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6:14-cv-00187-RAW Document 833 Filed in ED/OK on 09/30/16 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF OKLAHOMA
1. NATIONAL ASSOCIATION OF
FORENSIC COUNSELORS, INC., a Nevada
Non-Profit Corporation, and
2. AMERICAN ACADEMY OF CERTIFIED
FORENSIC COUNSELORS, INC. d/b/a
AMERICAN COLLEGE OF CERTIFIED
FORENSIC COUNSELORS, a Nevada
For-Profit Corporation,
Plaintiffs,
v.
1. NARCONON INTERNATIONAL,
a California Non-Profit Corporation et. al.
Defendants.

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) Case No. 14-CV-00187-RAW
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PLAINTIFFS REPLY IN SUPPORT OF MOTION


TO DISQUALIFY MAGISTRATE JUDGE SHREDER
Stripped of its pejoratives, false accusations and hyperbole, Defendants
Response does not, because it cannot, dispute the key facts that require Judge
Shreders disqualification: (i) Judge Shreders wife is a legal assistant for the
relatively small firm that represents multiple defendants in this case; (ii) the
law firm publically held out Judge Shreders wife as a legal assistant for
defense counsel of record; and (iii) Judge Shreder failed to disclose his wifes
relationship with defense counsel. Defendants try to obscure the controlling
legal standard the objectively reasonable appearance of bias -- by
wrongheaded insistence that Plaintiffs must prove an actual improper act by

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Judge Shreder. Defendants evade the controlling standard because, when


objectively applied, the controlling standard compels disqualification.
The Great Irony of Defendants Response
As Defendants overheated rhetoric demonstrates, Defendants have lost
the capacity for objective thought. Defendants assertion that no reasonable
person would question the appearance of Judge Shreders bias because he
failed to disclose that his wife draws a pay check from opposing counsels firm
borders on clinical delusion. Any objective person -- i.e. persons not connected
with this case -- would have doubts about the appearance of bias of any judge
who failed to disclose that his wife holds herself out as the legal assistant for
opposing counsel. A simple polling of lawyers and lay persons unconnected to
this case will readily confirm that fact.
In a stroke of perfectly insidious irony, Defendants suggest that
Plaintiffs must have been aware that Judge Shreders wife worked for Steidley
& Neal because, years ago, the spouse of one of Plaintiffs lawyers (Laurel
Carbone) worked for the firm when she was a law student.1 Doc. 795, p. 5.
According to Defendants theory of imputed spousal knowledge, by virtue of
Ms. Carbones spousal relationship with an associate lawyer in the firm, she is

Ms. Carbone was formerly married to Clark Crapster who is an attorney for
Steidley & Neal. The couple separated in February 2013 and were divorced in
April 2014. Ms. Carbone received her law license in November 2014.
1

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presumed to know not only the first and last names of every person in her
spouses law firm, including support staff, but also the occupation of the spouse
of every firm employee.

Apparently, however, the presumed flow of

information between spouses in Defendants law firm doesnt apply when ones
spouse is a federal judge.
Defendants own argument, ironic as it is, proves that an objectively
reasonable appearance of bias arises when a judge fails to disclose his wife
works for opposing counsel of record.
Ms. Carbone was not aware, until researching Judge Shreders
background in connection with preparing the present motion, that Sandy
Shreder was married to Judge Shreder. Defendants suggestion that Plaintiffs
held onto this knowledge as a trump card is ludicrous. If Plaintiffs had, at
the outset, known of Judge Shreders spousal relationship with defense
counsel, Plaintiffs wouldnt have sat back and waited to see how things
progressed, thinking they were backstopped by an always-disfavored
disqualification motion. Counsel (Paul DeMuro) raised the issue with Buddy
Neal immediately upon learning of Judge Shreders spousal relationship with
defense counsel.
The Correct Standard is Appearance of Bias, Not Actual Bias.
Defendants acknowledge the governing legal standard under 28 U.S.C.
455(a) (Doc. 795 p. 9), but then proceed to ignore it. Defendants repeatedly
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complain that Plaintiffs fail to establish any actual bias by Judge Shreder. See
Doc. 795, pp. 5, 10, 13-15. Actual partiality is not required for mandatory
disqualification under 28 U.S.C. 455(a). All that is required under the broad
prohibition of 455(a) is a showing that a reasonable person, knowing all the
relevant facts, would harbor doubts about the judges impartiality. United
States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). As the United States Supreme
Court recently recognized:
[o]objective standards may also require recusal whether or not
actual bias exists or can be proved. Due process may
sometimes bar trial by judges who have no actual bias and who
would do their very best to weigh the scales of justice equally
between contending parties. The failure to consider objective
standards requiring recusal is not consistent with the imperatives
of due process. . .
Caperton v. AT Massey Coal Co., 556 U.S. 868, 883-84 (2009) (emphasis added).
Plaintiffs seek Judge Shreders disqualification not because of any actual
display of impartiality, but because his wifes employment by defense counsel
creates an objectively reasonable question of the appearance of bias.
Judge Shreders Failure to Disclose is Material.
Because the relationship of Judge Shreders wife to defense counsel
creates an objectively reasonable question of his ability to be impartial, Judge
Shreder was required either to disclose the relationship or voluntarily recuse.
See 28 U.S.C. 455(e); Canon 3D (permitting judges participation in
proceeding only after disclosure to the parties).
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Although the disqualifying nature of a judges spousal relationship with


opposing counsel is clear,2 its impossible to rationally refute the proposition
that, at the very least, its a close question. With fundamental due process
rights at stake, close questions must, at a minimum, be disclosed so litigants
can make informed choices. See, e.g., Nichols v. Alley, 71 F.3d 347, 352 (10th
Cir. 1995) (If the question of whether 455(a) requires disqualification is a
close one, the balance tips in favor of recusal.).
Judge Shreders failure to disclose his wifes relationship with defense
counsel itself creates an objectively reasonable question regarding the
appearance of partiality.
Defendants Representation That Judge Shreders Wife
Hasnt Worked on This Case is Insufficient
to Thwart Disqualification.
Postings from defense counsels website immediately preceding the
Motion establish that Mrs. Shreder and Michelle Harris (defense counsel of
record) publically held out Mrs. Shreder as Ms. Harris legal assistant. Doc.
783-2. On at least one occasion, Mrs. Shreder received electronic notices from

See, e.g., Smith v. Beckman, 683 P.2d 1214, 1216 (Colo. Ct. App. 1984) (In
addition to living together, a husband and wife are also perceived to share
confidences regarding their personal lives and employment situations . . . the
public views married people . . .as participants in a relationship more intimate
than any other kind of relationship between individuals.
2

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the Court in this case on behalf of Michelle Harris. Defendants response to


this evidence is, essentially: Trust us, she never worked on the case.
Notwithstanding that Defendants representation is inconsistent with
their law firms public communications, Defendants again ignore the
controlling standard. The inquiry isnt whether Defendants can plausibly
explain away their public representations of Mrs. Shreders close relationship
with this case. The analysis is whether, viewed objectively, a reasonable
litigant who sees that opposing counsels law firm holds out the judges wife as
the legal assistant for opposing counsel of record would reasonably question
the judges ability to be impartial. The question answers itself: of course that
creates a reasonable concern. Judge Shreder, therefore, should be disqualified.
Conclusion
For these reasons, and those discussed in Plaintiffs Motion, the
Plaintiffs are entitled to the immediate disqualification of Magistrate Judge
Shreder. Plaintiffs request the Court conduct an evidentiary hearing to fully
examine the relevant circumstances if there be any doubt.

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RESPECTFULLY SUBMITTED,

/s/ Paul DeMuro


Paul DeMuro, OBA No. 17605
FREDERIC DORWART, LAWYERS
124 East 4th Street
Tulsa, OK 74103
(918) 583-9922 Telephone
(918) 583-8251 Facsimile
pdemuro@fdlaw.com
David R. Keesling, OBA No. 17881
Laurel A. Carbone OBA No. 32176
KEESLING LAW GROUP, PLLC
11114 S. Yale Avenue, Suite B
(918) 924-5101 Telephone
(918) 512-4888 - Facsimile
David@KLGattorneys.com
Laurel@KLGattorneys.com
Counsel for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on the 30th day of September, 2016, I electronically
transmitted the foregoing document to the Clerk of the Court using the ECF
system for filing and transmittal of Notice of Electronic Filing to the following
ECF registrant(s):

/s/ Paul DeMuro


Paul DeMuro