Opinion
NO. CIV. S-04-1358 LKK/GGH.
March 27, 2007
ORDER
Plaintiffs James P. Defazio, Kathleen Ellis, Brenda Dimaro, Hallie Lavick, and Michael McNair (plaintiffs), brought suit against defendants Hollister Incorporated, the Firm of John Dickinson Schneider, Inc., the Hollister Employee Share Ownership Trust, Samuel Brilliant, James A. Karlovsky, James J. McCormack and Richard T. Zwirner (defendants) alleging various violations under the Employee Retirement Income Security Act of 1974 ("ERISA"; 29 U.S.C. § 1001 et seq.). Pending before the court is defendants' motion to vacate Judge David Levi's January 9, 2007 order reassigning the DeFazio case back to this court.
I. Background
The court briefly sets forth the background facts relevant to the recusal order and subsequent reassignment of the pending case. This court initially disqualified itself when it learned that the law firm of Porter, Scott, Weiberg Delehant (attorneys for plaintiff Kathleen Ellis in the above captioned case) was representing the Sacramento Public Defenders' Office in a Section 1983 case. See Order of Recusal, September 12, 2006. The judge's wife, a public defender for the County, was a named defendant. The case, Ware v. Sacramento County et. al., 06-00913 RRB, has since been dismissed and the time for appeal has expired. Soon thereafter, the pending case was reassigned to this court. See Reassignment Order, January 9, 2007. Defendants' now seek to vacate the reassignment order.II. Standard
It is well established that in deciding whether recusal is appropriate under § 455(a), "what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever `impartiality might reasonably be questioned.'" Liteky v. United States, 510 U.S. 540, 548 (1994) (internal citations omitted). Under Section 455(a), recusal is required "`if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge' of his interest or bias in the case." Sao Paulo of Fed. Repub. v. American Tobacco Co., 535 U.S. 229, 232-33 (2002) (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988)). In general, a judge, "once having disqualified himself for cause, on his own motion," should not subsequently resume full control of the proceeding. Stringer v. United States, 233 F.2d 947, 948 (9th Cir. 1956).III. Analysis
Defendants' motion to vacate is premised on the general rule that a judge should not resume control of a case once he has recused himself. For the reasons set forth below, defendants' motion will be granted.
Whether it should be granted is quite another matter.
In Stringer v. United States, the trial court judge disqualified himself for an unknown reason and then some time later, the case was reassigned to him. The Ninth Circuit found this to be an incurable error: "In our judgment, once having disqualified himself for cause, on his own motion, it was incurable error for the district judge to resume full control and try the case." 233 F.2d at 948 (9th Cir. 1956). In a footnote, however, the Stringer court also stated that,
[t]here may be other instances where a judge disqualifying himself could resume direction or even decide the issues. For instance, he might be mistaken as to the identity of a party. But the reason for resuming control should be more than a second reflection on the same facts which the trial judge considered originally disqualified him.Id. at 948, n. 2.
Defendants argue that the court should follow Stringer's holding and not retain control of the case. Plaintiffs, on the other hand, rely on the Stringer footnote for support and contend that resuming control is proper because the conflict of interest no longer exists. While plaintiffs present a compelling argument, the court concludes that recusal is the more prudent course of action.
The First and Fifth Circuits also addressed the issue of whether a judge, once recused, should resume control of a case. Citing Stringer, the First Circuit held that a district court judge should not have retaken control of a case after having recused herself. El Fenix de Puerto Rico v. The M/Y Johanny, 36 F.3d 136, 141 (1st Cir. 1994). The court went on to state that, while "it may be arguable that this reasoning does not control the distinct question whether an improvident recusal order may be revisited by the recused judge absent a proper waiver under subsection 455(e), [the court was] aware of no such authority for such a position." Id. at 141-42.
The Fifth Circuit reached a similar conclusion in Doddy v. Oxy U.S.A., Inc., in which the judge recused herself and then determined that she need not have done so. 101 F.3d 448 (5th Cir. 1996). In concluding that the judge should not resume control of the case, Doddy addressed the Stringer footnote: "[The court] doubt[s] the value of this footnote. First, it cites no authority for its conclusion. Indeed, it seems to conflict with the overwhelming body of case law that suggests that judges can do nothing after recusal other than transfer their case to another judge." Id. at 458. Clearly, the First and Fifth Circuits followStringer's holding, rather than the possibility left open in its footnote.
While not binding on this court, other sources provide additional guidance. First, various state courts have determined that once a judge recuses himself, it is improper for the judge to resume control of the case. See, e.g., Payton v. State, 937 So.2d 462, 465 (Miss.App. 2006) ("The State has cited to [the court] no authority which contradicts the proposition that, once recused, a judge should take no further action in the case.");Margulies v. Margulies, 528 So.2d 957, 960 (Fla.App. 3 Dist. 1988) (citing Stringer to support its contention that, "in the few cases regarding this issue . . ., the rule has been followed unwaveringly").
Secondary authority also provides support for defendants' position. See, e.g., 13A Charles Alan Wright Arthur R. Miller,Federal Practice and Procedure § 3550 (3rd Ed. 2003) ("If the judge concludes that he is disqualified he should take no other action in the case except the necessary ministerial acts to have the case transferred to another judge.")
All the above conflicts with a judge's duty to decide the case properly before the judge, and not to unreasonably burden his colleagues.
In light of the guiding cases on point, it seems that once a judge recuses himself, he should not resume control of the case. In the case at bar, the court's initial reason for disqualification is no longer present. However, in an abundance of caution, this court will follow the prudent course of action and not resume control of the case.
IV. Conclusion
The motion to vacate is GRANTED and the matter is REFERRED to the Chief Judge for reassignment.
IT IS SO ORDERED.