Judicial Bias Rewarded?
Philip A. Byler
November 4, 2023
In this disturbing period of our country’s history, the last thing we need are judges who are promoted to a U.S. Court of Appeals judgeship for having greatly tilted the scales of justice in a case in favor of a big institutional litigant against an individual seeking to vindicate due process and federal non-discrimination rights. But that is precisely what appears to be happening with respect to Northern District of Indiana U.S. Magistrate Judge Joshua Kolar and Plaintiff John Doe (“John Doe”) in Doe v. Purdue.
Significance of Judge (now Justice) Barrett’s Opinion in Doe v. Purdue.
On June 28, 2019, the Seventh Circuit, in an opinion written by then Judge (now Justice) Amy Coney Barrett, upheld an action brought by John Doe claiming due process violations and Title IX discrimination by Purdue when it suspended John Doe for alleged sexual misconduct with an ex-girlfriend. Doe v. Purdue, 928 F.3d 652 (7th Cir. 2019). The national importance of the due process rulings of then Judge (now Justice) Barrett in Doe v. Purdue, 928 F.3d at 661-664, 667, cannot be understated, holding: (i) that John Doe had pleaded a stigma-plus liberty interest; (ii) that Purdue’s disciplinary process was woefully deficient and did not provide due process, citing among other things not giving John Doe the investigation report and not holding a real hearing (“Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension”); and (iii) that the District Court on remand was to consider the expungement of the disciplinary file (“we instruct the court to address the issue of expungement on remand”).
When then Education Secretary DeVos announced on May 6, 2020, what would be the current due process Title IX regulations, she pointed to three cases that were particularly instructive, one of which was the Seventh Circuit’s decision in Doe v. Purdue. “Secretary DeVos Announces New Title IX Regulation,” https://www.youtube.com/watch?v=hTb3yfMNGuA; U.S. Department of Education Press Release, “Secretary DeVos Takes Historic Action to Strengthen Title IX Protections for All Students,” May 6, 2020; 34 C.F.R. 106.45. Secretary DeVos noted that it was a three-woman panel with then Circuit Judge Amy Coney Barrett as the author of the opinion. “Secretary DeVos Announces New Title IX Regulation” https://www.youtube.com/watch?v=hTb3yfMNGuA.
When Judge Barrett was nominated for the U.S. Supreme Court, her Doe v. Purdue opinion was a subject of attention. Defending Judge Barrett’s opinion in the Wall Street Journal was K.C. Johnson, “Sex, Due Process and Amy Coney Barrett,” Wall Street Journal, Oct. 1, 2020. Purdue responded with its defiant defense, “Purdue Responds on Judge Amy Coney Barrett’s Title IX Opinion,” Wall Street Journal, Oct. 12, 2020. Judge Barrett’s opinion has been a thorn in Purdue’s side, and Purdue has not wanted to live in accordance with it.
Magistrate Judge Kolar’s Biased Treatment of Doe v. Purdue On Remand and the Circumstances of John Doe’s Seventh Circuit Stay Motion.
So, here it is November 2023, 4½ years after Doe v. Purdue was issued, and where are we? In that time, we have been before U.S. Magistrate Judge Joshua Kolar, who has been acting as the judge for all purposes and who in July 2023 was finally subjected to a motion to recuse for pervasive bias by John Doe because Magistrate Judge Kolar “has made common cause with Purdue counsel to frustrate John Doe’s effort to vindicate his due process and Title IX rights and to undermine and eviscerate [current U.S. Supreme Court] Justice Barrett’s opinion in this case” (Byler Decl., Dist. Ct. DE 257-1 p. 2). Strong language, yes, but the truth.
The latest development is that John Doe has moved in the U.S. Court of Appeals for the Seventh Circuit to stay proceedings in the District Court, invoking the interests of judicial integrity and safeguarding the fairness of a trial in this case, given the extraordinary circumstances in the case. Magistrate Judge Kolar was subject to a motion to recuse for pervasive bias for Purdue made by John Doe on July 9, 2023, and is subject to a still pending appeal to the Seventh Circuit filed on September 7, 2023, of Magistrate Judge Kolar’s denial of recusal for bias. Magistrate Judge Kolar, with four years’ experience as a Magistrate Judge and none as an Article III District Judge, was nominated on July 27, 2023, to be a judge on the Seventh Circuit by the Biden Administration. When Magistrate Judge Kolar denied the recusal for bias motion on August 14, 2023, he did not disclose the fact that he was nominated to be a judge on the Seventh Circuit. When Magistrate Judge Kolar appeared on September 6, 2023, before a Senate Committee, he did not disclose that he had been subject to a motion to recuse for pervasive bias favoring Purdue.
John Doe and his counsel first learned of Magistrate Judge Kolar’s nomination to be a judge on this Court when the Northern District of Indiana federal court announced in a press release on October 11, 2023, that there would be an anticipated opening for a Magistrate Judge position given Magistrate Judge Kolar’s nomination to be a judge on this Court; and (vi) Magistrate Judge Kolar continues on insisting that he be the trial judge in this case and has scheduled a trial date.
John Doe’s Stay Motion to the Seventh Circuit
The stay motion to the Seventh Circuit submitted three key documents concerning Magistrate Judge Kolar’s bias.
Exhibit A to the stay motion was the 33-page Declaration of John Doe’s lawyer [Dist.Ct. DE 257-1] that was submitted in support of the motion to recuse Magistrate Judge Kolar for pervasive bias favoring Purdue and that details the bias case against Magistrate Judge Kolar. Importantly, the Byler Declaration states [DE 257-1, pp. 6-7]:
Plaintiff is not relying upon the mere fact of adverse rulings but upon the manifestations of “judicial predispositions that go beyond what is normal and acceptable,” and show a case of “pervasive bias.” Liteky v. United States, 510 U.S. at 551. In particular, Magistrate Judge Kolar’s July 2, 2021, August 11, 2022 and February 14, 2023 opinions mishandled the law in a way an impartial judge would not do, misstate the factual record in a way an impartial judge would not do, and do so all to Purdue’s benefit, establishing Magistrate Judge Kolar won’t be impartial due to pervasive bias.
In the July 2, 2021 opinion, Magistrate Judge Kolar found spoliation over 11 Snapchat personal photographs and short videos that were made well after John Doe’s suspension at Purdue and that were inadvertently deleted when John Doe cleared memory on his cell phone. Magistrate Judge Kolar acknowledged the Snapchat posts not to be prejudicial (“there is nothing in the record to indicate whether the files were in fact adverse to Plaintiff’s case” (DE168, p. 29)), but Magistrate Judge Kolar still speculated that “it was not inconceivable” the 11 Snapchat personal posts might be potentially relevant to John Doe’s desired Navy career — without giving an explanation how it was conceivable, much less actually relevant (DE168, p. 16), which a glance at the Snapchat listing showed it wasn’t. Magistrate Judge Kolar nevertheless lambasted John Doe for the deletion, ordered payment of Purdue’s attorney fees (which were claimed to be $30,000 and which would wrongly burden John Doe’s effort to vindicate his due process and Title IX rights), and outlined jury instructions regarding what were irrelevant documents [Dist Ct. DE168], even though adverse inference instructions require intentional destruction and relevance. Crabtree v. Nat’l Steel Corp., 261 F.3d at 721; Keller v. United States, 58 F.3d 1194 (7th Cir.1995). What’s worse, the spoliation order was made in the background of John Doe’s full compliance with Purdue’s scorched earth discovery.
In the August 11, 2022 opinion, the Magistrate Judge Kolar essentially reversed Judge (now Justice) Barrett’s opinion on due process. Before the Seventh Circuit in 2019, Purdue had argued that Plaintiff John Doe had engaged in self-defamation by authorizing the release of the university disciplinary files to the Navy. That argument then was premised on the NROTC only learning of John’s disciplinary case because of John’s authorization of disclosure to the Navy ROTC. Judge Barrett stated in her opinion Purdue’s position: “The university maintains that it has not and will not divulge John’s disciplinary record without his permission. The Navy knows about it only because John signed a form authorizing the disclosure after the investigation began.” 928 F.3d at 661. Purdue cited Olivieri v. Rodriguez, 122 F.3d 406 (7th Cir.1997), where a voluntary disclosure was the reason for an employment discharge in a situation that the Seventh Circuit considered speculative whether the disclosure would ever be called for. Judge Barrett, however, rejected Purdue’s argument (928 F.3d at 652): “John’s case is different. He does not claim simply that he might someday have to self-publish the guilty finding to future employers. Instead, John says that he had an obligation to authorize Purdue to disclose the proceedings to the Navy.”
In fact, the discovery record, which only made John Doe’s case stronger, made Purdue’s argument and Magistrate Judge Kolar’s ruling about self-defamation wholly untenable. Indisputably: (i) the NROTC knew about the disciplinary proceeding well before the May 24, 2016 authorization because on April 4, 2016, Jane Doe first went to the NROTC to make her accusations; (ii) Purdue first learned of Jane Doe’s accusations from the NROTC; and (iii) according to the NROTC Commander, the NROTC was looking to the Purdue investigation from the start. According to Plaintiff John Doe, the Navy wanted “in the loop” (DE183-5, tr 21-22) and he was in no position to refuse the authorization” (DE208-1 ¶ 7). Magistrate Judge Kolar’s derision, as speculative, military realities framing John Doe’s obligation to disclose only underscores how Magistrate Judge Kolar was willing to kowtow to Purdue in essentially reversing Judge (now Justice) Barrett’s opinion.
Additionally, the August 14, 2022 opinion with respect to Magistrate Judge Kolar’s proof of falsity requirement to establish a stigma plus liberty interest, which the Seventh Circuit has never adopted, gave a purported review of triable issues that did not reflect the factual discovery record (which made John Doe’s case stronger) but that contributed significantly to the August 11 Opinion being a propaganda piece for Purdue. Magistrate Judge Kolar, in a partisan slip, repeated what were the allegations of Jane Doe when in fact she never testified, which was in distinct contrast to John Doe who repeatedly testified. Magistrate Judge Kolar referred to what were 133 pages of John Doe-Jane Doe texts in accordance with Purdue’s jaundiced misreading as admissions of guilt (which they weren’t) based on Purdue’s misleading excerpting without discussing John Doe’s testimony on the texts that he alone had provided. There was also no good impartial reason for Magistrate Judge Kolar to ignore that: (i) John Doe was not provided an opportunity to review the investigation report during the disciplinary case, (ii) the investigation report included only short portions of 7 pages of the 133 pages of texts (the selected portions did not include texts showing an ongoing relationship after Jane Doe’s claims), and (iii) Vice President Rollock and Dean Sermersheim did not know that there were 133 pages of texts submitted by John Doe to the investigators. Magistrate Judge Kolar further did not address the fact that the three-person panel of the Advisory Committee on Equity and Dean Sermersheim, never met and never heard any direct testimony from Jane Doe and did not have the opportunity to ask any questions of Jane Doe.
In the February 14, 2023 opinion, Magistrate Judge Kolar ignored the Navy Regulations for Officer Development (“ROD”) which clearly substantiated that John Doe could not properly refuse authorization of disclosing the Purdue disciplinary documents to the Navy. The Navy ROD compelled giving authorization, would make John subject to sanction upon refusing authorization, and required disclosure upon re-application due to a permanent federal record (DE208-3) – which even the Magistrate Judge Kolar’s August 11 opinion indicated would make summary judgment inappropriate (DE206, pp. 16-17) but which Magistrate Judge Kolar avoided on reconsideration, so much lacking in impartiality Magistrate Judge Kolar had become. Instead, Magistrate Judge Kolar essentially adopted Purdue’s dismissal of the Navy ROD as “a set of internal Navy rules, not law” and Purdue’s denial that the Navy ROD had the force of law to compel executing the authorization (DE221, p. 12). That, however, leads to the absurd, erroneous result that a Navy ROTC midshipman who acts per the requests of his Navy superiors and the obligations reflected in the Navy ROD has no due process rights. Purdue’s position that whether Purdue’s disciplinary process complied with Fourteenth Amendment due process is “immaterial” (DE213, p. 12) and the Magistrate Judge Kolar ’s effective adoption of that position reflects how much at odds Purdue and Magistrate Judge Kolar are with Justice Barrett’s Doe v. Purdue opinion.
Exhibit B to the stay motion was Magistrate Judge Kolar’s opinion denying the recusal for bias motion without disclosing the fact that he was nominated to the Seventh Circuit Court. [Dist. Ct. DE 261.] Magistrate Judge Kolar’s opinion avoided the actual reasons establishing the pervasive bias in this case presented and certified in the Byler Declaration [Dist. Ct. DE 257-1], and instead gave rationalizations and inapposite general propositions to justify his functioning as a biased trial judge in an important case. Magistrate Judge Kolar’s failure to disclose avoided the nomination to the Seventh Circuit being identified as the extra-judicial source of bias favoring Purdue documented in the Byler Declaration.
Exhibit C to the stay motion was John Doe’s Notice of Appeal [Dist. Ct. DE 267] that from pages 1 to 5 invoked the Seventh Circuit case law establishing the jurisdiction of the Seventh Court for the appeal of what is often called a collateral order and from pages 7 to 38 dissected Magistrate Judge Kolar’s opinion denying the recusal for bias and demonstrates that Magistrate Judge Kolar yet again avoided the actual reasons establishing the pervasive bias in this case presented in the Byler Declaration and has no real answers to the bias case against him.
Chronology of Events
The chronology of pertinent events helps show Magistrate Judge Kolar’s bias in Doe v. Purdue and his nomination to the Seventh Circuit:
July 9, 2023: John Doe moves to recuse Magistrate Judge Kolar for bias, submitting Declarations by John Doe and his lawyer. [Dist. Ct. DE 257, 257-1, 257-2.]
July 19, 2023: Purdue submitted a short Response to the recusal for bias motion that did not take on the facts presented and analysis in the Byler Declaration. [Dist. Ct. DE 258.]
July 25, 2023: John Doe submitted a Reply in further support of the motion to recuse Magistrate Judge Kolar for bias, replying to the few arguments of Purdue. [Dist. Ct, DE 260.]
July 27, 2023: The White House Briefing Room announces in a White House Statement and Release, “President Biden Announces Thirty-Sixth Round of Judicial Nominees” (July 27, 2023), that Magistrate Judge Kolar is nominated to the Seventh Circuit.
August 14, 2023: Magistrate Judge Kolar issues an opinion denying John Doe’s motion to recuse Magistrate Judge Kolar for bias. In that opinion, Magistrate Judge Kolar does not disclose that he has been nominated to be a judge on the Seventh Circuit. [Dist. Ct. DE 261] Magistrate Judge Kolar sets a trial date of November 28, 2023. (Dist. Ct. DE 262.]
September 6, 2023: Magistrate Judge Kolar appears before a Senate Judiciary Committee and does not disclose he had been subject to a motion to recuse for bias favoring Purdue in a case he had been overseeing for four years. YouTube: Circuit Court Judge Nominees Face Senate Judiciary Committee – YouTube.
September 7, 2023: John Doe files a Notice of Appeal of Magistrate Judge Kolar’s opinion denying John Doe’s motion to recuse Magistrate Judge Kolar for bias. [Dist. Ct. DE 267.]
September 11, 2023: John Doe’s appeal of Magistrate Judge Kolar’s denial of the motion to recuse for bias is assigned Seventh Circuit Court of Appeals Case Number 23-2764.
September 13, 2023: Magistrate Judge Kolar issues an order requesting the parties to submit status reports whether the Court retains jurisdiction over the case in light of John Doe’s Notice of Appeal. [Dist. Ct. DE 270.] This Court issues an Order requesting John Doe to submit a “Jurisdictional Memorandum” by September 26, 2023.
September 21, 2023: Purdue files a report in the District Court taking the positions that Magistrate Judge Kolar should await whether the Seventh Circuit accepts jurisdiction of Seventh Circuit Court of Appeals Case Number 23-2764 [Dist Ct. DE 271] and that Magistrate Judge Kolar should proceed with pretrial motions anyway based on inapposite interlocutory cases (not collateral order cases).
September 26, 2023: John Doe files in the Seventh Circuit the requested “Jurisdictional Memorandum” showing this Court has jurisdiction of Seventh Circuit Court of Appeals Case Number 23-2764. John Doe also files in the District Court the requested report showing that Magistrate Judge Kolar does not have jurisdiction of the case if the Seventh Circuit has jurisdiction of Seventh Circuit Court of Appeals Case Number 23-2764, but if the Seventh Circuit has jurisdiction, Magistrate Judge Kolar should not take any action as urged by Purdue, which would have Magistrate Judge Kolar proceed to decide pretrial issues critical to the fairness of a trial, particularly the motion in limime, while the Seventh Circuit is deciding whether Magistrate Judge Kolar has demonstrated bias and a lack of impartiality such that Magistrate Judge Kolar should be recused from deciding pretrial and overseeing the trial. [Dist. Ct. DE 272.]
October 11, 2023: John Doe and his counsel first learn of Magistrate Judge Kolar’s nomination to be a judge on the Seventh Circuit when the Northern District of Indiana federal court announced in a press release on October 11, 2023, that there would be an anticipated opening for a Magistrate Judge position given Magistrate Judge Kolar’s nomination to be a judge on the Seventh Circuit.
October 27, 2023: Magistrate Judge Kolar holds a status conference during which he announces that the trial set to begin November 28, 2023, is still on subject to whether the Seventh Circuit has jurisdiction of Seventh Circuit Court of Appeals Case Number 23-2764. [Dist. Ct. DE 277.] During the teleconference, Magistrate Judge Kolar again failed to address his nomination to be a Judge to the Seventh Circuit, even though counsel for John Doe in a pre-teleconference email inquired what the subjects of the teleconference would be given Magistrate Juge Kolar’s highly relevant nomination.
Magistrate Judge Kolar’s Bias and Nomination to the Seventh Circuit
Magistrate Judge Kolar failed to disclose his own nomination to be a judge on the Seventh Circuit when denying John Doe’s motion to recuse for bias favoring Purdue. Magistrate Judge Kolar’s nomination to be a judge to the Seventh Circuit, with four years’ experience as a Magistrate Judge and none as an Article III District Judge, has more than just the appearance of being the extra-judicial source of bias favoring Purdue; applying res ipsa loquitur, the nomination establishes the extra-judicial source of bias favoring Purdue.
Phil Byler was the lawyer for Plaintiff John Doe in Doe v. Purdue. Mr. Byler is a 1976 graduate of the Harvard Law School, who then clerked for two years to the Hon. John W. Peck of the U.S. Court of Appeals for the Sixth Circuit before entering the private practice of law. Mr. Byler briefed and orally argued: Immuno A.G. v. Dr. Jan Moor-Jankowski, 77 N.Y.2d 235, 567 N.E.2d 1270, 566 N.Y.S.2d 906 (Kaye, J.), cert denied, 500 U.S. 954 (1991); Doe v. Columbia, 831 F.3d 46 (2d Cir. 2016) (Leval, J.); Doe v. Purdue, 928 F.3d 652 (7th Cir. 2019) (Barrett, J.); Doe v. MIT, 46 F.4th 61 (1st Cir. 2022) (Selya, J.); and Mesnard v. Campagnolo, 47 Ariz. Cases Dig. 21, 489 P.3d 1184 (2021).