of my time to reserve for the ball yes of course before we begin and i correct there's still an outstanding claim the protection claim yes there is ok so we have no final order that's correct ok which is why you're as you just imagine we are here on a petition for mandamus to disqualify the trial court judge the honorable patrice tucker in this case of this case the underlying case is a constitutional tort and civil rights case raising matters of great public importance gooding corruption and misconduct at the pennsylvania convention center which is the single largest project in the history of the commonwealth of pennsylvania mr senator really my question is i guess it largely factual one but it would help me if you could clarify the extent the record describes it the rule asian ship between the convention center and the avenue the the ignorance of the matter of fact this apollo was that representative of the convention center before she was fired at the instigation of the c e o who she blew the whistle on which is case arises out after that occurred the convention center executive director this isn't the record the exit the executive director of the avenue of the arts telephoned the defendant in this case i mean a young and asked her to designate another representative form the convention center so to answer questions judge that this is a very close relationship where it's not merely the fact that the avenue of the arts advocates for businesses when north broad street number one this is the biggest business or north broad street the convention center but number two this avenue of the arts board has a specific representative and that's the words that they use and that's important to represent want to represent the interests of the convention center especially the convention center tucker writes to us that the relationship to remote cause and concerns about impartiality the mission of a not remote any business let alone convention center is not entitled to some deference it's contrary to the facts the undisputed facts by the way are are i mean these are documented facts in the record and these are not mere acquaintances the corporate entity is that right that's correct so how much of your argument is dependent upon the fiduciary duty and those specific members or i guess cannot by ethical restriction solicit funds as true and there's no allegation that she did well there is evidence in the record that she is on the operating committee whose express mission is to generate strategies for listening for soliciting funds now i agree i don't have evidence in a record that judge tucker was telephoning people to say come on we board now we do know in exhibit which i submit is perhaps the most important document that you of your honor's to review it's the december fourteenth two thousand and eleven e mail from the executive director of the convention center to the corporate governance  blom and ms rocca to attorneys that e mail expressly references the fact that the convention centers made it more contribution it's the same e mail with which the executive director expressly states that judge tucker had approached our confidentially i might add and that's an important point well though that's that's that's a different issue but i mean every really has this is case going to turn on the fact that she was member of a committee that was rather jazzing on fund raising and there's no allegation that she did any no has an ok night and i was responding to the judge smith on that but i just want to point out there is that's one of many many issues in the case that when you look at four fifty five that the supreme court is telling us look at all the circumstances here and what would the reasonable person and objective person in the public not necessarily judges or example you're going away with an interest here isn't it she does have an interest in the avenue of the arts that's for sure but that also means she is informed of the facts but isn't isn't as an object i'm sorry finish i didn't mean to come on i'm sure she is a person who is informed of the facts and if other reasonable people in the public are informed of the same facts that ms lewis was informed of and that the other members of the  informed of the specter submitted exhibit a tells you what questions they're asking and they're certainly saying is there a problem so use the word problem and she also states that this would be although it may be awkward a judge tucker to sit on this board while she's presiding over the case so for purposes of who are fifty five a analysis isn't what's important here the fact that a reasonable person with knowledge of all of the relevant facts would in the universe of those facts have that email which reflects a concern on the part of really an insider through the transaction is an expression of what the reasonable person is lewis and the other board members know and what about the impact even though solicitation by jewish talker is not an issue here but what about the impact of the f i that it appears to the end of that that's a further demonstration that the people who know the facts they know that the convention center contributes money to the avenue of the arts they know that the convention center is a defendant in the case judge tucker is presiding over they know that i mean a young has also designated the representative miss carroll hunt a key witness in a case mind you also sits on the board of that convention center so the fact that the same people who know all the facts here they also are mindful of the fact that the convention center contributes funding to the avenue the arts to help judge tucker to help not on apollo to help see her name sure i don't think i think it makes things worse for her because now the public sees that judge tucker has taken a leave of absence and by the way we had no idea that she took a leave of absence my client had no idea  something quite frankly that i would have hoped that if it was important to judge tucker clearly as she says it's important to her if it wasn't porton why weren't we told about why when we give an opportunity to at least consider it but the fact is judge tucker's letter states that it is important why is it important it's important to this case it's important to the issue of recusal and that's what she's telling us or yeah are you asking us to in talker's mine and i'm not even trying to i don't think we have to i think what we these facts are important and in the end the test is and is an objective eyes and that's khorasan person and simply the appearance of a judge's knowledge of facts that would give her an interest in litigation so really knowledge of facts almost is equivalent to interest if if there is an appearance that she knows something that seems to be know something material to the litigation that seems to be in the that's that's certainly is if if she knows what the judge has personal majuro lyingly on they were relying on that but again as this case proceeds we don't know what factual she'll certainly have developed credibility and perhaps judgments about situation like this but what is what is her interests and trying to figure she sits on a nonprofit board that's what you're saying that it's because she has a i'm sorry because she has a fiduciary duty as a member of the board and because the board receives funds from the convention center yes this is her this is her interest this is what should disqualify her ok well that and what she has done she has expressed to that board the fact confidentially that she understands this is an important business your honor she understands the interest of judging is very important i agree with that and that's why she went confidentially to the board members and told them this now what's more important is how people react to it if the e mail exhibit a to our reply brief answers the question of how to reasonable persons are reacting to her interest as a board member and that's what we have to focus on how are people reacting to damage has already been done i submit that the damage is being done already here is well we can't wait any longer we've received a decision on a motion to dismiss that as defense counsel has raised dismiss is virtually the entire case and this is important without leave to amend without oral argument without any discovery and states it's with prejudice this court has stated well that's that's a merits decision that may or may not be reviewed on appeal i mean is that is that issue before us it's before you to the extent the public now sees it they see that judge tucker has disregarded what i submit is this court's law that says when you dismiss claims you don't do them with prejudice prejudice it's starting to your honor now at the time we filed this petition at that point time and we do not take this lightly at the time we filed the motion we didn't have that we filed this motion before any decisions were made any rulings there's no judge shopping here but at this point every time judge talk or decides the case people on the board of directors a high people who know about this case clear but obviously if your honor thinks that's a an appropriate remedy of course but i don't think that's necessary on their disc ace when you look at exhibit a i think it answers all of our questions this is reasonable people declaring their perceptions the supreme court has told us look at the perceptions of the reasonable informed person you don't get any more reasonable or informed than the board of the ai who know all of us who are reacting their actions speak louder than any words their actions speak louder than the silence that we have from judge talkers the what's in her mind their actions or are the public perceptions of reasonable informed persons who expressly state that this is and again i i highlight this because it's important the fact that judge tucker confidentially mentioned to her that's important why is it confidential if it wasn't a problem it should be said in open in open court anywhere it wasn't even brought to the attention of the counsel in the case but it was said confidentially let me let me ask my colleagues if they have any other questions thank you very much mr center i will bring you back on rebuttal argument before the court and i am somewhat flabbergasted that there can be such a woefully inadequate record on perception of any kind there by the reasonable man that this judge could in any way show an appearance of bias counsel just set your honor that we didn't start this case as claiming that it was a bias case under the well in fact they did if you read the motion to recuse the judge tucker it was on a natural bias basis and then when we walked into the courtroom that day mr santa rally with through those claims and turned it into a perception case and and why should that matter well this is how do you say that this and this and disingenuous disingenuousness of this argument and the reason why i say that and i would not ordinarily do so but if the court looks closely at this record it is this record has been counsel has manipulated for some reason by filing a motion to reach use on let's say let's say it's on a perception grounds the complaint was filed in october of two thousand and eleven so we know for sure petitioner knew that judge tucker was serving on the board of the i at that point correct there was no motion to recuse filed characterization of the situation and that is the case that they say this at page four of the petition that the situation here is is a judge sitting on the board of an organization that expressly promotes a defendant in a case in which she presides is that an accurate characterization no it's not because that organization does not express they promote the p c cia if you go to its website because that's a matter of public record look at the what judge tucker said it is an organization that promotes business tourism and entertainment in the city of philadelphia if you were to take that argument to logical conclusion then judge tucker would not be able to sit on any cases that involve any businesses tourism or entertainment as a city of the frontier because of that doesn't the convention center have a trustee on that on that issue i actually do not know what other people what other entities have people on that board and i also think that the record does not say that the convention center has a days designated person on the port there happens to be a representative from the convention center which would make just from our ordinary knowledge perfect sense because it to they have perhaps have a shared mission that they both want to promote business and tourism in the city in order to fill up the convention center the convention center has that mission but it doesn't mean that they are so wholly intertwined that the missions are one the avenue of the arts has the mission of promoting all of the businesses all of the centers for entertainment and industry in the city of philadelphia the convention center is one is it a big one or are you so you're asking and i i agree that there are matters here that i certainly inquired into that are are not explicit in the record as we have it and that's why i began my questioning your adversary with a question about the relationship between the two entities are you suggesting by one of your earlier statements that there is not anything that requires that a a representative of the convention center be on the board of the viewers stating that not that i'm aware of and you know i would think that during the course of this matter and that i would have learned that and i have not i'm sorry to say i don't have that actual fact for you and correct me if i'm wrong but you know my i am i am aware of nothing that requires that i know that it is a practice and i know that it is a practice practice that many business leaders and members of business organizations are on board just like members of the court are on other arts boards and members of this court court or on other arts boards this is something that judge tucker should do without jeopardizing her duty to sit on cases which she has that duty not to recuse herself and we haven't been considering that yet but i in fact that the cases do state and speak in terms of the duty to sit right there yet with so that that is a backdrop against any ultimate duty made cute and also the cases that say that a judge should recuse herself or himself when there is a quote unquote appearance of impropriety i mean the case is that there is not a single case cited by petitioner in this matter that said simply by serving on a board without any personal interest without any financial interest without any alleged personal relationships there's no there's not even any allegation that judge tucker has ever had any relationship with any of these individuals that sit on the board other than one allegation i think in the original motion that says that judge with the sure but shouldn't i mean wouldn't that argue i mean as i thought about this over time wouldn't that argue that the convention center might have a motion to recuse but but now well the fact is say on that question you end  what is what what what if or is it possible that there could be reasonable people out there who would look at that relationship and say it's problematic in reasonable people who would look at the other relationship and say it's problematic this is that hope you will a mere fact that no there are a lot of people questioning i would disagree with your honor under the law on that there might be reasonable people that would look at it think that but not the reasonable man standard under the law which is the reasonable person who is aware of all of the facts under this including what judge tucker said in her you know her letter submission to this court so the reasonable person knowing that there's no allegation that there's any relationship between any of the parties that they've happened to share if i do sherry both you know the the convention center and madeline apollo and the judge and alleged witnesses i i don't agree with the characterization of key witnesses obviously but that that regardless of that fact that simply because they all share for you sherry duties to the ai the avenue of the arts thin that that somehow just by virtue of that there's no personal financial gain there is no there is no evidence of any kind of understanding of the knowledge of this particular case by the judge and all of the cases that mandate redos all that i have read in preparation for this argument say there has to be something more than mere acquaintance there's a case out of it if you were the court officers were you haven't  station the e mail you haven't spoken to the hail from an executive let me talk about the e mail because i did bring that up since you were about that this is first of all let's ask what it is that judge tucker  did ok clearly on the facts not a council says that judge tucker did ok on the stipulated facts on on what judge tucker said shit she went after the board meeting on  december thirteenth two thousand and eleven to the executive director not to anyone else not to any other board members you have to think about this action in light of what had gone on where council had filed a complaint alleges basically criminal misconduct in conspiracy of among the convention center a meaning young and non party lawyers etc ok so that's in the newspaper so judge tucker on that day of the board meeting goes up to the executive director as any ordinary board mender member board member who cares about their organization go the executive director and say hey heads up just i want you to know that i am the presiding judge on this matter in which madeline apollo has sued the convention center period nothing about where counsel in his papers throughout so she said it was awkward the witness that was in the courtroom that day in the stipulated facts she didn't testify but we stipulated to the facts and counsel interviewed her there was no statement of any it was awkward it was pure and simple heads up because why it makes perfect sense this is an organization in which the executive director needs to know what's going on in case there's any adverse publicity so she does nothing wrong she just says hey this is what no knowledge of the case she doesn't suggest ok so the e mail after that this is not judge tucker's action and this is also this is not the reasonable person ok this this email and for the record i'm referring to the e mail which is exhibit a to the petition this e mail is written by karen lewis the executive director saying exactly basically would judge tucker said judge tucker confidentially mentioned to me after the board meeting that she has been assigned madeline apollo's case she is suing the convention center and then it talks about the history of keeping maryland on f y r i received a board contribution from ph convention center what does that mean i think that this that means it does this doesn't have anything to do with what judge t was aware of all the circumstances don't you think that if this was a hundred thousand dollar contribution or a million dollar contribution or some significant contribution that we would be sitting here right now with that evidence before this court we don't know i don't know and i know in this court certainly doesn't know where it says we have received a board contribution from the p a convention center what does that mean board contribution does that mean an individual board member the who also works for the convention center a personal donation i don't know does it mean that the convention center gave a donation with its government funds to the ai does the record show the funding of me and i i assume that there's public money and probably donations from other organ arts organizations and private funds as well as sure my carets how it runs its budget i mean you see on its website that it is run through both government funding and private fundraising so and the fact that there is something in a private email that is not a matter of publishing this is a private board matter it's you should know all of the facts this is the kind of thing that executive directors talk to board members about all the time does this reflect on what the reasonable person knowing all the facts and circumstances under this case would look at and have some kind of doubt as to this judge's ability to fairly judge the case absolutely not this doesn't have judge tucker didn't say and by the way i'm concerned because the convention center gave a donation what are we to to make of the fact that she took a leave of absence doesn't make any difference well you know  i was interested how to hear counsel say you know would have been nice for us to have known but he did know before we filed this mandamus petition but what should we make of it what should you make of it i think that we can make nothing of it because we have absolutely no idea why she took a leave of absence it could be for health reasons it could be for family reasons it could be for scheduling reasons it could be for any reason whatsoever and it is more likely than not something other than the her taking a leave of absence does the fact that she's on leave of absence change the analysis here as opposed to her being an active member of the more i really actually don't think so because i don't think being an active member of th has any bearing on the reasonable person's perception under the case law and the courts have been it even though this circuit has not clearly stated that when you know this narrow area which is when a judge sits on the board with a party and potentially other witnesses that that is not an area that requires recusal this court has not clearly said that  do we even know on this record what a leave of absence means in this context i visited the website over the weekend and judge trucker's still showing as a member of the board there's no sure what to make of well i wondered the same question myself last night and i went on the website and look at the minutes of a meeting which sad next to judge tucker's name leave of absence so i saw that on the website it did not s it on the banner page but it did say it on minutes of a meeting don't know why or how warm no and and but i don't i really i do not think under the case law that difficult because i think that to say that simply because and and it is right since since we are here on appearance it can only be the two things that counsel has raised that is that they stare the same fighters shiri duty and sit on the board together and that this comment was made that i sit on the yes those are the two they're simple facts there is there can be you know no no other question is that sufficient to require a judge to recuse herself when she has not she's no personal or financial interest on the case or no on the on the other hand there are cases and i have that talk about how this mandamus petition cannot be used blatantly for litigation tactics and i would suggest to this or that you look at the timeline in this case and see what has happened over the course of this litigation from the time the complaint was filed and then we filed our motion to dismiss and then by the time the plaintiffs were required to respond to that motion to dismiss on that very day they filed a complaint alleging that reads meth was somehow involved in this conspiracy and that i personally and a fourth year lawyer in our law firm was a criminal conspirator in this case and then when we filed our next motion to dismiss they then filed a motion to disqualify roots not because of those very reasons it was a cut and paste job and then after that when the judge it was pending they went they escalated these litigation tactics no holds barred by going after the judge in a motion to recuse for what reason because she sat on the board if this court is looking to police some action might i suggest that it is the action of this law firm and not this judge who has done everything right in this litigation we don't care what judge we get on the district court but we cannot tolerate as a system allowing a law firm to come in and brutalize the parties the litigants and the judge and let it go as some perhaps some interesting in academic legal question where what is the status of the case right now cases here and there is none no one has gone before before the trial or there is no we have we have there is one claim remaining this equal protection claim there has been no set schedule in conference yet so the status of the case is that the judge has ruled on our motion to dismiss and by the way it should also be noted that after she wrote on that motion to dismiss more than a month later counsel filed this petition for mandamus before this court so and this this issue of sitting on the board existed on the day the complaint was filed in october so where is it it has we have had significant work on this case we've filed two motions to dismiss we filed responses to the motion to disqualify reads that the judge has ruled on and obviously been become familiar with the legal issues regarding the motion to dismiss in the facts of this case as alleged in the complaint so we are not at what one would call an early stage of this proceeding my clients have expended considerable and some and the judge has expended considerable judicial resources on this matter so this is not and by the way the law is not well it's it's you know who cares really because it's at an early stage of the proceedings so the judge may as well replace herself but that's that's really not what we should be considering here and it is neither an early stage nor is that in my mind respectfully your honor an appropriate way to look at this case because of the you know the no holds barred litigation strategy of judge shopping and scorched earth litigation that has been used in this case good and and the other questions that thank you very much  going to makes me wonder why she fighting so hard to keep judge tucker in this case to the point where she's actually accused me of lying to you she said that i knew judge talker took a leave of absence before we filed the petition for me davis and i challenge our if they're making our representation to prove that to give any indication that that is an outright lie i did not personally i recall an instance in trial where her counsel called her counsel a liar and we had a very unpleasant sidebar so it's a word speaking for myself the amount of involvement of the district court nothing has happened other than the motion to dismiss has been numerous most of the claims of been thrown out with and they have been for that without leave to amend so there's not much that's what i'm told it's virtually the entire case has been gutted which is problematic but in terms of the investment of time and resources by the court other than the motion to dismiss really hasn't been i think we filed this with the express statement that we are doing it before there has been a substantive rule and we made that clear and we only did it after my client was requested to step down from the board based upon the conversation that judge tucker had with the board members it set off a triggering it triggered a set of events that resulted in board meetings were conference calls further discussion about this problem about the awkwardness and these are words of a reasonable person who knows the facts in the last day if you so we understand that you know your side facts of the case that led up to my client being fired there's no doubt about that it's expressly pled in the complaint and it's been stated but in the press right anderson that if you know and attorneys attorneys give advice to their clients well in this case the underlying human resources litigation which my client was fired because she did not fire one of the people representative on the board at your own request is there any evidence of that first of all judge tucker states it in her opinion i believe it's on page four she actually acknowledges the fact that it is a designated representative of the convention center or the board i obviously it's designated might we really was whether or not it was formalized somehow ship queen to any i may not have been specific enough in how i phrased my question or i don't have the board minutes but clearly as a matter of practice and or in in our attachments to the petition we do have representatives well there are not designated representatives but people who want to be on the board can join and usually the business people in that area they do join the board now none of them have a specially designated member of a board like the convention center that's what's makes it unique that's was what makes this whole case unique and the fact that judge tucker's relationship one this sport it's not as if you have to recuse yourself for every other business that here's one of her who happens at the on that board this is a special relationship and that's why exhibit a the reply be that e mail that's why these people are talking that way because they know there could be a problem here no one asks for there's a problem if it's just a board situation this is a court situation the oath the court system comes first if anyone's going to decide do i step down from the board or do i step down from the case it's a perception of the public in the court system that counts adversary says well it's the normal thing that someone would do to a board you would go in tell your board oh i happen to have this conflict i submit to you this is serious business much more serious now that this is judging the business of judging is the most important thing when it comes to a judge sitting on the board that takes precedence that you cannot bring the courtroom into the boardroom and that's essentially what happened here judge tucker went confidentially ms los to tell her that why confidentially as i said earlier because it's important everyone recognizes important why are people asking if there's a problem because it's important when i ask if it's a problem if just some other board the circuits have said that there's close calls are on the side of recusal the what we have not said that we have not said that i agree majority circuits have and in this case exhibit answers the question at the supreme court wants an answer what's the public perception good thank you thank you very much we thank counsel for a very helpful take a matter