In re Gibson
| Decision Date | 08 August 2019 |
| Docket Number | No. 19-2342,19-2342 |
| Citation | 950 F.3d 919 |
| Parties | IN RE: Adam GIBSON, et al., Petitioners. Curtis Lovelace, et al., Parties in Interest. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ellen Kornichuk Emery, Attorney, Ancel, Glink, Diamond, Bush, Dicianni & Krafthefer, P.C., Chicago, IL, for Petitioners Adam Gibson, Robert Copley, and John Summers.
James A. Hansen, Attorney, Schmiedeskamp, Robertson, Neu & Mitchell, Quincy, IL, for Petitioners Gary Farha, and James Keller.
Tara E. Thompson, Attorney, Loevy & Loevy, Chicago, IL, for Parties in Interest.
Before Manion, Hamilton, and Brennan, Circuit Judges.
Defendants in a civil rights case in the Central District of Illinois moved to disqualify the assigned judge under 28 U.S.C. § 455(a). When the judge denied their motion, defendants filed a petition for a writ of mandamus in this court seeking an order requiring the judge to disqualify herself on two grounds. We denied the petition by order of August 8, 2019, saying that an opinion would follow. As we explain below, neither ground for recusal required the judge to disqualify herself from this case.
We first set the scene with the underlying lawsuit and summarize proceedings on the recusal issues in the district court. We then address the use of mandamus to litigate disqualification after our decision in Fowler v. Butts , 829 F.3d 788 (7th Cir. 2016). Finally, we turn to the defendant-petitioners’ specific arguments for disqualification.
On February 14, 2006, Mrs. Cory Lovelace died in Quincy, Illinois. The cause of her death was undetermined at that time, but the police later reopened the investigation. In August 2014, a grand jury indicted Cory’s husband, Curtis Lovelace, for her murder. Curtis Lovelace, who is a plaintiff in the underlying civil rights suit, was and remains a criminal defense lawyer in the Illinois bar.
Lovelace was tried for murder in 2016, resulting in a hung jury and mistrial. In a second trial in March 2017, a jury found him not guilty. In May 2017, Lovelace and his sons filed suit against several Quincy police officers, the city of Quincy, the Adams County coroner, and Adams County itself under 42 U.S.C. § 1983 alleging federal constitutional violations. They claim that defendants fabricated evidence, coerced witnesses, concealed exculpatory evidence, and in essence framed Lovelace for murdering his wife.
The new civil rights case was assigned to Judge Myerscough, who denied defendants’ partial motion to dismiss in November 2017. Discovery proceeded. A year later, in November 2018, the case was reassigned to Judge Bruce. Five months after that, on April 15, 2019, plaintiffs moved to disqualify Judge Bruce under 28 U.S.C. § 455. Lovelace was representing in post-conviction proceedings a federal defendant who had been sentenced by Judge Bruce. Judge Bruce granted the recusal motion the next day, and Chief Judge Darrow reassigned the case back to Judge Myerscough.
Judge Myerscough promptly scheduled a trial for late 2019 and a status conference for May 13, 2019. During that conference, Judge Myerscough informed counsel about several circumstances that might have seemed relevant to counsel regarding her impartiality, as is her usual practice.
The Judge first told counsel that her daughter, Lauren Myerscough-Mueller, had just been hired as an attorney with the University of Chicago’s Exoneration Project, having started work a week earlier. Plaintiffs in the Lovelace civil case are represented by the law firm of Loevy & Loevy, which funds the Exoneration Project and donates time of its lawyers, including the time of the attorneys of record in this case, Jonathan Loevy and Tara Thompson. Thompson told the court and opposing counsel that she worked with Myerscough-Mueller at the Exoneration Project but did not supervise her and was not responsible for her compensation. The law firm and the Exoneration Project have screened Myerscough-Mueller from any involvement in any cases before Judge Myerscough, including this case.
The Judge also told counsel that she had recently attended a dinner for the Illinois Innocence Project—a different organization affiliated with the University of Illinois Springfield—where her daughter had worked before joining the Exoneration Project. Judge Myerscough reported that the dinner recognized many "exonerees," including plaintiff Curtis Lovelace.
Judge Myerscough also told counsel that she had been aware of the case from publicity and from brief conversations with lawyers, given the high interest in the murder trial of a criminal defense lawyer in central Illinois. Finally, she added that she had had cases with the City of Quincy and Adams County and with one defense lawyer and the firm of another defense lawyer.
The Judge invited counsel to discuss these matters with their clients and to consider whether to request recusal, as she did in other cases. Two days later, defendants filed a brief written request that Judge Myerscough disqualify herself from the case. Plaintiffs filed a written response suggesting that disqualification was not required. This led to a more formal motion and more extensive briefing on the issue. Defendants argued for Judge Myerscough’s recusal only under the general standard of 28 U.S.C. § 455(a), not the more specific criteria spelled out in § 455(b). On July 10, 2019, Judge Myerscough issued a written opinion denying the motion for recusal. Defendants in the civil litigation then filed this petition for a writ of mandamus ordering Judge Myerscough to recuse herself from the case. The petition was fully briefed.
We have long recognized that a petition for writ of mandamus is an appropriate method to seek recusal of a district judge under 28 U.S.C. § 455(a). See SCA Servs., Inc. v. Morgan , 557 F.2d 110, 117–18 (7th Cir. 1977). For over thirty years we held that a denied § 455(a) motion could be reviewed only by mandamus petition, whereas § 455(b) denials could also be reviewed on direct appeal after final judgment. See United States v. Balistrieri , 779 F.2d 1191, 1205 (7th Cir. 1985), overruled on this point by Fowler v. Butts , 829 F.3d 788, 793 (7th Cir. 2016). As we explained in Fowler , though, our position on § 455(a) was unique among the circuits and lacked statutory support. Id. at 791–92. We now permit review of a denied recusal motion—under any provision of § 455—through appeal of the final judgment. Id. at 793.
Our three-decade ban on appeals of § 455(a) denials after final judgment had a side-effect on the standard of review for mandamus petitions for recusal. Writs of mandamus are extraordinary remedies granted "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so." In re Hijazi , 589 F.3d 401, 406 (7th Cir. 2009), quoting Allied Chemical Corp. v. Daiflon, Inc. , 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). The petitioner must ordinarily show that "her right to the writ is ‘clear and indisputable.’ " United States v. Sinovel Wind Group Co. , 794 F.3d 787, 793 (7th Cir. 2015), quoting Cheney v. United States District Court , 542 U.S. 367, 380–81, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004).1
For post-judgment appeals of § 455(b) denials of recusal, we have long applied a de novo standard of review. E.g., Taylor v. O’Grady , 888 F.2d 1189, 1201 (7th Cir. 1989), citing Balistrieri , 779 F.2d at 1203 ( § 455(b) ). Then, since we had made mandamus "the only recourse available" to challenge § 455(a) denials, we departed from the usual mandamus standard and decided that we would also apply de novo (non-deferential) standards to mandamus petitions in this particular context. See Hook v. McDade , 89 F.3d 350, 353–54 & n.2 (7th Cir. 1996), citing Taylor , 888 F.2d at 1201 ; see also In re Hatcher , 150 F.3d 631, 637 (7th Cir. 1998), citing Hook , 89 F.3d at 353–54 ; In re United States , 572 F.3d 301, 307 (7th Cir. 2009), also citing Hook , 89 F.3d at 353–54 ; In re Sherwin-Williams Co. , 607 F.3d 474, 477 (7th Cir. 2010), citing In re United States , 572 F.3d at 307. We explained that the unusually relaxed mandamus standard stemmed from the unavailability of direct review: "Because the rule forecloses appellate review at the conclusion of the case, we review a petition for mandamus to enforce section 455(a) under the normal appellate standard." United States v. Boyd , 208 F.3d 638, 646 (7th Cir. 2000), vacated on other grounds, 531 U.S. 1135, 121 S.Ct. 1072, 148 L.Ed.2d 949 (2001).
Adopting a de novo standard of appellate review as the test for mandamus relief thus grew out of the now-abandoned rule in Balistrieri , 779 F.2d at 1205. The de novo standard departed from the normal role mandamus serves. The writ does not, after all, allow review in the ordinary sense; rather, a petitioner must establish her entitlement to the "extraordinary remedy" in the court of appeals in the first instance. Cheney , 542 U.S. at 380, 124 S.Ct. 2576. The writ must "not be used as a substitute for the regular appeals process." Id. at 380–81, 124 S.Ct. 2576.
Granted, mandamus functions in practice as a limited form of interlocutory appeal. See Martin v. United States , 96 F.3d 853, 854 (7th Cir. 1996) (); see also Ex parte Crane , 30 U.S. (5 Pet.) 190, 193, 8 L.Ed. 92 (1831) (Marshall, C.J.) (). Denying a petition to order the disqualification of counsel, we said loosely that the "standard of review" on mandamus is "narrower than in an ordinary...
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