PRACTICE TIP: Referring to Judges on Your Panel as “Ass Clowns” Does Not Maximize Chance of Success

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I believe I've pointed out before that insulting a judge hearing your case is usually not good strategy, but maybe it is time for a refresher.

This case has a long and tortured history, but it looks like it began as a bankruptcy case in which the debtor wanted to discharge (among other things) student loans. The main issue on appeal was whether he had shown "undue hardship," which in turn requires a showing of "good faith efforts" to pay back the loans and "insurmountable barriers" to doing so. According to the debtor, his efforts were not just good-faith, but "heroic." According to the bankruptcy court, though, not so much: "For most of this decade," the court wrote, instead of working "[Debtor] continued his education in law school and then spent several years pursuing lawsuits in an attempt to eliminate the student loan debt, not pay it." Debtor appealed and lost.

Which brings us – although I loathe this term - to the "teachable moment."

The debtor filed a motion asking the panel or the full Ninth Circuit to rehear his appeal. Well, not so much asking: "the Court will address these issues," he wrote, "or there will be civil unrest." (Emphasis added.) It wasn't clear whether the debtor expected anyone else to join him in this "civil unrest," and it should go without saying that even appearing to threaten a federal judge is an extremely bad idea.

But this practice tip is focused on not insulting them, and the petition for rehearing is full of examples of terms not to use in reference to any judicial officer. "Ass clown" is one of the few I am actually willing to reprint.  "Plaintiff has news for these slime ball, piece of ____, ass clown judges," the debtor wrote, "that think they are going to rig the system and railroad the poor and innocent . . . that simply is not going to happen in this case.  You ___ ______ are now on notice."

And so on. Interestingly, this is not an example of a pleading that is just lots of obscenities. It also makes legal arguments, as though the debtor put together and followed an outline that he just made sure to flesh out with lots of obscenities. This might be because, as noted, the debtor has actually been to law school (and apparently spent quite some time there). In fact, as one of the appellees' briefs noted, he has been to lots of schools:

In addition to a B.A. in Education, [Debtor] possesses a substitute teaching credential, a real estate sales associate license, [a] law enforcement academy certificate, an associate of arts degree, and a J.D. . . . [He] provided no evidence concerning why he could not work in the legal field, but rather testified that "I didn't really go to law school to actually be a lawyer."

The debtor argued that his inability to actually work at any of these jobs was largely the fault of various third parties, including the California Bar Association, which (as he noted in his reply brief) has refused to admit him more than once for both test and background-check-related reasons.

Unsurprisingly, the panel denied the debtor's petition for rehearing, in a one-page order that makes no mention at all of the petition's unusual nature. The panel noted its agreement that the debtor had failed to establish "undue hardship," then just started a new paragraph and added, "[Debtor's] remaining contentions are unpersuasive."

Also unsurprisingly, the debtor was not willing to stop there, having somehow escaped being sanctioned. He filed a petition for certiorari with the U.S. Supreme Court, and (though I'm not 100% sure it's the same case) the Court denied his petition on October 4. I haven't tried to get a copy of that petition to see whether he called any of the Justices "ass clowns." Seems like there is enough evidence already to show this is a bad idea.