Molinaro v. Watkins-Johnson CEI Division

• Decision Date: 09 April 1973
• Docket Number: Civ. A. No. 72-589.
• Parties: Edward T. MOLINARO and Anthony P. Catanzaro v. WATKINS-JOHNSON CEI DIVISION.
• Court: U.S. District Court — District of Maryland

359 F. Supp. 474

Edward T. MOLINARO and Anthony P. Catanzaro v. WATKINS-JOHNSON CEI DIVISION.

Civ. A. No. 72-589.

United States District Court, D. Maryland.

April 9, 1973.

MEMORANDUM AND ORDER

NORTHROP, Chief Judge.

Plaintiffs have submitted a motion to disqualify this Judge for "bias or prejudice" pursuant to 28 U.S.C. § 144 (1970). The brief affidavit in support of this motion lists two grounds upon which plaintiffs' allegations of bias are based:

(1) "being extremely hostile in his several remarks to Plaintiffs concerning the fact that Plaintiffs were appearing without counsel;" and

(2) deciding a motion for summary judgment on the basis of affidavits rather than on testimony.

A court faced with a motion to recuse on the basis of bias and prejudice must take the facts alleged as true and then determine the legal sufficiency and the timeliness of the affidavit and the certificate of counsel. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L. Ed. 481 (1921); Pfizer, Inc. v. Lord, 456 F.2d 532, 537 (8th Cir. 1972); Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968); United States v. Garrison, 340 F.Supp. 952 (E.D.La.1972). Although this Court sees problems with the timeliness requirement (the affidavit comes after an adverse ruling on a motion for summary judgment) and has some doubt about the adequacy of the certification of good faith See Morrison v. United States, 432 F.2d 1227, 1229 (5th Cir. 1970); In re Union Leader Corp., 292 F.2d 381, 384-385 (1st Cir. 1961); Mitchell v. United States, 126 F.2d 550, 552 (10th Cir. 1942); United States v. Hanrahan, 248 F.Supp. 471, 481 (D.D.C.1965), there is no need to address these issues since the affidavit is legally insufficient.

Plaintiffs allege that this Court made hostile remarks during the proceedings in this case. The only two statements in the affidavit that resemble specific allegations are the charges that (1) the Court made a comment about the fact that plaintiffs were appearing without counsel, and (2) that it made a statement to the effect that if jurisdiction were lacking, the case would be transferred to the Court of Claims. Plaintiffs indicate that several remarks were made, but fail to list the remarks and the context in which made. It is, however, clear that the remarks at issue were made during the course of the proceedings in this case.

Although the contents of the affidavit are to be taken as true, the affidavit is strictly construed against the affiant, for a judge is presumed to be impartial. Beland v. United States, 117 F.2d 958, 960 (5th Cir.), cert. denied, 313 U.S. 585, 61 S.Ct. 1110, 85 L.Ed. 1541 (1941). There is, therefore, a substantial burden upon the moving party to sufficiently demonstrate that the judge is not impartial. United States v. Thomas, 299 F.Supp. 494, 498 (E.D.Mo. 1968), citing In re Union Leader Corp., 292 F.2d 381, 389 (1st Cir. 1961). The affidavit, "to be sufficient, must identify and carefully delineate time, place, persons, occasions, and circumstances supporting the belief of bias or prejudice." United States v. Partin, 312 F. Supp. 1355, 1359 (E.D.La.1970); United States v. Hanrahan, supra. If the affidavit and certificate of counsel comply with the statutory standards, the judge must recuse himself Morse v. Lewis, 54 F.2d 1027, 1031 (4th Cir.), cert. denied, 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291 (1932); United States v. Garrison, supra, 340 F.Supp., at 956; but if the statutory requirements are not met, it is the duty of the judge to refuse to disqualify himself. Rosen v. Sugarman, 357 F.2d 794, 797 (2d Cir. 1966); United States v. Hanrahan, supra, 248 F. Supp., at 475. Thus, the mere filing of the affidavit does not automatically disqualify the judge. United States v. Hanrahan, supra, at 475.

Further, the affidavit must sufficiently show a personal bias or prejudice which is defined as an attitude of extrajudicial origin which would 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., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), citing Berger v. United States, 255 U.S. 22, 31, 41 S.Ct. 230, 65 L.Ed. 481 (1921). Thus, where the adverse attitude is created by what is presented during the course of the trial, section 144 disqualification is not appropriate, for this could lead to a crippling of our courts. See Wolfson v. Palmieri, supra; United States v. Thomas, supra, 299 F. Supp., at 498.

In order to satisfy the burden required to establish bias, plaintiffs must meet a threefold test.

First, the affidavit must state facts with sufficient particularity. Only the facts contained therein are relevant, not conclusions. . . .

Second, the facts must be such as to convince a

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