338 F.Supp. 29 (N.D.Cal. 1972), C-69-324, Tenants and Owners in Opposition to Redevelopment (TOOR) v. United States Dept. of Housing and Urban Development (HUD)

Docket Nº:C-69-324 SAW.
Citation:338 F.Supp. 29
Case Date:February 08, 1972
Court:United States District Courts, 9th Circuit, Northern District of California

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338 F.Supp. 29 (N.D.Cal. 1972)




No. C-69-324 SAW.

United States District Court, N. D. California.

Feb. 8, 1972

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Amanda Fisher, Sidney Wolinsky, San Francisco, Cal., for plaintiffs.

Frederick P. Furth, Henry Davis, San Francisco, Cal., for defendant Redevelopment Agency.

James L. Browning, U.S. Atty., Richard F. Locke, Asst. U.S. Atty., San Francisco, Cal., for defendant HUD.


OLIVER J. CARTER, Chief Judge.


This action is one brought by a group of tenants of a certain area of the City of San Francisco to require the redevelopment agency of that city, along with other defendants, to provide housing to replace that destroyed, or scheduled to be destroyed by a redevelopment project. The litigation was filed on November 5, 1969. Since that time there have been 357 docket entries, including pleadings, memoranda, affidavits, and Court orders. There have been numerous Court hearings, informal conferences, and hearings before a Special Master.

On January 20th of this year the defendant San Francisco Redevelopment Agency (henceforth "the local agency") filed an affidavit of bias and prejudice (see appendix) against the Honorable Stanley A. Weigel, the presiding judge1 in these proceedings. Under Title 28 U.S.C. § 144 any party may file a "timely and sufficient affidavit" for the purpose of disqualifying the judge presiding in the case. The affidavit in the instant case was submitted by Robert L. Rumsey, the Executive Director of the local agency. In his affidavit Mr. Rumsey stated that his grounds for alleging bias were various remarks made by Judge Weigel during hearings in the case. Mr. Rumsey stated that he read transcripts of certain hearings and thereupon concluded

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that Judge Weigel was biased. Counsel for the local agency have also filed a memorandum of points and authorities, as well as the certificate of counsel that is required by the statute. Counsel for plaintiffs have filed a memorandum of law and some supporting documents as amicus curiae.2

On the 21st of January, the day following the filing of the affidavit, Judge Weigel requested of myself, as Chief Judge, to "review the complete record and to take such action as will best serve the cause of justice for all concerned."

Despite the able assistance of counsel and the apparent agreement by all concerned that I should participate in this matter I believe that a jurisdictional or at least procedural matter should be clarified to justify this intervention.

28 U.S.C. § 144 is a statute with a relatively long background but it has only been utilized sporadically throughout the years. Accordingly the procedures and application of the statute have varied somewhat. The language of the statute itself [3 implies that the judge to whom the affidavit of bias and prejudice is addressed should consider and rule upon it. Accordingly, in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1920) the United States Supreme Court held that the judge in the case is entitled to pass upon the affidavit himself. However neither the cases following the Berger case, nor the words of the statute rule out the possibility of referring the affidavit to another judge for consideration. In United States v. Grinnell Corp., 384 U.S. 563, 582, n. 13, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1965) the Supreme Court pointed out in a footnote that the presiding judge in that case had referred the matter to the Chief Judge of the Circuit for evaluation. The court expressed no view concerning the appropriateness of that procedure. A similar suggestion had been made even in the Berger decision in a dissent written by Justice Day (supra at 41, 41 S.Ct. 230). See also Los Angeles Trust Deed and Mortgage Exchange v. Securities and Exchange Commission, 285 F.2d 162, 173 (9th Cir. 1960).

Accordingly there being no explicit authority to the contrary and because it seems salutary in the instant case I find that it is proper for me to consider whether the affidavit filed against Judge Weigel comports with the requirements of 28 U.S.C. § 144.

Thus far I have spoken of evaluating the affidavit in a rather colloquial sense. The statute provides two words of art which are to figure in that analysis; "timeliness" and "sufficiency".


28 U.S.C. § 144 is based on an earlier act passed in 1911 (28 U.S.C. 1940 ed. § 25, 36 Stat. 1090), and only slightly amended in 1948. In those earlier times the functioning of the United States District

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Courts was somewhat different than today. Thus the clause of the statute requiring the affidavit to be filed not less than ten days before the beginning of the term then had a meaning which no longer exists.

The United States District Court for the Northern District of California no longer sits in specific sessions or terms but is deemed to be in continuous session at San Francisco. Local Rule 7(a). Accordingly there is no specific "timely" period to which the Court could look under the words of the statute.

The remainder of the sentence is not of much further assistance. While it speaks in terms of "good cause" it is quite clearly dependent upon the first clause for its full meaning. Thus a paraphrase might be, "good cause is to be shown why the affidavit was not filed 10 days before the beginning of the term." Since there is no term, and by extension no 10 days, it would seem rather obvious that there also can be no good cause shown.

This position has not been taken by all courts that have considered the question, at least not in so many words. However I believe that in a question of this kind involving serious allegations against a District Court Judge the courts should not be too technical. (See In re Federal Facilities Realty Trust, 140 F.Supp. 522, 527, (N.D.Ill.) This is all the more true when the statutory basis for the technicality is insubstantial. Accordingly I conclude that the affidavit is timely filed.

By this finding or perhaps to be more exact, this refusal to exclude the affidavit on the ground of untimeliness, I do not mean to state that I will not take delay in raising the question of bias or prejudice into account in evaluating the sufficiency of the charges. Timeliness is always a matter to be given weight in evaluating the relative value of evidence. Courts since time immemorial have always looked with suspicion at "newly discovered evidence" or "surprise witnesses". I continue to believe that "[n]othing is more important in an affidavit than timeliness, and its counterpart, waiver. (Citing cases) The statute does not permit second guessing." In re Union Leader Corporation, 292 F.2d 381, 390 (1st Cir. 1961). Timeliness thus will be dealth with as a matter of weight rather than admissibility.


A rather long and impressive line of cases has held that affidavits of prejudice are inappropriate to challenge adverse rulings of a judge during the course of a trial. Ex parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913); Re Equitable Trust Co., 232 F. 836 (9th Cir. 1916); Chessman v. Teets, 239 F.2d 205 (9th Cir. 1956), vacated on other grounds, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253. Similar lines of authority have held that expression of judicial opinions based on evidence, United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), or even criticism of parties or attorneys, Beecher v. Federal Land Bank, 153 F.2d 987 (9th Cir. 1945), cert. den. 328 U.S. 871, 66 S.Ct. 1364, 90 L.Ed. 1641, reh. den. 329 U.S. 819, 67 S.Ct. 28, 91 L.Ed. 697, cannot be raised by means of 28 U.S.C. § 144. The thesis of each of these cases is that errors of law created during the course of a trial can always be corrected upon appeal and that is a much better way to deal with incorrect rulings than challenges to the judge's fairness. Of course as a general principle that logic is impeccable. However I do not believe that it is sufficiently inclusive enough, and it is just that exception I propose to address myself to.

Upon examining the above cited cases and many more of similar purport I have noticed they all tend to address themselves to one basic situation, a trial or hearing at which a judge decides issues against one of the parties and gave his reasons for doing so in a rather caustic or flamboyant fashion. The courts then held that neither the adverse decisions

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alone nor the caustic language supporting the decisions could constitute grounds for showing bias or prejudice. This principle was well described in In re Union Leader, 292 F.2d 381, 389 (1st Cir. 1961) as the policy that a "party be discouraged from attacking a judge during the progress of a suit and thereby obtaining his own deliverance from a trial that is not going well, or from a judge who is not sufficiently favorable to him."

I do not believe that a careful reading of the cases indicates that never under any circumstances could a judge's courtroom conduct, constitute grounds for an affidavit under 28 U.S.C. § 144. Indeed a number of cases in this Circuit have considered such conduct on the merits rather than deny the affidavits ab initio. In Los Angeles Trust Deed and Mortgage Exchange v. Securities Exchange Commission, 285 F.2d 162 (9th Cir. 1960) the affidavit recited numerous occurrences from the various hearings. The Court examined many of them at length before determining that no bias or prejudice had been demonstrated. In Gladstein v. McLaughlin, 230 F.2d 762 (9th Cir. 1955), the affidavit concerned...

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