In re WHET, Inc.

• Decision Date: 21 March 1983
• Docket Number: Bankruptcy No. 80-1542-HL.
• Citation: 33 BR 424
• Parties: In re WHET, INC., Debtor.
• Court: U.S. Bankruptcy Court — District of Massachusetts

33 B.R. 424 (1983)

In re WHET, INC., Debtor.

Bankruptcy No. 80-1542-HL.

United States Bankruptcy Court, D. Massachusetts.

March 21, 1983.

Anthony R. Martin-Trigona, pro se.

Jon D. Schneider, Goodwin, Proctor & Hoar, Boston, Mass., for trustee of WHET, Inc.

David Ferrari, trustee.

MEMORANDUM AND ORDER ON RECUSAL

HAROLD LAVIEN, Bankruptcy Judge.

Before the Court are the recusal motions of Anthony R. Martin-Trigona, a creditor and shareholder of the debtor WHET, Inc.,¹ and Edward Kenneth Suskin, Esquire, on behalf of three creditors² of the debtor.

A brief review of this case will put the subject motion in context. Voluntary Chapter 11 petitions for each of two radio station corporations, New Haven Radio, Inc., and WHET, Inc., owned by Mr. Martin-Trigona, and Mr. Martin-Trigona's personal Chapter 11 petition were filed in the Southern District of New York. The WHET, Inc. petition was filed on August 15, 1980. The New Haven Radio, Inc. case and the individual Chapter 11 case were transferred to the District of Connecticut. This debtor's case was transferred to the District of Massachusetts on September 3, 1980. The case was assigned to me through the "blind draw" system. At that time, Mr. Martin-Trigona was in a federal penal institution in Missouri, and the radio station of which he was chief executive officer was experiencing serious financial problems. As a result of a hearing in Boston on September 17, 1980, a trustee was ordered and the United States Trustee appointed David J. Ferrari. The trustee determined that without the infusion of substantial capital, which did not seem then available, reorganization was not possible. The station would have substantially less value without its FCC license and without transmitter towers and both were in jeopardy. Sale of the station was the only appropriate route.³ After notice and hearings detailed in this Court's Memorandum on Sale and Related Matters, In re WHET, Inc., 12 B.R. 743 (Bkrtcy.D.Mass.1981), the Court on June 30, 1981, authorized the sale of the station.

The first of five recusal motions was filed by Mr. Martin-Trigona on July 23, 1981.⁴ With each motion, his language grew more abusive in describing a vast plot against him devised by the "Boston Bankruptcy Ring."⁵ In an attempt to help him perceive his situation from a more balanced perspective, I hopefully answered one of his vitupertive motions with a portion of a short, "turn-the-other-cheek-type" prayer.⁶ This had the opposite of the desired calming effect. Mr. Martin-Trigona's charges and threats expanded beyond pleadings filed with the court to include letters not only to me, but to the Federal Bureau of Investigation, the Internal Revenue Service, the Court of Appeals, my relatives, and perhaps others. The fifth motion to recuse, the motion which is the subject of this memorandum, was filed in open court on January 5, 1983. This was the first recusal motion the movant argued in person.⁷ His pro se presentation lasted for over four hours, on January 5, 1983, and by that, I do not mean to suggest that he would not have argued the others had he been free to do so. I am merely pointing out that he was given full reign at a time chosen for his convenience and with a briefing schedule selected and extended at his request so that both I and any reviewing court could be sure that however it turned out, there was a full and complete presentation of any and all grievances.

After careful review of his handwritten recusal motion,⁸ oral argument, and subsequent memoranda of law, it appears that the asserted grounds for recusal can be fairly summarized as follows: First, the Court's conduct of the proceedings suggests a conspiracy and an improper bias of the Court in favor of the trustee and his counsel. Second, because the Court is the subject of several lawsuits and investigations initiated by the movant, I cannot possibly be perceived by a reasonable person as unbiased or impartial.

Title 28, § 455 of the United States Code contains the most recent rule promulgated by Congress with regard to disqualification of federal judges, including bankruptcy judges. It reads, in part:

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

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

The language of § 455(a) is easier to state than to apply. Possibly, the most troubling part of the language concerns the determination of in whose eyes must the impartiality be open to question, and what is meant by "reasonably." The First Circuit Court of Appeals has provided us some guidance:

The 1974 Amendment to 28 U.S.C. § 455 changed the standard for recusal from a subjective one, which left to the judge "in his opinion" the decision whether it would be improper to sit, 28 U.S.C. § 455 (1970), to the present objective standard requiring disqualification whenever the judge\'s impartiality "might reasonably be questioned."

. . . .

The proper test, it has been held, is whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge\'s impartiality, not in the mind of the judge himself or even necessarily in the mind of the litigant filing the motion under 28 U.S.C. § 455, but rather in the mind of the reasonble man. United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976) (citing Parrish v. Board of Commissioners of Alabama State Bar, 524 F.2d 98, 103 (5th Cir.1975); Note, Disqualification of Judges and Justices in the Federal Courts, 86 Harv.L.Rev. 736, 746-47 (1973)).

See also In re United States, 666 F.2d 690, 694 (1st Cir.1981).

Some courts have resolved the issue of disqualification by determining that appearances are most important, regardless of the facts. See In re Olson, 20 B.R. 206 (D.Neb.1982), where the district court reversed the bankruptcy court and required recusal because the judge was aware that the debtor had made accusations of improper conduct against him to various government officials. However, the Fifth Circuit case on which Olson relied was grounded on more compelling and persuasive facts. See id. at 21 (citing Potashnick v. Port City Const. Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980) (father of trial judge was partner in law firm representing a party in the case, and attorney for the plaintiff also represented judge in unrelated matter; "questionable case" calling for disqualification)). Olson is not the view of the First Circuit and may, in fact, be an aberration. Even Chief Justice MacKinnon, a proponent of the "appearance of justice" rule who felt strongly enough about that view to dissent, alone, in the case of Mitchell v. Sirica, 502 F.2d 375, 379 (D.C.Cir.1974), limited his application of the rule. He "strongly urged (without success) the application of the `appearance of justice' rule with respect to extrajudicial source bias and refused to go so far as to `bias developed during the very trial.'" Lazofsky v. Sommerset Bus Co., Inc., 389 F.Supp. 1041, 1045 (D.E.D.N.Y. 1975). What Justice MacKinnon said in Sirica was:

We were concerned that disqualifying judges for bias developed during the very trial in which disqualification is sought would cripple the courts, and refused to disqualify the judge. Plainly, if such bias were sufficient, virtually every judge in every case would be disqualified and the courts abruptly would cease functioning. Mitchell v. Sirica, supra, at 379 (citing Tynan v. United States, D.C.Cir. 376 F.2d 761, 764, cert. denied, 389 U.S. 845 88 S.Ct. 95, 19 L.Ed.2d 111 (1967))

In its report on the 1974 Amendment the House Judiciary Committee stated:

While the proposed legislation would remove the "duty to sit" concept of present law, a cautionary note is in order. No judge, of course, has a duty to sit where his impartiality might be reasonably questioned. However, the new test should not be used by judges to avoid sitting on difficult or controversial cases.

At the same time, in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant\'s fear that a judge may decide a question against him into a "reasonable fear" that the judge will not be impartial. Litigants ought not to have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice. H.R.Rep. No. 93-1453, 93rd Cong., 2nd Sess., reprinted in 1974 U.S. Code Cong. & Ad.News 6351, 6355 (emphasis added). See also Judicial Canon 3C and Canon 2 of the ABA Code of Judicial Conduct.

The question, therefore, to be addressed when considering recusal under § 455 is whether "disqualification should follow if the reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality." Potashnick, supra, at 1111; see also United States v. Ferguson, 550 F.Supp. 1256, 1260 (S.D.N.Y. 1982) ("whether a reasonable member of the public at large, aware of all the facts, might fairly question the Court's impartiality").

While 28 U.S.C. § 144 is not directly pertinent since it expressly does not apply to bankruptcy judges,⁹ it is so closely related that some of its requirements are still relevant:

(3) The statutory requirement that the affidavit must state the facts and reasons showing disqualification has been construed to require that it set forth the identifying facts of times, places, persons, occasions

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