U.S. v. Ritter

• Decision Date: 14 July 1976
• Docket Number: No. 76-1248,76-1248
• Citation: 540 F.2d 459
• Parties: UNITED STATES of America, Petitioner, v. Honorable Willis W. RITTER, Chief Judge of the United States District Courtfor the District of Utah, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 459

540 F.2d 459

UNITED STATES of America, Petitioner, v. Honorable Willis W. RITTER, Chief Judge of the United States District Courtfor the District of Utah, Respondent.

No. 76-1248.

United States Court of Appeals Tenth Circuit.

Argued and Submitted May 18, 1976.

Decided July 14, 1976.

Robert B. Nicholson, Atty., Dept. of Justice, Washington, D. C. (Thomas E. Kauper, Asst. Atty. Gen., and Catherine G. O'Sullivan, Atty., Dept. of Justice, Washington, D. C., on the brief), for petitioner.

David K. Watkiss, of Watkiss & Campbell, Salt Lake City, Utah, for respondent.

Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.

PER CURIAM.

This is a mandamus petition filed by the Antitrust Division of the Department of Justice seeking to oust Chief Judge Willis Ritter, United States District Judge for the District of Utah, as the trial judge in a criminal antitrust action, United States v. Countryside Farms, Inc., et al., Crim.No. 75-76, which cause is awaiting trial in the mentioned court.

The indictment was returned July 28, 1975. It charged the four corporate and two individual defendants with conspiring to fix egg prices in violation of Section 1 of the Sherman Act, 15 U.S.C. Section 1. Arraignment was had on November 24, 1975, and on this occasion Judge Ritter heard the motions for bills of particulars on behalf of some of the defendants and granted them. At that relatively early time he clearly expressed his intention to grant similar motions of the other defendants as soon as the same were filed. ¹

On January 16, 1972, further motions for bills of particulars were heard and these were granted in accordance with the previous announcement. It was then claimed by the defendants that certain of the motions and orders had not been complied with, requiring further bills of particulars, and over the objection of the government attorneys the court ordered the government to satisfy the further requests; the court granted other discovery motions.

In the January 16 session, government attorneys claim that Judge Ritter's disposition toward the government changed. About this time the government lawyers assert that they learned of resolutions presented to the Utah Bar Association pertaining to Judge Ritter. These had originally been proposed at the June meeting of the Utah Bar June 20-21, 1975. There were a total of five such resolutions. ² The resolutions were referred to the Bar's Board of Commissioners of which Mr. Harold Christensen, attorney for Olson Farms, ³ was chairman inasmuch as he was also president of the State Bar Association.

On December 17, 1975, the Commission referred the resolutions to the Executive Committee for hearings and investigation. This was a three-member committee of which Mr. Christensen as bar president was chairman. This committee heard testimony on December 27, 1975, and following this it voted to recommend to the Commission that it report adversely on Resolutions A, B, E and No. 1, to take no position on Resolution C, and to support Resolution D. The Executive Committee recommendations were unanimous except for a divided vote on Resolution E.

The Committee also decided on the December 27 occasion to make the resolutions available to Judge Ritter, and approximately a week later Mr. Christensen, in accordance with the Committee's direction, delivered these to the judge. There is no evidence whatever that any impropriety occurred in connection with this delivery.

The Bar Commission accepted the recommendations of the Executive Committee. At the state bar meeting on January 10 The petition seeking to disqualify was filed on January 23, 1976. The trial in the criminal antitrust case was then set for February 2, 1976, so the government requested the judge to rule quickly on his disqualification, but as of January 29 he had not yet ruled, so the government applied to this court for an extraordinary writ requiring him to rule at once. Thereupon, he set the matter down on January 29, for a hearing on January 30.

1976, the six anti-Ritter resolutions described above were considered. Mr. Christensen in each instance gave the report of the Commission recommendation. Resolution No. 1 was tabled on a voice vote; Resolutions A, B, and E were defeated in a secret ballot; Resolutions C and D were approved on a secret ballot.

The government contends that at the January 16 hearing the judge showed bias in granting all of the motions for bills of particulars on behalf of the defendants and in treating counsel for the government with curtness and sarcasm and in contrast treating Mr. Christensen with great deference. In Appendix I, attached hereto, are some of the statements which are relied on.

The January 30 hearing is also relied upon as showing bias on the part of Judge Ritter. They say that the judge sought out Mr. Christensen's preference as to the order of proceedings and allowed him to cross-examine Mr. Disharoon, the government attorney who signed the affidavit of disqualification. They also point to the fact that at the end of the hearing the judge expressed dismay as to the treatment of Mr. Christensen, characterizing it as "the defamation, holding up to hatred and ridicule and contempt of Mr. Christensen." The judge then made a very deferential apology to Mr. Christensen, as follows:

My personal preference is (to continue with trial as scheduled) if it doesn't have repercussions against Mr. Christensen, as well as me I can get along with them but I don't want to do anything here that reflects upon Mr. Christensen any further and I certainly don't want to add fuel to the flames of the so-called media involving Mr. Christensen. If they leave him out of it and just shoot at me, why fine, but when they involve a fine, honorable, decent, high-principled man of the bar like Mr. Christensen, I think it's an outrage. App. 157-58.

Inasmuch as the disqualification motion was not decided immediately, this court stayed the trial; then on March 29, 1976, Judge Ritter issued an opinion and order denying the government's disqualification motion. The opinion held that there had been a failure to comply with a number of the technical requirements of 28 U.S.C. Section 144 and 28 U.S.C. Section 455(a). It was also adjudged that the facts alleged in the affidavit were inadequate.

The Department of Justice contends 1) that Judge Ritter's relationship to Mr. Christensen constitutes actual bias requiring disqualification. They aver that Mr. Christensen acted as Judge Ritter's judge and advocate; 2) also relied on is the conduct of Judge Ritter at the January 16 and January 30 hearings which they say evidences actual bias in favor of Mr. Christensen and against the government attorneys and in turn against the government; 3) it is contended that the total facts, the action of the Bar Commission of which Mr. Christensen was a member, plus Judge Ritter's alleged deferential attitude toward Mr. Christensen and his alleged angry attitude toward government counsel create an appearance of bias violative of 28 U.S.C. Section 455(a).

I.

The government predicates its petition on 28 U.S.C. Sections 144, 455(a). The former allows a party to request disqualification of a district judge when he has a personal bias or prejudice either against him or in favor of any adverse party. It also prescribes procedure. ⁴ The filing of Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.

                the affidavit does not bring about the disqualification.  The trial court determines its sufficiency.  The review is, however, restricted to its legal sufficiency and does not include the truth of the allegations.  5  There must be facts, however, to establish personal bias.  Section 455(a) is broader.  It applied to any judge and includes that he "shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned."  Prior to the 1974 revision, Section 455 read
                

Congress enacted the revision to make the statute conform to the Code of Judicial Conduct, 119 Cong.Rec. 33029 (1973) (remarks of Senator Burdick) as well as to "broaden and clarify the grounds for disqualification", 119 Cong.Rec. 33029 (1973), and to substitute an objective test of reasonableness for the subjective test of the former Section 455. Under the broader standard of revised Section 455(a), disqualification is appropriate not only where there is actual or apparent bias or prejudice, but also when the circumstances are such that the judge's "impartiality might be reasonably questioned." See 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction, Section 3549. Thus, the grounds for disqualification set out in Section 144 "personal bias or prejudice either against (a party) or in favor of any adverse party" are included in Section 455. Moreover, the language of Section 455(a) allows a greater flexibility in determining whether disqualification is warranted in particular situations. 13 Wright, Miller & Cooper, Section 3542.

In Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044 (5th Cir. 1975), cert. denied, --- U.S. ----, 96 S.Ct. 1685, 48 L.Ed.2d 188, 44 L.W. 3589 (1976), it was held that the revised Section 455 did not require disqualification where bias in favor of or against an attorney, as opposed to a party, is alleged. We do not believe, however, that this is strictly true, for bias in favor of or against an attorney can certainly result in bias toward the party. Thus, if a judge is biased in favor of an attorney, his impartiality might reasonably be questioned in relationship to the party. In our opinion the only issue presented is legal sufficiency of the affidavit. Unfortunately for the...