Hall v. Burkett

• Decision Date: 27 February 1975
• Docket Number: No. Civ-74-29-C,Civ-74-220-C.,Civ-74-29-C
• Citation: 391 F. Supp. 237
• Parties: Petition of David Hall and Jo Evans Hall to Perpetuate the Testimony of Dorothy Pike. David HALL and Jo Evans Hall, Plaintiffs, v. William R. BURKETT et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

391 F. Supp. 237

Petition of David Hall and Jo Evans Hall to Perpetuate the Testimony of Dorothy Pike.

David HALL and Jo Evans Hall, Plaintiffs, v. William R. BURKETT et al., Defendants.

Nos. Civ-74-29-C, Civ-74-220-C.

United States District Court, W. D. Oklahoma.

February 27, 1975.

Byrne A. Bowman and Richard F. McDivitt, Felix, Bowman, McIntyre & McDivitt, Oklahoma City, Okl., for petitioners.

William R. Burkett, U. S. Atty., Oklahoma City, Okl., for respondent United States.

William R. Burkett, U. S. Atty., and John E. Green, Asst. U. S. Atty., Oklahoma City, Okl., for defendants William R. Burkett and Clyde L. Bickerstaff.

MEMORANDUM OPINION AND ORDER ADJUDGING MOTION TO DISQUALIFY INSUFFICIENT

CHANDLER, District Judge.

These cases arise out of a controversy between Governor David Hall of Oklahoma and his wife, Jo Evans Hall, and Clyde L. Bickerstaff, Oklahoma District Director, Internal Revenue Service, William R. Burkett, United States Attorney for the Western District of Oklahoma, and Dorothy Pike, former personal secretary of Governor Hall.

Case number 74-30-C was filed in this court on January 7, 1974, by Governor Hall and his wife wherein they allege that defendants Burkett and Bickerstaff and their subordinates and agents have been investigating the income, income tax returns and records of the plaintiffs for more than three years; that defendants have never furnished plaintiffs any information of any kind with respect to the results of this investigation; that the Internal Revenue Service is presently considering commencement of civil and criminal tax fraud proceedings against the plaintiffs; that Dorothy Pike and the defendants Bickerstaff and Burkett have in their possession certain papers, documents, and records of plaintiffs; that defendants are not willing voluntarily to permit plaintiffs to inspect said records and that the defendants obstruct justice by endeavoring to prevent plaintiffs' attorneys and investigators from interviewing Dorothy Pike and examining the records in her possession.

Plaintiffs pray for preliminary and permanent injunctions enjoining defendants (1) from preventing plaintiffs' attorneys and investigators from interviewing Dorothy Pike and examining records in her possession and (2) from counseling, advising, ordering or encouraging Dorothy Pike to refuse to talk with plaintiffs' attorneys and investigators.

This court denied plaintiffs' motion for an ex parte Temporary Restraining Order and ordered defendants to show cause, on January 17, 1974, why such relief as requested should not be granted, on which date defendants appeared and filed a Motion to Dismiss supported by affidavits of the parties and the affidavit of Dorothy Pike, dated January 15, 1974. The plaintiffs requested the right to cross-examine Dorothy Pike and the court then ordered, in accordance with Rule 43(e) of the Federal Rules of Civil Procedure, that the motion be heard upon oral testimony and depositions and not on affidavits presented by the respective parties. Accordingly, a subpoena duces tecum was issued to Dorothy Pike to appear for the purpose of taking her deposition.

Dorothy Pike was not found and defendants were, on several occasions in open court, requested to assist in locating Mrs. Pike and were reminded that it was their duty as officers of the court to do so. Defendants at all times pertinent hereto denied knowledge of her whereabouts.

On January 28, 1974, this court again requested the parties to assist in the search for Mrs. Dorothy Pike and ordered that she appear at 10 o'clock A.M. on January 29, 1974.

In action number 74-29-C Governor and Mrs. Hall seek an order authorizing them to take the deposition of Dorothy Pike and others for the purpose of perpetuating their testimony and authorizing them to examine and copy all records in the possession of said witnesses relating to the income tax liabilities of the petitioners for certain stated years.

The third action, number 74-220-C against Clyde L. Bickerstaff, Oklahoma District Director, Internal Revenue Service; William R. Burkett, United States District Attorney for the Western District of Oklahoma; and Dorothy Pike, was originally filed by Governor and Mrs. Hall in the District Court of Oklahoma County, Oklahoma, and removed to this Court by the defendants.

Plaintiffs therein pray for delivery of certain personal documents, papers, and records alleged to have been taken surreptitiously by the defendant Dorothy Pike and wrongfully detained by the defendants Bickerstaff and Burkett. It is now pending on defendants' Motion to Dismiss.

All further proceedings in number 74-30-C were stayed by order of the Court of Appeals for the Tenth Circuit on January 30, 1974, pending further order of that Court.

Numerous hearings were held in action number 74-30-C and, as a result of the statements, testimony, and actions of the defendant Burkett and other members of the bar representing defendants in the actual presence of the Court, the Court on March 11, 1974, filed an order in the office of the Clerk of the Court entitled In Re: William R. Burkett, Jeff R. Laird, James M. Peters, Floy E. Dawson, O. B. Johnston, III and G. Phil Harney and numbered Miscellaneous No. 7, disbarring William R. Burkett, Jeff R. Laird, James M. Peters, Floy E. Dawson, O. B. Johnston, III, and G. Phil Harney under Rule 4(j)(1) and (2) of the court and as provided by the rule ordered them to show cause by written petition if they wished to seek relief from said order.

The Court in the same numbered proceeding further ordered that these attorneys show cause why they should not also be held in criminal and civil contempt by reason of the same acts. Copies of said orders are appended hereto as Exhibits A and B.

In actions numbered 74-29-C and 74-220-C, pursuant to 28 U.S.C. § 144, defendants, on June 11, 1974, filed Motions to Disqualify the undersigned United States District Judge for the Western District of Oklahoma, alleging that he has a personal bias and prejudice against the defendants in the above-styled causes and against the United States. The motions were supported by the affidavit of William R. Burkett, United States Attorney for the Western District of Oklahoma.

28 U.S.C. § 144 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."

The statute does not command automatic disqualification. It is the duty of the judge who is allegedly biased to pass on the sufficiency of the affidavit of prejudice. United States v. Bell, 351 F.2d 868 (CA6 1965); Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273 (1949); Broome v. Simon, 255 F.Supp. 434 (D.C.La.1966). But he is restricted to the determination of the timeliness of the affidavit and its legal sufficiency. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Rosen v. Sugarman, 357 F.2d 794 (CA2 1966).

It is the judge's duty to refuse to sit when he is disqualified, but it is equally his duty to sit when there is no valid reason for recusation. Edwards v. United States, 334 F.2d 360 (CA5 1964); Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845 (CA2 1962), reversed on other grounds, 376 U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804. Only when such timeliness and sufficiency are both established is disqualification proper.

Timeliness

As to timeliness, § 144 requires that the ". . . affidavit . . . be filed not less then 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 . . ."

Defendants state in their motion that "said bias and prejudice became known to affiant and defendants only in March, 1974, and for that reason said affidavit could not have been filed before the beginning of the term."

But whether the affidavit was filed before the beginning of the term can no longer be the test. In 1963 Congress enacted 28 U.S.C. § 138 which provides that: "The district court shall not hold formal terms." And the rules of this court provide for a continuous session. Rule 3, Rules of the United States District Court for the Western District of Oklahoma, Effective March 15, 1973. The Tenth Circuit has held that a litigant must file his affidavit before participating in proceedings or invoking the affirmative action of the court, and this appears to be the proper test in this jurisdiction. Skirvin v. Mesta, 141 F.2d 668 (CA10 1944). Defendants here have obviously failed to meet this deadline, and must therefore show good cause for their delay.

Discovery, after the deadline (here participation in the proceedings), of facts indicating the judge's bias constitutes good cause for late filing. Hurd v. Letts, 80 U.S.App.D.C. 233, 152 F.2d 121 (1945). Defendants have alleged such late discovery, which allegation must be assumed to be true for the purposes of this motion. Rosen v. Sugarman, supra; Lewis v. United States, 14 F.2d 369 (CA8 1926); Berger v. United States, supra.

Where the good cause requirement has been met, a literal reading of § 144 would mean that no time requirement at all would be imposed. Courts have plugged this loophole, however, by holding that even if there is good cause for missing the deadline, the affidavit must be filed with...