Keith Henson (hkhenson@netcom.com) wrote: [snip] : PS, I would have called it a motion to recuse, but hey, who am I to : argue with *Benders Federal Forms*? They call it a motion to dismiss. [snap] To keep you up on the saga, I got the expected reply to my motion to recuse Judge Whyte. So, I responded at length. Here it is for your enjoyment. If the scanner works smoothly, I might be able to post what I was responding to. Otherwise, I am off to bed, let you know how things go tomarrow. Keith Henson [snipped boilerplate] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RELIGIOUS TECHNOLOGY CENTER, a ) Case No. C-96-20271RMW California non-profit corporation, ) Plaintiff, ) ) REPLY TO PLAINTIFF'S ) OPPOSITION TO MOTION TO ) RECUSE (WAS "DISMISS") v. ) ) H. KEITH HENSON, an individual, ) Defendant. ) ) ____________________________________ Defendant apologies for the inaccurately titled "Motion to Dismiss," and attaches a copy of page 222 in *Benders Federal Forms* on which may be found what defendant suspected was a typographical error. Defendant agrees in part with Plaintiff's council. Per the claim by plaintiffs that "the court itself apparently did not speak with Henson," defendant concurs. However, the court's clerk did indicate before witnesses that Judge Whyte had read defendant's letter of March 26, and accepted the letter from Arnie Lerma which was promised in the next to last paragraph of the "Open Letter" as if it were expected. The clerk took the Lerma letter to Judge Whyte, and returned after five to ten minutes. Defendant understands the reluctance of the Court to provide guidance to those who seek it, since Courts would be overwhelmed with such requests. This is, however, an unusual case, as the Court must know by now, and in that letter, defendant raised serious constitutional issues. Defendant, and thousands of others on the Internet, would have been very interested in either a "Yes copyright or trade secret law can be used" or "No such laws cannot be used," answer to the question implied at the end of the second paragraph after defendant's fair use quoting of NOTs 34: "Forbidding discussion of this particular document, including quoting it entirely, is clearly against the public interest, as well a violation of my First Amendment rights. Unless, of course, copyright law can be used to prevent disclosure of instructions for criminal activity." Defendant will again seek the guidance of the court in open hearing because Defendant and many others are confused and in need an answer to the above question. However, the clerk of the court answered to defendant's satisfaction by declaring that defendant (at that time) was emphatically *not* a defendant, and therefore not covered by the TRO issued against Grady Ward. Defendant therefore made the assumption that defendant could post NOTs 34 which amounts to criminal instructions, *and* is a clear violation of Judge Gesell's order from 1971 (333 F. Supp 357), and seek similar material, if any exists, as an exercise of defendant's rights under the First Amendment. It was, therefore, a considerable surprise for defendant to be served by plaintiffs for activities which were sincerely believe by defendant to be protected under the provisions of the First Amendment. What defendant is alleged to have done is entirely contained within the pages of the pleadings, attached to the declaration of Warren McShane as Exhibits 1 and 3. In addition, exhibit 1 was hand delivered to the court four days before being posted, and exhibit 2 was copied to the court on the day it was posted. Plaintiff's pleadings are *quite* at odds with what is contained in exhibits supplied by Plaintiffs. For example, Warren McShane's declaration, page 2 lines 11 and 12 quote defendant as "publicly seeking more NOTs material, *stolen or not*" while leaving off the rest of the sentence "which describe criminal activities." Compare line 24 of page 2 and line 1 of page 3, with the edited deposition "to show that plaintiffs is 'criminal' . . 'overrides commercial copyright considerations'" with what defendant wrote: "It is my intent to POST and discuss any part of NOTs which amount to manuals for criminal activities. Such discussions are in the public interest, which overrides commercial copyright considerations." The other substantive accusations are of the same caliber. Defendant has been posting on the internet for some years and knows that selectively cut, out-of-context quoting of others writing such as has been done in pleadings would cause the perpetrator to be "flamed." (Defendant wonders if plaintiff's strategy of burying defendants words in a two inch stack of paper was designed to discourage the court from comparing defendants Internet postings with plaintiff's accusations?) Plaintiff claims that defendant has solicited the remaining 49 (or 47) NOTs. Plaintiff may be correct, since plaintiff knows the contents of this material and defendant does not, but it should be noted that defendant is not even slightly interested in receiving, posting, or commenting on NOTs or other "AT" materials which are non-criminal in nature. It should not take a Supreme Court appeal to decide that First Amendment exercise of free speech, and free press, explicitly for the exposure of criminal activities such as those described in NOTs 34, takes precedence over copyright and trade secret laws. In spite of Plaintiff's effort to make this a copyright/trade secret case, it is *not* one. With respect to defendants claim this Court "has not been effective in enforcing court orders to return materials to Dennis Erlich," defendant suggest the court ask Mr. Erlich or his attorneys what has yet to be returned to him. Mr. Erlich thinks he is entitled to the return of notes taken during the seizure, video tape of the seizure, a tape of a KFI debate, his January 1995 bank statement, an original disk and hard copy of "Class A Assist," and about half dozen other items. Mr. Erlich did not ask for the return of hair taken from his hairbrush. It is worth noting that plaintiff's council makes no comment about the problems Judges have in bringing Church of Scientology plaintiffs into compliance with their orders. If the Court needs an additional reason to recuse under the provisions of Title 28, USC Section 455(b), the Court could consider the potential consequences of Title 42 Sections 1983, 1985, and related civil rights laws. This is a difficult area of the law, certainly beyond defendant's competence, but judicial immunity under such statues may not be absolute when it involves deprivation of a constitutionally protected interest. Finally, a "Church" which is reputed to spend over $10,000,000 a year in court fights has a lot of gall claiming that *defendant* is imposing on judicial resources. The motion to recuse should be approved. DATED: April 12, 1996 H. Keith Henson 799 Coffey Ct. San Jose, CA 95123