Opinion
No. 02-40140-01/02-SAC
February 26, 2003.
ORDER OF RECUSAL
As alleged in the superseding indictment, during the relevant times charged therein, the defendant David C. Wittig was chairman of the board, president and chief executive officer of Western Resources, Inc./Westar Energy ("Westar"). Up to now, Mr. Wittig's role in Westar was little more than a background allegation, because the alleged charges stem entirely from Mr. Wittig's increase of his personal line of credit at Capitol City Bank by $1,500,000 and his personal loan of the same $1,500,000 to co-defendant Clinton Odell Weidner II who was the president, chief executive officer and general counsel of Capital City Bank at the time. That Mr. Wittig had any involvement or connection to Westar was unrelated to this transaction and to the federal charges stemming from this transaction.
Since the filing of the charges, circumstances have changed making Mr. Wittig's position with Westar relevant in the court's handling of the case. First and foremost is the defendant Wittig's motion to transfer and his arguments in support of it. Among his pretrial motions, the defendant Wittig seeks to have this case transferred from Topeka arguing that the community and surrounding area has been saturated with substantial adverse publicity concerning Mr. Wittig's executive role with Westar, that this publicity has been extremely negative resulting in entrenched community prejudice, and that a transfer would protect the defendant's right to a fair and impartial jury without significant inconvenience to the government and the administration of justice. The defendant points out that he has been a lightning rod for adverse publicity due to his executive position with Westar. As argued by Mr. Wittig, some of the adverse publicity has "directly linked this criminal case to unrelated issues pertaining to Westar." (Dk. 41, p. 3). In support of his motion, the defendant has submitted a large notebook of exhibits filled with newspaper articles and abstracts, magazine articles, internet articles and images, and summaries of television reports, all of which are adverse to Mr. Wittig and most of which relate to Mr. Wittig's involvement with Westar.
To decide the defendant's motion to transfer, the court will be required to consider, inter alia, whether this publicity has been prejudicial and inflammatory, whether it has saturated the community, whether it is likely to have fixed or dictated a hostile community attitude toward the defendant, and whether this adverse publicity has been linked to this criminal case. Within those considerations, the court will be asked to hear and evaluate evidence of Wittig's involvement with Westar, how the community (including shareholders and utility customers) perceives his involvement to have impacted its opinion of him, and how the adverse publicity surrounding his involvement would influence potential jurors in this case. The defendant's survey evidence and statistical findings demonstrate that these issues are real and front and center for this court's determination.
On this factor, the defendant argues "the clear implication from the press is that a conviction of Mr. Wittig would affect a particularly sensitive aspect of Mr. Wittig's connection to Westar — the challenged potential payout because of his resignation from Westar." (Dk. 41, p. 23). There is also publicity about an ongoing investigation of Mr. Wittig concerning his actions as an executive of Westar.
Second, there has been a class action suit filed in federal court by shareholders of Westar against David Wittig and others. When assigned that case, the court immediately disqualified itself on the basis of being a shareholder in Westar and the case was reassigned.
Under 28 U.S.C. § 455(a), a judge has a duty to recuse himself if he "concludes that sufficient factual grounds exist to cause an objective observer reasonably to question the judge's impartiality." United States v. Cooley, 1 F.3d 985, 992 (10th Cir. 1993) (citation omitted). In other words, the trial judge must recuse himself when there is the appearance of bias, regardless of whether there is actual bias. Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995). The decision to recuse remains within the sound discretion of the district court judge. United States v. Stenzel, 49 F.3d 658 (10th Cir.), cert. denied, 516 U.S. 840 (1995). However, "if the question of whether § 455(a) requires disqualification is a close one, the balance tips in favor of recusal." Nichols v. Alley, 71 F.3d at 352.
The court believes there is an arguable proposition here that because of the court's ownership of Westar stock a reasonable person could question the court's impartiality in deciding the motion to transfer and possibly other matters yet to be raised in this case. What began as a criminal case unrelated to Westar and Mr. Wittig's role in it has now become a case in which the trial court must consider issues closely related to those facts and circumstances in deciding a motion that the defendant Wittig has said is critically important to him. In addition, the defendant Wittig advances other arguments that arguably bear on the appearance of the court's impartiality. Based largely on its sua sponte evaluation of these matters but also assisted by the defendant's recent filings, the court has decided to recuse itself immediately from this case.
IT IS THEREFORE ORDERED that the court recuses itself from this case and requests the Chief Judge of the District of Kansas to reassign it accordingly.