Glassroth v. Moore

• Decision Date: 11 October 2002
• Docket Number: No. CIV.A. 01-T-1269-N.,No. CIV.A. 01-T-1268-N.,CIV.A. 01-T-1268-N.,CIV.A. 01-T-1269-N.
• Citation: 229 F.Supp.2d 1283
• Parties: Stephen R. GLASSROTH, Plaintiff, v. Roy S. MOORE, Chief Justice of the Alabama Supreme Court, Defendant. Melinda Maddox and Beverly Howard, Plaintiffs, v. Roy Moore, in his official capacity, Defendant.
• Court: U.S. District Court — Middle District of Alabama

229 F.Supp.2d 1283

Stephen R. GLASSROTH, Plaintiff, v. Roy S. MOORE, Chief Justice of the Alabama Supreme Court, Defendant.

Melinda Maddox and Beverly Howard, Plaintiffs, v. Roy Moore, in his official capacity, Defendant.

No. CIV.A. 01-T-1268-N.

No. CIV.A. 01-T-1269-N.

United States District Court, M.D. Alabama, Northern Division.

October 11, 2002.

J. Richard Cohen, Morris S. Dees, Jr., Rhonda Brownstein, Danielle Jeannine Lipow, Southern Poverty Law Center, Montgomery, AL, James A. Tucker, Alabama Disabilities Advocacy Program, Tuscaloosa, AL, for Stephen R. Glassroth.

Robert M. Weinberg, ACLU of Alabama, Montgomery, AL, William Z. Messer, Robert J. Varley, Varley & Messer, LLP, Montgomery, AL, for Beverly J. Howard, C. Wade Johnson, Robert A. Beckerle, Melinda Maddox.

Ayesha Khan, Americans United for Separation of Church and State, Washington, DC, for C. Wade Johnson.

Herbert W. Titus, Troy A. Titus PC, Virginia Beach, VA, D. Stephen Melchior, Deputy AG for State of Alabama, Phillip Jauregui, Birmingham, AL, for Roy S. Moore.

John J. Park, Jr., Charles B. Campbell, Office of Atty. General Alabama State House, Montgomery, AL, for Rich Hobson.

ORDER

MYRON H. THOMPSON, District Judge.

These lawsuits, consolidated for trial, were brought by plaintiffs Stephen Glassroth, Melinda Maddox, and Beverly Howard against defendant Roy Moore, Chief Justice of the Alabama Supreme Court. The plaintiffs contend that Justice Moore's placement of a monument, engraved with the Ten Commandments and quotations from other texts, in the Alabama State Judicial Building violates the first and fourteenth amendments to the United States Constitution, as enforced through 42 U.S.C.A. § 1983. Currently this case is before the court on Justice Moore's motion pursuant to 28 U.S.C.A. §§ 144 and 455(a) that I recuse myself. For the reasons that follow, this motion will be denied.

I.

There are two federal recusal statutes that govern claims of bias, prejudice, or partiality with respect to a judge. Justice Moore moves for my recusal pursuant to both statutes, 28 U.S.C.A. § 144 and § 455(a).

Section 144 states:

"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."

Once an affidavit is filed, "the trial judge may not pass upon the truthfulness of the facts stated in the affidavit even when the court knows these allegations to be false." United States v. Alabama, 828 F.2d 1532, 1540 (11th Cir.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988). Instead, the judge's inquiry is limited to determining whether the facts alleged are legally sufficient to require recusal. For an affidavit to be legally sufficient, the party must show that "(1) The facts are material and stated with particularity, (2) The facts are such that, if true they would convince a reasonable person that a bias exists and (3) The facts must show the bias is personal, as opposed to judicial in nature." Id.

As stated, Justice Moore also brings this motion pursuant to § 455(a), which states that, "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This statute "places a judge under a self-enforcing obligation to recuse himself where the proper legal grounds exist." United States v. Alabama, 828 F.2d at 1540. Legal grounds exist for recusal when "an objective disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality." Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988). Actual prejudice need not be shown, as "Congress expressly intended ... § 455 to promote public confidence in the impartiality of the courts by eliminating even the appearance of impropriety." United States v. Alabama, 828 F.2d at 1541.

Under both recusal statutes, the Supreme Court has held that a significant and often "determinative" factor in these cases is the "extrajudicial source" doctrine. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). Under this doctrine, the alleged bias must stem from information that the judge has gained from outside the judicial context. This usually precludes a finding of bias based on a judge's rulings and remarks during the course of trial, because these are assumed to come from the information the judge learned during trial, not extrajudicial sources. Id. at 554, 114 S.Ct. at 1157; see also Davis v. Bd. of Sch. Comm'rs, 517 F.2d 1044, 1052 (5th Cir. 1975).

The Eleventh Circuit has explicitly approved of the extrajudicial source doctrine:

"The general rule is that bias sufficient to disqualify a judge must stem from extrajudicial sources, and must be focused against a party to the proceedings. An exception to this rule is made when a judge's remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party."

Hamm v. Members of the Bd. of Regents, 708 F.2d 647, 651 (11th Cir.1983) (internal citations omitted); see also Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1329 (11th Cir.2002) (relying on extrajudicial source doctrine to affirm denial of recusal motion); Christo v. Padgett, 223 F.3d 1324, 1333-34 (11th Cir.2000) (same).

The Eleventh Circuit has articulated an additional important principle to be considered in recusal cases: although the duty to recuse is imperative in close cases, "[j]udges must not recuse themselves for imaginary reasons; judge shopping should not be encouraged." Murray v. Scott, 253 F.3d 1308, 1313 (11th Cir.2001); see also Carter v. West Publ'g Co., 1999 WL 994997, *2 (11th Cir.1999) (Tjoflat, J.) (addendum to pro forma order denying plaintiffs' recusal motion) (stating that there are dual policies underlying a recusal motion, the obligation to recuse in close cases, and the obligation to hear cases when proper); United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir.1986) (same).

II.

A. Section 144

In support of his motion to recuse, Justice Moore argues that I have demonstrated an actual personal bias and prejudice against him, that warrants my recusal under § 144. In his affidavit, he alleges that I have disregarded his judicial calendar, commitments, and other obligations as Chief Justice of the Alabama Supreme Court during the scheduling of the trial date in this case. Specifically, Justice Moore claims that I am biased because, during a July 2002 hearing, I did not inquire into his other obligations when I denied his motion to reset the jointly agreed upon trial date of this case. He also argues that, during a September 2002 conference call, I inquired into the plaintiffs' schedules, but not his scheduling conflicts, when assessing whether it might be necessary to postpone the trial in order to issue the summary-judgment decision before trial. Even taking these allegations as true, the court finds that they are insufficient to "convince a reasonable person that a bias exists" and, even if they did, it would not "show the bias is personal, as opposed to judicial, in nature." United States v. Alabama, 828 F.2d at 1540.

In United States v. Bailey, 175 F.3d 966, 968 (11th Cir.1999), the Eleventh Circuit upheld the denial of a motion to recuse which was based, in part, on the judge's order that the attorney appear in court while the attorney was preparing for an unrelated criminal trial. In doing so, the court stated "we doubt that [the judge] should have much considered" the scheduling needs of the attorney. Id. at 968. Although Bailey involved the attorney's schedule, the general principle that the judge does not demonstrate bias by disregarding the scheduling needs of a party is applicable to this case. Therefore, even if I disregarded Justice Moore's schedule, it does not follow that it demonstrates any bias against him. Additionally, taking the second part of Justice Moore's argument as true, that I inquired about the plaintiffs' schedule, and not his, during the September 2002 conference call, this perceived slight does not rise to the level of "deep seated favoritism or antagonism that would make fair judgment impossible," and would not cause a reasonable person to assume I was biased against Justice Moore.

However, even assuming that a reasonable person could believe that my actions demonstrated bias in this case, "[i]t is settled that the requisite bias and prejudice under § 144 must be extrajudicial," unless a showing of "pervasive bias and prejudice" can be made. Davis v. Bd. of Sch. Comm'rs, 517 F.2d 1044, 1051 (5th Cir. 1975). In the affidavit underlying this motion, all showings of bias derive from my comments during hearings, which are not extrajudicial. See, e.g., Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994) (holding that judicial decisions, and "judicial remarks ... ordinarily do not support a bias or particularity charge" and only "may" do so if based on extrajudicial sources); Christo v. Padgett, 223 F.3d 1324, 1333-34 (11th Cir.2000) (holding judicial comments were not extrajudicial, nor were newspaper articles filed with the court); Jaffe v. Grant, 793 F.2d 1182, 1188-89 (11th Cir.1986) (same); United States v. Meester, 762 F.2d 867, 885 (11th Cir.1985) (same). These cases hold that a demonstration of actual bias sufficient to invoke § 144 must be based on something other than judicial proceedings, unless the bias is pervasive. In this case, the allegations of bias are not based on extrajudicial sources, nor do they rise to the level of demonstrating pervasive bias.

Therefore, even if taken as true, the allegations regarding my...