In re Starr

• Decision Date: 01 August 1997
• Docket Number: No. LR-M-97-91.,LR-M-97-91.
• Citation: 986 F.Supp. 1144
• Parties: In re Independent Counsel Kenneth W. STARR.
• Court: U.S. District Court — Eastern District of Arkansas

986 F.Supp. 1144

In re Independent Counsel Kenneth W. STARR.

No. LR-M-97-91.

United States District Court, E.D. Arkansas, Western Division.

August 1, 1997.

MEMORANDUM OPINION

WILSON, District Judge.

Pending before the eight District Judges of the Eastern District of Arkansas is a second letter-complaint (Mandanici II) by Connecticut lawyer Francis T. Mandanici, alleging various conflicts of interests on the part of Mr. Kenneth W. Starr in his role as Independent Counsel in what is widely known as the Whitewater investigation.

Judge Elsijane T. Roy, Judge Henry Woods, Judge James M. Moody, and I have

determined that we should recuse, for reasons set forth below.

In the Eastern District of Arkansas we have long assigned cases by random selection. It is the belief of the District Judges of the Eastern District that a litigant, or complainant, is entitled to the judge she or he draws by random selection. In this case, the complaint has been made to each judge, but those of us who are recusing believe that the parties involved, the bench and the bar, and the public are entitled to know why we are recusing, because of the importance of the matter before us, and because our recusal may, in effect, amount to a dismissal of the current complaint against the Independent Counsel.

There are a variety of reasons a judge may recuse, but it should be for a good and sufficient reason. When a judge is asked to recuse by a party, if she or he denies the request, the reasons for the recusal must be stated so that an appellate court can review the recusal to determine if there was an abuse of discretion. While the authorities are not as stringent in requiring recusing judges to state their reasons, most courts which have considered the issue have indicated that it is a better practice to set forth the reason for the recusal.

A judge, "may have personal reasons (for a recusal)," but these reasons must be valid. Demers v. Gerety, 92 N.M. 749, 595 P.2d 387 (App.1978). Likewise, in Kurz v. Justices of the Supreme Court of New York, Kings County, 228 A.D.2d 74, 654 N.Y.S.2d 783 (1997) the Appellate Division of the Supreme Court of New York stated, "A judge who recuses himself or herself should state, on the record, the general reasons for the recusal." And Judges Bright, Gibson (John R.) and Bowman have written that judges should "not disqualify themselves unnecessarily." Davis v. C.I.R., 734 F.2d 1302, 1303 (8th Cir.1984). This is the general rule: "A judge is not required to withdraw from hearing a case upon a mere suggestion that ... [she or he] ... is disqualified to sit, and it is improper for ... [the judge] ... to do so unless the alleged cause of recusation is known by ... (the judge) ... to exist or is shown by proof to be true in fact." 48A C.J.S. § 151 at p. 856 (1981) (emphasis supplied).

So that one may understand the issues involved, I borrow, verbatim, from an analysis done by the Honorable G. Thomas Eisele:

I. Background

On January 31, 1994, the Attorney General of United States appointed Robert B. Fiske, Jr., as independent counsel in the Whitewater investigation. On August 5, 1994, subsequent to the reenactment of the statute governing the appointment of independent counsel, see 28 U.S.C. § 591 et seq. (West 1997), the Special Division of the United States Court of Appeals for the District of Columbia Circuit charged under that statute with appointing independent counsels ordered the appointment of Mr. Starr.¹ Mr. Starr was to replace Mr. Fiske in the ongoing Whitewater investigation In its order, the Special Division cited as the basis for denying Attorney General Janet Reno's request that Mr. Fiske be appointed the potential appearance of impropriety that could arise from the fact that Mr. Fiske had been appointed by Attorney General Reno, who was appointed by President Clinton, an object of the relevant investigation. See Order of August 5, 1994, Appointing Kenneth W. Starr Independent Counsel, quoted infra.

Mr. Mandanici's vendetta against conservative forces and his objections to Mr. Starr's involvement in the Whitewater investigation are many and of long standing. News accounts reveal that Mr. Mandanici's father was a Democratic mayor whose administration was targeted by Reagan Administration prosecutors, and four years ago Mr. Mandanici wanted a grand jury to indict Neil Bush, President Bush's son, on twelve counts in connection with the 1988 collapse of Silverado Banking, Savings and Loan Association. Recently, he has urged the Justice Department (and the United States Attorney in this District) to pursue criminal charges against Mr. Starr. Thus, Mr. Mandanici's animus is obvious.

Mr. Mandanici first reacted to the Whitewater investigation in September of 1994, when he unsuccessfully pursued a conflict-of-interests complaint against the Hon. David B. Sentelle, a member of the Special Division which appointed Mr. Starr.² In August of 1996, Mr. Mandanici filed a complaint with the Eighth Circuit Court of Appeals, but the court took no action. Apparently, Mr. Mandanici also lodged a complaint with the United States Supreme Court.

In September of 1996, Mr. Mandanici sent his first letter-complaint to the judges of this Court, asking that "the Court disbar, suspend, reprimand, or take other disciplinary action against a member of the Bar of the Court, Kenneth W. Starr, due to his violation of ethical rules concerning conflicts of interest." The Court voted to forward Mr. Mandanici's complaint to the Attorney General for her review in the light of her removal power under 28 U.S.C. § 596. By letter dated September 24, 1996, Chief Judge Reasoner sent the complaint to Attorney General Reno.

By letter date-stamped February 7, 1997, Mr. Michael E. Shaheen, Jr., counsel with the Office of Professional Responsibility of the Department of Justice, responded to Chief Judge Reasoner. Mr. Shaheen wrote that, "[i]n our view, assuming for the purpose of argument that all of the matters raised in those materials are supported by credible evidence, those matters are not of a nature such as would justify the Attorney General's use of her removal power under 28 U.S.C. § 596." Letter from Michael E. Shaheen to Hon. Stephen M. Reasoner dated February 7, 1997, at 1. Mr. Shaheen cited legislative history to the effect that the Attorney General should use her removal power only in "extreme" cases. Id. at 2. Mr. Shaheen did comment, however, that, "[o]f course, independent counsel should refrain, during their tenure, from activities that may be or appear to be partisan." Id. With respect to Mr. Starr's involvement with the Resolution Trust Corporation (hereinafter the "RTC"), Mr. Shaheen wrote that

it is true that the materials presented to us on their face indicate that Judge Starr at one time may have suffered a technical conflict of interest. However, those materials also make it clear that no such conflict exists at this point. Consequently, there is no information to support the proposition that such a conflict, if in fact it ever actually existed, substantially impairs Judge Starr's current ability to carry out the duties of his office.

Id.³ Finally, Mr. Shaheen noted that the Department of Justice would take no action. The "Pepperdine-Scaife" issues, see infra, were not mentioned in Mr. Mandanici's first letter.

By letter to the Court dated March 11, 1997, Mr. Mandanici renewed his request that the Court refer this matter to counsel for further investigation and the prosecution of a formal complaint. In this second letter-complaint, Mr. Mandanici notes that Mr. Shaheen's conclusion that Mr. Starr's alleged conflicts do not constitute "extreme" misconduct leaves open the question of whether those conflicts establish violations of less demanding standards. Thus, Mr. Mandanici backs off from the idea that Mr. Starr should be removed and suggests that the Court consider "the less serious matters of suspension, probation, reprimand or admonition which do not require the satisfaction of an extreme standard." Mandanici Complaint II at 4. In his March 11, 1997, letter-complaint, Mr. Mandanici emphasizes two principal conflicts on Mr. Starr's part: the alleged conflict between Kirkland & Ellis⁴ and the RTC and the alleged conflict involving Mr. Starr's relationships with Richard Mellon Scaife, his businesses, the Scaife Foundation, and Pepperdine University—specifically, that Mr Starr is beholden to conservative, anti-Clinton entities which are advancing his career and, ergo, that Mr. Starr would have a personal and financial motivation and incentive to discredit President and Mrs. Clinton which could conflict with the public interest in the fair, just, and even-handed enforcement of the federal criminal laws. In light of the Justice Department's response regarding the older RTC allegations, the Court no longer finds any reason to address the RTC allegations. The Court has chosen, rather, to focus its interest on the new Pepperdine-Scaife issues.

The Court crossed this uncharted terrain with hesitation and caution. It first inquired of Chief Judge John Garrett Penn of the United States District Court for the District of Columbia how his court was handling Mr. Mandanici's complaint. On April 18, 1997, the Court contacted Attorney General Reno and requested her views and advice in camera. On May 2, 1997, it contacted the Special Division which appointed Mr. Starr to inquire whether that Division would "take up, consider, and resolve the issues raised by Mr. Mandanici."

On May 8, 1997, the Court received a response from Judge Sentelle on behalf of the Special Division. Judge Sentelle indicated that the authority of the Special Division is purely statutory and that that Division has only one power—that is, appointment. Thus, the Special Division concluded that it has no jurisdiction to pass upon the allegations leveled by Mr. Mandanici. Judge Sentelle's letter did note, however, that independent counsel may be subject...