Giebe v. Pence, 26109.
| Decision Date | 19 August 1970 |
| Docket Number | No. 26109.,26109. |
| Citation | 431 F.2d 942 |
| Parties | Charlene F. GIEBE and Gerald R. Giebe, Petitioners, v. Honorable Martin PENCE and Chester H. Brower, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
D. N. Ingman, of Honolulu, Hawaii, for petitioners.
Martin Pence, U. S. District Judge, Honolulu, Hawaii, for respondents.
James E. Duffy, of Cobb & Gould, Honolulu, Hawaii, for real party in interest.
Before HAMLEY, MERRILL and DUNIWAY, Circuit Judges.
Proceeding under 28 U.S.C. § 144, the plaintiffs in Giebe v. Brower, Civil No. 3051 in the United States District Court for the District of Hawaii, moved in the district court to disqualify The Honorable Martin Pence, a judge of that court, from proceeding in that cause because of alleged personal bias and prejudice. The motion was supported by the affidavit of David N. Ingman, plaintiffs' attorney of record, and by certain exhibits.
Two hearings were held upon the section 144 motion, following which it was denied.
Plaintiffs then applied to this court for a writ of prohibition or mandamus to require Judge Pence to step aside in Giebe v. Brower. We called upon Brower, defendant in the district court action, to file an answer. The answer has now been filed.
The memorandum accompanying the petition, and Brower's answer, constitute briefs adequate for our purpose, and no oral argument will be necessary.
The district court denied the motion for disqualification on several grounds. One of these was that the affidavit filed in support of the motion was not that of a party to the proceeding.
The first sentence of the section begins with the words "* * * Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit * * *." While petitioners concede that no party to the district court proceeding made a supporting affidavit, they contend, in effect, that an affidavit made by a party's counsel of record constitutes substantial compliance with the statute.
In support of this view, petitioners cite Rosen v. Sugarman, 357 F.2d 794 (2d Cir. 1966). In our opinion this bankruptcy case is not in point. It is true that the section 144 affidavit was filed by the attorney for the debtor in possession, Alex L. Rosen. But the affidavit was filed in an effort to disqualify the judge from passing upon Rosen's personal application for an allowance in that proceeding. Thus, under the special circumstances, the attorney who made the affidavit was a party in...
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Danielson v. Winnfield Funeral Home of Jefferson, Civ. A. No. 80-815.
...in the following cases: United States v. Anderson, 8 Cir.1970, 433 F.2d 856, 859 (more than one affidavit filed); Giebe v. Pence, 9 Cir.Hawaii 1970, 431 F.2d 942, 943 (factual affidavit filed by counsel, but not by party); Hirschkop v. Virginia State Bar Association, E.D.Va.1975, 406 F.Supp......
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Paschall v. Mayone
...§ 144, but by counsel. This defect is in and of itself sufficient grounds to warrant denial of the instant motion. Giebe v. Pence, 431 F.2d 942 (9th Cir. 1970) (per curiam). However, since the impartiality of the court has been questioned, it is important to address defendants' contentions ......
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Universal City Studios, Inc. v. Reimerdes
...(7th Cir.1973) (motion to disqualify supported by affidavit of one of the attorneys, rather a party, is insufficient); Giebe v. Pence, 431 F.2d 942, 943 (9th Cir.1970) (same); Paschall v. Mayone, 454 F.Supp. 1289, 1299-1301 (S.D.N.Y.1978) (same). Further, the motion must be sworn to or affi......
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City of Cleveland v. Cleveland Elec. Illuminating Co., Civ. A. No. C75-560.
...against a party and not the lawyer, cf. United States ex rel. Wilson v. Coughlin, 7 Cir. supra, 472 F.2d 100 at 104; Geibe v. Pence, 9 Cir., supra 431 F.2d 942 at 943; see also, Annot., 23 A.L.R.3d 1416; and that disqualification results from extra-judicial conduct rather than from matters ......