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’” Caperton v. A.T. Massey Coal Co., Inc., 556

U.S. 868, 881 (2009) (quoting Mayberry v. Pennsylvania, 400 U.S. 455, 466, 91

S.Ct. 499, 27 L.Ed.2d 532 (1971)). The standard under 28 U.S.C. § 455, quite simply, is “whether a reasonable person, with full knowledge of all of the circumstances, would harbor doubts about the judge's impartiality.”

Matassarin, 174 F.3d at 571; Unger, 368 Fed. Appx. at 535-36.

In reviewing motions for recusal under section 455(a), the Fifth Circuit “has recognized that section 455(a) claims are fact driven, and as a result, the analysis of a particular section 455(a) claim must be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by an independent examination of the unique facts and circumstances of the particular claim at issue.”

United States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999) (citing United States v.

Jordan, 49 F.3d 152, 157 (5th Cir.1995)). “Since the goal of section 455(a) is to avoid even the appearance of impropriety, recusal may well be required even where no actual partiality exists.” Bremers, 195 F.3d at 226 (citing Liljeberg v. Health Svcs.

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Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) and

Hall v. Small Business Admin., 695 F.2d 175, 178 (5th Cir.1983)). “Thus, if a reasonable man, cognizant of the relevant circumstances surrounding a judge’s failure to recuse, would harbor legitimate doubts about that judge’s impartiality, then the judge should find that section 455(a) requires his recusal.” Bremers, 195 F.3d at

226 (citing United States v. Anderson, 160 F.3d 231, 233 (5th Cir.1998) and In re

Faulkner, 856 F.2d 716, 721 (5th Cir.1988)). “Consequently, a district judge’s failure to recuse himself in such circumstances would constitute an abuse of discretion.” Id.

Here, any person would reasonably question and harbor legitimate doubts as to Judge Starr’s impartiality as to the Relator and her case. Specifically, Relator is a member of the transgender community and is suing Dallas County and its employees and agents based on violations of her constitutional rights at the Dallas County jail, including a strip search conducted solely to determine gender, denying her the legally recognized gender of female, and placing her with the male jail detainee population. Apx. 1, Complaint at ¶¶ 13-119. The categorization of Relator as male resulted in her being housed with male detainees and being forced to shower with mail detainees. Id.

Given the positions advocated by Judge Starr prior to being appointed to the federal bench, an apparent bias/prejudice exists against members of the LGBTQ

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community, and particularly those of the transgender community, such as Relator.

Although Judge Starr has couched his crusade against equal rights for the LGBTQ community in terms of protecting religious liberty, there is an undeniable bias/prejudice against the LGBTQ community underlying the above actions.

Relator’s Affidavit and the exhibits attached thereto presented circumstances under which a reasonable man, cognizant of the relevant circumstances, would harbor legitimate doubts as to Judge Starr’s impartiality.

Section 455(a) clearly warrants recusal here. Avoiding even the appearance of judicial partiality is of paramount importance in our judicial system. “The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg, 486 U.S. at 865. Congress enacted subsection 455(a) to “promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible,” id. at 864-65, and in Section

455(a) “broaden[ed] and clarif[ied] the grounds for judicial disqualification.’” Id. at

849 (quoting 88 Stat. 1609). Avoiding the appearance of partiality is so important that it does not matter “whether or not the judge actually knew of facts creating an appearance of impropriety.” Id. at 859-60. Nor does it matter if the judge actually harbors bias or prejudice. Judicial disqualification is “evaluated on an objective basis, and so what matters is not the reality of bias or prejudice, but its appearance.” Litekyv. United States, 510 U.S. 540, 548 (1994) (emphasis added);

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see Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 883 (2009) (“the Due Process clause has been implemented by objective standards that do not require proof of actual bias”). Therefore, recusal is required “whenever ‘impartiality might reasonably be questioned.’” Id. at 888 (quoting 28 U.S.C. § 455(a)). As the Sixth

Circuit succinctly put it, the dispositive question is: “Would a reasonable person knowing all the relevant facts question the impartiality of the judge?” Reed v.

Rhodes, 179 F.3d 453, 467 (6th Cir. 1999). Considering all of the above information, and the fact Judge Starr spent a significant portion of his career advocating positions against the civil rights of the LGBTQ community, it would be impossible not to question the impartiality of Judge Starr in this case – one involving the civil rights of a member of the LGBTQ community. Thus, Judge Starr’s recusal under 28 U.S.C.

§ 455(a) is required.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Relator prays that, after reviewing this Petition for Writ of Mandamus, that this Court order the recusal of

Judge Starr from presiding over this case. Relator further prays for all other relief, both legal and equitable, to which she may show herself justly entitled.

Respectfully submitted,

/s/Sean R. Cox Sean R. Cox State Bar No. 24031980 LAW OFFICES OF SEAN R. COX

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P.O. Box 130864 Dallas, TX 75313 Telephone: 214.500.9280 Facsimile: 844.501.8688 [email protected]

SCOTT H. PALMER State Bar No. 00797196 JAMES P. ROBERTS State Bar No. 24105721

SCOTT H. PALMER, P.C. 15455 Dallas Parkway, Suite 540, LB 32 Dallas, Texas 75001 Tel: (214) 987-4100 Fax: (214) 922-9900 [email protected] [email protected]

ATTORNEYS FOR RELATOR

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CERTIFICATE OF SERVICE

I certify that on December 12, 2019, I filed the foregoing Petition for Writ of

Mandamus with the Court’s CM/ECF system and caused copies to be delivered by

Federal Express and e-mail to counsel of record for Real Parties in Interest:

I further certify that on December 12, 2019, I caused a copy to be delivered to the district court by Federal Express:

Hon. Brantley Starr United States District Court Northern District of Texas 1100 Commerce Street, Room 1312 Dallas, TX 75242 Telephone: (214) 753-2160

/s/Sean R. Cox Sean R. Cox Attorney for Relator

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CERTIFICATE OF COMPLIANCE

This brief complies with: (1) the type-volume limitation of Federal Rule of

Appellate Procedure Rule 21(d)(1) because it contains 5,528 words, excluding the parts of the brief exempted by Rule 32(f); and (2) the typeface requirements of Rule

32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been pre- pared in a proportionally spaced typeface (14-point Equity) using Microsoft Word

(the same program used to calculate the word count).

/s/Sean R. Cox Sean R. Cox