This is the next in a series of the Guest Blogs on BRHP. The opinions expressed in it are of Susan Foster herself (photo). Publication of these opinions in BRHP does not imply that BRHP automatically agrees with or endorses these opinions. Publication of this, and other Guest Blogs, is an attempt to start an open debate and free exchange of opinions on RF and health.
WILL A JUDGE’S FAILURE TO RECUSE
SILENCE BERKELEY’S “RIGHT TO KNOW”?
The long battle over cell phone consumer labels, with a hidden twist of legal super heroes and questions about a Ninth Circuit Court judge’s failure to recuse herself.
A battle over free speech in Berkeley, California has pitted the city of Berkeley against the mighty telecommunications trade group, CTIA – The Wireless Association. Berkeley stands on the First Amendment argument they have a right to inform consumers of certain precautions the FCC already requires in the back of cell phone user’s manuals.
A verdict is expected shortly from the Ninth Circuit Court of Appeals, and proponents of Berkeley’s Right to Know consumer notices are growing increasingly concerned about Judge Michelle T. Friedland’s circuitous connection to the CTIA. Supporters of the Right to Know ordinance worry the judge’s husband, Dan Kelly, has links to four members of the CTIA that could jeopardize Berkeley’s fight for the right to speak freely.
Berkeley’s City Council has fought for six years for the right to inform consumers in Berkeley about cell phone usage safety information. Until Berkeley’s unanimous passage of the Right to Know ordinance on May 12, 2015, this information about keeping distance between the cell phone and the body had been hidden in small print in owner’s manuals, or deep within the phone.
The passage of this consumer notice in easy to understand language triggered a forceful response from the CTIA which has threatened legal action against every city and state over the past seven years that has attempted to pass similar right to know legislation.
In the CTIA’s corner is former solicitor general Theodore Olson, the man widely credited with helping George W. Bush win the White House.
Berkeley’s efforts to proceed with passage of the ordinance were stalled until 2014 when Harvard Law professor and constitutional scholar Lawrence Lessig agreed to help the city fight for its First Amendment rights, vowing to take Berkeley’s case, pro bono, all the way to the Supreme Court if necessary.
Initially the CTIA sought an injunction in district court to prevent the Cell Phone Right to Know notices from being displayed. That injunction was denied on January 27, 2016 by Judge Edward Chen, allowing the law to be implemented.
The CTIA then appealed to the Ninth Circuit Court. During the September 13, 2016 hearing before the three-judge panel, Berkeley supporters felt Judge Michelle Friedland displayed a bias toward the CTIA that was, at best, thinly disguised.
It was discovered that Judge Friedland’s husband, Daniel Kelly, is a senior software engineer with Tarana Wireless, Inc., having been with the Silicon Valley startup from its inception in 2011. Tarana Wireless specializes in a critical part of the infrastructure that allows 5G RF radiation to travel the last mile of a massive infrastructure network. On June 20, 2016 outgoing FCC Chairman Tom Wheeler announced at the Washington Press Club in Washington, D.C. that 5G “redefines network connectivity for years to come,” and will “generate tens of billions of dollars in economic activity.” In short, 5G is a moneymaker.
Financial disclosure documents filed by Judge Friedland in 2014 and 2015 were recently obtained by this reporter from the U.S. Courts in Washington, D.C. These documents confirmed the judge’s husband, Daniel Kelly, receives a salary from Tarana Wireless, Inc.
Further investigation has revealed AT&T as one of Tarana Wireless, Inc.’s three major funders. AT&T is a member of the CTIA. Since Dan Kelly’s salary is paid for by Tarana, and because AT&T is one of the top three financiers of Tarana Wireless, it is more than theoretical to presume AT&T is paying for at least a portion of Dan Kelly’s salary.
Another member of the CTIA, Nokia, is named by Tarana Wireless as a global partner.
Two other members of the CTIA, Ericsson and Sony Mobile, are linked to Tarana Wireless through a senior advisor, Dr. Jan Uddenfeldt, who also sits on Tarana Wireless’s Board of Directors.
According to federal law and the Code of Conduct for federal judges, a financial interest by the judge or his or her spouse to a litigant is grounds for recusal.
Title 28 U.S. Code § 455 defines “financial interest” as “ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party.”
Judge Friedland’s husband, Daniel Kelly, has an active role as a software designer of Tarana Wireless’s products. He is directly involved in products that will make money for two key CTIA members: AT&T and Nokia. Neither of those companies stood before Judge Friedland on September 13, 2016 in the case of CTIA v. City of Berkley. Yet the trade association that represents AT&T and Nokia did, and therein lies the potential conflict for Judge Michelle T. Friedland.
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Susan, it is your duty as a loyal citizen to share your groundbreaking news with the proper authorities – so that the willful misconduct of this judge can be dealt with. Send your evidence to the following address – I’m sure it will get the attention it deserves.
JUDICIAL COUNCIL OF CALIFORNIA
455 Golden Gate Avenue
San Francisco, CA
Tom, with respect to your implied suggestion Berkeley’s legal team should have raised an objection to either Judge Friedland herself or objected to her potential for bias, I believe I am the only person to have successfully obtained the judge’s financial disclosure documents from the U.S. Courts in Washington, D.C. I don’t see how the legal team would have known of Judge Friedland’s husband’s (Dan Kelly) employment with Tarana Wireless prior to or during the Sept 13, 2016 hearing. Legal expertise does not mean concealed bias on the part of a judge is stripped away for the attorneys to see and know at a factual level.
I am not clear on what point you are trying to make with your parable. The matter at hand is whether Judge Friedland’s spouse “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;” [See Canon quoted in previous response]. Dariusz offered a practical explanation for this sort of bias which federal law and Code of Conduct for federal judges attempts to guard against: “If your wife would need to make a decision that would affect business of your employer, what would she do? Remember that this decision could/would affect your career opportunities with the company and life quality of yours and your wife. Would you fully trust in decision of the person having such dilemma – if deciding against my husband’s employer the work and life of husband will be affected… ”
Further, if Dan Kelly was given stock options in Tarana Wireless when he joined in 2011, as is the case with many people in key positions with startup companies, there is a “bright line” rule which mandates recusal. The judge cannot, even through her spouse, have any financial ownership in the litigant. This litigant, the CTIA, is made up of members, and the judge has two member connections — AT&T and Nokia — which are very direct, and two lesser connections as a Board member of Tarana is a current adviser to Ericsson and Sony Mobile. The judge’s financial disclosure records lacked transparency in her investment, retirement and trust accounts. We do not know the contents of her accounts and/or her husband, Dan Kelly’s. If the judge had delineated the contents rather than simply numbering the accounts, we would be better able to determine if Dan Kelly was given stock options in Tarana Wireless. That would have been grounds for immediate recusal by the judge. Yet stock ownership is not the only reason for recusal, as mentioned previously.
If I am understanding the intent of your parable correctly, it really doesn’t matter what Tarana Wireless produces and sells. They do not have to make cell phones sold in retail stores for the judge to have bias. To reiterate, Judge Friendland’s husband’s salary is paid — at least in part — by a member of the CTIA, the litigant Judge Friedland is judging. This is the sort of possible bias federal law was designed to guard against.
I have a couple of thoughts on that question. Firstly, because Berkeley has first class legal representation, I expect that they would have of raised an objection if there was sufficient reason to question judicial conduct.
Secondly, consider this parable: You are one of 3 judges hearing a case where the City passed an ordinance which is being challenged by a nonprofit membership organization (CTIA). The organization has numerous members including a bank (AT&T) – who lent money to your husband’s employer. Another member of the nonprofit organization is an OEM distributor (Nokia) for the company (Tarana Wireless) where your husband is a salaried employee. Tarana makes infrastructure component devices for Original Equipment Manufacturers and wireless carriers, and have no retail consumer products. And, they have no involvement with retail point of purchase situations.
Do keep in mind that the argument is about nothing more than the City’s right to force retailers to display a point of purchase notice that the nonprofit organization does not agree with. It is not about your own anti-wireless activism and zealous desire to obstruct the sale and use of wireless devices.
You don’t give up easily, do you, Tom? I did not skirt your question. Please reread my response to you carefully. I said you were referencing a Facebook comment I made. I explained the circumstances under which I made the comment — 12 days after the hearing. This was a Facebook assertion at the time, based on a press release about Judge Friedland’s husband’s position at Tarana Wireless, as well as information contained in Dariusz’s blog. Stock options were part of the early discussions regarding the judge’s possible conflicts, and stock options still cannot be ruled out for reasons I explain in another response to another question from you. My three-month investigation — including a failed attempt to obtain Judge Friedland’s Conflict of Interest statement and a successful attempt to secure her financial disclosure records — were the foundation upon which I wrote my article, as well as additional research on Tarana Wireless. The article is fact-based and does not contain speculation or conjecture. Let me ask you a question: Do you think Judge Friedland, given the connection to members of the CTIA through her husband’s employment and salary source, should have recused herself? If not, why not? Please look carefully at the Canon I site in one of my responses.
Susan, You skirted the question of your September 25 unqualified assertion: “The judge’s husband stands to make millions from the 5G build-out.” These words are not found in Dariusz’s blog post which you cited. Did you copy it from somewhere else – or, did you make it up?
Tom, you are now referencing a Facebook comment I made while reposting Dariusz Leszcznyski’s blog from less than 10 days after the Sept 13th Ninth Circuit hearing. I did not assert in this article that Dan Kelly, Judge Friedland’s husband, stands to make millions from the 5G buildout because I could not confirm the speculation contained in a widely circulated press release that Mr. Kelly may have been given stock options with Tarana Wireless when he joined the company. I’m glad you asked this question, because it gives me the opportunity to state that Judge Friedland was less than transparent in both her retirement and investment accounts, as well as a trust. She numbered her accounts, e.g. “Investment Account #1” — which tells us nothing about the nature of the contents. Since I could not confirm the holding of stock options, which would theoretically make Dan Kelly and Judge Friedland a great deal of money if the Tarana Wireless product is widely utilized in the 5G buildout and if in fact they do hold stock options in this well-funded and unique company, I could not speculate specifically in this article. The lack of transparency in the judge’s financial disclosure records invites more questions than answers.
Susan, You say – “I never speculated about what Dan Kelly or Tarana Wireless would make in the 5G build out”
But, you did! Your September 25 FB comment to Ellie Marks reads – “See Dariusz Leszinczynski’s blog, and read about judicial bias and potential misconduct by Judge Friedland on the Berkeley right-to know cell phone labels. The judge’s husband stands to make millions from the 5G build-out, yet the judge thinks she can be impartial on this groundbreaking case?”
Did you fabricate this false claim yourself, or just carelessly repeat someone else’s smear?
Tom, in response to your two follow-up questions:
You asked: “As this information has been available for more than 4 months, why has Berkeley/Lessig not already made a formal objection – do they not share your opinion about the obvious Conflict of Interest?”
My Response: This information has not been available to me for the past four months. It took several weeks to be denied by the Ninth Circuit on my request for Judge Friedland’s Conflict of Interest statement, and two months to obtain her financial disclosure records through the U.S. Courts in Washington, D.C. I already quoted former Berkeley Councilmember Max Anderson (in response to another question) who was a strong supporter of right-to-know notices for the past six years. He expressed outrage at the possible conflict on Judge Friedland’s part. As to the Berkeley legal team, they declined comment. The CTIA also declined to comment as I was researching my article.
You asked: “What evidence do you have for your claim that ‘The judge’s husband stands to make millions from the 5G build-out…’ – and what does the 5G build-out have to do with the constitutional issue being argued in this case?”
My Response: In the article I quoted former FCC Chairman Tom Wheeler as saying 5G would make billions, not millions. 5G is a huge moneymaker. I never speculated about what Dan Kelly or Tarana Wireless would make in the 5G build out. I am aware their product helps the 5G signal penetrate homes and businesses in that last mile of connection. If Tarana’s product is highly utilized, that could prove lucrative for financier AT&T and Tarana’s self-described global partner, Nokia, both members of litigant CTIA. Potential profit is the moral and legal issue here. See the Canon I quoted in response to a previous question. “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned including but not limited to instances” … “including the judge’s spouse” … “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding”.
Susan – Thank you for the prompt response. I have 2 follow-up questions: As this information has been available for more than 4 months, why has Berkeley/Lessig not already made a formal objection – do they not share your opinion about the obvious Conflict of Interest?
Secondly, what evidence do you have for your claim that “The judge’s husband stands to make millions from the 5G build-out…” – and what does the 5G build-out have to do with the constitutional issue being argued in this case?
Tom, an applicable Canon from the Code of Conduct for US Judges is Canon 3 (C) Disqualification. (1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (c) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be affected substantially by the outcome of the proceeding;
I do not know it UK precedents are on the US statute book but the Leather Tanners precedent comes to mind as clear and unambiguous.
When the tanners started polluting the river they were using, the villagers down stream went to the Sheriff and asked him to stop it. The rule that emerged from that decision is famous here:
You have freedom to do as you please, up to the point where one man’s meat becomes another man’s poison, and beyond that point no further.
In plain English; you have freedom to do as you please up to the point where your activities harm others and beyond that point no further.
It is not the issue how such harm is caused, only that it is caused, therefore it must stop.
As this precedent is 800 years old, tried and tested many times over the centuries, it cannot be challenged, it is absolutely clear.
US common law is based on the UK system so I would have thought you have such a remedy.
Not too many emails please I am busy lobbying.
Tom, think this way. If your wife would need to make a decision that would affect business of your employer, what would she do? Remember that this decision could/would affect your career opportunities with the company and life quality of yours and your wife. Would you fully trust in decision of the person having such dilemma – if deciding against my husband’s employer the work and life of husband will be affected… No any “4 degrees” of separation. Family, plain and simple…
With 4 degrees of separation between them, it is difficult to see how the judge could be compromised by partisanship, or have any indebtedness to CTIA. Can someone please explain which Canon of the Model Code of Judicial Conduct the judge is alleged to be violating in this case?
I’ve a picture from an Arizona store taken recently, “Wifi in Use” which is a warning of sorts – for some. For others an invitation. Not a word about safety of course.
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Sharon, I am getting a growing sense the people of Berkeley do feel betrayed. I spoke with retired councilmember Max Anderson. Anderson championed the right-to-know consumer notices for six years. When informed of Judge Friedland’s husband’s links to the CTIA members, particularly AT&T and Nokia, Anderson said it was, “Appalling to learn that a judge in this case may have possible wireless industry conflicts of interest.”
Holly, first of all, thank you. Many people contributed their knowledge. As to the financials, it is a difficult process. Federal judges financial records are filed with the U.S. Courts in Washington D.C. The whole process took several months. Judges have 10 days to redact before the financials are released. Judge Friedland did not redact any information, though it was impossible to tell what her investment and retirement accounts held as they were numbered. Numbers tell us nothing and do not further public trust. This is a time in our country when conflicts of interest are daily news. It is troubling to see possible conflicts in the judiciary.
Do we not also have a “RIGHT TO KNOW” about a conflict of interest within the judicial system when the public’s health rest with this judge’s decision? She should step aside!
If I lived in Berkeley I would feel betrayed by this judge. The industry has long tentacles as has been shown in other places where attempts have been made to inform the public about what is in the manual, nothing more. Should the court decide against Berkeley, is there an appeal process in place to address this apparent conflict of interest?
A weakness in angloworld jurisprudence seems to regard the aspect of reasonableness, in that with anything even deleterious to the public that has persisted and been acquiesced in long enough, any injury therefrom might be judged to have been not unreasonably inflicted, necessitating other than legal remedy or recourse.
Rights rubrics, although sadly reduced to individual actions, are a corrective of sorts. But this “right to know” thing made so much of by some advocates, is so lame as to have some of us consider it actually playing into perpetrators’ hands. How upset can they really be? Such a lame focus for advocacy, and political and legal efforts, should in fact quietly be pleasing to industry and abettors, their aggressive oppositional actions being quite misinterpretable.
Good of Susan to find and share what she has found. But part of the project will have been to indeed implicate as wide a swath of society as possible, so if they are not caught by direct or near direct conflict of interest, they will have been drawn into that circle of (un)reasonableness. Spread around legal business representing industry interests, implicate everyone through investments, some of many means.
What a sorry and sick juncture we are at indeed. As a very involved advocate for many years on these topics – but keeping away from very misguided focus on the devices, as others largely fail to do – it has come to people’s being acculturated to not really wanting to know. What use a right to know about something redundant and largely irrelevant, when about things more basic almost everyone turns their attention away?
It appears to have to reach a point of overwhelming sickness and breakdown, translated into dollars or whatever other monetary means, before any eventual wider public awareness translates into real sane, not lame, public policy. But as things break down, and something closer to truth about what has been going on reaches more and more of the mainstream, watch for aggressive actions tending to war, which serve to distract from public and environmental health further still.
Great reporting. This is truly SHOCKING! I cannot believe the judge did not recuse herself. May I ask how difficult it was to get her financials?
The Ninth Circuit Clerk of the Court had no comment. They refused to turn over Judge Friedland’s Conflict of Interest statement during my preliminary investigation, which is standard for this court. I then went thru the process of requesting the judge’s financial disclosure records with the US Courts in Washington, DC. The case is pending so the court can have no comment. As to the second part of your question, the release of this article through Dariusz is the first the general public has solid knowledge of the financial disclosure records. Many observers during the Sept 13, 2016 hearing sensed bias, and others found that Judge Friedland’s husband worked for Tarana Wireless. My investigation confirmed Dan Kelly receives a salary from Tarana, and we know AT&T, a member of the CTIA, is one of Tarana’s primary funders. Thus the pot appears tainted. Nokia, also a member of the CTIA, is a global partner. I think the public will be surprised as the depth of the opportunity for bias, though the judge’s motives remain unknown.
Susan, what kind of response have you gotten from the courts about this issue thus far, and what kind of support have you garnered from the general public in Berkeley in challenging the judge’s involvement in the case?
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