Clarkco Landfill v. Clark County Solid Waste Mgt., C-3-98-251.

• Decision Date: 11 September 1998
• Docket Number: No. C-3-98-251.,C-3-98-251.
• Citation: 20 F.Supp.2d 1185
• Parties: CLARKCO LANDFILL COMPANY, Plaintiff, v. CLARK COUNTY SOLID WASTE MANAGEMENT DISTRICT, et al., Defendant.
• Court: U.S. District Court — Southern District of Ohio

20 F.Supp.2d 1185

CLARKCO LANDFILL COMPANY, Plaintiff, v. CLARK COUNTY SOLID WASTE MANAGEMENT DISTRICT, et al., Defendant.

No. C-3-98-251.

United States District Court, S.D. Ohio.

September 11, 1998.

Charles Joseph Faruki, Jeffrey T. Cox, Faruki Gilliam & Ireland, Dayton, OH, for Clarkco Landfill Co.

Joseph A. Gregg, Eastman & Smith, Toledo, OH, for Clark County Solid Waste Management Dist., Clark County Ohio Bd. of Com'rs, Roger D. Tackett, James E. Sheehan, John H. Detrick, W. Darrell Howard, Jeffry L. Johnson.

Thomas Edward Trempe, Clark County Prosecutor — 3, Springfield, OH, for German Township Trustees.

DECISION AND ORDER DENYING MOTION FOR DISQUALIFICATION

MERZ, United States Magistrate Judge.

This action is before the Magistrate Judge on the Clark County Defendants' Motion for Disqualification, filed August 31, 1998. Although the moving Defendants seek what might be called "pre-referral recusal," the Motion does not seek merely an advisory opinion, in that Chief Judge Rice has expressly "reserved the right to refer the captioned cause to United States Magistrate Judge Michael R. Merz for pretrial management." Nor is the Motion premature in that, as the moving Defendants note, motions to dismiss and for abstention will shortly be at issue and that would be a likely time for Chief Judge Rice to consider referral¹. By making the Motion now, the moving Defendants assure that any party's objections to the Magistrate Judge's decision on recusal will be before Chief Judge Rice when he considers whether or not to refer the matter. Likewise, it is quite correct to address a motion to recuse or disqualify in the first instance to the judicial officer sought to be disqualified.

ASSERTED FACTUAL BASES FOR DISQUALIFICATION

The moving Defendants set out six sets of circumstances which they believe create an appearance of partiality². Four relate to my representation of various parties while in private practice; one relates to my association in practice with attorney Charles J. Faruki, Plaintiff's counsel in this action; and one relates to some of my proposed findings of fact in the related earlier case, Danis Clarkco Landfill Co. v. German Township Trustees, C-3-96-481. I shall deal first with the facts related to my private practice and then with the related case.

I was graduated from law school in June, 1970, and immediately joined the Dayton law firm of Smith & Schnacke as an associate. For the first two years I rotated in various assignments among different partners, doing such varied tasks as private foundation compliance with the Tax Reform Act of 1969, international patent licensing, and securities regulation work for The Mead Corporation, Smith & Schnacke's principal client. The firm had thirty-five attorneys when I joined it, making it by far Dayton's largest firm at the time.

At sometime in 1972, the firm having continued to grow, it was loosely organized into "teams" and I was assigned to the team "captained" by attorney Jon M. Sebaly. Over the next five years, the team consisted of a number of lawyers, including William Compton, Peter Kuntz Graves, and Peggy L. Bennington, but not Mr. Faruki, although he joined the firm during that time. The team handled mostly commercial litigation (concentrating in antitrust work for both plaintiffs and defendants), but did some general business work for some clients. The firm continued to grow, reaching over seventy lawyers by the time I left in 1977. Towards the end of that period, Mr. Sebaly became general counsel to both the Copeland Corporation and Beverage Management, Inc., and expanded his team to include more business practitioners, but Mr. Faruki was never a member of that group, working instead with attorneys Armistead W. Gilliam, Jr., and Paul Horstman to form the firm's commercial litigation team.

At Smith & Schnacke, as I presume is common with most firms, lead responsibility for a client was taken by the "billing partner" who ordinarily assigned the client's work to various lawyers or teams of lawyers within the firm. Danis Industries Corporation, as I believe it was then called, was the client of attorney Albert M. Sealy and he assigned the client's work. Danis' principal and oldest business was commercial and highway construction; I was never assigned any work arising from that side of the business because my father worked for a competitor, Shook Construction. However, over time, I was assigned a number of matters relating to Danis' "trash" business, mostly litigation, but some business acquisition work. My principal client contacts were Mr. Harry van Matre and Mr. Arthur Dudzinski, both of whom left Danis and the Dayton area many years ago.

One matter I handled with Mr. Sebaly for Danis was the Harrison Township trash collection matter. The Trustees of Harrison Township, Montgomery County, decided to "governmentalize" the collection of trash and award a single contract to one hauler, thereby eliminating the private haulers who had had the business. Blaylock Trucking Company, a wholly-owned Danis subsidiary, was the successful bidder. Two lawsuits followed, one by the displaced haulers and one by citizens who insisted they had a constitutional right to contract with the trash hauler of their choice. DeAngulo v. Board of Trustees, referenced by the moving Defendants, was the second of these. Contrary to the moving Defendants' characterization (Motion, p. 4, ¶ 4), in both of these cases, I was defending, not challenging, the township's ordinance governing waste collection. Both cases were, as I recall, dismissed on defendants' successful summary judgment motions.

I also represented North Sanitary Landfill, Inc., another Danis subsidiary, in its efforts to construct a sanitary landfill in Clay Township, Montgomery County. The Montgomery County Commissioners attempted to prevent construction because at that time they were attempting to maintain a monopoly on trash dumping in the county at the north and south incinerators which they had constructed; as I recall, paying the revenue bonds depended on "tipping" fees as the incinerators. On behalf of North Sanitary, Smith & Schnacke brought suit in the Montgomery County Common Pleas Court to appeal under Ohio Revised Code Chapter 2506 from their denial of a required approval. The trial judge granted North Sanitary's motion for summary judgment and found that the County Commissioners' decision was "unconstitutional, illegal, arbitrary, capricious, unreasonable, and unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record" presented to the Commissioners — in other words, on every ground permitted by Ohio Revised Code § 2506.04. The assigned trial judge was The Honorable Walter Herbert Rice, then a Judge of the Montgomery County Common Pleas Court. He was reversed by the Court of Appeals and the Ohio Supreme Court refused jurisdiction.

It is now twenty-two years later. The County Commissioners in question have all long since left office³. Judge Rice has been gone from the Common Pleas bench for over eighteen years. The assistant county prosecutor who defended the case has since been elected to the bench, served a distinguished career, and retired. All the Court of Appeals judges who heard the case have retired. With all that change, however, the moving Defendants suggest one thing hasn't changed, my opinion on the power of a county solid waste district to approve or disapprove a sanitary landfill, assuming the position I took represented my personal opinion rather than the position I advocated on behalf of my client.

Although the moving Defendants are correct about my involvement in the North Sanitary and DeAngulo cases, they have been misled by inaccurate reporting about my involvement in Roberts v. Williams. This was a proceeding before the Ohio Environmental Board of Review on appeal from the Ohio EPA Director's issuance of a permit to North Sanitary for the same proposed Clay Township landfill which was at issue in North Sanitary v. County Commissioners. At the time of the litigation with the County, the Ohio EPA had either issued a permit or at least very strongly indicated its approval of the site. I did initially appear before Ohio EBR on the appeal, but withdrew long before the EBR issued its March 15, 1978, opinion which shows me as counsel of record. I had become a full-time Judge of the Dayton Municipal Court on July 2, 1977, and was no longer engaged in the practice of law. It may be that the appearance of counsel was not properly changed, but in fact the representation was carried on by Mr. Robert Maynard, who was captain of Smith & Schnacke's environmental team⁴, and Mr. Peter Graves; their appearances are reflected in the Franklin County Court of Appeals opinion which is part of Exhibit C attached to the Motion.

The moving Defendants also note that Mr. Herbert Eagon served as North Sanitary's primary technical expert in the 1970's and hypothesize that I may know him or have consulted with him. I do not believe I have ever met Mr. Eagon; I am certain I never consulted with him on behalf of North Sanitary or any other Danis entity. If he was involved with the North Sanitary landfill venture in Clay Township, it was probably with Mr. Maynard, as I was not involved in the technical side and did not participate in trying to obtain a permit.

The moving Defendants point out that North Sanitary operated the Tremont landfill facility, which is adjacent to the site currently in litigation. I was never involved with that portion of North Sanitary's business; my representation of North Sanitary⁵ was limited, to the best of my recollection, to the Clay Township matter.

Aside from my representation of two Danis subsidiaries in the 1970's, the moving Defendants point out that Mr. Faruki and I were associates together at Smith & Schnacke for several years. The relevant facts are that Smith & Schnacke was a large institutional firm with little...