IN THE UNITED STATES DISTRICT COURT

NEW HAMPSHIRE
CHRISTOPHER KING, J.D. )
a/k/a KINGCAST.NET, ) CASE NO. 2010-CV-501
Plaintiff-Petitioner,
v. ) JUDGE PAUL BARBADORO

FRIENDS OF KELLY AYOTTE, et al., ) MAGISTRATE LANDYA McCAFFERTY

Defendants.

PLAINTIFF’S MEMORANDUM IN SUPPORT OF RECUSAL AND NULLIFICATION

OF MAGISTRATE JUDGE MCCAFFERTY’S REPORT AND RECOMMENDATIONS
PER 28 U.S.C. §455.

I. Magistrate McCafferty took Stephen Monier’s word as gospel truth even

though he was a paid operative of Defendant Ayotte, who now has a senior
cabinet position and even though he lied about Ralph Holder being a fugitive
from Justice and lied about Plaintiff being on private property and lied about
Plaintiff being threatening at the Ayotte/McCain VFW rally.

These issues have been noted throughout Plaintiff’s Complaint and are reflected
at the Ralph Holder Cease and Desist Letter seen at Appendix A. This is important
because it is a systemic beat down of strident black males who question the policies of
Defendant Ayotte and New Hampshire Law Enforcement. In an atmosphere clean and
clear of unlawful influence no Jurist would make such findings. Discovery will likely
reveal that not only was Monier working for Defendant Ayotte at the Facebook and
John McCain rallies, he was likely a paid operative and he certainly is a highly-paid
cabinet member today so his credibility is vitiated. No unbiased Jurist would see the
obvious lies discussed below and find in favor of Mr. Monier’s testimony.1

II. Totality of the Circumstances – Defendants misrepresent Plaintiff’s concern.

1. It is the totality of the circumstances, rather than merely Magistrate Judge
McCafferty’s employment under lead counsel Jack Middleton that leads Plaintiff to
now seek her recusal and voiding of her 2 November, 2010 Report and
Recommendations.

                                                        
1 Inpoint of fact about the only factual determination made in Plaintiff’s favor was the obvious
finding that “Plaintiff is an African-American Journalist” in line with NENPA requesting his
presence as a guest speaker in 2011. Sadly, as we see in Defendants’ Motions to Dismiss they
even try to take that away “Plaintiff calls himself a journalist,” etc. etc…. to attempt to justify
the disparate treatment afforded to Plaintiff from the other white journalists who RSVP’d
exactly as did Plaintiff and who were allowed to attend rallies, under a 42 U.S.C. §1981
analysis. They think they are slick; the United States Supreme Court will see right through it. 

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This will be explained in detail throughout this Reply Memorandum but it is
summarized in this organizational reference chart, Exhibit 1:

Defendant(s) -- perhaps intentionally -- misled him to believe that Mary Tenn, not
McLane, Graf – would be handling this case for Friends of Kelly Ayotte, as noted in the
open letter email to Nashua PD Counsel Brian Cullen warning Attorney Tenn about
“winning and losing,” which was part of the email chain in which Plaintiff went the
extra mile to help Defendants in their purported quandary over assent to Removal, in
which he provided relevant case law of Jordan v. Murphy, ND Ohio WD CV-7212 (2000)
to Attorney Cullen in an email communication. Exhibit 2.

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Be that as it may the totality of contacts is indeed, striking and substantial and it is
ALL extrajudicial. Ex parte City of Dothan Pers. Bd., 831 So. 2d 1 (2002). Given the
following six (6) issues alone, recusal is mandated in the First Circuit:
United States v. Mavroules, 798 F. Supp. 61 (1992).(Old association 20+ years ago)

OVERVIEW: The court granted the government's motion for recusal despite the
fact that the judge's contacts with both sides of the case raised no issues of bias
or prejudice; the court wished to avoid even a shadow of a doubt as to the
fairness of the process. Much more on this in Section III C, infra.

1. The lawyers under whom Judge McCafferty once worked donated at least
$9,700.00 to Friends of Kelly Ayotte, with both counsel in this case providing 50%
of that total.2
2. Outgoing Magistrate Judge James Muirhead mentored Judge McCafferty from
the moment she came to the Bench. His Honor is also a former employee of McLane,

                                                        
2 That total is assembled through public records, but does not disclose the amounts given by
private individuals who may have worked for McLane, Graf on prior occasion. 

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Graf, lending further credibility to Plaintiff’s assertion that the appearance of
partiality is manifest and should have been disclosed.
Note that the a recent NH Bar Association publication “Landya McCafferty
Joins Federal Bench as Magistrate” is wholly inaccurate, and either negligently or
intentionally omits the fact that not all of Her Honor’s employment occurred in the
public sector, when it is incorrectly asserted that “[her] entire career has been in
government service.” As a professional journalist Plaintiff takes understandable
objection to this dereliction of duty; may the Court take Judicial Notice that McLane,
Graf is a well-heeled private law firm and not a government entity. Exhibit 3.

3. Jack Middleton introduces his former employee Muirhead at public events,

including one from this year, Exhibit 4.

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4. Jack Middleton and/or other McLane, Graf current or former staff foreseeably
provided some sort of support for Magistrate McCafferty’s ascension to the Federal
Bench, either tacitly via her application and written statement or via public comment
or letters of support and recommendation.
If that is true, that fact alone would mandate recusal in this case, and again at a
minimum would require disclosure. Plaintiff specifically asked Defendants about this
matter in an email chain in which certain counsel for Defendants omitted Jack
Middleton from the email distribution chain after Plaintiff had included him.
Defendants individually and collectively refused to answer that question. A salient
portion of that email reads as follows:
 

HN3 
Federal judges have an obligation to recuse themselves whenever their 
impartiality could reasonably be questioned, but they also have an obligation 
not to recuse themselves when circumstances do not require it.  More Like 
This Headnote 
Since 2000, I have maintained frequent contact with only a handful of Day, 
Berry lawyers. The firm represented my wife and me in a minor matter that 
concluded nearly three years ago. In short, I have no present relationship 
with Day, Berry or with the vast majority of its attorneys. 
That is not true in this case because I know Her Honor has frequent contact 
with many McLane, Graf Attorneys. And her Honor has been on the Bench for 
several months, not years. And while there was a break between her tenure 
with the firm, I am entitled to know the extent of her ongoing contacts with 
that firm and I am entitled to know whether Jack Middleton or anyone else at 
that firm supported her ascension to the Bench because that certainly would 
present a question on impartiality the[n], wouldn't it. 
Yes. It. Would. But wait, there's more. 
This is what SHOULD have happened, I should have been told. 

George N. Pegula Agency, Inc. v. Monumental Life I..., 1999 U.S. Dist. LEXIS 23196 
2 James Rogers, counsel for Monumental, has submitted an affidavit, which 
provides: 
I have a distinct recollection that, in a telephone conference with the Court, in which 
Lawrence Ludwig, Esq. was participating on behalf of the plaintiff, Judge Vanaskie 
noted the fact of his prior membership in the Dilworth firm. He alluded to the 
procedure that had been followed in the Catholic Golden Age case.  

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To the best of my recollection, the Court expressed the view that it was not 
necessary to follow that procedure again, and that Mr. Ludwig made an affirmative 
expression of assent to the Court's participation in this case. 

(Rogers Aff. (Dkt. Entry 276) P 4.) My recollection of the conference call is generally 
consistent with Attorney Rogers' affidavit. In particular, I recall advising Pegula's 
counsel of my prior relationship with the Dilworth firm, asking Pegula's 
counsel if there was any objection to my continued handling of the case, and 
Pegula's counsel indicating that he had no objection. Emphasis added. 
Did Jack or anyone else at McLane help Her Honor to the bench or not. 

Answer the question. Truthfully and fully to me right now, and I will consider 
withdrawing my Motion.(Green emphasis added). 
Christopher King, J.D.
 
III. Kelly Ayotte is a Party to this Action.
Defendant Ayotte obviously holds ultimate decisional authority over her
campaign arm, “Friends of Kelly Ayotte,” and as such, Plaintiff served her at her home
residence. See also Fn3 with respect to this matter, as all monies given by Defense
Counsel to “Friends of Kelly Ayotte was calculated to benefit Kelly Ayotte herself, in
her run for U.S. Senate.
IV. The appropriate U.S. Statue is 28 U.S.C. §455, not 28 U.S.C. §144.
In an incredible twist of logic, Defendants previously attempted to blame Plaintiff for
not raising this issue prior to the 2 November, 2010 TRO Hearing when he first learned
who his opposing counsel would be, and when he first saw any written case law that
purported to support Defendants’ position – which to that point had included the false
assertion that Plaintiff “was not a journalist.” As such, 28 U.S.C. §144 is inapplicable.

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V. Law and Argument.
A: Legal Standard
Disqualification of a judge is required when a reasonable person, knowing all the
facts, would question the judge's impartiality. In this case Defendants have ignored
the case law set forth in extrajudicial correspondence noting that judges who have
worked with Defense Counsel at any time need to mention it, but particularly when
said Defense Counsel is the Supervising Attorney who is also heavily vested with
Defendant and her associates.3
B: Manifestations of the bias.
Once again Defendants have truncated Plaintiff’s arguments in this regard as he
has raised several issues not included in Defendants’ rather perfunctory response. To
the extent that Defendants did not quite understand the gravity of the situation
Plaintiff will now elucidate for this Court and the next:

1. Magistrate Judge McCaffferty took every inference in favor of Stephen Monier,

who is biased as he worked for the campaign and now undoubtedly makes north of
$100K/yr. as Kelly Ayotte’s Veterans’ and First Responder Commissioner.
To wit: Report and Recommendation p.7 reads, in Pertinent Part:
At the Facebook rally, the McCain rally, and outside the diner in Portsmouth,
Monier thwarted King’s efforts to approach Kelly Ayotte. Monier testified that
he believed King’s jostling and pushing to get close to Ayotte were a threat to
Ayotte. The court finds, on this limited record, that Monier reasonably believed
King to be of some danger to Ayotte. His conduct, therefore, cannot be said to
be motivated by the content of King’s speech.

Nowhere in the Record does Her Honor address the fact that Monier had no lawful
reason to call the police on Plaintiff as the two of them stood on the public
sidewalk, even though a substantial amount of time was spent on this matter when
Plaintiff caught Monier making a misrepresentation on the matter at hearing, and as
noted in this picture, Exhibit 6.

                                                        
3 Obviously the $9,700.00 from McLane, Graf is going to directly benefit Kelly Ayotte, who may
well be a named Defendant after discovery, along with Senator John McCain, who has a
demonstrated history of expelling the sole black male reporter from rallies, despite his self-
proclaimed “Straight Talk Express” moniker. 

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Moreover, the notion that Plaintiff is allegedly some sort of threat was belied by two
different sets of people, with pictures, as noted in hard copy Exhibits presented by
Defendants themselves.
2. Plaintiff’s handling of the situation at which he was called a “bigot” was entirely
professional and is documented on the hard copy DVDs provided to the Court.
3. Plaintiff’s conversation with Bermuda Ambassador Greg Slayton, on the sidewalk
in the same spot where Monier threatened to call the police on Plaintiff, was quite
orderly and again, PROFESSIONAL. It resulted in both men appreciating the art of
tennis, and this fact was again, wholly ignored by Magistrate McCafferty for some
reason defying any and all unbiased logic.
4. Veteran Dave Rumney, out of Leonard, groaned in shock “Oh, really…no…” when
informed of the ban, and stated “as long as you’re not standing up to protests” (during
the speeches…) to which Plaintiff stated “Exactly.” See also Exhibit 7, below, this
page, people smiling and freely conversing with Plaintiff, no threats whatsoever.
5. Two Caucasian Females smiled and opened discussion with Plaintiff during the
time that Monier falsely claimed that Plaintiff constituted some sort of threat to
Defendant Ayotte, yet another lie he cooked up to attempt to portray Plaintiff as a
threatening black man. At some point this line of racist rhetoric must cease & desist.

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 Given those facts alone a reasonable, unbiased Court would not have made those
conclusions and omissions, but Magistrate McCafferty ignored each and every one of
them, yet there is more:
6. Magistrate McCafferty gave no credence to the fact that a logical person could
infer racial antipathy from Kelly Ayotte’s refusal to denounce the documented online
support from “Niggermania,” which wrote that Plaintiff’s case “smells like a nigger,”
and that Ayotte was proper to “throw his nigger ass out.” But many logical people
do in fact infer racial antipathy from such avoidance.
7. The “acrimonious past” reference was an oblique notation of the indisputable
fact that Plaintiff prevailed over Defendant Ayotte and her Law Enforcement co-
worker Martin J. Dunn in a series of cases that arose in a racial, First Amendment
context when Plaintiff was Southern New Hampshire NAACP Legal Chair. Plaintiff used
valid NAACP Law to win that case just as he will use valid NAACP First Amendment Law
to prevail in this case.
But by issuing such a cryptic reference, Her Honor effectively bleached the
record as to avoid reaching the inescapable conclusion that Ayotte’s actions in
threatening to arrest Plaintiff are grounded in racial and First Amendment antipathy.
Subsequent Courts need to be aware of this fact, and there will be subsequent Courts
as the Parties all feel strongly in their respective positions.4
8. Magistrate Judge McCafferty also omitted the fact that Senator John McCain,
who co-hosted the VFW event with Kelly Ayotte, has a history of expelling the sole
black male reporter at campaign events, i.e. one Stephen Price. Discovery is required.

                                                        
4 The Concord Monitor has noted that Ayotte does not like those she considers to be
“liberal” and she has publicly stated that U.S. Supreme Court Justice Elena Kagan is
“Unqualified” in part because she was upholding current policies at Harvard Law
School because of gays in the military issue, when Kelly Ayotte imprudently voted
against gay marriage recognition contrary to laws that had been duly promulgated by
the New Hampshire Legislature, and that’s a fact.  

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C: Analysis of case law.
Plaintiff noted in Exhibit 5 that there should have been notification, as noted above in
the 20 Dec. email chain, but this is how it works in the First Circuit and this is what
should have occurred in the Case at bar:
Immediately following Congressman Mavroules' arraignment on August 28, 1992, I
convened an open-court conference with counsel for the government and the
[*62] defendant. My purpose was to acquaint them with associations I have had
over the years with persons connected with both sides of the case. (See
transcript attached as Appendix A.) These included: 1) three contacts with the
defendant, whose congressional district includes my home town of Marblehead;
2) my friendship with defense counsel Francis Bellotti since 1964 when he ran for
Governor against former Governor Volpe, for whom I served as Chief Legal
Counsel; 3) my friendship with the chief prosecutor, Assistant United States
Attorney Jonathan Chiel, since he served as one of my law clerks [**3]
approximately ten years ago; and 4) my participation with two men named in the
indictment, Messieurs Brest and Gouchberg, who were among a group of
investors, along with me, in a New Hampshire hotel approximately twenty years
ago. I have seen them infrequently since then, but our relationship remains
cordial.

Judge Tauro ruled:

Mr. Pappalardo's request does not fit neatly into [**6] any of the traditional
theories [*63] requiring or warranting recusal. Indeed, no one of the
circumstances cited by me at the August 28 conference requires recusal. My
contacts with the defendant were minimal, but cordial. Judges often have
friendly relationships with lawyers who appear before them. Here, that
attitude extends to both defense counsel and the prosecutor. There is no bar to
former law clerks appearing before their judge with respect to a matter that
was not in chambers during the clerkship. The fact that a judge may know a
witness is not, in and of itself, grounds for recusal.

But, given the extraordinary coincidences that produced the unique totality of
circumstances involved here, I feel that Mr. Pappalardo's pragmatic analysis
makes sense and should be adopted by me. I am, therefore, instructing the Clerk
to have the case redrawn.

Defendants ignore these common sense principles and cite to Liteky v. United
States, 127 L. Ed. 2d 474, 114 S. Ct. 1147, 1157 (1994), which was cited in Higgins v.
Brown, 7 Vet. App. 389 (1995). It does them no favors:
Recently, the Supreme Court in Liteky v. United States, 127 L. Ed. 2d 474, 114
S. Ct. 1147, 1157 (1994), held that under section 455(a) the cause of apparent
partiality must almost always be from an "extrajudicial source". Such a source is "a
source outside the judicial proceedings at hand". Higgins, at 9.

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That is Plaintiff’s entire point, yet Defendants are now attempting yet another
sophistry in claiming that the Court’s ruling is the basis of the partiality. No.
The court’s ruling is the effect of the partiality, Defendants have it all twisted
up so Plaintiff will straighten it out for them with another passage from Higgins, again
citing Liteky:
D. Application of Law to Facts

1. Section 455(a); appearance of partiality: In applying the above principles

to the facts in Liteky, the Supreme Court held that none of the grounds asserted
by the petitioner required disqualification under section 455(a) because they
consisted of "judicial rulings, routine trial administration efforts, and ordinary
admonishments . . . to counsel and to witnesses", all of which had "occurred in
the course of judicial proceedings, and neither (1) relied upon knowledge
acquired outside such proceedings nor (2) displayed deep-seated and
unequivocal antagonism that would render fair judgment impossible." Liteky,
114 S. Ct. at 1158. (green emphasis added).

In this case the grounds that Plaintiff asserts have been brewing for the past 16
years, and culminating in the documented assistance from former McLane, Graf
Attorney Muirhead and likely assistance offered by McLane, Graf to Magistrate
McCafferty in her ascension to the bench.
Again, Liteky and its progeny stand for the reasonable proposition that a litigant
cannot cry sour grapes about a ruling, and then claim that the ruling proves the bias.
That sort of claim is properly subject to an appeal, but as Plaintiff is claiming that the
bias was manifest because of the Substantial extrajudicial Contacts between Judge
McCafferty and the McLane, Graf et al. -- that he did not know about and could not
know about because of Defendants’ misrepresentations prior to hearing --Liteky does
not apply.

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VI. Public Policy
New Hampshire is a State long-besieged with political favoritism and backdoor
Judicial Politics. District Court Judge John C. Fairbanks was pointedly corrupt, fled the
Jurisdiction and committed suicide as a Fugitive from Justice -- the same description
that Defendant witness Stephen Monier falsely ascribed to another diligent black male
Civil Rights activist. See generally Ralph Holder’s pending lawsuit at 2010-CV-482
(dismissed and subject to appeal). The Court ordered the Fairbanks file sealed as well,
In re Burling, 139 N.H. 266 (1994). After that debacle, High Court Justice David Brock
was impeached, Justice Stephen Thayer resigned under an agreement not to seek
criminal charges by the State’s then-AG, and Patricia Coffey resigned after shielding
her disbarred husband John’s financial resources after he exploited an elderly woman
with dementia, according a WMUR in this 21 April, 2008 feature:
As Seen On WMUR

Homepage > NEW HAMPSHIRE NEWS 

Embattled Judge Coffey Resigns

Judge Had Been Suspended For 3 Years
“…..The Supreme Court suspended Coffey after concluding she was complicit in a
fraudulent property transfer involving her husband and evasive and misleading to
investigators. Legislators had been considering a bill that would oust her for having
tarnished the integrity of the judiciary. 

"I want to acknowledge and thank Judge Coffey for her many of years of service to the
judicial branch and the people of New Hampshire," Chief Justice John Broderick said.
"Given recent events, I think she has made the correct decision to step down. " 
Coffey, a Superior Court judge in Rockingham County, has admitted helping shield her
lawyer-husband's assets as he was being disbarred three years ago. She said she realized
then the state probably would demand that he pay thousands of dollars to cover the cost
of investigating him. 
"My regret is that my actions, when I was under extreme emotional duress, may have
reflected poorly on the judicial system as a whole and on those people who strive daily to
make that system work, and to them, I apologize," Coffey wrote in her letter. 
Coffey's husband, John Coffey, was disbarred in 2005 for exploiting an elderly client with
dementia. Property John Coffey owned with his wife was transferred into a family trust
four days before he was notified he had been found guilty of misconduct and would face
discipline…….”

This sort of stain on credibility must not be allowed to permeate the Federal
Judiciary. See LA Times 2 May 2000 feature 'Old-Boy' System Causes Chaos on N.H.
High Court, Appendix B.

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 Observers say it was that same buddy-buddy tradition that caused the
courthouse chaos. In the small, collegial atmosphere of this Supreme Court,
justices have for years sat in on cases from which they were officially recused,
Brock and others reported. It also was not uncommon for drafts of opinions to
circulate among all justices--again, whether they had recused themselves or
not.

Four ex-wives of lower court judges say the practice of judicial interference
was so widespread that their settlements were compromised as well. The ex-
wives said recently that they would seek restitution on the grounds that their
civil rights had been violated.
**************

As [Theodore] Kamasinski pointed out in an interview, "Once you've got the

court in meltdown mode, no way it's going back to business as usual."

As president of the state bar, [George] Moore agreed that even the appearance
of impropriety can tarnish the court. "Any justice system, whether it's ours or
yours out there in California, can only operate when the public has confidence
in it." Still, he predicted that his state's court would recover.

Often it takes an outsider to effectuate any meaningful efforts at reform as noted by

the New Hampshire High Court resignation of Stephen Thayer (pictured):

…….which was occasioned only because

outsider Kamasinski pushed the envelope, and even helped to change laws to open the
courthouse, after Justice Thayer had his wife and young daughters thrown out in the
driving October rain. Even though his efforts were hated by many Judges and Jack
Middleton,5 he went on to successfully fight to eliminate the cost of unsealing court
files. See Douglas v. Douglas No. 99-487 March 29, 2001.

                                                        
5
“I’m really troubled by the fact that people like Mr Kamasinsky try to go into the
courts and represent people,” NHPR 7 Feb. 2003. The animosity between the two
carried on an involved a misstatement made by Attorney Middleton at some point.
Subsequent to that, Kelly Ayotte attempted to prosecute Plaintiff for Unauthorized
Practice of Law using ex post facto application of new rules, see Plaintiff’s First and
Second Amended Complaints.

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VII. Conclusion
Plaintiff is correct about the State of the Law on disclosure just as he was
relative to whether there was current support for the Pruneyard line of cases that
provides the legal underpinnings for NAACP v. Thompson, 648 F.Supp. 195 D.Md.,(1986) 
the lead case that is going to be analysed by the United States Supreme Court.
Further, Plaintiff has approached nearly a dozen licensed attorneys about this
matter and every single one of them sees this as a substantial issue, because it is.
Plaintiff is confident in his position and looks forward to an immediate hearing on the
Merits, owing to the unique set of circumstances before the Court.
Respectfully submitted,

/s/ Christopher King, J.D.

_____________________________
Christopher King, J.D.
http://KingCast.net -- Reel News for Real People

CERTIFICATE OF SERVICE

I the undersigned, solemnly swear that a true copy of this Memorandum was
Electronically delivered on 11 April 2011 to:

Jennifer Parent and Jack Middleton, Esq.

City Hall Plaza
900 Elm Street
Manchester, NH 03101

Gordon MacDonald, Esq.

Nixon Peabody LLP
900 Elm Street
Manchester, NH 03101

Brian Cullen, Esq.

10 East Pearl Street
Nashua, NH 03060

/s/Christopher King, J.D.

__________________________________
KingCast.net
By and through Christopher King, J.D.
617.543.8085m

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