Scott E.

Stafne
239 North Olympic Avenue
Arlington, Washington 98223
360-403-8700

Mark Zuckerberg
Facebook
1 Hacker Way
Menlo Park, CA 94025

Legal Department
Meta Platforms, Inc.
1601 Willow Road
Menlo Park, CA 94025

By way of priority mail and also via email at: support@fb.com and also
posting on Facebook.com.

Re: My recent suspension from Facebook

To whom it may concern at Facebook (FB), also known as Meta Platforms,

Inc. doing business as META1:

I recently was purged from Facebook. And by this I mean I was

removed from the FB platform for approximately three days. I was informed
of this fact by a FB friend, Douglas Boggs, who called me because he could no
longer find me on the FB messenger app. This was the platform Doug and I
had previously used to communicate with one another. Douglas is the author
of the book entitled Quantum of Justice. That book is about his experiences
with the California court system regarding the foreclosure of his home.

I confirmed the accuracy of Doug’s information by attempting to log in

to Facebook. I was unable to do so because FB indicated my account, i.e. Scott
Stafne, had been compromised. After changing my password and logging in to
my account, FB informed me that I could not make posts using my account

1
Information regarding this can be accessed at: https://en.wikipedia.org/wiki/Meta_Platforms
Scott E. Stafne
January 9, 2023
Page 2

for approximately three days because I had been suspended for posting
sexually explicit photographs of children on January 5, 2023.

Let me be clear: This allegation is totally false. And I want to know

what is the factual basis for the penalty that FB has imposed against me.
This means I want to see some proof that obscene posts were actually made
to my FB account on January 5, 2023 because it is my experience that my
4,500+ FB friends would have informed me about such posts, if they actually
occurred. This does not mean I want to see the offending posts, because I
don’t, but I am concerned about Facebook's veracity because the day it
suggested I posted an ISIS flag. I didn’t do that either.

And I am by way of posting this letter on Facebook asking my friends

to inform me if any of them recall pornographic posts involving children on
my FB account on or about January 5, 2023 or ever.

I am an old lawyer. Indeed, I will be 74 years old on January 18, 2023

and my accumulated wisdom (such that it is or is not) leads me to believe
that the more likely reason FB removed my posts is because I posted an
appellate brief I wrote challenging the judicial independence of those federal
adjudicators known as senior judges. The last portion of that brief asserted:

The American People have traditionally been willing to afford

judges and courts wide discretion in ruling on cases and
controversies based on judges' compliance with the historical
expectations that judges will be neutral and independent
adjudicators of judicial inquiries. But query whether the People’s
past willingness to afford this Nation’s courts the benefit of the
doubt is justified when those present-day judges occupying our
courts as a government institution forsake their obligations to
issue judgments explicating the reasons for their decisions? See
Hamilton, Alexander, Federalist 78 (1788).
Is history only a good basis to restrict the constitutional
rights of People, like women and minorities, and not to curb the
Scott E. Stafne
January 9, 2023
Page 3

oppression of judges who are inclined to take homes from people

in order to give them to the wealthy? Many of us think not. And
we call on judges to put the interests of this country above their
own personal desires.

Wikipedia reports in Criticism of Facebook2 that FB’s censorship and

surveillance policies, among others, remain a source of continuing
controversy. The Wikipedia encyclopedia demonstrates that criticism of
Facebook censorship in the past has involved claims similar to those now
being made against Twitter as a result of the disclosure of that entity's
historical business records.

If FB and Meta Platforms are (and I certainly hope they are not)
censoring my posts in order to prevent criticism of courts and judges from
being accessed by the Public, this would represent a new level of censorship
by a private business which may not be constitutionally appropriate given
these companies reliance on public resources.

Please have someone from your customer service department call me at

the above disclosed phone number regarding my request for evidence that I or
someone inappropriately accessing my FB account posted sexually explicit
materials.

Very truly yours,

s/ Scott E. Stafne .
Scott E. Stafne
WSBA No. 6964

2
Accessible at: https://en.wikipedia.org/wiki/Criticism_of_Facebook
Scott E. Stafne
January 9, 2023
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 Case: 22-35547, 01/02/2023, ID: 12620925, DktEntry: 14, Page 1 of 30

CASE NO. 22-35547

In the
UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
•••
SCOTT STAFNE,
Plaintiff-Appellant,
v.

FREDERICK BURNSIDE, et al.

Defendant-Appellee.

•••
Appeal from the United States District Court for the
Western District of Washington No. 2:16-cv-00753 JCC
__________________________________________________________________
APPELLANT’S REPLY BRIEF
__________________________________________________________________
SCOTT E. STAFNE
STAFNE LAW Advocacy & Consulting
239 North Olympic Avenue
Arlington, Washington 98223
Telephone: 360.403.8700
Scott@Stafnelaw.com
Attorney for Appellant

Church of t he Ga rdens Press

www. churchofthegarde ns.org
 Case: 22-35547, 01/02/2023, ID: 12620925, DktEntry: 14, Page 2 of 30

TABLE OF CONTENTS

TABLE OF CONTENTS ……………………………………….…………….. ii

TABLE OF AUTHORITIES …………………….………………….……….. iii

I. INTRODUCTION …………………………..………………………...…….. 1

II. DWT APPELLEES’ TWO ANSWERING ARGUMENTS ……..…….. 2

III. REPLY TO DWT APPELLEES’ ARGUMENT 1 …………..……..….. 3

IV. REPLY TO DWT APPELLEES’ ARGUMENT 2 ………..…….….….. 6

A. The Law Applicable to the Judicial Inquiry Before This

Court …………………………..…………………………………..…….. 6
1. The Law Applicable to Stafne’s Judicial Neutrality
Arguments ……………...……………..……………….…………….. 6
2. The Law Applicable to Stafne’s Judicial Independence
Arguments……………………………..…………….……………….. 8

B. The Facts Applicable to Stafne’s Judicial Inquiries …...……….. 13

1. Historical Facts ……………………..………………….………….. 13
2. Facts About Senior Judge Coughenour ………………..……..... 14
3. Postscript Regarding Stafne’s Judicial Independence
Arguments ……………………………..…………..……………….. 18

V. CONCLUSION ) ……………………………………………...….……….. 22

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TABLE OF AUTHORITIES

FEDERAL CASES
Aetna Life Ins. Co. v. Lavoie,
475 U.S. 813 (1986) ........................................................................... 14
Booth v. United States,
291 U.S. 339 (1934) .................................................................. passim
Bracy v. Gramley,
520 U.S. 899 (1997) ........................................................................... 14
Caperton v. A.T. Massey Coal Co.,
556 U.S. 868 (2009) ........................................................................... 14
D.C. Court of Appeals v. Feldman,
460 U.S. 462 (1983) ............................................................................. 1
Fletcher v. Peck,
10 U.S. (6 Cranch) 87 (1810) ............................................................. 14
Glidden Co. v. Zdanok,
370 U.S. 530 (1962) ............................................................................. 9
Gomez v. United States,
490 U.S. 858 (1989) ........................................................................... 12
Hirabayashi v. United States,
828 F.2d 591 (9th Cir. 1987) ............................................................... 1
In re Murchison,
349 U.S. 133 (1955) ........................................................................... 14
In re Summers,
325 U.S. 561 (1945) ............................................................................. 1
Indep. Towers of Wash. v. Washington
350 F.3d 925 (9th Cir. 2003) ........................................................... 6, 7
Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984) .................................................... 1

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N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,

458 U.S. 50 (1982) ....................................................................... 5, 8, 9
Nguyen v. United States,
539 U.S. 69, (2003) .................................................................. 8, 10, 11
Peretz v. United States,
501 U.S. 923 (1991) ........................................................................... 12
Prentis v. Atl. Coast Line Co.,
211 U.S. 210 (1908) ......................................................................... 1
Rippo v. Baker,
137 S. Ct. 905 (2017) ......................................................................... 14
Roudebush v. Hartke,
405 U.S. 15 (1972) ............................................................................... 1
Scott v. Sandford,
60 U.S. (19 How.) 393 (1857) ............................................................... 1
Stafne v. Zilly,
337 F. Supp. 1079 .............................................................................. 14
Stafne v. Zilly,
820 F. App'x 594 (9th Cir. 2020) ....................................................... 15
Stern v. Marshall,
131 S. Ct. 2594 (2011) ......................................................................... 8
Todd v. United States,
158 U.S. 278 (1895) ............................................................................. 9
Tri-Valley CAREs v. U.S. Dep’t of Energy,
671 F.3d 1113 (9th Cir. 2012) ..................................................... 5, 6, 7
Tumey v. Ohio,
273 U.S. 510 (1927) ........................................................................... 14
United States ex rel. Toth v. Quarles,
350 U.S. 111 (1955) ............................................................................. 9
United States v. Raddatz,
447 U.S. 667 (1980) ........................................................................... 12
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United States v. Will,

449 U.S. 200 (1980) ............................................................................. 5
Ward v. Monroeville,
409 U.S. 57 (1972) ............................................................................. 14
Wellness Int’l Network, Ltd. v. Sharif,
135 S. Ct. 1932 (2015) ......................................................................... 8
Williams v. Pennsylvania,
136 S. Ct. 1899 (2016) ....................................................................... 14

FEDERAL STATUTES
28 U.S.C. § 294 .......................................................................... 15, 16, 17
28 U.S.C. § 371 .................................................................................. 8, 15
28 U.S.C. § 372 .................................................................................. 8, 15
28 U.S.C. § 455 ........................................................................................ 7

CONSTITUTIONAL PROVISIONS
Article III …………………………………………..…………………….. passim
Article V …………………………………………..…………………………... 19
Grievances 8, 9 & 10, Declaration of Independence,
(US 1776) ..………………………….……………………………………... 21
Fifth Amendment …………………………………………………………... 3, 6

RULES
Fed. R. Civ. Pro 11 ………………………………………………….……….. 19

OTHER
Baron de Montesquieu,
The Spirit of Laws 1750……………………………………………………. 4
Fabian Gelinas,
The Dual Rationale of Judicial Independence 1, 9-10 (2011)……..… 5

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Hamilton, Alexander,
Federalist 78 (1788) ……..…………………………...…………………... 22
Scott Douglas Gerber,
A Distinct Judicial Power: The Origins of an Independent Judiciary,
1606-1787 (Oxford Univ. Press 2011)..………………………………..… 5
Smith, Joseph,
An Independent Judiciary: The Colonial Background, 124 University
of Pennsylvania Law Review 1104 (1976)……..………………………... 5

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I. INTRODUCTION

Throughout this Nation’s history, aggrieved parties have asserted

their views as to the important political (and moral) issues of their time

by posing judicial inquiries to federal courts seeking an adjudication

as to how our Constitution applies to the facts of their specific cases. See

e.g. In re Summers, 325 U.S. 561, 566-67 (1945) (citing Osborn v.

President, Dirs. & Co. of Bank, 22 U.S. (9 Wheat.) 738, 6 L. Ed. 204

(1824)). See also Scott v. Sandford, 60 U.S. (19 How.) 393, 402-03, 15 L.

Ed. 691, 699-700 (1857). Cf. Hirabayashi v. United States, 828 F.2d 591

(9th Cir. 1987), also Korematsu v. United States, 584 F. Supp. 1406 (N.D.

Cal. 1984).

As Justice Oliver Wendell Holmes observed in Prentis v. Atl. Coast

Line Co.:

A judicial inquiry investigates, declares and enforces

liabilities as they stand on present or past facts and under
laws supposed already to exist. That is its purpose and end.
…

Id. at 211 U.S. 210, 226, 29 S. Ct. 67, 53 L. Ed. 150, 158 (1908). See also

D.C. Court of Appeals v. Feldman, 460 U.S. 462, 476-79 (1983);

Roudebush v. Hartke, 405 U.S. 15 (1972).

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The issue which has been framed for appeal by Scott Stafne

(Stafne), the Appellant herein, is:

Whether Senior Judge John C. Coughenour should have

recused himself at a litigant’s request from deciding whether
senior judges, who have retired pursuant the provisions of a
federal statute and must thereafter be assigned and
designated by others to exercise judicial Power, continue to
have life tenure within the meaning of Article III?

See Stafne’s Opening Brief (OB) p. 1.

Stafne’s contentions about how the law, i.e. Article III, should be

applied to the unchallenged facts of this case, are set forth in his Opening

Brief.

II. DWT APPELLEES’ TWO ANSWERING ARGUMENTS

Only Appellees Frederick Burnside, Zana Zarara Bugaighis, and

their law firm Davis Wright Tremaine, LLP (DWT) have filed an

Answering Brief (AB) to Stafne’s Opening Brief. 1 These specific

answering parties (who will be referred to as the DWT Appellees or by

their names) make only two arguments in response to Stafne’s Opening

1 Those parties below which have not filed an answering brief or

indicated they adopt DWT’s Answering Brief for purposes of this appeal
include: Structured Asset Mortgage Trust Investments II Trust,
Mortgage Pass-Through Certificates Series 2005-AR2; The Bank of New
York Mellon Trust Company, N.A. BNY Mellon N.A., JPMorgan Chase
Bank N.A. and Nationstar Mortgage, LLC.
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Brief. First, DWT Appellees argue this Court should affirm Senior Judge

John C. Coughenour’s judgment “because Stafne fails to dispute the

judgment’s merits.” Answering Brief (AB), p. 5. Second, the DWT

attorneys and their law firm argue senior Judge Coughenour’s “senior

status did not merit recusal.” Id. 6-9.

Significantly, the DWT Appellees do not address the issue as to

whether Senior Judge Coughenour was sufficiently neutral under Article

III and the Due Process Clause of the Fifth Amendment to adjudicate the

judicial inquiry posed by Stafne’s Opening Brief.

III. REPLY TO DWT APPELLEES’ ARGUMENT 1:

Stafne disagrees with DWT Appellees’ first premise, which is that

Stafne must address the merits of Judge Coughenour’s judgment as part

of this appeal. Stafne disagrees because adjudicators who are biased are

not competent to exercise the federal judicial Power under Article III. See

OB at pages 10-12 citing 2-ER-29-30, 2-ER-245-247 and 5-ER-943-947 as

factual support for this position.

To the extent Stafne must further educate DWT Appellees on that

history which mandates that federal judges must be neutral and appear

to be neutral regarding those matters which are to be adjudicated by

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them, Stafne would observe that the ideas which ultimately culminated

in the Separation of Powers structure of our national government began

with recognition of the fact that judicial power must be exercised

separately (and differently) from other types of governmental power. In

England, one of the powers and responsibilities of monarchs was to act

as the fount of justice; i.e., the source from which justice emanates. And

it was this expectation of fairness in the exercise of judicial power to

provide justice for individuals that made courts and judges different from

other government departments and branches; because the governed were

not encouraged to expect the sovereign—or other government officials

representing the sovereign—would be fair in other governmental

contexts.

But having just one branch of government that was expected to be

fair to the People made a difference. Indeed, the expectation of judicial

neutrality dramatically changed the course of human history. By the

time Baron de Montesquieu wrote The Spirit of Laws in 1750 (which

inspired our Framers’ adoption of the Separation of Powers as part of the

structure of our government), English courts had established as a

principle of justice that judges exercising judicial power in individual

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cases must be neutral as between the parties to justiciable disputes.

Ultimately, this led to an insistence that judges exercising governmental

judicial power must be independent as well. See e.g. Pipeline Constr. Co.

v. Marathon Pipe Line Co., 458 U.S. 50, 59-60 (1982); United States v.

Will, 449 U.S. 200, 219 (1980); Scott Douglas Gerber, A Distinct Judicial

Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford

Univ. Press 2011); Fabian Gelinas, The Dual Rationale of Judicial

Independence 1, 9-10 (2011) (discussing ancient roots of the concept of

adjudicatory justice, which trace back to Egypt’s First Intermediate

Period and also appear in Babylonian inscriptions about this same period

of time.) See also Smith, Joseph, An Independent Judiciary: The Colonial

Background, 124 University of Pennsylvania Law Review 1104 (1976).

Lawyers Burnside, Bugaighis, and their law firm (DWT) do not cite

any authority which suggests that Stafne must argue the merits of a

judgment decreed by an adjudicator who is incompetent to exercise

Article III judicial Power in order to bring an appeal of that judgment in

an Article III court. And the reason for that would appear to be because

there is no precedent supporting that position. In any event, this Circuit’s

waiver cases that Appellees cite, i.e. Tri-Valley CAREs v. U.S. Dep’t of

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Energy, 671 F.3d 1113, 1130 (9th Cir. 2012) and Indep. Towers of Wash.

v. Wash., 350 F.3d 925, 929 (9th Cir. 2003), clearly do not and cannot

waive the necessity for judicial neutrality which Stafne has raised as a

judicial inquiry here.

IV. REPLY TO DWT APPELLEES’ ARGUMENT 2

A. The Law applicable to the judicial inquiry before this Court

1. The Law Applicable to Stafne’s judicial neutrality arguments

DWT Appellees’ second argument is that Senior Judge

Coughenour’s “senior status did not merit recusal.” This argument

ignores the fact that the judicial inquiry Stafne raises on appeal, see

supra., at 1, is whether Senior Judge Coughenour was sufficiently

neutral within the meaning of Article III and the Fifth Amendment to

adjudicate this judicial independence issue because as a senior judge he

had a direct interest in its outcome. See OB, 10-19. This is significant

because the judicial neutrality concepts incorporated into our

Constitution by the language of Article III and the Fifth Amendment are

not the same thing as the judicial independence required of federal judges

by the “good Behaviour” language of Article III. Thus, as long as the

judicial independence of senior judges without life tenure remains not

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authoritatively resolved by an appropriately performed judicial inquiry

by the court of last resort, that issue should be considered by a neutral

judge not having a personal interest in its resolution.

Additionally, it is worth noting that both Senior Judge Coughenour

and the Chief Judge of that District Court failed to apply the correct legal

standard, i.e. the “average judge” standard, to this judicial neutrality

issue which arises under the Constitution and not by way of statute. See

1-ER-18-19 (Chief Judge’s ruling Senior Coughenour did not violate 28

U.S.C. § 455(a)). See also 1-ER-20-22 (Senior Judge Coughenour’s ruling

he did not violate 28 U.S.C. 455 (a)). See also Stafne’s Opening Brief at

11-12, observing that “both the judge being accused of bias [under the

constitution], as well as those reviewing whether bias has occurred …

[must] determine whether as an objective matter the average judge in his

position is likely to be neutral, or whether there is an unconstitutional

potential for bias.” (cleaned up)

Because DWT Appellees have not disputed Stafne’s judicial

neutrality arguments by way of their Answering Brief, those arguments

have been waived for purposes of these proceedings. See Tri-Valley

CAREs v. U.S. Dep’t of Energy, 671 F.3d 1113, 1130 (9th Cir. 2012);

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Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003).

Furthermore, because Senior Judge Coughenour and the Chief Judge of

the court did not apply the appropriate legal test to the facts of this case

for the judicial inquiry Stafne raised, this Court should remand for the

district court to do so or resolve the judicial inquiry Stafne has posed

here.

2. The Law Applicable to Stafne’s judicial independence arguments

As this Court knows, Stafne’s legal argument relating to the

judicial independence issue being raised here is that a “senior judge” who

has resigned his life tenure pursuant to 28 U.S.C. § 371(b) or 372(a) no

longer qualifies as a judge having “good Behaviour” tenure within the

meaning of Article III. Article III states in pertinent part: “The Judges,

both of the supreme and inferior Courts, shall hold their Offices during

good Behaviour, …”

Supreme Court precedents which Stafne relies upon for the

proposition that the term “good Behaviour” means life tenure for Article

III judges include, but are not limited to: Wellness Int’l Network, Ltd. v.

Sharif, 135 S. Ct. 1932 (2015); Stern v. Marshall, 131 S. Ct. 2594 (2011);

Nguyen v. United States, 539 U.S. 69, 123 S. Ct. 2130 (2003); N. Pipeline

8
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Constr. Co. v. Marathon Pipe Line, 458 U.S. 50 (1982) (Plurality Opinion);

United States ex rel. Toth v. Quarles, 350 U.S. 111 (1955). Cf. Glidden Co.

v. Zdanok, 370 U.S. 530 (1962); Todd v. United States, 158 U.S. 278

(1895). Additionally, Stafne relies on the historical sources he cited and

analyzed below and references here to support his contention that a

purpose of the “good Behaviour” language in Article III is to assure

litigants an independent individual judge as between the parties for

purposes of deciding cases and controversies impartially. See OB at pages

10-12 citing 2-ER-29-30, 2-ER-245-247 and 5-ER-943-947 as factual

support for this position.

DWT Appellees do not assert any reasoning in their Answering

Brief that suggests Stafne is wrong with regard to his factual and legal

analysis demonstrating that the language and history of Article III

require federal adjudicators exercising judicial Power among litigants

must have life tenure or be accepted by litigants to adjudicate their cases

in order to competently exercise the federal judicial Power. See AB, pp 6-

9.

Stafne argued below and now continues to argue here again on

appeal that the “good Behaviour” language, which past precedent holds

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imposes the mandate of life tenure on individual Article III judges, was

included as part of Article III in order to assure the People that these

judges would be independent when adjudicating cases and controversies

between adverse litigants. This is significant because the case authority

DWT Appellees and the senior judge argue should be controlling are

cases which contain obiter dictum, which merely suggests that senior

judges are fully commissioned judges, but does not address whether they

have “good Behaviour” tenure. The most significant of these cases

containing obiter dictum are Nguyen v. United States, supra, and Booth

v. United States, 291 U.S. 339 (1934).

In Nguyen, a three judge panel of this circuit consisting of an active

judge, a senior judge, and a territorial judge purported to exercise Article

III judicial Power by affirming the criminal conviction of petitioner

Nguyen. The judicial inquiries posed before the Supreme Court in that

proceeding were (1) whether the territorial judge -- a judge who did not

have good Behaviour tenure -- could exercise Article III judicial Power on

behalf of this Court. (The Supreme Court determined that he could not);

and (2) whether the decision of the unanimous three judge panel should

be reversed on this ground because both the active and senior judge also

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concurred in the conviction. Notwithstanding the Supreme Court

acknowledged that the two federal judges concurred in Nguyen’s

conviction, the Supreme Court still held that conviction had to be

reversed. In so doing, the Supreme Court observed: “The panel convened

to hear … [the appeal] included the Chief Judge and a Senior Circuit

Judge of the Ninth Circuit, both of whom are, of course, life-tenured

Article III judges who serve during ‘good Behaviour’ for compensation

that may not be diminished while in office.” But there is nothing in that

decision which suggests the judicial inquiry in that case included

considering whether senior judges actually continue to have life tenure

after agreeing that they can only exercise Article III judicial power if they

are designated and assigned to do so.

And it is worth noting the Supreme Court’s obiter dictum in Nguyen

cuts two ways because it suggests that if the senior judge did not continue

to have life tenure after he agreed to accept senior status, the senior

judge would be in the same position as the territorial judge not having

life tenure.

Similarly, Booth v. United States, supra., did not involve the judicial

inquiry Stafne raises here, which is that he, as a litigant, does not have

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to accept as an Article III judge in his case one who does not have such

judicial independence as the Constitution demands but must instead be

designated and assigned periodically by others to exercise the federal

judicial Power. Indeed, this distinction should be obvious from the

Supreme Court’s resolution of the judicial inquiries before the Court in

Booth, see 291 U.S. at 346 & 352, which apparently were resolved before

the Supreme Court determined that persons other than Article III judges

could exercise the federal judicial Power where litigants consented to

their doing so. See, e.g., Gomez v. United States, 490 U.S. 858 (1989);

Peretz v. United States, 501 U.S. 923 (1991); United States v. Raddatz,

447 U.S. 667 (1980).

To the extent this Court intends to hold that traditional legal

analysis involving such concepts as obiter dictum and ratio decidendi do

not apply in cases challenging the constitutional status of senior judges,

it should do so out loud and in a manner which can be addressed by way

of a judicial inquiry from those who disagree with such a departure from

tradition.

For it is Stafne’s position that this Court cannot avoid considering

the authority and history he cited below and relies upon here because the

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judicial inquiry that he is asserting contends that this precedent and

history are controlling with regard to the Article III issues being

addressed. Further, just to be clear: Stafne asserts the “good Behaviour”

language, coupled with its history and the precedent cited above

interpreting both that language and history trump the authorities DWT

and Senior Judge Coughenour rely upon to obtain a contrary result

because the actual holdings, i.e. ratio decidendi, of the cases DWT and

the senior judge rely upon do not demonstrate that these cases involve

the same judicial inquiry as is being presented to this Court in this

appeal.

B. The facts applicable to the Stafne’s judicial inquiries

1. Historical Facts

This Nation’s founders sought to create a judicial branch of

government that reflected the progress of civilized societies regarding the

process of adjudication up to the point in time that our Constitution was

negotiated and ratified. See e.g. 5-ER-943-947. See also 2-ER-29-30, 2-

ER-245-247. Among the accomplishments of those civilized societies that

our founders intended to provide for the inhabitants of this Nation

through the Constitution, was the creation of a judicial system tied to the

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then most recent notions about how justice for the People could be

obtained from government. Id. The ancient Roman maxim nemo iudex in

sua causa — which means “no man should be judge in his own case” —

was thus a principle of justice made applicable to this nation’s federal

courts by our Constitution. See, e.g., Rippo v. Baker, 137 S. Ct. 905 (2017);

Williams v. Pennsylvania, 136 S. Ct. 1899 (2016); Caperton v. A.T. Massey

Coal Co., 556 U.S. 868, 876 (2009); Bracy v. Gramley, 520 U.S. 899 (1997);

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986); Ward v.

Monroeville, 409 U.S. 57 (1972); In re Murchison, 349 U.S. 133, 136

(1955); Tumey v. Ohio, 273 U.S. 510 (1927); Fletcher v. Peck, 10 U.S. (6

Cranch) 87, 133 (1810).

2. Facts about Senior Judge Coughenour

John C. Coughenour was appointed a federal district court judge by

President Reagan in 1981. He was confirmed by the Senate that same

year. Judge Coughenour accepted senior status in 2006.

Senior Judge Coughenour was a named defendant in Stafne v. Zilly,

337 F. Supp. 1079 (WD Wa 2018). Stafne sought declaratory and other

relief against Senior Judge Coughenour from having to appear as a

litigant before him in this case because of his status as a federal judge

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without good Behaviour tenure. Relief was denied by the District Court

based on the premise that Stafne did not have standing to challenge

Senior Judge Coughenour from acting as a senior judge by way of a

separate collateral action. That decision was affirmed by this Court in an

unpublished decision which did not discuss the facts or law implicated by

the judicial inquiries being raised in this appeal. See Stafne v. Zilly, 820

F. App'x 594 (9th Cir. 2020). The United States Supreme Court denied

certiorari.

Stafne demonstrated to Senior Judge Coughenour in the case below

and now demonstrates to this Court on appeal that Title 28 of the United

States Code governs the Federal Article III judicial department. Part I of

Title 28 sets forth statutory law relating to the organization of the

judiciary’s federal courts. Chapter 13 of Title 28 establishes statutes

governing the assignment of judges to Article III courts.

Stafne demonstrated that 28 U.S.C. § 294(a) states any retired

Justice of the United States Supreme Court “may be designated” by the

Chief Justice to perform such duties as he is willing to undertake. 28

U.S.C. § 294(b) states: “[a]ny judge of the United States who has retired

from regular active service under section 371(b) or 372(a) of this title

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shall be known and designated as a senior judge and may continue to

perform such judicial duties as he is willing and able to undertake, when

designated and assigned as provided in subsections (c) and (d).” 28 U.S.C.

§ 294(c) states: “Any retired circuit or district judge may be designated

and assigned by the chief judge or judicial council of his circuit to perform

such judicial duties within the circuit as he is willing and able to

undertake. . . .” 28 U.S.C. § 294(d) states that retired senior judges on a

roster of such judges maintained by the Chief Justice “may be designated

and assigned by the Chief Justice to perform” judicial duties “in a court

outside his own circuit, in the case of a retired circuit or district judge, or

in a court other than his own”. And 28 U.S.C. § 294(e) makes clear the

above provisions mean that “[n]o retired justice or judge shall perform

judicial duties except when designated and assigned.”

Senior Judge Coughenour inappropriately argues from the bench in

a judicial decision which affects his own status as a senior judge that the

language of these statutory provisions does mean what the law in

question so clearly states, which is that senior judges no longer have life

tenure, but must be periodically designated and assigned by other judges

in order to exercise Article III judicial Power. Quibbling over grammar to

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support his assertion of judicial Power over litigants who do not want to

be subjected to him as a judge, Senior Judge Coughenour opines:

… Section 294(b) provides that a senior judge may continue to

perform such judicial duties “as he is willing and able to
undertake, when designated and assigned.” The “willing and
able” qualifier imposes an objective constraint on any
designation and assignment decisions, and nothing in the
statute authorizes a chief judge making such decisions to
indefinitely block a senior judge from judicial duties. Nor does
the statute prohibit that, but the lack of express authorization
makes the threat of constructive removal so hypothetical as to
not raise serious Article III concerns.2 Properly construed, the
assignment and designation provisions of § 294 describe a
largely ministerial act rather than an exercise of broad
discretion or a grant of authority to a judge that relinquished
it upon electing senior status. See Two Guys from Harrison-
Allentown, Inc. v. McGinley, 266 F.2d 427, 432 n.1 (3d Cir.
1959).
1-ER-5. (Emphasis Supplied)

It is Stafne’s position that Judge Coughenour’s application of the

judicial independence language of Article III to the language of the Title

28 statutes applicable to judges accepting senior status is so obviously

self-serving to his own interests as a senior judge that it should not be

affirmed on those grounds of judicial neutrality which actuate this

2 Stafne describes historical facts in his opening brief which demonstrate

that Senior Judge Coughenour’s observations in this regard are likely
self-serving and do not reflect the intent of the political branches. See OB,
pp. 17-18.

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appeal. Furthermore, it is Stafne’s position that in ruling on this judicial

neutrality issue as it is posed in this appeal, this Court must apply (and

set forth in its appellate decision language demonstrating that it did so)

the pertinent legal standard, which Stafne asserts is referenced above.

3. Postscript regarding Stafne’s judicial independence arguments

Notwithstanding that it can be argued that Stafne’s judicial

independence arguments, i.e. those related to Senior Judge Coughenour’s

lack of “good Behaviour” tenure, are not dispositive of the judicial

neutrality issue raised by Stafne in this appeal, i.e. whether Senior Judge

Coughenour is biased or appears biased to an unconstitutional degree for

purposes of deciding whether he can be disqualified as an Article III judge

in this and other cases because of his senior status, Stafne does not shy

away from discussing the merits of the substantive judicial independence

issue. This is because, among other things, Senior Judge Coughenour’s

self-serving resolution of the judicial independence issue by construing

the statute in a manner which promotes his own personal best interest

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as a senior judge reveals his bias (or appearance of bias to an

unconstitutional degree) as regards that ruling.3

Stafne, a third-generation lawyer who has been admitted to

practice law in various courts since 1974, will not be cowered by the

senior judge’s threat of sanctions if Stafne challenges the

constitutionality of judges without life tenure being foisted upon him or

his clients again. See 1-ER-2-3 citing Fed. R. Civ. Pro 11(b)(2). Stafne is

not afraid of this threat because no court has ever considered the

constitutional issue he has raised by applying the language and history

of Article III to the factual situation Stafne has demonstrated. And both

3
Two Guys from Harrison-Allentown, Inc. v. McGinley, 266 F.2d 427,
432 n.1 (3d Cir. 1959), does not support the senior judge’s arguments
because that appeal did not involve the judicial inquiry raised here, i.e.
whether senior judges’ agreement to abdicate their life tenure deprives
them of that status necessary to act as an Article III judge. Stafne also
argued below and asserts here that giving other judges periodic control
over senior judges’ ability to exercise the federal judicial Power through
courts as an institution of government is inimical to those principles of
judicial independence and neutrality established by our Constitution. As
to his arguments below, see 2-ER-27 at Note 1, citing Chandler v. Judicial
Council of Tenth Circuit, 398 U.S. 74, 84–89 (plurality opinion), 136–40,
Douglas, J. Dissenting; 140–41, Black, J. Dissenting (1970). Stafne also
asserts here the creation of Article III judges not having life tenure is not
a policy choice the federal government could make for litigants like
Stafne and the various States of this federal Republic without amending
the language of Article III. See U.S. Const. Article V.
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the judge and his DWT adversaries acknowledge this because the

statutes in question clearly state that those judges accepting senior

status no longer have life tenure, no matter how a biased senior judge

may construe those statutes as a matter of first impression.

Senior Judge Coughenour openly admits in his decision that the

other federal courts which have considered Stafne’s judicial inquiry did

not devote the “wordcount” necessary for Stafne and the People to be able

properly evaluate their opinions dismissing Stafne’s constitutional

challenges. See e.g. 1-ER-2 (“Several courts have considered his theory

on the merits, even if they felt that dismantling it point by point was not

worth the wordcount. This Court … will devote the wordcount….”

But then after promising to devote the necessary “wordcount” to

dismantle Stafne’s Article III claims, the senior judge fails to even

consider the language of this constitutional provision in favor of asserting

that a law review article Stafne cites in his briefing is “[l]ike a movie

where the protagonist enters an obviously haunted house, …” 1-ER-4.

With all due respect, the Senior Judge’s decision does not even appear to

attempt to resolve the judicial inquiry Stafne has asserted. Rather, the

senior judge’s decision appears to avoid those issues in order for him to

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conclude that he should be allowed to impose himself on litigants no

matter what the Constitution ordains.

Among the complaints our founders believed justified rebellion

against the King of England, were these:

He [the King] has obstructed the Administration of Justice,

by refusing his Assent to Laws for establishing Judiciary
powers.
He [the King] has made Judges dependent on his Will alone,
for the tenure of their offices, and the amount and payment of
their salaries.
He [the King] has erected a multitude of New Offices, and sent
hither swarms of Officers to harass our people, and eat out
their substance.
Grievances 8, 9 &10, Declaration of Independence (US 1776).

Stafne asserts those same grievances are properly asserted now by

him and other concerned citizens against those senior judges who have

agreed to renounce their life tenure and thereby abdicated that indicia of

independence required by the language of the Constitution. Our founders

did not intend that the new government being created, any more than

their former and disfavored King, could create swarms of new

officeholders who had no life tenure as judges to assert that Article III

judicial Power, which had so carefully been created. Indeed, that is why

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our founders wrote and the people ratified the good Behaviour language

into the Constitution as part of this Nation’s organic law.

The American People have traditionally been willing to afford

judges and courts wide discretion in ruling on cases and controversies

based on judges' compliance with the historical expectations that judges

will be neutral and independent adjudicators of judicial inquiries. But

query whether the People’s past willingness to afford this Nation’s courts

the benefit of the doubt is justified when those present-day judges

occupying our courts as a government institution forsake their

obligations to issue judgments explicating the reasons for their decisions?

See Hamilton, Alexander, Federalist 78 (1788).

Is history only a good basis to restrict the constitutional rights of

People, like women and minorities, and not to curb the oppression of

judges who are inclined to take homes from people in order to give them

to the wealthy? Many of us think not. And we call on judges to put the

interests of this country above their own personal desires.

V. CONCLUSION

This Court should grant Stafne’s appeal and remand this case back

to an Article III judge having life tenure to resolve the merits.

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Respectfully submitted,

s/ Scott E. Stafne .
Scott E. Stafne, WSBA No. 6964
Stafne Law Advocacy & Consulting
239 North Olympic Avenue
Arlington, WA 98223
Telephone: 360.403.8700
Scott@stafnelaw.com

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Form 8. Certificate of Compliance for Briefs

Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf

9th Cir. Case Number(s) 22-35547

I am the attorney or self-represented party.

This brief contains 4,635 words, excluding the items exempted by FRAP

32(f). The brief’s type size and typeface comply with FRAP 32(a)(5) and (6).

I certify that this brief (select only one):

[ X ] complies with the word limit of Cir. R. 32-1.

[ ] is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1.
[ ] is an amicus brief and complies with the word limit of FRAP 29(a)(5), Cir. R.
29-2(c)(2), or Cir. R. 29-2(c)(3).
[ ] is for a death penalty case and complies with the word limit of Cir. R. 32-4.

[ ] complies with the longer length limit permitted by Cir. R. 32-2(b) because (select
only one):
[ ] it is a joint brief submitted by separately represented parties.
[ ] a party or parties are filing a single brief in response to multiple briefs.
[ ] a party or parties are filing a single brief in response to a longer joint brief.
[ ] complies with the length limit designated by court order dated _____________.
[ ] is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).

Signature s/ Scott E. Stafne Date 01/02/2023

(use “s/[typed name]” to sign electronically-filed documents)

Feedback or questions about this form? Email us at forms@ca9.uscourts.gov

Form 8 Rev. 12/01/22