UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

John A. Baldi

v. Civil No. 04-cv-466-PB

John T. Broderick, Jr., et al.

O R D E R

 Four former defendants in this action, all state court

judges (hereafter “State Court Judges”), move to quash the

subpoenas served upon them by counterclaim defendant John A.

Baldi (hereafter “Baldi”). In connection with the motion, Judge

Barbadoro ordered Baldi to file a statement of the testimony he

expects to elicit from each. Document no. 86. The matter has

been referred to me by Judge Barbadoro. 

Preliminary Matter

As a preliminary matter I consider Baldi’s objection to

resolution of the matter by me. Document no. 88. In prior

orders, in other cases, I have informed Baldi that the

appropriate vehicle to seek the recusal of a federal judge is by

motion. See United States v. Devin, 918 F.2d 280, 294 n.11 (1st

Cir. 1990); In re United States, 158 F.3d 26, 37 (1st Cir. 1998). 

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In certain circumstances it can be raised by affidavit. 28

U.S.C. § 144. He is well aware of the proper procedure and, in

fact, earlier in this case he used it to seek Judge Barbadoro’s

recusal. Document no. 5. Despite the lack of any motion for

recusal I will consider his objections. 

Baldi asserts: (1) that I am not neutral; (2) that I have

close friendship with parties to be deposed; (3) that I hold

prejudice against Baldi; (4) that Baldi has filed complaints

against me; (5) that I have a history of altering transcripts;

(6) that I have failed in my duty to enforce criminal violations

against perpetrators who are either state officials or friends of

mine; (7) that in this case I have violated 18 U.S.C. § 4,

Misprision of Felony when I denied Baldi’s “Motion For A Hearing

On The Issuance of Arrest Warrants”; (8) that I have allowed

defendants to continue their violation of 18 U.S.C. § 241 and

242; and (9) that I have shown my intent to violate 18 U.S.C. 

§ 2384, seditious conspiracy. 

His complaints numbered (1), (2), (5), (6), (7), (8) and (9)

are very similar or identical to complaints previously filed

against me by Baldi with the Judicial Council of the First

Circuit. They were dismissed as baseless. He may not relitigate

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them and they remain baseless. The fact that Baldi filed the

complaint has not influenced me in making decisions in his cases

and it will not do so in the future. Frivolous and/or baseless

complaints by misguided pro se litigants against judges do not,

and should not, be a basis for recusal. I accept that

disgruntled pro se litigants complain against judges who rule

against them. Furthermore, I have no personal bias or prejudice

against Mr. Baldi and his complaints against me will not be held

against him. 

It is always tempting for a judge to recuse himself in cases

instituted by “frequent filers” with a history of asserting

unfounded claims or who make the administration of the cases

difficult. However, a judge has a duty to participate or sit on

a case when it is not appropriate to recuse. See Laird v.

Taturn, 409 U.S. 824, 837 (1972) (citations omitted). No

reasonable person could question my impartiality in this case and

I decline to recuse myself. 

Background

The subpoenaed justices were originally defendants. Their

motion to dismiss was granted and they are no longer parties to

the case. In fact, all of Baldi’s claims in this suit have been

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dismissed. 

Judge Barbadoro has reviewed the history of Mr. Baldi’s many

suits in his “Memorandum and Order” of September 21, 2005

dismissing all of Mr. Baldi’s claims. Document no. 71. The only

claims remaining in this suit are the counterclaims of Gail and

Ronald Brown. The counterclaims allege: 

1. Count I - Abuse of Process; 

2. Count II - Intentional Infliction of Emotional

Distress; 

3. Count III - Negligent Infliction of Emotional Distress;

and

4. Count IV - Harassment and Invasion of Privacy. 

Since the suits against the State Court Judges have been

dismissed any discovery from them must be relevant to a claim or

defense relating to the counterclaims. Fed. R. Civ. P. 26(b)(1).

Baldi does not claim that the testimony sought relates to

plaintiffs’ claims but rather to his defense of illegality. 

Further, as pointed out above Judge Barbadoro has ordered

Baldi to provide a statement of the evidence he expects to obtain

from each of the deponents. Fed. R. Civ. P. 45 and 26(c) permit

the court to quash a subpoena and order that discovery not be had

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in a deposition where justice requires that a person be protected

from annoyance . . . oppression or undue burden. Baldi states: 

in response to that aspect of the order the plaintiff states

the following: 

a. Plaintiff does not seek intervention into the

mental processes of any of the judges. 

b. Plaintiff does seeks answers as to the meaning of

state statutes, articles of the state

constitution, whether an oath of office was taken

that included in part to uphold the constitution

and laws of the United States, whether they are

bound by the supremacy clause of the United States

Constitution and if not, to identify the authority

that allows them to breach that “Article” and the

privileges and immunities granted pursuant to the

entire document. 

c. The questions will also be related to their legal

background, what they knew, when they knew it,

what action they took, if any, all designed to

show that had a complete knowledge of both federal

and state law, they wilfully and deliberately

breached federal law, did not follow the plain

language of statutes enacted by the state

legislature and generally used their positions

contrary to the law if that is what they felt like

doing. This will be done and must be allowed to

be done, in order to prove the affirmative defense

of illegality to the Browns counterclaims. It

must also be done for the plaintiff’s suit against

the United States pursuant to 33 U.S.C. § 1365

(See attachment. The Browns, Town of Epsom, State

of N.H. have all also been notified. Please also

be aware that by statute the venue for suits

against the United States is the district court

within the district where the plaintiff resides,

Boston). 

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In paragraph a. Baldi acknowledges that he is not permitted to

inquire into the mental processes of any of the judges. Baldi is

correct. The decision-making or mental processes of judges is

not subject to discovery. That is true under federal law. See

United States v. Morgan, 313 U.S. 409, 422 (1941); Fayerweather

v. Ritch, 195 U.S. 276, 306-7 (1904). It is equally true under

New Hampshire law. See State ex rel. Childs v. Hayward, 109 N.H.

228, 230 (1968); Merriam v. Town of Salem, 112 N.H. 267, 268

(1972). 

Having acknowledged that he cannot inquire into the mental

processes of the State Court Judges, he then describes in

paragraph b. and the first part of c. areas of inquiry which are,

in different words, an inquiry into mental processes or

interpreted another way a request for advisory opinions. An

inquiry into how judges interpreted statutes or articles of the

state or federal constitution in deciding Baldi’s cases clearly

involve an inquiry into their mental processes. What legal

understanding they had or interpretations of law they made are

what he wishes to use to show they “wilfully and deliberately

breached federal law, did not follow the plain language of

statutes . . . and used their positions contrary to the law if

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that is what they felt like doing”. That can only be determined

from their written or oral decisions or it will require an

inquiry into their thinking. The latter is not permitted. No

deposition is needed to determine it in the former instance. 

He also cannot use these justices to prove his “illegality”

defense by “extracting” their opinions of the law, even assuming

he has such a viable defense. Baldi is simply not entitled to

advisory opinions from New Hampshire Supreme Court or Superior

Court Judges. 

Baldi has failed to show any legitimate basis for these

depositions. The subpoenas are quashed, the motion (document no.

86) is granted and Chief Justice Broderick, Justice Dalianis,

Justice McGuire and Justice Fitzgerald are granted a protective

order directing that the “discovery” sought not be had. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 27, 2006

cc: John A. Baldi, pro se

 Brian J.S. Cullen, Esq.

 John A. Curran, Esq.

 Daniel J. Mullen, Esq.

 Charles A. Russell, Esq.

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