United States v. Richmond

• Decision Date: 17 July 1958
• Docket Number: Civ. No. 6294.
• Citation: 178 F. Supp. 44
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. Harold D. ROGERS v. Mark S. RICHMOND, Warden, Connecticut State Prison.

178 F. Supp. 44

UNITED STATES ex rel. Harold D. ROGERS v. Mark S. RICHMOND, Warden, Connecticut State Prison.

Civ. No. 6294.

United States District Court D. Connecticut.

July 17, 1958.

Louis Pollak, New Haven, Conn., for petitioner.

Abraham Ullman, State's Atty. for New Haven County, New Haven, Conn., Robert C. Zampano, East Haven, Conn., for respondent.

J. JOSEPH SMITH, Chief Judge.

Respondent moves that the writer disqualify himself from hearing any further proceeding in this case and refer the matter to another judge of this court. The basis of the motion is that this judge has a prejudgment of the issues in the case and a personal bias against the detectives involved and in favor of the cause of the relator Rogers. To support this claim and in attempted conformity with the requirements of 28 U.S.C. § 144, the respondent, Mark S. Richmond, has made a sworn affidavit setting out alleged facts which are claimed to show this bias. Respondent also argues that on "retrial" the same testimony and issues will be involved and matters not entertained may be within the scope of the prior knowledge of the judge and by reason of his prior knowledge of the facts, his alleged opinion against the respondent's witnesses and of prior ruling and findings he would not be capable of exercising complete impartiality.

A federal judge is not disqualified from retrying on remand a case originally tried before him. Bushey & Sons v. W. E. Hedger Transp. Corp., 2 Cir., 167 F.2d 9; Frank, Disqualification of Judges, 65 Yale L.J. 605 et seq.

Respondent also argues that a Connecticut statute precludes judges from sitting on a retrial of a case previously tried before them and that this is a substantive right which should not be denied the respondent in a federal forum. The qualification of federal judges is a matter, however, solely of federal law.

The affidavit filed is accompanied by a certificate by counsel for respondent that the affidavit is made in good faith.

28 U.S.C. § 144 provides:

"Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

"The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith."

The mere filing of the affidavit does not automatically disqualify the judge. He has the authority and the duty to decide whether the claim of bias is legally sufficient. Behr v. Mine Safety Appliances Co., 3 Cir., 233 F.2d 371. Moreover, it is "well established that the statute is to be given the utmost of strict construction in order to safeguard the judiciary from frivolous attacks upon its dignity and integrity." United States v. Valenti, D.C.D.N.J., 120 F.Supp. 80, 83 (cases cited).

Before proceeding to the sufficiency of the affidavit the question arises as to its timeliness. 28 U.S.C. § 144 provides that, "the affidavit * * * shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time." The alleged bias is claimed to have arisen during the course of proceeding. It is not timely, since filed in any event months after the rulings on trial which form the only basis for the affidavit. Cf. Ex parte N. K. Fairbank Co., D.C.M.D.Ala., 194 F. 978.

On the merits, in determining the legal sufficiency of the affidavit there are four guiding rules which the court should follow:

"(1) The mere filing of an affidavit does not oust the judge from the cause.

"(2) The judge has the right to determine the legal sufficiency of the affidavit.

"(3) The bias or prejudice must be personal, i. e. antagonism or opposition to the litigant, or favoritism for his opponent.

"(4) Definite views on the law, adverse rulings in the case on trial, or adverse rulings against the suitor in other cases or in cases involving similar facts do not constitute such disqualification, even in a criminal prosecution." United States v. Valenti, supra; Cole v. Loew's, Inc., D.C.S.D.Cal., 76 F.Supp. 872.

The judge may pass upon the sufficiency of the affidavit, but not upon the truth or falsity of the facts alleged. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481; Tucker v. Kerner, 7 Cir., 186 F.2d 79, 23 A.L.R.2d 1027. Therefore in passing on the sufficiency of the affidavit the grounds alleged will be presumed as true for the purposes of this motion. The attack in substance is based upon the rulings of the court against the respondent, the failure to follow rulings of the state courts and the failure of the court to disbelieve the testimony of relator and believe the testimony of certain detectives. It is patently apparent that these claims fall within the fourth rule stated above. Because a judge has decided one case against a litigant is no reason why he cannot sit in another. Barnes v. United States, 9 Cir., 241 F.2d 252. In Chessman v. Teets, 9 Cir., 239 F.2d 205, 215, the court stated that, "the conduct and rulings of the trial judge in the case itself provide no basis for an affidavit of bias or prejudice." See also United States v. Lattimore, D.C.D.C., 125 F. Supp. 295, 296. The United States Supreme Court in Ex parte American Steel Barrel Co., 230 U.S. 35, at page 44, 33 S.Ct. 1007, at page 1010, 57 L.Ed. 1379, states (the statute authorizing the filing of an affidavit of bias or prejudice) "was never intended to enable a discontented litigant to oust a judge because of adverse ruling made, for such rulings are reviewable otherwise * * *."

The rulings of this court have been reviewed by the Court of Appeals and by the Supreme Court of the United States. These courts have remanded this case to this court with instructions as to the procedure in determining certain issues.

It is not bias which disqualifies a judge from hearing a case but "personal bias". Knapp v. Kinsey, 6 Cir., 232 F.2d 458; Craven v. United States, 1 Cir., 22 F.2d 605, certiorari denied 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739. In Tucker v. Kerner, 7 Cir., 186 F.2d at page 84, supra, Chief Judge Lindley speaking for the Court states,

"Every member of this court, every member of any court, every judge, when he hears a case or writes an opinion must form an opinion on the merits and oft times no doubt an opinion relative to the parties involved. But this does not mean that

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