Case No. CV 05-6586 R(MANx).
November 6, 2005
ORDER GRANTING MOTION TO DISQUALIFY DISTRICT JUDGE
On October 17, 2005, counsel for plaintiff moved to disqualify the district judge randomly assigned to preside over this case. In support of the motion, counsel filed a sworn declaration. Defendant has opposed the motion. The motion was randomly assigned to me, pursuant to General Order 05-06. I GRANT the motion to disqualify the district judge, because — and only because — as a result of developments occurring after this lawsuit was filed, a reasonable person might reasonably question the ability of the trial judge to discharge his duties impartially. I do not find (and plaintiff's counsel does not even contend) that the trial judge is actually biased. A. FACTS
The suit was filed on September 7, 2005.
All of the facts recited in this Order are set forth in the Judicial Council's September 29, 2005 decision discussed herein or in plaintiff's counsel's unrefuted declaration.
Counsel for plaintiff is married to a judge who sits on the Court of Appeals for the Ninth Circuit ("the Judge-Spouse"). The district judge assigned to this case knows of this marital relationship and has interacted with both spouses at various events. The Judge-Spouse also sits on the Judicial Council of the Ninth Circuit, which has authority to review any ruling issued by the Chief Judge of the Ninth Circuit on a misconduct complaint filed against a district judge. In 2003 an attorney filed such a complaint against the district judge assigned to this case. The Chief Judge dismissed that complaint. Just recently — on September 29, 2005 — the Ninth Circuit Judicial Council upheld that dismissal. In re Complaint of Judicial Misconduct, ___ F.3d ___, 2005 WL 2417648 (9th Cir. 2005). The Judge-Spouse filed a dissenting opinion in which, among other things, he stated,
I believe the judge who is the subject of the complaint in this case [ i.e., the district judge here] has committed serious misconduct by abusing his judicial power. . . . Id. at *4.
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[The response of the district judge] is patently absurd. Id. at *14.
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The transgression here . . . was particularly egregious and protracted, and . . . discipline must be imposed consisting of nothing less than a public reprimand and an Order that the district judge compensate [a party involved in the underlying action] for the damage it suffered as a result of the judge's unlawful injunction. Id. at *17.
Thereafter, the attorney-complainant requested a review of the Judicial Council's September 29, 2005 decision and also filed yet another misconduct complaint against the district judge, arising out of the same alleged facts and circumstances. Both such developments could again result in an appeal to the Judicial Council. In that event, the Judge-Spouse would again sit in judgment about the alleged conduct of the very judge assigned to preside over this case, in which his spouse serves as counsel. Moreover, in this case plaintiff's counsel will be requesting the district judge to award attorney's fees to her. The amount awarded pursuant to such a request would have a direct financial impact on the Judge-Spouse.
B. ANALYSIS. 28 U.S.C. § 455(a) (under which this motion was brought) and the Code of Conduct for United States Judges contain the following applicable provisions.
Any judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.Code of Conduct for United States Judges, 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.
Courts often apply these pronouncements broadly, because "[i]t is a general rule that the appearance of partiality is as dangerous as the fact of it." United States v. Conforte, 624 F.2d 869, 881 (9th Cir.), cert. denied, 449 U.S. 1012 (1980). "Quite simply and quite universally, recusal [is] required whenever `impartiality might reasonably be questioned,'" even in the absence of actual bias or prejudice. Liteky v. United States, 510 U.S. 540, 548 (1994). As stated in United States v. Antar, 53 F.3d 568, 576 (3d. Cir. 1995), "If there is an appearance of partiality, that ends the matter."
It is true that in this unusual situation there are factors that are inconsistent with an appearance of partiality on the part of the district judge. Thus, it was the Judge-Spouse, not plaintiff's counsel and not plaintiff herself, who uttered the extremely critical comments about the district judge. Surely, neither of the spouses in question would accept the proposition that merely because of their marriage he or she is responsible for, much less bound by, the other's remarks. The experienced district judge here understands that. Moreover, the district judge has, so far as I am aware, neither said anything about, nor taken any action to counter, the Judge-Spouse's dissenting opinion. Nor, as noted above, does plaintiff's counsel even suggest that the district judge has displayed any actual bias in this case.
The actual personal bias requiring disqualification under 28 U.S.C. § 455(b)(1) is bias concerning a party. The Ninth Circuit has noted that "under specific circumstances [a judge's] bias against an attorney can reasonably be imputed to [bias against] a party." United States v. Jacobs, 855 F.2d 652, 656 n. 2 (9th Cir. 1988).
So what, then, warrants recusal? Simply this: realistically viewed, both parties to this case are now forced to wonder — reasonably — what impact (if any) the Judge-Spouse's dissenting opinion might have on the district judge's conduct or rulings. A reasonable person would expect any person in this district judge's position to feel aggrieved by the Judge-Spouse's forceful dissent, even though (and perhaps especially because) a majority of the judges on the Judicial Council declined to impose sanctions for the alleged misconduct and indeed approved dismissal of the misconduct complaint. Thus, it is reasonable to assume that the district judge is aggrieved by the Judge-Spouse's dissenting opinion. Although the district judge could well be capable of ignoring or overcoming any such resentment, if he ruled in favor of plaintiff, defendant and its counsel might reasonably wonder whether the district judge was influenced by the humanly understandable tendency to "bend over backwards to prove he lacked favoritism. . . ." United States v. Kelly, 888 F.2d 732, 738 (11th Cir. 1989). In short, the district judge now is subject to continuous and heightened scrutiny resulting from his being placed in a position that casts doubt on his ability to be impartial.
In United States v. Anderson, 160 F.3d 231 (5th Cir. 1998), a district judge denied a motion by a criminal defendant to recuse himself after the defendant's attorney had testified against the judge in a disciplinary proceeding before the Fifth Circuit's Judicial Council. The Fifth Circuit Court of Appeals overturned the district judge's ruling and ordered that he be recused. The Court noted,
"In light of the specific facts of this case we hold that the [sic] Judge McBryde abused his discretion and reversibly erred in failing to recuse himself from Anderson's case. It is clear that a reasonable person, when apprised of the relevant circumstances that surround this case, would harbor doubts about Judge McBryde's impartiality. The average person when viewing this specific situation, would question Judge McBryde's ability to be impartial in a case involving an attorney who has testified adversely against Judge McBryde in a Judicial Council proceeding. . . . This Court recognizes that it is essential to avoid even the appearance of impropriety because it is as important in developing the public confidence in our judicial system as avoiding the impropriety itself. [United States v.] Jordan, 49 F.3d 152, 155-56."Id. at 234.
In Jordan, the Court noted that animosity between a close friend of the judge and a party in a case before that judge "creates a section 455 appearance" that requires recusal. Id.
The Court has reviewed the cases defendant cited in its opposition papers and finds them inapposite, for the reasons stated in plaintiff's reply. Plaintiff is on solid ground in stressing that the likely pendency of yet further litigation involving the newly-filed misconduct claim places the district judge in the untenable position described above.
IT IS SO ORDERED.