Motions filed for Recusal of Charlottesville Rally Clerks

Rally litigant Elizabeth Sines (Center) with Hutton Marshall (Left) and Joshua Lefebvre (Right), the two clerks writing the opinions in her case.

Plaintiffs in a free speech case stemming from the 2017 Unite the Right rally have filed a Motion to Recuse two law clerks writing the opinions of Judge Norman K Moon citing unacceptable bias within his courtroom.

Incredibly, Judge Moon’s opinions in multiple cases stemming from the rally have been written by close personal friends of Elizabeth Sines, a woman suing rally organisers. Further evidence shows that Judge Moon’s clerks going back to 2018 are 1. Material fact witnesses in the cases 2. Friends of an opposing litigant and 3. Have made several prejudicial statements about rally organisers before being hired to decide matters in these cases.

Information about the two law clerks, Hutton Marshall and Joshua Lefebvre, was uncovered last month and was released in the Twitter thread below:

As it is well known within the legal community, clerks are widely known to write as many as 95% of rulings for federal judges.

The Motion to Recuse can be read here:

An additional Rule 59 Motion was filed last week, to have a recent dismissal ruling in the Kessler v Charlottesville case overturned for judicial error. In that ruling, Moon and his law clerks claimed that Charlottesville Police Chief Al Thomas had a right to order the police stand down and allow Heckler’s Veto violence.

This order led to rioting and the dispersal of the permitted rally before it was scheduled to take place. A Rule 59 Motion is a way of asking to have a judicial decision reversed based on judicial error and is one step that can be taken prior to an appeal.

Read the Rule 59 Motion here:

Judge Moon’s 2018 Law Clerk Dascher Pasco

Additionally I can confirm new, never before released evidence about Judge Moon’s law clerk from 2018, Dascher Pasco. Per National Justice, Pasco helped Moon decide several momentous decisions relating to Unite the Right during the 2018 term, including the Constitutionality of the Federal Rioting Act (See Rise Above Movement) and an order rejecting Motions to Dismiss lawsuits filed by Elizabeth Sines and Roberta Kaplan against rally organisers.

On the day of Unite the Right, Pasco took to Facebook to state that “chanting” and “horrible phrases” of Charlottesville marchers “disgusts me”. She implored her followers to “stand up against this hatred.”

Archive link: http://archive.is/aJsi4

As offensive as the phrase “Jews will not replace us” may be (chanted by trolls rather than rally organisers), it must be respected as Constitutionally protected speech. Dascher Pasco was in no position to decide for Judge Moon if words like these are Constitutionally protected speech or a “hate crime”.

In another rambling Facebook screed, Pasco implored her followers to, “Fight all racism as strongly as you fight anti-Semitism and fight it regardless of the speaker” (emphasis added).

Archive link: http://archive.is/OxAzv

While Pasco was president of the Jewish Law Student Association, its leadership submitted an editorial to the Virginia Law Weekly entitled Oppose Antisemitism in All Its Forms. It heavily referenced the Unite the Right rally, organiser Jason Kessler and made clear that its members could be counted on as judicial activists against anti-semitic speech. They claim to have “experienced anti-semitism directly on August 12th.”

As president of Virginia Law Women, she even went so far as to approve of my harassment at the UVA Law Library while I was trying to study for the Sines litigation.

Archive link

Where we go from here

Within a few weeks Judge Moon will rule on both the Motions to Recuse and the Rule 59 Motion. If the Rule 59 Motion is successful Kessler v Charlottesville will be allowed to go forward into the discovery phase. This is good news for everyone who has been anxiously awaiting discovery of the August 12th text messages and emails the Heaphy Report says Police Chief Al Thomas deleted. Additionally, City Manager Maurice Jones had communications that day which he has refused to turn over through repeated FOIA requests.

If Moon decides to double down on bias in his courtroom we will next have to put in a Notice of Appeal to the Fourth Circuit Court of Appeals.

We fully expect that a fair analysis of the case will overturn Moon’s ruling and reiterate that police cannot allow a Heckler’s Veto without violating the Constitution.

That process will take about 18 months.

If however we still don’t get the ruling we are looking for, our only option will be to request a hearing before the Supreme Court. There is a plausible chance our case could be picked up because a refusal, by an appeals court, to acknowledge a Heckler’s Veto cause of action would trigger a conflict with every other court in the nation.

Such cases are given preference on the Supreme Court docket.

-Jason Kessler