Opinion
No. 11-05-14071 MS, Adv. No. 05-1149 M.
February 13, 2006
James R. Jurgens, Santa Fe, NM, Attorney for Plaintiff.
Martin S. Friedlander, Esq. Defendant pro se, Los Angeles, CA.
Chris W. Pierce, Albuquerque, NM, Attorney for Debtor.
Summit Investment Company, LLC, Attention: Jeffrey W. Potter Santa Fe, NM.
Alice N. Page, Albuquerque, NM. U.S. Trustee.
Eric Sommer, Esq., Attorney for French French Santa Fe, NM.
Legal Defense and Maintenance Trust c/o Mariana Danilovic, Trustee. Malibu, CA.
Kitty Miller, Santa Fe, NM.
ORDER DENYING MARTIN S. FRIEDLANDER'S REQUEST FOR RECUSAL OF JUDGE
THIS MATTER is before the Court on Martin S. Friedlander's Request for Recusal of Judge (the "Request") filed on February 3, 2006. Having reviewed the Request and the applicable law, the Court denies the Request and finds:
1. Martin S. Friedlander ("Friedlander") is a creditor in this bankruptcy proceeding and a party in this adversary proceeding.
2. Friedlander states that as disclosed by the Court at a status conference in the bankruptcy proceeding, a former law clerk of the Court is the daughter of Richard P. Cook ("Cook"), who is a creditor in the bankruptcy proceeding and a party in another adversary proceeding related to this bankruptcy proceeding.
3. Cook is not a party to this adversary proceeding.
Discussion
Recusal is governed by 28 U.S.C. § 455, which states in relevant part:
§ 455. Disqualification of justice, judge, or magistrate judge
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
. . .
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . .
28 U.S.C. § 455(a) and (b)(1).
Recusal under § 455 is warranted where "a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). "[R]ecusal is necessary if there is evidence of actual bias . . ." Frates v. Weinshienk, 882 F.2d 1502, 1504 (10th Cir. 1989). Involvement of a former law clerk in a proceeding, such as counsel for a party, is not sufficient to require recusal of a judge. See In re Cooke, 160 B.R. 701, 707 (Bankr. D. Conn. 1993) (recusal not necessary where former law clerk represented a party in a case); and Jorgensen v. Cassiday, 320 F.3d 906, 912 (N. Mariana Islands 2003) (recusal not warranted where one of the parties was a former law clerk of presiding judge). The relationship between Cook and this Court is even more distant than those described in Jorgensen and In re Cooke. Moreover, while the former law clerk is related to a party, she is not herself a party. The Court finds that recusal is not appropriate. Cook is not a party to this adversary proceeding and even though he is a party in the bankruptcy proceeding, the relationship between the Court and Cook through Cook's daughter is too tenuous to cause a reasonable doubt as to the Court's impartiality. Friedlander has presented no evidence supporting a finding of bias or showing that the Court's impartiality might reasonably be questioned.
Friedlander argues that the Court may not rule on any other matters in this adversary proceeding until it has ruled on the Request. However, Friedlander is referring to a requirement from a statute that only applies to District Court judges. See 28 U.S.C. § 144 (requiring that a presiding judge proceed no further in a proceeding until another judge rules on the sufficiency of the affidavit of bias); Pilla v. American Bar Ass'n, 542 F.2d 56, 58 (Ct.App.Minn. 1976) ("Section 144 is limited in application to proceedings in a district court.").
THEREFORE, IT IS ORDERED that the Request is DENIED.