Opinion
Case No. 2:05CR00051 PGC.
September 21, 2005
ORDER DENYING MOTION TO DISQUALIFY
Mr. D. Bruce Oliver, counsel for defendant Nicholas Mendoza, has filed a motion seeking disqualification of the undersigned judge under 28 U.S.C. § 144 and 28 U.S.C. § 455, alleging bias against him. In particular, Mr. Oliver contends that because the undersigned has referred him to the bar for possible disciplinary action, recusal is required. After examining the relevant authorities, the court concludes that a judge should not recuse merely because he referred an attorney to the bar for possible disciplinary action. Judges are obligated to alert disciplinary authorities to possible unethical conduct by attorneys. Judges do not demonstrate possible bias or prejudice when they discharge that obligation.
FACTUAL BACKGROUND
Mr. Oliver represents numerous clients in criminal and civil cases currently pending before this court. Mr. Oliver's motion in this case relates to actions the court took in Spitler v. Ogden City, a civil case that is unrelated to this matter.Mr. Oliver is counsel for the plaintiff in Spitler. In a period of six months, the defendants in Spitler twice moved for sanctions — including dismissal — because of the plaintiff's repeated failures to cooperate in discovery. The court did not dismiss the case, but sanctioned Mr. Oliver because he admitted he "ha[d] some culpability for the creation of the circumstances at hand." Spitler was not the first time the court observed problems with Mr. Oliver's conduct. Combined with Spitler, these prior proceedings were enough, in the court's judgment, to trigger its obligation under Canon 3(B)(3) of the Code of Conduct for United States Judges to "initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a judge or lawyer." Thus, the court performed a simple docket search of cases in the United States District Court for the District of Utah in which Mr. Oliver acted as counsel. The docket entries in a number of these cases — before the undersigned and other District of Utah judges — revealed what appeared to be numerous possible violations of Mr. Oliver's professional or ethical duties. The court culled these entries into a order that it sealed and sent to the Utah State Bar Office of Professional Conduct and the District of Utah's Disciplinary Panel for further investigation. Because the order is sealed, further description of the type or frequency of those problems is inappropriate.
Spitler v. Ogden City, No. 1:03CV00119 PGC, Order (1) Granting in Part and Denying in Part Defendants' Mot. to Dismiss, and (2) Awarding Attorneys' Fees at 2 (D. Utah Aug. 23, 2005).
Code of Conduct for United States Judges Canon 3(B)(3).
Nearly three weeks after the court sent the sealed order in Spitler to Mr. Oliver and the two investigatory bodies, Mr. Oliver filed this motion to disqualify the undersigned judge in this case, an unrelated criminal matter. Mr. Oliver did not file a memorandum in support of his motion. He included, however, an "Affidavit of Bias of D. Bruce Oliver," in which he describes the reasons he feels the undersigned judge should recuse. The affidavit describes the referral order from Spitler, which Mr. Oliver calls a "witch hunt." It also calls the court's order "spurious research" and claims the undersigned has "become an advocate against" him. The affidavit then cites the court's prior rulings in four of Mr. Oliver's cases as evidence of bias against him. It concludes by stating Mr. Oliver's "belie[f]" that "it is appropriate to set aside all of the ruling[s] made by Judge Cassell in my cases . . ., and to permanently recuse Judge Cassell from presiding on any of my cases now or in the future." The court addresses each contention below.
Aff. of Bias of D. Bruce Oliver, ¶ 4.
Id. ¶ 11.
Id. ¶¶ 15-32.
Id. ¶ 36.
I. RECUSAL UNDER 28 U.S.C. § 144.
Mr. Oliver first seeks to disqualify the undersigned based on 28 U.S.C. § 144. This statute, by its plain language, does not apply here. It provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
28 U.S.C. § 144 (emphasis added).
Tenth Circuit precedent distinguishes "a party" from an attorney. In Hinman v. Rogers, the court said that "[u]nder 28 U.S.C. § 144, an affidavit of bias and prejudice must be timely, sufficient, made by a party, and accompanied by a certificate of good faith of counsel." Even more explicit, the Eighth Circuit has held: "The term `party' as used in this section does not include counsel as such. Antipathy to an attorney is insufficient grounds for disqualification of a judge because it is not indicative of extrajudicial bias against a `party.'"
831 F.2d 937 (10th Cir. 1987).
Id. at 938 (emphasis added).
Gilbert v. City of Little Rock, 722 F.2d 1390, 1398 (8th Cir. 1983) (citations omitted).
In this case, Mr. Oliver is not "a party;" he is counsel. Thus, § 144 limits his role to submitting "a certificate . . . stating that [the party's affidavit] is made in good faith." Because the party defendant in this case — Mr. Mendoza — did not submit an affidavit, Mr. Oliver has nothing to certify. Section 144 thus does not require the undersigned to recuse.
II. RECUSAL UNDER 28 U.S.C. § 455.
Mr. Oliver also asks the undersigned judge to recuse based on 28 U.S.C. § 455. The motion does not specify which subsection of this statute allegedly requires recusal. In Mr. Oliver's affidavit, however, he states he is "the attorney for the Plaintiff [sic] in this matter and I submit this affidavit having reason to believe that a bias exists against me personally by the Honorable Paul G. Cassell which in my professional opinion needs to be addressed before an impartial judge." Mr. Oliver also states the undersigned judge "has become an advocate against me" and "[t]hat as a result of becoming an advocate against me Judge Cassell has certainly lost his objectivity and neutrality." Mr. Oliver testifies that "[i]t is apparent that my clients whose cases have been assigned to Judge Cassell will not be treated either fairly or with the required neutrality expected from a U.S. District Court Judge." Based on these statements, the court presumes Mr. Oliver seeks recusal under § 455(a), which provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."Several Tenth Circuit opinions guide the court in deciding whether to recuse under § 455(a). This statute "contains an objective standard: disqualification is appropriate only where the reasonable person, were he to know all the circumstances, would harbor doubts about the judge's impartiality." "In applying the test, the initial inquiry is whether a reasonable factual basis exists for calling the judge's partiality into question." Those seeking disqualification must cite "outward manifestations and reasonable inferences drawn therefrom" in their quest to recuse an allegedly biased or partial judge.
In re McCarthy, 368 F.3d 1266, 1269 (10th Cir. 2004).
Estate of Bishop v. Equinox Int'l Corp., 256 F.3d 1050, 1058 (10th Cir. 2001) (quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)).
Id. (quoting Cooley, 1 F.3d at 993).
In addition to these rules, the Tenth Circuit has announced "cautions that must accompany" a decision to recuse. For example,
Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995).
a judge . . . has "as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require." The recusal statute should not be construed so broadly as to become presumptive or to require recusal based on unsubstantiated suggestions of personal bias or prejudice.
Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 659 (10th Cir. 2002) (quoting Nichols, 71 F.3d at 351).
Moreover, § 455(a) is not "intended to bestow veto power over judges or to be used as a judge shopping device." Thus, while a "trial judge must recuse himself when there is the appearance of bias," "[s]ection 455 does not require recusal based only on assumptions about a judge's beliefs that are not substantiated by the facts of record."
Nichols, 71 F.3d at 351.
Bryce, 289 F.3d at 659.
In re McCarthy, 368 F.3d at 1269-70.
Numerous courts have held certain "facts of record" do not require recusal. The United States Supreme Court, for instance, held in Liteky v. United States that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." The Court continued:
510 U.S. 540 (1994).
Id. at 555.
[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.
Id.
Similarly, the Tenth Circuit has held that "[f]actors that do not merit disqualification include: rumor, speculation, beliefs, conclusions, or other non-factual matters, . . . and prior rulings that were adverse to the moving party in this proceeding, or in another proceeding, solely because they were adverse."
Estate of Bishop, 256 F.3d at 1058.
These cases demonstrate why most of the facts in Mr. Oliver's affidavit could not even arguably require disqualification. Paragraph fourteen of his affidavit states: "Examples of Judge Cassell's lack of fairness and neutrality as well as his clearly negative bias as it pertains to cases in which I am involved follow." Paragraphs fifteen through thirty-two then relate rulings the undersigned judge has made in four cases in which Mr. Oliver acted as counsel. But as the United States Supreme Court and the Tenth Circuit have held, prior judicial rulings or remarks that are adverse — or even "hostile" — do not, standing alone, satisfy § 455's requirements.
Likewise, Mr. Oliver's personal beliefs do not require recusal. Mr. Oliver's affidavit contains many such beliefs:
33. It is clear that Judge Cassell has taken me on personally as a pet project and consumed a significant amount of time in an effort to impugn my character and professionalism.
34. It is clear that Judge Cassell is not being fair, neutral, and objective as it pertains to the way he treats me and my clients and the defendants in the cases in which I appear before him.
35. He has prejudged both me and my clients in his biased and prejudicial rulings.
36. I believe it is appropriate to set aside all of the ruling[s] made by Judge Cassell in my cases since Olseth, and to permanently recuse Judge Cassell from presiding on any of my cases now or in the future.
Aff. of Bias of D. Bruce Oliver, ¶¶ 33-36 (emphasis added).
Mr. Oliver's subjective "beliefs" and "conclusions" expressed in paragraphs thirty-three to thirty-six of his affidavit — no matter how fervently held — are "[f]actors that" the Tenth Circuit has held "do not merit disqualification."
Estate of Bishop, 256 F.3d at 1058.
Id.
Though most of Mr. Oliver's affidavit testimony discusses prior rulings and personal beliefs — and therefore does not support Mr. Oliver's motion — one allegation requires closer scrutiny. The affidavit states:
4. That on or about the 23rd day of August, 2005, I received a document entitled "Sealed Order Referring D. Bruce Oliver to the State Bar's Office of Professional Conduct and the District of Utah's Disciplinary Panel." (Hereinafter referred to as "witch hunt").
5. That there are 27 separate allegations raised against me in the witch hunt.
6. That not all of the allegations contained therein refer to or are in reference to a case which was assigned to Judge Cassell.
. . . .
9. That the allegations made by Judge Cassell are simply docket entries wherein the judge has little if any understanding of the reasons therefore.
Aff. of Bias of D. Bruce Oliver, ¶¶ 4-6, 9.
Thus, the affidavit raises this issue: should a judge who refers an attorney to a state bar for possible unethical or unprofessional conduct recuse himself in all future cases involving that attorney?
As noted, Mr. Oliver did not provide a memorandum in support of his motion to disqualify. This is a violation of Rule 7-1(b) of the Local Rules of Civil Procedure — made applicable here by Rule 12-1(b) of the Local Rules of Criminal Procedure — which states, "each motion must be accompanied by a memorandum of supporting authorities that is filed or presented with the motion." Nonetheless, in the interests of justice and fairness to both Mr. Oliver and his client, the court has examined whether Mr. Oliver's allegations find any support in the applicable law. The court has determined no such support exists.
Courts that have addressed this issue almost uniformly hold that recusal is not appropriate where a judge has made a referral to the bar. In Honneus v. United States, a district court held "that the fact that as a matter of public record a judge referred the in-court unprofessional conduct of an attorney to a Bar Association Grievance Committee, does not require him to recuse himself from hearing post-conviction motions of the attorney's client." The court based its decision on a Fourth Circuit opinion that "held that the fact that a judge sat upon an attorney's disciplinary proceedings for unethical conduct in connection with a case, did not require him to recuse himself from sitting on the subsequent bank robbery trial of the attorney's client in the same case." Other cases from the Sixth and Eighth Circuits similarly hold that "the fact that a judge has cited a party for contempt [does not] require him to recuse himself."
425 F. Supp. 164 (D. Mass. 1977).
Id. at 166.
Id. (citing United States v. Cook, 400 F.2d 877 (4th Cir. 1968)).
Id. (citing United States v. Franks, 511 F.2d 25, 37 (6th Cir. 1975), and Barry v. Sigler, 373 F.2d 835, 836 (8th Cir. 1967)).
The Eighth Circuit case of Gilbert v. City of Little Rock also discusses a district judge's obligation under § 455. Gilbert involved a district judge who had entered, in an unrelated matter, an order recusing herself in all cases involving the plaintiffs' attorney, Mr. Walker. Plaintiffs secured new counsel during the litigation and expected to call Mr. Walker as a witness. Plaintiffs moved for recusal since Mr. Walker was a likely witness, and the court denied the motion. The Eighth Circuit found no abuse of discretion, holding that "under § 455(a), . . . a controversy between a trial judge and an attorney for parties to an action would not require disqualification of the judge in the absence of showing of bias or personal prejudice to the parties." The First Circuit adopted this reasoning in In re Cooper when it held that "[g]enerally, clashes between court and counsel are an insufficient basis for disqualification under" § 455 and § 144.
722 F.2d 1390 (8th Cir. 1983).
Id. at 1399.
See id. at 1398.
Id. at 1399.
821 F.2d 833 (1st Cir. 1987).
Id. at 838.
The few published cases the court found that might seem to support Mr. Oliver's claim are distinguishable. For instance, Neal v. Wilson involved an attorney who pled guilty to five misdemeanors. Because of this conviction, the United States District Court for the Eastern District of Arkansas referred the attorney to the Arkansas bar authorities and suspended him pending the outcome of any disciplinary proceedings. The bar committee suspended the attorney, but he refused to surrender his license. Litigation ensued, and the attorney eventually became a party in a related civil rights suit in the Eastern District of Arkansas. The judge to whom the case was initially assigned "recused himself because of the district court's reference of [the attorney] to the state bar authorities for disciplinary action."
112 F.3d 351 (8th Cir. 1997).
See id. at 353-54.
Id. at 354.
Unlike Neal, in which the referred attorney became a party seeking relief related to the referral, Mr. Oliver is not a party here. He is simply counsel for the defendant. If Mr. Oliver ever appears before this court as a party in a civil rights suit seeking damages for any discipline the Utah bar authorities decide is appropriate, the rationale of Neal might well require the undersigned judge to recuse. Until then, however, Mr. Oliver's distinct role as defense counsel does not dictate that result.
Cf. United States v. Evans, 262 F. Supp.2d 1292 (D. Utah 2003) (holding recusal not required when attorney opposed judge's nomination to federal bench).
Similarly, the Tenth Circuit case of Bell v. Chandler does not support recusal. In Bell, the Tenth Circuit issued a writ of mandamus ordering a district judge to recuse himself because he had "without just cause . . . disbarred" a United States Attorney and five Assistant United States Attorneys in a previous case, "and at the same time instituted disciplinary proceedings against them."
569 F.2d 556 (10th Cir. 1978).
Id. at 557.
In this case, the court has neither disbarred Mr. Oliver nor instituted disciplinary proceedings against him. Instead, it has simply performed the task Canon 3(B)(3) of the Code of Judicial Conduct requires: "A judge should initiate appropriate action when the judge becomes aware of reliable evidence indicating the likelihood of unprofessional conduct by a judge or lawyer." As the First Circuit said, "[a] judge who believes misconduct has occurred has a responsibility to act."
Code of Conduct for United States Judges Canon 3(B)(3).
In re Cooper, 821 F.2d at 843.
In light of the court's duty to refer unprofessional conduct to the state bar, it is illogical to find any basis for recusal. Because the court has an independent ethical obligation to "initiate appropriate action" when misconduct is present, an objective observer would see the referral simply as the court performing its duty. In other words, the court's compliance with its obligations does not automatically imply bias. Moreover, the court's action in this case was private — the court sealed the referral order to avoid public disclosure of possible wrongdoing — and it avoided prejudging Mr. Oliver's actions by noting the instances "appear[ed] to be" unprofessional conduct. The court left ultimate judgment to the Utah State Bar and the District of Utah's Disciplinary Panel.
Code of Conduct for United States Judges Canon 3(B)(3).
In sum, nothing in Mr. Oliver's affidavit requires the undersigned judge to recuse. Section 144 does not apply because the defendant did not file an affidavit. Section 455 does not require recusal because the factors Mr. Oliver cites are not, under Supreme Court and Tenth Circuit precedent, sufficient to require recusal. Because "there is no legitimate reason to recuse," the court will fulfill its "strong duty to sit" and preside over Mr. Mendoza's case.
Bryce, 289 F.3d at 659 (quoting Nichols, 71 F.3d at 351).
III. NO BASIS TO STAY PROCEEDINGS
The court held a sentencing hearing for Mr. Mendoza on September 19, 2005. At that hearing, Mr. Oliver moved for a stay of these proceedings so he could appeal the court's denial of his disqualification motion to the Tenth Circuit Court of Appeals. The court denied his motion for a stay. At the conclusion of the hearing, however, the court delayed sentencing until October 19, 2005, to permit Mr. Mendoza to attempt to reduce his sentence by cooperating with the government.To obtain a stay, Mr. Oliver "must address the following factors: (1) the likelihood of success on appeal; (2) the threat of irreparable harm if the stay or injunction is not granted; (3) the absence of harm to opposing parties if the stay or injunction is granted; and (4) any risk of harm to the public interest."
F.T.C. v. Mainstream Marketing Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003), rev'd on other grounds, 358 F.3d 1228 (10th Cir. 2004).
Given the discussion above, Mr. Oliver's likelihood of successfully appealing the denial of his motion to disqualify appears small. Moreover, the threat of irreparable harm to Mr. Oliver's client, Mr. Mendoza, is small. If the court has made some mistake in handling these matters, they can be corrected through the ordinary appeal process. Indeed, Mr. Oliver now has the chance to seek immediate review of the court's actions over the next thirty days, because the court has scheduled another sentencing hearing on October 19, 2005, to give Mr. Mendoza one more opportunity to qualify for a reduction in his sentence under the "safety valve." On the other hand, disqualifying the undersigned would work significant hardship on the court, as another judge would have to learn the particulars of Mr. Mendoza's case. Finally, there appears to be little harm to the public interest. For all these reasons, the court will not stay further proceedings. Mr Oliver is free, however, to seek any appropriate relief before the October 19, 2005, hearing.
U.S.S.G. § 2D1.1(b)(7).
CONCLUSION
Mr. Oliver's motion to disqualify (#101) is DENIED.