Hirschkop v. Virginia State Bar Ass'n, Civ. A. No. 74-0243-R.

• Decision Date: 26 November 1975
• Docket Number: Civ. A. No. 74-0243-R.
• Citation: 406 F. Supp. 721
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Philip J. HIRSCHKOP v. VIRGINIA STATE BAR ASSOCIATION et al.

406 F. Supp. 721

Philip J. HIRSCHKOP v. VIRGINIA STATE BAR ASSOCIATION et al.

Civ. A. No. 74-0243-R.

United States District Court, E. D. Virginia, Richmond Division.

November 26, 1975.

Philip J. Hirschkop, pro se.

Richard Shadyac, Annandale, Va., Jeremiah S. Gutman, New York City, for plaintiff.

Anthony F. Troy, Asst. Atty. Gen. of Va., Henry M. Massie, Jr., John W. Riely, James E. Farnham, Jack E. McClard, Richmond, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

This matter is before the Court on plaintiff Philip J. Hirschkop's motion, filed on 24 November 1975, for disqualification of the presiding judge in the above styled action.¹

COPYRIGHT MATERIAL OMITTED

The Court notes that plaintiff has failed to comply with the Local Rules of Practice, Rule 11, in that no brief in support of the instant motion was filed. On this basis alone, the Court need not consider it. The Court waives this requirement.

Moreover, no statutory or other authority is alleged in the motion, but the Court assumes plaintiff is proceeding under 28 U.S.C. §§ 144 and 455 which state in relevant part:

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 10 days before the beginning of the term session 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 a certificate of counsel of record stating that it is made in good faith. Id. § 144.

(a) Any . . . judge, magistrate, or referee in bankruptcy of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself . . . (1) Where he has personal bias or prejudice concerning a party . . . Id. § 455.²

As to the assumed section 144 contention, the Court observes that a "timely and sufficient affidavit" must be filed. An affidavit has been construed to be untimely "if the affiant after knowledge of the facts showing the supposed bias, has invoked or sought to invoke the Courts' affirmative action in his behalf before filing the affidavit." Baron and Holtzoff, Federal Practice and Proceeding § 902 (Ed. Wright 1971); Skirvin v. Mesta, 141 F.2d 668 (10th Cir. 1944). Also see, Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation, 507 F.2d 1281 (8th Cir. 1974); Wyant v. Brennan, 85 F.2d 920 (4th Cir. 1936); Chafin v. United States, 5 F.2d 592 (4th Cir. 1925). Here all the alleged acts were known or knowable, if true, with due diligence from the public record or otherwise except for the Wicker incident alleged. Affirmative relief was sought from the Court with respect to the Wicker incident as late as 18 November 1975. Thus, all allegations involving prior incidents or a preexisting status were not timely made.

The Wicker incident itself cannot afford a basis for disqualification since it was a judicial act. In order to justify disqualification the bias and prejudice must arise from an extrajudicial source and result in an opinion on some basis other than what the judge learned from his participation in the case. United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), certiorari denied 406 U.S. 976, 92 S.Ct. 2411, 32 L.Ed.2d 676 (1972).

An affidavit to be sufficient must follow the format outlined in the statute and alleged facts legally sufficient to show personal bias and prejudice. See United States v. Partin, 312 F.Supp. 1355 (D.C.La.1970). The affidavit filed herein fails on both counts.

The affidavit is not accompanied by "a certificate of counsel of record stating that it is made in good faith." 28 U.S.C. § 144, supra. Though plaintiff is, himself, counsel of record, nevertheless no such certification was made by plaintiff in either capacity. See, Flegenheimer v. United States, 110 F.2d 379 (3rd Cir. 1936); Town of East Haven v. Eastern Airlines, Inc., 293 F.Supp. 184 (D.Conn.1969); also Freed v. Inland Empire Ins. Co., 174 F.Supp. 458 (D.Utah 1959).

With regard to the legal sufficiency, the affidavit, accepted as true, must clearly delineate circumstances showing personal bias or prejudice. See United States v. Beneke, 317 F.Supp. 1326 (D.C.Minn.1970), affd., 449 F.2d 1259 (8th Cir. 1971). Neither in the affidavit nor motion is there any allegation that meets this requirement. Allegations numbered 1, 5, 6, 7, 8, 9 are all related to actions taken or statements made during the course of the instant judicial proceeding which as a matter of law are inadequate for recusation. United States v. Grinnell, supra; Pfizer, Inc. v. Lord, supra; United States v. Mitchell, 377 F.Supp. 1312 (D.C.Dist.Col. 1974).

Allegations numbered 2 and 10 state that the Court is personally familiar with numerous persons directly involved as witnesses in the case and thus, it will be difficult for it to approach their testimony with an impartial perspective. The fact, however, that the Court may be personally familiar, or even friends, with potential witnesses does not make him predisposed in favor of them to the point where recusal is required. If such familiarity, or friendship, were an appropriate standard for determining when recusal is necessary, either very few cases could be heard by the federal judiciary or, "federal judges would be rendered hermits upon their appointment." Firnharber v. Sensenbrenner, 385 F.Supp. 406 (D.C.Wis.1974). More pertinently, such familiarity with witnesses is not and does not even imply "personal bias or prejudice" against or for a party.

Allegation number 3 says that the Court may have knowledge of the workings of the Grievance Committee which are a part of the subject of the instant cause. To suggest that general knowledge about practices or procedures which are the subject matter of a cause produces personal bias or prejudice is simply incredible.

The Court further submits that allegation number 4, suggesting an extremely tenuous connection with a man purportedly at odds with plaintiff, is patently without merit. The reasoning and authority advanced relative to allegations numbered 2 and 10 a fortiori are applicable here.

Lastly, allegation number 11 recites that the Court was a member of the class, city attorneys, that plaintiff complains gets preferential treatment under the rules attacked herein. In response the Court refers plaintiff to Antonello v. Wunsch, 500 F.2d 1260 (10 Cir. 1974). This case held that, in an action attacking the date established by the state Supreme Court for abolition of the doctrine of sovereign immunity, the fact that the judge had been a member of the state Supreme Court at the time such state court ruling was made and had voted with the majority, was not a ground for disqualification. The facts of the Wunsch case are sufficiently analogous to corroborate this Court's independent conclusion that allegation number 11, whatever it is supposed to show, certainly does not show personal bias or prejudice.

With respect to the assumed section 455 contention the Court reiterates that bias or prejudice has not been shown, nor even the appearance of the same. What in essence is a generalized affidavit that the Judge is an "Establishment" person and the plaintiff is an "Anti-establishment" person, even if accepted as true for this motion, cannot override the Court's duty to sit. Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949); Bradley v. School Board, 324 F.Supp. 439 (E.D.Va.1971). Indeed, the affidavit may be sufficient to show that plaintiff is not satisfied with the presiding judge, but it gives no basis upon which there could be a rational finding that the Judge has any enmity whatsoever against any party.

For the aforesaid reasons the Court finds that its duty to sit overrides the opportunity afforded by the motion to step aside and let some other judge bear the burden. See Baskin v. Brown, supra; Bradley v. School Board, supra.

An appropriate order shall issue.

1MOTION FOR DISQUALIFICATION. Comes now Philip J. Hirschkop, by counsel, and moves this Court to disqualify itself from further presiding over the above matter. In support whereof, plaintiff states as follows:

1. This case is attacking the secrecy with which the law shrouds its proceedings. The public good is contrary to such secrecy. However, at every stage of these proceedings, the Court has protected this secrecy to the benefit of the defendants and the detriment of both the public and plaintiff. In this regard, this matter was filed in May of 1974, approximately one and a half years ago. Yet, plaintiff has never argued anything in open court. This Court has denied such...