City of Cleveland v. Cleveland Elec. Illuminating Co., Civ. A. No. C75-560.

• Decision Date: 08 March 1980
• Docket Number: Civ. A. No. C75-560.
• Citation: 503 F. Supp. 368
• Parties: CITY OF CLEVELAND, Plaintiff, v. The CLEVELAND ELECTRIC ILLUMINATING COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

503 F. Supp. 368

CITY OF CLEVELAND, Plaintiff, v. The CLEVELAND ELECTRIC ILLUMINATING COMPANY, Defendant.

Civ. A. No. C75-560.

United States District Court, N. D. Ohio, E. D.

March 8, 1980.

William B. Norris, Hahn, Loeser, Freedheim, Dean & Wellman, Thomas E. Wagner, Director of Law, Cleveland, Ohio, for plaintiff.

John Lansdale, James P. Murphy, Squire, Sanders & Dempsey, Cleveland, Ohio, for defendant.

MEMORANDUM AND ORDER

KRUPANSKY, District Judge.

This matter is presently before the Court on the plaintiff City of Cleveland's motion to disqualify the Honorable Robert B. Krupansky pursuant to the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution and the provisions of 28 U.S.C. § 455 (Supp.1979). Defendant Cleveland Electric Illuminating Company has responded in opposition.

A review of the applicable authorities discloses that this tribunal has an affirmative obligation to assess in the first instance the legal sufficiency of the motion at bar and the underlying supporting affidavits. Albert v. United States District Court for the Western District of Michigan, 283 F.2d 61, 62 (6th Cir. 1960), cert. denied, 365 U.S. 828, 81 S.Ct. 713, 5 L.Ed.2d 706 (1961); United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976); Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); Hayes v. National Football League, 463 F.Supp. 1174, 1178 (C.D.Cal.1979); Hawaii-Pacific Venture Capital Corp. v. Rothbard, 437 F.Supp. 230, 236 (D.Hawaii), appeal dismissed, 564 F.2d 1343 (9th Cir. 1977). As properly stated by the Tenth Circuit Court of Appeals in United States v. Olander, 584 F.2d 876, 883 (10th Cir. 1978):

It was not improper for Judge Boldt to pass on the motion to disqualify. The law is clear that he must determine whether the affidavit is sufficient, if true, to require that he recuse himself. Only if he finds it thus sufficient is he required to have another judge hear the motion.

See United States v. Azhocar, 581 F.2d 735, 738-39 (10th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979); United States v. Haldeman, 559 F.2d 31, 131 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).

In addition to imposing upon the trial court the nondelegable duty of passing on the legal sufficiency of a disqualification request, existing legal precedent counsels that a "trial judge has as much obligation not to recuse himself when there is no reason to do so as he does to recuse himself when the converse is true."¹ United States v. Bray, supra, 546 F.2d at 857. Accord: In re Union Leader Corp., 292 F.2d 381, 391 (1st Cir.), cert. denied, 368 U.S. 927, 82 S.Ct. 361, 7 L.Ed.2d 190 (1961); Wolfson v. Palmieri, 396 F.2d 121, 124 (2d Cir. 1968); Smith v. Danyo, 441 F.Supp. 171, 175 (M.D. Pa.1977), aff'd, 585 F.2d 83 (3d Cir. 1978); Andrews, Mosburg, Davis, Elam & Bixler, Inc. v. General Insurance Company of America, 418 F.Supp. 304, 307 (W.D.Okla. 1976). Underlying this obligation is the recognition that "the granting of a motion to recuse necessarily results in a waste of the judicial resources which have already been invested in the proceeding." In re International Business Machines Corp., 618 F.2d 923 at 933 (2d Cir. 1980). Thus, disqualification is not favored in instances where, as here, a single judge has acquired by experience, familiarity with a protracted, involved case which could not easily be passed on to a second judge.² Bradley v. School Board of City of Richmond, Virginia, 324 F.Supp. 439, 449 (E.D.Va.1971). As stated by the Second Circuit Court of Appeals:

The mere filing of an affidavit of prejudice does not require a judge to recuse himself. On the contrary, we have held that a judge has an affirmative duty to inquire into the legal sufficiency of such an affidavit and not to disqualify himself unnecessarily, particularly "where the request for disqualification was not made at the threshold of the litigation and the judge has acquired a valuable background of experience." Rosen v. Sugarman, 357 F.2d 794, 797-98 (2d Cir. 1966).

National Auto Brokers v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 844, 59 L.Ed.2d 38 (1979). Cf. Kelley v. Metropolitan County Board of Education, 479 F.2d 810, 811 n. 1 (6th Cir. 1973).

In support of the instant motion, plaintiff has submitted for the Court's consideration a total of eight affidavits, five of which are testimonials of individuals who have provided or who currently provide the plaintiff with legal representation in the within action.³ The remaining affiants, Robert H. Holden and David T. Abbott, are former reporters for the Cleveland Plain Dealer who apparently had occasion to observe certain proceedings in the instant cause.

In assessing the affidavits, the Court observes that for purposes of the present inquiry, "all facts stated with particularity are to be taken as true." United States v. Haldeman, supra, 559 F.2d at 131. However, "assertions merely of a conclusionary nature are not enough, nor are opinions or rumors." Id. at 134 (footnotes omitted). Accord: United States v. Bray, supra, 546 F.2d at 857; United States v. Corr, 434 F.Supp. 408, 412-13 (S.D.N.Y.1977); Smith v. Danyo, supra, 441 F.Supp. at 175; Hayes v. National Football League, supra, 463 F.Supp. at 1179. Thus, in order for an affidavit to be sufficient, "specific facts and reasons must be laid out; conclusory allegations and speculations are not sufficient." Hawaii-Pacific Venture Capital Corp. v. Rothbard, supra, 437 F.Supp. at 234. See Sperry Rand Corp. v. Pentronix, Inc., 403 F.Supp. 367, 371-372 (E.D.Pa.1975).

An appraisal of the submissions under the foregoing principles discloses that the essential thrust of the plaintiff's motion is that the attitude, demeanor, rulings and other written opinions of the Court infer "... that the impartiality of the Honorable Robert B. Krupansky toward the City of Cleveland may reasonably be questioned". Plaintiff's Motion for Disqualification. Plaintiff charges in this regard that the City has been subjected throughout the course of these proceedings to a disproportionate number of adverse and allegedly erroneous rulings, many of which have pertained to the pursuit of pretrial discovery. Plaintiff further predicates the motion at bar upon the impressions and perceptions of a number of the aforesaid affiants who, having observed or participated in various judicial proceedings undertaken in connection with the instant action, maintain that the Court's general demeanor evidences a clear appearance of partiality. Plaintiff accordingly urges that disqualification herein is warranted in order to preserve said party's constitutional right to a fair trial and to comport with the mandate of 28 U.S.C. § 455(a) (Supp.1979), which provides in relevant part as follows:

Any ... judge ... of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

To properly assess the legal sufficiency of the instant motion under § 455, it is incumbent upon the Court, for the reasons developed more fully below, to examine a concomitant provision, 28 U.S.C. § 144, and the judicial constructions thereunder. This statute provides:

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.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S.C. § 144. Section 144 explicitly requires that a motion for recusal must be timely made. In addition, the statutory provision has been authoritatively construed to mandate disqualification only where the prejudice or bias in question is attributable to an extrajudicial source. As stated by the Supreme Court in United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966):

The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 232, 65 L.Ed. 481.

Accord: United States v. Azhocar, supra, 581 F.2d at 739; Smith v. Danyo, supra, 585 F.2d at 87; United States v. Bray, supra, 546 F.2d at 859. See Ex Parte American Steel Barrel Co., 230 U.S. 35, 43-44, 33 S.Ct. 1007, 1010, 57 L.Ed. 1379 (1913).

The applicability of the foregoing principles to new section 455 has become increasingly apparent. Recent authorities considering the relationship between sections 144 and 455 have determined, upon reviewing the pertinent legislative history, that these related provisions must be construed in pari materia. Davis v. Board of School Commissioners, supra, 517 F.2d at 1051-52; United States v. Olander, supra, 584 F.2d at 882; United States v. Carignan, 600 F.2d 762, 763-64 (9th Cir. 1979); In re International Business Machines Corp., supra, 618 F.2d at 928; Hawaii-Pacific Venture Capital Corp. v. Rothbard, supra, 437 F.Supp. at 233. See Hepperle v. Johnston, 590 F.2d 609, 613-14 (5th Cir. 1979); Lazofsky v. Sommerset Bus Company, Inc., 389 F.Supp. 1041, 1044-45 (E.D.N.Y.1975). Of particular significance to the instant controversy, recent case...