Judicial Complaint Under 28 U.S.C. | 372, Matter of, 86-9009

Citation795 F.2d 379
Decision Date17 July 1986
Docket NumberNo. 86-9009,86-9009
PartiesPage 379 795 F.2d 379 In the Matter of a JUDICIAL COMPLAINT UNDER 28 U.S.C. Sec. 372. United States Court of Appeals, Fourth Circuit
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Before WINTER, Chief Judge.

HARRISON L. WINTER, Chief Judge:

This complaint presents the rather remarkable phenomenon of a successful litigant whose complaint is that success was not speedy enough and that the district judge, the subject of the complaint, engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts in the process of deciding for the complainant. I conclude that the complaint does not allege conduct prejudicial to the effective and expeditious administration of the business of the courts. Therefore I dismiss it.

I.

The complaint is filed by an individual, the publisher of a newspaper, who, together with the corporate owner and publisher of the paper, was sued for libel by X, an attorney at law. The complaint is against the district judge who was assigned or who was drawn to preside at the trial.

The complaint alleges that the newspaper, prior to the filing of the libel suit, had published a number of articles critical of the district judge including an assertion that the judge had presided in cases in which he had conflicts of interest. Because it was one of the district judge's severest critics, its attorney in the libel suit telephoned the clerk's office of the district court to ascertain if this particular district judge would be the presiding judge in that case. The attorney was told, it is alleged, by an unidentified person in the clerk's office that the judge had said that for a " 'personal' " reason he "probably" (emphasis supplied) would assign the case to another judge.

The newspaper apparently filed a motion to dismiss the libel case because, it is alleged when its counsel received notice of a hearing thereon, he learned that the district judge would preside. Counsel immediately made inquiry of the district judge--apparently ex parte--asking if the latter intended to preside. It is averred that the district judge told counsel that he did not make the reported statement about the possibility of recusing himself to the clerk's office and that he saw no reason to recuse himself. When taxed by counsel about the critical statements previously published by the newspaper, the district judge allegedly said that he did not remember them. When counsel further said to the judge that defendants in the libel suit preferred not to accuse him formally of bias but they were convinced that he could not be impartial, the district judge said that he had no memory of the newspaper's criticisms of him and he felt no hostility toward the paper.

The defendants in the libel action then filed a motion for recusal supported by an affidavit to which were attached copies of the critical newspaper articles. At a hearing on the motion, the district judge presented a full refutation of the facts, matters and charges in the affidavit, including the charges made in the newspaper articles. In the course of the refutation, he denied ever having considered suing the newspaper or having discussed that possibility with others. He ruled that the motion was untimely and that the affidavit did not establish bias or prejudice so as to require his disqualification under 28 U.S.C. Sec. 144, but he further ruled that, in accordance with the spirit articulated in 28 U.S.C. Sec. 455 and to further the appearance of justice, he would recuse himself and would take no further action except to seek the assignment of another judge to preside in the case.

At a later date, the libel case was settled.

Finally, the complainant alleges that he has hearsay information from three persons that the district judge had expressed a desire to sue the newspaper and that he had sought to employ counsel for that purpose. Indeed the lawyer sought to be employed was the plaintiff in the libel suit which gives rise to this complaint.

On these facts, complainant charges that the district judge was untruthful when he said that he did not remember the numerous newspaper articles critical of him and when he said...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT