Rademacher v. City of Phoenix, CIV 76-759 PHX WEC.
| Decision Date | 22 November 1977 |
| Docket Number | No. CIV 76-759 PHX WEC.,CIV 76-759 PHX WEC. |
| Citation | 442 F. Supp. 27 |
| Parties | Paul D. RADEMACHER, in propria persona, Plaintiff, v. CITY OF PHOENIX, Mayor Tim Barrow, Police Chief Lawrence Wetzel, City Attorney Joe R. Purcell, Police Officer Theresa Millwee, Asst. City Prosecutor Donald P. Williams, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Paul D. Rademacher, in pro. per.
Jones, Teilborg, Sanders, Haga & Parks, Phoenix, Ariz., for defendants.
FINDINGS, CONCLUSIONS AND ORDER OF JUDGE HAUK ON PLAINTIFF'S MOTION FOR POSTPONEMENT AND DELAY OF THE DISQUALIFICATION HEARING SET FOR NOVEMBER 21, 1977, AT 11:30 A.M., IF JUDGE HAUK FAILS TO DISQUALIFY HIMSELF RELATIVE TO PLAINTIFF'S AFFIDAVIT OF DISQUALIFICATION UNTIL A THREE-JUDGE COURT IS APPOINTED TO HEAR PLAINTIFF'S MOTION FOR DISQUALIFICATION
The Plaintiff having filed herein his Motion for Postponement and Delay of the Disqualification Hearing Set for November 21, 1977, which Motion is dated November 21, 1977, and the Court, having been duly assigned to this case and after allowance of oral argument and full consideration of said pleadings, plus the entire files and records herein, enters its Findings, Conclusions and Order as follows:
FINDINGS AND CONCLUSIONS
This Court finds and concludes that Plaintiff is not entitled to a three-Judge Court for the hearing on Plaintiff's Motion for Disqualification of Judge Walter E. Craig, nor is Plaintiff entitled to a three-Judge Court for the hearing on Plaintiff's Motion for Disqualification of Judge A. Andrew Hauk. This Court further finds and concludes that Plaintiff received legally sufficient notice of the hearing set for November 21, 1977, at 11:30 A.M., under all the facts and circumstances of this case.
This Court therefore concludes that Plaintiff is not entitled to postponement and delay of the disqualification hearing set for November 21, 1977, at 11:30 A.M.
The reporter's transcript of this and related proceedings, conducted in open Court on November 21, 1977, constitutes additional findings and conclusions.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion for Postponement and Delay of the Disqualification Hearing Set for November 21, 1977, at 11:30 A.M. is denied.
The Plaintiff having filed herein his Motion for Disqualification of the Honorable A. Andrew Hauk, Affidavit of Disqualification, and Certificate of Good Faith, dated November 21, 1977, and the Court, having been duly assigned to this case and after allowance of oral judgment and full consideration of said pleadings plus the entire files and records herein, enters its Findings, Conclusions and Order as follows:
FINDINGS AND CONCLUSIONS
Plaintiff's Motion is based upon 28 U.S.C. §§ 144 and 455 and the Code of Judicial Conduct of the A.B.A. Accordingly, this Court is required to examine the Affidavit of the Plaintiff alleging personal bias and prejudice to determine if it is legally sufficient on its face. This Court finds that Plaintiff's Affidavit and Motion are comprised of either irrelevant matters or mere conclusory assertions and allegations, and wholly fails to set forth adequate and specific facts suggesting that this Court is personally biased or prejudiced against the Plaintiff herein.
Pursuant to 28 U.S.C. §§ 144 and 455 and Canon 3C of the Code of Judicial Conduct, and the case law interpreting same, see, e. g., Spires v. Hearst Corporation, 420 F.Supp. 304, at 306 (C.D.Cal.1976), this Court concludes that Plaintiff's Affidavit is legally insufficient upon its face to require the Court to disqualify himself.
The reporter's transcript of this and related proceedings, conducted in open Court on November 21, 1977, constitutes additional findings and conclusions.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion for Disqualification of the Honorable A. Andrew Hauk is denied.
The Plaintiff having filed herein on November 4, 1977, his Motion for Disqualification of Honorable Walter E. Craig, Affidavit of Disqualification and Certificate of Good Faith, and this Court, having been assigned to this case and after allowance of oral argument and full consideration of said pleadings plus the entire files and records herein, enters its Findings, Conclusions and Order as follows:
FINDINGS AND CONCLUSIONS
Plaintiff's Motion is based upon 28 U.S.C. §§ 144 and 455 and the Code of Judicial Conduct of the A.B.A. Accordingly, this Court is required to examine Plaintiff's Affidavit of Disqualification of Judge Craig, to determine if it is (1) timely and (2) legally sufficient. Cf., Grimes v. U. S., 396 F.2d 331 (9th Cir. 1968); Spires v. Hearst Corporation, 420 F.Supp. 304 (C.D.Cal.1976). It should further be preliminarily stated that 28 U.S.C. § 144 must be given the utmost of strict construction to safeguard the judiciary from frivolous attacks upon its dignity and integrity, Town of East Haven v. Eastern Airlines, Inc., 304 F.Supp. 1223 (D.Conn.1969), and to prevent abuse and to insure orderly functioning of the judicial system. Bumpus v. Uniroyal Tire Company, Division of Uniroyal, Inc., 385 F.Supp. 711 (E.D.Pa.1974).
First, this Court concludes that Plaintiff's Motion and Affidavit for Disqualification of Judge Craig are untimely under 28 U.S.C. § 144. This action was filed by Plaintiff in 1975 or earlier. Judge Craig dismissed the Plaintiff's Complaint in its entirety by Orders entered on September 21, 1977, September 29, 1977, and October 17, 1977. Plaintiff filed his Motion for Disqualification of Judge Walter E. Craig on November 4, 1977. A litigant cannot take his chances with a Judge and then, if...
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