State of Idaho v. Freeman, Civ. No. 79-1097.
| Decision Date | 04 October 1979 |
| Docket Number | Civ. No. 79-1097. |
| Parties | The STATE OF IDAHO et al., Plaintiffs, Claude L. Oliver, etc., et al., Plaintiff-Intervenors, v. Rear Admiral Rowland G. FREEMAN, III, Administrator of General Services, Defendant. |
| Court | U.S. District Court — District of Idaho |
David H. Leroy, Atty. Gen., State of Idaho, Boise, Idaho, Bob Corbin, Phoenix, Ariz., Mtn. States Legal Foundation, Denver, Colo., David Wm. West, Phoenix, Ariz., John L. Runft, Boise, Idaho, for plaintiffs.
Elisa B. Vela, Dept. of Justice, Washington, D. C., M. Karl Shurtliff, U. S. Atty., Boise, Idaho, for defendant.
Michael P. Farris, Eberle, Farris & Nelson, P. A., Spokane, Wash., for plaintiff-intervenors.
Counsel for defendant has moved the undersigned judge to disqualify himself from further involvement in this action pursuant to 28 U.S.C. § 455(a). That section reads as follows:
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.
In order to understand the arguments upon which defendant bases his motion, it is necessary to consider briefly the nature of the action before the Court.
The states of Idaho and Arizona, and numerous state legislators from both states, filed suit May 9, 1979, asking inter alia for the following declaratory relief:
1. A declaratory judgment that the legislature of the State of Idaho validly and effectively rescinded its prior ratification of the proposed twenty-seventh amendment to the United States Constitution, commonly known as the Equal Rights Amendment.
2. A declaratory judgment that the running of the seven-year ratification period terminates Idaho's ratification of the proposed amendment.
3. A declaratory judgment that congressional legislation purporting to extend the time allowed for ratification of the proposed twenty-seventh amendment is unconstitutional, ineffective, violative of the powers of the respective state legislatures, and beyond the powers of Congress to grant.
The defendant observes that I hold a "prominent position" in the Church of Jesus Christ of Latter-day Saints ("Mormons"). The position I hold is that of Regional Representative. It is my responsibility to instruct local church leaders and to correlate the activities of the local units of the church. This position does not involve the setting of church policy. Moreover, all local and regional church leadership positions, including that of Regional Representative, are lay positions filled by members of the church who carry out their responsibilities in their spare time.
The defendant notes that the First Presidency of the Church of Jesus Christ of Latter-day Saints has publicly stated its opposition to the Equal Rights Amendment. In a statement of October 22, 1976, the First Presidency said:
While the motives of its supporters may be praiseworthy, ERA as a blanket attempt to help women could indeed bring them far more restraints and repressions. We fear it will even stifle many God-given feminine instincts. It would strike at the family, humankind's basic institution. ERA would bring ambiguity and possibly invite extensive litigation.
As indicated by Attachments 1 and 4 of the defendant's motion, the First Presidency of the church also opposes an extension of the ratification deadline. Citing several reasons for its opposition, the church leaders expressed deep concern over "what appears to be a tampering with and an abuse of the process of amendment itself." Attachment 4 to Defendant's Brief. It should be noted, parenthetically, that the First Presidency, in issuing its statements, expresses its moral convictions, but does not presume to interpret the law.
Based upon the facts just recited, none of which is in dispute, the defendant asserts that there is a "reasonable basis to conclude that the Court's ability to consider the action before it in an impartial manner may be, or appear to be, impaired." Defendant's Brief at pp. 2-3.
It is well settled that a judge is presumed to be qualified and that the movant bears a substantial burden of proving otherwise. United States v. Zagari, 419 F.Supp. 494 (N.D.Cal.1976). Furthermore, the Court has a sworn duty not to disqualify itself unless there are proper and reasonable grounds for doing so. Blizard v. Fielding, 454 F.Supp. 318 (D.Mass.1978). It also bears noting that a judge is not prevented from sitting because he comes into every case with a background of general personal experiences, associations and beliefs. In re Union Leader Corp., 292 F.2d 381 (1st Cir. 1961); see also Commonwealth of Pennsylvania v. Local Union 542, International Union of Operating Engineers, 388 F.Supp. 155 (E.D.Pa.1974).
With respect to a disqualification motion under § 455(a), the cases have established a reasonable man standard for testing a judge's impartiality. "The test under § 455(a) is not the subjective belief of the defendant or that of the judge, but whether facts have been presented that, assuming their truth, would lead a reasonable person reasonably to infer that bias or prejudice existed, thereby foreclosing impartiality of judgment." United States v. Corr, 434 F.Supp. 408, 412-13 (S.D.N.Y.1977). See Baker v. City of Detroit, 458 F.Supp. 374 (S.D.Mich.1978); United States v. Conforte, 457 F.Supp. 641 (D.Nev.1978); Paschall v. Mayone, 454 F.Supp. 1289 (S.D.N.Y.1978); United States v. Baker, 441 F.Supp. 612 (M.D.Tenn.1977).
The test boils down to a balancing of several factors. On the one side of the scale lies the right of every litigant to have his cause decided by an impartial tribunal. Several cases have indicated that even the appearance of impartiality is enough to require disqualification. Rice v. McKenzie, 581 F.2d 1114 (4th Cir. 1978); Webbe v. McGhie Land Title Co., 549 F.2d 1358 (10th Cir. 1977); Smith v. Pepsico, Inc., 434 F.Supp. 524 (S.D.Fla.1977). But see United States v. Olander, 584 F.2d 876 (9th Cir. 1978); Davis v. Board of Commissioners, 517 F.2d 1044 (5th Cir. 1975). On the other side of the scale lie both the presumption of qualification and the policy against allowing litigants to engage in judge-shopping. The Senate Judiciary Committee issued the following warning in discussing the revised § 455:
In assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are, in fact, seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant's fear that a judge may decide a question against him into a "reasonable fear" that the judge will not be impartial. Litigants ought not to have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice. S.Rep.No. 93-419, 93d Cong., 1st Sess. 1973, p. 5 (emphasis in original).
As a member of the Church of Jesus Christ of Latter-day Saints, I have undertaken the obligation to live the Christian doctrines as they are taught by the church, to assist the church in teaching these doctrines and to help provide for the temporal and spiritual needs of those belonging to the church. Defendant stresses the position which I hold as though it makes a difference in my obligations to the church. I do not believe it does. All members of the church have undertaken these same obligations and almost every active member holds some office or position of trust in the church. Defendant's motion essentially avers that any lay member of the church would be disqualified to sit on this case...
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