Opinion
No. 01C-01-039
Submitted: September 5, 2001
Decided: September 14, 2001
Upon Defendant's Motion to Recuse the Judges of the Superior Court. Denied.
Michael J. Rich, Esquire and Michael W. Tupman, Esquire, Department of Justice, Dover, Delaware, attorneys for Plaintiffs.
Richard G. Elliott, Jr., Esquire, Richards, Layton Finger, Wilmington, Delaware, attorneys for the Defendant.
O R D E R
Upon consideration of the Defendant's Motion to Recuse Judges of the Superior Court from Hearing the Above-Captioned Action, the Plaintiffs' (State of Delaware's) response to the same, as well as correspondence to this Court from both parties, and oral arguments of the parties, it appears that:
Plaintiffs, the Board of Managers of the Delaware Criminal Justice Information System ("Plaintiffs" or "Board"), brought this present action for declaratory judgment against the Gannett Co., t/a The News Journal ("Defendant" or "The News Journal"), to determine whether the Board must release fictional individual identifier numbers to The News Journal from the Delaware Criminal Justice Information System ("DELJIS") database, which is managed by the Board. Criminal penalties may attach to the Board if it wrongly releases DELJIS information.
At the time the Plaintiffs filed their complaint for declaratory judgment, they also filed a motion to certify a question of law as to whether or not the three data fields in dispute are classified as public records under Delaware's FOIA statute ( 29 Del. C. § 10001 et. seq.) or criminal history information under ( 11 Del. C. § 8501 et. seq.). This question was certified to the Delaware Supreme Court and refused.
In 1995 or 1996, The News Journal requested, and was given, access to DELJIS data under the Freedom of Information Act ("FOIA"). Fictitious individual identifier numbers were released which allowed the tracking of individual criminal histories over time.
In 1997, The News Journal, under FOIA, requested (and was denied) an additional 300 fields of information from DELJIS. The Board, at its meeting on December 4, 1997, reevaluated its position and determined that it was prevented under 11 Del. C. § 8501 et. seq. from providing criminal history information in any form.
Upon denial of its 1997 FOIA request, The News Journal filed suit in Superior Court for New Castle County, on March 31, 1998, and sought the release of all information denied by DELJIS in 1997. In its lawsuit, The News Journal stated the purpose of the data was for meaningful "`research, evaluative or statistical activities.'"
Complaint of Plaintiff (Defendant in this case) at 4, 7, Gannett Co. v. Delaware Criminal Justice Information System, Del. Super., C.A. No. 98C-03-305, 1999 WL 743987. Alford, J. (Sep. 8, 1999) (Mem. Op.). The News Journal reasoned that due to the large volume of cases in the criminal justice system, the denial of computerized database information resulted in a denial of common law, as well as First and Fourteenth Amendment rights, because the news media was denied access to information about the performance of the criminal justice system in a reasonably digestible, meaningful format.
The 1998 complaint also asserted that The News Journal wanted unique identifier numbers "to track cases through the different sets of [DELJIS] data," and to analyze "the judicial system in the performance of their duties . . . ." Moreover, The News Journal claimed that "[s]ince the [Board] ha[d] now reversed their position concerning the release of statistical data, it may be assumed that the data raises issues of performance concerning those involved in the administration of justice."
Id. at 5-6 (emphasis added).
Id. at 8 (emphasis added).
Id. at 7 (emphasis added).
The Superior Court determined that FOIA permitted access by The News Journal to some of the requested information; however, certain requests constituted "invasions of personal privacy." The Court did not decide which particular data fields were accessible and which were unwarranted privacy invasions.
Gannett Co. v. Delaware Criminal Justice Information System, Del. Super., C.A. No. 98C-03-305, 1999 WL 743987 at *5-6, Alford, J. (Sept. 8, 1999) (Mem. Op).
After the decision in Gannett Co. v. DELJIS, The News Journal negotiated an agreement with the Board (through the Attorney General's office and Counsel for the Governor's Office) for a large part of the data requested in 1997.
At its meeting on January 25, 2001, the Board agreed to give The News Journal approximately 200 data fields from DELJIS, but reserved ruling with respect to the release of three (3) final data fields until the present declaratory action was resolved. Both parties agree there is no issue of material fact and have filed motions for summary judgment in the case.
The requested identifier numbers are (1) the State Bureau of Investigation ("SBI") number; (2) the Criminal Justice Information System ("CJIS") number and the Defendant Identification Number. Fictitious numbers would be substituted for the real identifier numbers; however, the fictitious numbers relate to an individual's criminal history record precisely as would the real identifier number. This would allow tracking of individual criminal histories. The State has argued that, due to the News Journal's broad access to other court records and non-court databases, these criminal histories could be matched to identifiable, named individuals.
On August 3, 2001, the day The News Journal filed its motion for summary judgment, counsel for Defendant wrote a letter to this Court which stated that after "having reviewed the [Motion for Summary Judgment] Brief which we are filing today, it occurred to us that . . . the Court may be viewed as having an interest in the outcome," and Defendant was "raising this issue" for the first time that day for the Court's informal consideration.
Correspondence to Court from Richard G. Elliott, Jr., Esq., dated August 3, 2001 (emphasis added).
On August 21, 2001, Defendant formally filed its Motion to Recuse Judges of the Superior Court and Plaintiffs have responded. Oral arguments on the motions were heard on September 5, 2001.
ALLEGATIONS OF THE PARTIES
The News Journal asserts that recusal of all Superior Court judges in this case is necessary to avoid the appearance of bias. Defendant states that it "has no information which would suggest that the Court [actually] has any bias or prejudices towards any of the parties to this litigation." Rather, there is an appearance that all Superior Court judges would be biased because the data requested may be linked to judicial performance (e.g. it may show the effect of judicial sentencing on recidivism, and/or allow analysis of how a particular judge sentences repeat offenders). Defendant maintains that this case has national import and, for that reason, "nothing in the record may cast doubt upon the Court's appearance of impartiality."
In contrast, the Board argues that the Defendant has not complied with Delaware law for recusal of all Superior Court judges in this case, and contends that the Defendant has waived any recusal claim it may have had herein.
The Board also argued that Defendant's motion may be denied because Defendant has not followed the proper procedure for recusal of all Superior Court judges; however, at oral argument both parties agreed that this Court could properly respond to Defendant's motion, and present this Court's recommendation to the President Judge, if need be, thus putting the motion in its proper procedural framework.
APPLICABLE LAW
Canon 3(C) of the Delaware Judges' Code of Judicial Conduct provides that judges must be free from personal bias, and must be disqualified in a proceeding in which the judge's impartiality might reasonably be questioned.In interpreting Canon 3(C), Delaware courts engage in a two-part (subjective and objective) analysis to insure against personal bias or the appearance of the same. Examination of this two-prong test reveals that Defendant's motion to recuse must be denied. The first part of the test requires that the court, as a matter of subjective belief, be satisfied that it "is free of bias or prejudice concerning that party." Here, this Court has determined that it is able to adjudicate the issues before it in a disinterested manner with no bias or prejudice toward any of the parties (or with respect to the subject matter of the litigation). Defendant has not presented any evidence to the contrary and, in fact, admits that it has no reason to suggest that subjective bias or prejudice extends from this Court.
Los v. Los, Del. Supr., 595 A.2d 381, 384 (1991).
The second part of the test requires that the Court perform an objective analysis to ensure that there is not an appearance of bias sufficient to cast doubt upon this Court's impartiality. "'[I]n determining whether a judge ha[s] the duty to disqualify him or herself, our focus must be on the reaction of the reasonable person.'" Canon 3(C) "require[s] disqualification of a judge `in any proceeding in which his impartiality might reasonably be questioned.'"
Id. at 384-85; Mother African Union First Colored Methodist Protestant Church v. The Conference of African Union First Colored Methodist Protestant Church, Del. Ch., No. 12055, 1998 WL 892642, Jacobs, V.C. (Dec. 11, 1998) (Mem.Op.).
Stevenson v. State, Del. Supr., ___ A.2d ___, No. 31, 2000, 2001 WL674166, Walsh, J. (May 30, 2001) at *8; see also Jackson v. State, Del. Supr., 684 A.2d 745, 752 (1996) (noting that a reviewing court must be confident that the trial judge performed the subjective test, and will look upon the merits of the objective test); Los, 595 A.2d at 384 (explaining that the reviewing court will look at the merits of the objective test under an abuse of discretion standard).
Stevenson. at *7 (citations omitted).
In support of its argument that there is an objective appearance of bias in this case, The News Journal maintains that analysis of the data it seeks may show the effect of criminal history on judicial sentencing, and may link judicial sentences to criminal recidivism rates. Because the results of their work may be made public, The News Journal believes that Superior Court judges cannot appear unbiased in deciding if the data it seeks is protected under privacy statutes, or releasable to the public under FOIA rules.
This argument overlooks the fact that every judgment pronounced by this Court is already a matter of public record and may be collected by The News Journal from sources other than the DELJIS database. Furthermore, Superior Court judges are appointed to serve a public function in the public eye. They are expected to make reasoned and justified decisions, on the record and the law, without fear of public recrimination.
Of course The News Journal may find DELJIS the most convenient repository of Delaware judicial sentencing data.
The Delaware Supreme Court has refused to require recusal of a judge where the litigant seeking recusal "made no claims concerning the conduct of [the judge] . . . apart from the discharge of [his] official duties in implementing court rules or State law." Los v. Los. Furthermore, it must be noted that Defendant seeks an extraordinary remedy-one that is rarely applied in Delaware. Primarily, recusal of all judges in a Superior Court case has occurred because a currently-sitting judge has a financial interest in the outcome of that case.
See e.g. Gebelein v. Hopkins Trucking, Inc., Del. Super., C.A. No 92C-02-121, 1993 WL543981, Taylor, J. (Dec. 14, 1993) (ORDER); Lee v. State Bd. of Pension Trustees, Del. Supr., 739 A.2d 336, 338 n. 4, n. 10 (1999).
Non-financial "interests," unrelated to judicial conduct, may not require such a drastic recusal measure. For example, in Los v. Los., a party to a Delaware child support action ("Father") filed suit in Federal District Court to invalidate the Delaware Melson Child Support Formula. The Father named the judge, in his Delaware child support case, as a party in the Federal action, then turned around and claimed the appearance of "an insurmountable conflict of interest."
Los, 595 A.2d at 383.
In Los, the Judge was obligated to defend the constitutionality of the very procedures he would use, in Delaware, to decide for or against his adversary in the Federal case. Even so, the Delaware Supreme Court did not find sufficient appearance of bias so as to recuse this judge from overseeing the Father's Delaware case.
See also Mother African Union First Colored Methodist Protestant Church, 1998 WL 892642 at *7 (noting that simply being "one of a legion of named party defendants in [a suit instituted by the plaintiff in the case currently before this judge] . . . without more, is not sufficient to warrant recusal" under the objective test).
No objective appearance of bias has been found where a judge has admitted to having personal political ambitions, and "[t]he highly publicized nature of the Capano trial brought all the participants into the public spotlight . . . ." Capano v. State. The Delaware Supreme Court did not find an objective appearance of bias sufficient to require recusal even though, arguably, the trial's outcome might have created political good will (or ill will-depending on the verdict) towards the judge.
Del. Supr., ___ A.2d ___, Nos. 110 and 149, 1999, 2001 Del. LEXIS 349, Veasey, J.(Aug. 10, 2001) at *200-201 (finding that defendant offered no evidence which "suggest[ed] that the political ambitions of Judge Lee affected his ability to preside impartially over the entire proceedings in this case").
Here there is less objective evidence of the appearance of bias than in Los or Capano. The parties have "made no claims concerning the conduct of [the Superior Court judges] apart from the discharge of their official duties in implementing court rules or State law." This court has been asked to interpret statutory language concerning individual privacy rights. Such interpretive actions do not even rise to the permissible level of defending judicially-created sentencing procedures which will then be used against a party-litigant (such as the defense of the judicially-created Melson child support calculator required of the Judge in Los).
Los, 595 A.2d at 382.
Simply because one of the parties in this case may wish to critique the criminal justice system, along with judicial sentencing patterns, does not disqualify this Court from interpreting the privacy statutes at issue herein.
As stated by Justice Joseph T. Walsh:
Any discussion of the effect of public criticism on judicial independence should not overlook the essential fact that judges are public officers and, under a representative form of government, must ultimately answer to the people for the discharge of their duties. As long as the courts are entrusted with the adjudication of private disputes, the vindication of the criminal laws, and the resolving of interbranch friction, judges will be required to render decisions that are controversial and sometimes unpopular. In the final analysis, judges are part of the `government ` and the constitutional right of citizens to criticize, even inappropriately, the operation of that government is not open to question.
Joseph T. Walsh, Judicial Independence: A Delaware Perspective, 2 Del.L.Rev. 1, 17 (Delaware State Bar Assoc., Wilmington, Del.) (1999).
On the other hand, objective appearance of bias has been found where the circumstances indicated that the trial judge considered the acts of the defendant to be "an attack on the judicial process." In Stevenson, the trial judge obviously had strong feelings regarding the murder of a security guard who had witnessed the defendant's crimes. The judge viewed the murder as an "assassination" and "an attack upon the very foundation of our judicial branch of government." The reviewing court was concerned that the Stevenson judge coupled that viewpoint with a request for the criminal trial of the defendant before defendant was even indicted. The Court felt a reasonable person could question the trial judge's independence because of his combined statements and actions.
Stevenson, 2001 WL 674166 at *10.
Id. at *9.
No evidence has been presented by Defendant showing that all the judges of the Superior Court perceive The News Journal's data request as an attack on the judicial system. In fact, it could be perceived that sentencing data should be published in order to motivate legislative action, one way or the other, on sentencing issues. Nothing has been cited by the Defendant which demonstrates that the Court's appearance in this matter will inhibit the public's confidence in the integrity of the judicial system if this Court acts as the neutral arbiter of the classification of data sought under Delaware's FOIA statute.
For the reasons set forth herein above, the Court does not reach the issue of waiver by Defendant of its recusal claim, and Defendant's Motion to Recuse Judges of the Superior Court from Hearing the Above-Captioned Action is denied. IT IS SO ORDERED.