Martelli v. City of Sonoma

• Decision Date: 16 June 1973
• Docket Number: No. 47578 WTS.,47578 WTS.
• Parties: Raymond J. MARTELLI, Plaintiff, v. CITY OF SONOMA et al., Defendants.
• Court: U.S. District Court — Northern District of California

359 F. Supp. 397

Raymond J. MARTELLI, Plaintiff, v. CITY OF SONOMA et al., Defendants.

No. 47578 WTS.

Untied States District Court, N. D. California.

June 16, 1973.

David Terreo and Grupp & Grupp, San Francisco, Cal., with Leal Grupp appearing, for plaintiff.

O'Connor, Cohn & Dillon, by Duncan Barr, San Francisco, Cal., for defendants.

ORDER DENYING MOTION TO DISQUALIFY THE TRIAL JUDGE

WOLLENBERG, District Judge.

Counsel for defendants have filed a motion under 28 U.S.C. § 144 requesting that Judge William T. Sweigert disqualify himself from further participation in this matter. Cross motions for summary judgment are currently under submission and the case is set for trial on June 25, 1973.

Defendants' motion is supported by an affidavit of Duncan Barr, an attorney with the law firm of O'Connor, Cohn & Dillon, counsel for defendants. It appears from his affidavit that Mr. Barr has had primary responsibility for the handling of this case for defendants. In addition, Harold H. Cohn, of the same office, has filed a certificate in support of the motion.

On June 5, 1973, Judge Sweigert prepared a statement of referral of the issue to Chief Judge Oliver J. Carter. That statement cites several relevant authorities: United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Pfizer v. Lord, 456 F.2d 532, 537 (8th Cir. 1972); United States v. Roca-Alvarez, 451 F.2d 843 (9th Cir. 1971). Judge Sweigert further states that "I do not consider myself disqualified in this case but to remove from the record any criticism of my procedure, I am requesting that you, as Chief Judge, pass upon the petition to disqualify." Judge Sweigert's statement is sufficient to end the matter, United States v. Roca-Alvarez, supra, but because he has chosen to have defendants' contentions reviewed by another judge,¹ we have examined the affidavit and certificate on file.

Section 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 proceeding.

"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."

At the outset the Court holds that the affidavit is insufficient on its face without regard to the statements contained therein. The statute is explicit that the affidavit must be filed by a party to the action. Nothing in the affidavit indicates that Mr. Barr is a party. To the contrary, it shows that he is counsel for defendants. An affidavit of counsel does not satisfy the statutory requirement. Giebe v. Pence, 431 F.2d 942, 943 (9th Cir. 1970); United States ex rel. Wilson v. Coughlin, 472 F.2d 100, 104 (7th Cir. 1973). The Court does not consider this deficiency to be technical in nature, for the basis for disqualification is a showing that the judge has a personal bias or prejudice against a party or in favor of an adverse party. Nevertheless, the interests of justice are best served in this matter by analyzing the allegations of the affidavit, and comparing them with the controlling legal standard.²

The standard of review to be followed in a disqualification motion under § 144 was established in Berger et al. v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). In that case the court was called upon to determine whether an affidavit filed pursuant to § 21 of the Judicial Code was sufficient to require disqualification of the judge in criminal cases under the Espionage Act, c. 30, 40 Stat. 217.

The court held that the challenged judge has jurisdiction to review the legal sufficiency of the statements made in the affidavit, but not to pass upon the truth or falsity of those statements. Despite a vigorous dissent, the court held that an affidavit based upon information and belief may satisfy the statute "if it show the objectionable inclination or disposition of the judge . . ." 255 U.S. at 35, 41 S.Ct. at 233. The judge is not empowered to pass upon the truth of the facts alleged, (255 U.S. at 36, 41 S.Ct. 230), even though the record may show, and the judge may have personal knowledge, that the allegations are false. See Hodgson v. Liquor Salesmen's Union Local No. 2 of the State of New York Distillery, Rectifying, Wine & Allied Workers' International Union of America, 444 F.2d 1344, 1348 (2d Cir. 1971).

In order to be legally sufficient the allegations, taken as true, must contain information that is definite as to time and place. 255 U.S. at 34, 41 S. Ct. 230. The "reasons and facts for the belief the litigant entertains are an essential part of the affidavit, and must give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." 255 U.S. at 33-34, 41 S.Ct. at 233. See Grimes v. United States, 396 F.2d 331, 333 (9th Cir. 1968); but see "Note, Disqualification of Judges for Bias in Federal Courts," 79 Harv.L.Rev. 1435, 1446-7 (1966). Moreover, "the alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., supra, 384 U.S. at 583, 86 S.Ct. at 1710. Rulings adverse to the litigant are not sufficient. Palmer v. United States, 249 F.2d 8 (10th Cir. 1957), cert. denied 356 U.S. 914, 78 S.Ct. 673, 2 L.Ed.2d 587 (1958). With these standards in mind, we turn to the allegations of the affidavit.³

The first allegation is that in the months following entry of a dismissal for lack of prosecution by Judge Harris in September, 1970, Judge Sweigert met with plaintiff and his counsel. Defendants and their attorneys were not notified of the meeting, were not present, and do not know what was said. On February 26, 1971, Judge Sweigert vacated the dismissal without opinion.

This allegation does not support a charge of bias. Dismissals for lack of prosecution are not favored by the courts. The Court declines to speculate on Judge Sweigert's reasons for vacating the order of another judge, whose connection with the case is unexplained by the affidavit. But we note that Judge Sweigert's subsequent referral of the matter to a magistrate belies any improper motive. Certainly vacating the dismissal, although a ruling adverse to defendants, was an action well within the Court's discretion, and cannot form the basis for an allegation of bias. See Grinnell Corp., and Palmer, supra.

Nor is the alleged meeting of the judge with plaintiff a sufficient indication of bias or prejudice. The affidavit does not state who initiated the meeting, the purpose of the meeting, or the nature of the statements made. Nor does it indicate defendants' source of information about the meeting. Hence this allegation does not give fair support to the charge of bias. Berger, supra.

The affidavit next alleges that Judge Sweigert referred the case to a magistrate to determine whether the case should be dismissed for lack of prosecution. The magistrate's findings and recommendation that the case be dismissed were presented to the judge, but he did not dismiss the action, and did not explain why he rejected the magistrate's recommendations.

This allegation is wholly insufficient. "When a magistrate returns his report, including his findings and recommendations, the district judge is free, after review, to accept, reject or modify any of the magistrate's findings or recommendations." United States ex rel. Henderson v. Brierley, 468 F.2d 1193, 1195 (3d Cir. 1972). Moreover, Judge Sweigert's ruling in refusing to dismiss was obviously a judicial action adverse to defendants. As such, it cannot form the basis for a charge of bias. Grinnell Corp., and Palmer, supra.

Defendants further allege that on several occasions when conferences were held in chambers Judge Sweigert refused Mr. Barr's repeated requests to have a reporter present. In so doing, Judge Sweigert allegedly has "continually berated and derided this attorney in sessions off the record. He has become extremely angry. . . ."

Nothing in the affidavit suggests that anything said by Judge Sweigert directly concerned the merits of the litigation. His anger at counsel is legally insufficient to show a predisposition in favor of plaintiff. Nor is the judge's decision to have conferences unrecorded, although counsel for defendant repeatedly requested a reporter, an indication of Judge Sweigert's feelings about the merits of the case. Counsel was present at these conferences, yet he fails to allege any specific statements by Judge Sweigert which might suggest bias or prejudice. The conclusory allegations that in the affiant's opinion off the record remarks "have evidenced a total unwillingness to review this particular lawsuit with impartiality" and that the Court "has predetermined and made up its mind as to the outcome of this case" cannot substitute for specific factual allegations. They do not add anything which affirmatively shows bias or prejudice, and are insufficient under Berger, as well as the more recent decisions.

The affidavit further alleges that defendants filed a motion for summary judgment on January 22, 1973. On February 12, 1973, defendants appeared to argue their motion, but plaintiff's attorneys had filed no response. The judge did not rule on the motion, but set a trial date for April 16, 1973. When counsel returned to court on April 16th, Judge Sweigert did not rule...