In re Lieb

Decision Date01 February 1990
Docket NumberAdv. No. 89-5334-C.,Bankruptcy No. 89-51344-C
PartiesIn re Dwight L. LIEB, Debtor. Dwight L. LIEB, Plaintiff, v. Paul J. TILLMAN; Paul J. Tillman, Trustee; Frederick L. "Rick" Thomson III; Citysavings & Loan Association; Tilcorp, Inc.; and Walzem Service Corporation, Defendants.
CourtUnited States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas

COPYRIGHT MATERIAL OMITTED

S. Mark Murray, San Antonio, Tex., Mr. Shelby A. Jordan, Corpus Christi, Tex., for debtor.

Claiborne B. Gregory, Jr., San Antonio, Tex., for Citysavings & Loan Ass'n and Walzem Service Corp.

Jack Paul Leon, San Antonio, Tex., Randall Wilson, Houston, Tex., for Paul J. Tillman, Individually, Paul J. Tillman, trustee.

Donald R. Taylor, Janice L. Jenning, San Antonio, Tex., for Frederick L. Thomson.

R. Glen Ayers, Jr., San Antonio, Tex., for Tilcorp, Inc.

ORDER DENYING MOTION FOR DISQUALIFICATION

LEIF M. CLARK, Bankruptcy Judge.

This matter comes before the court on Defendants' motion seeking to disqualify the court in this adversary proceeding pursuant to 28 U.S.C. § 455(a) or in the alternative under 28 U.S.C. § 455(b)(1). Defendants' motion is denied for the reasons set forth herein.

INTRODUCTION

The court is currently conducting a preliminary injunction hearing in this adversary proceeding. On numerous days over the course of the past several months the court has heard evidence on the matter. On January 17, 1990, Mr. Paul Tillman, one of the Defendants, was testifying. While listening to Mr. Tillman's testimony the court became concerned about a possible problem and called all counsel into chambers for a conference.

What transpired and what was said in chambers is disputed. It is not disputed, however, that during the in-chambers conference the court raised the issue of recusal under the "personal knowledge of disputed evidentiary facts" provision of 28 U.S.C. § 455(b)(1) sua sponte. Nor is it disputed that the following day the court, ruling from the bench, decided not to recuse itself sua sponte. The court has also entered a written order to that effect. Subsequently, Defendants filed a motion requesting the court to recuse itself.

DISCUSSION

The court has before it Defendants' Motion for Disqualification ("Defendants' Motion" or "Motion")1 and their Brief in Support of Defendants' Motion to Disqualify ("Defendants' Brief" or "Brief").2 Defendants submit in paragraph 12 of their Motion that disqualification is appropriate "based upon the foregoing factual recitation" and "the statements made in chambers and in open court."3 Accordingly, this court will address each of Defendant's "factual recitations" and each of the alleged "statements made in chambers and in open court."4 In addition, legal arguments contained in Defendants' Brief will be addressed.

FAILURE TO RECORD IN CHAMBERS MEETING

Defendants note in paragraph 4 of their Motion that "no court reporter was present" at the January 17, 1990 in-chambers conference between counsel for all parties and the court. Proceedings held in chambers need not be recorded. Only those proceedings conducted in open court must be recorded unless the parties agree otherwise. In re Beard, 811 F.2d 818, 833 (4th Cir.1987); United States v. Hein, 769 F.2d 609, 610-611 (9th Cir.1985); United States v. Murphy, 768 F.2d 1518, 1536 (7th Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986); United States v. Jenkins, 442 F.2d 429, 438 (5th Cir.1971).

"OFFER" OF RECUSAL

Defendants appear to be arguing in paragraphs 4 and 6 of their Motion and on pages 2 and 8 of their Brief that the court made an "offer" to counsel to recuse itself and that Defense counsel "accepted" the offer.5 Defendant's version of the facts is disputed by Plaintiffs in paragraph 4 and 5 of their Response.6 Even accepting Defendants' version as true, however, it provides no grounds for recusal.7

The decision whether a judge should recuse himself is not a matter of contract law. "Offer" and "acceptance" principles do not apply. Even if the court did have the intent to recuse itself under 28 U.S.C. § 455(b)(1) at the time of the in-chambers conference, the court was free to change its mind prior to making a final ruling on the matter the following morning. The court is also free to vacate an order of recusal. In United States v. Dalfonso, 707 F.2d 757 (3d Cir.1983), the trial judge, following an off-the-record conversation with counsel, announced that he was recusing himself from the case. After further off-the-record discussions with counsel and after further reflection, however, the judge changed his mind and decided not to recuse himself. Id. at 759. He vacated the recusal order. Id. at 759. The Third Circuit Court of Appeals affirmed the trial judge's refusal to recuse himself. Id. at 763. See Hall v. SBA, 695 F.2d 175, 180 (5th Cir.1983) ("Every judge has suffered a change of heart after reaching a tentative decision.")

IMPROPER LITIGATION TACTICS

Defendants state three times in their Motion (see paragraphs 6, 8 and 11) and once in their Brief (see page 3) that the court accused defense counsel of improper litigation tactics.8 As a matter of law this is insufficient grounds for recusal. Panzardi-Alvariz v. United States, 879 F.2d 975, 984 (1st Cir.1989) ("a court's disagreement — even one strongly stated — with counsel over the propriety of trial tactics does not reflect an attitude of personal bias against the client") (quoting In re Cooper, 821 F.2d 833, 841 (1st Cir.1987)) (emphasis in original); see Davis v. Board of School Comm'rs, 517 F.2d 1044, 1050-1052 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976) (controversy between lawyer and judge over the propriety of the lawyer's use of a class action device did not suggest bias against the client).

"CLASHES" BETWEEN COUNSEL AND THE COURT

Defendants make reference in open court to several "clashes" between the court and defense counsel.9 As a matter of law this is insufficient as the basis for a disqualification motion. Circuit Courts have refused to base disqualification under section 455 upon apparent animosity towards counsel.10 See Davis v. Board of School Comm'rs, 517 F.2d 1044, 1052 (5th Cir.1975) (disqualification should be determined "on the basis of conduct which shows bias or prejudice or lack of impartiality by focusing on a party rather than counsel"); Gilbert v. City of Little Rock, 722 F.2d 1390, 1398-1399 (8th Cir. 1983), cert. denied, 466 U.S. 972, 104 S.Ct. 2347, 80 L.Ed.2d 820 (1984) ("Antipathy to an attorney is insufficient grounds for disqualification of a judge because it is not indicative of extrajudicial bias against a `party.'"); United States v. Sibla, 624 F.2d 864, 869 (9th Cir.1980). An appearance of partiality against a party cannot simply be presumed from a rancorous relationship with the attorneys for that party. In re National Union Fire Ins., 839 F.2d 1226, 1232 (7th Cir.1988) ("Visible annoyance with counsel is no reason for recusal...."). As the First Circuit stated last year: "As a general rule, bias against the party must be shown and it is insufficient to rely on `clashes between court and counsel' as the basis of a disqualification motion." Panzardi-Alvarez v. United States, 879 F.2d 975, 984 (1st Cir.1989) (quoting In re Cooper, 821 F.2d 833, 838 (1st Cir.1987)).

REQUEST TO MAKE RECORD

Defendants' Motion correctly states in paragraph 11 that the court declined three times Defendants' request to make a record concerning what occurred in chambers. The court stands by its ruling. A motion for disqualification does not confer upon Defendants a right to make a record in open court nor does it confer upon them a right to an evidentiary hearing. Defendants have provided nothing to suggest a need for an open court proceeding. Their position can be adequately presented through pleadings and affidavits. See 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3550, at 629 (section 455 motion can be supported by an affidavit, a verified memorandum, or a statement of facts in some other form). Defendants have in fact submitted a nine-page Motion for Disqualification and a twelve-page Brief in Support of Defendants' Motion to Disqualify. In addition, Defendants previously filed a five-page Motion and Brief concerning recusal of the court when the court was considering recusal sua sponte.

A reading of case law shows that Motions for Disqualification are typically decided on the documents submitted to the court. See, e.g., Easley v. University of Mich. Board of Regents, 853 F.2d 1351 (6th Cir.1988). The recent Fifth Circuit case of Levitt v. University of Tex., 847 F.2d 221 (5th Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 536, 102 L.Ed.2d 567 (1988) provides the best guidance on this issue and the procedure to follow.11 The Court in Levitt held that the trial judge can decide based upon the "claim asserted" the threshold question of whether the circumstances would raise a doubt in the mind of a reasonable observer as to the judge's impartiality. Id. at 226. The Court added that if the trial judge decides the "claim asserted" is within section 455, "then a disinterested judge must decide what the facts are." Id. at 226. In Levitt the Court found that none of the circumstances asserted rose "to the threshold standard of raising a doubt in the mind of a reasonable observer" as to the trial judge's impartiality. Id. at 226. Accordingly, "there was no duty on the trial judge's part to recuse himself." Id. at 226.

Accordingly, based upon Levitt, the proper procedure is as follows:

(1) This court should decide whether the "claim asserted" by the Defendants "rises to the threshold standard of raising a doubt in the mind of a reasonable observer" as to this court\'s impartiality.
(2) If so, another judge should "decide what the facts are," i.e. hold an evidentiary hearing.12
(3) If not, this court should not recuse itself.

See id. at...

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