Rice v. McKenzie
| Decision Date | 22 August 1978 |
| Docket Number | No. 77-1475,77-1475 |
| Citation | 581 F.2d 1114 |
| Parties | John M. RICE, Appellant, v. Arthur L. McKENZIE, Acting Warden, West Virginia State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Cynthia L. Turco, Charleston, W. Va. (Spilman, Thomas, Battle & Klostermeyer, Charleston, W. Va., on brief), for appellant.
William D. Highland, Asst. Atty. Gen., Charleston, W. Va. (Chauncey H. Browning, Jr., Atty. Gen. of W. Va., Charleston, W. Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.
The question is whether a federal district judge must recuse himself in a federal habeas corpus case when, as chief justice of the state, he had participated in the state supreme court's adjudication of the same claims. The district judge thought not. We have no doubt that the disposition of the claims in the district court was without any actual bias or prejudice, but we think that the objective standards of 28 U.S.C.A. § 455(a) required his recusal and that the case should be resubmitted to another district judge.
After having been convicted for armed robbery in West Virginia, Rice was placed upon probation. Later, after a revocation hearing, his parole was revoked, and he was committed to prison, whereupon he sought to attack the validity of the probation revocation and of his conviction. In the attack upon the probation revocation, he sought another hearing in which he would have opportunity to controvert some of the facts found as warranting revocation, and he challenged the sufficiency of others to support the revocation of probation.
When these claims reached the Supreme Court of West Virginia, relief was denied in brief orders. At that time Judge Haden was the Chief Justice of West Virginia, and he participated in the rejection of Rice's claims by the Supreme Court of that state.
Later when Rice sought federal habeas relief in a petition attacking the validity of his probation revocation, the case was assigned to Judge Haden who by then had become a United States District Judge. Without an evidentiary hearing, which Rice had sought, Judge Haden denied the petition. However, he disclosed the fact that he probably had participated in the denial of relief by the West Virginia Supreme Court. He stated he perceived no personal basis for his disqualification but stated that he would consider a timely motion for disqualification. Such a motion was filed, but an order was entered in which the judge concluded there was "no personal or legal basis for disqualification." Accordingly, a final order denying habeas relief was entered.
On appeal, Rice complains of the denial of a federal evidentiary hearing and the acceptance as correct of the state court's findings, but we need consider none of the questions going to the merits since we have concluded that the petition should first be reconsidered in the district court by another district judge.
Resolution of the disqualification question turns upon an interpretation of 28 U.S.C.A. § 455, as amended in 1974. It provides in pertinent part:
(a) Any justice, judge, magistrate, or referee in bankruptcy 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;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.
We do not hold that the judge was disqualified by anything contained in subsection (b). There is no reason to question his finding that he had no personal bias or prejudice or personal knowledge of any disputed fact within the meaning of subsection (b)(1). Clearly, he had no financial interest in the proceeding or any interest that could be affected by its outcome within the meaning of subsection (b)(4). Subsection (b)(3) might be stretched to cover this situation. As a member of the Supreme Court of West Virginia, he "served in governmental employment" within the meaning of that subsection. From the committee reports and hearings it is apparent that subsection (b)(3) was added to take care of the situation of a judge appointed after service as a "government lawyer." There were express references to lawyers appointed after service in the Department of Justice, in the offices of United States Attorneys or in other federal agencies. Seemingly, no one thought of the kind of situation we face here where a federal judge had former service as a state judge. However, we need not now decide whether, as Chief Justice of West Virginia, he was "in governmental employment" within the meaning of subsection (b)(3), for we conclude that subsection (a) required his recusal.
Subsection (a) of § 455 was designed as a catch-all provision of broader scope than the combined specific disqualification provisions of subsection (b). This is shown by the legislative history. 1 That this is so is also clearly apparent from the waiver provision of 28 U.S.C.A. § 455(e). If a judge is disqualified under one of the specific provisions of subsection (b), he may not accept a waiver of his disqualification by counsel and parties. He may accept such a waiver, however, if the sole basis of his disqualification is the provision in subsection (a) that his impartiality might reasonably be questioned.
The question is not whether the judge is impartial in fact. It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his impartiality on the basis of all of the circumstances. As amended in 1974, the statute replaced the old subjective standard with an objective one, and it reversed the old principle embodying a judge's duty to sit when not clearly disqualified. As stated in the House Committee Report:
Subsection (a) of the amended section 455 contains the general, or catch-all, provision that a judge shall disqualify himself in any proceeding in which "his impartiality might reasonably be questioned." This sets up an objective standard, rather than the subjective standard set forth in the existing statute through use of the phrase "in his opinion". This general standard is designed to promote public confidence in the impartiality of the judicial process by saying, in effect, If there is a reasonable factual basis for doubting the judge's impartiality, he should disqualify himself and let another judge preside over the case. The language also has the effect of removing the so-called "duty to sit" which has become a gloss on the existing statute. See Edwards v. United States, 334 F.2d 360 (5th Cir. 1964). Under the interpretation set forth in the Edwards case, a judge, faced with a close question on disqualification, was urged to resolve the issue in favor of a "duty to sit". Such a concept has been criticized by legal writers and witnesses at the hearings were unanimously of the opinion that elimination of this "duty to sit" would enhance public confidence in the impartiality of the judicial system. 2
Our task, then, is to determine whether a reasonable person would have had a reasonable basis for doubting the judge's impartiality. 3 In the process of making such a determination, we cannot be influenced by our own faith in the integrity of a particular judge. Congress was concerned with the appearance of impartiality to the general public. Neither our faith nor the imaginings of one highly suspicious of others are relevant. The inquiry begins and ends with a determination whether a reasonable person would have had a reasonable basis for doubting the judge's impartiality.
For many years a federal judge has been prohibited from sitting to hear or determine an appeal in a case or issue tried by him. 28 U.S.C.A. § 47. To...
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