State of Idaho v. Freeman, Civ. No. 79-1097.

• Decision Date: 06 February 1981
• 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, National Organization for Women et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Idaho

507 F. Supp. 706

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, National Organization for Women et al., Defendant-Intervenors.

Civ. No. 79-1097.

United States District Court, D. Idaho.

February 6, 1981.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David H. Leroy, Atty. Gen., State of Idaho, Boise, Idaho, Robert Corbin, Arizona Atty. Gen., Phoenix, Ariz., Mtn. States Legal Foundation, Denver, Colo., David Wm. West, Phoenix, Ariz., John Runft, Boise, Idaho, for plaintiffs.

Michael Farris, Eberle, Farris & Nelson, P. A., Spokane, Wash., for plaintiff-intervenors.

Thomas J. Hart, Washington, D. C., Michael E. Donnelly, Boise, Idaho, for defendant-intervenors.

Elisa B. Vela, Dept. of Justice, Washington, D. C., M. Karl Shurtliff, U. S. Atty., Boise, Idaho, for defendant.

MEMORANDUM DECISION

CALLISTER, District Judge.

Defendant-Intervenors, National Organization for Women, et al, (hereinafter "NOW") have filed a motion to disqualify the Honorable Marion J. Callister from further consideration of the above-encaptioned matter. NOW's motion is styled as an original motion to disqualify brought pursuant to 28 U.S.C. ? 455(a), but NOW makes it clear that they wish the Court to consider the motion as one for reconsideration¹ of the Court's ruling of October 4, 1979, where the Court, in a memorandum decision, denied a similar motion to disqualify made by the defendant. State of Idaho v. Freeman, 478 F.Supp. 33 (D.Idaho 1979).

NOW's motion for disqualification, or for reconsideration of the prior ruling, rests on essentially three premises. First, NOW argues that the Court did not use the correct legal standard in determining whether disqualification was required by ? 455(a). Second, NOW contends that the Court's attention was not directed to various facts which significantly strengthen the conclusion that a reasonable question as to impartiality is raised. Finally, NOW claims that the excommunication of Sonia Johnson from the Church of Jesus Christ of Latter-day Saints ("Mormons") bears on the issue of whether a reasonable question is raised.

I. Background of the Case:

The underlying action is a suit filed by the states of Idaho and Arizona, and legislators from both states, asking for injunctive and declaratory relief, asserting the State's right to rescind a prior ratification, and challenging the constitutionality of Congress' action in extending the ratification period of the Equal Rights Amendment. The suit was filed on May 9, 1979.

In August of 1979, the defendant, through its counsel, the Department of Justice, filed a motion to disqualify Judge Callister under 28 U.S.C. ? 455, contending that his impartiality might reasonably be questioned because he then held the position of a Regional Representative in the Church of Jesus Christ of Latter-day Saints. This association was objected to because the First Presidency of the Church of Jesus Christ of Latter-day Saints have publicly stated their opposition to the Equal Rights Amendment. The First Presidency of the Church has also opposed an extension of the ratification deadline.

In a memorandum decision filed October 4, 1979, Judge Callister denied the defendant's motion stating that the

defendant misconceives the relationship between churches and the Government. In our Nation, religion and government operate in separate spheres. The churches of this land, including the Church of Jesus Christ of Latter-day Saints, are involved in teaching things of a religious nature, including the moral obligations of those who believe in God and have the hope of resurrection and of a life hereafter in God's kingdom.... However, religious societies have never claimed, nor have they been given, the right to interfere with the relationship between governments and their citizens, though they frequently and regularly encourage their church members to exercise the political rights which they possess to obtain proper representation and consideration in the legislatures of the states and of the Nation.

. . . . .

In this case, it is not claimed, nor could it be, that I have ever publicly expressed any opinion regarding the Equal Rights Amendment, participated in any demonstration for or against the amendment, or in any way involved myself improperly in the political process. The challenge is based solely upon the teachings of the church to which I belong. The teachings of the Church of Jesus Christ of Latter-day Saints include many ideals and principles which would govern in the perfect society. Nevertheless, church leaders have always taught that these principles can only be implemented when a majority of the people wish to implement them.

The church teaches that its members have a responsibility to seek the enactment of laws which are just and which protect the morality and freedom of the citizens of the land. However, the church has never taught either that it has any place influencing judges in their interpretation of the laws, or that a judge's religious beliefs take precedence over his sworn duty to uphold the Constitution and laws of the United States. There is a crucial distinction between legislative chambers, where everyone (including churches and religious groups) may express their opinions and lobby for the passage or defeat of a particular piece of legislation, and judicial chambers, where any attempt to bring pressure to bear on judges or to lobby for a particular decision would be totally improper. As a judge, I have no obligation to the church to interpret the law in any manner other than that which is required under the Constitution and the oath which I have taken. Under the facts as presented, a reasonable person would not conclude that impartiality of judgment in the instant case is foreclosed by virtue of the position that I hold in the Church of Jesus Christ of Latter-day Saints.

State of Idaho v. Freeman, supra, at 36-37.

The defendant did not seek interlocutory appeal or a writ of mandamus from the Court's decision but indicated that it was satisfied with Judge Callister's holding and would reserve the possibility of challenging his decision on final appeal of the case, if one were taken.²

By order of this Court, October 10, 1979, NOW was granted status in this case as an amicus curiae but denied full party status. After a successful petition to the Ninth Circuit, NOW was granted full party-defendant status by order of this Court dated September 4, 1980. Upon entry into the case, NOW filed this pending motion.

II. The Motion:

It is well established in the law that an intervening party has the right to litigate fully all issues relating to a pending action. 3B Moore's Federal Practice, ? 24.165 (1980); Wright & Miller, Federal Practice and Procedure: Civil ? 1920 (1972). It is also recognized that decrees entered prior to intervention should not be set aside unless the "prior order or decree would deprive the intervener of substantial rights which he has not been remiss in pressing." 3B Moore's, supra, at 24-652. The fact that this Court has already ruled on a motion to disqualify does not foreclose the newly-intervening party from bringing a separate motion for disqualification. A question does remain, however, as to the propriety of NOW's motion to reconsider the Court's ruling of a year ago. From a perusal of the Federal Rules of Civil Procedure and the locally promulgated Rules for the United States District Court for the District of Idaho, it is evident that a motion to reconsider is not recognized or provided for. The Court will take note that such motions, however, are frequently filed and ruled on by the courts. The propriety of a court entertaining a motion to reconsider is founded in the equity jurisdiction of the courts which can be exercised to prevent error or needless appeal. Thus, it is within the Court's discretion whether such a motion will be entertained.

In the instant case the Court can follow the defendant-intervenors' suggestion and reconsider its prior ruling or treat the petition as an original motion to disqualify. Since disqualification under section 455 is viewed as self-executing,³ and since NOW contends that new facts exist justifying disqualification, and because the Court finds no persuasive reason to reconsider its prior ruling, NOW's motion will be treated as an original motion and considered on its own merits.

III. The Statutory Scheme for Disqualification:

The current framework governing judicial disqualification as embodied in sections 144 and 455 of the Judicial Code has received a considerable amount of attention from both the courts and law review commentators. See, e. g., United States v. Conforte, 624 F.2d 869 (9th Cir. 1980); United States v. Sibla, 624 F.2d 864 (9th Cir. 1980); Potashnick v. Port City Construction, 609 F.2d 1101 (5th Cir. 1980); Blizard v. Frechette, 601 F.2d 1217 (1st Cir. 1979); SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977); United States v. Ritter, 540 F.2d 459 (10th Cir.), cert. denied, Olson Farms, Inc. v. United States, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976); Matter of Searches Conducted on March 5, 1980, 497 F.Supp. 1283 (E.D.Wis.1980); 13 Wright, Miller & Cooper, Federal Practice and Procedure, ? 3549 (1975); Comment, Disqualification of Federal Judges for Bias or Prejudice, 46 U.Chi.L.Rev. 236 (1978); Note, Judicial Disqualification in the Federal Courts: Maintaining an Appearance of Justice Under 28 U.S.C. ? 455, 1978 Law Forum 863; Comment, Caesar's Wife Revisited ?€”Judicial Disqualification After the 1974 Amendments, 34 Wash. & Lee L.Rev. 1201 (1977); Comment, Disqualification of Federal Judges for Bias Under 28 U.S.C. Section 144 and Revised Section 455, 45 Fordham L.Rev. 139 (1976).

The interrelation between section 144 and section 455 has been subject to various interpretations and has caused some...