Lindsey v. City of Beaufort

• Citation: 911 F. Supp. 962
• Decision Date: 29 September 1995
• Docket Number: 3:92-1531-0,Civ. A. No. 3:93-1145-0,3:92-1656-0.
• Parties: William Bradley LINDSEY, through his Guardian ad Litem Jeffrey Blake Lindsey, Plaintiff, v. CITY OF BEAUFORT; William R. Neill, Chief of Police; Captain Jefferson Dowling, Officer Brad Payne, and other unnamed police officers; David Taub, Mayor, Dr. Charles A. Bush, Edie Rogers, Donnie Beer, and Fred S. Washington, Jr., Members of the City Council; Dean Hunter, City Manager; all in their official capacities, Defendants. John M. ASQUITH, Ricky L. Knowles, Billy D. Randall, Wayne H. Williamson, J. Blake Lindsey, Lindsey, Jeff Attlessey, John Doe, Mary Doe, and others similarly situated, Plaintiffs, v. CITY OF BEAUFORT; Colonel Jesse Altman, Jr., Chief of Police; Captain Jefferson Dowling, Sgt. Michael Lee, John Doe, and other unnamed police officers; David Taub, Mayor; Dr. Charles A. Bush, Edie Rogers, Donnie Beer, and Fred Washington, Jr., Members of the City Council; Dean Hunter, City Manager; all in their official capacities; and Colonel Jesse Altman, Jr., William Rhett, Nancy Rhett, Roger Karr, and Neil B. Lipsitz, in their individual capacities, Defendants. CALVARY BAPTIST CHURCH, on behalf of its members, and George Daughety and Richard Simpson, Plaintiffs, v. CITY OF BEAUFORT; David Taub, Mayor, Dr. Charles A. "Tony" Bush, Edie Rogers, Donnie Beer, and Fred Washington, Jr., Members of the City Council; Dean Hunter, City Manager; and Colonel Jesse Altman, Jr., Chief of Police, all in their official capacities, Defendants.
• Court: U.S. District Court — District of South Carolina

911 F. Supp. 962

William Bradley LINDSEY, through his Guardian ad Litem Jeffrey Blake Lindsey, Plaintiff, v. CITY OF BEAUFORT; William R. Neill, Chief of Police; Captain Jefferson Dowling, Officer Brad Payne, and other unnamed police officers; David Taub, Mayor, Dr. Charles A. Bush, Edie Rogers, Donnie Beer, and Fred S. Washington, Jr., Members of the City Council; Dean Hunter, City Manager; all in their official capacities, Defendants.

John M. ASQUITH, Ricky L. Knowles, Billy D. Randall, Wayne H. Williamson, J. Blake Lindsey, Lindsey, Jeff Attlessey, John Doe, Mary Doe, and others similarly situated, Plaintiffs, v. CITY OF BEAUFORT; Colonel Jesse Altman, Jr., Chief of Police; Captain Jefferson Dowling, Sgt. Michael Lee, John Doe, and other unnamed police officers; David Taub, Mayor; Dr. Charles A. Bush, Edie Rogers, Donnie Beer, and Fred Washington, Jr., Members of the City Council; Dean Hunter, City Manager; all in their official capacities; and Colonel Jesse Altman, Jr., William Rhett, Nancy Rhett, Roger Karr, and Neil B. Lipsitz, in their individual capacities, Defendants.

CALVARY BAPTIST CHURCH, on behalf of its members, and George Daughety and Richard Simpson, Plaintiffs, v. CITY OF BEAUFORT; David Taub, Mayor, Dr. Charles A. "Tony" Bush, Edie Rogers, Donnie Beer, and Fred Washington, Jr., Members of the City Council; Dean Hunter, City Manager; and Colonel Jesse Altman, Jr., Chief of Police, all in their official capacities, Defendants.

Civ. A. Nos. 3:93-1145-0, 3:92-1531-0, 3:92-1656-0.

United States District Court, D. South Carolina, Columbia Division.

September 29, 1995.

COPYRIGHT MATERIAL OMITTED

Orin Gail Briggs, Irmo, SC, Bruce W. Green, AFA, Law Center, USC, Tupelo, MS, Patrick L. Quentel, Charleston, SC, Patrick J. Flynn, Columbia, SC, for plaintiffs.

William B. Harvey, III, George Hamlin O'Kelley, Jr., Beaufort, SC, Samuel Richard Clawson, Charleston, SC, James Warner Alford, Columbia, SC, for defendants.

OPINION AND ORDER ON DEFENDANTS' MOTION TO RECUSE

PERRY, District Judge.

In these cases, the plaintiffs challenge as unconstitutionally vague and overbroad, an ordinance of the City of Beaufort, South Carolina that prohibits individuals from willfully disturbing any neighborhood or business by making or continuing "loud and unseemly noises...."

The defendants now argue that this United States District Judge is not impartial and they move to disqualify me pursuant to 28 U.S.C. §§ 144 and 455 from presiding over further proceedings in these cases. The defendants also filed the affidavit of Police Sergeant Brad Payne, a party defendant in the most recently filed case, Civil Action No. 3:XX-XXXX-X (Lindsey v. City of Beaufort, et al.), stating several reasons why, in his view, I cannot make a "neutral and detached" decision in these cases.¹ Since decision of the motion to recuse will impact directly on my jurisdiction to decide the issues in these cases, it is here addressed as a threshold issue.²

I.

Two statutes govern the recusal of United States District Judges, 28 U.S.C. §§ 144 and 455.

28 U.S.C. § 144 provides that:

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 proceedings.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term 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 by a certificate of counsel of record stating that it is made in good faith.

The factual allegations of an affidavit filed pursuant to section 144, if timely filed and legally sufficient, must be taken as true for purposes of recusal. The judge may determine the legal sufficiency of the affidavit but may not adjudge the truth or falsity of the matters alleged. The Supreme Court has observed that:

The section (28 U.S.C. § 144) withdraws from the presiding judge a decision upon the truth of the matters alleged ... and the reason is easy to define. To commit to the judge a decision upon the truth of the facts gives chance for the evil against which the section is directed.

Berger v. United States, 255 U.S. 22, 36, 41 S.Ct. 230, 234, 65 L.Ed. 481 (1921). See also, Liteky, et al v. United States, 510 U.S. ___, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1964).

Before an affidavit will effectively disqualify a judge, it must strictly comply with the requirements contained in Section 144. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Brotherhood of Loc. Fire & Eng. v. Bangor & Aroostook R.R., 380 F.2d 570, 576 (D.C.Cir.1967), cert. denied, 389 U.S. 327, 88 S.Ct. 437, 19 L.Ed.2d 560 (1967); Marquette Cement Mfg. Co. v. FTC, 147 F.2d 589 (7th Cir.1945); Scott v. Beams, 122 F.2d 777, 788 (10th Cir. 1941), cert. denied, 315 U.S. 809, 62 S.Ct. 794, 795, 799, 86 L.Ed. 1208, 1209 (1942); Commonwealth of Pa. v. Local Union 542, Int'l Union of Operating Engineers, 388 F.Supp. 155 (E.D.Pa.1974); Blank v. Sullivan & Cromwell, 418 F.Supp. 1 (S.D.N.Y.1975); Paschall v. Mayone, 454 F.Supp. 1289 (S.D.N.Y.1978); Duplan Corp. v. Deering Milliken, Inc., 400 F.Supp. 497 (D.S.C.1975). Thus, to be legally sufficient, the person who makes and files the affidavit must be a "Party" to the proceeding. Davis v. Board of Sch. Comm'rs, 517 F.2d 1044 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654 (5th Cir.1985); Roberts v. Bailar, 625 F.2d 125 (6th Cir.1980); Paschall v. Mayone, 454 F.Supp. 1289 (S.D.N.Y.1978); Bumpus v. Uniroyal Tire Co., Division of Uniroyal, Inc., 385 F.Supp. 711 (E.D.Pa.1974). Moreover, the affidavit must give "fair support to the charge of a bent mind that may prevent or impede impartiality of judgment." Berger v. United States, 255 U.S. 22, 33-34, 41 S.Ct. 230, 233, 65 L.Ed. 481 (1921). See also In re International Business Machines Corp., 618 F.2d 923 (2nd Cir.1980); Wolfson v. Palmieri, 396 F.2d 121 (2nd Cir.1968); Rosen v. Sugarman, 357 F.2d 794 (2nd Cir.1966); Tucker v. Kerner, 186 F.2d 79 (7th Cir.1950); Duplan Corp. v. Deering Milliken, Inc., 400 F.Supp. 497 (D.S.C.1975). To be legally sufficient, the affidavit must (1) be filed by a party to the proceeding, and (2) state such facts and reasons sufficient to convince a reasonable person that a bias or prejudice exists. See Parrish v. Board of Comm'rs, 524 F.2d 98 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). Similar statements concerning the requirements for legal sufficiency have been advanced by other courts. See Wolfson v. Palmieri, 396 F.2d 121 (2nd Cir.1968); Rosen v. Sugarman, 357 F.2d 794 (2nd Cir. 1966); Tucker v. Kerner, 186 F.2d 79 (7th Cir.1950); Foster v. Medina, 170 F.2d 632 (2nd Cir.1948), cert. denied, 335 U.S. 909, 69 S.Ct. 412, 93 L.Ed. 442 (1949); Craven v. United States, 22 F.2d 605 (1st Cir.1927), cert. denied, 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739 (1928); Duplan Corp. v. Deering Milliken, Inc., 400 F.Supp. 497, 507 (D.S.C. 1975). An affidavit based upon the cumulative effect of a series of allegedly disqualifying acts may be legally sufficient if one or more of the acts averred therein are legally sufficient. But, "it is axiomatic that a whole can be no greater than its component parts." Duplan Corp. v. Deering Milliken, Inc., 400 F.Supp. 497, 507 (D.S.C.1975) (citing United States v. Valenti, 120 F.Supp. 80, 88 (D.N.J. 1954)). Thus, each alleged category of bias and prejudice stated in the affidavit must be examined for its independent legal sufficiency. A series of allegations, if legally insufficient in themselves, are not rendered legally sufficient by grouping them together in the one affidavit. Id.

The certificate of counsel is an indispensable part of the affidavit; and the statutory language requiring that the affidavit be accompanied by "`a certificate of counsel of record stating that it is made in good faith' is subject to strict construction." Duplan Corp. v. Deering Milliken, Inc., 400 F.Supp. 497, 507-08 (D.S.C.1975). Thus, the affidavit must "be accompanied by a certificate of counsel of record stating that it is made in good faith" and contain the assertion that counsel believes the facts alleged to be accurate and correct. 28 U.S.C. § 144. While at the same time vigorously representing the interests of his or her clients, the attorney of record has a duty, as an officer of the court, "to aid in the administration of justice, and to uphold the dignity of the court and respect its authority." Morrison v. United States, 432 F.2d 1227, 1229 (5th Cir.1970), cert. denied, 401 U.S. 945, 91 S.Ct. 959, 28 L.Ed.2d 227 (1971) (citing, United States v. Onan, 190 F.2d 1, 6-7 (8th Cir.1951), cert. denied, 342 U.S. 869, 72 S.Ct. 112, 96 L.Ed. 654 (1951)). The requirement of a good faith certificate rests on the assumption that "counsel will not execute a certificate in reckless disregard of the truth." Id. (citing Mitchell v. United States, 126 F.2d 550, 552 (10th Cir.1942), cert. denied, 316 U.S. 702, 62 S.Ct. 1307, 86 L.Ed. 1771 (1942)). "It protects against an obviously untruthful affidavit, or an unjustified attempt by a party to disqualify a judge." Id. Thus, a disqualification affidavit unaccompanied by a certificate of good faith, signed by counsel of record admitted to practice before the court, is not legally sufficient and it will not support a § 144 motion to recuse. United States v. State of Alabama, 571 F.Supp. 958 (N.D.Ala.1983), opin. suppl. by 574 F.Supp. 762 (N.D.Ala.1983), aff'd, 762 F.2d 1021 (11th Cir.1985); Duplan Corp. v. Deering...