Blizard v. Fielding

• Decision Date: 11 July 1978
• Docket Number: Civ. A. No. 75-2031-C.
• Citation: 454 F. Supp. 318
• Parties: Margaret M. BLIZARD, Plaintiff, v. Jonathan E. FIELDING, M. D., as he is Commissioner of Public Health, Commonwealth of Massachusetts, Defendant.
• Court: U.S. District Court — District of Massachusetts

454 F. Supp. 318

Margaret M. BLIZARD, Plaintiff, v. Jonathan E. FIELDING, M. D., as he is Commissioner of Public Health, Commonwealth of Massachusetts, Defendant.

Civ. A. No. 75-2031-C.

United States District Court, D. Massachusetts.

July 11, 1978.

COPYRIGHT MATERIAL OMITTED

Jeanne Baker, Rosenberg, Baker & Fine, Cambridge, Mass., for plaintiff.

Terry Jean Seligmann, Asst. Atty. Gen., Boston, Mass., for defendant.

OPINION

CAFFREY, Chief Judge.

After a non-jury trial, this Court ruled that plaintiff Margaret M. Blizard had failed to establish her claim of sex discrimination or retaliatory discrimination on the part of her employer, defendant Jonathan Fielding, Massachusetts Commissioner of Public Health. On appeal, that judgment was vacated and the case remanded to this Court "for further proceedings not inconsistent with this opinion."¹ Plaintiff has now moved (1) for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure; and (2) for this Court to disqualify itself under 28 U.S.C.A. § 455(a), as amended in 1974, Pub.L. No. 93-512, 88 Stat. 1609.

Of necessity, the initial matter before me is the motion to recuse. Plaintiff's motion is predicated essentially on the argument, in her words, that "various objective aspects of the record of what has already occurred in this case call into question the impartiality of the trial judge and indicate a possible personal bias and prejudgment of plaintiff's claims, which would prevent the original trial judge from presiding on remand proceedings with a free and open mind."

The pertinent portion of 28 U.S.C.A. § 455(a), under which plaintiff seeks recusal, reads as follows: "Any . . . judge . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." In construing this reasonableness standard, I turn first to the statute's legislative history. The rationale underlying subsection (a) of the amended § 455 was to "promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge's impartiality he should disqualify himself." H.Rep. No. 1453, 93d Cong., 2d Sess., 1974 U.S. Code Cong. & Admin. News at 6351, 6355. The statute was designed to erode the so-called "duty to sit" concept. Id. Under that "duty to sit" doctrine, a judge faced with a close question regarding recusal was to resolve the question in favor of sitting. See, e. g., Edwards v. United States, 334 F.2d 360 (5th Cir. 1964).

The framers of the amended statute, after enunciating its objectives, cautioned against its misuse:

The new test should not be used by judges to avoid sitting on difficult or controversial cases.

At the same time, in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a "reasonable fear" that the judge will not be impartial. Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice. Id. (emphasis in original)

As the legislative history and the language of the statute demonstrates, the amended statute changed the standard for recusal from a subjective to an objective one. See, e. g., Fredonia Broadcasting Corp., Inc. v. RCA Corp., 569 F.2d 251 (5th Cir. 1978); SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977) (per curiam). The Court of Appeals for this Circuit has enunciated the proper test as

whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C.A. § 455, but rather in the mind of the reasonable man.

United States v. Cowden, 545 F.2d 257, 265 (1st Cir. 1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977). Accord, United States v. Cepeda Penes, 577 F.2d 754, at 757 (1st Cir. 1978).

In applying that standard I am mindful that ordinarily a judge should not disqualify himself under § 455(a) "solely on the basis of judicial rulings . . . made in the course of a trial . . .." 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3549 at 195 (1977 Supp.). If a judge who rules against a party can successfully be labelled prejudiced for that reason, then the Court of Appeals would never be able to remand a case for further action by the judge who initially decided it. It should be self-evident that adverse rulings in themselves do not create judicial partiality. See, e. g., United States v. Schwartz, 535 F.2d 160, 165 (2d Cir. 1976); Honneus v. United States, 425 F.Supp. 164, 166 (D.Mass.1977). Otherwise, "there would be almost no limit to disqualification motions and the way would be opened to a return to `judge shopping', a practice which has been for the most part universally condemned. Certainly every ruling on an arguable point during a proceeding may give `the appearance of' partiality, in the broadest sense of those terms, to one party or the other." Lazofsky v. Sommerset Bus Co., Inc., 389 F.Supp. 1041 (E.D.N.Y.1975). The case law interpreting § 455(a) emphasizes, as does the statute's legislative history quoted above, that litigants are not entitled to judges of their own choice. See, e. g., Mayberry v. Maroney, 558 F.2d 1159 (3d Cir. 1977); United States v. Haldeman, 181 U.S.App.D.C. 254, 362-63 n.360, 559 F.2d 31, 139-40 n.360 (1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250.

In the matter before me, plaintiff takes umbrage at certain words in my initial opinion. Specifically, she objects to: (1) the use of the word "obsessed" in the finding that she was "a person who is so obsessed with the notion that she has a right to become Deputy Commissioner of the Department that she is unable to accept or perform any other task"; (2) the word "vegetating" in the finding that she was "vegetating in her office at an expense to the taxpayers of some $25,000 a year"; (3) alleged reliance on extrajudicial sources in the use of the $25,000 figure quoted above; and (4) my characterization of her suit as "marathon litigation."

I recognize, of course, that "findings by a trial judge unsupported by the record are evidence that the judge has relied on extrajudicial sources in making such determinations indicating personal bias and prejudice." Peacock Records, Inc. v. Checker Records, Inc., 430 F.2d 85, 89 (7th Cir. 1970); cf. United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966). Moreover, I am mindful that the Court of Appeals for this Circuit has recently admonished that a judge's participation in prior proceedings in a given case may on occasion form the basis for a finding of bias. United States v. Cepeda Penes, supra at 758. That occasion occurs, however, when a plaintiff is "able to point to some behavior on the part of the judge suggesting that there is, in fact, some friction between the judge and the complaining party — not a mere disagreement over the state of the law on any given point." Id. Plaintiff nowhere suggests any such friction. Nor could she. I have never had and I do not now have extrajudicial knowledge of the plaintiff. My rulings in an earlier phase of this case might have provided plaintiff with a basis for a claim of legal error, but not with grounds for my recusal. E. g., Botts v. United States, 413 F.2d 41 (9th Cir. 1969); Hawaii-Pacific Venture Capital Corp. v. Rothbard, 437 F.Supp. 230 (D.Hawaii 1977).

The plaintiff here rests her claim of prejudice basically on a few modifying words used in the earlier opinion. A judge's choice of words is insufficient to support disqualification. Cf. United States v. Cardall & Golden Rule Associates, 550 F.2d 604 (10th Cir. 1976). The isolated words of which she complains must be examined on the basis of the entire record, not taken out of context. For example, plaintiff's objection to the use of the term "vegetating" is ill-founded in light of the supporting evidence before me. I have in mind the following trial testimony:

Q. (by Mrs. Seligman): Is it fair to say that in 1974 and 1975, after completing that Manual of Laws project, which you handed in, that you just sat and vegetated in your office?

A. (by Mrs. Blizard): Yes. I was allowed — I sat waiting for communication, reported every day at eight and sat through until five and waited for communication. I went in every day to the Commissioner.

This colloquy establishes that the word "vegetating" originated not from any prejudice but from the plaintiff's own testimony, which the Court accepted as factual. Since the term objected to derives from plaintiff's own testimony, it strains credulity for plaintiff to argue that its use in the earlier opinion would lead a reasonable man to doubt my impartiality.

Plaintiff's objection to the word "obsessed" similarly fails. That adjective derives from a finding based on plaintiff's own testimony. Specifically, I based that finding on the fact that Mrs. Blizard in the course of the trial had read into evidence a memorandum she sent Dr. Bicknell, dated November 13, 1972, which states in pertinent part:

Most of my time, both in and out of the office, evenings and weekends, has been spent in matters relating to processing my personal grievances. . . .

Following her reading of that document and its admission into evidence, the following dialogue ensued:

The Court: Let me ask a question: If I heard what you read, you were telling Mr. Bicknell, or Dr. Bicknell, that you spent a substantial portion of your

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